Property Law Final

• Bundle of Sticks


  • Right to transfer
  • Right to use
  • Right to exclude
  • Right to destroy
• Rule of capture


  Exercising complete dominion and control
• Rule of finders


  • Lost property
  • Mislaid property
  • Abandoned property
  • Treasure trove
• Lost property


  • Requires previous owner, unintentionally or involuntarily parts with object, finder has possessory rights against all others except original owner or prior possessors, if found in public area weighs in favor of the finder, private area weighs in favor of landowner
• Mislaid property


  • Voluntarily and knowingly places it somewhere but unintentionally forgets it, it goes to the owner of the property where found (locus quo)
• Abandoned property


  • Knowingly relinquish right, requires physically vacating or leaving the property, lacking the intent to return to the property
• Gifts


  Inter vivos: intent, delivery (manual, constructive, symbolic), acceptance

  Causa Mortis: intent, delivery, acceptance, donor's anticipation of imminent death
• Adverse possession


  • Actual entry, using land as a reasonable owner (majority) or specific conduct (minority), exclusive possession, possession is open and notorious, reasonably discoverable by the true owner, continuous for the statutory period, adverse and hostile to the interest of the record owner, objective state of mind (majority) or good faith (minority) or bad faith (small minority)
• Tenancy in common


  Default and presumed concurrent interest, owners have a separate but undivided interest with equal rights to possession
• Joint tenancy


  • Four unities: time, title, possession, interest, also need magic words: as JT with rights of survivorship
• Mortgages


  Lien theory: mortgage doesn't affect concurrent interest, lien on title but title is not conveyed to lender, JT not severed

  Title theory: mortgage effectuates a conveyance of a title which destroys JT
• Tenancy by entirety


  • Need the 4 unities, magic words: as TBE with rights of survivorship, also need to be married
• Partition


  Partition in Kind: property is physically divided into pieces and given to each co-tenant as separate property, favored generally, owelty - monetary amount paid to a party upon partition in kind to make it equal

  Partition by Sale: property is sold by the court and the proceeds divided according to the ownership shares of each co-tenant, will only be ordered if a partition in kind can't be made without prejudice to the interests of the parties
• Ouster


  • Ouster is refusing a demand by the other co-tenants to be allowed to use and enjoy the land, way to defend against ouster is adverse possession, co-tenant claiming AP must show actions of such an unequivocal nature so distinctly hostile to the rights of other cotenants that the intention to disseize is clear and unmistakable, proof of exclusive possession must be so openly and notoriously hostile that the co-tenant will have notice of adverse claim
• Community property


  Property acquired while married and residing in a community property state, e.g. wages, salaries, housing, investments
• Separate property


  Property owned before marriage or never shared during marriage, e.g. gifts, inheritances, property acquired and never used to benefit the other spouse, all states, conversion of separate property by comingling
• Possessory estates and future interests

  • Fee simple absolute
  • Life estate or finite estate
  • Fee simple determinable
  • Fee simple subject to condition subsequent
  • Fee simple subject to executory limitation
• Fee simple absolute


  It is the presumed conveyance, no future interest, "To A, To A and her heirs"
• Life Estate or Finite Estate


  To A for life, To A for X years, Life estate pur autre vie - life estate based on someone else's life, Transferor future interest - reversion, Transferee future interest - remainder (4 types)
• Remainders


  • Indefeasible vested remainder
  • Vested remainder subject to divestment
  • Vested remainder subject to open
  • Contingent remainders
• Fee simple determinable


  Possession until the right to use expires automatically by the terms of the grant, Magic words: so long as, while, during, until
• Fee simple subject to condition subsequent

  Possession occurs until condition is violated and O enforces the violation by retaking the property, Magic words: on condition, provided that, but if
• Fee simple subject to executory limitation


  Possession until condition is violated and automatically transfers to the third party, Magic words: so long as, until, while, during, provided that, on condition, but for
• Leasehold Estates (Non-freehold estates)


