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Real Property - Coggle Diagram
Real Property
Rights in Real Property
Licenses: a privilege, usually to do something on someone's property. writing and consideration not required. Not transferable unless the licensor intends them to be. Expire upon the death of the licensor or the conveyance of the servient estate. Revocable at the will of licensor.
Covenant: a promise that attaches to the land. Can be to do or to refrain from doing something on a convenantor's land.
Profits
Fixtures
Easements: interest to use the land of another
Negative easement: gives the holder the right to prevent a landowner from doing something on the land (light, air, water, and lateral and subjacent support). Writing always required.
Easement appurtenant requires a dominant and servient tenement
Easement in gross is personal in nature, resulting in a servient but not a dominant estate
Easements by Implication: by prior use or by necessity
Easement by by prescription: similar to adverse possession, requiring use of the property that is open and notorious, continuous, exclusive, actual, and hostile.
Easement by estoppel: requires proof of an act or representation by the owner of the burdened estate in respect to the easement, justifiable reliance on that act or representation by the owner, and damages suffered by the owner of the benefited estate.
To terminate easement: 1) end of specified term 2) holder of dominant estate releases interest to the holder of servient estate 3) dominant and servient estates come into common ownership 4) abandonment 5) estoppel 6) by prescription or 7) when a governmental body acquires the servient estate through an exercise of the eminent domain power.
Zoning: another restriction on the use of land. The state possesses the power to regulate for the health, safety, and welfare of its citizens,. Zoning ordinance may be challenged under the due Process and Equal Protection Clauses. May be subject to a 1st Amendment challenge if it regulates billboards or aesthetics
taking: when the government exercises its eminent domain power to take private property. Pursuant to 5th Amendment, private property may not be taken for a public use without just compensation.
Ownership of Real Property
Landlord-tenant law: a lease gives the tenant exclusive possession of the premises for a period of time.
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 period. The required notice is measured by the rent payment 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 his 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.
Term of years: definite beginning and end. No notice required to terminate.
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.
Both the landlord and tenant ower duties to each other:
Duties of tenant: 1) pay rent 2) not commit waste 3) repair 4) other duties as contracted
Duties of landlord: 1) deliver legal right to possession of premises 2) water and heat 3) duties in lease document 4) quiet enjoyment 5) implied warranty of habitability.
Assignment: when tenant transfer to a third person all of his rights in the lease premises. Landlord may sue assignee and/or original tenant
Sublease: when the tenant transfers less than all of his rights to a third person. Absent an express assumption of the duty to pay rent, the landlord may not sue the subtenant directly.
Special problems such as the Rule Against Perpetuities
Co-tenancy (concurrent estates): when two or more persons share an interest.
Tenancy in Common: each co-tenant owns an undivided interest in the whole with no right of survivorship. Presumed form of co-ownership.
Transfer: Co-tenants may transfer their own interst inter vivos
Divisibility: Co-tenant may devise its own interest and the interest can descend by intestacy.
Possession :each joint tenant has the right to possess the whole
Joint Tenancy
Rights of survivorship: at the death of one joint tenant, the interest of the surviving joint tenant absorbs the interest of the deceased joint tenant. Only the last surviving joint tenant has an interest that is devisable.
Severed: Joint tenancy severed if one joint tenant conveys his interest voluntarily or involuntarily (creditor forces sale). Tenancy in common then results.
Four unities required: possession, interest, time, title
Joint Tenancy by the Entirety: reserved for married couples. Presumed in some states if conveyance to a married couple. Gives each spouse an undivided interest in the whole and a right of survivorship.
Fair housing/discrimination
Present and future interests
Future interests
In grantor
Reversion
Possibility of reverter
Right of entry
In grantee
Remainder
Executory interest
Present interests
Life estate
Fee simple determinable
Fee tail
Fee simple on condition subsequent
Fee simple absolute
Fee simple on executory limitation
Does any interest violate the RAP?
