Property Law

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Author:
Ellla
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304727
Filename:
Property Law
Updated:
2015-07-04 00:35:22
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cal bar exam
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Property definitions
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  1. Ownership
    A person has title to land or other property
  2. Possession
    The right to dominion and control over property
  3. Actual Possession
    The immediate and direct physical control over property
  4. Constructive Possession
    Constructive possession is a legal fiction to recognize possession where there is not any direct control of or actual presence upon the property, but is possession with the knowledge that both the ability to and the intent to exercise dominion and control over the property exists.
  5. Trespass
    Trespass is an action instituted to recover damages for any unlawful injury to the plaintiff's person, property or rights, directly resulting from immediate force or violence
  6. Trespass to Chattels
    Trespass to chattels is an action instituted to recover damages due to anintentional or negligent act which directly results in an injury to a chattel by carrying away, injuring, destroying or depriving the owner of possession
  7. Trespass to Land
    an action instituted to recover damages due to an intentional or negligent act which directly results in the interference with the possession of land
  8. Trespass on the Case
    Trespass on the case is an action to recover damages which occur as an indirect result of the negligent acts of another which are not covered by a trespass action to land or chattels.
  9. Trover
    an action to recover damages for a wrongful conversion of personal property or to recover actual possession
  10. Replevin
    An action to recover the possession of a thing taken rather than its value
  11. Ejectment
    An action to recover the possession of land brought by the one claiming the right to possession
  12. Bailment
    the delivery of personal property to another for some purpose under an expressed or implied contract
  13. Adverse Possession
    allows one who has wrongfully entered a property to obtain possession of that property when there has been:

    • Actual possession  which is 
    • Open and Notorious and the 
    • Possession is Hostile
    • Continuously for the statutory period
  14. Actual Possession
    The claimant must actually have exclusive use, he must physically occupy the property and the owner must be excluded
  15. Open, Notorious and Visible possession
    the claimant must possess and use the property in a way that a typical owner of similar property would use the property.  It must be sufficiently open to the true owner on notice of the trespass by the adverse possessor
  16. Hostile Possession
    Possession must be without the owners consent. A co-tenant must ouster other co-tenants and refuse to let them on the land or it is with permission
  17. Continuous use for the given statutory period
    • At common law the statutory period is 20 years.  In CA is it 5 but they have to pay the property tax. 
    • Continuous possession means the owner may not reenter to regain possession during the statutory time. intermittent use is allowed if the property is of the type that is only used seasonally
  18. Tacking
    One adverse possessor may tack their time onto another adverse possessor's time if they are in privity - i.e landlord-tenant, or left in a will
  19. Effect of Adverse Possession
    Does not convey marketable title, however can sue to perfect title and make it marketable by an action to quiet title
  20. Color of Title
    the possession of property under a claim of ownership based on a written instrument which purports to convey title but fails to do so because it is invalid or defective.
  21. Estates
    a possessory interest in land which is or may become possessory. Estates are measured in duration by some period of time
  22. Land Sale contract
    A contract for a conveyance of an interest in real estate typically governs the agreement until the time of closing at which time the deed becomes the operative document
  23. Statute of Frauds Requirements
    A sale of land falls under the requirements of the Statute of Frauds and thus must be in writing.   The following items are required:

    • Contract must be in writing
    • Name the parties
    • signed by the party to be bound
    • sufficiently describes the land and 
    • state some consideration
  24. Exception to SoF
    Part performance is an exception to the SoF. Must have the following:

