FINALS Flashcards
1
Q
Possible Meanings of “DIBE” (Distinct Investment Backed Expectations)
A
- Reasonable return on investment;
- Reasonable expectations with respect to property; and
- Recouping of landowner’s capital investment
2
Q
Bailment
A
the delivery of personal property to someone not the true owner, who has rightful possession to the exclusion of all others even to the true owner. Bailee has sole custody and control
3
Q
Possession (bailment)
A
exercise of dominion and control and intent to exclude all others
4
Q
Types of Delivery
A
(1) Delivery:
(a) Actual: physically handing over personal property;
(b) Constructive: Handling over of something because of size or weight;
(c) Symbolic: Delivery of a writing, or code
(2) To the exclusion of others including the true owner: when the person has dominion and control and owner cannot get it back without
5
Q
Types of Bailments
A
(1) Voluntary Bailments:
(a) Lucrative: for hire, nature and amount of compensation are irrelevant;
(b) Mutual Benefit: both parties benefit in some way, does not have to be for money. Liability is the ordinary care of a prudent man.
(c) Sole Benefit of Bailor: standard of liability for bailee is gross negligence
(d) Sole benefit of Bailee: standard of liability for bailee is slight negligence
(2) Involuntary Bailments: finder of rare coin, relationship to the true owner is that finder is a bailee. No delivery = involuntary; **FINDER OF LOST PROPERTY IS BAILEE TO OWNER
6
Q
Gift Inter Vivos Rule
A
The voluntary transfer of property without consideration and made absolute during the lifetime of the parties
7
Q
Gift Inter Vivos (Elements)
A
- Intent to pass property immediately
- Delivery: actual, symbolic, or constructive
- Acceptance: typically implied; presumption is that it is accepted; is is for benefit to donee. Unless liability.
- Irrevocable: absolute
8
Q
Symbolic Delivery (gift inter vivos/gift causa mortis)
A
A symbolic delivery arises when the grantor passes some writing evidencing ownership and a manual delivery is not possible.
9
Q
Constructive Delivery (gift inter vivos/gift causa mortis)
A
Donor gives donee a key which provides access to the chattel, which is too big or bulky for a manual delivery (e.g. giving keys to car)
Modernly: a constructive delivery arises whenever the grantor does everything possible to effectuate a delivery and there is no issue of fraud or mistake
10
Q
Gift Causa Mortis (same elements as gift inter vivos)
A
(1) A gift causa mortis requires that the donor have an imminent fear of death, intend to transfer property to the donee, make delivery, and die soon thereafter. (2) The delivery to the donee may be direct, or indirect.
11
Q
Contemplation of imminent death (element of gift causa mortis)
A
Split in authority: suicide is not recognized as imminent death in some jdx; do not want to sanction suicides
12
Q
Adverse Possession (Elements)
A
- Actual Entry
- Open and Notorious
- Exclusive
- Hostile
- Claim of Right
- Continuity of Posession
13
Q
Exclusive (AP element)
A
**Could be joint adverse possession.
Note: where wrongdoer gets the benefit of constructive possession (does not have to occupy every square inch) but the true owner does not (no constructive possession of 15 inch).
14
Q
Hostile (AP element)
A
15
Q
Claim of Right (AP element) (split of authority)
A
a. Good faith: Adverse possessor must believe in good faith he owned the land. Mistake.
b. Bad faith: adverse possessor must know the land belongs to another, state sanctioned
stealing.
c. Objective Standard: Looks at the adverse possessors behavior to determine if they had a claim of right. (Claim of right no longer element in this jdx).
16
Q
Continuity of Possession (AP element)
A
*Possession must be continuous for 5-30 years (depending on local statute).
There must be continuous possession for a statutory period, break in possession stops the clock. Continuity depends on nature and character of the property. Shall exercise the right more or less frequently according to the nature of the use. Only have to use it as the true owner would. Abandonment (voluntary relinquishment of known right w/out intent to return) ends continuity.
17
Q
Tacking (sub issue of Continuous element of AP)
A
18
Q
Color of Title (AP)
A
Is any writing that appears to transfer title but in reality does not, no matter how defective and imperfect. Helps to establish claim of right and hostility. Shortens SOL period.
JDX SPLIT REGARDING POSSESSOR’S INTENT:
In some jdx, if an adverse possessor knows that their deed is invalid he cannot come in under color of title.
In other jdx, good faith is not required. Even if grantee knows his title is invalid, he can still come in under color of title.
19
Q
Joint Tenancy
A
(1) Each tenant owns a vested, undivided fractional share of the whole, AND each tenant owns the whole.
(2) Because each tenant owns the whole, a joint tenancy grants a right of survivorship. This means that, upon the death of one co-tenant, full ownership remains with the surviving tenant.
To alienate their share, the estate has to first be severed to a tenancy in common; cannot transfer interest via death or will.
Outside of probate; can’t pay off debts w/ what rightly belongs to B
You can terminate a joint tenancy by selling/conveying your interest to yourself, thereby creating a tenancy in common situation
INTENT is the key modernly to create and sever a joint tenancy
20
Q
Creation of Joint Tenancy (Common Law Four unities: Creation)
A
1) Time: acquired ownership at the same time
2) Title: acquired in the same instrument
3) Interest: each tenant owns the same interest, proportional share
4) Possession: each has the right to possess the whole. Right to use and exclude
others, receive incomes etc.
The four unities are not required to create a joint tenancy; all that is required is the owner’s intent to create a joint tenancy.
21
Q
Tenancy in Common
A
(1) Each tenant owns a separate, undivided interest in the whole (has right to possess the whole, but doesn’t own the whole); (2) grants no right of survivorship; (3) creation of a tenancy in common requires only unity of possession
22
Q
Life Estate Pur Autre Vie
A
When a joint tenant or tenant in common conveys his undivided interest, the grantee owns the interest of his grantor; when the owner of a joint life estate conveys his interest, the grantee owns only a life estate pur autre vie (a life estate for the life of the original life tenant)
23
Q
Tenancy by the Entirety
A
A & B own Blackacre as tenants by the entirety, only for spouses, 5 each owns the whole with right of survivorship, neither can transfer interest to anyone without the others’ consent. Only way to end is by divorce or death or voluntary agreement
24
Q
Right of Contribution (rights and liabilities among co tenants)
A
When A pays more than B, right of reimbursement. Must be real property and owned by everyone. Not to chattel.
a) Premiums: mortgages, taxes, and insurance. entitled to 1/2
b) Necessary Repairs: right to receive 1/2
(distinguish between necessary repairs and unnecessary improvements. A tenant cannot compel his cotenants to contribute for expenditures for the latter)
c) Improvements: expenditure that doesn’t just maintain but increased its value or life span, no right of contribution bc otherwise A could improve B out of ownership
25
Rents and profits from Third persons (rights and liabilities among cotenants)
Can rent out property without knowledge of others because each has the right to possess the whole. BUT must account, becomes trustee, for rentals to other cotenants.
