Real Property
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99 terms
Terms | Definitions |
|---|---|
 WA Residential Landlord-Tenant Act (RLTA) | The RLTA governs residential leases. Landlord's duties cannot be waived under the RLTA unless approved by a county attorney, the state attorney general, or the tenant's attorney. |
| Fee Simple Absolute | An estate with an infinite or perpetual duration. Devisable, descendible, and alienable. Created by language like "To A" or "To A and his heirs." |
| Fee Simple Determinable | An estate that would be a Fee Simple Absolute but for a provision in the transfer document that states the estate shall automatically terminate on the happening of an event or nonevent and automatically revert to the grantor. Devisable, descendible, alienable, but always subject to the condition. Created by language like "To A, so long as . . . "; "To A until . . . "; or "To A while . . . .". |
| Fee Simple Subject to Condition Subsequent | An estate that would be a Fee Simple Absolute but for a provision in the transfer document that states the grantor reserves the right to terminate the estate upon the happening of an event or nonevent (right of reentry). Alienable, devisable, descendible, but always subject to the condition. Created by language like "To A, but if X ever happens, grantor reserves the right to reenter and retake." |
| Fee Simple Subject to Executory Interest | An estate that would be a Fee Simple Absolute but for a provision in the transfer document that states the estate shall automatically terminate on the happening of an event or nonevent and transfer to a third party (executory interest). Created by language like "To A, but if X event occurs, then to B." |
| Life Estate | An interest that lasts for the life of the present holder and is followed by a reversion in the grantor (or his heirs) or a remainder in a third party. No right to pass on upon death as in fee simple. Alienable, devisable, and descendible if measuring life is still alive. If someone holds another's life estate after transfer it is a life estate per autre vie (for the life of another). A holder of a life estate is entitled to profits of the land during life tenancy. |
| Fixed Term Leasehold (Estate for Years) | Estate that continues for a fixed period of time and arises by agreement. The interest terminates automatically at the end of the term; no notice of termination is necessary. |
| Intentional/Voluntary Waste | Overt conduct of a life tenant that causes a decrease in value. Examples include intentionally damaging the land and/or exploiting resources (unless exceptions apply). |
| Permissive Waste (Neglect) | Life tenant allows land to fall into disrepair or fails to reasonably protect it (e.g., not keeping out weather, failing to pay property taxes). |
| Waste Exceptions | Resources are usable by a life tenant if the land's prior use was for exploitation of natural resources. The life tenant may be expressly granted the right to commit waste. The life tenant may consume natural resources to make reasonable repairs. If the land's use is for timber, it is not waste to cut the timber unless parties agreed that it would be waste. Open mines at beginning of a life estate may continue to operate (but no new mines). |
| Possibility of Reverter | Grantor's future interest created in a fee simple determinable. The land automatically transfers (reverts) to the grantor on the happening of a specified event. |
| Right of Entry | Grantor's future interest created in fee simple subject to condition subsequent. Grantor must express right of entry and retake the land in a reasonable amount of time following the happening of the event. |
| Remainder | Future interest in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created. Created by language like "To A for life, then to B" (B is the remainderman). |
| Contingent Remainder | A remainder is contingent if it is created in an unascertained person (e.g., "To B's eldest living daughter") or is subject to a condition precedent (or both). |
| Vested Remainder | A remainder created in an ascertained person not subject to a condition precedent (e.g., "To A for life, then to B"). |
| Executory Interest | Similar to reversion, the right of possession transfers automatically but to a third party rather than the grantor. Shifting executory interests follow defeasible fees and cut short someone other than the grantor (e.g., "To A, but if X, to B"). A springing executory interest cuts short the interest of the grantor (e.g., "To A, to take possession on A's 21st birthday"). |
| Rule Against Perpetuities | No interest is good if it will fail to vest more than 21 years after a life in being ab initio (at the time of conveyance). The rule applies to contingent remainders, executory interests, class gifts, options to buy land, and rights of first refusal to buy land. DOES NOT APPLY to VESTED REMAINDERS or FUTURE INTERESTS in the GRANTOR. If a conveyance violates the RAP, you strike the offending language in construing the conveyance. |
