Property Final 2

Capture

Possession, with intent to own and/or exclude others, no superior claim

Creation

Created item didn’t previously exist, claimant created the item through their own free activity, and the created item is a thing

Hostile

The AP must exercise rights equal to those of the true property owner

Assignment

The tenant transferred his right of possession for all of the remaining lease term.

Sublease

The tenant transferred part of his right of possession for part of the remaining lease term.

Self-help eviction

Landlord forces a tenant to leave without following the proper legal eviction process

What must a landlord have to use self-help eviction

Notice and the opportunity to pay, express right, and peaceable

What are the landlord’s remedies if a tenant abandons a lease?

Sue for all rent, terminate the lease, or mitigate damages and sue the rest.

Covenant of Quiet Enjoyment

The tenant has the right of quiet use and enjoyment of the premises without interference from the landlord unless the tenant breaches in a way that causes the landlord to terminate the lease

Doctrine of Constructive Eviction

The landlord’s actions make the property uninhabitable, forcing a tenant to move out

IWH

Premises are uninhabitable, the tenant gave notice before ceasing to pay rent, and landlord fails to act.

IWH Remedies

Lease terminates, suit for damages, abatement of rent, rent with holding, stay and repair and maybe get reimbursed

Tenant’s duties

To pay rent and not commit waste

First step in a sales K issue

Is the sales K valid? Does it meet the SOF and contain all material terms of the agreement

If the sales K doesn’t satisfy the SOF, what can P argue?

Partial performance

Partial performance

Payment or partial payment of purchase price; possession; and improvement

If the Sales K is valid, look for a breach. What are the 2 implied covenants which impose duties on the seller?

Failure to deliver marketable title and failure to disclose latent material defects

Failure to Deliver Marketable Title

The title is free from any defects and encumbrances

Failure to Disclose Latent Material Defects

Known, latent, material, defect

Known (LMD)

The seller has to know or should’ve known about the defect

Latent

Not discoverable upon a reasonable inspection

Material

It would affect an average reasonable buyer’s price or that buyer’s price

Defect (LMD)

Must be a physical defect that affects FMV

Remedies for Sales K breach

Rescission, specific performance, damages: actual, consequential, and liquidated

Rescission

Erasing the K

Actual Damages

K price - FMV at time of breach

Consequential Damages

Actual pecuniary loss sustained as the direct result of the wrong

Liquidated Damages

Agreed to in advance and stated in the K

Elements required for a valid deed

Names of grantors/grantees; words of conveyance; description of the property; statement of consideration; signature of grantor; must not be procured by fraud; and physical delivery

Types of Deeds

Special warranty deed, General warranty deed, quitclaim deed

General Warranty Deed

Warrants against all defects in title before or after the grantor took title

Special warranty deed

Warrants only against the grantor’s own acts but not others

Quitclaim deed

No warranties of any kind

PMM Exception

The money you borrow to purchase the property, and it has priority over any other mortgages by the same borrower or bank

Appurtenant Easement

Attached to a piece of land and benefits a specific property

Easement in Gross

Granted to an individual or entity and benefits them personally

Types of Easement

Express, by necessity, from prior use, by prescription

Express Easement

Writing. Lasts forever unless terminated

Easement From Necessity

Land originally in common ownership, severed into 2+ parcels, one parcel was transferred to another party, and the severance created a necessity for the easement.

Easement from Prior Use

Land originally in common ownership, severed into 2+ parcels, one parcel was transferred to another party, the use was apparent and continuous prior to the severance, and continuance of use is necessary for reasonable enjoyment of the dominant parcel

Easement by Prescription

The AP of easements but no exclusivity

Ways to terminate an easement

Purpose accomplished or becomes impossible; merger; abandonment

Abandonment of an easement

Actual disuse and either intent to abandon or actions by easement holder inconsistent with continuous use

Real Covenant

Intent to bind successors in interest, must touch and concern the land, vertical privity. Remedies: Monetary damages

Equitable Servitudes

Intent to bind successors in interest, must touch and concern the land, and successor must have notice of restriction. Remedies: Injunctions

Termination for ES and RC

Mutual consent, change of circumstances, waiver, abandonment

Notice

A subsequent purchaser for value wins if they had no actual or constructive notice at the time of conveyance

Race

Whoever records first

Types of notice

Actual, record, inquiry

Nuisance

Non-trespassory interference with another’s use and enjoyment of the land

How to violate another’s use and enjoyment of land

Normal person in the community finds it strongly offensive or seriously annoying

2 Types of Nuisance

Intentional and unintentional

Intentional Nuisance

The behavior has to be unreasonable

Unintentional Nuisance

The behavior must be negligent, reckless, or abnormally dangerous

Remedies for Nuisance

Damages to Date and either Permanent Damages or Injunction

Prior Nonconforming Use

Use must exist prior to enactment of ordinance, been legal, PNCU must be sought in “good faith”, and property owner must have a substantial investment in the use

Variance

They face a hardship, it won’t cause harm to the public, and it won’t undermine the overall plan

Types of Hardship

Undue and unnecessary

Undue Hardship

The hardship must render the property unusable, property owner must have made efforts to comply, and the hardship can’t be self-created

Unnecessary Hardship

Inutility; unnecessarily burdensome; or substantial injustice if denied.