26
Exclusive possession by one cotenant (rights and liabilities among cotenants)
A occupies the whole to the exclusion of B.
When the tenant’s exclusive possession is friendly, the tenant is not liable for rent.
When the tenant’s exclusive possession is hostile, the tenant is liable for the market value of the ousted tenant’s share of the use and occupation of the land. (hostile = against the co-tenant’s will, tantamount to an ouster)
27
Partition (rights and liabilities among cotenants)
Joint tenants and tenants in common have a right to partition.
A partition by kind is a division of property into parts. Courts opt for partition by kind over sale if partition can be accomplished without manifest injury to the parties.
Disputes of partition occur when there is no agreement.
28
Waste (rights and liabilities among cotenants)
Cotenants are liable to one another for waste. Waste is the destruction of a premises in a way that decreases its value.
29
Ouster (rights and liabilities among cotenants)
Ouster is when one co-tenant asserts complete ownership of the land and denies the co-tenant relationship.
For cotenant to claim adverse possession, he must repudiate/discharge the cotenant’s interest in the property by act or declaration
Assertion of ownership may be accomplished by in various ways, including the transfer of the entire fee
Ouster satisfies all requirements of Adverse Possession.
30
Fee Simple Absolute
infinite duration
[R]: (1) O owns the total bundle of rights to the land. (2) FSA ownership includes ownership of mineral rights and all other incidental rights as well.
Common Law: "to A and his heirs"
Modernly: no magic words necessary; FSA is implied
No future interest ever follows FSA
31
Defeasible Fees
(1) fee simple determinable
(2) fee simple subject to condition subsequent
(3) fee simple subject to executory limitation
(4) fee simple determinable subject to an executory limitation
32
Fee Simple Determinable
[R]: (1) A fee simple determinable is created with language of duration. (2) The durational language specifies an event which “determines” when the estate will end.
ends automatically; possibility of reverter retained by O
rights to immediate possession reverts to the grantor
"so long as," "while," "until," "during"
33
Fee Simple Determinable Subject to Executory Limitation
[R]: (1) A fee simple determinable subject to executory limitation is created with durational language. (2) The durational language specifies how long the estate is to last; A’s durational estate ends when the limiting event happens, and then shifts to B.
durational language ("until"; "so long as")
goes to a 3rd person. automatic forfeiture when condition occurs. 3rd person has shifting executory interest in fee simple
Misc: Executory interest subject to the RAP. If there is a violation, strike the violating clause and A is left with fee simple determinable, B has a possibility of reverter.
34
Fee Simple on Condition Subsequent
[R]: (1) A fee simple on condition subsequent is created with conditional language. (2) The conditional language specifies the condition subsequent that will cause the estate to end.
a. Characteristics: Conditional, does not automatically end, requires holder of future interest to enter, right of reentry. Can be cut short.
b. Creation: “provided, upon condition, but if”, creation of future interest by clause is not necessary. O retains right of entry, not created.
c. Future Interests: Right of Entry/Power of Termination, does not automatically end upon condition, requires exercise of right by holder. Interest is retained, does not need to be stated.
d. Transferability: CL = not transferrable, only inherited; Modernly = can be transferred inter-vivos by deed or at death by will
e. Misc: direct restraints are invalid, reasonable restrictions are valid. Focus on whether restriction has so limited transferability that the restriction acts as a prohibition on sale.
35
Restraint on Alienation
A direct restraint on alienation, provision-prohibiting sale of property, is void and stricken.
Courts want property to have value and be freely transferrable. Alienation is inconsistent with a fee.
36
Disabling Restraint
Simply prohibits the grantee from selling or otherwise transferring the property
37
Forfeiture Restraint
Grantee loses or forfeits the property even if attempts to transfer property
38
Promissory Restraint
Deed provides that grantee promises or agrees not to transfer the property
39
Joint Life Estate
[R]: By stating “jointly and together, the survivor to get all” (or other related words), a joint life estate may have been created with alternative contingent remainders
40
Indirect Restraint
(grantor does not intend to restrain alienation, but the effect is to restrain alienation)
O conveys “to the city for park purposes only” – that means that the city can’t sell b/c it’s for park purposes only, so it’s an indirect restraint
41
Shifting Executory Interest
[R]: an executory interest that, when it vests, shifts ownership from one grantee to another
O, to A on the condition that...then to B = 3 parties. A has fee simple subject to executory limitation, B has a shifting executory interest in fee simple. O has nothing.
42
Springing Executory Interest
[R]: an executory interest that, when it vests, causes ownership to spring from the grantor to the grantee
O, to A on the condition that A marries a Jewish man. = 2 parties
43
Fee Tail
"to A and the heirs of his body"
Inheritable estate
reversion in O or a remainder in a 3rd person
Modernly: "To A and the heirs of his body" =
1. A gets FSA
2. A gets a life estate and heirs get the remainder in fee simple
3. A gets a fee tail and O has a reversion
44
Life Estate
duration of grantee's life, or if transferred, some other person. If transferred to B, B would have a life estate pur autre vie- life estate measured by A's life
reversion or remainder always follows
"To A for life", O has reversion;
"To A for life, then to B" - B has indefeasibly vested remainder in fee simple
45
Remainder
A remainder is a future interest created in a third person that may become possessory upon the natural termination of the preceding estate
whether vested or contingent transferrable by deed during grantor's lifetime or by will
46
Contingent Remainder
Right to property which may or may not vest in possession at some future date; a remainder is contingent if it is given either to an unascertainable person or is subject to a condition precedent.
Incorporated into the gift, condition is in the same clause as the gift.
never accelerates into possession; subject to RAP
47
Alternative Contingent Remainders
O conveys to A for life (life estate), then to B if B is not convicted of a felony before obtaining age 30, but if B is so convicted of a felony, to C
B and C have alternative contingent remainders – if B’s remainder vests, C’s can’t, and if C’s remainder vests, B’s can’t
each is subject to condition precedent; either one or the other's remainder will vest (not both)
48
Destructibility of Contingent Remainders
TRADITIONALLY:
A contingent remainder that does not vest in possession upon the termination of the preceding life estate, is destroyed; the owners of the reversion own the estate in fee simple.