| Rule Against Restraints on Alienation | Generally, any restriction on the transferability of a fee simple interest in property is void. |
| Tenancy in Common | A concurrent estate with no right of survivorship. Each cotenant owns an individual part and each has a right to possess the whole. Each interest is descendible, devisable, and alienable. The presumption favors tenancy in common. |
| Joint Tenancy | A concurrent estate with right of survivorship. When a joint tenant dies, his share passes automatically to the surviving joint tenant(s). A joint tenant's interest is alienable during her lifetime, but it is not devisable or descendible because of right of survivorship. |
| Creation of Joint Tenancy (PITT) | Creation of joint tenancy requires the "four unities." Unity of Possession (identical rights to possession); Interests (identical interests); Time (granted at the same time); Title (granted by the same instrument). |
| Severance of Joint Tenancy | Sale (one joint tenant sells her portion) and partition (tenants agree to sever) will sever a joint tenancy. Mortgage will not sever joint tenancy. A surviving tenant will take the interest of the mortgaging tenant subject to the encumbrance. |
| Rights & Duties of Cotenants | Each tenant is entitled to enjoyment of possession of the whole; no rent is due to a cotenant from a cotenant because, absent ouster, each cotenant has the right to possess the land; rent from third parties must be shared by cotenants; each cotenant is responsible for an equal share of carrying costs (e.g., taxes, mortgage interest); each party is liable for their share of reasonable and necessary repairs; there is no right to contribution if one cotenant improves the property, but that cotenant may receive credit for the improvement at partition; and cotenants may bring actions against each other for waste. |
| Remedies for Concurrent Tenancies | A court may partition a concurrent ownership where a court places a boundary separating the cotenants, taking into account improvements, rents, and other amounts owed (owelty). A court may also order sale of the property by the sheriff and division of the proceeds, again taking into account monies owed between parties (owelty). |
| Forced Sale | If one cotenant purchases the property in a forced sale, the other cotenant may pay her portion of the cost and title will be placed back in the original cotenancy (i.e., can't hope for foreclosure so that you can buy the interest out from under your cotenant). |
| Lease Requirements (leases greater than a year) | Three formalities may be required, depending on the duration of the lease: (1) writing (for leases more than 1 year); (2) acknowledgement (for leases more than 1 year); and (3) application of the recording act (for leases more than 2 years). |
| Periodic Tenancy | An estate that continues for successive intervals until the landlord or tenant give proper notice of termination. Periodic tenancy can be implied when land is leased with no mention of duration but provision is made for payment of rent at set intervals. Notice of termination must be in writing and delivered to the other part to the lease. 20 days notice is required for landlords in residential and commercial leases; 20 days notice is required for tenants in residential leases; and 30 days notice is required for tenants in nonresidential leases. |
| Tenancy at Will | A tenancy for no fixed period of time, it may be terminated by either party at any time. This kind of tenancy must be explicitly adopted and agreed to. |
| Tenancy at Sufferance | Created when a tenant has wrongfully held over past the expiration of her lease, a landlord can treat the tenant's rights as expired and bring an action in unlawful detainer, OR the landlord can treat the tenant as a periodic tenant on the same terms as the original lease. |
| Landlord Liability for Personal Injury | A landlord is liable for concealed dangerous conditions it knows about or has reason to know about. A landlord has a duty to disclose latent defects to the tenant. Once disclosed, if the tenant accepts the premises, the tenant has assumed the risk and the landlord is no longer liable. A landlord also has a duty to exercise reasonable care for common areas (e.g., landlord will be liable in negligence action for failure to replace a light in a dark stairwell). |
| Covenants to Repair and Landlord Liability for Repairs | Covenants to repair in residential leases are generally unenforceable under the implied warranty of habitability. Covenants to repair are enforceable in commercial leases. If a clause in a commercial lease states that the landlord will keep premises in good repair, the landlord is liable for costs of repairs and of resulting injury in the absence of repairs. He is also liable for repairs made negligently. |
| Implied Covenant of Quiet Enjoyment | A landlord covenants to allow the tenant to use and enjoy the leasehold without interruption. |
| Retaliatory Eviction | The RLTA presumes retaliatory eviction if it occurs within 90 days of a tenant reporting a housing code violation. Retaliatory evictions are disallowed. |
