Cloned from: property law

Bookmark and Share

Front Back
partition in kind
physically dividing up the prop’ty by interest.
compensation to other co-owners if after partition your allotment is of greater value than theirs.
being denied entry to the prop’ty that is being wholly being used by the cotenant. Doesn’t in and of itself start clock on adverse possession.
bank account in Joint Tenancy
money belongs to whomever put it in, even after they die. Except in a few states.
donative intent: intent to give $ to co signer upon death -- det whether the account is POD or JT w/ no survivorship right.
convenience account
bank account set up so the co signer could pay the owner’s bills for him. But no donative intent.
Any freehold interest in land of wife owned by the husband during marriage.  Not reachable by husband’s creditors. Husband only has a life interest in the prop’ty.  Both must sign deed to convey. (to do same thing w/o legal probs: Spouse can create LLC to buy and sell prop’ty independently. The income will be shared but the prop’ty won’t.)
real prop’ty owned by wife, transferred to husband at wedding, inheritable by issue.
Elective shares
regardless of what the will of the deceased spouse says, the surviving spouse is entitled a fraction (1/3 or ½ ) of prop’ty owned by deceased at time of death and subject to probate. Diff than Dower b/c it applies to personal prop’ty and only that prop’ty owned at time of death. Diff than comm’ty prop’ty which applies to prop’ty acquired during marriage.
community property
property owned jointly by husband and wife. In states where there’s any doubt about character of property owned by spouses, there is a very strong presumption that it is community; it’s up to the spouse claiming otherwise to prove it. Once property acquires its character as community or separate, it stays w/ that characteristic as long as its traceable, it doesn’t lose that characteristic once it moves across state lines.
termination of a lease
termination is only effective at the end of the lease term (term of years), breaking dependent covenants of the agreement (payment, quiet enjoyment, etc), one of the parties dies (only in a tenancy at will), approved abandonment, or full and timely notice to other party (only in a periodic tenancy and req’s 6 mo for year to year lease or otherwise the term of the lease (month for month to month, etc)
tenant at sufferance
(holding over): tenant sticking around after he was legally obliged to leave. Landlord can begin an ejection action or get eviction order from the court. Tenant would be resp to pay rental value, incidental costs incurred by landlord, court costs and removal costs. OR could negotiate terms upon which holdover could stay if the landlord wants the tenant to stay on a new lease. Then a tenancy resulting from holding over is usually subject to the same terms and conditions as those in the original lease unless the parties agree otherwise. Most states say it can’t exceed one year. Grew out of CL when land was leased for ag. and land was worth more just before planting than in the middle of the growing season.  Short of holdover remedy in states that don’t have it, the landlord at the least will get fair market value of rent as damages.
American rule
absent express condition in the lease, the landlord only has to give legal possession. Landlord need only ensure the tenant is legally able to access the land (public access) but the tenant must oust any interlopers.
English rule
there is an implied covenant of  open entry to tenant and requires turning over physical possession. So the landlord must ensure there’s public access to the land and oust any interlopers.
privity of estate
tenant has right to occupy the land conveyed by landlord’s voluntary surrender in exchange for obligations on part of tenant.
privity of contract
tenant is obliged to pay to the landlord rent b/c of their reciprocal promises and binding agreement w/o regard for the correlative right of tenant to occupy.
third party beneficiary
you contract for something to be done for the benefit of someone outside the contract. It must be intended for that third party at the time of the making of the contract. (life insurance, kid’s private school tuition contract, sublease).  This gives the third party beneficiary privity of contract with the performing party.
when less than the entire interest is conveyed (shorter period of time, reserved right of re-entry, etc. Privity of Contract exists only between tenant and subleasor unless there’s an expressed third party benefit in the landlord.
a transfer of a right under contract. If nothing is held back in the conveyance, it’s an assignment. This conveys privity of contract with the tenant and privity of estate with the landlord and the tenant. Unless a contract expressly grants authority to void the assignment to the landlord, assigning when the contract bans it will be allowed and the landlord can sue for damages.
transfer of an obligation under a contract.
a contract in which the obligee agrees to allow the original delegator off the hook and making the delegetee completely obligated to perform the duty.
quiet enjoyment
implied dependent covenant in all leases -- that landlord will leave the tenant alone. To break this, the landlord must find a dependent covenant broken by the tenant. Nonpayment is a dependent covenant in all jurisdictions.
dependant covenants
agreements in the contract that if broken nullify the lease.
forcible entry
a landlord’s illegal and unauthorized interruption or destruction of the tenants right to quiet enjoyment. The displaced person is entitled to damages and to recover possession, even if she was there without privity of estate or right of possession. Landlord must use the courts to regain possession.
summary eviction
Permits the landlord to go to special court to get declaration that the tenant has breached a dependent covenant of lease and the landlord is entitled to recover. The landlord can then get the Sheriff to physically evict the tenant. (faster than ejectment action)
when the tenant gives up the lease and abandons the property and the landlord accepts the end of the contract. This releases the tenant from damages.
mitigation of damages in lease abandonment:
Landlord must det what’s reasonable mitigation effort. But he risks inadvertantly accepting the tenant’s surrender by attempting to lease to someone else. Landlord has to balance efforts to get new lease with going to far and accepting surrender. So ads are OK but renovating isn’t. If what he’s doing can be perceived as acting on behalf of the tenant then it doesn’t accept surrender. (the new tenant is a sublessee of the new tenant). But if it can be perceived as acting on his own behalf (trying to get higher rent by renovating, changing terms, etc). Kridel is on the line for liabiltiy so long as Somer doesn’t
constructive eviction:
the rental property is so unfit for the purpose for which it was rented as to be unuseable. The property becoming unuseable is a material breach of the contract and entitled the tenant to leave and not pay rent. The tenant is obliged to leave the property within a reasonable time, ascertained by the facts seen in the light most sympathetic to the tenant.