MODERNLY:
Contingent remainder would be transformed into a springing executory interest and O’s reversion would be transformed into a fee simple subject to a springing executory interest.
49
Vested Remainder
A vested remainder is given to an ascertainable person and not subject to a condition precedent.
Grantee is ascertainable and no condition precedent.
Not subject to the RAP.
50
Vested Remainder Subject to Open
remainder may be cut down but never eliminated
To A for life, then to the children of B, B has one child. Can be cut down if B has more children, upon B’s death, class closes and B1 will have indefeasibly vested remainder in fee simple.
51
Vested Remainder Subject to Complete Divestment
To A for life, then to B, but if C returns to CA, to C. A has a life estate, B has a vested remainder in fee simple subject to complete defeasance, C has a shifting executory interest in fee simple. Only shifting executory interest can defease or cut off a prior estate or prior vested
52
Affirmative Waste
(1) Affirmative waste arises when the life tenant commits injurious acts on the property. (2) Injurious acts means acts that reduce the value of the property
53
Spendthrift Trust
A spendthrift trust is one in which the beneficiary cannot transfer his right to future income or principal and creditors cannot attach a beneficiary’s rights to future income or principal.
BUT/Exception: Someone that provided the “necessities of life” can attach future payments not withstanding the spendthrift provisions. Public policy consideration.
54
Rule in Shelley's Case
The Rule in Shelley’s Case states that when O conveys “to A for life, then to A’s heirs,” A’s heirs take nothing; rather, A takes a remainder.
MODERNLY:
A’s heirs take a contingent remainder and O has a reversion in fee.
55
Doctrine of Merger (rule in shelley's case)
If A owns the life estate and A owns the next vested estate, such as a vested remainder, the life estate merges into the vested estate
“To A for life, then to A’s heirs” (1) A has a vested (ascertainable and no
condition precedent) remainder in fee simple, heirs take nothing. (2) Merger, A
owns life estate and vested remainder, A owns fee simple absolute.
56
Doctrine of Worthier Title
If there is an inter vivos conveyance of land by O to A, with rest going to “O’s heirs” by remainder or executory interest, then no future interest in heirs is created rater a reversion is retained in grantor.
57
Doctrine of Worthier Title (Modernly)
O’s heirs take a contingent remainder in fee simple, O has a reversion (reversion always follows a contingent remainder)
58
No Later Than 21 Years after a life in being (RAP)
(1) A contingent interest violates the RAP if it is possible for the interest to vest more than 21 years after a life in being at the creation of the interest.
(2) In determining whether an interest could vest beyond the perpetuities period, we look to the legal possibilities, not factual possibilities.
(3) In determining legal possibilities, a person is deemed always capable of procreating.
59
Options to Purchase Property (RAP)
(1) In deciding what an “interest” is, there is a split of authority as to whether commercial options come within the RAP, as there is with respect to whether the RAP modernly even has any vitality at all.
(2) Where the RAP is recognized, the classical application is the “what might happen” test.
60
Amelioration: Construction (RAP)
(1) In construction, the court interprets the document in question in such a way that is consistent w/ grantor’s intent and thus avoid a RAP violation.
(2) The grantor’s intent may be learned from intrinsic (the terms of the instrument) and extrinsic evidence (parol evidence).
61
Amelioration: Cy Pres (RAP)
(1) Under cy pres, the court reforms the instrument as nearly as possible to the grantor’s intent so that there is no violation of the Rules Against Perpetuities.
(2) In determining grantor’s intent, we look to the wording of the instrument, as well as extrinsic evidence.
62
Amelioration: Presumption
i. Shall be presumed that creator intended estate to be valid
ii. Presumed reference is to a person in being on the effective date of instrument
iii. Where contingent on probate, shall be presumed that it will happen in 21 years
iv. male and female cannot have child over the age of 55
v. Adoption shall be disregarded
vi. CA comment: conclusive presumption of lifetime fertility is not unrealistic, possibility of having children by adoption
63
Wait and See Doctrine (Amelioration) (RAP)
(1) Under the Common Law, Wait and See is a hindsight approach that looks to see not what might happen, but what in fact did happen.
(2) In determining what did happen, if the contingent interest actually vested, or failed to vest, during a perpetuities-like period based on someone’s life who could affect vesting, then the contingent interest is not stricken.
64
Uniform Statutory Approach (RAP) (Wait and See)
(1) Under the Uniform Statutory Rule Against Perpetuities, the court waits the common law standard or 90 years.
(2) If it does the interest is valid, but if at the end of the period it does not vest or fail, the court can reform the instrument, cy pres.
65
Statute of Frauds Requirement (contract/sale of land)
Actions upon a contract or the sale of land shall be in (1) writing; (2) state all the material terms of the K; (3) signed by the party charged or some other person by him lawfully authorized (party trying to avoid the K) → Intent important.
66
Equitable Estoppel
Equitable estoppel precludes a party from raising a defense that would otherwise be allowed, but for his fraud, or fraud like conduct, if the innocent party would suffer consequential unconscionable injury.
67
Marketable Title
Marketable title to real estate is one that is free from reasonable doubt and is established when (1) seller owns what he purports to sell (2) the property is not in violation of any law and (3) there are no encumbrances on the property (except those expressly waived).
68
Time is of the Essence Clause
(1) A Time is of the Essence Clause states that each party must tender performance by the date specified and a failure to do so by one party discharges the other party. Rescission. (2) Whether a K is a time is of the essence K dependent on Language of the K and intent of the parties.
69
Risk of Loss (when something happens to property)
(1) In some jurisdictions, in the absence of a contrary provision in the contract for sale, when property is destroyed through the fault of no one, the risk is on the seller: the transaction does not go through. The buyer gets his deposit back and the seller gets his property back.
(2) In other jurisdictions, the risk of loss is on the buyer: the transaction goes through. The seller gets his money back and the buyer gets the property. This latter allocation of risk is referred to as equitable conversion.
