Final Review Flashcards
1
Q
What are the 3 types of implied periodic tenancies?
L.give/T.remains/T.takes
A
- Landlord gives tenant possession without specified period of time
- Tenant remains in possession with landlord’s consent after another tenancy
- Tenant takes possession over a void lease and makes rent payments
2
Q
What are the 2 types of possessions?
A
Actual
Legal
3
Q
Define actual possession
A
Actual possession requires the landlord to ensure that tenant will be able to take physical possession of the property
4
Q
Define legal possession
A
Legal possession the landlord must deliver to the tenant the legal right to possess the premises
5
Q
Define the American RuLe of Posessesion
A
The landlord is only bound to provide them with legal possession.
6
Q
Define the EnGlish Rule of Posession
A
Landlord has the duty to place the tenant in actual and legal possession of the premises
7
Q
Define Abandonment (2 ways)
A
Abandoment is when a T wrongfully vacates the premises before the lease expires, with no intent to return and ceases rent payments.
OR
When a tenant fails to take possession at the beginning of a lease and defaults.
8
Q
What are some indicators that a tenant has abandoned the premises?
A
- Tenant left (or never took possession)
- Some facts to suggest they will not return (moving in somewhere else)
- AND did not pay rent
9
Q
Define Surrender
A
Occurs when the tenant offer to relinquish his leasehold to the LL before the end of the lease AND LL accepts the tenant’s offer to relinquish possession of the premises
10
Q
What are some indicators that a tenant has surrendered the premises?
A
- Express offer from tenant
- Acceptance of offer from LL (either implied from behavior or implication of law) (can be express landlord simply agrees)
11
Q
What is the majority rule for Repair and Deduct?
A
Upon the LL’s inaction in making a repair may order the repair and deduct the cost from their rent
12
Q
What is the NC Rule for Repair and Deduct?
A
NC does not recognize the ability to repair and deduct, must have permission from the LL
13
Q
A ______ Occurs when the original tenant transfers part of her interest in the leased property to a third party
A
sublease
14
Q
Which two people are the sublease liable to?
A
The original tenant and the landlord
15
Q
What is required for an easement by necessity
A
Necessity existed at the time of severance
16
Q
How do you terminate an easement?
MERDA LCC. F
A
Merger btwn Dom and Serv Estoppel Release by Dom Tenant Destruction of Serv Tenement Abandonment by Dom Tenement Lapse Cessation of Purpose Condemnation Forfeiture of excessive use
17
Q
Define Affirmative Easment
A
Affirmative easement gives the easement owner a right to make certain uses of someone else’s land, which would otherwise constitute trespass.
18
Q
Define negative Easement
A
Negative easement: prevents or precludes a landowner from doing certain acts on his own land which he would otherwise have the right to do.
19
Q
What are the 4 negative easements?
A
Easement not to block light:
Easement not to interfere with flow of air:
Easement not to remove support from a building:
Easement not to interfere with the flow of water in an artificial stream running to the other’s land
LASS
20
Q
Define License
A
A revocable privilege to go onto another’s land
21
Q
A _____ allows someone to do some act on that land which would constitute trespass without the privilege afforded by it and it can be revoked
A
License
22
Q
How are licenses created?
A
Expressly or implied by law
23
Q
Define Profit
A
The right to remove something from the land of another, some part or product of the land itself.
24
Q
Licenses are always _____
A
revocable
25
What are the 3 types of implied easments?
Easement by Prior Use
Easement by Necessity
Easement by prescription
26
Easment by _____ is similiar to adverse possession
prescription
27
What are the 3 elements for easement implied by prior use?
apparent, 2. reasonably necessary to the enjoyment of the dominant estate, and 3. continuous thereafter.
28
An easement is a ____ right
Property
29
What are the 4 classifications of an easement?
Affirmative
Negative
In Gross
Appurtenant
30
Define Easement by reservation
The easement was reserved for the grantor only, not for a 3rd party
31
Define profit
Granting someone the right to enter and sever and remove something such as timber, fish, coal.
32
T/F: Licenses are revocable
True
33
Easements are subject to the ____
SOF
34
What are the req. for SOF?
| N/D/$$/Sig
(1) the names of the parties;
(2) details of the land to be conveyed;
(3) the purchase price; and
(4) the signature of the party to be charged (i.e., the party against whom enforcement is sought).
35
In an easement implied by prior use, what are the req.?
