Essay Rule Statements

Question 1

Right to Lateral Support

Answer 1

A property owner has a right to have their land supported by the adjoining land.

Basically, one’s land should not be destroyed because of the expansion or excavation that occurs on adjoining land.

Question 2

What are the bases for a lateral support action?

Answer 2

1) Strict Liability

2) Negligence

Question 3

What is the strict liability theory for Lateral Support claims?

Answer 3

1) When destroyed land is in natural/undeveloped state, excavating landowner is strictly liable for any damage caused.

2) When adjoining land is has been improved/developed, excavating landowner is strictly liable only if land would have collapsed in natural state, regardless of improvement

If improvement contributed to the collapse, strict liability unavaliable.

Question 4

What is the negligence theory for Lateral Support claims?

Answer 4

When adjoining land has been improved and the improvement contributed to the collapse/damage.

Do the usual Duty –> Breach –> Causation –> Damages –> Defenses analysis for negligence!

Question 5

What is the Nonconforming Use doctrine for Zoning Ordinances?

Answer 5

When a zoning ordinance is enacted or modified, the ordinance usually allows properties who do not conform to new requirements to continue operating.

AKA, there is a preexisting nonconforming use that becomes grandfathered in.

Question 6

Can a property owner with a nonconforming use transfer the property, as well as the nonconforming use?

Answer 6

Yes!

Question 7

Expansion of Nonconforming Use

Answer 7

Generally, a property owner whose pre-existing nonconforming use has been grandfathered may not subsequently increase the nonconforming use.

However, the owner may be permitted to increase the frequency of the nonconforming use to upgrade the means to accomplish the nonconforming use, so long as:

1) The nature and character of the use does not constitute a substantial change.

Question 8

Involuntary Termination of Nonconformity

Answer 8

A property owner whose nonconforming use has been grandfathered may suffer termination of the nonconforming use due to natural forces.

Question 9

What is a Zoning Variance and what are it’s requirements?

Answer 9

A property owner may seek approval to use his property in a manner that is not in conformity with a zoning ordinance (i.e., a variance).

REQUIREMENTS:

1) Unusual and Exceptional Situation particular to Owner’s property

2) Variance does not deviate from comprehensive zoning plan

3) Compliance with zoning ordinance would result in unnecessary hardship.

4) Hardship is not created by owner

Question 10

What is foreclosure and who can initiate such proceedings?

Answer 10

Foreclosure is the process by which the mortgagor’s interest in the property is terminated because the mortgagor failed to pay the debts tied to the land.

Can be initiated by anyone with a security interest in the property.

Question 11

What is a deed of trust?

Answer 11

A deed of trust is a mortgage alternative wherein the borrower delivers title to a third-party trustee as security for the payment of the note to the lender

WITH the condition that the trustee re-conveys the title to the borrower upon payment of the note or to foreclose in the event of defaulting on the payments.

Question 12

How do you determine the priority between security interests?

Answer 12

If common law, first in time, first in right

If there is a recording statute:

1) Race Record

2) Notice Record

3) Race Notice Record

Question 13

What is a purchase money mortgage and how do you determine the priority of two different PMMs?

Answer 13

A purchase money mortgage (“PMM”) is when the purchaser of real property gives a mortgage to the seller of real property or a third-party lender and the loan is used to finance the purchase of the real property. The PMM must be given as part of the same transaction in which the title is acquired. Typically is always the senior interest, even if not recorded.

As between two PMMs, a seller’s PMM will take priority over a third-party PMM.

Question 14

What is a fee simple absolute?

Answer 14

Fee simple absolute (or “fee simple”) is the most common form of property ownership and the broadest ownership interest recognized by law.

**It is absolute ownership of potentially infinite duration. **

Question 15

What is a Joint Tenancy?

Answer 15

A JT exists when two or more persons own property with the right of survivorship. In addition to the right of survivorship, the four unities must be met:

Possession: Equal right to possess or use property

Interest: All tenants must have an equal interest

Time: Each interest must have been created at the same time

Title: Created by the same instrument

Question 16

How does one sever a Joint Tenancy?

What is the effect of a severance of there is still more than one joint tenants?

Answer 16

An inter vivos conveyance will sever a JT, resulting in a TIC between the transferee and the remaining tenant(s).

However, if there is more than one remaining joint tenant, then the remaining tenants will continue to be joint tenants as between themselves.

Question 17

What is a Tenancy in Common?

