The ABCs of: Real Property
Here is a collection of 26 important concepts, from A to Z, you need to know about Criminal Law for the bar exam:
A - Adverse Possession: To acquire title by adverse possession, a possessor must wrongfully enter the land of another triggering a cause of action for possession by the true owner of the land. Once the cause of action accrues, the wrongdoer’s possession must be actual, open and notorious, continuous, exclusive, and hostile and under claim of right for the entire statutory period over which the true owner could have sued. If the true owner fails to sue by the end of the statutory period, the statute of limitations runs on that suit, with the consequence that the possessor acquires a title by adverse possession good against all the world including the true owner who failed to timely sue.
B - Burden and Benefit: When it comes to covenants, two key terms are "burden" and "benefit." The burden of a covenant refers to the obligation or restriction it places on a property owner. For instance, a covenant may require a landowner to avoid certain types of construction. On the other hand, the benefit of a covenant is the advantage or right that accrues to another property, typically a neighboring one. This might include the right to unobstructed views or access to shared amenities.
C - Covenants: A covenant is a legal obligation or restriction set out in a deed or lease, related to the use or non-use of the land. It can burden or benefit the land itself, meaning it can apply to and be enforced by subsequent owners. On the bar exam, covenants are typically tested in scenarios involving land use restrictions or agreements between neighbors. The exam may question the enforceability of these covenants, especially when the land changes hands, and whether the original terms still apply to new owners.
D - Dominant Estate: In the context of easements, the "dominant estate" refers to a property that benefits from an easement. Essentially, it's a piece of land that has the right to use or access part of another property (known as the "servient estate") for a specific purpose, like a driveway or utility line. The dominant estate holds the easement, and this right is often crucial for its access or enjoyment.
E - Easement: An "equitable servitude" refers to a covenant or agreement that, despite not meeting all the formal requirements of a real covenant, is still enforceable in equity, especially against subsequent owners of the property. This is typically relevant when a landowner has made a promise affecting land use that benefits or burdens other land. The bar exam may test your understanding of the creation and enforceability of equitable servitudes, particularly in scenarios involving subsequent buyers of the property who may not be aware of the original agreement. The focus is on whether these subsequent owners are bound by or can benefit from these informal agreements.
F - Fair Housing Act - The Fair Housing Act of 1968 bars discrimination based on race, color, religion, national origin, sex, or disability in the sale or rental of a dwelling. One MEE question (July 2020 Question 6) specifically asked examinees to determine whether a property owner violated the Fair Housing Act by refusing to rent to men and lawyers. The fact pattern included the following language in an advertisement in the local newspaper: “Two 2-bedroom apartments for rent. Only professional women (but not lawyers) need apply.” The facts also indicated that the owner told prospective male renters that’s she “[does] not rent to men.”
G - Grantor and Grantee: The "grantor" is the person or entity who is transferring ownership of a property or an interest in the property to another party. This can be an individual, a corporation, or any legal entity with the authority to convey property rights. The grantor is the one initiating the transfer and is sometimes referred to as the "seller" or "transferor." The "grantee" is the individual or entity who is receiving ownership of the property or property interest from the grantor. The grantee is often referred to as the "buyer" or "transferee." They are the party acquiring the property rights as a result of the conveyance.
H - Holdover Doctrine: The Holdover Doctrine, sometimes referred to as tenancy at sufferance, deals with tenants who continue to occupy a property after their lease or rental agreement has expired. They are considered holdover tenants and may be required to pay rent at the same rate, subject to eviction if they refuse to vacate or fail to negotiate a new lease. It's important to note that a tenancy at sufferance is not created if (1) the time associated with the holdover was minor, or (2) the tenant is not at fault in creating the circumstances that led to the holdover.
I - Improvements: A land-sale contract must be memorialized in a writing that contains the signature of the party to be charged and the essential terms (e.g., parties, description of land, price). Part performance, such as substantial improvements to the property, can take a contract out of the statute.
J - Joint Tenancy: A joint tenancy is a form of property ownership held by two or more individuals in which each co-owner has an equal and undivided interest in the property. What sets joint tenancy apart is the "right of survivorship," which means that when one co-owner passes away, their share automatically transfers to the surviving co-owners, avoiding the need for probate. This feature is a key characteristic of joint tenancy and distinguishes it from other forms of concurrent ownership like tenancy in common. It's important to note that for a valid joint tenancy, the co-owners must typically acquire the property at the same time, with the same deed, and have equal ownership shares.
