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Study notes of Tiffani L Hume<br />SOURCE:  <br />Emanuel, S.L (2004) Law Outlines:  Property Law 			Aspen Publishers, NY<...
THE APPROACH<br />When approaching a property question, what 2 broad areas should you consider?<br />
Approach <br />Step 1:  Rights in land<br />   a.  Possessory interest<br />   b. Rights incidental to 				ownership in la...
Rights in Land<br />There are 5 types of possessory interests<br />	1) Present Estates<br />  2) Concurrent Estates<br /> ...
Possessory Interests: Present Estates<br />Fee Simple Absolute<br />Defeasible Estates<br />	a) Fee Simple Determinable<br...
Fee Simple Absolute<br />Definition: A fee simple absolute is the broadest estate possible, with absolute ownership of an ...
Defeasible Estates<br />Definition:  Defeasible estates are estates that are subject to termination upon the occurrence of...
3 Types of Defeasible Estates<br /> Fee Simple Determinable<br />Fee Simple Subject to Condition Subsequent<br />Fee Simpl...
Defeasible Estates: Fee Simple Determinable<br />Definition:  a fee simple determinable is a defeasible estate that will a...
Defeasible Estates:Fee Simple Subject to Condition Subsequent<br />Definition:  A fee simple subject to condition subseque...
Defeasible Estates:Fee Simple Subject to Executory Limitations<br />Definition: A fee simple subject to an executory inter...
Fee Simple Subject to Executory interests<br /> BAR TIP:  on the exam, look for :<br />“to X and her heirs, but if Z happe...
Life Estate<br />Definition: A life estate is an interest in land measured by the life of the grantee<br />Rule: upon the ...
Possessory Interestsconcurrent estates<br />Tenancy in common<br />Joint Tenancy<br />Tenancy by the entirety<br />
Possessory InterestsTenancy in Common<br /> Definition:  A tenancy in common is a concurrent estate in which the cotenants...
Possessory InterestsTenancy in Common<br />Please note:<br />Each cotenants interest is descendible, divisible and alienab...
Joint tenancy<br />Definition:  A joint tenancy is a concurrent estate in which each tenant owns an undivided interest in ...
How is a joint tenancy created?<br />Rule:  4 requirements <br />Unity of time (interest must vest at the same time)<br />...
Severing of a Joint Tenancy<br />Can be severed by either :<br />Sale<br />Partition	<br />Mortgage<br />
Severance of Joint TenancySALE<br />Rule:  A joint tenant can sell or transfer her interest during his life time with or w...
Severance of Joint TenancyPartition<br /> Rule:  A joint tenancy may be partitioned by:<br />Voluntary agreement, OR<br />...
Severance of a joint tenancy Mortgage<br />Majority Rule:  (Lien Theory) = a joint tenants execution of a mortgage on his ...
Tenancy by the Entirety<br />Definition:  A tenancy by the entirety<br />Is a joint tenancy between husband <br />And wife...
FUTURE INTERESTS<br />In grantor:<br />Possibility of reverter<br />Possibility of reentry<br />Reversion<br />In Grantee/...
Possibility of Reverter<br />The possibility of reverter is a future interest that arises in the grantor<br />Rule: if a c...
Right of Reentry<br />Definition: The right of reentry is a future interest held by the grantor that provides her the righ...
Reversion<br />Definition: a reversion is the estate retained by a grantor who has conveyed a lesser estate than she owns<...
Remainder<br />A remainder is a future interest in a third person that can become a present possessory interest only after...
2 Classifications of Remainders<br /> Vested Remainders<br />   - Those who are already born and identified by name<br />C...
Important Doctrines in regard to future interests<br />The Rule of destructibility of <br />The rule in Shelley’s Case<br ...
Destructibility of Contingent Remainders<br />Common Law:  a contingent remainder is destroyed if it fails to vest before ...
The Rule In Shelley’s Case<br /> The rule in Shelley’s case states that if one document creates both a freehold estate in ...
Doctrine of Worthier Title<br />Rule:  under the doctrine of worthier title, an attempted remainder in the Grantors heirs ...
Restraints on Alienation<br /> Disabling restraint = seeks to make any attempted transfer of an estate void<br />Forfeitur...
Rules Against Restraints on Alienation<br />Rule: absolute restraints on fee simple estates are void.<br />Exceptions:<br ...
Rules Against Perpetuities<br />No interest in property is valid unless it must vest, if at all, no later than 21 years af...
Rights and Responsibilities of present and future interest holders<br />The law of waste<br />Affirmative waste<br />Permi...
Law of Waste<br />When more than one person holds an interest in land, the holder of the present interest is entitled to t...
3 types of waste<br />Affirmative waste (voluntary) = harm or decrease in the value of the estate resulting from the prese...
The Law of Fixtures<br />Fixtures pass with the ownership of land and the removal of fixtures constitutes voluntary waste<...
Possessory Interest:  LeaseholdsNon Free Hold Estates<br />Definition: A leasehold , also known as a non freehold estate, ...
Tenancy For Years<br /> Definition: A tenancy for years is a tenancy that lasts for a fixed period of time.  [ a set start...
Periodic Tenancy<br />Definition: a periodic tenancy is a lease that continues for intervals with no fixe termination date...
