Chapter 49: Real Property and Landlord-Tenant Law

Real property (or realty) consists of:

land and everything permanently attached to it, including structures and other fixtures

Real property encompasses:

airspace and subsurface rights, as well as rights to plants and vegetation

Real property is:

immovable

Land includes:

the soil on the surface of the earth and the natural products or artificial structures that are attached to it

Land further includes:

all the waters contained on or under its surface and much, but not necessarily all, of the airspace above it

encumbrances =

legal claims or limits placed on property ownership

Disputes concerning airspace rights may involve:

the right of commercial and private planes to fly over property and the right of individuals and governments to seed clouds and produce artificial rain

Subsurface Rights =

the rights to the minerals, oil, gas, or other resources located beneath the surface of a piece of land

Plant life, both natural and cultivated, is also considered:

to be real property

What can add to the value of realty?

natural vegetation, such as trees

When crops are sold by themselves, however, they are considered to be:

personal property, or goods

the sale of crops is a sale of goods and is governed by:

the Uniform Commercial Code (UCC) rather than by real property law

fixture =

An item of personal property that has become so closely associated with real property that it is legally regarded as part of that real property

A fixture is:

attached to a real property in a permanent way — The item may be embedded in the land or permanently attached to the property or to another fixture on the property by means of cement, plaster, bolts, nails, or screws

If an item is not a fixture, then it will be considered as a:

personal property

When the intent of that party is in dispute, the courts usually will deem that the item is a fixture if either or both of the following are true:

• The property attached cannot be removed without causing substantial damage to the remaining realty

• The property attached is so adapted to the rest of the realty as to have become a part of it

Trade fixtures are an exception to the rule that:

fixtures are a part of the real property to which they are attached

trade fixture =

The personal property of a commercial tenant that has been installed or affixed to real property for a business purpose. When the lease ends, the tenant can remove the fixture but must repair any damage to the real property caused by the fixture’s removal.

Trade fixtures remain the property of the tenant unless:

removal would irreparably damage the building or realty

One who possesses the entire bundle of rights is said to hold the property in:

fee simple

Numerous rights are involved in real property ownership, which is why:

property ownership is often viewed as a bundle of rights

Ownership interests in real property have traditionally been referred to as

estates in land

estates in land include:

fee simple estates, life estates, and leasehold estates

fee simple absolute =

An ownership interest in land in which the owner has the greatest possible aggregation of rights, privileges, and power. The owner can use, possess, or dispose of the property as he or she chooses during his or her lifetime. On death, the interest in the property passes to the owner’s heirs.

The owner can give the property away or dispose of the property by:

deed or by will

When there is no will, the fee simple passes to:

the owner’s legal heirs on her or his death

In Fee Simple absolute, the owner has:

exclusive possession and use of the property

Who can be liable for the tort of nuisance?

A person who uses his or her property in a manner that unreasonably interferes with others’ right to use or enjoy their own property

life estate =

An interest in land that exists only for the duration of the life of a specified individual, usually the holder of the estate

conveyance =

The transfer of title to real property from one person to another by deed or other document.

The life tenant’s ownership rights cease to exist on:

the life tenant’s death

waste =

The use of real property in a manner that damages or destroys its value.

The life tenant has the right to use the land, provided that he or she commits no:

waste

The life tenant can also create:

liens, easements (discussed shortly), and leases, but none can extend beyond the life of the tenant

liens =

a legal claim against property used as security for a debt

leases =

a contract giving someone the right to use property for a set time in return for rent

easements =

the right to use part of someone else’s property for a limited purpose

concurrent ownership =

Joint ownership

There are two principal types of concurrent ownership:

tenancy in common and joint tenancy

Concurrent ownership rights can also be held in:

a tenancy by the entirety or as community property

tenancy in common =

Joint ownership of property in which each party owns an undivided interest that passes to his or her heirs at death.

joint tenancy =

Joint ownership of property by two or more co-owners in which each co-owner owns an undivided portion of the property. On the death of one of the joint tenants, his or her interest automatically passes to the surviving joint tenant(s).

The right of a surviving joint tenant to inherit a deceased joint tenant’s ownership interest is referred to as:

a right of survivorship

A joint tenant can transfer her or his rights by sale or gift to another without the consent of the other joint tenants. But what does this do?

it terminates the joint tenancy

The person who purchases the property or receives it as a gift becomes:

a tenant in common, not a joint tenant

A joint tenant’s interest can also be levied against (seized by court order) to satisfy the tenant’s judgment creditors. If this occurs:

the joint tenancy terminates, and the remaining owners hold the property as tenants in common

tenancy by the entirety =

Joint ownership of property by a married couple in which neither spouse can transfer his or her interest in the property without the consent of the other.

What does a divorce, either spouse’s death, or mutual agreement do to a tenancy by the entirety?

it would terminate it

A limited number of states allow married couples to own property as:

community property

community property =

A form of concurrent property ownership in which each spouse owns an undivided one-half interest in property acquired during the marriage.

