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Property Law > Final Exam > Flashcards

Final Exam Flashcards

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1
Q

Tenancy for a term of years

A

Tenancy for a fixed period of time.

Automatically ends at termination date.

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2
Q

Types of leaseholds

A

Tenancy for a term of years
Periodic tenancy
Tenancy at will
Tenancy at sufferance

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3
Q

Periodic tenancy

A
  • Tenancy for successive periods of the same duration (month to month)
  • Can be created expressly or by implication at the end of a tenancy for years if tenant remains in possession
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4
Q

Tenancy at sufferance

A

Arises when tenant wrongfully remains in possession after the expiration of a lawful tenancy

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5
Q

Holding over

A

If a tenant continues in possession after his right to possession ends, landlord can evict OR bind tenant to a new periodic tenancy

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6
Q

Tenant’s duties

A

General Rule: T has a contractual duty to pay rent to L in exchange for his possessory interest in L’s land.
Cannot commit waste
Cannot use premises for illegal purposes

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7
Q

Types of waste

A

Affirmative waste: affirmatively causing harm to leased property
Permissive waste: tenant allows waste to occur due to neglect/inaction
Ameliorative waste: Tenant making permanent improvements to leased property w/out landlord’s permission

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8
Q

Landlord’s remedy

A

Evict tenant who breached duties under unlawful detainer statute

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9
Q

Surrender

A

Tenant wrongfully moves from leased property with intent to terminate the lease and landlord accepts surrender

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10
Q

Abandonment

A

If L holds tenant to the terms of the lease after tenant wrongfully moves, T has abandoned property and L can recover damages

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11
Q

Landlord’s duties

A
  • Duty to deliver possession of premises
  • Implied covenant of quiet enjoyment
  • Implied warranty of habitability (residential)
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12
Q

Duty to deliver possession

A

Landlord is only required to give tenant legal possession on day one. Tenant has responsibility to get rid of holdover tenant.

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13
Q

Implied covenant of quiet enjoyment

A

-Tenant shall have the right of possession, occupancy and beneficial use of the leased premises.
-The covenant can be breached
a. actual eviction: when the landlord denies the tenant of the occupancy of all of the leased premises.
b. partial eviction: landlord depriving a tenant of use of a portion of the leased premises.
c. constructive eviction: when the landlord breaches a covenant/warranty and this breach deprives the tenant of the beneficial use of some or all of the leased premises.
If breached: Tenant would no longer have to pay rent, can terminate lease and seek damagesI

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14
Q

Constructive eviction

A

Defense asserted by tenant after nonpayment.
i. Landlord breaches duty
-Implied covenant of quiet
enjoyment
-Implied warranty of habitability
ii. Breach caused loss of substantial use + enjoyment of the property
iii. L had adequate notice/opportunity to repair
iv. T vacates within a reasonable time

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15
Q

Implied warranty of habitability

A

A. Implied in all residential leases. Landlords of residential properties are required to deliver and maintain premises that are safe, clean and fit for human habitation.

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16
Q

Sublease

A

original tenant retains an interest at the end of the sublease.
A. Original tenant is in privity of estate AND privity of contract w/ landlord.
B. The sublessee pays rent to the original tenant and is not personally liable to the landlord.
C. A sublessee cannot enforce any covenants in the lease against the landlord except the implied warranty of habitability in a residential lease.
D. Only OG tenant is liable for unpaid rent

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17
Q

Assignment

A

a complete transfer of the tenant’s interest.
A. An assignee is in privity of estate with the landlord.
B. The assignee and the landlord are liable to each other in the same way that the original tenant and landlord were.
C. The original tenant remains in privity of contract with the landlord and is liable for rent if the assignee does not pay, but landlord can go after both

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18
Q

Fixtures

A

Chattels incorporated into structure are fixtures. Plumbing, toilets, and light fixtures, for example, are all considered fixtures. Once incorporated into the structure they become part of the real property. (Exception: Trade fixtures can be removed from commercial lease)

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19
Q

Acquisition of property by capture

A

First in time, first in right: ownership of captured property with no original owner is determined by who possessed the property first

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20
Q

Acquisition by find

A

G. Acquisition by Find
1. The finder of property has the right to bring an action to recover it against anyone but the true owner.
2. Lost: Property may go to finder or owner of property where item was found in case true owner wants to come back for it.
3. Mislaid: true owner intentionally placed the item in a particular spot and forgetful true owner will remember and return to retrieve.
A. Courts favor leaving possession with owner of property where item was found over awarding possession to the finder
4. Abandoned: true owner voluntarily relinquished rights to found property. Look to conduct of finder and rights of owner of land which item was found on.