| Duty to Deliver Possession | Landlord is required to put the tenant in actual physical possession of the premises. |
| Actual Eviction | Landlord breaches the covenant of quiet enjoyment by actually evicting the tenant. |
| Partial Actual Eviction | Landlord may breach the covenant of quiet enjoyment by interfering with tenant's enjoyment of just part of the leased premises. |
| Constructive Eviction | If a landlord breaches his duty, making premises uninhabitable, the tenant may terminate the lease or seek damages. The following are required: (1) the action or omission must be the landlord's; (2) the property must be uninhabitable; (3) the landlord must have notice; and (4) the tenant must move out within a reasonable time. |
| Implied Warranty of Habitability | Under the RLTA (residential leaseholds only), the landlord is required to maintain property in a habitable condition. The standard of performance is drawn from the local housing code. |
| Remedies for Breach of Implied Warranty of Habitability (DART) | If the tenant is current on rent and gives written notice to the landlord, the landlord must cure within 24 hours (hot/cold water, heat, electricity, hazardous to life); 72 hours (refrigerator, range, major plumbing); or 10 days (other defects). The tenant can get DAMAGES; ABATEMENT of rent; REPAIR the problem and deduct from rent (1 month rent per repair if contractor; 1/2 month rent per repair if tenant-fixed); or TERMINATION (terminate lease and move out). |
| Destruction | A tenant may terminate the lease if the building is destroyed. If the tenant is renting the parcel of land AND the building in a commercial lease, she cannot terminate. |
| Release | If the tenant purchases the landlord's interest (which are rents and the reversionary interest) then the lease is terminated by release. |
| Surrender | If a landlord accepts a tenant's offer to convey the leasehold back to the landlord, then the lease is terminated by surrender. |
| Holdover Tenant | If a tenant has wrongfully held over past the expiration of the lease, the landlord can treat the tenant's right as expired and bring an action in unlawful detainer (or create periodic tenancy). |
| Abandonment | If the tenant vacates the premises and stops paying rent (perhaps after a failed surrender), the lease is terminated by abandonment. |
| Eviction | In a residential lease, the landlord may not change locks or move the tenant's things without liability for forceable entry; the landlord must use an unlawful detainer action to remove a tenant. In a commercial lease, the landlord may use self-help eviction (change locks, remove items) provided he gives proper notice. |
| Unlawful Detainer | This action permits the landlord to evict a defaulting tenant. The landlord must give the tenant 10 days notice before bringing the action. The tenant may use breach of warranties or retaliatory eviction as a defense. |
| Security Deposits | A landlord must state the terms and conditions governing the deposit in a written lease and provide a checklist of the existing condition of the premises, signed and dated by both parties. The deposit must be placed in an escrow account. The deposit must be returned within 14 days after the lease expires, or the landlord must give a written explanation to the tenant of damages. A landlord who fails to do this is liable for the full deposit and attorney's fees; landlords are liable for double the deposit for willful withholding. |
| Tenant's Duty Not to Commit Waste | A tenant has a duty not to commit waste on the leased premises. Ameliorative Waste occurs when the tenant makes substantial alterations to leased structures; the tenant must return premises in the same general nature as received. |
| Tenant's Duty to Pay Rent | The tenant must pay rent to the landlord for use of the leasehold. |
| Tenant's Duty Not to Use the Leasehold for Illegal Purposes | The RLTA prohibits a tenant from engaging in drug-related activity on the premises or in other activities that are imminently hazardous to the safety of others. |
| Mitigation of Damages and Remedy for Tenant Abandonment | If a tenant has unjustifiably abandoned the leasehold, the landlord may bring an action for the rent due for the remainder of the lease term. But the landlord is required to mitigate her damages, and if the landlord could have relet the leasehold but didn't, her recovery will be reduced accordingly. |
| Assignment | A complete transfer of the entire remaining term of the lease. Landlord consent is necessary only if required by a clause in the lease. An assignment in violation of the lease is valid, but is a breach of the lease. There is no limitation of reasonableness in withholding consent (except mobile homes). The assignee owes rent directly to the landlord and is liable for all other covenants that touch and concern the land because the assignee is in privity of estate with the landlord but not privity of contract. The original leaseholder remains liable on the contract with the landlord (remains in privity of contract). |