70
Deeds (Elements)
must comply w/ SOF:
(1) Description of property: sufficiency is if property is described w/ sufficient certainty to identify it, and is signed by the grantor; Modernly emphasize intent of A & B
(2) Deed must be DELIVERED
- --handing over of deed is probative of delivery, but neither sufficient nor necessary
- --recordation of a deed creates a presumption of delivery, but recordation is not required to pass title
(3) Acceptance -- acceptance is presumed
71
Oral Conditional Delivery
(1) Oral conditional deliveries generally are not recognized. (2) Oral conditional deliveries have been recognized however, under extreme circumstances, as where a soldier went off on a dangerous mission.
Chillemi case, where a conditional delivery to a wife was recognized before the soldier went off on a dangerous mission, society has an interest in not treating spouses/former spouses as strangers in arms-length business transactions
72
Warranty Deeds (General/Special)
Covenants that can either breached at the time escrow closes (present) or that can be breached at some time in the future (future).
General warranty = neither grantor nor any predecessors have breached;
Special = Grantor guarantees that only HE has not breached.
73
Covenants of Title (Warranty Deeds)
1. Seisin—Present: grantor owns the property, grantor has the estate in quantity and quality that he purports to convey
2. Right to Convey—Present: grantor has the right to convey
3. Encumbrances—Present: defend title of grantee and his successors against lawful claims of all persons, there is no right in 3rd person that will diminish the fee except those expressly stated
4. Quiet enjoyment—Future: There is no one with superior title
5. Further Assurances—Future: will execute documents necessary to perfect grantees title
6. Warranty—Future: will defend and indemnify grantee against those with superior title
74
Signature Rule (SOF)
In determining whether the signature requirement of the SOF has been satisfied, courts typically do not address the problem from a literal perspective, but focus on the intent of the parties.
75
Description of Property Rule (SOF)
(1) As a general rule, the land in title must be described with sufficient certainty to identify it and the deed must make reference to something tangible by which the land can be located. (2) A so-called Mother Hubbard clause satisfies the statute.
76
Merger Doctrine (Warranties)
(1) The common law merger doctrine states that any causes of action based upon the contract of sale are “merged” into the deed upon closing of escrow. (2) The modern trend is not to follow the doctrine and allow any causes of action based on contract law to survive the close of escrow.
77
Purchaser Rule (Recording Statutes)
Recording statutes protect only purchasers, not donees. The consideration paid by the purchaser must be substantial and not nominal consideration.
78
Notice Statute Rule
(1) Notice in a notice jurisdiction means that the subsequent purchaser is not given protection if she had record notice. (2) In some jurisdictions, a deed out from a common grantor is record notice, a type of constructive notice, although it does not impart notice in other jurisdictions. (3) The common law first in time is first in right can be trumped only if the subsequent purchaser is a BFP
79
Inquiry Notice Rule
Inquiry notice arises when one is apprised of facts that would lead a reasonable person to investigate further.
80
Idem Sonans Rule
(1) A deed w/ idem sonans problems nevertheless imparts notice. (2) A subsequent purchaser has duty bound to check all the spellings of a name that sounds like the name actually spelled.
81
Latent Defects Rule (w/ Deeds)
(1) In some jurisdictions a deed that has a latent defect gives record notice. (2) In other jurisdictions, such a deed does not impart notice.
82
Presence Rule (Deed Acknowledgment Issue)
“Presence” means that an individual is in the vicinity of or in the proximity to another person.
83
Consideration Requirement (recording statutes)
Must be for valuable not nominal consideration; Doesn’t have to be equivalent value in order to be valuable, but must be substantial
84
Covenant of Quiet Enjoyment Rule
The covenant of quiet enjoyment provides that a landlord will not interfere by any affirmative act or omission with the tenant’s peaceful use and enjoyment of the leased premises.
85
Covenant of Quiet Enjoyment (Common Law)
Under the common law, the landlord will not interfere with the tenant’s peaceful enjoyment of the premises, either by an affirmative act, or failing to act when he has a duty.
86
Covenant of Quiet Enjoyment (Modern View)
(1) Under the modern view of the covenant of quiet enjoyment, any act or omission of the landlord, irrespective of any underlying duty found in the lease, which substantially interferes with the tenant’s peaceful enjoyment of the premises or the purpose of the lease is a breach of the covenant of quiet enjoyment. (2) The landlord’s omission or failure to act can be a breach of the covenant, irrespective of any duty in the lease or law, if the landlord had the power to control the interference.
87
Constructive Eviction Rule
(1) To claim the remedy of constructive eviction, which terminates the leasehold and serves to relieve the tenant of all future liabilities under the lease, the tenant must move out in a timely fashion after the landlord breaches the covenant of quiet enjoyment. (2) A timely fashion is determined by the totality of the circumstances. (3) A tenant must vacate timely, and a timely vacation must be determined with reference to only the time necessary to get another apartment.
88
Implied Warranty of Habitability Rule
(1) The implied warranty of habitability provides that a landlord must deliver and maintain throughout the tenancy premises that are safe (safety not restricted to ‘physical safety’), clean, and fit for human habitation (fitness). (2) The premises generally must be residential, and the standard is major violations.
89
Frustration of Purpose
(1) When the underlying purpose of a contract can no longer be carried out due to unforeseen circumstances, through no fault of the party seeking relief under the contract, the one seeking relief is excused from performing. (2) The unforeseen circumstances must be unavoidable.
90
Independency of Covenant (Rule)
(1) When covenants are independent, regardless of whether a landlord breached the covenant of quiet enjoyment and the implied warranty of habitability, the tenants would still have to pay rent. (2) The answer depends on public policy considerations.
91
Illegal Lease Theory (Rule)
(1) If a property is in violation of the law at the time a lease is entered into by the landlord and tenant, the tenant may avoid the lease. (2) A contract which violates the law does not give rights to either party under the law (violation must be substantial in nature). (3) Where one party is ignorant of the facts, however, that person is typically not punished and is allowed to assert rights that stem from the contract.
92
Assignment v. Sublease Rule
(1) In an assignment, nothing remains in the transferor, thus vertical privity is established between the tenant and the sub-tenant. (2) In a sublease, something remains in the transferor, thus precluding a finding of vertical privity. (3) In an assignment, the sub-tenant is primarily liable to the landlord for rent due but in a sublease the main tenant remains primarily liable.
93
Minimal Scrutiny Rule (Rent Control)
(1) To survive a minimal scrutiny standard of review, the plaintiff landlord must establish that the ordinance is not rationally related to a legitimate governmental interest. (2) An ordinance is irrational if it is fully arbitrary.
94
Express Easement Rule
(1) An easement is a property right thus must comply with the SOF. (2) The Statute of Frauds requires that the property in question be sufficiently described, the grant contain the material terms, and the writing is signed by the party to be charged.
