Final Flashcards

Question

Term of years

Answer 1

An estate that lasts for some fixed period of time or for a period computable by a formula that results in calendar dates for beginning and ending

Answer 2

lease for a period of some fixed duration that continues for succeeding periods until L or T gives notice of termination; must be appropriate/timely notice to terminate; notice must be given a full period in advance. * Renews automatically from period to period

Answer 3

* Tenancy of no fixed period that endures so long as both L and T desire * Ends when one of the parties terminates it * Usually a period of notice is required; 30 days is the default

Answer 4

* Holdovers; L has the right to terminate at any time, will be ended by eviction or something to that effect * T not a trespasser, but a holdover, had a right but no longer does.

Answer 5

From Garner case: look at the intention from the lease * Could also be a license or concession-- look to following factors: intention, number of restrictions, exclusivity, rights and remedies

Answer 6

Cannot discriminate under FHA * Law exempts owners of single-family houses that own no more than 3 houses and not use brokerage service

Answer 7

Two rules: English rule and American Rule * English (MIN but growing popular) unless stipulated otherwise, in every lease there is an implied covenant that L should make premise be open for entry at start of lease **If not sue L * American rule (MAJ but declining) when L fails to make premise available to T at beginning of lease, sue tenant still occupying land

Answer 8

Two rules: English rule and American Rule * English (MIN but growing popular) unless stipulated otherwise, in every lease there is an implied covenant that L should make premise be open for entry at start of lease **If not sue L * American rule (MAJ but declining) when L fails to make premise available to T at beginning of lease, sue tenant still occupying land

Answer 9

Leasehold interests freely alienable by an assignment or sublease. * Policy: free alienability serves economic advantages or society at large because property gets to its highest/best use. * If L wants to restrict, he must spell that out in the lease

Answer 10

creates a new Leasehold out of the main leasehold (not for full duration of lease) ** No privity in estate between T1 and L. T liable to L for both privity of estate and K; T1 subtenant of T

Answer 11

T transfers his entire interest to another. Takes original leasehold interest between L&T and passes it along to assignee, T out of the picture as far as holding of estate concerned. ** Privity of estate between T1 and L; Privity of K between T and L

Answer 12

MAJ: when lease conveyed for entire time left in lease: assignment; lease conveyed for a time not for full duration of lease: sublease MIN: Look to intent of parties

Answer 13

Privity of K: exchange of promises Privity of Estate: Mutual or successive relation to some eight in property; legal relationship two parties bear when their estates constitute one estate in law

Answer 14

*Termination by forfeiture occurs when T breaches the lease, enabling a L to re-enter the property and terminate the lease ** If T terminates by surrender, then the assignment to T1 probably still okay, but if L terminates by forfeiture then T1 out of possession.

Answer 15

Majority Rule: a restriction on transfer of a T’s interest in a lease may absolutely prohibit transfer (makes the lease less attractive though)

Answer 16

MAJ: Can refuse a proposed assignee no matter how unreasonable refusal is MIN (but trending): refusal of proposed assignee when there is a commercially reasonable objection (financial responsibility of proposed assignee, suitability of property, legality of new use, need for alteration, nature of the occupancy, competition between Ts or with L) ** Moral/personal convictions not reasonable ** shows good faith and fair dealings ** different for residential-- can be unreasonable

Answer 17

lease provision common in commercial property that allows the L to terminate the lease if the T finds a new T and profit off of the new T

Answer 18

L may legally use self help to retake premise provided that (1) l is legally entitled to possession for reasons such as T holds over after lease termination or where T breaches the lease and contains a re-entry clause and (2) the L's means of re-entry are peaceable

Answer 19

self-help is never available to dispossess a T who is in possession and who has not voluntarily surrendered or abandoned the premises. **In some jurisdictions, the prohibition of self-help only applies to residential leases

Answer 20

**Distraint or distress for rent-- only in some states, L can seize a defaulting T's property on premise until they receive overdue payment without all prior hearing ** Statutory remedies ** Forcible entry & unlawful detainer statute: eviction->judgment rendered-> T refuses-> writ issued and executed by law enforcement and removes T ** Summary Proceedings: most common intended to be quick & efficient way to recover possession after termination. After only few days notice to T to bring eviction status. T can raise condition of premise as defense. Can be expensive and time consuming

