johns property.txt

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johns property.txt
2013-06-23 21:22:13
johns property

johns property
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  1. Fee Simple Absolute
    Runs forever and Is fully Alienable. Any attempt to put a direct restraint on alienation = void; ignore the restriction. Conditions on the exercise are right, limiting right to transfer is not. (Right of First Refusal = fine too); Courts presume the creation of a fee simple.
  2. Life Estate
    Measured by life, not time. Can arise out of implication. Life pur autre vivre is ago. Forfeiture restrictions on life estates are fine.
  3. Rights and Duties of Life Tenant -- waste Doctrine
    Life tenant can only maintain the state; continuing the normal use of the land in its present conditions.
  4. Voluntary WAste
    Any Affirmative Action beyond the right of maintenance causing harm. Liable to the holder of future interest.
  5. Open Mines Doctrine
    Exception to voluntary waste. Depletion of resources is waste unless the normal use of the land was to deplete them.
  6. Permissive Waste
    Where tenant has failed to maintain. Must do three things: 1) repair (repair, not replacement); 2) Taxes (tax sale terminates future interest tho); 3)Interest (on the mortgage). Liability Limitation: Limited to amount of income received OR the reasonable rental value of the land (if personally using)
  7. Ameliorative Waste
    Waste where alters he proeprty but increases the value of it: If changed conditions have made the property relatively worthless, life tenant can tear it down without liability to holder of future interest.
  8. Class Gifts
    1) Members of a class who predecease do not recover; 2) class stays open to accomdate those who later meet the definition; 3) Rule of Convenience: Closes when any on of the class is entitled to distribution (rule of construction, not law).
  9. Future Interest, Classification
    1) Reversion; 2) Possibility of Revertor; 3) Right of Entry (or Power of Termination); 4) Remainder; 5) Executory Interest
  10. Reversion
    Kept by grantor when grantor gives less than durational estate grantor had.
  11. possibility-of-reverter
    When grantor gives a fee simple determinable; FSD ends automatically when a condition happens. Legal term to go w/ FSD, not just a chance of reverer. NEVER subject to RAP and freely transferable.
  12. Right of Entry (Power of Termination)
    When grantor gives a fee simple on condition subsequent, Grantor keeps right of entry. Ambiguous language cosntued in way that will not bring automatic forfeiture, so if you're not sure, say it's a f/s condition subsequent. BUT, must expressly reserve right of entry! Not subject to RAP, but can't be transferred inter vivos.
  13. Vested Remainder
    Nothing stands in the way of its becoming possessory on expiration of the estate that comes before it
  14. Vested Remainder Subject to Open
    Where the remaidner interest is to a class whose members are not fully known, class remains open. (partial divestment)
  15. Contingent Remainder
    1) Condition -- if condition must be satisfied first; 2) grantee not in existence; 3) identity of exact taker unknown (no name). will become possessory, if at all, only upon the natural expiration of the estates coming before them.
  16. Executory Interests
    Operates to cut short estate that comes before it. Does not come into possession at the natural expiration. Holder of an executory interest cannot sue life tenant for waste
  17. Rule Against Perp
    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. Options and Rights of First Refusal do violate. Charity to charity never implciates.
  18. Joint Tenancies
    Right of Survivorship; Right to Partition
  19. Joint Tenancy Creation
    Four unities: 1)Time; 2) Title; 3) Interest; 4) Possesion. Also need language that makes intention clearly known. RIGHT OF SURVIVORSHIP MUST BE STATED.
  20. Destruction of Joint Tenancy
    1) Partition (voluntary destruction); 2) Severance (involuntary destruction -- whenever any one of the four unities is disturbed-- includes a mortgage in a title theory state). THIS DOES NOT EXIST IN TX
  21. Doctrine of Equitable conversion
    Sseverance of JT occurs when contract of sale is signed
  22. Tenancies in Common
    1) Right to partition; 2) No right of Survivorship. Only thing required is possession -- all tenants must have equal rights to possession.
  23. Allocating Rights and Duties b/t Co-tenants
    1) Each Co-tenant has right to possess all the property; 2) Accountability: One Co-tenant may have to account to another for a share of profits co-tenant received when: a) Outser; b) agreement to share profits; c) lease by co-tenant to a third party; d) depletion of natural resources; 3) Contribution: right of one co-tenant to force other to pay their share of expenditures (no contribution for improvement or non-necessary repairs, but may be later recouped at partition or sale of property)
  24. Tenancy for Years
    Tenancy for period of time. If over a year, SoF applies.