95
Description of the Property Rule (SOF)
To comply w/ the Statute of Frauds, the grant’s description must use language sufficient to designate with reasonable certainty the land over which the easement extends.
96
Signature Rule (SOF Easements)
Traditionally, the signature of the party to be charged was in his own handwriting.
97
Easement Implied by Prior Use
An easement implied by prior use arises when there is a common grantor who conveys a part and keeps a part; prior to the conveyance there was a quasi-easement; that after the severance there is necessity; and that the use by the common grantor was apparent and continuous.
98
Quasi Easement Rule (easement by prior use)
A quasi-easement exists when prior to the conveyance there was a usage of the two parts which, had it been severed could have been the subject of an easement with a dominant estate and a servient estate.
99
Necessity Rule (easement by prior use)
(1) Necessity means either absolute or strict, meaning that there is no other access; or it means just reasonable necessity, meaning substantial increased costs. (2) Traditionally, for a prior use easement created by implied reservation, strict necessity was required; for prior use easement created by implied grant, reasonable necessity traditionally has been the rule.
100
Reasonable Necessity Rule (easement by prior use)
Reasonable necessity is defined as substantially increased cost, contributing to the convenient enjoyment of the property.
101
Continuous Rule (easement by prior use)
Continuous means permanent, and not temporary.
102
Apparent Rule (easement by prior use)
Apparent means reasonably discoverable.
103
Easement Implied by Necessity Rule
(1) An easement by necessity arises when a common grantor conveys a part and keeps a part and immediately after the conveyance there is a necessity to reach a public road. (2) Necessity in this context typically means strict necessity.
104
Negative Easement Rule
A negative easement is a right to prevent an owner of land from doing something with his land. The common law only recognized 4 types of negative easements. Modernly, negative easements can be created if that is the intent of the parties.
105
Irrevocable Licenses: Estoppel Rule
(1) A license can be irrevocable by estoppel. (2) For an estoppel to arise there must have been misleading conduct on the person sought to be estopped along with detrimental reliance on the part of the other. (3) An irrevocable license endures until the licensee recoups his capital investment.
106
Transferability of Easement Rule
(1) If easement appurtenant, a transfer is a nullity because easements run and the dominant estate cannot be separated from the servient estate. (2) Further under common law, non-commercial easements in gross also cannot be transferred. (3) Under modern approach, non-commercial easements in gross can be transferred if that was the intent of the parties.
107
Abandonment Rule (termination of easement)
(1) Abandonment will result in termination of a servitude. (2) Abandonment requires non-use plus an affirmative act; mere non-use will not suffice.
108
Express Profit Appurtenant Rule
(1) A profit is an interest in land that allows one to go on to the land of another and remove a product of the land or a part of the land. (2) An express profit must comply with the Statute of Frauds (in writing, signed by person charged, description/details of property)
109
Profit Implied from Prior Use (Rule)
An implied profit by prior use requires a common grantor who conveyed a part and kept a part; prior to the conveyance there was a quasi profit; there was necessity at the time of the conveyance; and the profit was apparent and continuous.
110
Common Grantor Rule (profit from prior use)
A common grantor requires that there be one person who owned both the servient and dominant estates prior to the conveyance.
111
Quasi Profit Rule
A quasi-profit exists when prior to the conveyance there was a usage of the two parts which, had it been severed, could have been the subject of a profit with a dominant estate and a servient estate.
112
Profit from Prior Use: Necessity (Rule)
(1) Necessity means either absolute or strict, meaning that there is no other alternative; or it means just reasonably necessity, meaning substantial increased cost. (2) Traditionally, for a prior use profit by implied reservation, strict necessity was required; for a prior use profit created by implied grant, reasonable necessity traditionally has been the rule. (3) Modernly, however, reasonable necessity may be used for a profit created by implied reservation, the latter just being one of several factors to determine what standard to use.
113
Implied Profit by Strict Necessity Rule
(1) A profit by necessity arises when a common grantor conveys a part and keeps a part and immediately after the conveyance there is a necessity to take part of the servient land. (2) Necessity in profits by necessity traditionally means strict necessity.
114
Implied Reciprocal Negative Easements (Rule)
(1) An implied reciprocal negative easement arises when a common grantor conveys a parcel with restriction and, by so conveying, the remaining lots retained by the common grantor are similarly and reciprocally bound.
(2) An implied reciprocal negative easement, where recognized, may be either a new type of negative easement, or merely a theory to sustain several elements of a running covenant.
115
Notice of Restriction/Burden of Covenant (In Equity)
(1) Notice may be actual, record, or inquiry. In some jurisdictions, in the absence of actual notice, a deed out from a common grantor gives constructive notice of all restrictions in all such deeds, although it does not impart notice in other jurisdictions.
116
Real Covenant Rule (Burden Side) (In Law)
For the burden of the covenant to run with the land at law, the SOF generally must be satisfied between the original parties; the original parties must have intended successors to the promisor be bound; the promise must touch and concern the land; horizontal privity must be satisfied; and vertical privity must be satisfied.
117
Real Covenant Burden Side (SOF Rule) (In Law)
For the burden of the covenant to run, the original promisor must be bound, pursuant to the SOF. The statute requires, among other matters, that the writing be signed by the party to be charged.
118
Part Performance Rule (SOF)
(1) Even in the absence of compliance with the Statute of Frauds, the doctrine of part performance will satisfy the evidentiary requirements of the statute. (2) Part performance require possession plus payment.
119
Intent Rule (Real Covenant Burden Side) (In Law)
For the parties to have intended successors to the promisor to be bound, no magic words are necessary; rather we look to the totality of the circumstances.
120
Rule in Spencer's Case (rule) (In Law)
(1) For the burden to run at law, the Rule in Spencer’s case (for burden side only; for affirmative covenants) provides, for things not yet in existence, the parties had to use the words, “heirs and assigns,” (2) although modernly, those words are probative but no magic words are needed for the parties to intend the burden to run; the test modernly is the totality of the circumstances..
121
Touch and Concern Rule (Real Covenants BURDEN SIDE - Classic View) (In Law)
(1) A promise touches and concerns the land when it relates to the land. (2) A promise relates to the land when it decreases the value of the land or reduces the landowner’s rights to the land.
122
Touch and Concern Rule (Restatement View) (In Law)
The restatement replaces touch and concern with a public policy consideration: if the promise is unconscionable or violates public policy, it is unenforceable.
