Term
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Definition
- Only required in traditional common Law
- In order for a covenant to run with the land it must be clearly made by two parties at time of contract by establishing a property relationship
- LL tenant relationships do this
- Easement creation/reservation does this
- Subdividing land into more than one parcel
- Typical CC&Rs are written
- Today Equitable servitudes doesn't allow horizontal privity
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Term
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Definition
- Real Property
- No damages required
- Punitive damages
- Non-real property
- Must have damages to recover (email system)
- Semi-private property
- Private towns: trespass allowed for private persons providing government services
- Minority: large shopping malls must allow 1st amendment rights
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Term
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Definition
- License (ticket to sporting event, hotel stay)
- Terminable at will
- Conveyance of privileges
- Lease
- LL/Tenant relationship (rights to both)
- Tenant can exclude
- Specifici plot
- Fixed payment intervals
- "lease"
- Assignable
- Eviction is apropriate remedy
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Term
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Definition
- Covenant of Quiet Enjoyment
- Was it breached
- What remedies are appropriate
- Warranty of Habitability
- Does it apply
- Was it breached
- What remedies are appropriate
- Provide property on day 1 (not American rule)
- Implied duties
- Did LL make implied promise
- What remedies are appropriate
- Tort liabilities for personal injury
- Traditional CL
- Negligent & Special circumstance
- Breach of contractual duty (warranty of habitability)
- Public/common areas
- LL has superior knowledge
- LL has primary control
- Modern Law
- Negligence OR strict liability for
- Latent defects
- Defects from construction (if LL participated)
- Warr. of habitability
- Varies state by state
- WY: negligence
- NJ: negligence or Warr. of Hab.
- PA: negligence & Warr. of Hab.
- CA: negligence or strict liab. for WoH
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Term
| Discrimination in Leasing |
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Definition
- FHA:
- Race, religion, color, national origin, sex, familial status, disability
- Exceptions for 4 plex you live in and don't advertise discriminatory practice
- Unruh:
- No discrimination based on any class
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Term
| Assignment vs. Sublease factors |
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Definition
- Assignment:
- transfer of all rights
- for duration
- receives no benefit
- no longer in possession
- Sublease:
- Rent paid through sublessor
- Rent is different amount
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Term
| Recording acts vs. Adverse possession |
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Definition
- Generally recording acts do not affect adverse possession.
- Minority: requires adverse possessor to record
- If you want benefit of recording must do quiet title action
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Term
| Assignee liable for breach |
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Definition
- LL must sue party she contracted w/over contracutal duty
- LL can sue possessor over covenant or LL/tenant relationship duties IF an assignment was made
- LL cannot sue possessor for a sublease
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Term
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Definition
- Majority: LL can withhold consent arbitrariliy
- Minority: Consent can only be withheld w/ good reason
- Reasonableness factors
- financial responsibility of assignee
- suitability of property - need for alteration
- legality of proposed use
- Likely not allowed just because sublessor stands to gain
- Federal CL: Withholding consent w/o good reason violates covenant of GF&FD
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Term
| LL duty when tenant breaches lease & vacates |
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Definition
- CL: LL is required to mitigate damage
- Utah: LL must prove she mitigated
- Court retains jurisdiction if lease isn't expired
- Isbey: Tenant must prove LL failed to mitigate
- Factors
- Hiring real estate agent (not dispositive)
- Diligent attempts by LL
- Seeking higher rent is ok if w/i market value
- Accepting lower rent is okay if w/i market value = tenant liable for difference
- Traditional CL: If LL accepts tenants surrender (by releasing) then he waives right to recover damages
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Term
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Definition
- Fee simple
- Life Estate
- Can be forfeited if
- Surrender
- Extreme waste (failure to pay taxes)
- Not forfeited by seasonal occupation or leaving w/ intent to return
- Lease
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Term
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Definition
Usually fee simple - FS determinable: (predetermined purpose - "so long as")
- Automatic termination
- Disfavored (unless it includes a right of re-entry)
- grantor retains future interest
- FS subject to condition subsequent: ("upon condition")
- Non-automatice dermination
- Preferred by courts
- Grantor retains future interest
- FS subject to executory limitation ("so long as... it it ceases then to")
- Automatic termination
- 3rd Party is given future interest
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Term
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Definition
- Interest created in grantor
- Reversion
- Possiblity of reverter
- Right of re-entry
- Interest created in 3rd party
- Must come from life estate/lease
- Vested remainder
- Vested subject to open
- vested subject to divestment (based on a condition)
- Contingent remainder (unidentified party - e.g. unborn child)
- Must come from fee simple
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Term
| Rule against perpetuities |
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Definition
- Future contingent interest void if
- At time interest is created
- it is possible to remain contingent
- >21years after end of all lives in being
- Interpretation:
- DISREGUARD FACTS AFTER CONVEYANCE
- devisement = death
- conveyance = date of delivery
- Only strike invalid interest (from the point it turns bad
- Corporations have no lives in being (21 years to vest)
- USRAP
- RoP OR 90 year waiting period
- If not vested after 90 years court rewrites conveyance according to grantor's intent
- Doesn't apply to options
- Wait and See
- Court re-writes conveyance if it hasn't vested 21 yrs after lives in being
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Term
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Definition
- Modern tesitmonial trust
- Title held by trust co.