  25. periodic Tenancy
    Ongoing, continuing, reptitive estate, unless one party gives notice. Can be by implication or express. Oral Leases violating SoF = periodic tenancy; same as hold-over lease
  26. Termination of Periodic Tenancy
    Notice must be equal to the period and have the right effective day of termination.
  27. Tenancy At Will
    Either party can terminate at any time, without notice. Other ways to terminate: 1) death; 2) waste by tenant; 3) assignment by tenant; 4) transfer of title by landlord; 5)lease by landlord to someone else.
  28. Tenancy at Sufferance
    Bare Possession of a holdover Tenant. L can either 1) hold tenant as wrongdoing trespasser and sue to throw T; 2) impose new periodic tenancy (residential = month-to-month; commercial = year or more, year-to-year, but less than a year, whatever it was). But, it has to be reasonable, holdover of a few hours, or holding because of circumstances beyond control, cannot impose new tenancy. RAISED RENT: If L tells T of higher rent before expiration of lease, can impose new rent.
  29. Tenant's Duties
    1) Pay rent; 2) not commit waste (Tenant can terminate lease if persmises are destroyed and it's not their fault) NOTE: If lease says "repair and maintain" then T is liabile for all damges to the property.
  30. Landlord's Remedies
    If T fails to pay rent, can both sue for damages and throw T off; If T abandons leasehold, treat abandonment as an offer of surrender and accept offer by retaking premises, thus ending liability as of that date; 2) re-rent property and T's account and hold T liabile for any deficiency
  31. Landlord's Duties
    1) Give T possession of the property when lease begins; 2) deliver residential premises in a habitable condition; (T has two options, move out and end the lease or stay and sue for damages -- this doesn't eist in TX = statutory requirement that repair conditions that materially affect physical health or safety of an ordinary tenant; tenant can move out, stay and repair and deduct cost of repair, or sue the landlord. FOR COMMERCIAL LEASE in TX =implied warranty of suitability); 3) Implied Covenenant of Quiet Enjoyment
  32. Breach of Quiet Enjoyment
    1) By Total Eviction; terminates the lease, ends obligation to pay 2) By Partial Eviction of T, doesn't terminate the lease, but T can stop paying rent; (if it's done by a non-landlord, but someone with better title, T's rent is apportioned); 3) Constructive Eviction (where L fails to provide a service he's supposed to prove, thus making it uninhabitable -- L has to do it, must be a substantial interference, and must abandon the premises within a reasonable time after breach
  33. Assignment
    When Tenant transfers everything, holding nothing back
  34. Sublease
    When T transfers a portion of lease period, holding some time back. NO RIGHT TO ASSIGN OR SUBLET IN TX UNLESS L GIVES PERMISSION
  35. Condemnation (Partial Taking)
    Does not release Tenant from Obligation to pay full rent, but T gets amount equal to the rent that will have to be paid over the remainder of the lease for the property taken
  36. Condemnation (Full Taking)
    Extinguishes the lease and T is excused from Paying Rent. T shares in the award only to the extent that fair rental value of lease exceeds rent due under the lease.
  37. Landlord's Tort Liability
    Generally: No duty of Landlord to T or T's invitees for injuries on the premises during lease.
  38. Landlord's Tort Lliability EXception
    1) Latent defects: duty to disclose that L knows or has reason to; (latent also means reasonable person would not discover) 2) Short Term Lease of Furnished Dwelling (liabile for all defects, short term - 3 months or less); 3) Common Areas under L's control if negligent; 4) Negligent Repairs (only if class of persons to protect in texas); 5) Public Use [a) L knows or should know of major defects; b) L must know or should know that T will not fix defect; c) L must know or should know public will be using premises.]
  39. Tenant's Tort Liability
    T is always liabile to third-party invitee for negligent failure to correct dangerous conditions on the premises, whether L is or not!
  40. Fixture
    If It becomes one, chattel cannot be removed. Key to determine = intent. For factors: 1) degree of attachment; 2) general custom; 3) Degree of harm to premises on removal (tenants are favored); 4) Trade fixtures are chattels used in trade or business and are NOT fixtures. NOTE: W/D are never fixtures. NOTE: If tenant can remove chattel, must be removed before end of lease. If Owner can remove Chattel, must be removed before closing.
  41. Easement
    Non-possessory Interest Involving the Right of Use
  42. Easement Appurtenant
    When easement directly benefits use and enjoyment of a specific piece of land. Always two pieces: 1) burdened ('servient') estate; 2) benefited ('dominant') estate.
  43. Easement in Gross
    No dominant Estate. Utility easement.
