REAL PROPERTY SHOPPING LIST - …€¦REAL PROPERTY SHOPPING LIST 2. LAND-SALE CONTRACT. 3 ......

COPYRIGHT 2009 THE LAW PROFESSOR™

1. ADVERSE POSSESSION. Squatter, Tenancy at Sufferance / Holdover Tenant, Easement by Prescription, Co-Tenant Ouster.

REAL PROPERTY SHOPPING LIST

2. LAND-SALE CONTRACT.

3. LANDLORD / TENANT.

4. COVENANTS AND EQUITABLE SERVITUDES.

5. EASEMENTS.

6. CO-TENANTS, CONCURRENT ESTATES.

7. PRESENT AND FUTURE INTERESTS.

8. MISC. Zoning, Water and Air Rights, Subjacent Support, Eminent Domain, Trespass to Land, Private and Public Nuisance.


ADVERSE POSSESSION

ADVERSE POSSESSION.

Continuous, uninterrupted, actual, open, visible, hostile possession of the land of another for the statutory period.

Hostile. One is on the land without permission of the owner.

Exclusivity. Exclude others from possessing the property.

Open and Notorious. The use of the land is visible to others.

Actual. Where one actually possesses the land. Constructive Possession occurs when a person thinks they occupy more land than they actually occupy, they receive the full amount.

Continuous. Makes use of land in the same manner as would the owner given the nature, character and location of the land.

Statutory Period. Stays on land for the statutorily required period of time. An adverse possessor may tack on previous adverse possessors if in privity with previous adverse possessors.

Special Rules.

Disability. If owner is under a disability such as infancy, incarceration or insanity at time of start of adverse possession, the clock only starts when they are free of the disability.

Government Land. No adverse possession possible.

Record Judgment

. Adverse possessor must record a judgment or deed to confirm ownership in order to convey title.


THE LAND SALE CONTRACT

THE SALES CONTRACT.

Statute of Frauds. Essential terms of contract must be in memorandum or other writing signed by party against whom enforcement is sought. Essential terms include parties, words indicating intent to buy or sell, purchase price, and an adequate description of the property.

Exceptions.

Part Performance. Buyer takes possession of property, and either pays some or all of purchase price or makes improvements to property.

Detrimental Reliance / Equitable Estoppel. One party induced by other person to substantially change position in justifiable reliance on oral contract and serious or irreparable injury would result from refusal to enforce the contract.

Implied Covenant of Marketable Title

. One that a reasonably prudent buyer would accept. Unmarketable if seller does not own property, or title is subject to lien, easement or other encumbrance. If title is not marketable, seller must give buyer a reasonable time to cure.

TIME / TENDER, CLOSING. Seller is obliged to deliver deed and buyer is obliged to pay the purchase price, as concurrent conditions. One party first performs, tendering performance, and then the other performs.

Time is of the Essence. Time will be of the essence only if it is stated.

Risk of Loss. After contract is signed but land is destroyed, the buyer is equitable owner of land and must bear the loss. If seller dies before closing, the buyer pays to seller’s estate. If buyer dies before closing, the seller delivers to buyer’s estate.

REMEDIES FOR BREACH.

Specific Performance

. Breaching party must perform sales contract, if money damages are inadequate, and does not cause unusual hardship to breaching party.


Damages. Difference between contract price and fair market value of property at time of breach. Seller not liable is breach due to good faith inability to convey marketable title. Incidental also available for out-of-pocket expenses related to reliance on contract.

The Mortgage. The method through which a land purchase is financed with borrowed money. Lender requires that borrower post security for loan, so that if not repaid the lender may cause the security to be sold and repay the loan from sales proceeds. The mortgage is the conveyance of an interest in real property as security for performance of the obligation to make payments required by the note. If mortgagee does not pay, foreclosure may result. Must include the material terms, and be delivered to mortgagee.

Foreclosure.

Judicial. Mortgagee receives judgment stating amount due on mortgage, directing sale at public auction and directs terms of sale, and confirmed by court.

Power of Sale. Private. Requires advance notice to mortgagor and public, and must occur in a public location. Mortgagor may bring suit to cancel sale if bid price is grossly inadequate, fraudulent, or unconscionable.

THE DEED.

Basic document used to transfer estate or other interest in land during the lifetime of the owner. The person who transfers title by deed is the grantor, the one receiving title is grantee.

Deed FormalitiesWhen the deed has been accepted at closing the contract is extinguished, and the contract merges into the deed. For the title to pass there needs to be proper execution of the deed, and proper deed delivery.

.

Deed Execution

. Subject to the Statute of Frauds. Must describe land with sufficient accuracy, be in writing, signed by grantor, identify the grantor and grantee and contain words of conveyance.

Deed Delivery. A deed is not effective until it is delivered, based on intent of grantor. Recording raises a presumption of delivery. Grantor must manifest by words or actions an intent that the deed by immediately effective through act of delivery with words indicating intent. Conditional delivery occurs where deed is handed to grantee but delivery is not until grantor dies. If ambiguity occurs, extrinsic evidence through statements and conduct of the parties will be considered to determine if there was adequate deed delivery. The General Presumption of a Deed is that when it is in the possession for the Grantor or a close personal friend of Grantor without specific instructions, that there is no Deed Delivery, as there is not a present intent to


transfer an interest in land. However, this is a Rebuttable Presumption, and may be controverted with evidence.

TYPES OF DEEDS.

General Warranty Deed.

Contains Covenants of Title warranting against defects in title.

Special Warranty Deed.

Apples Covenants of Title only to defects caused by acts or omissions of grantor.

Quitclaim Deed.

This deed contains no Covenants of Title, and grantor does not warrant that they own the property, or that title is good. The title conveys only whatever right, title or interest that the grantor may have had in the land.

TITLE ASSURANCE.

Title may be protected against defect through Covenants of Title, Title Opinions and Abstracts, and Title Insurance.