    • Possession plus payment by the buyer
    • Substantial improvements are made by buyer
    • Conveyance made by the seller
  25. Present Estates
    Interests which give a present right to possession
  26. Words of Purchase
    Words in an instrument which indicate the grantees or persons who are to take the estate.
  27. Words of Limitation
    Words in an instrument which indicate the type of estate the grantee takes.
  28. Future Estates
    Interests in land which may or will entitle the owner to possession of an estate in the future
  29. Fee Simple Absolute
    The largest estate permitted by law. The holder has full possessory rights now and in the future. This estate is unlimited as to duration, disposition and descendability.
  30. Defeasible Fee
    Present interests which are of a potentially infinite duration which can be terminated by the happening of a specified event (condition).
  31. Fee Simple Determinable
    a type of defeasible fee which automatically terminates on the happening of a stated event and goes back to the grantor (possibility of reverter).
  32. Possibility of Reverter
    the future interest left in the grantor upon conveying an estate conditioned upon the non-occurrence of a stated event or act. Upon the happening of the condition the estate will automatically revert back to the grantor.
  33. Fee Simple Subject to a Condition Subsequent
    a defeasible fee which is created when the grantor retains the power to terminate the estate of the grantee upon the happening of a specified event.
  34. Right of Re-Entry (or Power of Termination)
    a future interest retained by the grantor giving him the right to terminate the grantee's estate upon the happening of a specified event
  35. Fee Simple Subject to an Executory Limitation
    is a defeasible fee that terminates upon the happening of a specified event and vests title in a third party.
  36. Fee Tail
    a present possessory interest which limits inheritance to lineal descendants of the grantee. If there are no lineal descendants the property reverts back to the grantor.
  37. Life Estate
    An estate who's duration is measured either by the life of the grantee (life estate) or the life of someone else (per autre vie).
  38. Doctrine of Waste
    imposes a duty on a present possessor to not do anything which would injure the interests of the person(s) holding the future interest.
  39. Voluntary Waste
    type of waste which occurs from an intentional act
  40. Permissive Waste
    is the type of waste which occurs when the property is allowed to fall into disrepair or the failure to take reasonable measures to protect the land from the elements
  41. Reversion
    the future interest left in the grantor after conveying a lesser estate than what he has. It will become possessory after the natural termination of the preceding estate
  42. Vested Interests
    are those interests which the owner and the event upon which it will become possessory are certain, but the time of actual possession is unknown
  43. Remainders
    The remnants of an estate in land which is a future interest created in someone other than the grantor which can become a present possessory estate on the natural expiration of prior estates, which were expressly by the same conveyance
  44. Vested Remainder Subject to Complete Divestment
    a vested remainder where the interest is in an existing ascertained person and subject to a condition subsequent
  45. Vested Remainder Subject to Partial Divestment (or Subject to Open)
    A vested remainder where one or more remaindermen are in existence and ascertained, but the amount of their estates is subject to diminution due to the possibility of an increase to the number of people who are to take the property.
  46. Condition Subsequent
    A condition which occurs after the estate has vested which, upon its happening, the remainder becomes possessory
  47. Condition Precedent
    An expressed condition other than the termination of the preceding estate which must occur before the remainder becomes possessory.
  48. Contingent Remainder
    a remainder which is created in favor of an unborn or unascertained person or otherwise subject to a condition precedent
  49. Executory Interest
    a future interest created in a third person which to become possessory must divest or cut short the prior estate (shifting interest) or spring out of the grantor at a future date (springing interest).
  50. Doctrine of Merger
    the merging of a present interest into a future interest when the same person obtains immediate successive estates in the same land
  51. Rule in Shelley's Case
    the rule against remainder in the grantee's heirs.  The rule states if one instrument creates a present possessory interest in a person and a remainder in his heirs, the remainder in the heirs will not be recognized and the person receiving the present interest will receive both estates.
  52. Destructibility of Contingent Remainders
    The doctrine which states a contingent remainder in land is destroyed if it does not vest at or before the termination of the preceding estate
  53. Restraints on Alienation
    Provisions in deeds, wills or mortgages that effectively restrain the grantee from conveying the estate he has received. Restraints are either total or partial in form and can be imposed in different ways
  54. Total Restraint
    Restraints which seek to preclude any transfer
  55. Partial Restraint
    limit who may be a transferee, set a time within which the alienation is restricted, or designate the manner in which the alienation is limited.
  56. Disabling Restraint
    one way a restraint can be imposed. It withholds from grantee the power of transferring his interest
  57. Forfeiture Restraint
    provides if grantee attempts to transfer his interest it is forfeited to another person.
  58. Promissory Restraint
    when the grantee promises not to transfer his interest
  59. Rule Against Perpetuities
    an interest is void if there is any possibility that it may vest more than twenty-one years after some life in being at the creation of the interest.
  60. Concurrent Estates
    estates in land which are held at the same time by two or more persons, each having the right to the enjoyment and possession of the land at the same time
  61. Joint Tenancy
    a form of concurrent ownership wherein each co-tenant owns an undivided share of property and the surviving co-tenant takes the deceased's share free of his interest
  62. Tenancy in Common
    a concurrent estate with no right of survivorship. Each owner has a distinct, proportionate, undivided interest in property which is freely alienable by inter vivos and testamentary transfer.
  63. Tenancy by the Entireties
    a concurrent estate which can only be created between husband and wife with right of survivorship. It cannot be severed without the consent of both parties.
  64. Partition
    the remedy available to a joint tenant or tenant in common to have the co-tenancy terminated and divide the common property
  65. Leasehold
    an estate in land. It is the property relationship between the landlord and the tenant. The tenant has a present possessory interest and the landlord has a future interest (reversion).
  66. Tenancy for years
    is a type of leasehold estate which is to continue for a fixed period of time. It may be for more or less than a year and will expire at the end of the stated period without either party giving notice.
  67. Periodic Tenancy
    A type of leasehold estate which continues year to year or for successive fractions of a year until terminated through proper notice by either party. The beginning date must be certain but the termination date is always uncertain until notice is given.
  68. Tenancy at Will
    a type of leasehold estate which is terminable at the will of either the landlord or tenant.
  69. Tenancy at Sufferance (or Holdover Tenant)
    this arises when a tenant wrongfully remains in possession after the expiration of a lawful tenancy.
  70. Covenant of Quiet Enjoyment
    a covenant which if it is not expressed it will be implied in every lease that neither the landlord nor someone with paramount title will interfere with the tenant's quiet enjoyment and possession. A breach will occur by one of three ways:

