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Property 1L
1L - Property Mensel
| Term | Definition |
|---|---|
| Pre-possessory interest | Actor undertakes significant but incomplete steps to possession of abandoned pers prop and effort is interrupted by unlawful acts of others, the A has a legal pre-possessory interest in the property. Interest is a right to possession, C/a Conversion. |
| Found property: Abandoned property | Abandoned property: True owner intends to relinquish all rights of possession and title. Finder has better rights than ALL ( including the abandoning owner). Shown by T/O intend to abandon. |
| Found property: Lost Property | True owner parts with it unintentionally and involuntarily. Finder has better right to it than all but the true owner. Stolen property found by someone who did not participate in theft is lost property. |
| Found Property: Mislaid Property | True owner places it somewhere intentionally, but leaves behind unintentionally. Common law awards property to the owner of the premises on which the property is found |
| Found Property: Treasure Trove | money or valuable object concealed or hidden in a secret place the true owner of which is unknown. Must have been hidden for such length of time that the true owner is likely dead. Franklin: belongs to owner of premises. |
| Elements of Inter vivos Gifts | (1)Donative intent ( present intent and to convey title);(2) delivery; (3) Acceptance ( Acceptance is presumed if of benefit to donee but it can be rejected, If rejected the gift is not completed even if donee changes mind attempts to accept.) |
| Gifts: Delivery methods ( 1 &2) | a.Actual: Dor physically transfers possession and control to dee. b.Constructive: Dor physically transfers something that gives the done access to the property under circumstances where manual delivery would be unreasonable. |
| Gift Delivery methods ( 3 &4) | c. Symbolic : The Dor physically transfers something that symbolizes the property. d.Written instrument ( deed of gift): Must state donative intent, describe subject of gift, signed by donor, delivered and accepted. |
| Gift causa mortis( conditional gift) | (1) mental capacity of Donor; (2) Anticipation of imminent death ( actual not abstract); (3) delivery; (4) Acceptance; (5) death of Donor ( must be the anticipated death. Recovery revokes gift and cannot be realty |
| Adverse possession | Results when a cause of action of ejectment accrues in favor of the true owner and the statute of limitations for that cause expires. Factors: (1) Actual; (2) Continuous; (3) exclusive; (4) Hostile to true owner;(5) Open and notorious ; for (6) the SoL. |
| Adverse possession: Actual | Actual possession: Claimant must actually use or possess the land in the same manner as would the true owner would land of that type in that place. |
| Adverse Possession: Continuous | Continuous possession for the statutory period: Must continue without significant interruption. ( seasonal use may be enough if consistent with nature of land( of that type in that place)). 10 years Statutory period for Franklin |
| Adverse Possession: Exclusive | Possessor must exclude rather than share with the record owner. Others must also be excluded to the extent the true owner would exclude them |
| Adverse Possession: Hostile | Asserts of ownership as of right adverse to the TO. Does not require actual defiance of true owner. Act as owner of the land w/o the permission of and not in subordination to the TO . Intention of AP to be hostile not req, belief about land irrelevant. |
| Adverse Possession: Open and Notorious | Claimant’s possession sufficiently visible such that the record owner knows of the trespass or at least would have such knowledge upon reasonable inspections. Think of reasonable Notice to owner |
| Fee Simple Determinable | A to B for so long as, Until, while: Language of duration. Grantee is automatically divested if estate determines, ( event identified occurs)/ Future interest in Grantor: Possibility of Reverter. Devisable( In will), Inheritable, Alienable. |
| Fee Simple Subject to Condition Subsequent [followed by right of re-entry | A to B on condition that, but if, provided that ( language of condition). Followed by Right of reentry that must be reserved expressly. Grantee is not automatically divested. Devisable, inheritable,( majority) not transferable inter vivos( yes franklin) |
| Right of reentry | To effectuate even a nasty letter would be enough. Once exercised adverse possession While Technically AP cannot run because grantee remains the true owner. But there are equitable defenses – specifically latches. Cannot sit too long on ones’ rights |
| Fee Simple Subject to Executory limitation followed by executor interest | Language of condition or of duration but vests future interest in another grantee( not grantor). First grantee automatically divested upon violation, future interest is executory interest. Devisable, inheritable and alienable |
| Life Estate | Pur Autre Vie- Followed by reversion( if to grantor) or Remainder ( if to third party) |
| Estate for years | Followed by reversion in Grantor/Landlord |