COVENANTS OF TITLE. Express promises by grantor about the title conveyed. If one of the covenants is breached, grantee may recover damages from grantor.

PRESENT CONVENANTS. May be breached at moment of the conveyance, they are personal and do not run with the land.

Seisin. Promise that Seller has title / possession to the land.

Right to Convey. Promise that Seller can convey the property.

Against Encumbrances. Promise that there are no encumbrances on the property, except those that have already been revealed.

FUTURE COVENANTS. These may not be breached at the moment of the conveyance, and can only be breach later. They run with the land and so they can be enforced by all subsequent purchasers.

Warranty

. Warrants grantor’s promise to defend title against other claimants.

Quiet Enjoyment. Warrants grantee’s possession will not be disturbed by one with


superior title.

Further Assurances. Warrants that grantor will take other actions reasonably necessary to perfect grantee’s title.

Remedies. Present covenant is breach at escrow closing, and original grantee or successors may be sued for breach of covenant. Future covenant breached when grantee evicted by one with superior title, and grantee may sue for purchase price and interest.

Title Opinions and Abstracts. An attorney’s opinion of title based upon examination of public records is another form of title assurance, but is losing its effectiveness due to use of title insurance.

Title Insurance Policies. An indemnification contract between issuing company and the property owner or mortgagee, where the insurer promises to compensate or indemnify the insured against losses covered by title defects. Title Insurance policies cover title held by someone else, encumbrances on the insured’s title, unmarketable title and no right of access.

RECORDING ACTS.

At common law, the rule was first in time, first in right. Modernly, recording statutes determine the protections afforded subsequent Bona Fide Purchasers that record their interests. In a Notice Jurisdiction, a Bona Fide Subsequent Purchaser taking without notice will win. In a Race Jurisdiction, a Bona Fide Subsequent Purchaser recording first will win. And, in a Race-Notice Jurisdiction, a Bona Fide Subsequent Purchaser taking without notice and recording first will win.

Bona Fide Purchaser. One who pays valuable consideration and purchases subsequent to the original owner, and purchases for value with notice of other interest, such as those of an heir, done or devisee. Under the Shelter Rule Exception, one may use the status of a Bona Fide Purchaser to gain the land without being a BFP.

TYPES OF NOTICE.

Actual. Actual knowledge on part of BFP of the previous interest.

Constructive / Record. Arises from the record of the interest.

Inquiry. Where BFP examines land, and the inspection would lead a reasonable purchaser to further inquire about the true ownership of the land.


TIEMPLATE FOR THE LAND SALE CONTRACT

THE SALES CONTRACT.

Statute of Frauds.

Exceptions.

Part Performance.

Detrimental Reliance / Equitable Estoppel.

Implied Covenant of Marketable Title

.

TIME / TENDER, CLOSING.

Time is of the Essence.

Risk of Loss.

REMEDIES FOR BREACH.

Specific Performance.

Damages.

The Mortgage.

Foreclosure.

Judicial.

Power of Sale.


THE DEED.

Deed Formalities

. Deed Execution.

Deed Delivery.

TYPES OF DEEDS.

General Warranty Deed.

Special Warranty Deed.

Quitclaim Deed.

COVENANTS OF TITLE.

PRESENT CONVENANTS.

Seisin.

Right to Convey.

Against Encumbrances.

FUTURE COVENANTS.

Warranty.

Quiet Enjoyment.

Further Assurances.

RECORDING ACTS.

Bona Fide Purchaser.

TYPES OF NOTICE.

Actual.

Constructive / Record.

Inquiry.


REAL COVENANTS AND EQUITABLE SERVITUDES

REAL COVENANTS A Holder of a Real Covenant has holder has the right to restrict a 3rd party in the use of the 3rd party’s land. It is a Promise concerning use of land that benefits and burdens original parties to the promise as well as their successor, and is enforceable for damages. May be affirmative or negative, either a promise to perform or not to perform an act. The measure of damages for breach of a covenant is monetary damages. The BURDEN is the promissor’s duty to perform a promise, and the BENEFIT is the promisee’s right to enforce the promise.

BURDEN RUNNING WITH THE LAND. If a burden runs with the land, then subsequent owners or successors may either be able to enforce the burden, or be burdened by the covenant. For the burden of a covenant to run, a number of elements must be in place. Successor to original promissor is obligated to perform if meets SOF, original parties have Intent to bind successors, burden of covenant Touches and Concerns the land, there is Horizontal and Vertical Privity, and successor must have Notice of covenant.

WRITING. The original promise must be in writing in order to satisfy the Statute of Frauds.

INTENT. The original parties must have intended that the covenant would run with the land.

TOUCH AND CONCERN. The original promise must affect the parties’ legal relations as land owners as per their direct use and enjoyment of their land, and not just the members of the community at large. The covenant must make the land more valuable.

NOTICE. Subsequent owners must have had either actual notice, constructive notice, or inquiry notice of the covenant at the time of purchase.

PRIVITY. If successor party is a defendant then need both horizontal and vertical privity, if the successor party is a plaintiff then need only vertical privity.

Horizontal Privity. Original parties of the promise share some sort of interest in the land that is independent of the covenant, such as a landlord and tenant relationship.

Vertical Privity. Those subsequently obtaining the property must hold the entire estate held by the original party.


BENEFIT RUNNING WITH THE LAND. For the benefit to run with the land, there must be a writing, intent, touch and concern, and vertical privity.

TERMINATION OF COVENANTS AND SERVITUDES..

DEEDS OF RELEASE or MERGER / UNITY OF OWNERSHIP or CONDEMNATION. Additionally, ABANDONMENT takes place when the conduct of a person entitled to the benefit demonstrates intent to sever rights. Also, CHANGED CONDITIONS indicating that the area will not provide substantial benefit to dominant land, because of pervasive changes. Equitable servitude not to be used for racially restrictive covenants.