  44. How to Create Easements
    1) Express (express grant or reservation of easement when sold to another) MUST COMPLY WITH SoF unless shorter than a year; 2) Easement by Implication
  45. How to Create Implied Easements
    1) Previous Use by a Common Owner: if previous use was 1) continuous; 2) apparent; 3) reasonably necessary. 2) Abslute Right of Access Situation: Owner of servient estate can choose the location so long as it's reasonable and it stops when the necessity no longer exists; 3) Easement by prescription, like adverse possession (adverse to owner, continuous and uninterrupted, but seasonal use is okay. 10 years in TX. Visibile and notorious or with O's knowledge, without permission)
  46. Transferring Benefit of the Easement
    1) If appurtenant, goes automatically w/ dominant estate, whether it is mentioned in the conveyance, and cannot be transferred separately from the dominant estate; 2) If in gross, commercial ones can be transferred, but personal ones cannot be. TX ones cannot be transferred unless language says so except for conversation easements.
  47. Transferring the urden of the Easement
    Always binding on subsequent holders of servient estates, providing subsequent holder had notice of the easement
  48. Easement Use Presumption
    1) presumed easement is perpetual and the presumed is that of reasonable development of the dominant estate (reasonably contemplated use). Use to benefit other property than the dominant estate = EXCESSIVE USE (remedy=injunction, not easement termination)
  49. Repair of Easements
    1) Holder must keep easement in repair and can always go on servient estate to repair, even if right isn't granted; 2) Holder must be reasonable restoration of servient estate after repairs; 3) Servient Estate has NO obligation to repair, unless easement says so.
  50. Termination of Easements (six situations)
    1) Unity of Ownership; 2) A valid Release that complied with SoF; 3) Abandonment (intent to abandon w/ physical act that shows it); 4) Termination by EStoppel: a_rep of relinquishmemt; b) change in position; 5) Termination by prescription (O stops the use and keep it stopped for statutory period); 6) End of Necessity
  51. Licenses
    Not a property interest; only a contract right, revocable at will of licensor. Tickets = licenses. Irrevocable license = License + money spent on property furthering the license. (Basically easement by estoppel)
  52. Profits
    Gives right to go onto land and take a natural resource away; Comes w/ implied easement to go on land to get the resource
  53. Restrictve Covenants
    Gives right to rsetrict someone else's use of land (Covenants at law and Equitable Servitudes); If you want money damages, covenant at law.
  54. Covenants Running w/ the land at law
    1) Intent that it run; 2) Notice to the person against whom enforcement is sought; 3) Covenant must touch and concern the land (more valuable or useful); 4) Privity (If Succesor-in-interest = D, you need both horizontal and vertical, otherwise, just vertical)
  55. Horizontal Privity
    Refers to Original parties, must have a conveyance of the property b/t the original parties
  56. Vertical Privity
    Refers to those who subsequently obtained property; simply must take the FULL estate of the one up the line.
  57. Equitable Servitude (plaintiff wants an injunction)
    1) Intent that the restriction be enforceable by successors; 2) Notice to the subsequent purchaser and; 3) restriction must touch and concern the land
  58. Equitable Servitudes In Subdivisions
    1) Intent to create a servitude on all the land in the subdivision (found in common building plan); 2) Notice (actual notice, record notice, or inquiry notice).
  59. Equitable Defenses to Enforcement of Equitable Servitudes
    1) Unclean Hands; 2) Acquiesence; 3) Laches; 4) Estoppel
  60. Termination of Equitable Servitude
    1) Release; 2) Unity of Ownership; 3) Changes Conditions (all or nothing)
  61. Adverse Possession
    1) Hostile; 2) Exclusive; 3) Lasting (TX: color of title and only narrow specific defects, 3 years; Color of title and taxes: 5 years; Bare possession 10 years, but limited to 160 acres unless fencing in; Taxes, w/ color of title, and TO was under disability = 25 years) 4) Uninterrupted (what an owner would usually make); 5) Visible (Open and Notorious); 6) Actual
  62. Special Adverse Possession Rules
    1) Doctrine of Constructive Adverse Possession (if you only possess some of it, but had color of title to more, but must 1) possess a raesonable relation to while; 2) unitary property); 2) Leasing land to someone else qualifies as possessing; 3) Adverse possession against Concurrent Owners (must exclude the other co-tenants and statute runs)
  63. Future Interest Situations and Adverse Possession
    1) clock does not Start to Run against holder of future interest until life tenant dies; 2) Happening of conidition starts the clock running for purposes of terimination in FSD; FCS, doesn't start until grantor exercises right of entry;
  64. Disabilities
    1) Include: jail, insane, minor 2) If it happens before AP starts, the time of disability is not counted. If it happens during, it doesn't count. No tacking of disabilities either. TX = maximum time for disability is 25 years and minor and armed forces are the only two.