| Reversion | If Grantor takes reverter it would get a present possessory interest. Grantee’s fee simple determinable that has determined merges with the future interest of grantor( possibility of reverter). Both interests have merged to become a fee simple absolute. |
| Future interest: Remainder | Created in favor of grantees. Must be conveyed simultaneously with the precedent estate less than fee simple and are the remnant that remains after the present estate expires. Must wait patiently for ending of precedent estate. Must be created Expressly |
| Remainder: Vested Subject to (total) Divestment | Subject to condition Subsequent. A to D for life then to B but if X happens to C. May at any time be divested by happening of condition. |
| Remainder: Vested Subject to Open/ partial divestment | Grant to class of persons at least some of who exist at the time of the interest creation. Not subject to condition. But subject to partial divestment or diminution if size of class increases. Ex A to be B for life then to B's children. B alive and 2 kid |
| Remainder: Vested Subject to Open/ partial divestment. Class closing rules | Class closes when it is physiologically impossible for more members to be born or conceived. Rule of convenience: closes when (1) all prior possessory estates have ended, and (2) at least 1 member has satisfied all conditions and is entitled to Poss |
| Remainder: Indefeasibly Vested | Grantee must be ascertained and certain to take possessory interest. Fits none of the other categories. To A for 10 years then to B. |
| Remainder: contingent | Subject to a condition precedent and/or held by an unascertained person. O retains a reversion in fee simple absolute because there is no prior vested interest. If condition is met the grantee’s has vested in interest and O no longer hold reversion. |
| Remainder: contingent: Condition presendet | Condition precedent: requirement that Must be satisfied before holder is entitled to possession. To A for life, then to B if B survives A, otherwise to C. |
| Remainder: contingent: unascertained Person | A remainder created in favor of an unborn or unascertained persons. To A for life, then to B's children alive at A's death( B adult with no children) B children have contingent remainder. |
| Excutory Interests | Future interests in grantees that generally cut short (divest) or follow the expiration of estates determinable. |
| Springing executory interests | Divests grantor. To A and his heirs, beginning one year from today. O retains a fee simple subject to executory limitations and holds a springing executory interest that will divest the grantor’s present estate in one year. |
| Shifting executory interests | Divest another Grantees |
| Leasehold: Term of Years | Limited by time. Ends on a date certain ( could be less than year). Maybe terminated: Lessor for (1) waste; (2) breach of covenant; (3) Death of either party; By lesee: Upon surrender. Subject to SoF. CL: No notice req for termination at end of term. |
| Leasehold: Periodic Tenancy | Month- month or Week-to- week. Created by agreement or by attempt to create tenancy for years invalid under statute of fraud. Notice of termination required one period in advance. Otherwise presumed renewed |
| Leasehold: Tenancy at will | Both parties must have right to terminate. o Lessee’s right to terminate implied f lease gives only lessor the right to terminate at will. |
| Leasehold: Tenancy at sufferance | Lessee holds over unlawfully. Lessor may EITHER evict with lessee liable for rent OR lessor may bind lessee to “periodic tenancy” for term of prior tenancy including rent and all duties. Rent may be + on notice to lessee; Stay is to Acquiesce. |
| Landlord Right and Duties | May evict for failure to pay rent. May not use self help. Must mitigate damages by trying to find other renters. Must deliver possession to new tenant. Warranties |
| Landlord Right and Duties. Warranty of Habitability | Landlord must take such steps as needed to ensure that condition of residential dwelling shall conform to housing code if any or shall not be such as would put Tenant’s health or safety in jeopardy. Not apply to commercial leases. Not include facilities |
| Landlord Right and Duties. Warranty of quiet enjoyment | Landlord warrant and therefore has duty to ensure that tenant shall possess and enjoy every portion of the leased premises. Warrants of Use of the space. • Use does not include fixtures like washer/dryer or amenities( contract issue) |
| Tenant duties | Refrain from illegal conduct. Avoidance of waste. Duty to pay rent. In general no duty to repair ordinary wear and tear. |
| Tenant remedies for warranty violations | Remain in possession, continue to pay rent, sue for damages; OR Remain in possession, withhold rent or pay rent into escrow and sue for damages; |
| Tenant remedies for warranty violations (Cont) | OR Remain in possession, repair defects and offset cost of repair against rent due and sue for damages; OR Vacate and stop paying rent, effectively invoking constructive eviction. Lease would be void. Sue for damages. |