DEFENSES FOR CONVENANTS AND SERVITUDES.

UNCLEAN HANDS. Plaintiff has made the same use of the property.

ACQUISECENCE. Plaintiff let others make same use of property.

LACHES. Plaintiff waited too long to bring suit.

ESTOPPEL. Plaintiff allowed the use and defendant relied on the use.

REMEDY. Monetary Damages / Real damages in the measure of the difference between the fair market value of benefitted property before and after breach.

EQUITABLE SERVITUDES

Promise concerning use of land that benefits and burdens original parties and their successors and is enforceable through injunction. No need for privity.

Creation.

Burden Runs to Promissor’s Successors. SOF or implied from common plan, original parties Intend to burden successors, promise Touches and Concerns land, and successor has Notice of the promise.

Benefit Runs to Successors

. SOF or implied from common plan, original parties Intend to burden successors, and promise Touches and Concerns land.


Subdivisions. Where developer has common plan or scheme and imposes uniform restrictions, then an equitable servitude is implied, even if no SOF.

TERMINATION OF COVENANTS AND SERVITUDES..

DEEDS OF RELEASE or MERGER / UNITY OF OWNERSHIP. Also, CHANGED CONDITIONS indicating that the area will not provide substantial benefit to dominant land, because of pervasive changes. Equitable servitude not to be used for racially restrictive covenants. Finally, CONDEMNATION or ABANDONMENT.


UNCLEAN HANDS. Plaintiff has made the same use of the property.

ACQUISECENCE. Plaintiff let others make same use of property.

LACHES. Plaintiff waited too long to bring suit.

ESTOPPEL

. Plaintiff allowed the use and defendant relied on the use.

CONDOMINIUMS AND OTHER COMMON INTEREST COMMUNITIES. Properties of many people are subject to comprehensive land use restrictions governed by private associations.

Condominium. Each owner holds fee simple title to each unit, and undivided interest in common areas as tenant in common.

Planned Unit Development. Gated communities or small number of tract houses.

Restrictive Covenants.

The Declaration. Imposes binding restrictions on all units.

Covenants. Presumption is that they are valid, but should not be arbitrary or violate fundamental constitutional rights or public policy.

The Owners Association. Maintains common area, hires staff, collects assessments, enforces covenants. Held to standard of reasonably prudent person under similar circumstances.


TEMPLATE FOR REAL COVENANTS AND SERVITUDES

REAL COVENANTS A Holder of a Real Covenant has holder has the right to restrict a 3rd party in the use of the 3rd

BURDEN RUNNING WITH THE LAND.

WRITING.

INTENT.

TOUCH AND CONCERN.

NOTICE.

PRIVITY.

Horizontal Privity.

Vertical Privity.

BENEFIT RUNNING WITH THE LAND.

REMEDY. Monetary Damages.

EQUITABLE SERVITUDES

Promise concerning use of land that benefits and burdens original parties and their successors and is enforceable through injunction. No need for privity.

Creation.

Burden Runs to Promissor’s Successors.

Benefit Runs to Successors.

TERMINATION OF COVENANTS AND SERVITUDES.. DEEDS OF RELEASE or MERGER / UNITY OF OWNERSHIP. Also, CHANGED CONDITIONS indicating that the area will not provide substantial benefit to dominant land, because of pervasive changes. Equitable servitude not to be used for racially restrictive covenants. Finally, CONDEMNATION or ABANDONMENT.



UNCLEAN HANDS.

ACQUISECENCE.

LACHES.

ESTOPPEL.

CONDOMINIUMS AND OTHER COMMON INTEREST COMMUNITIES.


EASEMENTS

EASEMENTSAn easement is a non-possessory right to use the property of another. An easement may be created expressly through a writing, or impliedly through previous use or an absolute right of access. The land that is benefitted is the dominant tenement, the land that is burdened is the servient tenement. An easement appurtenant benefits dominant tenement. An easement in gross benefits holder personally. The easement holder is given some form of use or enjoyment of another’s land which is called the servient tenement. This right may be affirmative in nature and allow the holder the right to go onto and do something on servient land, or negative in nature thus preventing the servient landowner from doing certain acts. Easements may be conveyed and are subject to the recording acts.

.

TYPES OF EASEMENTS

.

Easement AppurtenantEasement holder directly benefits from use of the burdened / servient property, as related to holder’s benefitted / dominant property. The benefit will transfer automatically with dominant tenement, and burden also transfers automatically with servient tenement unless a bona fide purchaser for value took without notice.

.

Easements in Gross. Where there is only one property involved, the servient estate, there will result an easement in


gross to allow for public-type uses such as for telephone poles and railroad tracks. Easements in gross are not transferable personal uses, but are transferable for a commercial purpose.

CREATION OF EASEMENTS.

EXPRESS EASEMENTS. An easement may be created by an express grant, or by reservation when selling land. Voluntarily created in deed or will. An express easement must be in writing through a deed of easement if it is for over one year, must satisfy deed formalities, and must be signed by the holder of the servient estate.

IMPLIED EASEMENTS. Where an express easement is not created, an implied easement may be created through consideration of all of the circumstances related to the easement.

Previous Existing Use of Common Grantor. Occurs where two properties are owned by one property owner, who makes use of one of the pieces of land to serve the other, and then conveys one piece of property and retains another piece. The easement in such an instance must be apparent at the time of the conveyance, be continuous in that the servient tenement is permanently adapted to serve the needs of the dominant tenement, and it must be reasonably necessary for the use and enjoyment of the dominant tenement.

Necessity. Relates to a landlocked property, where the owner of the dominant tenement has no other access to get off of their land, an easement of right of way will be established through necessity.

By Prescription. Where an easement is created through satisfaction of the requirements for adverse possession, including actual, continuous and uninterrupted use for statutory period, visibility, notoriety and hostility.