Tenancy At Will<br />Definition: a tenancy at will is a lease that can be terminated at the whim of either party<br />No n...
Tenancy at Sufferance<br />A tenancy at sufferance is created with a tenant wrongfully retains possession of property beyo...
Tenants Duties<br />Duty to pay rent<br />Duty not to commit Waste<br />Duty to Repair<br />Duty to Inform<br />
Land lords remedies<br />A landlords remedies if a tenant breaches the duty to pay rent depend upon whether the tenant rem...
Duty to repair<br />Under common law: tenant had the duty to make repairs automatically in leaseholds unless specified oth...
Landlords duties and tenants rights<br />Landlord has a duty to uphold the implied warranty of habitability<br />Landlord ...
Implied Covenant of Quiet Enjoyment<br />Rule:  Every lease contains an implied covenant of quiet enjoyment in which a lan...
Constructive Eviction<br />Under the law,  if the tenant ‘s claim is merely that his use or enjoyment of the property has ...
Implied Warranty of Habitability<br />Under the law, all courts agree that the existence of a building code violation is a...
Tenant Remedies for breach of Implied Warranty of Habitability<br />Tenant Can:<br />Terminate the lease<br />Withhold pay...
Easements<br />Under the law, an easement is a privilege to use the land of another and must be in writing.<br />AFFIRMATI...
Creation of Easements<br />Under the law an easement may be created in 4 ways: (1) by express grant; (2) by implication; (...
Covenant Running With The Land<br />COVENANTS RUNNING WITH THE LAND<br />Under the law, a covenant running with the land i...
Equitable Servitude<br />EQUITABLE SERVITUDE<br />    When the court gives equitable relief and applies it against an assi...
The Taking Clause<br />THE  TAKING  CLAUSE<br />Under the law of eminent domain, state and federal governments may take pr...
Damages for Temporary Taking<br />DAMAGES FOR TEMPORARY TAKING<br />Inverse condemnation:  if a land use regulation is so ...
ZONING<br />ZONING<br />Generally, zoning is done on the local, municipal level<br />The municipality power comes from the...
LIMITS ON ZONING<br />LIMITS ON ZONING<br />Taking Clause<br />Procedural due process – 14th amendment and 5th amendment –...
Administrative Zoning<br />ADMINISTRATIVE ZONING<br />Bodies involved:  Town council  - the zoning code is enacted by the ...
VARIANCES<br />VARIANCES<br />Virtually all zoning ordinances have a provision for granting variances – (relief in a parti...
Special Uses, Conditional Zoning and Non Conforming Uses<br />SPECIAL USES – permits are usually granted for churches, pri...
Exclusionary Zoning<br />used to exclude certain types of persons and uses , particularly racial and ethnic minorities and...
Land Sale Contracts, Deeds Mortgages<br />Must satisfy the statute of frauds<br />Part performance exception to the SOF fo...
Mortgages and Installment Contracts<br />A mortgage is a financing arrangement in which the person buying the property (or...
DEEDS<br />The deed is the document which acts to pass title from the grantor to the grantee<br />Merger:  Under the doctr...
Water Rights<br />Drainage:  courts are split as to the rights of an owner to drain surface water from his property onto t...
AIR RIGHTS<br />DIRECT OVER FLIGHTS:  when airports permit flights to occur directly over an owner’s property and within i...
REVIEW OF BASIC TERMS<br />FEE SIMPLE ABSOLUTE<br />Under the law, a fee simple absolute is the longest and most unrestric...
REVIEW OF TERMS 2<br />FEE SIMPLE SUBJECT TO AN EXECUTORY LIMITATION<br />Under the law, a fee simple subject to an execut...
REVIEW OF TERMS 3<br />THE RULE IN SHELLEY’S CASE<br />Under the law, The Rule In Shelley’s Case provides:  if a will or c...
REVIEW TERMS 4 <br />EQUITABLE CONVERSION <br />Under the law, where there is a specifically enforceable contract for the ...
REVIEW TERMS 5<br />RELATIONS BY CO-TENANTS<br />Regardless of the form of the co-tenancy, each co tenant has the right to...
REVIEW OF TERMS 6<br />THERE ARE FOUR TYPES OF LANDLORD TENANT RELATIONSHIPS <br />(1)  THE TENANCY FOR YEARS; (2) THE PER...
REVIEW OF TERMS 7<br />THE TENANCY FOR YEARS<br />Under the law, most leases are considered tenancy for years which is an ...
REVIEW OF TERMS 8<br />TENANTS RIGHT OF POSSESSION<br />The American view is that the landlord only has a duty to deliver ...
END OF PROPERTY LAW <br /> THIS IS A “BRIEF”  OF PROPERTY LAW TERMS AND DEFINITIONS AS WELL AS SOME OF THE RULES<br />IT I...
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Property Law Red Ppt

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A basic guide to property law. Since this is based on common law and applies to the law of the land - please check your state property statutes for modern codes. This is intended for law students and builds a foundation for the law of property law - each states laws vary. Thank you!