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21
Q

Adverse possession

A
  • Exclusive
  • Open and notorious
  • Continuous possession: The adverse possessor is merely required to be on the premises in the manner that a true owner would be.
  • For the statutory period
  • Hostile
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22
Q

Gift

A
  1. A gift is a present transfer without consideration.
  2. Two types of gifts:
    A. Inter vivos gift: a gift that is made during the donor’s lifetime, but not in contemplation of death.
    • Not revocable once made.
    B. Gift causa mortis: a gift that is made during the donor’s lifetime, but it is made in contemplation of death by the donor.
    • Revocable by the donor if donor does not die from the peril that prompted the gift. Some courts say the gift is automatically revoked if the donor does not die.
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23
Q

Three requirements for a gift

A

A. Intent to make a gift: Donor must intend to make a present transfer of an existing interest in the property.
B. Delivery: Donor must deliver possession to the donee with the manifested intention to make a gift. issue most in dispute
C. Acceptance: Acceptance by the donee is required. (Seldom an issue, courts presume acceptance upon delivery unless donee expressly refuses a gift)

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24
Q

Types of present possessory estates

A
  • Fee simple absolute
  • Fee simple determinable with a possibility of reverter
  • Fee simple subject to condition subsequent with a right of entry
  • Fee simple subject to executory limitation
  • Life estate
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25
Q

Fee simple absolute

A

A. Owner has all the present rights and all of the future rights in the property
B. Example: “To A and his heirs”
C. When the terms of a will are ambiguous, said will shall be determined to have passed a fee simple absolute.

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26
Q

Fee simple determinable

A
  • A fee simple determinable ends automatically upon a stated condition. Has a possibility of reverter.
  • “To A and his heirs so long as the property is used for residential purposes”
  • AUTOMATICALLY reverts back to grantor if stated condition occurs
  • Look for durational language “so long as, while, during”
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27
Q

Fee simple subject to condition subsequent

A
  • If condition violated, grantor or his heirs have to take action to reclaim the property. Right of reentry. NOT AUTOMATIC
  • “to A and his heirs provided that no alcohol is served on the premises. If alcohol is served on the premises O may reenter the premises and terminate”
  • Look for conditional language “provided that, on the condition”
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28
Q

Fee simple subject to executory limitation

A

• A fee simple subject to an executory limitation is one where the grantee’s rights get cut off and the property is transferred to a third party if the stated condition occurs. Executory interest

29
Q

Restrictions on alienation

A

Any limitation on the grantee’s rights to alienate (transfer) the property is void as a matter of public policy

30
Q

Life estate

A

A. Life estate for the life of the grantee
B. I give this property to you for life. You’re the owner of it for life. At the end of your life somebody has future rights. If not specified, it reverts to grantor. But can specify a remainder “to a for life then to b, b has remainder”
C. Followed by reversion or remainder

31
Q

Life estate pur autre vie

A
  • Life estate for the length of somebody else’s life.

* I transfer land to A for the life of B.

32
Q

Future interests retained by transferor

A

Reversion
Possibility of reverter
Right of entry

33
Q

Future interests in transferee/third person

A

Vested remainder: A remainder is vested when 1. it is given to an ascertained person; and, 2. it is not subject to a condition precedent.
Contingent remainder: A remainder is contingent when either 1. it is given to an unascertained person; or, 2. it is made contingent upon some event other than the natural termination of the earlier estate.
Executory interest: cuts off the prior estate or divests the prior estate.
• Shifting: interest that cuts short a prior estate
• Springing: interest that commences in the future.
o Gap after end of life estate and when new owner’s rights become possessory
o O conveys Blackacre “to A for life, then to B if B gives A a proper funeral.”

34
Q

Rule against perpetuities

A

No interest is valid unless it shall vest or fail to vest within 21 years of a life in being at the time the grant is made.
-Only applies to interests not vested at the time they are created (contingent remainders + executory interests)

35
Q

Joint tenancy

A

A. A joint tenancy is a form of co-ownership whereby the surviving joint tenant takes the property through the right of survivorship.
b. Creation of joint tenancy requires use of clear language that a joint tenancy is intended.

36
Q

Four unities required for creation of joint tenancy

A 
-The four unities required for creation:
o	1. unity of time
Joint tenants have to take at the same time
o	2. unity of title
Have to take in same document of title
o	3. unity of interest
Equal interests (50/50, 25/25/25/25)
o	4. unity of possession 
All have equal right of possession to the entire property
37
Q

What severs a joint tenancy?

A

o YES:
 When one party to a joint tenancy conveys his portion of the joint tenancy without the other’s permission, it destroys the joint tenancy. The new party takes his or her interest as a tenant in common.
 A conveyance by a joint tenant to herself severs the joint tenancy.
 Lien has to foreclose on property and force sale to sever.
o NO:
 A judgment lien on the property does not sever the joint tenancy.
 A mortgage obtained by one joint tenant on the property does not sever the joint tenancy.
 A lease does not sever a joint tenancy.

