Tresspass

(1) Right to Possess 2) Intentional Interference 3) Without Authoriz. 1

Replevin/Ejectment
(Return of property maybe damages. Elements Same as Tresspass) 1
Trover
FMV: Same Elements as Trespass, But 4) Interference was significant)
Animals
1) Intent 2) Possesion or Occupancy (killing, deprivation of liberty, mortal wounding, not pursuit)
a.
BUT Rationale Soli- Discourage trespass on someones property. Waterways are public. Public Expectation
b. BUT HAVE THEY LOST RIGHTS? Regained Natural Liberty (MAJ:FREE Return to Habitat) (MIN: Free)
c.
HAVE THEY LOST BUT ITS COME ? HABIT, RETURNS, ETC. ANINU REVERTENDI
Water: 2
1) Intent 2) Possess 3) Escaped? 4) Ratione Soli
Oil/Gas2
1) Intent 2) Ownership (MAJ: NO Capture req) 3) Escaped? 4)Ratione Soli (MAJ: On anothers land, Stealing)
Adverse Possession Real Property3
1) Actual 2) Adverse- Hostile v. Claim of right. Color of title? 3)Open and notorious 4)Continuous 5)exclusive
Tacking: Privity Tolling 4
Adverse Possession Personal Property 5
1) Actual 2)adverse Hostile or claim of right 3) continuous 4)exclusive 5) open and notrorious 6?DMND/Discovery
Property Based on Gift 5-6

Intervivos 1)Intent 2) Delivery (Actual, Constructive, Instrument) 3)Acceptance

Cause Mortis: 1)reasonable apprehension of imminent death 2)revocation? 3) intent 4) delivery 5)accetnace 7
Property Right on Gift7

Voidable Title Doctrine (Owner stripped of title must have voluntarily transferred it) GFP 7

Statutory Estoppel Doctrine (Bars owner from recovering when entrusted to merchant to gfp 8

Equitable Estopple Doctrine (Bars owner from recovering but owner must have made representation) 9

Purchaser In Good Faith (ALL 3) Value given. Not good faith when has Actual, constructive, or inquiry notice 10
Property Rights Based on Labor 10

1) Creation (value by itself ie wood) 2) Accession (value added)

Three types of instances 1) Will trespass: Value of property at time of demand 2)Unintientional, mistake, or vendor of mistaken
trespasser: value of property when taken.(keep money from labor) 3) Purchaser without notice from willful trespasser has same rights:
value of materials when taken, however if they had added value as BFP they get value.
Property Based On Marriage 11

NO WILL: Intestate Share(100% NO kids, 50% witth kids) WILL: Elective Share(Can invoke and claim 50 w/o kids. With
kids 33%)

Divorce: Martial Property (Everythign subsequent except gifts or wills, and Degrees (except in NY) EQUITABLE
DISTRIBUTION
Concurrent Interests (Tenannts In Common, Joint Tenants, Tenants By the Entirety) For Real and Personal Except TIC 12

Joint Tenancy: 1) Express Declaration: Jointly not enough 2) Four Unities (Time,Title, Interest, Possesion) 12
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Sever: MAJ: Need strawman, Divocrce doesnt work MIN (NY): Can sever by declaration 13

Mortgage Lien? NO severance free of mortgage. IN NY, extent necessary to protect lender 14

Lease: Divided, probably not severance. 14

TIC: Presumed NY EPTL12

TBE 1) Declaration 2) FIVE UNITIES (Time, title, Interest, Possession, Marriage 13

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Alienation: MAJ: Any conveyance Void w//o consent of other MIN(NY): Can convey mortgage, if she dies, he take clear.
If he dies, they are TIC with indestructible right of survivorship. 16-17
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Partition: NONE allowed 16

Right To Alienate: For all except tenancy by the entirety (NY You can) 13

Partition (Co-owners no longer) :Voluntary or involuntary. Partition in Kind Preferred (never for chattel) Partition by sale:
1)impracticable 2)interests better protected 14-15

Duty To Avoid Waste (Interferes with rights of co-owners) Active: Permanent Passive: Ordinary Repairs/Prudent person 15

Duty to Account (Must share fruits proportional to interest) 15

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Equal Right to Occupy? MAJ: Yes, unless there is an an ouster. 15
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Expenses: Unless one owner pays all of the expenses, no sharing . if owner is sole occupier, cant recover unless above
fmv 1516
Estates In Land Freehold (SOF NEED WRITING)

Fee Simple (presumed) 17

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Absolute
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Determinable (Auto forfeiture) SO long as, while, until, unless. Not in NY. 3rdparrty creates exut. Int. or remainder 17