| Constructive eviction | part or all of the premises are unavailable such that Tenant may void lease by moving out. Tenant must vacate IF tenant wants to end lease; duty to pay rent ends |
| Covenants against Assignment and subleases | Are strictly construed against landlords. Landlord may deny permission for commercial tenant to assign or sublease only based on commercially reasonable objections. For residential it may deny permission for any reason |
| Assignment of lease: | A transfer of the lessee’s entire interest in the premises. LL in Privity of Contract with O. Lessee and in Privity of Estate with N. Lessee. Can sue both for rent. |
| Sublease of Lease: | A transfer of less than entire interest. LL in privity of contract and Estate with O. Lessee. Can only sue O. Lessee for rent. Cannot Sue new lessee |
| FHA Protected classes | Race, Color, religion, sex, family status, national origin, handicap |
| FHA Prohibited practices | Discriminate in terms , conditions, privileges, services. Promulgate or publish discriminatory advertising, even for exempt properties( exceptions do not apply to this practice). Induce sale changing neighborhood. Fake unavailability. |
| FHA Exemptions | Single family homes sold or rented by owner( up to 3). Real state agent not involved Single building with four or fewer units, one which is occupied by owner Local zoning rules. |
| FHA Prima facie case | a. They are members of a statutorily protected class b. They applied for an were qualified to rent or buy c. They were rejected; and d. The property remained available thereafter Prove either disparate treatment or impact. |
| FHA Burden shifting | 1- Plaintiff must prove prima facie case 2- Burden shifts to defendant to offer legitimate, nondiscriminatory explanation 3- Burden shifts back to establish P's explanation pretextual |
| FHA disparate impact claims | Courts accept proof of discriminatory effect, rather than discriminatory motive in appropriate cases. Requires: Conduct , Causation, Disparate impact. |
| Tenants in common | this is the presumptive nature of Co-ownership when the deed does not specifies. Parties may own different shares but the deed must specify them otherwise presumed equal shares. Only unity of possession required. |
| Outster | Each tenant has equal right to possession of the whole. Requires notice to exclude tenant the they are being excluded and an act. Remedy for ouster is damages measured by fair rental value and an injunction ending the ouster. |
| Mortgage under tenants in common | Mortgage given by one co-tenant has no effect on interest of other cotenants. Each co-tenants interest is subject ONLY to that co-tenant's creditors |
| Joint Tenancy( with right of survivorship) | Requires satisfaction of all four unities both at initiation of the tenancy and throughout its duration. For purposes of survivorship each stands to take the whole but for purposes of alienation they can each only transfer their share. |
| 4 Unities | Unity of time: must vest at the same moment in time. Unity in title: must take title by the same instrument Unity of interest: Each cotenant must hold an equal share of the property( % of ownership), of equal duration Unity of possession |
| Joint tenants with right of Suvirvorship: Severance: | Unilateral action by one of the cotenants that severs the joint tenancy but only. After severance Joint tenancy becomes tenancy in common. Severance can occur without notice to other tenants. |
| Joint tenants with right of Suvirvorship: Severance: Types | Decree of Partion Inter vivos conveyance of one owner's interest Judgment and execution by judgment creditor against a joint tenant. |
| Tenancy by the entirities | Can only be created in lawfully married spouses. Requires 4 unities + legal fiction/ fifth unity that married persons are one in eyes of the law. Cannot be sold except by deed from both spouse. Cannot be partitioned. Judgement against 1 does not attach. |
| Duties of Cotenants | Creates confidential relationship( good faith). If one co-tenant rents portion must share profits. Vegetable/ must not share, taking trees must share. If cotenant pays expense necessary for entire estate entitled to contribution. But not for elective exp. |
| Partition | Any cotenant has the right to petition for a partition. The co-tenancy is ended upon an entry of partition, not upon filing of the petition for partition. Actions for partition always succeed. |
| Partition in kind: Favored | Draw a boundary dividing what had been unified estate: It’s not divided down the middle but according to relative value and the shares of ownership May involve some payment by a party to other party to balance accounts. Payment is called owelty. |
| Partition by Sale: Not favored | Proceeds divided by party’s share of estate. P favoring sale Must prove : Estate cannot be conveniently be partitioned. The interests of one+ of the parties will be promoted by sale The interests of the other parties will not be prejudiced by sale |
| Sale of Land Contract SoFrauds requirements | • Description of Land ( Address is sufficient)AND • Identification of parties to contract AND • Price, in absolute amount or formula |