- Beneficiaries have equitable title (worth $)
- Subject to RoP w/ charity exceptions
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Term
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Definition
- Permissive
- Failure to reserve/protect interest of future interest holder
- Remedies: injunction, damages
- Commissive
- Cannot permanently alter land or take actions that significantly lower property value
- Exception: extreme need: Possessor must be able to get some value from interest
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Term
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Definition
- Favored by law
- Unidivided interest
- Shares can be uneven
- Any tenant can demand partition
- Presumed unless joint tenancy is specifically called for OR in jurisidiciton of Tenancy in the entirety language such as husband and wife can make it presumed TitE.
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Term
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Definition
- Equal interest (even shares)
- Right of survivorship
- Any tenant can demand partition
- 4 unities required to create and converts to tenancy in common if any is violated
- Time - take possession at same time
- Title - same source
- Interest - equal interest
- Possession - possessory interest in the whole
- Straw man vs. functional/modern approach
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Term
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Definition
- Held by spouses
- Right of survivorship
- Equal interests
- Fiduciary duty & no unilateral actions permitted
- Judgments against one spouse can't be enforced
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Term
| Partition of Concurrent Estates |
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Definition
- Voluntary
- All tenants agree
- Division in kind (property is divided)
- Division by sale
- By judicial proceedings
- Can be demanded in joint tenancy or tenancy in common
- Cannot be damanded in tenancy in the entirety
- If a party makes improvements, is owed value of them at time of division.
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Term
| Ouster of tenant w/ possession rights |
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Definition
- Ouster: preventing a cotenant from exercising rights
- Ousted: no duty to pay for upkeep/taxes
- Can collect rent
- upkeep/taxes (carrying charges) may be offset, but not improvments
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Term
Concurrent estate w/ 1 tenant in possession Division of expenses |
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Definition
- Tenants in sole possession can collect carrying charges and upkeep unless the benefit she recieves from sole possession is higher than the expenses
- Tenant not in possession cannot collect rent unless tenant in possession collects passive profit, e.g. lease payment from a 3rd party
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Term
Maritial Property Common Law |
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Definition
Each spouse controls their own earnings - Division
- Presumably 50/50 w/ considerations
- Contribution of each spouse
- Aquisition and preservation of assets
- Needs of each spouse
- Could include alimony - support
- Value for a degree/earning potential
- Alimony for reimbursement of investment
- Can start small and adjust amount later
- Significant earning potential as divisible property
- Lump sum payed out over a set number of years
- Upon Death
- Forced Share Rule - commonly 1/3
- Elective or forced share (majority)
- Can accpet forced share or will
- Model Probate Code
- Forced share determined on a sliding scale that increases w/ length of marriage
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Term
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Definition
All property is owned 50/50 at moment it is earned - Must maintain pre-marriage property seperate or it becomes community property
- Fiduciary duty - no unilateral large gifts or real estate conveyances
- No tenancy in the entirety
- Division
- Still equitable adjustments
- Upon Death
- Non-earning spouse can devise her 50%
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Term
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Definition
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Term
Easements Appurtenant vs. In Gross |
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Definition
- Appurtenant: attached to a specific parcel of land it give access to
- Attached to any conveyance of servient/dominant estates
- In gross: not attached to a parcel (e.g. RR tracks)
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Term
| Easement vs. Fee Conveyance |
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Definition
- Easment
- "right of way"
- location not fixed
- limited purpose
- policy against narrow strip ownership
- Fee
- "road," "all interest," "strip of land," "and also"
- Fixed location
- Either
- Consideration
- Constru deeds in favor of grantee
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Term
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Definition
- Increased use: must come from normal/expected use and not burden servient estate
- Duty to maintain/improve: on dominant estate
- Can only access appurtenant parcel
- Interference: servient estate can't interfere w/, but can grant additional easements
- Interpretation
- First: does text solve controversy
- width, length, location fixed?