Answer 17

A TIC exists when multiple people have a present possessory interest. All that is required is the unity of possession.

No right to survivorship, and may devise through wills.

Question 18

What are the elements of Adverse Possession?

Answer 18

Occurs when someone takes possession of the land for the allotted period of time.

Exclusive: Possession is not shared with true owner.

Continuous: Possession must be continuous for statutory period. AP may tack predecessor’s time on the land, if there is privity. There can be no gaps in use. However, seasonal use is OK if it is consistent with type of property being owned.

Hostile: Possess without owner’s possession; must demonstrate an intent to claim the land as their own.

Open and Notorious: Reasonable person upon an inspection would be aware of the possessor’s claim and use of land.

Question 19

What is a form of adverse possession by one joint tenant to another?

Answer 19

Ouster!

The hostility requirement requires that an ouster occur, where a co-tenant refuses to allow another co-tenant access to the property.

Question 20

May a co-tenant compel other co-tenants to contribute based on their ownership interests?

Answer 20

Yes, when a co-tenant pays more than his share necessary of property related expenses. (Taxes, mortgage payments, etc)

However, co-tenant in sole possession can only collect to the extent the expenses exceed the property’s rental value.

Question 21

Does a co-tenant need to share rental fees with other co-tenants?

Answer 21

A co-tenant must provide other co-tenants for rent received from third parties. Are divided based on ownership interest.

However, a co-tenant an deduct expenses, such as repairs, when calculating net proceeds.

Question 22

What is a tenancy for years?

Answer 22

AN estate measured by a fixed and ascertainable term.

Termination occurs automatically at the end of the term. May end earlier by agreement of parties or following the landlord’s breach.

If lease term is longer than a year, then the lease must conform with the Statute of Frauds.

Question 23

Does a tenant have a duty to pay rent?

Answer 23

Yes, however, two exceptions:

1) Destruction of Premises

2) Material Breach by Landlord

Question 24

What defenses can be raised regarding a tenant’s duty to pay rent?

Answer 24

1) Breach of duty to repair

2) Breach of Implied Warrant of Habitability

3) Breach of covenant of Quiet Enjoyment

4) Unjustified Refusal to Consent to Valid Assignment

Question 25

What is the landlord’s Duty to Repair?

Answer 25

The landlord has an implied duty to repair under a residential lease, even when the lease attempts to place the burden on the tenant, except for:

1) Damages caused by the tenant.

2) Commercial lease where landlord has placed burden on tenant

Question 26

What is the Implied Warranty of Habitability?

Answer 26

Requires the landlord to maintain the property such that it is reasonably suited for residential use.

Applies to residential leases for multi-family dwellings.

Question 27

What are a tenant’s options when the landlord breaches the IWH?

Answer 27

The tenant may choose to:

(i) Refuse to pay rent

(ii) Remedy the defect and offset the cost against the rent, or

(iii) Defend against eviction.

Generally, the tenant must notify the landlord of the problem and give her a reasonable opportunity to correct the problem before withholding rent or remedying the defect.

Question 28

What is the Implied Warranty of Quiet Enjoyment?

Answer 28

When the landlord, someone claiming to be the landlord, or someone with superior title disrupts possession of the tenant. Such actions amount to an actual, partial or constructive eviction of the tenant.

Applies to commercial and residential leases.

Question 29

What is the difference between actual eviction and partial eviction?

Answer 29

For there to be an actual eviction, the landlord must remove the tenant from premises.

If the tenant is prevented from possessing or using a portion of the leased premises, then the tenant may seek relief for a partial eviction.

The tenant is completely excused from paying rent for the entire premises if the landlord is responsible for the partial eviction.

Question 30

What is constructive eviction?

Answer 30

If the landlord substantially interferes with the tenant’s use and enjoyment of the leasehold by breaching a duty to the tenant, then the tenant’s obligation to pay rent is excused due to constructive eviction only if:

1) The tenant gives notice and

2) Vacates the property within a reasonable amount of time.

Question 31

What is the difference between a lease assignment and a sublease?

Answer 31

Assignment: A complete transfer of the tenant’s remaining lease term.

Sublease: Transfer that is less than the entire duration of the remaining lease term.

Question 32

What are the majority and minority rules regarding a landlords refusal to assign or sublease?

Answer 32

Majority: Landlord must provide a commercially reasonable ground

Minority: Landlord may withhold permission at his discretion.

