PROPERTY
1. IDENTIFY THE TYPE OF QUESTION
· Interests in Land
· Rights in Land of Another
· Conveyances
· Zoning
· Tenant Landlord
1. MAP THE PROPERTY IF NEEDED
2. PAY ATTENTION TO TIMES
3. ADDRESS EACH MAIN ISSUE AT ONE TIME
4. SPECIFY THE RIGHTS AND LIABILITIES OR INTERESTS IN EACH SEGMENT
Consider: Tort Liability -- Nuisance Law.
Community Property Issues.
INTERESTS AND OWNERSHIP IN LAND
FREEHOLD ESTATE INTERESTS IN LAND
Types of Fee Simples: Absolute, Determinable, Subject to Condition Subsequent, Subject to Executory Interest.
Types of Life Estates: Basic (in life of grantee), Pur Atre Vie (life of another).
· Life Tenant’s Rights: Ordinary Use and profits, and may be able to transfer his interest.
· Doctrine of Waste: Life tenant cannot do anything to injure the interest of the remainder or reversion. If intentional waste, can get treble damages.
Types of Future Interests: Possibility of Reverter, Right of Reentry, Executory interest (shifting or springing), Reversion, Remainder (vested or contingent).
· Remainder Rule: A remainder must be (1) created at same time (2) a prior life estate was created, (3) cannot cut short the prior, and (4) there are no built in time gaps between the two. (If remainder is not satisfied it its a executory interest.)
Rule Against Perpetuities (RAP): RAP applies only to contingent remainders, executory interests, and class gifts. It does not apply to leases, vested remainders. Rule: A future interest must vest or fail within 21 yrs. after some life in being
Restraints on Alienation: All restraints on fee simple estates are void. If a restraint subjects the grantee to a condition prior to sale, it is void. Rights of first refusal are allowed so long as the response is at a reasonable time and for market value.
CONCURRENT OWNERSHIP
Tenancy in Common (TIC): A TIC is presumed if it is not a JTWROS. Tenants in common own a apportioned share of the whole and can convey their interest freely.
Joint Tenancy With Right of Survivorship (JTWROS): For a valid JTWROS, the parties must satisfy the four unities concurrently: (1) Time, (2) Title, (3) Interest, and (4) Possession. If all four are not concurrent, then a tenancy in common results. (In a JTWROS each party has a right to possess the whole.)
· Severance of a JTWROS: If a joint tenant conveys their interest to an outsider, the outsider gets a tenancy in common with the other joint tenants. (A joint tenant can create a tenancy in common for himself by conveyance to a straw man and back to himself.
Rights Between Co-Tenants (TIC and JTWROS) : Each tenant has the right to possess and use the whole, the right to profits derived, and the liability to pay for reasonable repairs and upkeep. Improvements by one tenant do not incur obligation by the others unless by previous agreement.
· Ouster: When a tenant is wrongfully excluded (actually or constructively) from their right to use the property. The ousted tenant can bring an action for his portion of the fair market value, (the time period for adverse poss. begins also.)
Partition: (TIC and JTWROS) : The parties can agree to partition their interests “in kind” or “by sale”. In kind identifies boundaries between the tenants of possible; by sale is when the property is sold and proceeds are proportioned.
ADVERSE POSSESSION
Requirements: The requirements for adverse possession are open and notorious occupation, continuous for 10 years, exclusive, actual and non-permissive. [OCEAN].
Exceptions:
· Disabilities. If the title owner was a disability (infancy, incapacity, or imprisonment) at the start of the adverse possession, the occupation is tolled until the disability is removed.
· Future Interests: Adverse possession cannot run against a holder of a future interest until the interest becomes possessory.
· Government Land: Is not subject to adverse possession, unless, it is held in a proprietary capacity.
Tacking: The statutory period may be tacked to a previous adverse possessor so long as there is privity between the two. Privity requires a transfer between the two, it cannot be by coincidence.
Under Color Of Title: If adverse possessor had color of title and pays taxes, the statutory period is seven (7) years.