| Exceptions to SoF Writing requirement: Doctrine of Part performance. | o Purchase has taken possession of land o Purchaser has made improvements to land o Purchaser has paid part or all of purchase price |
| Exceptions to SoF Writing requirement: Equitable Conversion | o Reasonable reliance by buyer, other than part performance. o Known to or reasonably foreseeable to seller. o Significant hardship to buyer if contract is not enforced. |
| Disclosures | Must disclose (1) material defect , (2) latent, meaning not readily available and not likely to be discovered by a prudent buyer and (3) which materially impairs the value of the premises. Test for materiality: Subjective and Objective. Ghost material |
| Boundary line agreement | Valid only if • Parties unaware of true boundary line between their estates • Parties agree as to location • Actual possession thereafter conforms to the agreement |
| General Rules of Mortgage | Must be in writing, executed under state law, signed by mortgagor and identify the land. If note is unenforceable mortgage cannot make it so. Defenses as to enforceability of note serve as to mortgage. |
| Duties of Mortgagor ( owner) | Pay debt as it comes due Refrain from impairing mortgagee( bank) interest by reducing property value ( waste). Other obligations set forth in note or mtg document. |
| Assignment of Mortgage | Mortgage generally follows note. Notice to mortgagor is required. Assignees become holder if Note is delivered to assignee and assignee pays value and takes in good faith. |
| Foreclosure good faith and due diligence | Take reasonable steps to obtain a fair price upon sale of the foreclosed premises. This may include 1. Exposing premises to the commercial market 2. Protect the mortgagor’s equity by setting an appropriate minimum bid at auction Dmgs set by State |
| Priority of Foreclosure sale payments | 1. Costs of Foreclosure ( including Bank's atty fees) 2. Tax liens 3. Purchase Money Mortgages 4. Junior Liens 5. Mortgagor gets equity. |
| Affirmative defenses to foreclosure | Improper execution of note and/or mortgage; failure of consideration; mistake; duress; fraud in the factum; fraud in the inducement; forgery; incapacity to contract ( infancy insanity) |
| Recording acts | Recording Protects prior transferees against all but Bona Fide Purchasers |
| Bona Fide Purchaser | • Purchaser • Without notice of prior claim( If they have notice cannot benefit from recording acts cause not BFP) • For value • Or a transferee from a BFP |
| Types of Notice- Actual Notice | Is aware of the prior competing conveyance. ( example seen deed, been told about deed) |
| Types of Notice- Constructive | Facts show Buyer Should have known. Record: A properly recorded property interest give constructive record notice to all who take an interest in the property subsequent to the recording. |
| Types of Notice- Constructive- Inquiry | If there are facts sufficient to prompt a reasonable person to inquire further into the state of the title.( example: Person buying an occupied property and not looking into who is in possession). |
| Recording acts- Notice Statute | A Subsequent bona fide purchaser prevails over a prior grantee who failed to record. Even if 1st buyer records before second still fails as long ans 2nd received title before 1st recorded. |
| Recording Act- Race-Notice Statute | A subsequent Bona fide purchaser prevails only if she records before the prior grantee records. |
| License | Mere permission to enter and remain, e.g., a ticket to a movie or ball game.• Personal to the licensee and therefore not alienable. • Revocable by the licensor at any time. ( Unless coupled with "interest" |
| Profit: | ( a prendre): non-possessory inters in land of another consisting of the right to enter the servient tenement to take something from the land. E.g. Soil, gravel, oil, timber etc. |
| Easements | Non-Possessory right to use another person's property for a specific and limited purpose and in particular manner |
| Easement - Express grant ( deed of easement) | Subject to Statute of Frauds. Example: Granting A use of certain part of parcel 1 for Ingress and egress. Scope depends on terms. Can grant to third party. |
| Easement- Express Reservation | Conveyed in a deed that reserves the easement. Example: A conveys to B- parcel 1 reserving for themselves(A)( or parcel 2 which A owns) an easement over the northernmost portion for ingress and egress. Scope depends on terms. Cannot reserve on 3rd person. |
| Scope of Easement: Express easements | Depends on terms, but generally may not be used to benefit a tenement other than the dominant tenement. |
| Easement by Implication- Necessity | Sale by owner of one parcel that has no access to road other than over another parcel( owned by O). Arises over owner’s property. Scope is not limited other than by balancing needs of dominant and servient. |
| Easement by Implication- Necessity- Requirements | Unity of title- Must be held in common ownership at time the necessity arose. Necessity. If there is an easement for another purpose- You cannot use easement of necessity, argue landlocked to increase scope |