| Sublease | Not a full assignment, the tenant retains part of the remaining term of the lease (e.g., original tenant will move back in after a few months). Landlord consent is necessary only if required by a clause in the lease. A sublease in violation of the lease is valid, but is a breach of the lease. No limitation of reasonableness in withholding consent (except mobile homes). The sublessee owes rent directly to the landlord and is liable for all other covenants that touch and concern the land because the sublessee is in privity of estate with the landlord but not privity of contract. The original leaseholder remains liable on the contract with the landlord (remains in privity of contract). |
| Assignment by Landlord | A landlord can assign his interest to a new landlord. The tenant must recognize duties to the new landlord (attornment). All other duties that touch and concern the land of both the landlord and tenant run to the new parties. Security deposits do not touch and concern the land (unless the lease provides that the deposit will be used for repair to damaged property), so the new landlord is not liable for returning the security deposit. |
| Easement | The holder of an easement has the right to use a tract of land (the servient estate) for a special purpose, but has no right to possess that tract of land. |
| Affirmative Easement | An affirmative easement entitles the holder to enter and do something on the servient estate. |
| Negative Easement | A negative easement entitles the holder to prevent the servient landowner from doing something that would otherwise be permissive. |
| Appurtenant Easement | Requiring adjacent tracts of land where one is benefitted (dominant estate) and one is burdened (servient estate), the benefit of an appurtenant easement passes with transfers of the land, unless the purchaser of the burdened land is a bona fide purchaser without actual, inquiry, or record/constructive notice. |
| Easement In Gross | A holder of an easement in gross acquires a right of special use in the servient estate independent of his ownership or possession of a dominant estate (e.g., utility rights of way). |
| Creation of an Easement (PING) | An easement can be created by PRESCRIPTION (similar to adverse possession, created by actual or constructive notice to the true owner of nonpermissive continuous or regular use over 10 years); IMPLIED GRANT (when two parcels had common ownership, a grant of easement can be implied from existing use if the use is obvious and reasonably necessary); NECESSITY (when two parcels had common ownership, an easement by necessity can be created between a landlocked parcel and means of ingress/egress); or express GRANT (a written grant or reservation by the owner of the servient estate to the dominant estate, it should state the location, scope, and duration of the easement). PING and PARM, the Easement Twins. |
| Profit a prendre | A profit a prendre is a nonpossessory interest in land allowing its holder to enter the servient estate and take the soil or a substance of the soil. It is created in the same manner as an easement, and it may be appurtenant or in gross. |
| Scope of Easements | An easement may be exclusive (disallowing the servient owner from using it) or nonexclusive (allowing reasonable use by the servient owner). Most easements are presumed to be nonexclusive. If exclusive, the owner of the dominant estate has the duty to repair; if nonexclusive, the duty is shared. The scope of an easement can be expanded for reasonable changes in technology or reasonable changes in use, but different use is disallowed. |
| Termination of Easements (PARM) | An easement can be terminated by PRESCRIPTIVE BLOCKAGE (where the servient owner blocks the easement for 10 years); ABANDONMENT (where there is a long period of nonuse by the dominant owner and evidence of her intent to abandon the easement); RELEASE (where the owner of the dominant estate conveys it back to servient owner by written deed); and MERGER (where the owner of the dominant estate acquires the servient estate). |
| License | A license is permission to be on someone's land. It can be created orally and it is freely revocable at will unless estoppel bars revocation (i.e., person has relied to his detriment on the license). Licenses are personal to the licensee (does not run with the land) and are inalienable. |
| Covenant | A written promise to do or not do something related to the land. A covenant is unlike an easement because it is not a grant of a property interest, but rather a contractual limitation. It is enforceable at law, which means a remedy sounds in damages (compare with equitable servitudes, which are enforceable in equity). |