  • Tenancy for a term of years
  • Periodic Tenancy
  • Tenancy at will
• Tenancy for a term of years


  Definite time, death and divorce have no effect
• Periodic Tenancy


  Parties must state that they're going to terminate, both parties must be able to terminate, landlord and tenant agree about the period, no end date, must give notice of termination with max of 6 months notice for leases that are 6+mo
• Tenancy at will


  Can terminate at any time at all, death will terminate
• Covenant of quiet enjoyment

  • Actual eviction - When can't be there (includes being locked out of a room)
  • Partial actual eviction - When caused by landlord, the tenant doesn't need to pay, when caused by third party, rent is prorated
  • Constructive eviction - Conditions are such that law will recognize and no longer have to pay rent
• Implied warranty of habitability


  ONLY APPLIES TO RESIDENTIAL TENANTS, whether the conditions are reasonably suitable for human habitation or has there been a violation of a local code (i.e. a local housing code violation), Remedies: remain in possession, pay full rent, and seek damages like quiet enjoyment, move out and terminate lease like constructive eviction, make repairs and offset the costs against future rent obligations, reduce or abate rent to the amount equal to fair rental value in view of the defects
• Constructive Eviction


  Landlord breached a duty to the tenant, the breach substantially and materially deprived the tenant of her use and enjoyment of the premises, the tenant gave the landlord notice and a reasonable time to repair and after such reasonable time, the tenant vacated the premises, added remedy: no longer responsible for rent
• Sublease or assignment?


  If the lease requires the landlord's permission to sublease: majority jurisdiction - landlord need not grant permission and can withhold permission for any reason, modern and minority - landlord must not unreasonably withhold consent, he must have a commercially viable reason for withholding consent
• Marketable title


  By signing the K for sale, the seller has an obligation to provide the buyer with a marketable title, is the title reasonably free from doubt as to its validity (no encumbrances, not buying a lawsuit, or encumbrances have been waived)
• Equitable Conversion


  When some sort of damage occurs after the K for sale, majority - the buyer bears the risk as the equitable owner, old minority/MA rule - seller bears the risk as the legal owner, modern minority - the equitable owner assumes the risk of destruction of or injury to the property where s/he is in possession, and the destruction/loss is not proximately caused by the negligence of the seller
• Recording System


  • Race Statute
  • Notice Statute
  • Race-Notice Statute
• Race statute


  First in time is superior, whoever records first wins, 2nd person involved in the transaction is the subsequent purchaser
• Notice statute


  Two requirements to be a bona fide purchaser: valuable consideration, notice (actual - something at time of closing actually informs them of prior interest, recorded - would have found it with a title search, inquiry - if a subsequent purchaser has actual notice of the facts that would cause a reasonably prudent person to investigate further, he is deemed to know the additional facts that investigation would uncover whether he inquired or not)
• Race-Notice statute


  Whether subsequent purchaser had valuable consideration, had notice (actual, recorded, inquiry), and did they record first
• Easement


  A non-possessory right to use land in possession of another, it is an encumbrance on the title, dominant parcel - benefitting land, servient parcel - land easement is on, irrevocable property right that runs with the land, appurtenant easement - connected to a property, holder of the servient parcel owns it and it runs with the land
• Scope of easements (Dominant Use)

  Intent of the original parties, facts which give rise to original creation, purpose of easement, presumption of reasonably necessary for the enjoyment of the easement (presumption that its being used for original intention), permitted changes in manner, frequency, or intensity to accommodate reasonable changes, changes cannot impose unreasonable burden on servient land, equity - looking at if P acted reasonably, damage, burden, money invested
• Scope of easements (Servient Move)

  Servient landowner may move the easement, so long as: servient landowner pays for it, the change does not significantly lessen the utility of the easement, the change does not increase the burdens on the owner of the easement in its use and enjoyment, does not frustrate the purpose for which the easement was created