RIGHTS IN LAND OF ANOTHER
EASEMENTS
Grant of Easement. The intent of the parties should be considered. The grant should clarify it is an easement and not a possessory interest (look to intent of parties if ambiguous) and state the location, scope and duration of the easement.
Types of Easements
· Easement Appurtenant - Where a dominant land is benefited by the easement and a servient land is burdened by the easement. (Judicially preferred.)
· Easement in Gross - An easement to the benefit of a party that is not appurtenant to any specific land. These cannot be transferred unless they are for a commercial purpose.
Sale of Land Subject to Easements: Easements run with the land after they are created. A buyer would have notice by actually seeing the use, or by recording.
Creation of Easements: An easement may be created by prescription, implied, necessity, or express. [PINE].
· Prescriptive Easement is created by continuous use for 10 years, notice (actual or constructive) to the owner, and non-permissive use. [CNN]
· Implied Easement is created by an implied grant or reservation after prior common ownership, of an obvious, quasi easement, of reasonable necessity. ( If an owner grants a profit, they impliedly grant an easement to attain the profit.)
· Easement of Necessity is created if after prior common ownership a parcel becomes landlocked. Such can be used only for access and utility lines. This is achievable by court action or condemnation. (Condemnation requires paying for it).
· Express Easement is created by a written grant or reservation between servient and dominant land owners.
Scope of Easements: The scope of an easement is based on the reasonable intent of the parties and usually includes reasonable changes in technology, but does not include uses which are excessive, unreasonable or outside the scope of the easement. A servient owner may seek damages or an injunction but cannot seek termination.
Effect of Transfer of Property Benefited/Burdened by Easement:
· Dominant Land Transferred - The benefit of the easement automatically runs with the land regardless of recording or not. Servient Land Transferred - The burden runs with the land unless the purchaser is a BFP.
Termination of Easements: An easement may be terminated by merger, release, abandonment, prescriptive blocking, and estoppel. [MR. APE].
Distinguishing from a License: A license is permissive use of the land, where an easement is an interest in land.
COVENANTS
Basic Concepts: A covenant should be written, given for consideration, acknowledged, and bind and benefit future owners.
Action to Enforce a Covenant: In order to be successful, the plaintiff must have benefited land and the defendant must have burdened land. For a subsequent purchaser to have rights they must also show the covenant runs with the land.
· At Law: (Real Covenant): To run with the land, the covenant must Touch and Concern the land, intend to run, and there must be Privity of estate. (Privity means it is in deed form or easement form.). [Plaintiff may seek damages only.]
· At Equity: (Equitable Servitude): To run with the land, the covenant must Touch and Concern the land, intend to run, and there must be Notice to the purchaser. [The plaintiff may seek damages, injunction or specific performance, subject to the defenses of Unclean Hands Doctrine, Change in Neighborhood, Zoning, & Estoppel].
Common Plan: If several lots are within a common plan, then all are considered benefited by the established covenants. Therefore, any of the owners may sue to enforce the covenants, as could a homeowners association. Evidence of a common plan may be shown by plat, pattern, or oral representations.
CONVEYANCES
REAL ESTATE CONTRACTS
Statute of Frauds Applies, although memorandum and integration will suffice so long as requirements are met.
· Requirements: The Writing must Identify the Parties and the Land (specifically and unambiguously), Words Indicating a Sale, Signature of the Party to be Charged, and the Price and Terms of the contract.
· If Contract is Recorded: Acknowledgement is Required.
Acts of Part Performance in an Oral Contract: If a contract is oral it may still be enforceable if 2 of the following 3 acts are performed by the purchaser: Possession, partial payment, and substantial improvements. [Specific performance is available, but no damages.]
Marketable Title: A vendor provides the purchaser with an implied covenant of marketable title. Title is not marketable if it is less than fee simple absolute, burdened by unspecified easements, encumbrances, encroachments, or zoning/housing code violations.
Time: Time is generally not of the essence. Time can be made of the essence by including a provision in the contract, one party giving notice of such to the other at a reasonable time prior to closing, or both parties know the time of closing is very important.
Remedies: Vendor of Purchase may seek damages, specific performance or rescission of the contract when the other breaches.