- Second: Intentions and reasonable expectations of parties
- Granted/reserved
- Consideration
- Prior use of land
- Subsequent conduct of parties
- Movement
- Maj.: cannot be moved unilaterally
- Min.: can be moved by servient estate if impact on dominant estate's benefit is minimal
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Term
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Definition
- Must be appurtenant
- Types
- Prior use (quasi easement)
- Strict necessity
- Requires
- Original unity &
- Necessity at time of severance
- Hybrid: prior use + reasonable necessity
- Prior to division owners use of easement was:
- Apparant
- Continuous
- Reasonably necessary for enjoyment of dominant parcel
- Interpretation:
- Go back to time of division and consider any reasonable factor
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Term
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Definition
- Intent to run w/ land
- Concerns the land
- Notice to successors
- Recorded
- Put in front of their faces
- Reasonable/doesn't violate public policy
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Term
Covenants: Defenses against enforcement |
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Definition
- Changed circumstances
- Extreme change
- Must affect entire community
- Doctrine of Laches: undue delay of enforcement
- Estoppel: detrimental reliance
- Waiver:
- Express = okay
- Implied: not generally enforced (low expectations for an HOA)
- Relative hardship: hardship is disproportionate to benefit
- Based on changed circumstances, reliance, waiver, etc.
- Unity of Title
- If individual buys up all land under covenant it is extinguished
- Eminent domain (???)
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Term
| Common Interest Communities (CICs) |
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Definition
- CC&Rs binding when first property is sold
- 2 types
- En gross (owned by individual)
- Appurtenant (attached to another parcel)
- Majority: implied reciprocal covenant doctrine
- Doesn't allowed for last lot to not be bound
- Modification of CC&Rs
- Lakeland: not allowed
- Zito: allowed
- Court made up precedent, but relies on policy that whether or not enforced should depend on the severity of consequences to the owner
- Standing to sue: HOA's have it, but not through privity of estate unless there is communal property.
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Term
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Definition
- 2 types
- Public: injuries to health/safety overall
- Usually brought by city official
- Private: Disturb enjoyment of property
- nontrespassory
- Ancient lights is rejected
- Light must have economic value
- Remedy:
- minor = damages
- major = injunction
- Rabin: least cost avoider analysis
- Determine moral blame
- Injunction against blameworthy until fixed OR
- Temporary injunction against blameworthy until damages are paid to non-blameworthy who then fixes it
- Coming to a nuisance
- Less likely to win action
- Not a hard/fast rule
- Overcome by right to farm statutes
- Recently struck down in IA
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Term
Eminent Domain Controversial examples |
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Definition
When condemned land is given to a private individual Toll roads RR Utilitiy easements Landlocked parcels Irrigation Ditches 20th Century
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Term
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Definition
Governmental taking of private land for a public use and w/ just compensation - Can't take from A and give to B
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Term
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Definition
Courts haven't ever found this violated - Midkiff: (Oligopoly)
- Deference to legislature
- Possiblilty to achieve some reasonable outcome of the public good
- Action didn't benefit a specific class
- Co. of Wayne (MI: overrule Poletown)
- 3 Circumstances condemnened land can be given to private persons
- Extreme public necessity (RR, highways)
- Government will have oversight to guarantee public purpose
- Blight: The public use lies in the taking - not the subsequent use (not just prime real estate)
- Kelo
- Stevens
- Public use = public purpose
- Public purpose is broadly interpreted
- Legislative deference
- Kennedy Concur: There may be a limit to public use, but this isn't it
- O'Connor Dissent: Economic takings are unconstitutional
- Public use = public interest
- Too much deference = no rule
- Thomas Dissent:
- Government should either
- Retain title
- Heavily regulate
- OR land should be used publicly
- Public use=/ public purpose
- Should overrule Midkiff, Berman
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Term
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Definition
- Legitimate use of police power is ok
- Judicial deference as to this
- Fairly debatable principle
- Unreasonable if
- Doesn't advance public welfare AND
- Places significant burden on owner
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Term
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Definition
(Remember to raise public use doctrine in conjunction w/ stuff below) - Bright line Rules
- Permanent physical occupation is a taking
- Simply transferring wealth isn't enough
- Denial of all economic benefit is a taking
- Lucas (the extreme of "too far" continuum)
- 7% of value is sufficient to not meet Lucas test
- Whole parcel rule applies to time
- Delay or temporary deprivation doesn't satisfy Lucas test
- Tahoe Sierra
- Scalia D: time should not be considered
- Penn Central Test ("Too far rule")
- Is harm to owner excessive when considering parcel as a whole?
- Diminution of value
- Investment backed expectations
- Character of government actions
- Public interest v. individual harm
- Legitimate use of polie power?