1. Have to see common ownership (unity of title)
2. Land is physically divided
3. Pre existing use was apparent, continuous, and reasonable necessary to use and enjoyment of quasi Dominant land.
MR- use was reasonably necessary
Min.R- strictly and absolutely necessary
36
WRONG
WRONG
37
Define Part performance doctrine
If a land O expends $ or effort in reliance upon oral assurances that an EMT will be allowed, In equity , an owner can sue to stop someone from denying that an EMT exists
38
5 elements of an easment implied by Elements
| H-O-C-U-S
Hostile (in the use, not possession)
Open & Notorious
Uninterrupted
Statutory Period (20 yrs)
39
WRONG
WRONG
40
What are the 9 ways to end an easement?
```
Abandonment
Lapse (natural end)
Cessation of purpose
Release (SOF Applies)
Estoppel
Prescription (backwards)
Merger
Condemnation
Forfeiture for excess use
```
41
What will be tested re: merger?
The title to both the DT and ST are now owned by the SAME PERSON
42
Define eminent domain
Gov. will take title to the ST for a public purpose, that will. include a taking of the easement
43
Person who has the benefit gets the value of an easement by ____
condemnation
44
What are the buzz words for defining covenants?
Benefit & burden
45
When are real covenants developed?
at law
46
Define equitable servitude
A promise concerning the use of land that benefits and burdens the original parties to the promise (Horizontal) and their successors (Vertical) that is enforceable in equity
47
When are equitable servitudes developed?
at equity
48
What elements do RC and ES have in common?
- Must meet SOF
- Must have intent to bind successors
- Must Touch and concern the land
49
What are the two types of privity under Real Covenants?
Horizontal and vertical privity
50
What will ALWAYS touch and concern the land?
1. Rent
2. Repair
3. property taxes
4. property insurance
51
What is horizontal priv?
Privity between original parties (Grantor; grantee)
52
If you have a successive interest in the land from either OG party, what type of privity can you argue?
Vertical
53
In an inquiry notice, what should you look for?
a common plan (why are all the houses blue, one story, same size fence)
54
What are the elements of modification for changed circumstances?
Changes must be
1. substantial
2. w/n subdivision itself, not just the borders
55
For the K of sale in land, what are the req.?
Satisfy the SOF
| Convey marketable title
56
In order to convey marktable tittle, the seller must disclose ___
encumbrances
57
Define encumbrance
Anything that creates reasonable doubt or fear of litigation such as easements, mortgages, liens
58
The ___ has the risk of loss post-contract
Buyer
59
When does a TOY end and is notice required?
A TOY terminates at the end of stated term
No notice req.
60
When does a PT end and is notice req?
A PT terminates at the end of a period by notice
Notice is req by either party
61
When does a TAS end and is notice req?
A TAS is terminated by the landlord evicting the holdover tenant.
62
What happens if a LL accepts rent from a hold over tenant?
It becomes a periodic tenancy or a tenancy at will.
63
If the LL does not accept rent from the holdover tenant, what is the tenant treated as?
The holdover tenant is treated as a trespasser
64
At CL, when does a TAW end and is notice req?
A tenant is not required to give notice of termination.
65
At ML, when does a TAW end and is notice req?
A T must give notice prior to termination.
66
T/F: the tenant required to pay rent following a PARTIAL actual eviction?
False;
| partial eviction terminated ANY obligation of T to pay rent
67
Define assignment
Assignments are for the entire remaining term and transfer all rights and responsibilities under the head lease.
68
A servient tenement is ____ by an easement
Burdened
69
A dominant tenement is ____ by an easement
benefited
70
If there is no writing involved, an easement is looked at as a ____
license
71
What 3 things does an easement by implication requ?
1. Unity of Title that is later severed
2. Pre-existing use
3. the use apparent, continuous and reasonably necessary to enjoy DT
72
Which type of easement normally passes with the transfer of the dominant estate?
Easement apurtenant
73
Under what circumstance is an easment in gross not transferrable through the transfer or land?
When the parties do not intend for the right to be assigned to someone else.
74
What is one exception to the SOF req for the sale of land?
part performance doctrine
75
Define part performance doctrine?
| K for sale of land
Under the doctrine of part performance, either party, the buyer or the seller, may be able to enforce a contract for the sale of land that does not meet the SOF requriement if they have acted in reliance on the terms of the K.
76
What is the possession + payment rule under the doctrine of part performance?
Under the doctrine of PP, if a buyer takes possession and makes payments, the seller will be required to convey the property.
77
What is the possession + improvement rule under the doctrine of part performance?
Under the doctrine of PP, if a buyer takes possession and makes substantial improvements, the seller will be required to convey the property.