Reversion Must be 10 yrs 17

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Subject to Condition Subsequent (Non auto forfeiture) Right to reenter., provided that, but if, however, on condition

Right to reverter: Now alienable interests.. Exec. Interest when in 3rd party (remainder or limitation in NY)18

Presumed: Courts dont want property to forfeit . Must be 10 yrs. 18

Fee Tail: O to A and heirs of his body NY Abolished. Only to A. 19

Life Estate: To live in, have my home, not to be sold 19

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Right to alienate freely 19
NONFREEHOLD

Estates for Years (If either dies, it continues.) Fixed period/ Commencment/ Expiration. 19
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Notice: Not required when coming to end. Can end by default 19
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Writing: One year or less, not necessary. If you intend 2 years, but no writng, estate at will, until rent paid than periodic.19
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Death: Needs to continue paying before notice and termination. Same for Year to Year.

Estate from Year to Year (periodic) No specific termination date. Successive renewals. 19
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No writing: Estate at will. But, if money offered, periodic tenancy month to month. 20
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Termination: By notice 1 period in advance, expiration must be at end of period, if notice is void, unenforceable.20

NY: 1-6 months before expiration of term by either party. NYC: Lanlodrd must serve 30 days. Tenant no has.

Estate at Will: (No fixed term or guaranteed occupancy) 20

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Termination: Either Party w/o notice. NY: Tenant no duty to notify, landlord must give 30 days
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Death: If tenant dies, the estate is terminated.

Holdover Tenant: (Tenant at sufferenace in NY) 20

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Landlord May: 1) Remove and get damages (FMV) 2) Accept rent 3) Elect to hold tenant. Subtenant holdover same
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NY : Cant hold tenant over without them paying rent.
Landlord Obligations to Tenants

Possession: MAJ: Must deliver actal possession. Minority: No implied covenant. 21

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Rememdy: 1) Terminate the lease and recover damages (landlord needs reasonable time) 2)Affir lease for abatemnt 3)$
from HO
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NY: Follows majority: Deliver pssesion and landlord has reasonable time. However, only termination. If they want other,
they ned to sue HO. Combo of American and Englsh. 22

Quiet Enoyment (Implied in commercial and residential/ dependent promise as MOL)22

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1) Act or omission by landlord 2) substantially unsuitable/grave /permanent 4) vacate 22-23
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Modification: Free to modifty. 1) AS IS, Unless Latent defect. 2) Good repair: (Against drafter) 23
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Actual Eviction Partial Actual Eviction Constructive Eviction Partial Constructive 23-24
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Remedy: Unless waived or modified, damages, rent abatatement, or termination 24

Fitness and Habitability (Expectations/ Life, Health, Safety) 24

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Use Clauses: Not covenant of fitness. Look to intent/promise and breach/negligence

Remedy: Unless stated otherwise, they can only get damages

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Implied for Residential MAJ AND NY: 1) Safe and Clean 2) Human Habitation 3) Defects 25
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Breach: Landlord has a reasonable time to correct the deficiency after notification.
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Remedy: Dependent promise, so get rent abatement, damages, or termination. Or can cure. 25
Tenants Obligations to Landlord

Pay Rent:
Duty to Vacate
Return Property (Repairs avoid wate) 26

Duty to Avoid Waste: Active Waste(intentional permanent)

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When Waste Is Allowed: Prudent owner likely to make changes NY 803 26
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Remedy: Damages to repair unless waived or tenant cures.

Passive Waste (Only applies to commercial tenants.) Need to make ordinary repairs. 26
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Extraordinary Repairs: Neither tenant nor landlord responsible. 27
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NY: Right to terminate when premises are destroyed or injured due to the elements.
Landlord Remedies 27

Security Deposits: NY: Held in trust, not comingled. Landlord can use deposit for back rent, but duty to replenish if unused 27

Forfeiture of Lease: None of the tenants obligations are essential, unless landlord makes it so. 27
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Strictly construed (Rent clause but no forfeiture next to it, no forfeit)
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Must enforce in reasonable time or waived 27. Must be Substantial violation of material promise
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Demand for rent and opportunity to cure.
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Automatic: May reenter with or without law. Non-Automatic: May declare such lease ended. 28

Self-Help: Requires Auto-forfeiture. 28

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MAJ: Reasonable force necessary without causing serious death or injury. Half make it unavailable for residential 28
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NY: Cant be forcible or unlawful. Article 6 Proceeding: When lease does not end, but promise violated. 29
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Article 7: Much quicker. Lease must be at end. Holdover, or nonpayment always. 29

Duty to Mitigate: 29
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Common Law 1) Treat as surrender 2) ignore the abandonment and hold tenant 3) attempt to relet (reasonable)
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MAJ: Duty to mitigate for residential, not for commercial NY: Not for either. Common law rememedies.29
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Reasoable Diligence/Efforts When opting in or forced to mitigate. (Does not need to alter oblig. Or take less) 29
Transferring Leaseholds Assignments and Subletting. (Common law freely alienable unless lease provides otherwise)

Special Skill: Usually alienable unless landlord relied on special skill (luxury to non-luxury) 30.

