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Real Property (Easements (non-revocable right to use the land of another),…
Real Property
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Landlord - Tenant Law
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Duties of Landlord: (1) Deliver legal right to possession of premises; (2) Water and heat; (3) Duties in lease agreement; (4) Quiet enjoyment; (5) Implied warranty of habitability
Types of Leases
Periodic: Set beginning and continues from period to period, such as month to month, without a set termination date until notice is given. Notice must be at the end of the period. The required notice is measured by the rent period clause (one full period), but no longer than six months.
At will: No fixed duration. Terminates if either party dies; the tenant commits waste; the tenant attempts to assign interest; the landlord transfers his interest; or the landlord transfers the premises to a third party for a term of years. Most states provide for 30 days' notice
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Tenancy at Sufferance / Holdover Tenancy: tenant remains in possession of the leased premises after the end of the lease term. The landlord can recover possession and receive the reasonable rental value for the holdover period.
Assignment (occurs when the tenant transfers to a third person all of his rights in the leased premises)
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Adverse possession (must possess the premises for the requisite time period; if not in possession for the full statutory possession, adverse possessor ay still meet the time period by tacking his period of possession onto the period of possession of another possessor if the possessors are in privity of estate) Privity of estate exists when there has been a voluntary transfer of possession from the first adverse possessor to the second adverse possessor, such as by deed.
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Deeds
Special Warranty Deed: the grantor warrants that no title defects occurred during his ownership of the property, but does not warrant against title defects that occurred prior to his ownership.
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Present Covenants
Covenant of right to convey - grantor has the right to convey the property. This differs from the covenant of seisin as a trustee may be seized of the fee but barred from conveying the property by the trust document.
Covenant against encumbrances - grantor promises that there are no encumbrances. No third person has a right that diminishes the value or limits the use of the land granted
Covenant of seisin - grantor owns and possesses the estate granted. Existence of an encumbrance does not breach the covenant.
Future Covenants
Covenant of warranty - grantor covenants that he will assist in defending title against valid claims and will compensate the grantee for losses suffered by the assertion of superior title.
Covenant of further assurances - grantor promises to take whatever steps may be required to perfect title defects
Covenant of quite enjoyment - grantor covenants that the grantee will not be disturbed by a superior claims.
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Real Estate Contracts
Statute of frauds (requires a writing signed by the party to be charged):
- the writing must include:
- Description of the property
- Descriptions of the parties
- Price
- Any conditions of price or payment agreed upon
All contracts for the sale of real property include an implied promise to convey a marketable title to the purchaser at the time for performance. (A marketable title is a title that is reasonably free from doubt in both fact and law)
A seller has a duty to disclose all material latent defects known to the seller that are not readily observable or known to the buyer.
- A seller's remedies for a buyer's breach to purchase property include: expectation damages, foreseeable consequential damages, reasonable reliance damages, retaining the down payment, or liquidated damages.
- A buyer's remedies for a seller's breach include: expectation damages, reliance damages, restitution of the down payment, and punitive damages.
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Mortgages (security interest in a property in exchange for a loan)
- Borrower -> Mortgagor
- Lender -> Mortgagee
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Multiple Mortgages: Priority is determined by chronological order of recording. Every mortgagee may redeem "up" by paying off and acquiring any mortgages of higher priority. In addition, a mortgagee can foreclose "down," thereby wiping out mortgages and other interests of lower priority.
Transfers by Mortgagors: Typically, unless the mortgagor is paying off the mortgage with the proceeds of a sale, a mortgagor must receive consent from a mortgagee before transferring property encumbered by a mortgage because of "due on sale" clauses.
Recording Acts
Notice: gives priority of title to the party with the most recently obtained claim, but only if the party also lacked notice of an earlier claim
Race-Notice: gives priority of title to the party that records first, but only if the party also lacked (constructive or actual) notice of prior unrecorded claims on the same property.
Race: gives priority of title to the party that records a claim first, even if the party had notice of an earlier unrecorded claim on the same property.
Licenses and Profits
License (personal privilege to enter land for some defined purpose). Differs from an easement in that it is:
- Not an interest in land
- Generally revocable
- Not subject to the Statute of Frauds
- Not alienable
Profit (right to enter land of another and remove a resources from the land)
-Main distinction between an easement and profit is that easement does not give the holder the right to remove anything from the land, while a profit does.