K - Knowledge: To qualify as a bona fide purchaser, and to benefit from protection against the claims of a prior transferee under notice and race-notice statutes, an individual must be a purchaser who acquires the property without notice, which encompasses actual notice, constructive notice, or inquiry notice, and who pays valuable consideration for the purchase. In other words, being "without notice" means having no awareness or knowledge of any existing claims or interests in the property, whether that knowledge is direct, implied, or obtained through diligent inquiry.
L - Leasehold Estate: There are four types of landlord-tenant leaseholds (or tenancies).
A tenancy for years lasts for a fixed duration, which can be less than a year despite its name. A tenancy for years is not subject to the Statute of Frauds if the term is less than one year. Notice of termination is not required. The lease automatically terminates at the end of the tenancy unless (1) the parties agree to end the lease early, or (2) there is a material breach of the lease.
A periodic tenancy is the default tenancy. It runs for a specified duration and continues in successive intervals (e.g., month to month) until terminated by proper notice by either party. The Statute of Frauds does not apply to a periodic tenancy unless the lease is expressly created for a period of more than one year. A periodic tenancy is automatically renewed until proper notice of termination is given. Usually, the notice must be one full period in advance (e.g., one month’s notice for a month-to-month tenancy) and timed to terminate the lease at the end of a period (e.g., the usual month-to-month tenancy can end only on the 30th or 31st, not the 15th). For a year-to-year lease, six months’ notice is required.
A tenancy at will is terminable at the will of either the landlord or the tenant. Under common law, either party may terminate without notice. Under modern law, however, advance express or implied notice (i.e., death of a party, assignment of the lease, or the landlord’s transfer or lease of the property to another tenant) and a reasonable time to quit are required to terminate a tenancy at will.
A tenancy at sufferance occurs when the tenant remains in possession without permission when the lease ends. In this situation, the landlord may (1) accept a new lease that will be a periodic tenancy established by rental payments, or (2) evict the tenant and claim damages using eviction proceedings. In other words, self-help is not allowed. (See also “Holdover Doctrine.”)
M - Marketable Title: Every contract contains an implied covenant that the seller will provide marketable title (i.e., title reasonably free from doubt) at closing. It need not be perfect title, but it must be free of questions that present an unreasonable risk of litigation.
N - Nonconforming Use: In zoning law, "nonconforming use" refers to a land use or structure that was legally established according to the zoning regulations in place at the time, but which no longer complies with newer zoning rules. Essentially, it's when something about a property doesn't align with current zoning laws but is allowed to continue because it was set up before these laws were enacted or changed.
O - Occupancy: When it comes to adverse possession, intermittent or sporadic periods of occupancy are not sufficient to establish adverse possession. The claimant must maintain a consistent presence on the property during the entire statutory period. (See “adverse possession.”
P - Privity: Horizontal privity exists when there is some shared interest in the property at the time the covenant is created (e.g., grantor-grantee, landlord-tenant, or mortgagor-mortgagee). Vertical privity exists if the original party transferred the entire estate or any lesser estate to the subsequent owner. Both horizontal privity and vertical privity are required for the burden to run. However, horizontal privity is not required for the benefit to run. Where horizontal privity is lacking, the promisee’s successors can enforce the covenant against the promisor, but not against the promisor’s successors.
Q - Quitclaim Deed: A "quitclaim deed" is a legal document employed in property transactions to transfer ownership interest in a property from one party to another. Unlike a warranty deed that guarantees the title's validity, a quitclaim deed offers no such assurance. Instead, it merely conveys whatever interest, if any, the grantor holds in the property to the grantee, without promising a clear title. On the bar exam, questions related to quitclaim deeds may examine their typical use cases, their limited protections for the grantee, the implications of recording, and the circumstances in which they might be utilized in property transactions.
R - Recording Acts: Recording acts determine who has superior ownership rights when there are competing claims to the same piece of real estate. They come into play when multiple buyers or parties are involved in transactions related to a property. There are three main types of recording statutes:
Race: In a jurisdiction with a "race" recording statute, the first person to record their interest in the property at the official recorder's office wins, even if they knew about a conflicting claim from a prior transaction. It's like a race to the recorder's office, and the first one there gets priority.
Notice: Under a "notice" recording statute, a subsequent buyer who acquires the property without knowledge of any prior claims to it prevails over the earlier grantee. There are three kinds of notice in this context: actual notice (exists when the subsequent purchaser has actual knowledge of the interest); constructive notice (exists when an instrument conveying an interest in real property is properly recorded and indexed); and inquiry notice (occurs when a purchaser knows of some fact that would prompt a reasonable person to conduct a further investigation into a potential issue involving a superior interest).