78
WRONG
WRONG
79
WRONG
WRONG
80
Define marketable title
A marketable title is one that is free from reasonable doubt and does not create a hazard of litigation because it is free from encumbrances
81
What are some of the defects that render a title unmarketable?
Encumbrances (mortgages, liens)
Easement
Land use restriction
Zoning ordinance violation
82
Define record chain
Anything in the prior chain of title that indicates that the seller does not have the full interest to which he purports to convey
(cant convey what you dont own).
A grantee can sue under the breach of future cov.
83
Name the 4 types of encumbrances
| M/E/U/Z
Mortgage or lien, easement, use restrictions, land use and zoning violations
84
Define encumbrance
An encumbrance is anything that creates a reasonable doubt or a hazard of litigation
85
Define encumbrance
An encumbrance is anything that creates reasonable doubt or hazard of litigation
86
What have courts generally held about building codes vs. zoning ordinances?
Violations of building codes are NOT encumbrances
Violations of zoning ordinances ARE encumbrances
87
True/False: Parties can agree on whether or not an easement will constitute an encumbrance
True
88
True/False: A seller may sign a K to sell property he does not own yet and the purchaser cannot cancel the K because of this
True
89
What does it mean to "tender his own performance"
If one party is expected to defualt, the other must tender his own performance in order to hold the other party in default. If non-default party doesnt tender, they likely waived their right to claim damages
90
What are the 2 remedies when one party fails to perform a land sale contract?
Damages
| Specific Performance
91
What is the GR for damages?
| benefit of the bargain
If one party breaches a land sale K, the other party may almost always sue for damages. Generally, the P can recover the difference btwen market price and the K price.
92
What is the GR for specific performance?
When the court presumes that money damages would not be adequate to compensate the buyer, they will require the defaulting party to complete specific performance to convey the proerty.
93
True/False: After the signing of a K, Even if a buyer never takes possession, they still assume the risk of loss
True
94
Buyer bears the risk of loss from anything thing that is a result of ____
his own negligence
95
Define deed
A deed is a document that passes title from the grantor to the grantee.
96
Define merger
Under the doctrine of merger, most obligation imposed by the K of sale are discharges unless they are repeated in the deed
97
What is the GR for an inadequate description of land in a deed?
If the description in the deed is not sufficientley specific or accurate, the entire deed will be deemed invalid.
98
Courts tend to interpret ambiguous terms in a deed most favorable to the ____
grantee
99
Why do courts tend to interpret ambigious terms most favorable to the grantee?
Because the document is constued against the grantor since the grantor usually drafts the deed.
100
What are the 3 formalities a deed must meet?
Proper identification of parties.
Signature of grantor
Notarized by one or more persons not party to the transaction
101
What are the 3 present covenants?
Covenant of Seisin
Right to convey
Covenant against encumbrances
102
For the 3 present convenants, what can a grantee do to recover on the claim?
Show that the title was in fact defective on the date of the conveyance.
103
When are the future covenants breached?
when an eviction occurs
104
What are the 3 future covenants?
Cov. of quiet enjoyment
Cov of warranty
Cov of future assurances
105
When are the 3 future covenants breached?
Only when an evitction occurs
106
Present covenants ____ run with the land
do not
107
Future covenants ___ run with the land
do
108
If the American rule applies, the T ____ rent and ___ terminate or recover
owes
| cant
109
If the English rule applies, the T ____ rent and ___ terminate or recover
does not owe
| can
110
What must you first analyze when discussing if the premises has become physically damaged during the course of the tenancy?
Is there an express warranty about the condition of the premises?
111
When using implied warranty of habiltability as a defense, the T must first ___
give notice to the LL and give the LL a reasonable amount of time to make the repair.
112
Define duty to mitigate
A LL must use reasonable diligence in attempt to relet the premises. The burden to prove the reasonable steps is on the LL
113
Easement appurtenants are ___ transferred
Automatically
114
An affirmative easement gives one the right to do something on ____ land
anothers
115
A negative easement stops someone from doing something on ___ ___ land
their own
116
If an easement is created by a deed or will it is ____
express
117
An express easement must meet the req of the ___
SOF
118
Easements by implication do not have to meet the req of the ___
SOF
119
What are the requirements for an easement by necessity?
1. must be strict
2. must be under common ownership before conveyance
3. the necessity must come into existence at the time of and caused by the conveyance
120
Define cov. of quiet enjoyment
The grantor warrants that the grantee will not be situred in his possession and enjoyment of the prop. by persons with superior title.