123
Horizontal Privity Rule (Real Covenant Burden Side) (In Law)
(1) Horizontal privity arises when the parties have a grantor-grantee relationship; or a landlord-tenant relationship; or a pre-existing relationship. (2) The Restatement, however, does away with this requirement.
124
Vertical Privity Rule (Real Covenant Burden Side) (In Law)
(1) Vertical privity is the relationship between a landowner and his or her transferee. (2) For the burden side of a real covenant, the relationship requires that the transferee succeed to the entire estate of the landowner-transferor. (3) The Restatement abolishes the vertical privity requirement.
125
Covenant Rule (In Equity)
(1) For the burden of a real covenant to run, the original parties must be bound (Statute of Frauds), (2) they must have intended to bind their successors, (3) the promise must touch and concern the land, (4) there must be vertical privity (loose vertical privity), and (5) the successor must have had notice.
126
SOF Rule (Whether Real Covenant Runs when in Law of Equity)
(1) For the original parties to be bound, there must be compliance with the SOF, although for real covenants, some jurisdictions do not require satisfaction of the SOF (Some jdx do not deem real covenants an interest in property, no SOF). (2) The implied reciprocal negative easement, where recognized, satisfies the requirement of binding both the original parties and the successors.
127
Intent to Bind Successors (Real Covenant BURDEN SIDE when in Law of Equity)
(1) For the parties to have intended successors to the promisor to be bound, no magic words are necessary; rather, we look to the totality of the circumstances.
(2) The finding of an implied reciprocal negative easement will satisfy the intent element of a running covenant.
128
Touch and Concern (Covenant BURDEN SIDE when in LAW OF EQUITY)
(1) A promise touches and concerns the land when it relates to the land. (2) A promise relates to the land when it either reduces the landowner’s rights to the land or reduces the value of the land; or if promise increases value/rights of land.
129
Restatement View: Touch and Concern (Real Covenant Burden Side when in Law of Equity)
The restatement replaces touch and concern with a public policy consideration: if the promise is unconscionable or violates public policy, it is unenforceable.
130
Benefit of Real Covenant Rule (Equitable Servitude)
For a benefit of a real covenant to run in equity, the following elements must be satisfied: statute of frauds, intent, touch and concern, and vertical privity (loose).
131
Intent Rule (Benefit of Covenant - Equitable Servitude)
For the parties to intent a successor to be benefited by the parties, no magic words are necessary (though they are probative); rather, the totality of the circumstances is determinative.
132
Touch and Concern Rule (RC Benefit Side/Equitable Servitude)
(1) Under common law, an agreement touches and concerns the land if it increases the owner’s rights to the land, or alternatively, if it increases its value. (2) Under the restatement view, the question is whether the promise is unreasonable, unconscionable, or violates public policy.
133
Public Use Requirement Rule (Physical Takings)
(1) The Fifth Amendment of the Constitution provides that if government takes land, it must provide compensation and the property in question must be taken for a public use. (2) The US Supreme Court stated in Hawaii Housing Authority that where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the public use requirement is satisfied.
134
Regulatory Takings (General Rule)
(1) A regulation or decision regarding land use is a taking under the Fifth Amendment when, as per Pennsylvania Coal, the regulation or decision “goes too far.” (2) A regulation or decision can go too far when there is an economic wipeout of the whole or a wipeout of a conceptual part, the decision is not substantially related to an important government interest, interferes with distinct investment backed expectations, or is improper nuisance control.
135
Real Covenants (Covenants at law)
a) A real covenant must comply with the Statute of Frauds.
b) The original parties intended for successors to W to be bound by the burden.
(1) The Rule in Spencer's Case required the words "W and his assigns/heirs/successors covenant to..." to show intent. Modernly, these words are probative of intent but not required.
c) The burden must touch and concern the land. That is, it must relate to the land be not merely a personal promise. Alternately, the burden reduces the promisor's rights in the land or the value of the land.
d) W1 is in vertical privity with W
e) B and W were in horizontal privity.
136
Easement Implied by Prior Use
Created when:
(1) grantor makes a conveyance of a physical part only and;
(2) prior to the conveyance, the grantor made use of a quasi-easement on that physical part and;
(3) the use was continuous (not temporary) and;
(4) apparent (reasonably discoverable), and;
(5) after the conveyance, the continued use is necessary
137
Easement In Gross
An easement that benefits an individual and not any land.
--the burden of the easement in gross does run
--there is no benefitted estate w/ an easement in gross
138
Statute of Frauds requirements for express easements
A grant of an express easement must:
(1) Identify the property
(2) Describe the easement to designate it with reasonable certainty
(3) Show grantor's intent to convey
(4) Contain grantor's signature
139
Reserving an Easement in favor of a third party
[CL]: A grantor cannot reserve an easement in favor of a third party because of livery of seisin. A two-step transaction must be used.
[Modernly]: A grantor may grant an estate and reserve an easement for someone else.
140
Strict Scrutiny
If the law that removes fundamental rights is necessary for a compelling government purpose, the law will stand.
141
Minimal Scrutiny
If the law that removes economic rights is rationally related to a legitimate government purpose, the law will stand.
142
Due Process
Due Process is the right of all people not to have a certain right taken away by the government.
a) when the right is economic, the government uses a minimal scrutiny standard
b) when the right is fundamental, the government uses a strict scrutiny standard
143
Equal Protection
Equal Protection is the right of an individual or some people not to have their rights taken away by the government
144
Rent Control
Rent control ordinances that restrict the amount L can charge T are constitutional because they do not violate due process under a minimal scrutiny standard.
145
Exculpatory Contracts
(J1) Parties are free to contract, so exculpatory contracts are valid
(J2) Based on the Tunkl Factors, exculpatory contracts in residential leases are invalid as a matter of public policy.
146
Landlord Liability in TORT, based on negligence
[CL]: L is not liable for T for L's negligence.
[Modernly]: L owes T a duty to exercise due care.
147
Fair Housing Act of 1968
A landlord/seller may not discriminate on the basis of race, color, religion, sex, handicap, familial status, or national origin.
---refusing to rent
---offering different rates or terms for different types of people
---advertising a preference for one of the prohibited categories
148
Civil Rights Act of 1866
All citizens shall have the same right in every state, as is enjoyed by white citizens thereof to buy, sell, lease, and convey real property.
149
Two Types of Waste (Landlord/Tenant)
(1) Involuntary waste is waste that happens as a result of tenant's negligence.