| Enforcement of Covenant (PINT) | To enforce a covenant, an after-acquiring party must show that the benefit and burden of the covenant run with the land. For the burden of the covenant to run with the land, the promising parties must have had horizontal PRIVITY (relation between original covenanting parties, such as a deed or easement) and vertical PRIVITY (relation between original covenanting party and his assignee as long as they have the same kind of interest); INTENT for the covenant to run; the burdened party must have had actual or constructive NOTICE of the covenant; and the covenant must TOUCH AND CONCERN the land. For the benefit to run, there need only be intent of the parties and a promise that touches and concerns the land. |
| Equitable Servitude | When a written promise to do or not do something related to the land is enforced in equity, it is called an equitable servitude rather than a covenant. Enforcement in equity means that the remedy will be an injunction. |
| Enforcement of an Equitable Servitude (TIN) | To enforce an equitable servitude, an after-acquiring party must show that the benefit and burden of the servitude run with the land. A burden runs with the land if it TOUCHES AND CONCERNS the land; is INTENDED by the original parties to run with the land; and the burdened party has NOTICE of the servitude. The benefit runs with the land if it touches and concerns the land and is intended to run with the land. No privity is required to enforce an equitable servitude. |
| Equitable Servitude Implied by Common Scheme | Where a developer subdivides land into several lots and most of the deeds contain restrictive covenants but several do not, equitable servitudes binding all the parcels may be implied from a common scheme. |
| Defenses to Enforcement of Equitable Servitudes and Covenants | There are several defenses to the enforcement of an equitable servitude or covenant, including the following: UNCLEAN HANDS (a party violating the servitude cannot also enforce it); ACQUIESCENCE (a party who has failed to enforce against others cannot selectively enforce it as she has acquiesced to the violation); ESTOPPEL (a benefitted party may fail to enforce a servitude if she abandons it but later attempts to enforce); and CHANGED CONDITIONS (if conditions have changed such that enforcement of the servitude is inequitable, the court may cancel or modify it). |
| Termination of Covenant or Equitable Servitude | A covenant or equitable servitude can be terminated through merger, through written release, or by condemnation of the burdened property. Property sold at a tax sale is still burdened by a covenant or equitable servitude. |
| Adverse Possession (OCEAN) | Adverse possession occurs where there is OPEN AND NOTORIOUS (sufficiently apparent to the true owner such that he should have notice), CONTINUOUS (with no long gaps, used as a reasonable owner of that kind of land would use it), EXCLUSIVE (with no competing adverse possessors to the exclusion of the true owner), ACTUAL (real possession of the land in the manner a true owner would possess it), NONPERMISSIVE (without permission of the true owner) possession for 10 years, or 7 years if the possessor has color of title and pays taxes. |
| Disabilities | The statute of limitations will not run against an owner who has a disability (infancy, insanity, or imprisonment) at the INCEPTION of the adverse possession. The limitations period begins once the disability is cured. |
| Future Interests in Adverse Possession | The statute of limitations does not run against an owner until he has possession. So if an adverse possessor adversely possesses a life estate, the statutory period starts over at the death of the measuring life and beginning of the remainderman's interest. |
| Government Land | Government land cannot be adversely possessed, except that state or local government property can be adversely possessed if it is being used in a proprietary capacity. |
| Severed Mineral Estates | Adverse possessors do not earn mineral rights in the property they adversely possess unless they can show all of the elements of adverse possession beneath the earth. Mineral rights are otherwise reserved in the true owner. |
| Torrens Land | If an owner registers title under the Torrens system, adverse possession will not run against that title. |
| Tacking | Continuous possession need not be by the same person. An adverse possessor can tack her time to that of her predecessor if there is privity between them (e.g., descent, devise, deed). |
| Tacking of Tenant's Possession to Landlord | A tenant's possession is attributed to the landlord. |
| Boundary Change by Acquiescence | When a boundary line is fixed by agreement of the adjoining landowners but later turns out not to be the true line, most courts will fix ownership as per the agreed-upon line, provided it is shown that: (1) there was original uncertainty as to the true line; (2) the agreed line was agreed upon; and (3) there has been a lengthy acquiescence by the adjoining owners or their successors. |
| Land Sale Contracts | Under the statute of frauds, land sale contracts must be in writing and contain: (1) identification of the parties; (2) accurate legal description of the land; (3) mutual promises to buy and sell the land; (4) the price; and (5) the signature of the party against whom enforcement is sought. |