Negative Easements. A negative easement prevents the servient estate holder from doing something, and it is created through an express writing signed by grantor. It relates to light, air, support, stream from artificial flow and scenic view.


TRANSFER OF EASEMENTS

.

Transfer of Easement Appurtenant

. A benefit for the dominant estate is transferred automatically, even if it is not stated in the deed of conveyance. The burden for the servient estate is also transferred automatically, however, a subsequent servient bona fide purchaser holder must have notice of the easement through actual notice, constructive or record notice, or inquiry notice. Therefore, a servient estate holder must honor the easement if they purchased with notice.

Transfer of Easement in Gross

. If commercial, it may always be transferred, if personal it cannot be transferred.

SCOPE OF EASEMENTSAn easement is presumed to last indefinitely. The presumed use of the easement is for the reasonable development of the dominant estate, as contemplated by the parties when the easement was created. Unilateral expansion of the easement is not allowed. An easement holder may make any use of the easement that is within the scope of the easement as per express terms of the grant, but an easement holder must not unreasonably interfere with servient holder’s use of the same area. If no area is stated, then courts will determine the location through use and acquiescence. If there is unreasonable use, the easement is not terminated, rather, an injunction is the proper remedy.

.

Repair of EasementsThe dominant estate is responsible for making repairs to an easement, but the servient estate has no responsibility to repair unless expressly stated.

.

TERMINATIONAn express easement is not terminated when the reason for its creation is either altered or removed. However, an express easement may be terminated in a number of ways.

.

Merger. When the dominant and servient estates come together in the same owner, the easement is terminated through unity of ownership.


Release

. A deed of release in writing with deed formalities, given by the easement holder, will terminate an express easement.

Abandonment

. Where the dominant estate takes physical action to indicate their intent to abandon the easement, and mere words or non-use are insufficient for abandonment.

EstoppelWhere dominant estate holder indicates abandonment of the easement and the servient estate holder materially relies to their detriment on the abandonment, by taking some kind of action, this will terminate the easement.

.

Easement Termination by PrescriptionAn easement will be terminated when the servient estate interferes with the easement for the statutory period under adverse possession, and the servient estate holder meets the other requirements for adverse possession, such as continuous, open, notorious, actual and hostile to easement holder. However, negative easements may not be gained through prescription.

.

Termination of Necessity EasementsWhen the necessity that gave rise to an easement no longer exists, the easement is terminated automatically, unless the easement was created through an express grant.

.

DestructionWhen the servient land is destroyed, the easement is terminated, unless the destruction took place through the willful conduct of the servient estate owner.

.

Severance

. Severance takes place where easement holder changes an easement appurtenant into an easement in gross.

Trespass Upon EasementWhen someone blocks access to an easement, that will constitute a trespass upon the right of easement, and a court may order the blockage removed. However, an open and continuous trespass upon easement may be extinguished through prescription, if no action is taken to cure the blockage over an extended period of time.

.

Negative Easements. Include solar and conservation easements.


LICENSESA license is a contract right and not a property right, and is a privilege to enter the land of another for a specific purpose. No writing is needed, and it may be revoked at any point in time, unless there is detrimental reliance such that licensee has invested a substantial amount of money or labor in reasonable reliance that the license would continue.

.

Irrevocable Licenses or Easements by Estoppel

. A license is revocable, unless after a license exists, the licensee spends a substantial amount of money or labor in good faith reliance, and licensor knew or had reasonable expectation that such reliance would occur.

PROFITSA profit is the right to go onto the land of another to take natural resources which are considered products of the land. The holder of a profit may enter the servient estate to take soil or mineral or timber, or the like. Profits share all of the rules related to easements, and a profit is subject to the statute of frauds.

.

Profit a Prendre. Right to enter land of another to remove physical nature and game.


TEMPLATE FOR EASEMENTS

EASEMENTS

.

TYPES OF EASEMENTS

. Easement Appurtenant

.

Easements in Gross.

CREATION OF EASEMENTS.

Express Easements.

Implied Easements.

Previous Existing Use of Common Grantor.

Necessity.

By Prescription.

Negative Easements.

TRANSFER OF EASEMENTS

.

Transfer of Easement Appurtenant. Transfer of Easement in Gross

.

SCOPE OF EASEMENTS

. Repair of Easements

.

TERMINATION OF EASEMENTS Merger, Release, Abandonment, Estoppel, Prescription, Necessity, Destruction, Severance.

.

TRESPASS UPON EASEMENT.

LICENSES

.

PROFITS

.


LANDLORD-TENANT At common law, duties and rights were independent of each other, such that tenant was responsible for their duties, even if landlord was breaching one or more of their duties. Modernly, the duties and rights of each party are more dependent, such that if one is breaching their duty, the other party may have a right to hold off on their duty also. A leasehold estate which is a nonfreehold estate, and entitles tenant to immediate exclusive possession.

TYPES OF TENANCIES.

TERM OF YEARS TENANCY. Endures for designate period that is either fixed or computed with an agreed upon formula. Expires automatically when period ends without need for notice of termination.

PERIODIC TENANCY. Lasts for initial fixed period, and automatically continues for additional equal periods until one party terminates with advance notice, normally of six months for a yearly lease.

TENANCY AT WILL. No fixed duration, and will continue as long as both parties desire. Mostly through implied, not express, agreement.

TENANCY AT SUFFERANCE. Related to adverse possession, where person in rightful possession continues to possess land after rightful possession ends. Landlord may evict at any time.

THE LEASE.

Statute of Frauds. Required for any term of more than one year, and must include a writing with key lease terms, and signed.

Tenant’s Rights and Duties

.

Duty to Pay Rent. Must pay full rent, on-time.


Right of Possession and Quiet Enjoyment. Tenant has the right to possess the premises, and a right to quiet use and enjoyment of the premises.

Constructive Eviction. Occurs when landlord’s actions, or failure to act, causes a substantial interference with tenant’s covenant of quiet enjoyment.