38
Q

Tenancy in common

A
  • A concurrent estate with no right of survivorship. Tenants can hold different interests in the property, but each is entitled to possession of the whole. A tenant in common can transfer his or her interest in the property.
  • When property is taken jointly and no form of co-ownership is specified, a tenancy in common is presumed.
39
Q

Incidents of co-ownerships

A

A. each co-tenant has a right to possess the entire property
B. a co-tenant in possession can retain profits from use of the property, but must share net rents from third party and net profits gained from extraction of resources from the land.
C. a co-tenant can encumber his interest in a concurrent estate but not the interest of other co-tenants. If the property is a joint tenancy, an encumbrance does not sever the joint tenancy unless there is a foreclosure.

40
Q

Requirements for valid transfer of real estate

A
  1. Present intent to convey
  2. Valid deed
    - ID grantor/grantee
    - describe the land
    - demonstrate intent to transfer
  3. Delivery
  4. Acceptance (presumed)
41
Q

Statute of frauds

A

• Contract for sale of real property has to be in writing to be enforceable.
• To satisfy the Statute of Frauds
o the writing needs to describe the real estate and state the price.
o it has to be signed by the party against whom we are trying to enforce the contract.
• Exceptions: An oral k for purchase of real property is enforceable:
o Part performance/Partial payment
o Estoppel
 An oral agreement to transfer land can be specifically enforced when the other party detrimentally, reasonably and justifiably relied on the oral promise.

42
Q

Good and marketable title

A

•All land sale contracts contain an implied warranty that the seller will provide marketable title free from encumbrances. This is a title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable, prudent and intelligent person.

43
Q

Encumbrances

A

o claim against asset by entity other than owner. Impacts the transferability and/or use of subjected property
o Public restrictions/zoning laws/ building standards are not encumbrances because they are publicly known.
o If property is currently in violation of such regulations, it would be an encumbrance.
o Nondisclosure of easement is encumbrance.

44
Q

Quitclaim deed

A

Does not come with any promises other than the grantor is transferring any interest in the property the grantor might have. There are no implied warranties.

45
Q

General warranty deed covenants

A

G. Covenant of seisin (present—do not extend to subsequent purchaser)
• Grantor warrants they own the property and has the legal right to convey it
H. Covenant of right to convey (present)
I. Covenant against encumbrances (present
J. Covenant of quiet enjoyment (future– extend to a subsequent purchaser.)
• No one else with title is out there who will interfere with your use of the property
K. Covenant of warranty (future)
• I will defend you if someone comes along and challenges your title
L. Covenant of further assurances (future)
• I will do everything necessary in the future to perfect title if there is some flaw (correct deficiencies)

46
Q

Recording statutes

/title assurance

A

A. Recording statutes/acts help determine who has priority when there are multiple claimants.

47
Q

Race statute

A

whoever records first prevails. subsequent person who records first prevails over earlier conveyance.
o Example: “Any conveyance of an interest in land shall not be valid against any interest that was recorded first.”

48
Q

Notice statute

A

subsequent person prevails over earlier person if they took without notice of earlier interest. under a notice statute, a subsequent bona fide purchaser prevails over a prior grantee who failed to record.

49
Q

Race notice statute

A

subsequent party prevails over earlier interest if subsequent party takes without notice AND records first. under a race-notice statute, a subsequent bona fide purchaser prevails over a prior grantee who failed to record provided that the subsequent purchaser records first.

50
Q

Types of notice

A
  • Actual: actually aware of interest
  • Inquiry: reasonable person would have questions and should inquire further based on the facts
  • Record: If earlier party records then any subsequent party has record notice. Subsequent party deemed to know what is recorded
51
Q

Seller’s duty to disclose defects

A

A. Nondisclosure justifies rescission as a matter of equity when a seller created a condition and a buyer, exercising due care, was unlikely to discover the defect.

52
Q

Specific performance

A

Preferred remedy in breach of land sale contracts

53
Q

Nuisance

A

• A private nuisance is a substantial and unreasonable interference with another person’s use and enjoyment of their property.
o Substantial: Extent and degree of interference
o Unreasonable: Balancing D’s interference with P’s use and enjoyment with whether or not D is making reasonable use of their property
o Impacts an individual or small group of people
• A public nuisance is a substantial and unreasonable interference with the health, welfare or safety of the public or some subgroup of the public.
o Typically only a public official can challenge a public nuisance. A private person can sue over a public nuisance only when the private person suffers some unique harm as a result of the nuisance.