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  1. 1. Study notes of Tiffani L Hume<br />SOURCE: <br />Emanuel, S.L (2004) Law Outlines: Property Law Aspen Publishers, NY<br />Property Law<br />
  2. 2. THE APPROACH<br />When approaching a property question, what 2 broad areas should you consider?<br />
  3. 3. Approach <br />Step 1: Rights in land<br /> a. Possessory interest<br /> b. Rights incidental to ownership in land <br /> c. Rights to use another’s Land<br />Step 2: Real Estate Transactions<br /> Conveyance & Mortgages<br />
  4. 4. Rights in Land<br />There are 5 types of possessory interests<br /> 1) Present Estates<br /> 2) Concurrent Estates<br /> 3) Future Interests<br /> 4) Landlord/ Tenant<br /> 5) Taking of Possessory Interest<br />
  5. 5. Possessory Interests: Present Estates<br />Fee Simple Absolute<br />Defeasible Estates<br /> a) Fee Simple Determinable<br />b) Fee Simple Subject to Condition Subsequent<br />C) Fee Simple Subject to Executor Limitations<br />Life Estates <br />
  6. 6. Fee Simple Absolute<br />Definition: A fee simple absolute is the broadest estate possible, with absolute ownership of an undivided interest for an unlimited period of time<br />Rule: property held in fee simple absolute can be freely divided, sold, bequeathed or inherited. (freely devisable, descendible and alienable)<br />
  7. 7. Defeasible Estates<br />Definition: Defeasible estates are estates that are subject to termination upon the occurrence of a specified event<br />
  8. 8. 3 Types of Defeasible Estates<br /> Fee Simple Determinable<br />Fee Simple Subject to Condition Subsequent<br />Fee Simple Subject to Executory Limitations<br />Defeasible estates are freely transferable. It can be divided, sold, bequeathed, or inherited subject to stated condition or event<br />
  9. 9. Defeasible Estates: Fee Simple Determinable<br />Definition: a fee simple determinable is a defeasible estate that will automatically terminate upon a stated event or violation and revert back to the grantor or his successorsin “fee simple absolute”.<br />
  10. 10. Defeasible Estates:Fee Simple Subject to Condition Subsequent<br />Definition: A fee simple subject to condition subsequent is a defeasible estate that upon the event of a certain stated event or violation, it may be terminated by the grantor. The Grantor retains the right of entry to regain his land, but must make an affirmative action in order to do so.<br />Forteiture is not automatic<br />
  11. 11. Defeasible Estates:Fee Simple Subject to Executory Limitations<br />Definition: A fee simple subject to an executory interest or limitation is a defeasible estate that provides for the passing of ownership from the grantor to a grantee (Springing executory interest) or from one grantee to another (shifting executory interest) upon the occurrence of a stated event or violation of a stated condition<br />
  12. 12. Fee Simple Subject to Executory interests<br /> BAR TIP: on the exam, look for :<br />“to X and her heirs, but if Z happens, then to Y” (shifting)<br />Or<br />“To X, if and when Z happens” (Springing)<br />
  13. 13. Life Estate<br />Definition: A life estate is an interest in land measured by the life of the grantee<br />Rule: upon the death of the life tenant, the interest automatically reverts to the grantor (reversion) or shifts to a third party (remainder)<br />“O conveys blackacre to A for Life and then to A’s heirs in fee simple”<br />
  14. 14. Possessory Interestsconcurrent estates<br />Tenancy in common<br />Joint Tenancy<br />Tenancy by the entirety<br />
  15. 15. Possessory InterestsTenancy in Common<br /> Definition: A tenancy in common is a concurrent estate in which the cotenants own a separate and distinct share of the property<br />Rule: each cotenant owns an individual part of the whole, but each has a right to possess and enjoy the whole<br />
  16. 16. Possessory InterestsTenancy in Common<br />Please note:<br />Each cotenants interest is descendible, divisible and alienable<br />Wrongful ouster occurs when one cotenant, wrongfully excludes another from possession of the whole, or any part of the whole<br />Upon death of a cotenant, her interest descends to her heirs [no right to survivorship]<br />Cotenants must not commit waste<br />
  17. 17. Joint tenancy<br />Definition: A joint tenancy is a concurrent estate in which each tenant owns an undivided interest in the whole estate.<br />Rule: Each cotenant owns an undivided interest in the estate with the right of survivorship. Upon the death of one of the joint tenants, the decedents share passes automatically to the surviving joint tenant<br />Each joint tenants interest is alienable only.<br />
  18. 18. How is a joint tenancy created?<br />Rule: 4 requirements <br />Unity of time (interest must vest at the same time)<br />Unity of title (interest must be done by the same instrument)<br />Unity of interests (interest must be identical)<br />Unity of Possession (interest must allow for all to equally enjoy the whole)<br />
  19. 19. Severing of a Joint Tenancy<br />Can be severed by either :<br />Sale<br />Partition <br />Mortgage<br />
  20. 20. Severance of Joint TenancySALE<br />Rule: A joint tenant can sell or transfer her interest during his life time with or without the cotenants knowledge or consent. However, the sale severs the joint tenancy as to the sellers interest, and the buyer takes the interest as a tenant in common.<br />
  21. 21. Severance of Joint TenancyPartition<br /> Rule: A joint tenancy may be partitioned by:<br />Voluntary agreement, OR<br />Court order<br /> a. The court can divide the property between the joint tenants OR<br /> b. Force the sale of the property and divide the proceeds among tenants<br />