  65. Conveyancing: Contract of Sale
    1) Any contract of Sale must meet SoF. Need: 1) description of property, names of the parties, and the price. Partial performance is an exception to S/F: (i) oral contract = certain and clears AND (ii) acts of part performance clearly prove up a contract (possession + paying full purchaswe price or erecting imrpovements)
  66. Legal Effects of Contract of Sale b/t time of signing contract and closing
    1) Risk of Loss: i) property damages or destroyed before closing, buyer loses if seller not at fault (TX = whoever's in possession); 2) Death of a Party does not affect contract
  67. Marketable Title
    Every land-sale contract has implied warranty that seller will give marketable title (not perfect, but one a reasonable person would accept); Seller must give buyer 1) proof of tile; 2) title free of encumbrances (no easements, restrictive covenants, mortgages, options, etc. not mentioned in contract); Zoning != encumbrance, either is mortgage, if it's going to be paid off by proceeds of the sale; 3) valid legal title on the day of closing
  68. Remedies of Buyer if No Marketable Title
    1) Byer must notify and give seller reasonable time to cure; 2) If not corrected: i) recission; 2) damages; 3) specific performance. BUT: if buyer goes to closing and accepted deed w/o cure, no recource based on contract
  69. Sale of Contract, Time of Performance
    1) General Rule: even if there ia closing day specified, time is not of the essence unless it says so. If not of the essence, just a reasonable time around the day. 2 months = OK. If there's an essence clause, if you're late, you can no longer enforce.
  70. Remedies for Breach of Sales Contract
    1) Damages = Difference b/t contract price and value of the land on day of breach; Liquidated Damages; can forfeit deposit as liquidated damages so long as it is not mroe than 10% of sales price; 2) Specific Performance: always available
  71. Defects on the Property
    If land is not fit for ordinary purposes and buyer wants to rescind: buyer cannot recover (buyer beware). BUT 2 exceptions: 1) seller must disclose serious defects seller knows of and are not obvious; 2) Implied warranty of fitness or merchantabiltiy for new homes sold by a buyer-seller.
  72. Deed
    Once deed is accepted, contract merges into deed and is destroyed '
  73. Requirements for Passage of Legal Title from Seller to Buyer
    1) Execution (subjet to S/F; seller must sign; must have a description of the land sufficient to identify; metes and bounds always controls over any other description); 2) Delivery of Deed
  74. Delivery of Deed Test
    Not always physical delivery, test is solely a question of intent. 1) recording a deed raises a presumption of dlivery; 2) can use in parole evidence to show intent of grantor regarding delivery; 2) IF grantor dies and still has deed in possession, presumption of no delivery
  75. Conditional Delivery
    1) Condition in the deed = valid; 2) Oral condition = invalid; 3) Delivery Conditional on Purchase Price: Valid provides grantor makes delivery to a third party in escrow w/ instructions to deliver to grantee when satisfied. Acceptance of Deeds is presumed unless facts indicate otherwise
  76. Quit Claim
    If grantor makes no promises regarding title, grantee gets this; i.e., whatever grantor owners and grantor promises nothing
  77. Traditional Covenants for Title (General Warranty)
    1) Present Covenants: a-b) covenant of seisin (right to convey); c) covenants against encumbrances; 2) Future covenants (runs w/ land and can be enforced be all subsequent purchasers): a-b) covenant for quiet enjoyment and covenant of warranty (seller will protect buyer against anyoen who shows up and claims title); c) Covenant of Further ASsurance (if seller forgot to do something to pass valid title, he'll do whatever is necessary)
  78. Damages for Breach of Covnenats for Title
    Damages are limited to prucahse price received by the warrantor plus incidental damages
  79. Estoppel of Deed
    If A Deeds Property to B that A does not own and then A gets it, B will get title, unless A transfers to BFP after getting title.
  80. Deed to Dead Person
    Deed to dead person = invalid, but can enforce contract of sale by either sller or buyer's estate and new deed given to buyer's estate
  81. Recording a Deed in TX
    If it is signed and the signature is notarized OR signed by grantor and at least two witnesses
  82. Notice Recording Statute = TX
    Protect subequent grantees who are BFPs. REcording irrelevant except to give notice
  83. Bona Fide Purchaser for Value
    Any consideration that is out of pocket something = value. Heir, donee, or divisee != BFP and cannot defeat claim of someone who has prior conveyance from O
  84. Shelter Rule
    Anyone can shelter under rights of BFP. Even if you actually know of the sale, if you take from someone who didn't, you're good. REcord notice = must be in chain of title. Inquiry notice: 1) where a reading of the deeds on record discloses an unrecorded transaction, purchaser needs to check it; 2) purchaser fails to xamine the land and an examination would have sown someone on the land udner a prior unrecorded right.