Answer 21

Modern (MAJ): L has duty(reasonable diligence) to mitigate damages when seeking to recover rent from defaulting T Old (MIN): L has no duty to mitigate damages caused by defaulting T **Think of case where engaged man end up single and tries to end lease

Answer 22

T's offer to end a tenancy (look at T's intent) *Terminates this if L accepts * extinguishes T's future rent but liable for accrued rent or previous breach

Answer 23

If L breaches the covenant of quiet enjoyment, we have an eviction. Once evicted, T relieved of any obligation to pay rent. 2 types: Actual and Constructive

Answer 24

L has done something to keep T from physically possessing the property (even a portion of the property); something like being physically removed or kept out by the L. Majority of jurisdictions treat a partial actual eviction the same as a full actual eviction.

Answer 25

If (a) condition of property amounts to breach of covenant of quiet enjoyment and (b) the breach is so substantial as to justify T absenting the premise and (c) T thereafter leaves within reasonable time CIRCO** Need provision for this to work ** Partial constructive evictions, T not relieved of obligation to pay rent but right to abatement of rent

Answer 26

In every lease their is an implied covenant that T shall have undisturbed right of possession, occupancy, and beneficial use of every portion of the leased premises IN CL: only duty to not interfere, no duty to repair. T has more rights now

Answer 27

under K law, if the leased premises violated codes/laws then it is illegal to lease the premises * K illegal and uneforceable ** Precursor to IWH

Answer 28

L will deliver over and maintain, through period, premises that is safe, clean, and fit for human habitability. ** Code violation a breach; mere annoyance not enough ** Warranty cannot be written out

Answer 29

T can raise it as a defense for to summary eviction T can terminate and sue bed faith & intentional award of punitive damages Basic K remedies: recission, reformation, damages for discomfort and annoyance T may withhold rent, retain possession, and have the agreed upon rent reduced by virtue of L's breach

Answer 30

MOD- forbid retaliatory action by Ls renting res space CL gave L's unlimited freedom to terminate (reason's irrelevant) Doctrine inapplicable if a T is in default on rent payments

Answer 31

T has a duty not to commit waste. Two types: Permissive and Voluntary Permissive: refers to an injury caused by an omission Voluntary: waste caused by destruction or carrying away of something attached to the property Duty breached if T makes such change as to affect a vital and substantial portion of the premise (changing characteristic appearances, purpose of erection, change of realty)

Answer 32

Easements and Covenants

Answer 33

Usually created by a grant; grant of a nonpossessory property interest (right of use of someone else's land; but no ownership)

Answer 34

Promise about the use of the Tenement that creates in someone who doesn't own that tenement certain rights (EX. HOA) * Whoever owns the tenement is subject to the restriction (two types)

Answer 35

Piece of land held by an owner

Answer 36

Real covenants: recognized/ enforce at common law, breach results in damages Equitable servitudes: kind of covenants that courts of equity would enforce usually by injunction

Answer 37

Affirmative easements; Negative Easements; Appurtenant Easements; Easements in Gross

Answer 38

granted by a servient owner, gives a neighbor the right to enter or perform an act on the servient T.

Answer 39

easements forbidding one landowner from doing something on his T that might harm a neighbor (CL hated these because of preference of free alienability)

Answer 40

(tied to the land) gives the right to the owner of the T that the easement benefits; requires both a dominant tenement and a servient tenement (benefits a dominant tenement, burdens a servient tenement); usually transferable along with the dominant tenement to successive owners.