Right to Implied Warranty of Habitability

. Every residential lease has an implied warranty of habitability that warrants the landlord will deliver the premises in habitable conditions and maintain the premises in that condition during the entire term of the lease. Tenant must notify landlord of defects, and allow a reasonable amount of time to repair. If landlord fails to repair, tenant may: move out, remain in possession of premises and withhold rent, sue for damages, or repair defects and deduct costs from rent. Conversely, tenant may terminate lease and sue landlord for damages.

No Retaliatory Eviction

. Where Tenant lawfully reports Landlord for housing code violations, Landlord is barred from penalizing the Tenant by raising rent, ending lease, harassing tenant, or other such retaliatory actions.

Illegal Lease Doctrine. Leasing of unsafe and unsanitary premises violating housing code is an illegal contract, allowing tenant to withhold rent and remain in possession of premises.

Constructive Eviction. Where the wrongful conduct of landlord interferes with tenant’s use and enjoyment of the land. If given notice by tenant, landlord must fix problem within reasonable time, or tenant may vacate premises without further rent liability. Alternatively, tenant may stay and sue for damages, while paying rent.

Fixtures. Chattel permanently affixed to premises by tenant, such that they cannot be removed. To determine if a fixture, consider degree of attachment, custom, and degree of harm if removed. Will become property of landlord if tenant intends for the chattel to become a permanent part of the leased premises. If it can be removed, then tenants must remove before vacating, and sellers must remove before closing.

Waste. A cause of action to remedy a changed in condition of the property brought about by a tenant or co-tenant, that damages or destroys the value of property. Co-tenants may bring an action for waste during their co-tenancy.

Affirmative / Voluntary Waste. A structural change made to property that causes harm to property.

Open Mines Doctrine. A mine permitting continued excavation that and is already open, will not entail voluntary waste, but the opening of new mines is prohibited. Modernly, any activity necessary to continue using a particular property resource will fall under the Open Mines Doctrine.


Permissive Waste. Entails a failure to maintain the property, either physically or financially. Thus, a tenant should make repairs, pay taxes, and pay mortgages.

Ameliorative Waste. An improvement to the property that changes the character of the property, even if it would increase the value of the property. At common law, suing party may recover from tenant the cost of repairing the property to its original condition, because a property owner often intends to keep property in its original condition. Modernly, damages are rarely given, in order to encourage improvements and development, even if historical changes are made. Further, a long-term tenant may make a change that comports with a change in the nature and character of the neighborhood.

Landlord’s Rights and Duties.

Duty to Deliver Possession. Majority or English view, requires landlord to deliver actual possession of leased premises to tenant when lease begins, as well as legal possession. Minority or American view, requires delivery of legal right of possession with no duty to oust holdover tenant.

Duty of Reasonable Care. To prevent injuries to tenants or others caused by dangerous conditions on leased premises.

TRANSER. Landlord may transfer interest freely, but tenants have restrictions. Landlords have a future interest in a reversion, which is freely alienable. Tenants may assign or sublease absent contrary language in the lease. Some leases prohibit, some give lessor sole discretion, some require lessor to act reasonably. If need landlord consent but there is no standard for consent, then either sole discretion of landlord, or landlord need act reasonably in granting or denying consent, depending on the jurisdiction. Landlord may prohibit Assignments / Subleases to the extent that Tenant needs prior written approval from Lanlord. Once Landlord consents to a transfer, or, takes payment of rent from an assignee / lessee, Landlord waives their right to object to future transfers, unless that express right has been reserved.

Assignment. Transfer of interest for entire remaining term of lease. Landlord is lessor, original tenant is lessee who transfers their right making them an assignor, and the new tenant is the assignee. Privity of contract continues between L and T1, new privity of contract is created between T1 and T2, and privity of estate arises between L and T2. Unless a novation, T1 is liable to L for all covenants in the lease due to privity of contract. Assignment. Where T1 Assigns the entire remainder of the lease term to T2. Each are in privity with each other, and thus responsible for all covenants that run with the land, and if T2 refuses to pay rent, Landlord may sue T2 for the months that T2 was in possession. Landlord and T1 are secondarily liable to each other, and T1 may be liable for rent of T2 if T2 does not pay. If T2 transfers to T3, there is no privity of contract or estate, and Landlord cannot sue T2 for the acts of T3.


Sublease. Transfer of interest for part of remaining term of lease. Landlord is lessor, original tenant is lessee who transfers their right making them a sublessor, and the new tenant is sublessee. There is privity of contract privity of estate between L and T1, and there is privity of contract and privity of estate with T1 and T2. T1 is liable to L for all covenants in original lease. T2 is liable to T1 for covenants in sublease, but T2 has no obligations to L, so Landlord cannot sue T2.

TERMINATION. Periodic may be terminated by both for any or no reason, unless landlord terminates for a discriminatory reason or for a retaliatory reason.

Retaliatory Eviction. Eviction of tenant in retaliation for a tenant’s complaints about housing conditions, or otherwise tenant’s actions to remedy situation.

Surrender. Mutual agreement of landlord and tenant to terminate lease.

Abandonment. Tenant vacates premises without justification, does not have a present intent to return, and defaults with rent. Landlord must mitigate or terminate the lease.

Self-Help Eviction. Tenant defaults under lease, and landlord exercises self-help to retake premises, and may use reasonable force or must be peaceable, depending on jurisdiction. Modern trend to use eviction through judicial process.

Summary Eviction. Expedited proceeding, faster than ejectment, through with landlord may recover possession of premises from breaching tenant. Also called unlawful detainer.

Tenancy at Sufferance / Hold-Over Tenant

. Occurs when tenant wrongfully holds-over past the expiration of the lease. Related to Adverse Possession.

Condemnation

. Where the state takes the property. Partial condemnation occurs where tenant stays and pays rent, and gets a rebate for land taken during the lease period. For a total condemnation, tenant will not have to pay rent, because the lease is extinguished.

