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Fee simple absolute
- to X.
- Default assumption for conveyance
- Transfer of all property rights to the other party without condition or limitation.
- A grant of a present estate measured by the life of a named individual
- Magic words are "for life."
- May transfer estate
- May not be devised or inherited.
Fee simple determinable
- Fee simple transfer
- May be terminated by the occurrence of a named event
- "While," "during," until are magic words.
- Automatic reversion to the grantor.
Fee simple subject to condition subsequent
- Fee simple transfer which may be terminated by the occurrence of a named event
- Grantor or heirs must affirmatively exercise the right over the interest for the right to vest.
- Conditional language + "may reenter," "may retake."
Fee simple subject to executory interest
- A transfer in fee simple which may be terminated upon the occurrence of a named event.
- Reversionary interest goes to a named third party.
Possibility of reverter
- Interest held by grantor following fee simple determinable; interest vests automatically upon named occurrence.
- MD: reverters and rights of entry limited to 30 years.
- MD: claim subject to 7 year SOL.
- MD: right of entry can be transferred inter vivos.
Right of entry
Interest held by a grantor following fee simple subject to condition subsequent; interest must be exercised by the grantor upon the named occurrence.
- Interest held by a third party
- Interest vests automatically upon named occurrence.
- Subject to RAP
An interest which follows the conclusion of a life estate.
- (1) given to an ascertained grantee and
- (2) not subject to a condition precedent.
Is any remainder which has not yet vested.
Vested subject to open when (1) remainder is vested as to a class of people and (2) the full class membership is unknown. Subject to RAP.
Doctrine of worthier title
Presumption in reversion to grantor.
Rule in Shelleys Case
- No remainder in the grantees heirs, and the grant is merged into fee simple absolute.
- MD has rejected.
Future interest holder can prevent the present interest holder from using the estate in a way that harms the value of the estate to the future interest holder.
Waste caused by voluntary conduction which creates a decrease in value.
Waste caused by neglect to the property, which causes a decrease in value.
A change to the use of the property which increases the value of the property.
Rule Against Perpetuities (RAP)
- Limit on the ability of a grantor to tie up properly endlessly.
- When: measured from time of grantor/testator's death
- What: only contingent remainders and executory interests
- Who: first relevant life of original grantee, then validating life of the subsequent grantee.
- If no validating life, then interest is struck for violating RAP.
Ownership of real property by two or more persons simultaneously.
Tenancy in common
- Default concurrent interest
- Separate but undivided interest in the property
- Free transfer of property in life or death
What do JT/TBTE become when unities are destroyed?
Tenancy in common.
A special kind of joint ownership which requires (1) separate but undivided ownership and (2) four unities of interest. Creates a right of survivorship.
Right of survivorship
Upon death, the property interest passes automatically to co-owners.
Unities of interest (PITT)
- Possession - equal right to possess/control
- Interest - equal share of same interest in the type of interest.
- Time - must occur at the same time
- Title - must be granted via same instrument of title.
- MD: general intent requirement requiring express language of the joint tenancy.
Severance of unities
When severed, the joint tenancy is terminated and the joint ownership is turned into a tenancy in common.
If three or more joint tenants and one party severs
The other parties remain joint tenants with one another while maintaining a tenancy in common with the severing party.
Lien theory and Unities
- the mortgage is a lien which does not destroy the unity of title.
Title theory and Unities
- the mortgage severs the unity of title
- MD is a Title Theory State.
Leases and Unities
- Split in authority.
- Some, like MD, hold that a lease in a JT is severance.
- Others hold that the lease temporarily suspends the JT.
MD: option contracts and unities
Do not sever the Joint Tenancy until the option is exercised.
MD: slayer statute.
When one joint tenant kills another, the killer must hold the victims property in constructive trust for the decedents family/heirs.
Tenancy by the entirety
- A JT between married spouses.
- Five unities - JT + marriage.
- Maintains the right of survivorship,
- Spouses cannot alienate or encumber their shares without the consent of the other spouse.
- Severance of unity of marriage is a divorce.
- MD: Separation does not sever TBTE.
Joint ownership rights to possess property
- Each co-tenant has the right to possess all of the property, regardless of share.
- Co-tenants can have an agreement to the contrary.