Question 33

What is the landlords duty to mitigate?

Answer 33

After a tenant unjustifiably abandons the leasehold, landlord is generally required to mitigate damages by trying to re-rent premises. Abandoning tenant will be liable for any deficiency.

Although a landlord can sue a tenant for rent as it becomes due, a landlord cannot sue for future rent due under the lease because the doctrine of anticipatory repudiation does not apply to leases.

Question 34

What is an express easement?

Answer 34

Express easement arises when it is created by the parties with:

1) A writing

2) Words of transfer

3) Signature of grantor of easement (servient estate holder)

4) Description of property being transferred

5) Names of grantor and grantee

AKA Deed requirements

[No need to record]

Question 35

What is an affirmative easement?

Answer 35

An affirmative easement gives the dominant estate holder the right to make affirmative use of the servient property.

Question 36

What is an easement appurtenant?

Answer 36

An easement that is tied to the land (in contrast to an easement in gross)

Most easements are appurtenant, unless there are clear facts to the contrary.

Question 37

When may an express easement be terminated?

Answer 37

1) Non-Use (need intent and affirmative act by dominant estate)

2) Abandonment (need intent and affirmative act by dominant estate)

3) Agreement by parties

4) Lands merge

5) End of necessity

Question 38

May a dominant estate holder expand it’s use of the easement?

Answer 38

Yes, so long as expansion is:

1) Reasonable

2) Does not impair or limit the servient holder’s use of the land

3) There are no express limits

Question 39

What is a race statute recording act?

Answer 39

Under a race statute, a purchaser who records first prevails over all other interests, regardless of her knowledge of any prior conflicting interests in the property.

Question 40

What is a notice recording statute?**

Answer 40

A purchaser need only purchase the land without notice of the prior interest to prevail under a notice statute. Notice statutes tend to protect subsequent purchasers against interest holders who could have recorded documents describing their interests but failed to do so.

Three Types:

1) Actual: Party has actual or personal knowledge of prior interest

2) Inquiry: Party would learn of prior interest upon reasonable inspection of property

3) Constructive/Record Notice: Party would have learned because prior interest was recorded

Question 41

What is a race-notice recording statute?

Answer 41

Under a race-notice statute, a subsequent purchaser who takes her interest without notice of prior conflicting interests and is the first to record prevails over all other prior claims.

Question 42

What is the shelter rule?

Answer 42

The shelter rule allows grantors who are protected by the recording act to shelter their grantees who would otherwise be unprotected.

Question 43

Do recording acts protect donees of land?

Answer 43

No; only protect subsequent purchasers of value.

Question 44

What is the implied covenant of marketable title?

Answer 44

Absent contrary language, a land sale contract always possesses an ICMT.

Marketable title is title that is free from defects that create an unreasonable risk of litigation.

Question 45

What is the doctrine of merger?

Answer 45

Under the common-law doctrine of merger, an obligation contained in the contract of sale, such as the seller’s duty to deliver marketable title or a description of the size or location of the property to be transferred, merges into the deed and cannot thereafter be enforced unless the deed contains the obligation.

Likewise, the right to sue for breach of the land sale contract merges with the deed at closing.

Question 46

In some jurisdictions, what is the effect of an individual suing for beach of covenant re: land sale contract when they have notice of encumbrances?

Answer 46

It would nullify the party’s ability to sue under breach.

Some jurisdictions say notice is irrelevant, though!

Question 47

What is a restraint on alienation?

Answer 47

A restraint on alienation is a restriction on transferring property. Direct restraints on alienation (e.g., restrictions that prohibit some or all types of transfers) are disfavored and are valid only if they are deemed reasonable.

To determine reasonableness, courts weigh the utility of the restraint against the harm resulting from its enforcement.

If the restraint is unreasonable, then it is rejected, and the property is alienable.

If the restraint is reasonable, then any attempt to alienate the property in violation of the restraint is null and void.

Question 48

What is the duty to deliver possession?

Answer 48

In most states, a tenant is relieved of the obligation to pay rent if the landlord fails to deliver actual physical possession of the leasehold premises.

Question 49

Can the IWQE be breached by other tenants?

Answer 49

The landlord is not liable for acts of other tenants, but he has a duty to take action against a tenant’s nuisance-like behavior and to control the common areas.

Question 50

What is a Tenancy at Sufferance?