TORT LIABILITY. Landlord. At common law, Landlord had not duty to make premises safe. Modernly, Landlord must maintain all common areas, warn of hidden defects which they know of or have reason to know of, and must make repairs with reasonable care. Tenant

. Responsible for keeping premises in reasonably good repair. Liable for injuries to third parties that tenant invited, even if landlord promised to make repairs and did not.


LANDLORD-TENANT TYPES OF TENANCIES.

TERM OF YEARS TENANCY.

PERIODIC TENANCY.

TENANCY AT WILL.

TENANCY AT SUFFERANCE.

THE LEASE.

Statute of Frauds.

Tenant’s Rights and Duties.

Duty to Pay Rent.

Right of Possession and Quiet Enjoyment.

Right to Implied Warranty of Habitability.

Constructive Eviction.

Fixtures.

Waste.

Landlord’s Rights and Duties.

Duty to Deliver Possession.

Duty of Reasonable Care.

Right to Receive Rent.

TRANSER. Assignment. Sublease

.


TERMINATION.

Retaliatory Eviction.

Surrender.

Abandonment.

Self-Help Eviction.

Summary Eviction

.

Tenancy at Sufferance / Hold-Over Tenant

.

Condemnation

.

TORT LIABILITY.


CONCURRENT OWNERSHIP CONCURRENT ESTATES. TYPE OF TENANCY JOINT TENANCY A joint tenancy involves two or more owners of property with a right of survivorship. The granting instrument must clearly state that there is joint tenancy with a right of survivorship, as modernly a joint tenancy is disfavored because they are often used to avoid probate. Creation. The four unities must be present at the creation of a joint tenancy, including taking their interests at the same time, through the same title, with identical equal interests, and with identical possession rights to possess the whole property. Survivorship. When one owner dies their share of the property automatically passes to the surviving joint tenants. TENANCY IN COMMON A tenancy in common involves two or more owners of property with no right of survivorship. Creation. and the presumption favors a tenancy in common when it is unclear whether a joint tenancy or a tenancy in common has been established. Survivorship. There is no right of survivorship. When an owner dies, their interest in the property is inherited by will or intestate succession. Right of Possession. Each co-tenant owns their individual part, with a right to possess the whole. Alienability. Each co-tenants interest is descendible, devisable and alienable. TENANCY BY THE ENTIRETY. A protected marital interest with a right of survivorship. A tenancy arises presumptively in a conveyance to husband and wife, unless stated otherwise. It is a very protected form of ownership, and creditors of one spouse will not be able to reach the other spouse because there is not a unilateral conveyance. Includes the unities of time, title, interest, possession and person.


Severance. By conveyance if both parties join in, there is a divorce, there is a death through survivorship. May not circumvent right of survivorship through a unilateral conveyance to a third person. Not applicable to community property jurisdictions. RIGHTS AND DUTIES OF CO-TENANTS.

No Need to Account to Other Co-Tenants. Each has right to possess whole property. No need to account for profits made unless one is keeping another off the property, there is a lease by a co-tenant to a third party, there is depletion of natural resources, or there is an agreement to share.

Possession. Each has a right to possess and enjoy the whole property, even though they may own only a part of the property. No individual has a right to have exclusive possession of the property. Ouster. Where one co-tenant wrongfully excludes another co-tenant from their right of possession. Ousters take place when a co-tenant in possession refuses another co-tenants’ demand to share the property, when a co-tenant attempts to convey sole ownership to another and grantee takes possession with notice to other co-tenants, or when a co-tenant asserts a hostile claim to sole ownership and other co-tenants have notice. Once an ouster occurs, this will indicate the Hostility element for Adverse Possession. Adverse Possession. If there is an Ouster, a co-tenant who has exclusive continuous possession of the property for the statutory period, may take via Adverse Possession. Rent and Profits. Not liable to others for rent, but a third party rent should be shared by percentage of ownership. If co-tenant is in exclusive possession, then they are not liable to others for rental value of property or net income received from property. However, a co-tenant who leases all or part of property, must account to co-tenants for their fair share of rental income based on initial contribution or contract. Carrying Costs / Encumbrances. Each is responsible for their share of carrying costs such taxes and mortgage payments, by percentage of ownership. If one co-tenant has sole possession but without ouster, they are entitled to contribution from other co-tenant for taxes, insurance and other carrying costs, and may recover for these costs through an action for partition. However, co-tenant in sole possession must offset carrying charges against the value of benefit derived from their use and occupation of the property, which will often be in excess of carrying costs. Repair. Each co-tenant must contribute for reasonable and necessary repairs, as long as the repairing co-tenant notifies other co-tenants of the need for repairs.


Improvements. A co-tenant is not entitled to contribution for improvements to the property by other co-tenants. However, at partition, the improving co-tenant is entitled to a credit that is equal to the increase in value of the property due to their efforts. But, at partition, the improver bears responsibility for any decrease in the value of the property caused by their efforts Contribution. One co-tenant may force others to pay for expenditures on property for mortgage payments if signed by co-tenants, taxes, and repairs, but not for improvements.

Waste. A cause of action to remedy a changed in condition of the property brought about by a tenant or co-tenant, that damages or destroys the value of property. Co-tenants may bring an action for waste during their co-tenancy.

Affirmative / Voluntary Waste. A structural change made to property that causes harm to property.

Open Mines Doctrine. A mine permitting continued excavation that and is already open, will not entail voluntary waste, but the opening of new mines is prohibited. Modernly, any activity necessary to continue using a particular property resource will fall under the Open Mines Doctrine.

Permissive Waste. Entails a failure to maintain the property, either physically or financially. Thus, a tenant should make repairs, pay taxes, and pay mortgages.