  22. 22. Severance of a joint tenancy Mortgage<br />Majority Rule: (Lien Theory) = a joint tenants execution of a mortgage on his interest in the joint tenancy does not sever the joint tenancy<br />Minority Rule: (Title Theory) = a joint tenants execution of a mortgage on his share will sever the joint tenancy, but as to the encumbered share only.<br />
  23. 23. Tenancy by the Entirety<br />Definition: A tenancy by the entirety<br />Is a joint tenancy between husband <br />And wife that automatically arises <br />When property is conveyed to both of them<br />Rule: Each spouse has the right of survivorship<br />In the property, which cannot be defeated <br />Through one spouses unilateral conveyance<br />Of her share to a third party. Upon the death of <br />One spouse, the decedents share passes <br />Automatically to the surviving spouse.<br />Creditors CANNOT attach interests held in tenancy by <br />The entirety of only one spouse<br />
  24. 24. FUTURE INTERESTS<br />In grantor:<br />Possibility of reverter<br />Possibility of reentry<br />Reversion<br />In Grantee/Third party<br />Remainders<br /> absolutely vested remainders<br /> Vested remainder subject to open<br /> Vested remainder subject to divestment<br /> Contingent remainders<br />2. Executory Interests<br />shifting executory interests<br /> Springing executory interests<br />
  25. 25. Possibility of Reverter<br />The possibility of reverter is a future interest that arises in the grantor<br />Rule: if a condition stated in the conveyance of a fee simple determinable is breached, the possibility of reverter becomes a possessory interest of the estate<br />
  26. 26. Right of Reentry<br />Definition: The right of reentry is a future interest held by the grantor that provides her the right to terminate a fee simple subject to a condition subsequent.<br />Rule: When conveying a fee simple subject to condition subsequent, a grantor must expressly reserve the right to terminate and reenter the land upon occurrence of specified event or violation therein.<br />
  27. 27. Reversion<br />Definition: a reversion is the estate retained by a grantor who has conveyed a lesser estate than she owns<br />Rule: a reversion is automatically created upon the grantors conveyance of a lesser estate than she owns<br />Life estates, invalid attempts to convey a remainder to the grantors heirs<br />
  28. 28. Remainder<br />A remainder is a future interest in a third person that can become a present possessory interest only after the natural expiration of the preceding estate<br />Rule: A valid remainder must be created in the same instrument as the prior estate that it follows AND<br /> Must become part a present possessory interest immediately upon termination of the prior estate<br />
  29. 29. 2 Classifications of Remainders<br /> Vested Remainders<br /> - Those who are already born and identified by name<br />Contingent remainders<br /> - those who are not yet born<br />
  30. 30. Important Doctrines in regard to future interests<br />The Rule of destructibility of <br />The rule in Shelley’s Case<br />contingent remainders<br />The Doctrine of Worthier Title<br />The Rule Against Restraints on Alienation<br />The Rule against perpetuities<br />
  31. 31. Destructibility of Contingent Remainders<br />Common Law: a contingent remainder is destroyed if it fails to vest before or at the time the preceding estate terminated. When this happens the grantors heirs take a fee simple through reversion<br />Modern Law: this doctrine is abolished.<br />
  32. 32. The Rule In Shelley’s Case<br /> The rule in Shelley’s case states that if one document creates both a freehold estate in a person and a remainder in that persons heirs, the grantee takes both the freehold estate and the remainder<br />The rule in Shelley’s case has been abolished in most states<br />
  33. 33. Doctrine of Worthier Title<br />Rule: under the doctrine of worthier title, an attempted remainder in the Grantors heirs is invalid and becomes a reversion in the grantor<br />O conveys to A and his heirs AND THEN the heirs convey to Z = can’t do it<br />
  34. 34. Restraints on Alienation<br /> Disabling restraint = seeks to make any attempted transfer of an estate void<br />Forfeiture Restraint = provides that the grantor may terminate the estate if transfer is attempted<br />Promissory Restraint = is the grantee’s promise not to transfer the estate<br />
  35. 35. Rules Against Restraints on Alienation<br />Rule: absolute restraints on fee simple estates are void.<br />Exceptions:<br />Forfeiture and promissory restraints of life estates<br />Forfeiture restraints on transferability of future interests<br />Rights of first refusal<br />Restrictions on assignments and subleasing<br />
  36. 36. Rules Against Perpetuities<br />No interest in property is valid unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest.<br />Applies to:<br />Contingent remainders<br />Executory interests<br />Class Gifts<br />Rights of first refusal<br />
  37. 37. Rights and Responsibilities of present and future interest holders<br />The law of waste<br />Affirmative waste<br />Permissive waste<br />Ameliorative Waste<br />The law of fixtures<br />
  38. 38. Law of Waste<br />When more than one person holds an interest in land, the holder of the present interest is entitled to the ordinary uses and profits of the land, but cannot do anything that injures the interests of the future interest holder.<br />
  39. 39. 3 types of waste<br />Affirmative waste (voluntary) = harm or decrease in the value of the estate resulting from the present interest holders intentional conduct<br />Permissive waste = harm to the property caused by the present interest holders failure to exercise reasonable care to protect the estate<br />Ameliorative waste= a physical change that economically benefits the land but is UNAUTHORIZED by the future interest holder<br />
  40. 40. The Law of Fixtures<br />Fixtures pass with the ownership of land and the removal of fixtures constitutes voluntary waste<br />If the present interest holder has installed something himself and removes this, it is not waste<br />