- One co-tenant denies another co-tenant access to the property or to equal use of the property.
- The aggrieved co-tenant can seek an injunction and recover damages.
Rent collected on the property
Split based upon ownership interests of each co-tenant after operating expenses are deducted.
Division of operating expenses
- Based upon the ownership interests of the co-tenants.
- One co-tenant can collection contribution from other co-tenants for their fair share.
Repairs and improvements
- Not divided between co-tenants
- A co-tenant who makes the repairs can get credit in a partition action.
- Equitable remedy available to all co-owners when the parties no longer wish to own the property.
- Unilateral right except for TBTE
Effect of partition
The courts will divide the ownership interest.
Partition in kind
Splitting the property between owners
Partition by sale
Selling the property and distributing the proceeds. Disfavored, but permitted if (1) impracticable or (2) unfair to the parties.
Agreement not to partition
Enforceable when (1) clear and (2) subject to a reasonable time limitation.
Tenancy for years
- (1) created by agreement between landlord and tenant and (2) is measured by a fixed, ascertainable amount of time.
- Terminated automatically at the end of lease without notice.
- MD: one year lease presumed
- MD: written lease required for landlord who offers five units or more for residential lease.
- MD: three months notice to be released.
Landlord may take lease prior to end when:
(1) tenant surrenders or (2) lease is materially breached.
- Repetitive and ongoing for a set period of time
- Will renew automatically at the end of each period
- Unless one party provides notice
When must a tenant/landlord provide notice of termination of periodic tenancy
effective on last day of the period.
Tenancy at will
- An express or implied agreement that the tenant will occupy the land for as long as the parties agree.
- Terminated at any time, for any reason and without notice.
- Death of either party will terminate.
If landlord is not given the right to terminate at will in the agreement
Only the tenant can terminate.
If only the landlord is given the right to terminate
The tenant keeps the right by implication.
Tenancy at sufferance
- A tenant holds over after the lease has ended.
- Temporary residency which exists before the landlord evicts the tenant or re-rents the property to the tenant.
- Because the tenant no longer has the right to remain on the property, this is adverse use of land.
Tenant duties to the landlord : pay rent
- Except when
- (1) premises are destroyed and the tenant did not cause the damage;
- (2) Landlord evicts the tenant; and
- (3) Landlord materially breaches the lease.
- MD: if term less than seven years, and tenant did not cause the damage.
Military activation: MD
Only one month after proper notice that a member of the armed forces has been activated for more than three months.
Medical reasons: MD
Only two months after proper notice when tenant is forced to leave for medical reasons.
Implied covenant of quiet enjoyment
A tenant can withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for their intended purposes, and the tenant is constructively evicted.
- (1) premises were unusable for their intended purposes,
- (2) the tenant notifies the landlord of the problem,
- (3) the landlord does not correct the problem and
- (4) the tenant vacates the premises after a reasonable amount of time has passed.
Implied warranty of habitability
- Only residential
- Landlord has an obligation to maintain the property such that it is suitable for residential use
- Cannot be waived
Failure to comply with housing codes
Breach of implied warranty of habitability
MD: Duty to return leased premises in good repair.
Not implicated if building was destroyed except for fault.
- If a tenant chooses to hold rent, the tenant must (1) notify the landlord and (2) give the landlord a reasonable opportunity to correct the problem.
- No requirement of vacating.
- MD: material breach allows the tenant to establish a rent escrow, but tenant still must pay rent.
- MD: Failure to pay rent allows landlord to evict, seek damages for unpaid rent.
- MD: landlords can use security deposit to pay for damages and cover costs, but they must itemize list of repairs.
- MD: security deposit limited to two months rent, can only be used upon itemization of damages, and any unused portion must be returned to a tenant who demands it.
- MD: abuse of security deposit, landlord is subject to treble damages.
Duty to Avoid waste
- A tenant has a duty not commit affirmative or permissible waste.
- Ameliorative waste is permissible, but approval is often required in the lease.
Duty to repair
- In residential leases, landlord has duty of repair.
- Tenant must notify the landlord.
- Landlord is not responsible for repairs caused by tenant's actions.
Landlord's Duty to Mitigate Damages - Majority
- Landlord must make reasonable efforts to re-rent the property.