Ameliorative Waste. An improvement to the property that changes the character of the property, even if it would increase the value of the property. At common law, suing party may recover from tenant the cost of repairing the property to its original condition, because a property owner often intends to keep property in its original condition. Modernly, damages are rarely given, in order to encourage improvements and development, even if historical changes are made. Further, a long-term tenant may make a change that comports with a change in the nature and character of the neighborhood.

TERMINATION. May sue for partition, and will be granted with showing cause. Partition in kind is physical division of land, and partition by sale is division of proceeds from sale.

Right of Survivorship. Surviving joint tenant’s automatically take the property on death of another joint tenant, and the dead joint tenant’s family gets nothing.

Partition. A joint tenant may ask for partition of property. At that point, joint tenant owns own portion of land outright.

Severance. Termination of interest when one of the four unities is disturbed through selling of a joint tenant’s interest to someone else. Mortgage will not sever because no transfer of title,


however under minority title theory title is transferred so there is severance. For sale, severance occurs at contract of sale. If creditor sale, then severance at judicial sale.

Sale. A joint tenant may sell or transfer their interest during their lifetime, with or without the knowledge of the other joint tenants. However, such a sale with sever the four unities, thereby establishing a tenancy in common between the new tenant and the remaining joint tenants, and the remaining joint tenants will still be joint tenants between themselves. Partition. A joint tenant, or a tenant in common, may bring an action for partition. Partition via voluntary agreement, in kind or forced sale, is a kind of severance where a judge will divide the property in the best interests of all parties, or order a forced sale where proceeds are divided up. Severance by partition will require a final partition decree. Mortgage. If property is mortgaged, in a Title Theory Jurisdiction the joint tenancy will be severed as to that co-tenant, but in a Lien Theory Jurisdiction, majority, the mortgage only places a lien on the property leaving the joint tenancy intact. However, a severance will occur where the mortgage is foreclosed and property sold. In either jurisdiction, if mortgager dies with mortgage outstanding, a joint tenant take the deceased mortgagor’s interest by right of survivorship free of the mortgage, because a joint tenant cannot encumber the interest of another joint tenant. Death. There is a right of survivorship. Agreement. A joint tenancy may be severed through express agreement of the joint tenants, or through implication of such an agreement garnered from the conduct of the parties which is inconsistent with the continuation of a joint tenancy. Leases. Leases will not terminate a joint tenancy.


PRESENT AND FUTURE INTERESTS

FUTURE INTERESTS. An interest that manifests as a possessory interest in the future, and includes REVERSION, POSSIBILITY OF REVERTER, RIGHT OF ENTRY, REMAINDER, and EXECUTORY INTEREST.

Future Interest of Transferor. POSSIBILITY OF REVERTER for fee simple determinable, RIGHT OF ENTRY for fee simple subject to a condition subsequent, and REVERSION for life estate. All are alienable. May bring suit if possessor commits waste. May have restrictions on possibility of reverter and right of entry.

Future Interest of Transferee. EXECUTORY INTERESTS AND REMAINDERS. Must have express language in a valid deed or will, and will not be implied. Some states allow alienability, other hold that cannot be transferred by inter vivos conveyance.

Executory Interests. Future interest created in transferee that must be cut short or divest another estate or interest before it becomes a possessory estate. May be a Shifting Executory Interest that Divests the Transferee, or a Springing Executory Interest that Divests the Transferor.

Remainders. Life Estates. Transferee is capable of securing a possessory interest upon natural termination of prior estate create by same instrument.

Vested Remainder. Created in a living and ascertainable person, and are not subject to a condition precedent. May have remedies for waste and a share in eminent domain.

Indefeasibly Vest Remainder. Clear entitlement.

Vested Remainder Subject to Divestment. May become possessor, unless specified event occurs. Granting language, “to A for life, but if A drinks alcohol, then to D.”

Vested Remainder Subject to Open. One or more ascertainable members of a class that may be enlarged in the future.

Contingent Remainders. Either created in an ascertainable person, or subject to a condition precedent.

THE RULE AGAINST PERPEUITIES. No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest. Must be logically provable that with the time period specified a contingent interest with vest by changing into a present estate, or forever fail to vest because it took place more than twenty-one years after lives in being died. Looked at the situation based on the facts that exist when the future interest


becomes effective, at the time of conveyance by transferor.

Modern Reforms. Wait and see statutes that wait until the end of the relevant period, and reformation to validate interest consistent with the intent of transferor.

THE DOCTRINE OF WORTHIER TITLE. Transferor transfers property to person, and remainder or executor interest to owner’s heirs, owner receives a reversion and heirs nothing. Few states.

THE RULE IN SHELLEY’S CASE. Few states use. If deed or will created a life estate or fee tail in a person, a remainder in fee simple for that person’s heirs, and the estate and remainder both legal and equitable, then future interest belonged to the person and not heirs.

THE DESTRUCTIBLITY OF CONTINGENT REMAINDERS. Few states. Legal contingent remainder extinguished if failed to vest when preceding freehold estate ended.


MISC. PROPERTY INTERESTS

RIGHT OF SUPPORT. Lateral and Subjacent Support. Landowner has a right to have their land supported by adjoining landowners. A strict liability claim will result for damage to undeveloped land resulting from excavation on the adjoining property, while only a negligence claim will result for damages to developed land.

Superjacent Space

. A landowner has a right to the air space directly over their property.

WATER RIGHTS. Rivers and Lakes / Riparian Rights. Properties that border a lake or a stream may use all water needed for domestic purposes, and reasonably use water for community or industrial uses.

Prior Appropriate Doctrine. Where the water belong initially to the state. The right to divert the water and use it can be acquired by individual even if they are not a riparian owner, because the right is base on first in time, first in right.

Underground Water. Landowner is entitled to reasonable use, but not wasteful use.

Surface Water. Under natural flow approach, landowner cannot make changes in the flow of flood water. Under the common enemy approach, landowner can do anything they want with flood water.