Answer 41

(tied to the person) not tied to the title of the T; belongs to a person/entity, not associated with ownership of the T; may be alienable or inalienable (personal); benefits the easement owner personally rather than in connection with the use of T that the person owns; involves no dominant estate, only a servient one

Answer 42

main way is by written grant, subject of SOF * MOD rule: Our primary objective in construing a conveyance is to try and give effect to the intent of the grantor (grants to be interpreted in the same way as other Ks)

Answer 43

one cannot reserve an interest in property to a stranger to the title (Rule prevents creating easements in third parties because of the principle that only parties to a deed can take advantage of it)

Answer 44

Creation of easement: a provision in a deed creating some new servitude (new property interest) which did not exist before as an independent interest, retained by the grantor while the rest of the property is given to the grantee Ex: O to A reserving a 20-foot easement of way along the southern boundary

Answer 45

An exception is a provision in a deed that excludes from the grant some pre-existing servitude on the T. Ex: after the above conveyance A to B except for easement previously reserved by O An easement can have a duration comparable to any possessory estate

Answer 46

Oral or written permission given by the occupant of the T allowing the licensee to do some act that otherwise would be a trespass Revocable, whereas an easement is not; two exceptions to revocability: * A license coupled with an interest (one that is incidental to ownership of a chattel on licensor’s T) cannot be revoked [ex: O grants A the right to take Timber] * A license that becomes irrevocable under the Rules of Estoppel [reliance key]

Answer 47

Rule: Must have substantial reliance and/or investment and owner know/have reason to know of the reliance/investment

Answer 48

With easements by implication, there must have been a common ownership at the time of the implication Two types: Implied easement based on prior use and Easement Implied by Necessity

Answer 49

Requirements: (1) severance of the title to T initially undivided (2) an apparent existing and continuing use of one parcel at the time of the severance and (3) reasonable necessity for the use at the time of the severance * relaxation apparent for underground use *Chronology of transfer important * Reasonable necessity = alternative access cannot be obtained w/o a substantial expenditure of $/labor

Answer 50

Some jsx distinguish between implied reservation (in favor of grantor) and implied grant (in favor of the grantee) * quasi easement endure forever

Answer 51

(1) that there was a unity of ownership of the alleged dominant and servient estates (2) that the easement is a necessity, not mere convenience and (3) the necessity existed at the time of the severance of the two estates * MAJ strict necessity MIN reasonable necessity * Only endures as long as necessary

Answer 52

MOD: analogous to AD (exclusive, open and notorious, adverse, and continuous) Ex: neighbor uses path on your land w/ objection for 8 years. * Exclusive for this means there must not be a dependance on a similar right in others Usually rely on lost grant theory ** to prevent this, owned must effectively interrupt or stop the adverse use

Answer 53

To secure an easement under the lost grant theory the claimant must show that the use was not permissive and that the owner didn't object MAJ: presumption is that an unexplained, open, or notorious use of land, continued for prescriptive period, is non permissive i.e., adverse MIN(growing) initial presumption of permissive use applied, at least to enclosed or developed land cases in which there is a reasonable inference of neighborly sufferance or acquiescence

Answer 54

obtained by long continuous use by the public under claim of right. Owner must be put on notice AD right being claimed by public

Answer 55

Appurtenant easement: benefits and burdens pass automatically In gross: may not be assignable. Assignable if parties intended so

Answer 56

One Stock rule: an easement in gross, though assignable, must be exercised as if owned by one person/entity (largely abandoned rule, makes sense in the context of profits though, mining rights for example) Modern rule: an easement in gross is divisible when the parties so intend or when the easement is exclusive (meaning that the easement owner has sole rights to engage in the activity the easement permits) also look to the nature of the easement (would division overburden the servient estate?)

Answer 57

MAJ: holed of an appurtenant easement cannot use the easement to benefit a non-dominant parcel and that any such use is subject to an injunction MIN: appurtenant easement may be extended to non-dominant land so long as no unreasonable burden on the servient estate results and so long as the benefits to the dominant estate outweigh the burden on the servient estate

Answer 58

(1) owner agrees to release easement (2) If fixed duration, and duration ends (3) if agreeance of ending after event and event happens (4) easement by necessity ends when no longer necessary (5) Merger- easement owner becomes owner of servient estate (6) End through estoppel if servient owner relied upon statement or representation by the easement owner (7) gov ends by condemnation (8) end by prescription if servient wrongfully and physically prevents easement from being used for the prescriptive period (9) by abandonment (10) easement would survive tax foreclosure, but not mortgage if made after mortgage happened (11) TRAD - no end for changed condition however, is significant changes termination by frustration of purpose