    • 1. if there is an actual eviction of the tenant which occurs when the tenant is excluded from the entire leased premises; or
    • 2. if there is a partial actual eviction of the tenant which occurs if the tenant is evicted from any portion of the leased premises; or
    • 3. if there is a constructive eviction which occurs as a result of an interference with the tenant's possession. The interference must be substantial.
  71. Implied Warranty of Habitability
    if not expressed, this will be implied in all leases of urban dwellings assuring that the leased premises are fit for human habitation and will remain so.
  72. Retaliatory Eviction
    A tenant who claims violation of Housing Code and reports violations to the authorities, and withholds rent, cannot be evicted as a retaliation for reporting
  73. Constructive Eviction
    Tenant may terminate lease, leave premises and not pay further rent when, through the fault of the landlord, there has been a substantial interference with the use and enjoyment of the tenant's leased premises
  74. Surrender
    a mutual agreement between the landlord and the tenant which in effect terminates the lease
  75. Abandonment
    where the tenant abandons the premises before the expiration of the term of his tenancy.
  76. Assignment
    a complete transfer of all of the tenant's interests and obligations to another (assignee).
  77. Sublease
    when the tenant transfers a part of his estate to another. The person who sublets is not liable for any of the tenant's obligations under the lease unless he expressly assumes them.
  78. Nonpossessory Interests in Land
    This creates a right to use land possessed by someone else.
  79. Benefit
    A benefit of a nonpossessory interest is represented by the right to make a use of land possessed by someone else
  80. Burden
    related to a nonpossessory interest, this is the limitation on the possessor's right to use his own land due to the granting of a benefit to another
  81. Appurtenant
    a term to describe the benefit. A benefit is appurtenant if it attaches to and benefits a piece of land. One consequence of appurtenance is that the benefit passes with the transfer of the benefitted land whether or not the benefit is mentioned in the conveyance.
  82. In Gross
    a term used to describe the benefit. A benefit is in gross if it is intended to benefit its holder personally rather than in connection with any land the holder owns. If the  benefit is in gross, it will not pass with the transfer of land
  83. Servient Estate
    the parcel of land that bears the burden of a nonpossessory interest.
  84. Dominant Estate
    is the parcel of land that enjoys the benefit of a nonpossessory interest. There will be a dominant estate only if the benefit of the nonpossessory interest is appurtenant. If the benefit is in gross, an individual rather than a parcel of land will enjoy the benefit.
  85. Easement
    a grant of a nonpossessory interest in land. It entitles the owner of the easement to a limited use of enjoyment of land in possession of another
  86. Affirmative Easement
    This gives the holder of the benefit the right to go onto and do acts upon the servient estate.
  87. Negative Easement
    This prevents the owner of the servient estate from making a use of the servient estate that would otherwise be lawful
  88. Easement by Necessity
    an easement created by implication. An easement will be implied if the grantor conveys a tract of land with no means of access except over the other portion of the tract.
  89. Easement by Prescription
    is the creation of an easement by an adverse user. It is usually created by analogy to adverse possession by requiring the same manner and use of land for the statute of limitations.
  90. License
    This grants the right to go upon land of another. It is not an interest in land but a privilege, revocable at the will of the licensor
  91. Profits
    a nonpossessory interest which entitles the holder of the benefit to take some resource from the servient estate
  92. Exclusive Profits
    are the granting of a sole right by the owner to take resources from his land. Grantee is allowed to take even to the exclusion of the owner of the servient estate.
  93. Nonexclusive Profits
    the granting of similar rights to others for the removal of resources from the servient estate.
  94. Surcharge Doctrine
    if the owner of a profit unfairly increases his own use so the increased use could not have been intended by the original conveyance, then the servient estate is surcharged and the profit is thereby extinguished
  95. Covenants
    nonpossessory interests in land. They are promises to do or not to do a certain thing respecting the use of the land. Must have the following