FIXTURES. Fixtures are once movable chattels that become attached to real property. When tenant removes a fixture, they commit voluntary waste, and thus they must not remove fixtures even if they installed the fixture. However, if tenant can remove a chattel without causing substantial harm to the premises, then the chattel will not be considered a fixture.

Private Nuisance. Non-trespassory, intentional, unreasonable and substantial interference with another’s use and enjoyment of their land. Unreasonable exists is gravity of harm outweighs utility of the conduct by defendant. Substantial is a normal person in community would regard interferences as strongly offensive or seriously annoying. Non-trespassory elements include fumes, smoke, light, and similar elements. There is no private nuisance if plaintiff has a hypersensitivity or specialized use. Courts balance interests of parties of plaintiff who has a right to be free from excessive interference, and the defendant who has a right to enjoy their land.

Must be owner, tenant or other land occupant.


Coming to the Nuisance. Where plaintiff moves to area after offending conduct began. No longer applicable.

Injunction. Court balances the equities, and grant if benefit to plaintiff is greater than damage to defendant.

Compensatory Damages. Measured by lowering of fair market value of affected property, for permanent nuisances. For temporary nuisances, compensation for past harm.

PUBLIC NUISANCE. An unreasonable interference with a right common to the general public, such as an interference with public health, safety or peace. The action is normally brought by a public official, but a private individual may bring a claim based on Particularized Damage, that differs in kind and not just in severity from the harm suffered by the public.

EMINENT DOMAIN AND TAKING. Power given to states by the 5th Amendment to take private property for public use, through just compensation to property owner. Taking is determined through a physical invasion, or through a regulation that eliminates all economic use of the property to the individual, thus making the property valueless or worthless. Remedy is through compensation to the owner for the price of the land, or for damages that occurred during the regulation.

ZONING. A government entity may enact statutes to reasonably control land use.

Variance. Where a party wishes to take actions which differ from the requirements of the zoning ordinance, they may seek a variance by showing undue hardship and that the variance will not be detrimental of surrounding property owners.

Non-Conforming Use. A non-conforming use is a use which was once valid under the prevailing, or non-existent, zoning laws, which is rendered invalid by a subsequent change in those zoning laws. Non-conforming uses are generally allowed to continue so long as the use is continuous, provided that continuous is defined as such continuing use as is appropriate in the circumstances The requirement of continuous use is strictly construed as non-conforming uses are not favored. Further, many jurisdictions provide for amortization of the non-conforming use so that the owner can be paid off and the non-conforming use be terminated. Cannot be eliminated without just compensation, or it will be deemed an unconstitutional taking.


Exactions. Amenities that the government seeks in exchange for granting permission to build, but is tantamount to extortion. Exactions may be constitutional if reasonably related to nature and scope of impact of proposed development.

CROPS. Fructus Naturals. Plants / crops that grow naturally without the aid of people, such as trees, bushes, grasses and their fruits. They remain real property until severed from the land. Fructus Industrials. Plants / crops that grow because of planting, cultivating and fertilizing, such as wheat, corn, beans and fruit in orchards. These emblements are personal property and pass to heirs of a life tenant. If land is sold with the crops, seller is not entitled to remove the crop or re-enter the property. NUISANCE.

Public Nuisance. Unreasonable interference with right common to general public, such as interference with public health, safety, welfare or morals. Court looks at character of neighborhood, nature of conduct, proximity of land, frequency and duration of activity. Plaintiff is normally a governmental entity. Private plaintiff may sue upon special injury.

TRESPASS TO LAND. Intentional, unprivileged entry onto land owned or occupied by another.

Public Trust Doctrine. Control by government of beaches below mean high tide line, such that public may use beach dry sand beach.

Encroachment / Continuing Trespass. Permanent trespass caused by construction of building or other improvement that extends onto another’s land. If from good faith mistake with minor injury, damages awarded, otherwise, injunction to remove the encroachment.

Good Faith Improvers. Improves land owned by another under good faith belief that that person owns it. Improver may remove improvements, or receive compensation equal to the amount of increase in fair market value.

SURFACE, SUBSURFACE, AND AIRSPACE RIGHTS.

Water Rights.


Watercourses.

Riparian System. Eastern states. Owner who has land adjoining watercourse may take water for reasonable uses, as long as does not unreasonably interfere with uses of other riparian owners in area.

Appropriation System. Western states. Allocation to first person to take water from watercourse for a beneficial use, even if land does not adjoin watercourse.

Diffused Surface Water. Pertains to all water not in rivers or watercourses. May make reasonable use of land even if altering flow in manner that harms others.

Public Trust Doctrine. Navigable waters and related lands held in sovereign trust for public use for recreation, commerce and navigation.

Right to Support.

Lateral Support. Right to have land in natural condition as supported by adjoining parcels. If adjacent landowner removes support and causes damage, then strictly liable.

Subjacent Support. Right to have land in natural condition supported by earth below.

Boundary Line Doctrines.

Land Boundaries. Agreed boundary line, acquiescence, estoppel, adverse possession. Estoppel relates to an owner who misleads a neighbor about location of common boundary line, and neighbor relies to their detriment.

Water Boundaries. Water boundaries may move over time. Accretion refers to buildup of soil so that water boundary moves and thus property line may move. Sudden change is an avulsion and a property line will not move.

Subsurface Rights. Oil usually belongs to first to capture it through extraction. Owner’s right to other third party subsurface intrusions are absolute.

Rights in Airspace. Owner’s right to airspace is that as reasonably necessary for use or enjoyment of land.

REAL PROPERTY SHOPPING LIST - …€¦REAL PROPERTY SHOPPING LIST 2. LAND-SALE CONTRACT. 3 ......

Documents

Transcript of REAL PROPERTY SHOPPING LIST - …€¦REAL PROPERTY SHOPPING LIST 2. LAND-SALE CONTRACT. 3 ......