- Failure to make diligent efforts means that tenant is relieved from obligation to pay rent. Landlord does not need to accept an unacceptable replacement tenant. MD follows the majority.
Landlord's Duty to Mitigate Damages - Minority
Landlord has no duty to mitigate common in commercial leases.
- Landlord can(1) evict the tenant or (2) continue relationship by accepting rent.
- Amount of rent is due is that of the old lease, unless tenant informed of higher rent prior to expiration of the lease.
MD: ejectment of tenant
- Requires written notice to court seeking repossession, amount due and court fees.
- If holdover tenant has not moved out in time ordered, landlord can seek warrant of restitution.
- Landlord can move tenants personal belongings in the presence of a sheriff.
- Tenant can pay rent due to avoid eviction.
MD: notice required to evict - Tenancy for years
MD: notice required to evict - Periodic tenancy
MD: notice required to evict - Farm lease
MD: notice required to evict - Month-to-month
MD: notice required to evict - Tenancy at will
Duty to Deliver Possession
- Majority - Landlord must deliver actual possession of leasehold (physical possession of property)
- Minority - Landlord must deliver legal possession
MD: Duty to deliver possession.
- Must deliver actual possession.
- Breach, then tenant does not need to pay rent, may cancel contract, is owed return of deposits, and may sue for damages.
Right to quiet enjoyment
Violated when landlord or someone related to the landlord renders the premises unsuitable for the intended purpose.
Right to habitability
Landlord responsibility in residential leases
Common areas and other tenants
Landlord must also control common areas and guard against nuisance of other tenants.
Off-premises actions of third parties
Landlord does not need to control
Retaliation through eviction
- MD: grounds for tenant not to pay rent, as landlord is liable.
- MD: in Baltimore City, this cannot be waived.
Tenant's Duty of Care
Duty of care to invitees, licensees and foreseeable trespassers.
Landlord's duty of care
- Warn of latent or hidden defects for which the tenant has not been warned.
- Faulty repairs completed negligently
- Injuries in the common areas of the property
- Full remainder of the lease.
- Landlord can collect from original or subsequent tenant.
- Partial remainder of the lease
- Landlord can collect from the original tenant
- Original tenant can collect from the subtenant.
Fair Housing Act
- Restricts landlords ability to choose tenants.
- Focus: multi-family residential housing
- Protected classes: race, color, religion, national origin, sex, disability, familial status (children under 18).
- Prohibitions include (1) refusal to rent, (2) different rents, (3) false denial of availability, (4) providing different services.
- A person in unlawful possession of property may acquire good title to that property.
- (1) continuous possession for statutory period
- (2) which is open and notorious,
- (3) hostile and
- (4) exclusive.
Continuous (adverse possession)
- Starts when possessor begins to use property
- Possessor is a trespassor until the end of the statutory period.
- Ends when possessor sues for rights.
- Use must be consistent with the type of property, and the court may allow for tacking of different possessors uses when there is justification (privity of K, bequest).
- May be defeated due to disability (insanity, infancy, incarceration).
- MD: 20 year statutory requirement.
Open and notorious (adverse possession)
Possession much be such that it would put a reasonable true owner on notice of adverse use.
Adverse to the true ownership interest.
Exclusive (adverse possession)
- Possessor cannot share possession with true owner.
- Multiple possessors can adversely possess as tenants in common.
- Easement is a right held by a person to make use of anothers land.
- In writing
- Satisfy SOF
- Subject to recording statutes.
Burdened land that easement is on
Land benefited by easement
In rem easement which the benefit is in the use of the land.
Easement in gross
In personam easement which benefit the holder personally.
Easement by necessity
- Property is virtually useless without access to the highway.
- (1) dominant and subservient estates were owned by one person,
- (2) there was a later severance, and
- (3) one of the properties became virtually useless without an easement.
Easement by implication
- (1) common ownership
- (2) with an obvious prior use
- (3) which is continuous and apparent at the time of severance, and
- (4) use reasonably necessary to the dominant estates use and enjoyment.
- One property owners use of anothers property which is (1) continuous for the statutory period, (2) open and notorious and (3) hostile.
- Need not be exclusive.
- MD: must be 20 years.
Easement by estoppel
- (1) promise of permissive use of the land
- (2) relied upon another to his detriment and
- (3) promise is withdrawn.