    • Carried by deed
    • In writing
    • Touch and concern the land 
    • Intent for covenant to run with the land
    • Privity of Estate - successors in interest can enforce or be obliged to perform duties created
    • Horizontal Privity - Original promisor and promisee 
    • Veritical Privity - original party and assignee
  96. Affirmative Covenant
    a covenant which promises that the holder of the servient estate will do something.
  97. Negative Covenant
    this promises that the holder of the servient estate will not do something he is normally entitled to do
  98. Real Covenants
    covenants that run with the land at law. They are treated as if they were physically attached to the land and thus enforceable by or against a successor in interest to one of the original parties of the covenant
  99. Equitable Servitude
    a covenant, whether running with the land or not, that equity will enforce against assignees of the burdened and who have notice of the covenant
  100. Equitable Servitude  - Interest in Land
    • Provides equitable enforcement against assignees with notice
    • Owner is not required to prove damage will result from breach of contract
  101. Equitable Servitude - Restriction on Use of Land
    Notice - take property with notice of restrictions 

    • Actual  - knowledge of covenant in in prior deed
    • Record - chain of title, constructive notice
    • Inquiry - neighborhood appears to conform to common restrictions

    In Writing - exception - intent that servitude exists implied from common building scheme
  102. Equitable Servitude  - Remedy
    The only remedy is an injunction or specific performance
  103. Merger
    one method of terminating a covenant or servitude. If the title to the land benefitted and the title to the land burdened come into the hands of one person, they will merge into a fee simple and cease to exist
  104. Abandonment
    Abandonment is an equitable defense to enforcement of an equitable servitude claim. An equitable servitude will be extinguished if:

    1. a subdivider sells a few lots with restrictions, then sells lots unrestricted; or

    2. where owners in a subdivision have with general consent violated restrictions so that the purpose of the restrictions can no longer be carried out.
  105. Acquiescence
    Acquiescence is an equitable defense to enforcement of an equitable servitude claim. If the benefitted party did not bring suit against other persons who violated similar restrictions of which he has the benefit, he will be held to have acquiesced in this particular violation too.
  106. Estoppel
    Estoppel is an equitable defense to the enforcement of an equitable servitude claim. The benefitted party may be estopped to enforce the covenant because of acts which would lead a reasonable person to believe that the covenant would not be enforced and which were relied upon by that person.
  107. Nuisance
    Nuisance is anything which annoys or disturbs the free use of one's property or renders its ordinary use or physical occupation uncomfortable
  108. Private Nuisance
    A private nuisance is conduct which causes a substantial interference with the private use of land and which is either intentional and unreasonable or unintentional but negligent.
  109. Zoning
    Zoning is the division of a jurisdiction into districts in which certain uses and developments are permitted or prohibited. It is based upon the state's police power and passed to the cities and counties through enabling acts
  110. Police Power
    Police power is the power of the government to regulate conduct in furtherance of the public health, safety and general welfare
  111. Density Controls
    Density controls are provisions in a zoning ordinance which control the density of people using the land. Such provisions include height limitations, yard setbacks and lot size requirements.
  112. Conditional Use
    Conditional use is a provision in a zoning ordinance allowing an otherwise prohibited use if specified conditions are met
  113. Variance
    A variance may be granted usually by a Board of Adjustments when enforcement of the ordinance would result in unnecessary hardship due to unique circumstances of the landowner
  114. Use Variance
    Use variance is a type of variance that permits the owner to carry on a use otherwise prohibited in the district
  115. Contract Zoning
    Contract zoning is a zoning device developed to cope with the rigidity of zoning ordinances and allow for the change of land uses by contracting with a developer to rezone the land if the developer agrees to develop the land in a particular way
  116. Floating Zones
    zoning devices developed to cope with the rigidity of zoning ordinances and allow for a change of land uses. A floating zone is one specified in the ordinance together with the uses permitted therein but there are no land assignments.
  117. Part Performance
    an equitable doctrine that may cause a court of equity to specifically enforce an oral contract for the sale of an interest in land
  118. Marketable Title
    title reasonably free from doubt, i.e., a title which a reasonably prudent buyer would be willing to accept
  119. Equitable Conversion
    Once the land sale contract is signed, the buyer, in equity, is the owner of the land and the seller has a security interest for payment of the purchase price
  120. Deed
    writing used to transfer an interest in land. The usual requirements include:

    • 1. grantor's signature;
    • 2. words indicating a present intent to transfer; and
    • 3. a description of land and parties
  121. Delivery
    the grantor's intent to convey an interest in land. It is satisfied by words or conduct evidencing the grantor's intention that the deed have some present operative effect, i.e., that title pass immediately and irrevocably even though the right to possession may be postponed until some future time
  122. Conditional Delivery
    an effective delivery only upon the occurrence of a condition. There are two deliveries involved in this situation; the first delivery is to a neutral third party and the second delivery is to the grantee upon the happening of the specified condition.
  123. Relation Back Doctrine
    This is used in an escrow situation (use of a third party for delivery). Title will not normally pass to the grantee until the performance of the named conditions. However, under certain circumstances, the title of the grantee will relate back to the time of the deposit of the deed in escrow. Generally the doctrine is applied when:

    • 1. the grantor dies, to avoid the rule that title must pass before death if instrument is not a will;
    • 2. the grantor becomes incompetent, to avoid the rule that an incompetent cannot convey title; and
    • 3. a creditor of the grantor attaches the grantors title.
  124. Covenants for Title
    These are assurances regarding the title conveyed which determine the seller's liability if a defect in the title should arise
  125. General Warrantee Deed
    warrants against all defects in title and contains the six covenants for tile. Three are present and three are future covenants.
  126. Present Covenants of General warranty deed
    These are breached at teh time of the sale (when the deed is delivered), if breached at all:

    • Seisin - grantor warrants that he owns what he purports to own.
    • Right to convey - grantor warrants he has the power to make the conveyance
    • Against encumbrances - Grantors warrants there are no mortgages, liens, easements or use restrictions on the land
  127. Future Covenants - General Warranty Deed
    These run with the land, are continuous, and are breached, if ever, at the time the grantee is disturbed in possession

    • Waranty of Title - Grantor promises to defend should there be any lawful claims of title asserted by others
    • Quiet Enjoyment - grantor promises grantee will not be disturbed in possession by any third parties' lawful claims of title
    • Further assurances - grantor will do whatever future acts are reasonably necessary to perfect title
  128. Bona Fide Purchaser
    one who acquires apparent legal title to property in good faith for a valuable consideration and without notice of a claim or interest of a third person under the common source of title.
  129. Estoppel by Deed
    where a grantor purports to convey an estate in property which he does not then own, but later acquires the title. His subsequently acquired title works to the benefit of the grantee under his deed
  130. Special Warranty Deed
    a type of deed used to convey property interests other than leaseholds. This deed will normally contain all six of the usual covenants. However, the grantor only guarantees that he has done nothing to make the title defective.
  131. Quitclaim Deed
    a type of deed used to convey property interests other than leaseholds. A quitclaim deed warrants nothing. The grantor merely transfers whatever right, title or interest he has (if any) at the time the conveyance is made.
  132. First in Time, First in Right
    the common law rule which gave priority to the grantee who was prior in time where there was more that one conveyance made.
  133. Recording Acts
    protect subsequent bona fide purchasers by requiring them to record their interests, which gives notice to the world that title to the property has already been conveyed. There are three types of recording acts:

    1. race acts, which state as between successive grantees of the same land, priority is determined by who records first;

    2. notice acts which state a subsequent bona fide purchaser prevails over a prior grantee who has failed to record if there was not any notice at the time of conveyance; and

    3. race-notice acts which state that a bona fide purchaser must record first and take without notice of any prior conveyance.
  134. Notice
    Notice requires that a bona fide purchaser, to qualify for protection under the recording acts, cannot have any kind of notice of the prior conveyance at the time of the conveyance.
  135. Constructive Notice
    - is where the grantee actually knows of the prior conveyance
  136. Inquiry Notice
    Inquiry notice imposes a duty on the grantee to make reasonable inquiries under certain circumstances. He will be charged with notice of whatever a reasonable inquiry would have revealed.
  137. Wild Deed
    a recorded deed which is not recorded within the chain of title.

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