(2) Voluntary waste is a tenant's injury of the premises by an affirmative act.
- -----Minor, non-structural changes consistent w/ the contemplated use of the building are not waste
- -----The more removable a change is, the less likely it is waste
150
Waste (definition) (Landlord/Tenant)
Waste is an impingement upon the estate of the landlord.
151
Anti-Deficiency Statutes (Personal Liability in the case of deficiency)
Anti-Deficiency Statutes protect a borrower when the foreclosure sale fails to produce enough money to pay off the loan.
[Rule]
(1) In most jurisdictions, the bank is prevented from going after the borrower's personal assets to satisfy the deficiency.
(2) In many jurisdictions, anti deficiency statutes only apply to mortgages used to purchase property, not to refinanced mortgages.
152
Priority of Creditors
When a junior mortgage defaults and the bank forecloses, the senior mortgage remains intact.
When a senior mortgage defaults and the bank forecloses, the junior mortgage is extinguished.
153
Statutory Right of Redemption
In all jurisdictions, there is a period of time after the foreclosure sale in which a buyer may still exercise a statutory right of redemption.
*one last chance to regain property post foreclosure*
154
Deed in Lieu of Foreclosure
To stop a foreclosure sale from happening, the borrower can attempt to negotiate a deed in lieu of foreclosure. The buyer executes the deed in favor of the bank, the consideration for this conveyance being the amount the buyer still owes on the home.
155
Equitable Right of Redemption
If the borrower can come up with all the arrears and fees any time before the foreclosure sale, the borrower may exercise their equitable right of redemption and get the property back.
* not waivable*
* a bank may not charge any fee to homeowner who exercises this right*
156
Installment Land Sale Contracts
(J1) This is a contract, and no mortgage law is involved. The Parties are stuck w/ what they agreed to. [Burgess v. Shiplet]
(J2) An installment land sale contract is sufficiently similar to a mortgage to create equitable mortgage rights in the buyer. [Bean v. Walker]
157
Exaction
An EXACTION is a type of regulatory taking in which the government allows a landowner to build on the land on the condition that the landowner grant some sort of interest back to the city. Exactions must pass two tests.
158
Essential Nexus Test
There must be a logical connection between the exaction sought and the harm anticipated as a result of the building.
159
Rough Proportionality Test
The exaction sought must be roughly proportional in nature and scope to the anticipated impact of the proposed building
160
Penn Central Ad Hoc Analysis
a) Is there an average reciprocity of advantage?
b) Is there interference with distinct (or reasonable) investment-backed expectations?
c) What is the character of the government action?
d) diminution in value/ economic impact?
e) the existence of transferrable development rights?
161
Timing Concern (Takings)
A landowner who acquires property after a regulation
| restricting use is promulgated is not barred from raising a Takings claim.
162
Condemnation
a government action to purchase a property
163
Inverse Condemnation
an individual's action against the government to get a regulation recognized as a taking
164
Open Mines Doctrine
Where A and B are cotenants, A may not unilaterally initiate mining activities. But if, at the time A and B became cotenants, mines were already open, A may unilaterally continue mining activities.
165
Ameliorative Waste
An action which seems like waste but actually increases the property's value. A cotenant is not liable to another in the case of ameliorative waste.
166
Covenants of Title (Present Covenants)
1) Covenant of Seisin: warrants that O owns what he purports to transfer
2) Covenant of right to convey: warrants that O has the right to convey the property he is conveying
3) Covenant against encumbrances: warrants that there are no encumbrances on the property except those expressly provided
* Present covenants do not run w/ land*
167
Covenants of Title (Future Covenants)
1) Covenant of Quiet Enjoyment: warrants that no one with superior title will interfere with the grantee’s peaceful enjoyment of the property.
2) Covenant of Warranty: warrants that the grantor will indemnify (defend, protect) the grantee against anyone who asserts superior title
3) Covenant of Further Assurances: warrants that the grantor will execute any documents necessary to perfect the grantee’s title.
* Future covenants run w/ the land*
168
When Grantee may sue for breach of covenant:
1) If a grantee is suing their immediate grantor because the immediate grantor breached of one of these covenants, the grantee may do so, regardless of whether the deed was general warranty or special warranty.
2) If, on the other hand, a grantee wants to sue the immediate grantor because a remote grantor breached one of these covenant, he:
○ may do so if the deed was a general warranty deed, and
○ may not do so if the deed was a special warranty deed.
3) The grantee may also want to sue the remote grantor himself (i.e.,
suit by remote grantee). This typically happens with the present covenants, which do not run with the land.
○ {J1} Because present covenants do not run with the land, a remote grantee cannot sue a remote grantor for a violation of a present covenant.
○ {J2} The remote grantee can sue the remote grantor for breach of present covenant. This is because when the intermediary conveyed to the remote grantee, he conveyed all his rights, including the right to sue the remote grantor for breach of present covenants.
169
Lost Property (Rule)
(1) In the law of finders, lost property found in a public place belongs to the finder, whereas lost property found in a private place belongs to the owner of the locus.
(2) A public domain is one wherein the general public is invited, where as a private domain is one where the general public is excluded.
(3) Whether the place is a public or private, we look to the totality of the circumstances.
170
Mislaid Property (Rule)
(1) Mislaid property is intentionally put in a certain place and later forgotten.
(2) Mislaid property belongs to the owner of the locus.
171
Lost Property (Employer/Employee)
[R]: When lost property is found by the finder while acting within the course and scope of his or her duties, the chattel often belongs to the employer.
172
Gift Causa Mortis (Rule)
[R]:
(1) A gift causa mortis requires that the donor have an imminent fear of death, intend to transfer property to the donee, make delivery, and die soon thereafter.
(2) The delivery to the donee may be direct, or indirect.
173
Intent Rule (Gift Causa Mortis/ Gift Inter Vivos)
[R]: The intent to make a gift requires that the grantor manifest an intent that some property interest pass immediately to the grantee.
174
Actual Delivery
[R]: manual delivery
175
Symbolic Delivery
[R]: A symbolic delivery arises when the grantor passes some writing evidencing ownership and a manual (actual) delivery is not possible or feasible.
176
Constructive Delivery (CL)
A constructive delivery exists when a key is delivered to the donee, which provides access to a room or box in which is located the corpus, which is too big for a manual delivery.
177
Constructive Delivery (Modern)
Modernly, constructive delivery occurs whenever the grantor does everything possible to effectuate a delivery and there is no issue of fraud or mistake.