latent defect:
landlord knows of a defect that will render the lease useless to the tenant and doesn’t disclose it. And this defect is one such that the tenant could not detect it upon reasonable inspection.

warranty of fitness:
guarantee by landlord that the premesis are suitable for hte purpose of the lease. Only at the time the lease is signed. The tenant can leave if the land is in other condition.

unenforceable contract:
it’s unfair or illegal in some way which means the landlord can’t get rent if the tenant leaves. The tenant has the right to leave and not pay.

warranty of habitability:
landlord has obligation to ensure the property is useable throughout the leasehold. It must be reasonably safe and healthy, but specific factors depend on local norms and culture. If not, the tenant may seek reimbursement and diminution of rent based on real value of the property. In all unequal situations, can’t be waived. This isn’t contract law, but social policy (status). Can look to housing code as evidence of breach of this warranty (heat, toilets, stair rails, etc). basically a duty to repair. This is generally considered a dependent covenant. If it’s breached, you can get reduced rent, you can move out, you can fix it yourself after notice and reduce rent accordingly, you can get a court order for specific performance, tenant can rescind/terminate the contract.

retaliatory eviction:
Tenant (T) complains a lot, then rats him out to building inspector who write up the L for mult violations. The L then evicts T. State statutes generally ban this practice. CL case: Edwards v Habib. We have to “enlist the aid of tenants to help enforce building code” by encouraging them to complain and then call in. Created right to complain w/o punishment. landlord can’t kick T out right away. there’s a statutory time requirement to allow for retaliatory motive to abate.

merchantible title:
formal, official legal title not subject to such reasonable doubt as would create just apprehension of its validity in the mind of a reasonably prudent person. Nor title that would expose the buyer to hazard of substantial litigation.  Implied in every sale for land.

Statute of frauds:
requires contracts for conveyance of interest in land to be in writing. Prevents imperfect memory or lies from changing an agreement. The purpose is to create evidence of the shared intent behind the transaction.

unconscionable injury resulting from denying enforcement of the oral contract when one party has acted in reliance on the contract being enforced. Trumps statute of frauds.

partial performance:
oral agreements enforceable when particular acts have been performed by each party to the agreement. Serves as evidence of an agreement. If the parties are behaving as if there is an agreement, then you assume there is one and take it out of the statute of frauds.

duty to disclose:
the seller has a duty to disclose all material facts  affecting the value of the property which are not readily discernible.

materiality test:
depending on the state law, a fact concerning value of property is material if: 1)a reasonable person would attach importance to it in deciding to buy or 2) whether a defect affects the value or desireability of the property to the buyer.

merger doctrine:
when a buyer accepts a adee, the buyer is deemd to be satisfied that all the contractual obligations have been met. except in cases of fraud, collateral contractual promises. Now out of disfavor.

good title:
title traced back to the original land grant. Law only req’s merchantible title b/c it too expensive to try to figure out good title each time.

conveyance at death by escrow: escrow:
give the deed directly to a trusted third party who holds it until some condition is met (ie death). B/c delivery is effective at time given to agent, regardless of when the condition is filled, the property is conveyed without violating statute of wills.

statute of wills:
any conveyance of property effectuated after death must be in writing and witnessed.
revokable trust:
a post-death conveyance of land, effectuated through the use of a trusted third party, that can be revoked during life by the conveyor. Protected from statute of wills b/c it’s a trust.

equity of redemption:
borrower defaults on the mortgage but gets the chance to pay the payments and fees owed and keep the house.
a legal action in court which gives the borrower notice of the amt of time he has in which to pay the money he owes before repossession and foreclosure sale.
title theory:
in some states, when the borrower signs the mortgage for the loan the borrower gives the title to the mortgage holder. The lender then holds title to the property until all loan payments have been made.

lein theory:
in most states the buyer holds the deed to the property during the mortgage term The buyer promises to make all payments to the lender and the mortgage becomes a lien on the property, but title remains with the buyer. The lender's lien is removed once the payment of all loan payments have been completed

deed of trust:
borrower conveys title to land to a person to hold in trust to secure payment of the debt to the lender. trustee holds the title for the lender. Usually has right to foreclose w/o going through judicial process.

contract of sale:
in lieu of conventional financing. Buyer doesn’t have the down payment or credit to get loan from conventional lender. Low income developers will convey the title provided the buyer pays X installments of Y dollars of a period of Z years and that when all the payments are made, the contract seller hands over the deed. Overall cost is typically quite high by comparison. Problems: if contract seller gets in trouble and is in bankruptcy, the buyer may end up in line with other creditors to get their deed and may end up homeless. Typically they include provisions that provide that if the buyer can’t pay, the seller may immediately repossess the property. So there’s no way to recover equity. Only statutory law can protect from this. Some states statutorily treat these contracts in the same way they treat traditional mortgages.

Common law recording:
in the absence of recording statute, first in time is first in right to title.
|< Previous x of y cards Next > >|