Liquidated Damage Clause: If a liquidated damage clause is in the contract, it is enforceable by statute if the earnest money is 5% or less, it is specified as the sole remedy, and separately initialed by the parties (if a residence). It the statute is not satisfied, the clause may be enforced if the amount stated is a reasonable advanced estimate of damages. Although a liquidated damages clause may cut of a suit for actual damages, it does not affect the right to seek specific performance.
Warranty of Fitness: Applies only to new construction. The defect must compromise the essential nature of the home.
DEEDS
Statute of Frauds Applies.
· Requirements: A deed is a conveyance; and to be valid it must be in Writing, Identifying the Parties and the Land (specifically and unambiguously), contains Granting Language, Acknowledged, and Signed by the Grantor.
When Deed Becomes Effective: A deed is effective only when it is delivered with the intent for immediate operation.
· Delivery to Third Party: Such as an escrow agent, is valid so long as grantor surrenders complete control.
Types of Deeds and Covenants:
· Warranty Deed - contains the covenants of seisin, right to convey, against encumbrances, warranty, quiet enjoyment, and further assurances. (SOL begins to run present covenants at transfer.)
· Bargain and Sell Deeds - Only contains what the grantor had (seisin, against encumbrances, and quiet enjoyment.)
· Quitclaim Deed – A quitclaim deed transfers only the rights (if any) of the grantor to the grantee. No covenants.
THE RECORDING ACT
Washington is a race-notice state. (A subsequent BFP who records has priority over unrecorded prior interests.)
· NOTE: Recording will not validate an otherwise invalid deed or interest.
Bona Fide Purchaser (BFP) Status: A subsequent purchaser is a BFP if they give value and take without notice. Value can be actual value (more than nominal), a loan, a legal right, or a judgment lien. Notice may be Actual, Inquiry, or Constructive
· Benefit: A BFP who records prior to another person asserting rights to the same property takes over the other person.
· Exception: BFP does not take free of a claim of adverse possession. (AP is outside the recording act.)
· Shelter Rule applies. (Even if the sheltered person had knowledge of a prior unrecorded interest.)
REAL ESTATE SECURITY DEVICES
Types:
· Mortgage - Must be foreclosed judicially.
· Deed of Trust - May be foreclosed judicially or by power of sale by trustee. (Takes min. 190 days.)
· Installment Contract - May be forfeited without foreclosure if clause is in contract, notice of intent to foreclose is sent, the contract is recorded, and breach is not cure within 90 days.
Remedies Upon Default: The Seller may accelerate the balance due and then foreclose or bring an action on the note.
Redemption Rights: (All require first payment of costs and attorneys fees, then the balance due).
· Judicial Foreclosure - The purchaser may pay off the debt and redeem the land up to the time of the foreclosure sale and also has a statutory redemption right to redeem up to 12 months after the sale.
· Deed of Trust Foreclosure - The loan can be reinstated up to eleven (11) days prior to the sale.
Deficiency Judgements - Are only available following a judicial foreclosure.
Due on Sale Clauses: If a contract has such, the purchaser is obligated to pay off the mortgage when the property is sold unless exempted by federal law.
Assumption vs. “Subject To”
· If Grantee assumes a mortgage, the grantee is primarily liable on the debt, and the grantor is secondarily liable. The creditor can pursue either, and the one that pays will have subrogation rights.
· If Grantee takes “subject to” a mortgage, the grantor is the only person liable. The grantor can then seek reimbursement from the grantee.
Priority Issues:
· Priority is generally established by the first to record.
· A Purchase Money Mortgage takes first priority over a simultaneous bank mortgage and/ or judgment lien.
· Foreclosure of a mortgage wipes the mortgage from title and all junior liens and mortgages. Senior mortgages and liens are not affected and remain on title and a purchaser at foreclosure takes subject to them.
· Future Advances - Retain the priority of the original mortgage, even against intervening interests.
ZONING
FUNDAMENTALS
· Zoning is an exercise of the police power to regulate in the interest of the public health, safety, morals, and welfare. Local authority is from the WA constitution and state enabling statute.