Consent Clause: MAJ: Can be waived regardless. MIN: Must act reasonably

Reasonable: Financial responsibility, legality, nature of occupancy, unreasonable. 30

NY: Commercial can deny arbitrarily (unless it says not be unreasonably withheld) Residential, cant be waived, but if refused free in
30 days. 31

Assignment: Entire term no rights left 31

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Pure: Original tenant only one making covenant Pure Assignment + Assumption, + Release 31

Bases for Cause of Action in Assignments or Sublet

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Privitiy of Contract (never with subtenant even w/ consent, but yes with assignee)32
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Privity Of Estate: 1) One party created estate 2) D holds a present interest 3) Promise attaches 32
Covenants of Title

Duty to disclose material defects. 33

Inspection/ MAJ: No warranties 33

Decision of Purchase. Satisfy Contingencies (seller right to cure) Closing Promises good title.

Good Marketable Title: Reasonable doubt of non-defect/ Magnitude of defect. May Refuse before clothing.
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Remedy: Seller has right to cure by time of closing or reasonable time thereafter. 34

Closing/Merger Covenants of K merge into deed. Once closing finishes, cant sue for breach ofg title. 34
1. General Warranty Deed (FULL Warranty in NY)34
a. : Present Covenants MAJ: Dont run MIN DO RUn
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1. Covenant of seisin (MAJ: DOES NOT RUN NY: DOES) 34
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2. Covenant of right to convey 35
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3. Covenant against encumbrances (right that exists in 3rd party, mortgage, easement, etc.) AT TIME OF CONVEY
Promises: Future Covenants. NORMALLY RUN W LAND AS LONG AS THEY STAY COVENANTS
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4. Covenant of Warranty
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5. Covenant of Quiet Enjoyment (Must be an ouster)
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6. Covenant of Further Assurance (FIX TITLE)
Special Warranty Deed (Bargain and sale w/ covenants) 36 You are aying hey, Im only promising you I didnt fuck up title.
Quit Claim Deed Bargain and sale w/o covenants You are saig hey, I can only promise nothing. 36
***********************Remember, if there is a QC in between or SW in between an original GW, it does not break chain.
Recording Acts (Multiple purchasers)37

Race Recording: Protects Subsequent Purchaser who is the first to record

Notice Recording (No majority rule) Protects subsequent purchaser who paid value and without notice
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Actual Knowledge
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Constructive Knowledge (Check public records, legal obligation to check. Must be properly recorded)37
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Inquiry Notice (Duty to investigate/ would be a reasonable person be suspicious) ex:actual possession 38

Race Notice: Protects subsequent purchaser who at time of purchase did not have notice and was the first to record 37

IF NEITHER PROTECTED BY A STATUTE (Intestacy, will, etc, or if both dont record) First in time, first in right 37

Subsequent Purchaser: He can claim rights of predecessor

Real Estate Financing

Residential Loans: Self amortizing and recourse 38

Commercial: Non amortizing and non recourse 38

Documents:
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Promissory note (K obligation to pay off debt)38
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Mortgage (fixed rate, adjustable rate) Majority:Security interest is mortgage. MIN: 3 parties. Deed of trust 38

Remedies for Default

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Workout (loan modification) 39
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Deed In Lieu of Foreclosure (immediate transfer of title)39
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Foreclosure (Last resort, courts like to prevent)

Nonjudicial: Notify borrower, Deed of trust right to auction. BUT, Borrower not liable to
deficiency (difference between cost sold and debt owed) 39

Judicial: Default notice, 90 day foreclosure notice, acceleration letter, court proceeding, settlement
conference, referee, public sale.

Subordination: Tenants normally subordinate as are existing loans and leases terminated

Lien: First in time, first in right with getting paid. 40.

Default: Not paying 2nd mortgage= default on first., taxes, loan. Can accelerate.
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Due on Sale Provisions: Residential: Previous payments are due. Commercial you can assume

Take subject to: purchaser not liable for past. Assumption:Promises to pay off past. 40
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Right to Redeem: Get back property 41

Equitale Right to Dedeem: Ends when properry is sold in foreclosure sale. Anytime after referee

Statutotry Right to Redeem: Protective of borrower: After foreclosure, normally owner is still
owner. They can have up to 18 months to get back property 41