Community property ownership applies to:

most property acquired by the husband or the wife during the course of the marriage — it generally does not apply to property acquired prior to the marriage or to property acquired by gift or inheritance as separate property during the marriage

leasehold estate =

An interest in real property that gives a tenant a qualified right to possess and/or use the property for a limited time under a lease.

lessor =

landlord

lessee =

tenant

In every leasehold estate, the tenant has a qualified right to exclusive possession. It is qualified because:

the landlord has a right to enter onto the premises to ensure that no waste is being committed

fixed-term tenancy =

A type of tenancy under which property is leased for a specified period of time, such as a month, a year, or a period of years; also called a tenancy for years.

periodic tenancy =

A lease interest in land for an indefinite period involving payment of rent at fixed intervals, such as week to week, month to month, or year to year.

A periodic tenancy sometimes arises after:

fixed-term tenancy ends when the landlord allows the tenant to retain possession and continue paying monthly or weekly rent

Under the common law, to terminate a periodic tenancy, the landlord or tenant must give at least:

one period’s notice to the other party

tenancy at will =

A type of tenancy that either the landlord or the tenant can terminate without notice.

tenancy at sufferance =

A tenancy that arises when a tenant wrongfully continues to occupy leased property after the lease has terminated

nonpossessory interests =

In the context of real property, an interest that involves the right to use land but not the right to possess it.

nonpossessory interests include:

easements, profits, and licenses

easement =

A nonpossessory right, established by express or implied agreement, to make limited use of another’s property without removing anything from the property.

profit =

In the context of real property, the right to enter onto another’s property and remove something of value from that property.

Easements and profits can be classified as either:

appurtenant or in gross

An easement (or profit) appurtenant arises when:

the owner of one piece of land has a right to go onto (or remove something from) an adjacent piece of land owned by another

The land that is benefited by the easement is called:

the dominant estate

the land that is burdened is called:

the servient estate

In an easement or profit in gross:

the right to use or take things from another’s land is given to one who does not own an adjacent tract of land

easement or profit in gross are intended to:

benefit a particular person or business, not a particular piece of land, and cannot be transferred

Most easements and profits are created by:

an express grant in a contract, deed, or will

An easement or profit may arise by:

implication

implication =

A way of creating an easement or profit in real property when it is reasonable to imply its existence from the circumstances surrounding the division of the property.

An easement may also be created by:

necessity

Easement by necessity example:

A person who rents an apartment, for instance, has an easement by necessity in the private road leading up to it

An easement arises by _____ when one person exercises an easement, such as a right-of-way, on another person’s land without the landowner’s consent.

prescription

prescription =

A way of creating an easement or profit in real property by openly using the property, without the owner’s consent, for the required period of time (similar to adverse possession).

An easement or profit can be terminated or extinguished in several ways. These can include:

• deed it back to the owner of the land that is burdened by it

• terminate an easement or profit is to abandon it and provide evidence of the intent to relinquish the right to use it

Mere nonuse will not extinguish an easement or profit, however, unless:

the nonuse is accompanied by an overt act showing the intent to abandon

Example of an overt act:

installing and using a different access road to one’s property and discontinuing using an easement across the neighboring property

license =

the revocable right of a person to come onto another person’s land

What is an example of a license?

A ticket to attend a movie at a theater or a concert is an example of a license

When a person with a license exceeds the authority granted and undertakes some action on the property that is not permitted, the property owner can sue that person for:

the tort of trespass

What are the various interested in real property?

1. Ownership Interests

2. Leasehold Estates

3. Nonpossessory Interests

What are part of ownership interest?

• fee simple

• life estate

• concurrent ownership

Fee simple =

The most complete form of ownership

Life estate =

An estate that lasts for the life of a specified individual

Concurrent ownership =

When two or more persons hold title to property together, concurrent ownership exists

Examples of concurrent ownership include:

1. Tenancy in common

2. Joint tenancy

3. Tenancy by the entirety

4. Community property

Leasehold Estates =

1. Fixed-term tenancy (tenancy for years)

2. Periodic tenancy

3. Tenancy at will

4. Tenancy at sufferance

Nonpossessory Interests =

1. Easements

2. Profits

3. Licenses

When real property is sold, the type of interest being transferred and the conditions of the transfer normally are set forth in a _____ executed by the person who is conveying the property.

deed

Real property ownership can be transferred by:

• sale

• gift

• will or inheritance

• adverse possession

• eminent domain

A contract for a sale of land includes such terms as the:

purchase price, the type of deed the buyer will receive, the condition of the premises, and any items that will be included

Unless the buyer pays cash for the property, the buyer must:

obtain financing through a mortgage loan

Real estate sales contracts are often contingent on:

the buyer’s ability to obtain financing at or below a specified rate of interest

closing =

The final step in the sale of real estate, in which ownership is transferred to the buyer in exchange for payment of the purchase price.

Closing is frequently:

four to twelve weeks after the contract is signed

escrow account =

An account generally held in the name of the depositor and the escrow agent. The funds in the account are paid to a third person on fulfillment of the escrow condition.