  41. 41. Possessory Interest: LeaseholdsNon Free Hold Estates<br />Definition: A leasehold , also known as a non freehold estate, is an interest in land that permits the interest holder to hold or use property for a period of time<br />There are four types of leaseholds<br />Tenancy for years<br />Periodic Tenancy<br />Tenancy at will<br />Tenancy at sufferance<br />
  42. 42. Tenancy For Years<br /> Definition: A tenancy for years is a tenancy that lasts for a fixed period of time. [ a set start and end date]<br />It is created by an explicit agreement between the parties<br />It will end without notice on the expressed end date unless the parties agree to extend the date.<br />The statute of frauds applies to this if it is longer than a year.<br />
  43. 43. Periodic Tenancy<br />Definition: a periodic tenancy is a lease that continues for intervals with no fixe termination date<br />Rule: A periodic tenancy may be created by:<br /> a. Express agreement ( month to month/year to year etc)<br /> b. Implied agreement (setting payment for rent at fixed <br /> intervals OR<br /> c. Operation of Law: (accepting payment from a holdover)<br />
  44. 44. Tenancy At Will<br />Definition: a tenancy at will is a lease that can be terminated at the whim of either party<br />No notice is required<br />Any party can terminate this at will<br />
  45. 45. Tenancy at Sufferance<br />A tenancy at sufferance is created with a tenant wrongfully retains possession of property beyond the expiration of the lease.<br />Rule: When a tenant retains possession beyond the termination of a leasehold estate, the tenant is deemed to hold a tenancy at sufferance<br />
  46. 46. Tenants Duties<br />Duty to pay rent<br />Duty not to commit Waste<br />Duty to Repair<br />Duty to Inform<br />
  47. 47. Land lords remedies<br />A landlords remedies if a tenant breaches the duty to pay rent depend upon whether the tenant remains in possession of or abandons the property<br />Tenant remains in possession of property = landlord may:<br /> a. file for a writ of ejectment (tenant becomes a tenant at sufferance until he vacates)<br /> b. Landlord can sue the tenant for back rent owed<br />If the tenant abandons the property = the landlord can:<br /> a. accept the tenants abandonment as an implicit offer of surrender<br /> b. hold the tenant responsible for unpaid rent<br /> c. lease the property out and hold the tenant liable for the difference between the rent owed and the rent received from the new tenant<br />
  48. 48. Duty to repair<br />Under common law: tenant had the duty to make repairs automatically in leaseholds unless specified otherwise<br />Under modern law- the burden shifts to the landlord under the implied warranty of habitability<br />
  49. 49. Landlords duties and tenants rights<br />Landlord has a duty to uphold the implied warranty of habitability<br />Landlord has a duty to uphold the Implied covenant of quiet enjoyment<br />Duty to deliver possession<br />Tenants remedies for landlords breach<br /> * Move out and terminate the lease<br /> * Make the reasonable repairs and deduct cost from rent<br /> * Reduce or withhold rent payments until the court determines the fair rental value of the property OR<br /> * Continue to pay rent and sue the landlord for damages<br />
  50. 50. Implied Covenant of Quiet Enjoyment<br />Rule: Every lease contains an implied covenant of quiet enjoyment in which a landlord promises not to interfere with a tenants possession of the property<br />The right can be violated in two main ways:<br /> 1) By claims of paramount title OR<br /> 2) By acts of landlord or persons claiming under him which interfere with the tenants possession or use of the premises<br />
  51. 51. Constructive Eviction<br />Under the law, if the tenant ‘s claim is merely that his use or enjoyment of the property has been substantially impaired, the eviction is constructive<br />The tenant is responsible for paying rent unless he abandons the property<br />
  52. 52. Implied Warranty of Habitability<br />Under the law, all courts agree that the existence of a building code violation is at least evidence of uninhabitability; however most courts require that to prove uninhabitability, the tenant must show that the conditions not only violate the building code, but are also a substantial threat to T’s health or safety.<br />
  53. 53. Tenant Remedies for breach of Implied Warranty of Habitability<br />Tenant Can:<br />Terminate the lease<br />Withhold paying rent<br />Use the rent money to repair the problems<br />
  54. 54. Easements<br />Under the law, an easement is a privilege to use the land of another and must be in writing.<br />AFFIRMATIVE EASEMENT<br />An affirmative easement is one entitling its holder to do a physical act on another ‘s land<br /> <br />NEGATIVE EASEMENT<br />A negative easement is own which establishes its holder to prevent the owner of land from making certain uses of that land (these are very rare)<br /> <br />APPURTENANT <br />An easement appurtenant is one which benefits the holder in the use of a certain piece of land and must be tied to that specific piece of land. (dominant tenement)<br /> <br />EASEMENT IN GROSS<br />An easement in gross is one whose benefit is not tied to any particular parcel<br /> <br />PROFIT A PRENDRE<br />A profit is the right to go onto the land of another to remove the soil or a product of it<br />