· The local legislative body must follow its comprehensive plan when zoning.
· Most zoning actions are quasi-judicial and requires procedural due process (as it is related to property).
BASIC ZONING TECHNIQUES
Rezoning - A change in zoning classification due to a change in conditions. It must comply with comprehensive plan and is a legislative activity, so procedural due process is not required.
Variance - A grant of permission to vary from the zoning ordinance. An owner must prove unique hardship and the variance must not cause harm to the neighboring land. (Usually a condition of the property topography or lot configuration.)
Conditional Use Permits - Some types of uses are allowed only by special permit which requires the user to comply with several conditions to protect land and the general public.
Planned Unit Development (PUD) - A floating zone which allows for development of property with mixed uses. The PUD overlays the existing zoning.
Conditional Zoning - When a rezoning is approved so long as the owner develops or builds in a certain manner prescribed by conditions set forth.
NON-CONFORMING USES
When a use becomes non-conforming due to an initial zoning to a rural area or a rezone, non-conforming uses are generally amortized (they are allowed to stay for a certain number of years, but then must conform).
· Intensified Use: A non-conforming use may be intensified, so long as it does not adversely affect the neighborhood.
· Enlargement or Change Not Allowed: The use cannot be enlarged or changed to a different non-conforming use.
· Effect of Abandonment or Sale: The abandonment or sale of the property terminates the allowability of the non-conforming use.
VESTED RIGHTS
An owner or developer’s rights vest in the building, zoning, and land use regulations in effect as soon as a substantially complete application is submitted. (It is not necessary to show reliance on previous regulations or good faith.)
EXACTIONS AND IMPACT FEES
If as a condition of granting a zoning change or approval of a plat, the owner is required to dedicate some land for street improvements or pay impact fees for other infrastructure, such is permissible only if:
1. The increased public need is caused by the development, AND
2. The amount is in proportion the burden imposed by the development.
CHALLENGING ZONING ACTIONS
· Illegal Spot Zone - The singling out of an individual parcel for zoning treatment different for the neighboring property is unfairly discriminatory.
· Exaction/Impact Fees - Requirements of causal relation to development and proportionality are not met.
· Unduly Oppressive: The zoning is extremely burdensome to the owner in proportion to the public benefit.
· Improper Delegation of Authority - The local body must follow to enabling statute’s mandate.
· The Local Body action is ulta vires. - The local body must follow its own regulations.
· Procedural Due Process - Owners have a right to notice and opportunity to be heard when issues affect property. There must also be an appearance of fairness in the proceedings.
· Denial of Substantive Due Process - The action is arbitrary and capricious because it is not reasonably related to the public health, safety, morals or general welfare.
· Taking without Compensation: The zoning is a physical invasion of the land, or the severity of the regulation deprives the owner of all economic value or disproportionate to the public benefit.
· Other Constitutional Violations: Equal Protection, Burdens Free Speech, or Burdens free exercise of religion.
OTHER STATUTORY CONSIDERATIONS
SEPA - This applies to any major local government action that significantly affects the environment, and requires an environmental impact statement. (1-4 family residential developments are excluded.)
Shoreline Management Act - This applies requires a special permit for any “substantial development” on a shoreline (including lakes, rivers and streams.)
Growth Management Act - Requires local cities to formulate a comprehensive plan regarding agricultural, forest, mineral and critical areas.
JUDICIAL REVIEW OF LAND USE ACTIONS:
Standing - Affected landowners and neighbors generally have standing.
Exhaustion of Remedies - One must exhaust all administrative remedies prior to seeking judicial review.
Statute of Limitations
LANDLORD - TENANT LAW
Does the Residential Landlord Tenant Act (RLTA) Apply? The RLTA applies to all residential tenancies.
Statute of Frauds - Applies to all leases 1 year or longer.
Tenancies: There are three types of tenancies:
(1) Fixed Term - A lease for a specified period of time (can be less than one year). It terminates without notice at that time.
· A fixed term tenancy linger than one year that does not satisfy the statute of frauds is deemed a periodic tenancy.