- Any physical invastion?
- Average reciprocity of advantage
- Benefit to owner (transferrable development rights)
- Is owner singled out
- Other fairness factors
- interference w/ present use
- 5th Amendment "designed to bar government from forcing an individual alone to bear public burdens" (Armstrong)
- Laws commonly burden some more than others
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Term
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Definition
Conditions placed on development plan - Nolan-Dolan Test
- Logical Nexus:
- Exaction must offset some negative impact of development
- Rough Proportionality
- Exaction must be proportionate (nature and extent) to impace to development
- Steven's alternative: just use a reasonableness of impairment of value test
- Mixed case law on monetary exactions (slippery slope)
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Term
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Definition
State fiduciary to manage and allow access to navigable waterways - Public uses
- Commerce
- Fishing
- Navigation
- Recreation
- Swimming
- Hunting
- Sunbathing
- Preservation
- Extensions of public trust (are rare)
- To private dry sand on beach
- To non-navigable waterways that impact navigable ones
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Term
Adverse Possession Definition |
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Definition
When ownership is acquired w/o payment or consent of titleholder |
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Term
Adverse Possession Requirements |
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Definition
- Hostility/claim of right
- Majority: presumed if other factors are met
- Minority: must have intention of taking land
- Minority:must have good faith belief of ownership/claim of right
- Openness and notoriety
- Owner knew/had reason to know of adverse possessor
- Actual possession
- Exclusivity
- Continuity
- Tacking of time allowed if possessors are in privity
- Ordinary possession for property
- Intermittent occupancy sufficient if other factors of ownership are met (e.g. improvments, pay taxes)
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Term
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Definition
- Reliance based on belief of ownership (adverse possessor AND 3rd parites
- Beneficial use of land
- Boundary disputes
- Nullify conveyance errors
Critiques - Encourages trespass
- Undermines recording acts
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Term
Adverse Possession Factors to consider |
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Definition
- When did statute start to run?
- Was possession continuous or interrupted?
- Did a conveyance effect adverse possession?
- Is good faith required in jurisdiction?
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Term
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Definition
Recording Acts only resolve priority issues Indexes - Tract
- Grantor-grantee
- Go back through chain of title and then work forward to ensure there is no interference
Types of Statutes - Race (extreme minority)
- First to record is legal title holder
- Notice-Race (1/2 of states)
- 2nd purchaser must
- Record First
- Not have notice
- Notice (1/2 of states)
- Last purchaser w/o legal notice is titleholder
- (O to A; O to B; A records; B records. B is legal titleholder)
- Shelter Doctrine: Once title vests w/ B, then any conveyance by B is protected by recording statutes (even if a gift)
- Wild Deeds:
- O to A unrecorded, no possession; A to B recorded, no possession = B has wild deed (duty to record O to A when she records A to B).
- Untraceable in grantor-grantee index
- Estoppel by deed:
- A to B. Then O to A. B owns land.
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Term
Recording Statutes Types of Notice |
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Definition
- Constructive Notice (recording notice)
- Must occur before conveyance
- No duty to find wild deeds
- Actual Notice:
- Visible notice: e.g. road = easement
- Inquiry Notice:
- Something gives reason for further inquiry
- Equitable doctrine: FLEXIBLE
- Consider
- comparative burden of inquiry
- best position to pay
- future incentive caused by decision
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Term
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Definition
- Manual delivery w/ intent to immediatly convey OR
- Recorded OR
- Delivered to an escrow w/o right of retreval
Valid delivery makes conveyance non-revokable |
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Term
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Definition
- Present Covenants
- Seisin: Grantor has title
- Right to convey
- Against encumbrances: exceptions if notice was given
- Future Covenants
- Quiet enjoyment: won't be evicted by someone w/ paramount title
- Includes covenant of warranty
- Further Assurances
NOTE: liability under warranty is limited by purchase price |
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Term
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Definition
- Warranty, full, general
- Limited, special
- Quitclaim
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Term
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Definition
- Does it apply?
- Multi-rental properties
- Possibly others
- Was it breached?
- Duty to act
- Minimum living conditions?
- Building code as a guideline
- What remedies are appropriate?
- Sue LL
- Withhold market value
- Self-repair after reasonable notice and withhold rent
- Abrogate lease (vacate)
- Refuse to pay rent and stay on premises
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Term
| Covenant of Quiet Enjoyment |
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Definition
- Was it breached?
- LL has duty to not evict or allow third parties under his control to evict
- Actual eviction
- Partial eviction
- Constructie eviction
- LL substantial interference w/use or enjoyment
- What remedies are appropriate?
- Abrogate lease
- Substantial interference = damages
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