  55. 55. Creation of Easements<br />Under the law an easement may be created in 4 ways: (1) by express grant; (2) by implication; (3) by strict necessity; and (4) by prescription<br />EXPRESS CREATION<br />If a easement is created by a deed or will, it is expressed<br />IMPLICATION CREATION<br /> An easement by implication has three requirements: (1) the land must be divided up or severed; (2) the use for which the implied easement is claimed must have existed prior to the severance and (3) the easement must be at least reasonably necessary to the enjoyment of the dominant tenant. The implied easement will only exist where the owner of a parcel sells part and retains part, or sells pieces simultaneously to more than one grantee.<br />EASEMENT BY NECESSITY<br /> The courts will find an easement by necessity if two parcels are so situated that an easement over one is strictly necessary to the enjoyment of the other.<br />EASEMENTS BY PRESCRIPTION<br />An easement by prescription is one that is gained under principles of adverse possession. If a person uses another’s land for more than the statute of limitations period governing ejectment actions he gains an easement by prescription.<br />
  56. 56. Covenant Running With The Land<br />COVENANTS RUNNING WITH THE LAND<br />Under the law, a covenant running with the land is simply a contract between the two parties which, because it meets certain technical requirements has the additional quality that is binding against one who later buys the promisor land and or enforceable by one whom later buys the promisor land.<br />
  57. 57. Equitable Servitude<br />EQUITABLE SERVITUDE<br /> When the court gives equitable relief and applies it against an assignee of the original promisor, the promise is referred to as an equitable servitude.<br />
  58. 58. The Taking Clause<br />THE TAKING CLAUSE<br />Under the law of eminent domain, state and federal governments may take private property for public use. However, the 5th amendment to the U.S Constitution provides that private property [shall not] be taken for public use without just compensation. The taking clause is made binding to all of the states through the 14th amendment. This must be a taking not a regulating in order to be violated.<br />Elements:<br />Must be substantial advancement of legitimate state interests<br />Must be a fairly tight fit between the state interest being promoted and the regulation chosen<br />Must be more than just a mere rational relation” between means and end (Tight means – end fit)<br />If the government (state or federal) makes or authorizes a permanent physical occupation of the property, this will automatically be found to constitute a taking.<br />*Diminution in value - the more drastic the reduction in value of the owners property, the more likely a taking is to be found.<br />
  59. 59. Damages for Temporary Taking<br />DAMAGES FOR TEMPORARY TAKING<br />Inverse condemnation: if a land use regulation is so broad that it constitutes a taking, the owner may bring an inverse condemnation suit<br />
  60. 60. ZONING<br />ZONING<br />Generally, zoning is done on the local, municipal level<br />The municipality power comes from the state police power or power to act in the general welfare<br />Use Zoning: most common form of zoning – it is divided into districts where each district can only be used for a certain purpose (residential, business, etc)<br />Density controls: govern the density of population or construction; a towns minimum lot size per single family, minimum setbacks requirements, minimum square footage for residence and height limits.<br />
  61. 61. LIMITS ON ZONING<br />LIMITS ON ZONING<br />Taking Clause<br />Procedural due process – 14th amendment and 5th amendment – land owner is entitled to an administrative hearing<br />Substantive due process – if the zoning law fails to bear a rational relation to a permissible state objective, it may violate the substantive aspect of the Due Process Clause<br />Equal protection: a zoning law that is adopted for the purpose of excluding racial minorities will trigger a strict judicial scrutiny, and will probably be found to be a violation of the equal protection clause of the 14th amendment<br />
  62. 62. Administrative Zoning<br />ADMINISTRATIVE ZONING<br />Bodies involved: Town council - the zoning code is enacted by the municipal legislature<br />Board of zoning appeals – a board of adjustment – or a board of zoning appeals usually exists towards variances and to hear appeals from the building department’s enforcement of the zoning laws.<br />Planning or zoning commission - the town council generally appoints a planning commission or zoning commission. The commission advises the town council on (but does not independently determine ) the contents of the zoning code<br />
  63. 63. VARIANCES<br />VARIANCES<br />Virtually all zoning ordinances have a provision for granting variances – (relief in a particular case from the enforcement of an ordinance)<br />Requirements for variances: (1) denial would result in unnecessary hardship; (2) the need for the variance is caused by a problem unique to the owners lot; and (3) the variance would not be inconsistent with the overall purpose of the ordinance, or inconsistent with the general welfare of the people<br />
  64. 64. Special Uses, Conditional Zoning and Non Conforming Uses<br />SPECIAL USES – permits are usually granted for churches, private schools, hospitals (usually done in regards to a hardship of some kind<br />CONDITIONAL ZONING - many ordinances provide for conditional zoning - under this device the rezoning of a particular parcel is made subject to the developers promise to comply with certain conditions, which will protect neighbors.<br />NON CONFORMING USES: When a zoning ordinance is enacted or made more stringent, the pre existing uses that are now banned by the ordinance are called non conforming uses – Virtually all ordinances either (1) grant a non conforming user in a substantial period within which he may continue his use; or (2) let him continue that use indefinitely.<br />Constitutional law issues : it would likely be a violation of an owners due process or other constitutional rights for him not to be given at least a substantial period within which to phase out the non conforming issues<br />