178
Acceptance Rule (gift inter vivos/causa mortis)
[R] Acceptance is typically implied, unless the gift is a liability.
179
Actual Entry (Rule- AP)
[R]: An actual entry is a substantial occupation of the land; traditionally, it is done by fencing or farming in the area or building improvements.
[Sub Rule]: A possessor does not have to cultivate every square foot to establish an actual entry. It is enough if the possessor uses the land as an ordinary owner would be expected to.
180
Open and Notorious Rule (AP)
[R]: An occupation is open and notorious if it is without concealment and capable of being seen by members of the community who might reasonably be expected to communicate their knowledge to the true owner.
[Sub Rule]: For minor encroachments, the owner must have actual knowledge to satisfy the notorious requirement.
181
Rents and Profits from Third Person
[R]: When one tenant leases property out to a third person, the non-leasing tenant has a right to receive a pro rata share of the net rental income.
182
Ouster Rule
(1) Ouster is when one co-tenant asserts complete ownership of the land and denies the co-tenant relationship. (2) Assertion of ownership may be accomplished in various ways, including the transfer of the entire fee.
183
Remedies for Ouster (Rule)
[R]: When one co-tenant ousts the other, the ousted tenant can secure one-half the fair rental value for the period of time the ousted tenant was denied possession; file an action to recover possession; and seek partition by sale.
184
Wills (Rule)
(1) In determining the interests created in a will, we look to the intent of the testator. (2) In determining testator’s intent, we look to the words of the will itself, and extrinsic evidence.
185
Constructive Ouster
Constructive ouster exists when the property is not suitable for double occupancy and A lives in the property to the exclusion of B.
186
Termination of Joint Tenancy
Cotenants (whether joint tenants or tenants in common) each have a right to terminate the joint tenancy.
187
Termination by Sale (Joint Tenancy)
Termination of a joint tenancy by sale occurs when the property is sold off and the proceeds distributed between the tenants.
188
When Grantee may sue the remote grantor
In some jurisdictions, because present covenants do no run w/ the land, a remote grantee cannot sue a remote grantor for a violation of a present covenant. In other jurisdictions, the remote grantee can sue the remote grantor for breach of present covenant because when the intermediary conveyed to the remote grantee he conveyed all his rights, including the right to sue the remote grantor for breach of present covenants.
189
Quitclaim Deed
Is a deed that contains no warranties. A grantee cannot sue a grantor on the basis of any of the covenants of title when the property was conveyed via quitclaim deed.
190
Estoppel by Deed
When O conveys title to A but does not own what he conveys, and O subsequently acquires title to this property, he is estopped from denying the validity of the prior deed.
191
Record Notice (type of constructive notice)
Record notice is a constructive notice that arises because the prior conveyance was recorded in the public record.
192
A deed submitted but not yet recorded...
In some jdx, imparts notice, so A takes. In other jdx, it imparts no notice, so B takes.
193
A deed submitted but improperly indexed...
imparts no notice to B
194
Shelter Rule on notice
If a grantor was a BFP (that is, if a grantor was a purchase who had no actual or constructive notice), subsequent grantees from this BFP are sheltered by the grantor’s BFP status. In other words, if the BFP would have prevailed, the subsequent grantees will prevail, too.
195
Wild Deeds (notice rule)
A wild deed imparts no notice and is not considered recorded. A wild deed is a recorded deed that is not in the chain of title. A deed is outside the chain of title if a title search would NOT reveal the deed.
196
Deed recorded before grantor secured title (notice rule)
a. {J1} This kind of deed imparts no notice. C is not obligated to check the grantor index to see if O conveyed the property prior to O → B.
b. {J2} This kind of deed imparts notice. C is obligated to check the grantor index back in time before O → B [possibly back to the day of birth of each grantor!] to see if there were prior conveyances.
197
Deed out from common grantor (notice rule)
a. {J1} This deed out imparts notice. X has a duty to check any adjacent parcels that O owned in the past for easements or other encumbrances.
b. {J2} This deed imparts no notice. X has no duty to check adjacent land.
198
After O - A and then O - B, B will begin making payments. What happens to the payments made before receiving notice?
J1: If A has superior title, B cannot get any of his payment back
J2: Give A the land and allow B to recover payments from A that B made prior to notice
[Daniels v. Anderson; B continued to make payments even after he received notice. The court award B the right to recover all the payments it made from A, including payments made after notice.]
J3: Award B a fractional and proportional interest in the land w/ A, so A and B become tenants in common
J4: Allow B to complete the purchase by paying the remaining installments to A
***payments made after receiving notice, there is no relief but see Daniels v. Anderson
199
Mortgage
At common law, the mortgage conveyed actual title to Y. Modernly mortgage conveys a lien to Y. A lien is a charge against the property to secure a payment.
A mortgagee who wishes to foreclose must file a lawsuit to do so. The exception is a power of sale mortgage, in which the mortgagee has the power to sell the property without the court’s leave.
200
Term for Years (type of leasehold)
A Term for Years is a leasehold to endure for a definite and ascertained period, fixed in advance.
201
Tenancy at Will (type of leasehold)
(1) A tenancy at will is created when the lease provides that the tenant shall occupy the premises so long as agreeable to both parties. (2) The lease is silent as to duration so the leasehold is viewed as a tenancy at will by implication of law.
202
Termination of a tenancy at will:
Common law: could be done immediately by either party
Modernly: 30-day notice is required
203
Tenancy at Sufferance (creation)
Arises when a person who previously entered lawfully into possession now wrongfully holds possession after his estate or right has ended.
204
Landlord Responses to Tenancy at Sufferance
1) treat the tenant as a trespasser and file an ejectment notice
2) allow the tenant to stay and keep making payments
205
If a landlord allows a tenant in sufferance stay and keep making payments (implications- split in jdx)
J1) The landlord's acceptance of these payments creates the implication that the tenant has entered into a new term lease identical to old one
J2) The landlord's acceptance of these payments creates a periodic lease
206
Tenant's Duty to Pay Rent (Exception)
At common law, duty to pay rent was absolute even if building was destroyed.
Modernly, if T is leasing only a portion of the building, the destruction of the building relieves T of duty to pay rent.
207
Doctrine of Impossibility (duty to pay rent)
May help to excuse a tenant from paying rent on a destroyed building. When the subject matter of the K is destroyed, rendering performance impossible, the parties are excused from further performance under the K.