· A tenant that holds over after the expiration of a fixed term, and landlord accepts rent, is likely a periodic tenant.
(2) Periodic Term - A month to month lease that continues so long as each party wants it. Termination requires 20 days notice prior to the end of the period by either party.
(3) At Will. - An agreement to lease for no specific time. Either party may terminate at any time.
Other Methods of Termination of Leases: Release, Surrender (in writing > 1yr), Abandonment, Destruction of property.
Assignment and Subleasing: Restrictions in the Lease: Are strictly construes against the landlord.
· On Assignment - The first tenant is liable on the contractual obligation, and the second tenant is liable since covenant to pay rent runs with the land. On Sublease - First tenant is primarily liable and second is liable to the first.
Landlord Duties to Tenant:
1. Deliver Possession.
2. Implied Covenant of Quiet Enjoyment: The Landlord owes a duty to provide (1) quiet enjoyment, (2) good title, (3) removal of previous tenants, and to not (4) partial evict or (5) constructively evict the tenant. [Constructive eviction requires the tenant to move out due to a bad condition which is the landlord’s fault.]
· Upon Breach Damages or abatement of rent may be available depending on the circumstances.
3. Implied Covenant of Habitability: The landlord has a duty to keep the premises fit for human habitation, standards of which are drawn form the housing code. After notice, the landlord must cure (1) a utility or hazardous condition in 24 hours, (2) appliances or major plumbing within 72 hours, and (3) other defects within 10 days.
· Upon Breach: Tenant may seek Damages, an Abatement of rent, Repair and deduct from the next month’s rent, or terminate the lease and move out. [DART].
4. Security Deposits: A landlord must place security deposits in an escrow account, and return any balance due within 14 days of the lease expiration. If the landlord does not comply, he is liable for the whole deposit and attorneys fees, and double the deposit if the withholding was willful.
5. Landlord Liabilities For Personal Injury: A landlord is only liable for injuries to tenants for (1) Latent Defects, (2) Common Area Defects, (3) Injury arising from a defect at a Short-term Furnished Residence (vacation rental) (4) Public Use Areas, (5) Breach of a covenant to repair, and (6) negligent attempt to repair.
6. Refrain from Interfering with right of possession: The landlord must refrain from interfering with the tenant’s possession, which means that he may not enter without the tenant’s consent except in emergencies, must when practicable give two days notice of entry for repairs, and may not remove or exclude the tenant form the premises except by court order.
Tenant Duties: (1) Duty to Repair (No Waste), (2) No Illegality on Premises, (3) Pay Rent, (4) No Nuisance.
Landlords Rights and Remedies:
1. Self Help (Commercial Only): The right to change the locks when the tenant is in breach is NOT ALLOWED in RESIDENTIAL setting, but is available in commercial setting if notice is given. If the landlord does this improperly they are liable for forcible entry.
2. Unlawful Detainer: If tenant does not pay or fails to move out after the lease has expired, the landlord may proceed in an unlawful detainer action. This requires strict notice and procedural compliance. A hearing is expedited and limited to the issue of whether the landlord has the right to possession and if payment is due.
3. Action for Rent: The landlord may bring an action for rent due during or after the termination of tenancy.
4. Upon Abandonment/Personal Property: The difference in the rental price for the balance of the term, reletting expenses, and rent for the period of vacancy are recoverable. (The landlord does have a duty to mitigate.) If a tenant abandons the property leaving goods behind, the landlord must notify at the last known address and hold the goods for 45 days. If no claim is made, the landlord may sell the goods.
· Retaliatory Evictions: If the landlord attempts to evict a tenant within 90 days of the tenant reporting housing code violations, the eviction is presumed void, so long as the tenant is current on rent.
Bailment
A bailment is legal possession by one person of an article owned by another person. If the bailed article is damaged, destroyed, or lost by the bailee, he may be liable for the loss. The standard of care to which the bailee is held depends on the nature of the bailment.
· If bailment is for benefit of bailee, the bailee is liable even for slight negligence.
· If bailment is for benefit of bailor, the bailee is only liable for gross negligence.
· If mutual benefit, then bailee is liable for ordinary negligence.
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