  65. 65. Exclusionary Zoning<br />used to exclude certain types of persons and uses , particularly racial and ethnic minorities and low income persons<br />Can be fought with the Equal Protection Law and or<br />Federal Statutory regulations and or <br />State Case Law<br />
  66. 66. Land Sale Contracts, Deeds Mortgages<br />Must satisfy the statute of frauds<br />Part performance exception to the SOF for the land sale contracts, under the doctrine of part performance, a party either the buyer or the seller, who has taken action in reliance on the contract may be able to gain at lease limited enforcement of it.<br />Law Students Remember to review tort law “landowners” for all of the details<br />
  67. 67. Mortgages and Installment Contracts<br />A mortgage is a financing arrangement in which the person buying the property (or one who already owns the property) receives a loan, and the property is pledged as a security to guarantee repayment of the loan.<br />A mortgage has two documents that go with it : (1) the NOTE or BOND and (2) the mortgage itself.<br />INSTALLMENT CONTRACTS: where a buyer makes a down payment on a piece of property and then makes monthly installment payments on the property<br />
  68. 68. DEEDS<br />The deed is the document which acts to pass title from the grantor to the grantee<br />Merger: Under the doctrine of merger, most obligations imposed by the contract of sale are discharged unless they are repeated in the deed.<br />Quitclaim deed: the grantor makes no covenant that his title is good ( he merely passes on to the grantee whatever title he has<br />Warranty deed: the grantor makes one or more promises about the state of his title<br />Grantor must sign the deed, the grantee need not sign the deed<br />Deed must be witnessed by one or more persons or Notarized<br />Delivery of deed is required in order for the deed to be valid<br />Deed must describe the property either by (1) Metes and bounds (boundary lines where the property starts and ends) ; (2) Government survey - land is divided in 6 mile square tracts called townships; each town ship is divided into 36 one mile square tracts called sections, each section contains about 640 acres, each of which can be directly referred to; OR (3) Plat – which relies on the recording of a map or plat of property by a developer in which the plat shows the location of individual lots<br />Once the delivery occurs the title passes immediately to the grantee.<br />
  69. 69. Water Rights<br />Drainage: courts are split as to the rights of an owner to drain surface water from his property onto the property of another. In general courts are moving to a rule that an owner may do this only If his conduct is reasonable under all circumstances<br />Streams and Lakes: States are sharply split as to when and how the landowner may make use water front lakes and streams that abut his property – usually each riparian party can use what they need to gain beneficial use of the water (under common law).<br />Ground Water – in most American states a land owner may make only reasonable use of ground water drawn from under his property. The land owner cannot divert this water to other properties which he may own.<br />
  70. 70. AIR RIGHTS<br />DIRECT OVER FLIGHTS: when airports permit flights to occur directly over an owner’s property and within immediate reaches of property owners land, the property owner can sue the airport for trespass or Nuisance if the flight is adjacent to landowners property.<br />Tall buildings: A land owner has the right to build a building as tall as he wishes as long as it is in accordance with the zoning requirements for that location.<br />RIGHT TO SUNLIGHT – a landowner has no right to sunlight, for example an owner almost never acquires and easement of light and air – by implication or even by necessity. So if A and B are adjoining owners, B can without liability build a building in such a way that blocks A’s sunlight. (BUT if A uses that sunlight for solar energy, A can possibly claim Nuisance against B for blocking energy sources needed to sustain the power of A’s building.<br />
  71. 71. REVIEW OF BASIC TERMS<br />FEE SIMPLE ABSOLUTE<br />Under the law, a fee simple absolute is the longest and most unrestricted estate. A fee simple Absolute is inheritable under intestacy statutes.<br /> <br />FEE SIMPLE DEFEASIBLE<br />Under the law, a fee simple defeasible is the type of fee simple that will terminate upon the happening of a stated event or the failure of the stated event. There are three types of fee simple defeasibles: (1) the fee simple determinable; (2) the fee simple subject to condition subsequent and (3) the fee simple subject to an executory interest.<br /> <br />FEE SIMPLE DETERMINABLE<br />Under the law, a fee simple determinable is the type of fee simple that may last indefinitely, but will terminate upon the happening of a specified event or could terminate upon the failure of a specified event. Upon the occurrence of the event or lack thereof, the property will automatically revert back to the grantor (possibility of reverter) or to his successors (remainders).<br /> <br />FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT<br />Under the law, a fee simple subject to condition subsequent is the type of fee simple that may last indefinitely, but will terminate upon the happening of a specified event or could terminate upon the failure of a specified event. Upon the happening or failure of occurrence of the stated event the land will not automatically revert back to the grantor. Rather the grantor holds the right of re-entry and must take an affirmative action to regain the property.<br />