| Easement by Implication- From Quasi easement- Prior use | Implied from pre-existing use by common grantor, followed by severance of title to the parts of the estate, if a use of the servient portion of one part is reasonably necessary( meaning convenient) to the use of the other part. Scope: limited to prior use |
| Easement by Implication- From Quasi easement- Prior use- Requirements | (1)Unity of title- Must be held in common ownership at time the prior use arose.(2) Apparent ( akin to notorious).(3) Continuous. (4)Necessity: Absolute necessity is not required, only reasonable/convenient based on facts. |
| Easement by Implication- Estoppel arising from license. Scope: Limited by scope of license | (1)Licensor allows license to use land (2) Reasonably foreseeable that licensee would substantially change position in reliance/belief license would not be revoked. (3) Licensee reasonably Changes position (4) Inequitable to revoke license |
| Easement by Implication-Implied by Prescription | Similar to adverse possession. Exclusivity is not necessary. No prescriptive easement over public land. Easement by necessity does not give right to prescriptive easement. License prevents prescription.Scope the use that gave rise to the prescription |
| Easement by Implication- Implied by Prescription- requirements | o For the statutory Period o Open and notorious o Continuous. Continuous does not mean all the time just use in the manner land of that type in that place would be used. o Adverse and Hostile. |
| Scope of easement- Normal development | rule of reason: Easement can evolve over time to permit normal development of the dominant parcel. ( Telephone lines-> cable and internet) but changes must be reasonable. |
| Relocating the burden- Traditional | owner of servient state cannot relocate unilaterally ( even at his expense) unless under agreement of parties |
| Relocating the burden - restatement view | Unilateral Change is permissible only if changes do not -Significantly lessen the utility of the easement - Increase the burden on the owner of the easement in its use and enjoyment -Frustrate the purpose for which the easement was created. |
| Negative easement- recognized | Blockage of Air Blockage of light Removal of building support Interference with streams |
| Termination of easements | - According to Conditions of grant/reservation -Merger of title( and possession) of dominant and servient estates -Release -Abandonment( Requires intent and some act )Non use not enough -End of necessity ends easement by necessity |
| Zoning Non-conforming uses | Uses that pre-exist zoning ordinance that ban them are “grandfathered in” meaning they cannot be outlawed immediately. Length of amortization varies from state to state. |
| Zoning- Grandfathered uses | - May not be expanded but it can be improved - Cannot be rebuilt/re-established if accidentally destroyed or abandoned( requires intent and affirmative act) |
| Zoning Codes - May/may not | - May not limit according to family relationship but may limit number of persons - may not zone out lower/ middle income person by zoning only large plots - May zone by aesthetics - Subject to FHA - Air BNB cannot be grandfathered - Amortization OK |
| Flexibility in Zoning- Variance | App to Bd of adjustment. (1) Imposes substantial hardship on landowner such that the ordinance as applied interferes with all reasonable uses WHOLE property; (2) Hardship not result from owner’s actions; and (3)variance is not contrary to public interest |
| Imminent Domain | Under 5th amendment government can’t take private property for public use without just compensation. |
| Imminent Domain: Basic rules | • A taking of private property for the private use of another is not permitted • A taking of a private property by government, to be held by government for public use, requires compensation. - Police power regulations are not 5th amend takings |
| Imminent Domain: Public use | A public use is any use that “manifestly contributes to the general welfare and prosperity of the whole community” |
| Imminent Domain- Regulatory taking | A regulation that diminishes value of property is presumed to be valid and presumed to require no compensation: |
| Imminent Domain- Regulatory taking- Categorical approach | Require compensation regardless of importance of public purpose underlying taking if: - Physical invasion - Denial of all Economically beneficial use. UNLESS rule so of law prior to taking would have prohibited the use( not taking if never had right) |
| Imminent Domain- Regulatory taking- Multi factor | balance test- owner’s value lost - to the value remaining. Factors: (1) $ impact on the owner; (2) Nature and extent of interference; (3) Nature and extent of rights and value remaining (4) Importance of public interest served by regulation |
| Imminent Domain- Just Compensation | Complete Condemnation: Fair market value at time of condemnation Partial Condemnation: o Fair market value of segment taken + difference in the remaining property’s fair market value( before and after condemnation)( severance damages) |
Created by:
Thybrod