54
Q

Injunctive relief factors

A

o Inadequate legal remedy
 Money damages may be inadequate where behavior that causes harm continues, have to sue all the time. So injunction is preferrable
o Property right/Protected interest
o Feasibility
 If court is going to order someone to do something/stop doing something, it must be feasible for them to comply and feasible for court to oversee it
 Injunctions are usually feasible
o Balancing of hardships
 In balancing the equities, a court should consider the injury which may result to the defendant and the public by granting the injunction as well as the injury to be sustained by the complainant if the request for an injunction is denied.

55
Q

Right to lateral support

A

• A landowner has a right to have his or her land undisturbed by
excavation on an adjoining site.
• If landowner’s land is in its natural state, the adjacent property owner is strictly liable if the excavation caused the landowner’s land to slip or subside.
• If landowner’s land is improved with buildings, the adjacent property owner is strictly liable only if the land would have collapsed in its natural state. Otherwise, the landowner must prove that the adjacent property owner excavated in a negligent manner in order to recover.

56
Q

Right to subjacent support

A

• A landowner who has authorized a party to excavate under his
land is entitled to have the surface of the land supported.
• The party excavating is strictly liable for any damage caused to
the land in its natural state and to any buildings that existed on the land at the time the excavation was authorized.
• A landowner must prove the excavation occurred negligently if
the landowner wants to recover for damage to buildings constructed after the excavation was authorized.

57
Q

Right to exclude all others

A

• One of the fundamental aspects of land ownership is the right to exclude others. This entitles the owner to sue for trespass to land and ejectment. It also entitles the land owner to use reasonable force to exclude others from the property or to oust them from the property.

58
Q

Easements

A

An easement is a nonpossessory interest in land allowing the easement holder to use the land in a way that would otherwise be a trespass. Easements are perpetual unless limited by the grant.
-Must be in writing (unless estoppel)

59
Q

Appurtenant v. Gross easement

A

o Appurtenant
 Two properties are linked together as servient and dominant estates.
 The servient estate is the estate that allows the easement, where the dominant estate is the one that benefits from the easement.
o Gross
 An easement in gross is a legal right to use another person’s land for as long as the owner owns that land or the holder of the easement dies.

60
Q

Creation of easements

A

• Express grant
• Express reservation
• Implication
oImplied from preexisting use: Easement will be implied from preexisting use only when reasonably necessary for continued use and enjoyment of parcel that had been retained
o Implied without preexisting use due to necessity  Strict necessity- if there is any access point for b, even if difficult, b does not have an easement
• Prescription (without owner’s permission)
o Obtained when using land in a way that is
 Open and notorious
 Adverse to rights of true owner (hostile)
 Continuous and uninterrupted
 For the statutory period
• Estoppel

61
Q

Licenses

A

Permission to enter or use land or property owned by another in a manner that would otherwise constitute a trespass.
Usually for a narrow/specific purpose.
-License to use or enter another’s land may be either express or implied.
-Revocable at any time (unless estoppel)
-Can be created orally, unlike easement
-Ex. attending game at a stadium

62
Q

Profits

A
  • A profit is a nonpossessory interest in land.

* Holder of profit is entitled to take minerals, timber, crops, oil or game from real property.

63
Q

Real covenant v. Equitable servitude

A

Real covenant: promise concerning the use of land that benefits and burdens the original parties to the promise and also their successors where money damages are sought as remedy.
Equitable servitude: where injunctive relief is sought

64
Q

Benefit/burden of real covenants

A

a. The benefit of the cov. Is the ability to enforce the covenant
b. The burden of the cov. Is being subject to it or bound by it

65
Q

Real covenant, burden runs with land factors

A

(WITCH VN)

  1. Written
  2. Intent: Original parties must intend for covenant to be binding on successors
  3. Touch and concern: covenant must touch and concern the land, must relate to property in some way
  4. Horizontal privity: Original parties must have lessor/lessee or grantor/grantee relationship
  5. Vertical privity: Successor must take original party’s entire interest
  6. Notice: Successor must have notice of covenant
    a. Actual, Record or Inquiry
66
Q

Real covenant, benefit runs with land factors

A
  1. Written
  2. Intent
  3. Touch and concern
  4. Vertical privity: Successor need only take an interest that is carved out of OP’s estate
67
Q

Equitable servitude burden/benefit factors

A

i. Burden
1. Written
2. Intent
3. Notice
4. Touch and concern
ii. Benefit
1. Written
2. Intent

68
Q

Takings

A

A taking is when the government seizes private property for public use. Government must provide just compensation.
 Physical appropriation = Taking
 Permanent physical invasion = taking
 A gov regulation which deprives a property owner of all economically beneficial use of his property =taking.
 Regulations designed to address nuisances = never takings
• A zoning ordinance does not result in a taking unless it leaves land with no economic value.

69
Q

Defense of laches

A

A defendant who invokes the defense of laches is asserting that the claimant has delayed in asserting its rights, and, because of this delay, is no longer entitled to bring an equitable claim

Property Law (1 decks)

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