Answer 50

A tenancy at sufferance exists for the period of time after the expiration of a lease during which the tenant remains on the premises and is bound by the terms of the lease that existed before expiration, including payment of rent.

Becomes a holdover tenant and is responsible for rent for period they remained.

Question 51

What is a Periodic Tenancy?

Answer 51

A PT is a repetitive, ongoing estate measured by a set period of time but with no predetermined termination date. It may be created by:

1) An express or implied agreement

2) Operation of law, which may result when a holdover tenant begins paying rent without an express lease agreement.

Question 52

What is a private nuisance?

Answer 52

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of land.

Anyone with** possessory rights in real property, or members of that person’s household** may bring a nuisance claim.

Question 53

What is a substantial interference re: private nuisances?

Answer 53

A substantial interference is one that would be offensive, inconvenient, or annoying to an average, reasonable person in the community. The interference must be more than fleeting or trivial.

A person with special sensitivities can recover only if the average person would be offended, inconvenienced, or annoyed.

Question 54

What is an unreasonable interferences?

Answer 54

The interference is unreasonable if it effectively renders the land unavailable for ordinary use or enjoyment by the possessor and either

(i) is a per se nuisance

(ii) does not comport with customs/expectations/common activities

(iii) results from failure to use reasonable care,

(iv) causes physical damage to land/fixtures,

(v) is motivated by malice.

Question 55

What is a public nuisance?

Answer 55

A public nuisance is an unreasonable interference with a right common to the general public—i.e., health, safety, or property rights of the community.

A private-party plaintiff can recover on a public nuisance claim only if her harm differs in kind from that suffered by members of the general public.

Question 56

Trespass to Land tort

Answer 56

Trespass to land occurs when the defendant’s intentional act causes a physical invasion of the land of another.

The defendant need only have the intent to enter the land (or to cause a physical invasion), not the intent to commit a wrongful trespass.

Question 57

What is an easement?

Answer 57

An easement is the right held by one person to make specific, limited use of land owned by another.

The land that is subject to the easement is the servient estate, whereas the land that benefits from an easement is the dominant estate.

Question 58

How do you determine the scope of an express easment?

Answer 58

1) Look for express terms

2) If not well defined, courts look at intent of parties.

FUrther, look to see what the scope of the easement is under a reasonable standard in light of purpose of easement.

Exceeding the scope is not valid termination, but can seek an injunction to return to scope!

Question 59

What is a covenant?

Answer 59

Either

1) Restricts the right to use real property

2) Impose obligations on the owners of real property

Real covenants or Equitable servitudes!

Question 60

What are the requirements for an covenant?

Answer 60

1) Writing, conforming with SOF

2) Notice (actual, record, and inquiry notice)

3) Intent (Intend for rights and duties to run with land to successors

4) Touch and Concern (Burdens or benefits parties as owners of land, not personally)

5) Horizontal Privity (Shared property interest apart from covenant itself)

6) Vertical Privity (Successor holds same estate as original party)

Question 61

What are the two differences between real covenants and equitable servitudes?

Answer 61

Real covenants **seek damages; they also require privity for their burden to run

Equitable servitudes seek equitable relief; they also do not need privity.

Question 62

What is the defenses of changed circumstances?

Answer 62

When the benefit of a restriction cannot be realized due to changed circumstances, restriction is not enforceable.

EX: Drastic changes in surrounding area

Question 63

What are the requirements of a valid deed?

Answer 63

1) Intent to make a present transfer of interest

• Ask if there is anything that allows the grantor to change their mind!

2) In writing re: SOF

• Grantor’s signature
• Words of transfer
• Named grantee
• Description of property

3) Be delivered to grantee

Question 64

May a co-tenant charge another rent?

Answer 64

If there is no agreement to the contrary, each cotenant has the right to possess the whole property and is not required to pay rent to the other co-tenants for the value of her own use of the property, even when the other co-tenants do not make use of the property.

Similarly, a cotenant is generally not required to share profits earned from the use of the property, such as from a business conducted on the property.

Question 65

Is a co-tenant entitled to rent from a third-party?

Answer 65

Yes, pursuant to their interest.

Question 66

Does a co-tenant have the right to be reimbused by other co-tenants for repairs made?

Answer 66

No.

However, the majority view is that contribution for necessary repairs can be compelled through an action for accounting or partition.

When a third party is occupying the property, a cotenant who collects rent from the third party can subtract expenses for necessary repairs from the rent received before sharing the rent with other cotenants.