Answer 59

the right of the dominant owner to stop the servient owner from doing something on the servient land (most commonly some sort of use restriction) * broadly not enforce but some that are enforced are view easements and solar easements

Answer 60

Covenants enforceable by law: real covenants * two sides: burden and benefit

Answer 61

Intent Touch and concern Privity of estate

Answer 62

having a close relationship to ownership of he land, not personal

Answer 63

Two types: Horizontal and Vertical

Answer 64

P/E between the original covenanting parties, requires the covenants to be a part of a conveyance * TRAD if we don't have this at time promise made covenant does not run with the land * No P/e w/ neighbors without a conveyance P/K not enough to run

Answer 65

P/E between one of the original covenanting parties and a successor in interest * no vertical privity if the title is created by AD

Answer 66

covenants enforceable in equity * both affirmative and negative covenants enforceable in equity

Answer 67

(1) intent (2) touch and concern (3) notice Parties to the covenant intended it to run *not just personal promise between a & B * No privity required here The subsequent purchaser had notice (actual, constructive, inquiry) of the covenant in order to be bound The covenant touches and concerns the land

Answer 68

Covenants restricting the use of land almost always have been held to touch and concern the land * Courts have been wary about enforcing affirmative covenants against successors, they don’t like issuing orders to perform a series of acts requiring continuing judicial supervision o Annual fees for example, however, if the purpose/function of the payment is the ultimate benefit of the land involved, then that is okay  After the original promisor has conveyed the burdened land, the promisor cannot be sued on the covenant, either in law or in equity

Answer 69

Analyze the running of the covenants both as real covenants and as equitable servitudes; the privity requirements makes the law of real covenants complex; the law of equitable servitudes is generally easier to apply, but the burden only runs in equity against those on notice

Answer 70

* 3rd restatement lumps real covenants and equitable servitudes together ** discards vertical privity requirement and touch and concern requirements ***Not widely adopted

Answer 71

Must be in writing and signed by covenantor * cannot arise by estoppel, prescription, or implication

Answer 72

* implied under certain limited circumstances ** LOOK AT OUTLINE ** Not obtained by prescription

Answer 73

may not enforce racially discriminatory covenants it would violate EPC

Answer 74

(1) merger on basis of unity of ownership of the benefit and burden by the same person (2) formal release- usually written (3) Acquiescence p failed to enforce servitude against other breaches then seeks to do to against D (4) abandonment (5) equitable doctrine of unclean hands - refusal to enjoin violation of a servitude that P previously violated (6) equitable doctrine of laches unreasonable delay by P to enforce servitude (7) estoppel D relied on P conduct making it inequitable to allow P to enforce the servitude (8) eminent domain (9) Prescriptions: not sued for lonf enough, covenant goes out of existance (10) changed conditions (11) relative hardship doctrine

Answer 75

Deed--most typical Easement through estoppel Implied easement from prior use (quasi easement) Implied easement by necessity Easement by prescription

Answer 76

the grantor essentially warrants that the deed conveys to the grantee fee simple title to real estate free of liens, encumbrances, and other adverse claims or defects.

Answer 77

limited warranty deeds) do not warrant against title problems that predate the grantor’s ownership, but they do warrant against liens, encumbrances, and other title defects attributable to the grantor

Answer 78

warrant nothing, but they are fully effective to transfer whatever interest the grantor may have at the time the deed is delivered.

Answer 79

first claimant to record wins

Answer 80

generally protect a BFP who has no notice of prior, unrecorded claim

Answer 81

generally protect a BFP who has no notice of a prior, unrecorded claim and who records first

Answer 82

Actual (even if not recorded) Constructive(Anything recorded) Inquiry (certain circumstances raise red flags

Answer 83

Identify grantor/grantee Show intent to convey include lengthy land description Signed by grantor (and usually notarized) Delivered