  72. 72. REVIEW OF TERMS 2<br />FEE SIMPLE SUBJECT TO AN EXECUTORY LIMITATION<br />Under the law, a fee simple subject to an executory limitation provides for the estate to pass to a third person (one other than the grantor) upon the happening of a stated event.<br /> <br />THE FEE TAIL <br />Under common law, the fee tail allows the owner of land to ensure that the property remains within his family. Modernly, a fee tail is simply converted by statute to a fee simple absolute. <br /> <br />THE LIFE ESTATE<br />Under the law, a life estate is an interest which lasts for the lifetime of a person and is measured by the life of the grantor. A life estate Per Autrie vie is a life estate measured by the life of one other than the grantor <br />
  73. 73. REVIEW OF TERMS 3<br />THE RULE IN SHELLEY’S CASE<br />Under the law, The Rule In Shelley’s Case provides: if a will or conveyance creates a free hold in A, purports to create a remainder in A’s heirs, and the estates are both legal or both equitable, the remainder becomes a remainder in A. A usually ends up getting fee simple.<br />DOCTRINE OF WORTHIER TITLE<br />Under the law, one cannot, either by conveyance or will, give a remainder to one’s own heirs.<br /> <br />THE STATUTE OF USES AND EXECUTORY INTERESTS<br />Under the law, the statute of uses provides that any equitable estate is converted into the corresponding legal estate. Modernly, the statute of uses makes possible modern Shifting executory interests.<br /> <br />THE RULE AGAINST PERPETUITIES<br />Under the law, No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest<br />
  74. 74. REVIEW TERMS 4 <br />EQUITABLE CONVERSION <br />Under the law, where there is a specifically enforceable contract for the sale of land, the buyer holds equitable title to the land and the seller holds legal title in trust for the buyer. A majority of states place the risk of loss for damage or destruction to the property on the buyer. The minority, including California, places the risk on the seller. If however the land sale contract contains a provision that states a risk of loss, the contract is controlling.<br /> <br />JOINT TENANCY<br />Under the law, a joint tenancy is where two or more people own a single, unified interest in real or personal property. Additionally, each joint tenant has the right of survivorship, each joint tenant is entitled to occupy the entire premises and each joint tenant has the right to an equal share of the property.<br /> <br />TENANCY IN COMMON<br />Under the law, a tenancy in common is where two or more people have a separate and undivided interest in real or personal property. Additionally, there is no right of survivorship between tenants in common and each tenant in common has unequal shares of the property interest unless there is a rebuttable presumption of equality.<br /> <br />TENANCY BY ENTIRETY<br />Under common law, any conveyance to two or more persons who were husband and wife resulted automatically in a tenancy by the entirety. Additionally, the tenancy by entirety is not subject to severance and is only terminated upon divorce.<br />
  75. 75. REVIEW TERMS 5<br />RELATIONS BY CO-TENANTS<br />Regardless of the form of the co-tenancy, each co tenant has the right to occupy the entire premise unless there is an agreement stating otherwise. Additionally, if the property is solely occupied by one of the co-tenants, he normally has no duty to account for the value of his exclusive possession unless the occupying tenant has ousted the other tenant or there is depletion in the land.<br />
  76. 76. REVIEW OF TERMS 6<br />THERE ARE FOUR TYPES OF LANDLORD TENANT RELATIONSHIPS <br />(1) THE TENANCY FOR YEARS; (2) THE PERIODIC TENANCY; (3) THE TENANCY AT WILL; AND (4) THE TENANCY AT SUFFERANCE. <br />UNDER COMMON LAW ANY CONTRACT FOR LONGER THAN 3 YEARS NEEDS TO BE IN WRITING<br />MODERNLY, ANY CONTRACT FOR ONE YEAR OR LONGER MUST BE IN WRITING TO MEET THE STATUTE OF FRAUD REQUIREMENTS<br />
  77. 77. REVIEW OF TERMS 7<br />THE TENANCY FOR YEARS<br />Under the law, most leases are considered tenancy for years which is an estate which is for a fixed period of time. There is a fixed start date and a fixed end date upon which the estate will terminate without warning.<br /> <br />THE PERIODIC TENANCY <br /> Under the law, the periodic tenancy is one which continues from one period to the next automatically, unless either party terminates it at the end of a period by notice. Under common law the terminating party had to give a 6 month notice for a year to year contract. Modernly, the requirement is 30 days.<br /> <br />THE TENANCY AT WILL<br />Under the law, a tenancy at will is a tenancy which has no stated duration and which may be terminated by either part at any time without giving any notice <br /> <br />THE TENANCY AT SUFFERANCE<br />Under the law, there is only one situation where the tenancy at sufferance exists and this is where a tenant holds over at the end of the lease giving the landlord the option to: (1) evict the tenant; or (2) hold the tenant to another term creating a periodic tenancy and notice to terminate will have to be given.<br />
  78. 78. REVIEW OF TERMS 8<br />TENANTS RIGHT OF POSSESSION<br />The American view is that the landlord only has a duty to deliver legal possession and not actual possession<br />The English view is that the landlord DOES have the duty to deliver actual possession. T has the right to terminate the lease and recover damages for the breach if the prior tenant holds over and the landlord does not oust him. OR T can continue to lease and get damages for the period until the prior tenant is removed.<br />
  79. 79. END OF PROPERTY LAW <br /> THIS IS A “BRIEF” OF PROPERTY LAW TERMS AND DEFINITIONS AS WELL AS SOME OF THE RULES<br />IT IS GENERALLY BASED ON COMMON LAW AS IT IS INTENDED FOR THOSE WHO WANT TO LEARN THE LAW OF THE LAND<br />FOR MORE IN DEPTH LAWS, PLEASE SEEK OUT YOUR STATE PROPERTY LAW STATUTES WHICH ARE BASED ON WHAT YOU HAVE JUST READ<br />SOURCE: Emanuel, S.L (2004) Property Law Aspen Publishers, NY<br />
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