  85. Mortgages
    Given by debtor to creditor. Special situations treated as such: 1) absolute deed w/ separate promise of reconveyance situation; 2) sale/leaseback w/ option to repurchase
  86. Deed of Trust
    Given by debtor to a third party trustee who holds it until the loan is paid off. Can elect to have a court-ordered sale or sell on own.
  87. Installment Land Contract (Contract for Deed in TX)
    Debtor signs a contract promising to make payment and seller keeps title until loan is paid off
  88. Consequence of Mortgage or Deed of Trust
    1) Equity of Redemption (any time up to foreclosure sale, debtor can redeem, amount in arrears unless acceleration can only be waived for consideration after mortgage); Foreclosure must be by public auction sale; 3) If there are multiple mortgages: first in time, first in right, unless recording act change, or contract changes, or Purchase Money, or increased senior mortgage makes it junior)
  89. TX: Mechanics and Materialmans' Lien w/r/t Mortgage Priority
    Priority over mortgages and other liens in TX; 1) Affidavit must be filed w/ county clerk where property is located no later than 15 day of the 4th calendar month after day indebtedness accrues; 2) must list amount of claim, names of all relevant persons, general statement of work done and materials furnished; 3) affidavit must give legal description of the property sought to be charged w/ the lien; 4) copy of the affidavit must be sent by certified or registered mail to owner within 5 days of its filing. Subcontractors can use "fund trapping" to reach money held by owner for payment to general contractor and the MMLs relate back to commencement of construction or delivery of materials
  90. Protection to Holders of Junior Interests
    Have right to pay off any mortgage being foreclosed in order to keep junior itnerests from being wiped out; necessary parties to any foreclosure. If not made party, interests are not wiped out.
  91. Proceeds of Foreclosure Sale Order
    1) Pay costs of foreclosure, including expenses and attorneys' fees; 2) pay the mortgage that was foreclosed; 3) pay off junior interests in order; 4) anything left to mortgagor. If mortgage foreclosed and not enough money to pay off, let morgageee sue debtor for balance due. TX: deficiency judgments limtied to diff b/t debt and the fmv of the property
  92. TX protections on Contract of Deeds
    1) sellers have to give buyers detailed notice of a prospective forfeiture; 2) buyers have a statutory 30-day period to cure default
  93. Transfers of Security Interests
    1) Each party can freely transfer interest; mortgagor can transfer title and mortgage tags long and transferee takes subject to (mortgator continues to be personally liable on the note; unless grantee specifically asumes mortgage, grantee is not personally liable o it, but want it paid, because they can foreclose, but even if assumed, original mortgagor is still personally liabile unless modification of obligation b/t mortgagee and grantee). 2) mortgagee can freely transfer the note.
  94. Right of Support
    1) Lateral Support: Support from sides. Landowner has right to land supporting by adjoining landowners and strict laibility results if land is not supported. Liable for improvement too, if weigh of improvements didn't cause the collapse; 2) subjacent support: support of surface from the bottom (when holder of mineral rights removes minerals and the surface subsides. Rights goes to land and to improvements existing when mineral rights were severed from fee simple -- after severeance, only negligence claims)
  95. Riparian Rights
    Owner can use all the water needs for domestic purposes; If non-domestic, owner is limited to reasonable use. First in time takes. TX: permit regulatory system w/ prior appropriation being main factor and previous uses bf the new law can be continued
  96. Water under the Ground
    LO is entitled reasonable use. TX: English rule of capture, doesn't even have to be reasonable. DRINK IT UP, unless 1) mliacious, 2) waste, 3) can't cause subsidence of neighbor's land
  97. Surface Water
    1) Natural Flow -- courts allow reasonable steps to deal w/ flood water. Pipes or ditches are OK (This is TX); 2) Common enemy = can do anything whether reasonable or not
  98. TX Homestead
    1) Who?: Any family or single adult: 2) How? intent AND actually occupy or take such acts of prep; 3) kinds = rural and urban (not contiguous, but all used as homestead for rural, urban must be contiguous) 4) Debts that can force the sale of homestead = 1) taxes, 2) loans tied to property; 3) if homestead owner by husband and wife, neither can sell or encumber without signature of the other!