Duty to Maintain Easement
Held by owner of easement.
Release of easement
When in writing, the owner can release easement
Merger of easement
- When the owner of one property obtains the other property, the easement is subsumed.
- Must be identical property interest.
Abandonment of easement
- Owner acts in an affirmative way that shows clear intent to relinquish the right.
- (1) non-use + (2) act demonstrating the intent to abandon.
Prescription - loss of easement
If easement holder fails to protect against a trespasser for the statutory period of time.
Estoppel of Abandonment
- (1) Servient owner changes his position to his detriment
- (2) in reliance on statements/conduct of the easement holder re abandonment.
End of necessity
will end an easement by necessity
right to enter and remove
revocable permission to use anothers land
- Five requirements for an agreement to run with the land.
- (1) writing
- (2) intent
- (3) touch and concern the land - benefit or burden affects both promisor and promisee.
- (4) notice - actual or constructive
- (5) privity of contract.
- Must satisfy SOF
- Subject to recording acts.
- Remedy is damages.
- Privity of estate that is found in the same instrument.
- Burdens and benefits will run.
Strict vertical privity
When the successor takes the original party's entire interest. Burdens and benefits will run.
Relaxed vertical privity
- Successor takes an interest which is carved out of the original partys estate.
- Only benefits run.
- An agreement to bind land
- (1) in writing
- (2) intended to run with the land
- (3) touch and concern the land
- (4) successor has notice (actual, record or inquiry). No privity required
- Remedy is injunction.
Implied Reciprocal Servitude
- Common interest communities
- (1) intent to create a covenant,
- (2) reciprocal,
- (3) a negative restriction,
- (4) successor is on notice, and
- (5) a common plan or scheme.
- Terminated just like easements.
Changed Circumstances Doctrine
- Test: does property subject to restriction retain benefit from the restriction?
- Terminated when the restriction no longer makes sense due to drastic changes in the surrounding area.
Transfer of property via will.
Real property can be transferred by devise based upon the testators intent.
Statutory inheritance in absence of a will.
Property to government when no heirs.
Devise of property which can be distinguished from the estate.
A devise of personal property satisfied from general assets
A general devise from a specific source
The balance of the estate after all the general and specific gifts have been made.
- Failure of devise because it is no longer in the testators estate at the time of his death
- Due to sale or destruction
- Failure of devise because the named beneficiary dies before the testator and no alternate beneficiary is named.
- This gift becomes part of the residuary.
A gift will not lapse if (1) lapsed gift was made to a party specified in the statute, such as a close family member, and (2) the deceased beneficiary is survived by issue.
Restraints Upon Alienation
- Absolute restraints on alienation are void.
- Partial restraint is valid if for a limited time and when reasonable.
- Restriction upon use of property is generally permissible.
- Landowners who border a waterway own rights to the waterway.
- Riparians share the right to reasonable use of the water (like a TIC).
- MD follows riparian.
Surface owner may make reasonable use of groundwater.
MD: natural flow theory
- You should not make changes to the natural flow that causes unnecessary harm to other.
- Allows reasonable use of water, but may be liable for unreasonable uses.
- Domestic > commercial.
Lateral support rights
Neighboring landowner cannot excavate so as to cause a cave-in on a neighbors land.
Negligence std for cave in
Neighbor's surface building DID contribute to cave in.
Strict liability for cave in
Neighbors surface buildings DID NOT contribute to cave in.
- Surface owners have a right to expect that the owner of underground rights will not destroy their buildings.
- Strict liability for buildings that existed at time of conveyance
- Negligence for buildings built subsequently.
Valid use of police power
- Permission contrary to the zoning may be granted if ordinance imposes a unique hardship.
- Cannot be contrary to public welfare.
- Non-conforming use which lawfully existed before ordinance permit continued use but prohibit its expansion.
- Doctrine of vested rights allows a good faith developer of land to finish a project which began before zoning ordinance.
(1) private property (2) taken for (3) public use (4) with just compensation.
Substantial and unreasonable interference with another individuals use or enjoyment of his property.
- Unreasonable interference with health, safety, property rights of the community.
- To bring private suit, party must show that she suffered a different kind of harm than the rest of the community.
- Remedy: damages or injunction when (1) inadequate or (2) unavailable.