Not subject to RAP: 1) present possessory estates 2) Charitable trusts 3) Resulting trusts 4) Fully vested interest at creation, such as reversionary interests and completely vested remainders
Subject to RAP: 1) options to purchase land 2) Powers of appointment 3) Rights of first refusal 4) interests not fully vested at creation, such as a) remainders subject to open b) contingent remainders c) executory interests. 5) Identify the life or lives in begin, express or implied 6) Determine whether the interest will for certain either vest or fail to vest within 21 years of the life or lives in being.
Titles
Transfer by deed
Special warranty deed: grantor warrants that no title defects occurred during his ownership of the property.
Quitclaim deed: grantor provides no warrants.
General warranty deed: grantor warrants that no title defects exist in the chain of title
Present Covenants: Seisin, right to convey, against encumbrances (mortgages and judgment liens, taxes, leases, water rights, easements, restrictions on use :
Future Covenants: quiet enjoyment, warranty, further assurances.
Conveyance of real property by deed requires donative intent, delivery, and acceptance.
Transfer by operation of law and by will
Adverse possession ("OCEAN")
Exclusive
Actual
Continuous possession for the statutory period
Non permissive (Hostie)
Open and notorious
Recording acts: Recording a deed is not required to validate the transfer of title. There are three types of recording statutes: race statute, notice statute, and race notice statute.
Notice statute: an unrecorded conveyance is invalid against a subsequent bona fide purchaser for value and without notice.
Race notice recording statute: an unrecorded conveyance is invalid against a subsequent bona fide purchaser for value who takes without notice and records first.
Race statute: the person who records first prevails
The shelter rule: a person who is a successor in interest to a person protected by the recording statute is also protected.
Mortgages/Security Devices: security devices include mortgages, deeds of trust, and installment land contracts
Mortgagor is not to commit waste: 1) fails to pay taxes or governmental assessments 2) makes physical changes to property that reduce its value 3) fails to maintain and repair the property in a reasonable manner, except for repair of casualty or acts of third parties not the fault of the mortgagor 4) fails to comply materially with mortgage covenants respecting the physical care, maintenance, construction, demolition, or insurance against casualty or the property or improvements on it or 5) retains rents to which the mortgagee has a right of possession.
When default occurs, the mortgagee may 1) foreclose on the real property 2) sue grantee on the debt as the grantee is primarily liable or 3) sue mortgage/grantor on the debt as secondarily liable (mortgagor/grantor could then seek reimbursement from the grantee personally).
Lien theory (MAJORITY RULE): mortgagee receives a lien and the mortgagor retains legal and equitable title and possession to the mortgaged property unless and until foreclosure occurs. Title theory: mortgagee receives legal title to the mortgaged real property and has the right to take possession. Intermediate theory: mortgagor retains legal title until default occurs. After default, legal title and possession pass to the mortgagee.
Real Estate Contracts
Creation and construction of contracts
Marketable Title: title that is reasonably free from doubt in both fact and law. Title is not reasonably free from dobt if it contains 1) defects in the chain of title 2) encumbrances such as mortgages, liens, easements, leases, and covenants, 3) encroachment of your improvements onto another's land or encroachment of another onto your land 4) zoning and other land use restrictions do not render title unmarketable unless a zoning violation exists.
Duty to disclose defects: seller has a duty to disclose all material latent defects known to the seller that are not readily observable or known to the buyer.
Statute of Frauds: require a writing signed by the party to the charged. Writing must include description of the property, description of the parties, price, and any conditions of price or payment agreed upon.
Implied warranty of quality: Most jurisdictions recognize an implied warranty of quality: workmanlike quality, habitability, fitness, suitability.
Remedies for breach of a contract to sell real property: seller's remedies for buyer's breach to purchase property include 1) expectation damages, 2) foreseeable consequential damages 3) reasonable reliance damages 4) retaining the down payment 5) liquidated damages. If willful, punitive damages may be valid
Real Estate Brokerage