Race-Notice: The "race-notice" statute combines elements of both the "race" and "notice" statutes. To prevail, the subsequent buyer must both record their interest first and have no knowledge of any prior claims.
S - Sublease: In landlord-tenant law, a "sublease" occurs when a tenant rents out their rented property (or a part of it) to another person, known as a subtenant. This arrangement creates a new tenant-landlord relationship between the original tenant and the subtenant, while the original lease with the property owner remains in effect. The original tenant retains their responsibilities under the original lease, including paying rent to the landlord and maintaining the property, while also assuming the role of a landlord to the subtenant.
T - Touches and Concerns the Land: When it comes to real covenants, there are specific criteria that determine whether the burden or benefit can run with the land. To establish the burden's continuity, six requirements must be met, including the presence of a written document, horizontal privity, vertical privity, intent, and notice. However, a pivotal requirement among these is that the covenant "touches and concerns the land," which means it is directly related to the use, enjoyment, value, or obligations associated with the property in question. Conversely, when ensuring the continuity of the benefit, four prerequisites come into play, which include a written document, vertical privity, intent, and the vital element of the covenant "touching and concerning the land." (Notably, horizontal privity and notice are not necessary conditions for the benefit to run with the land.) (See “Covenants.”
U - Use (as in “ordinary use”): A life tenant, who has the right to use and benefit from a property for their lifetime, is entitled to the property's ordinary uses and profits. This means they can utilize the land in standard, customary ways, such as residing on it, renting it out, or engaging in activities like farming, and are allowed to reap any financial benefits that come from these activities. However, their use of the property is bound by the condition that it should not significantly harm the property or reduce its value, as this could adversely affect the interests of future beneficiaries like remaindermen or reversioners.
V - Vests: The Rule Against Perpetuities restricts the duration of certain future interests in property. Let’s focus on the "vest" requirement. RAP requires that all future interests must vest, or become legally fixed and ascertainable, within a specific time frame that is typically tied to the lives in being at the time of the creation of the interest plus 21 years. This means that any interest that might not vest within this time frame is considered void from the outset. The primary purpose of the rule is to prevent property interests from remaining in limbo or tied up indefinitely, ensuring that they eventually become vested and certain.
W - Water Rights: An owner of land that contains a watercourse (i.e., a stream or a lake) does not own the water it contains but merely has rights to use it. There are three theories:
The Natural Flow Doctrine asserts that upstream landowners can use water for basic needs but cannot significantly alter its flow for more extensive purposes that harm downstream users. Imagine you live next to a stream and use its water for everyday things like drinking and washing. You're allowed to do this. However, if you want to use the water for something bigger, like watering crops or a business, you can't if it means there will be less water for your neighbors downstream.
The Reasonable Use Doctrine allows all adjacent landowners to use water for various purposes, provided their usage doesn't unreasonably interfere with others' rights to the water. This is like sharing a cake. Everyone who lives along the water can use it, even for big projects. But they have to use it fairly. If someone uses it in a way that's not fair and harms others' use, then they can be stopped.
The Prior Appropriation Doctrine grants water usage rights based on a "first come, first served" basis, prioritizing the first user who puts the water to beneficial use. This is like calling "dibs." The first person to start using the water for a good reason (like farming or a factory) gets to keep using it. It doesn't matter where they are along the water's path. Instead, being first is what counts.
X - fiXture: Okay, "fixture" doesn't begin with the letter "X," but it does contain the letter "X." A fixture is a chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty. A fixture passes with the ownership of the land. For a seller to retain a fixture, it must be expressly reserved in the contract of sale or the deed.
Y - Year: When is a “year” not a “year”? The term "tenancies for years" can be a bit confusing because it doesn't quite adhere to our usual understanding of a "year." Instead, it refers to any fixed period of time, whether it's a month, a week, or even longer. So, don't be surprised if you come across a "tenancy for years" that lasts for just a few months.
Z - Zoning: "Zoning" refers to a system of land-use regulation implemented by local governments for the protection of the health, safety, morals, and welfare of its citizens. Zoning ordinances typically divide a municipality or region into different zones or districts, each with specific rules and restrictions governing how land and properties within that zone can be used. These regulations typically address various aspects, such as the type of structures allowed, land density, permissible activities (residential, commercial, industrial, etc.), building heights, setbacks, and more. Understanding zoning is crucial as it affects property rights, land development, and land use planning, and it can be tested in scenarios involving land use disputes or property development questions on the bar exam. (See also “nonconforming uses.”)