| Remedies for Breach of Land Sale Contract | Damages will be the difference between the contract price and the market value of the land on the day of breach, plus incidental damages. Liquidated damages are allowed, so the seller can keep earnest money as long as it is not more than 5% of the sale price and the contract provides that keeping the earnest money is the sole remedy for breach. Both the buyer or seller can, in the alternative, seek specific performance, which orders the completion of the sale. |
| Marketable Title | Every land sale contract has the implied warranty that the seller provides marketable title (title free from reasonable doubt). The warranty is breached by defect in the chain of title; title acquired by adverse possession; a title that is something less than fee simple absolute; encroachments (building on the land that overlaps a boundary); and encumbrances (e.g, mortgages, liens). |
| Time of Performance | It is presumed that time is not of the essence in real estate contracts. Performance must occur in a reasonable time (usually a few months). Time is of the essence if it the contract so says, is evident from the actions of the parties, or one party gives the other notice that time is of the essence with reasonable time prior to closing. |
| Creation of a Deed | Under the statute of frauds, deeds must be in writing and contain: (1) identification of the parties; (2) full legal description of the land; (3) words indicating title is to pass; and (4) the signature of the grantor. Consideration is not required for a valid transfer of land. |
| Delivery | A deed is effective only when delivered. A delivery is some act by the grantor with intent that the deed operate immediately. It may be manual (personally handed over); escrow (third party delivery); or presumed (deed is recorded). |
| Statutory Warranty Deed | A statutory warranty deed gives the covenants of: (1) seisin; (2) right to convey; (3) against encumbrances; (4) quiet enjoyment; (5) warranty; and (6) further assurances. |
| Bargain and Sale Deed | The bargain and sale deed contains the covenants of seisin and against encumbrances. This deed essentially protects against actions of the grantor, but not the grantor's predecessors. |
| Quitclaim Deed | A quitclaim deed transfers only the rights (if any) of the grantor to the grantee with no other covenants. |
| WA Recording Act | WA is a race-notice jurisdiction, which means that a purchaser for value without notice prevails over a prior grantee if she records before that prior grantee. |
| Implied Warranty of Quality on Sale of New Residences | New homes built by commercial builders are sold with an implied warranty of quality to the first purchaser of the home. The warranty is breached by a defect that profoundly compromises the house's essential nature. |
| Fraudulent Concealment | A seller of property must not conceal defects therein. |
| Mortgages | For a valid mortgage, there must be a debt capable of identification, in some ascertainable amount, that is enforceable and was intended by the parties to be secured by the mortgage. |
| Deed of Trust | A deed of trust is an instrument that establishes the debtor as the settlor and the lender as the beneficiary. The settlor gives the deed of trust to a third-party trustee who is usually closely connected with the beneficiary. On full payment of the purchase price, the deed transfers back to the settlor. |
| Installment Contract | In an installment contract, the purchaser (the debtor) of land agrees to make regular payments to the vendor (the creditor) until the full contract price is paid. Upon full payment, the vendor will give a deed transferring title to the purchaser. |
| Mortgage Remedies | When a mortgagor defaults on a mortgage, the mortgagee can sue on the debt or foreclose on the mortgage. In foreclosure, the property is sold at a judicial sale to satisfy the debt in whole or in part. |
| Deed of Trust Remedies | On the debtor's default, the trustee can follow certain procedure to nonjudicially foreclose on the property. At foreclosure, the property is sold at a trustee's sale to satisfy the debt in whole or in part. The debtor may redeem the property up until 12 months after the date of sale; the debtor can reinstate the loan up to 11 days prior to the sale. Any amount still due after foreclosure can be sought as a deficiency judgment. |
| Public Nuisance | A public nuisance is the unreasonable interference with the health, safety, or property rights of the entire community. An individual has standing to sue for public nuisance if his particular injury exceeds that of the community as a whole. Standing is otherwise in the state or county attorney. Remedies include injunction and damages. |
| Private Nuisance | Private nuisance is the substantial and unreasonable interference with another 's use or enjoyment of her property. The court will weigh the value of the defendant's conduct against the harm caused to the plaintiff. Remedies include injunction and damages. |
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