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Property > First Semester > Flashcards

First Semester Flashcards

1
Q

define trespass to land

A

right to possess land; does not require physical damage, e.g. “harm”, because actual damage/harm was caused to P’s right to exclude

3 factors to consider when determining punitive damages: degree of reprehensibility, disparity between the harm or portential harm suffered, and the difference between this remedy and penalties imposed in comparable cases

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2
Q

what is the shack standard?

A

property rights serve human values. they recognized to that end, and are limited by it. property to benefit society as a whole and not the individual owner

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3
Q

what are the exceptions to privileged entries on land over the owner’s objection

A
  1. Entry by a remainderman to view waste or make repairs
  2. Entry to abate a private nuisance
  3. Entry by a former licensee to remove his possessions
  4. Entry by a traveler on a public highway that has become impassable to enter neighboring land to continue his journey
  5. Entry because of private necessity (e.g. docking a boat at a private pier during a storm)
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4
Q

define trespass to chattels

A

requires actual damage/harm to property; requires “harm”

P still has the right to exclude by self-help with reasonable force to protect possession against even harmless interference

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5
Q

what is the majority view on speech and semi-private property?

A

property owners can restrict speech to reasonabke times, places, and manner restrictions

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6
Q

what is the minority view on speech and semi-private property?

A

schmid 3 factor test: normal use of the property; the extend and nature of the public’s invitation to use that property, and the purpose of the expression activity in relation to both its private and public use

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7
Q

what is the difference between lease and license?

A

lease is a possssory interest in land [exclusive possession], license merely authorizes the licensee to use land in the possssion of another [not exclusive possession]

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8
Q

what is the majority rule for actual physical possession and quiet enjoyment?

A

English Rule; Landlord is obligated to furnish actual physical possession to the tenant; no rent due until physical possession is obtained; tenant cannot terminate lease because of holdover tenant, provided that the LL removes holdover tenant in reasonable time; Note: it is T’s responsibility to handle squatters after they have taken possession

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9
Q

what is the minority rule for actual physical possession and quiet enjoyment?

A

American Rule; it is up to the tenant to deal with any trespasser or holdover tenant; LL is not held to a requirement of “actual possession,” only responsibility is to handover keys; Tenant has legal standing to evict & seek damages from holdover tenant or squatter

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10
Q

does the tenant have COA against LL if there is a trespasser?

A

no assuming as the LL is not negligent in creating or contributing to the situation or the lease is not disturbed by paramount title

paramount title is someone like mortgage holder or lender in foreclosure, then they have breach of COA

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11
Q

define convenant of quiet enjoyment

A

occurs when the LL substantially interferes with the tenant’s beneficial use or enjoyment of the premise; applies to both residential and commercial properties

a. Breach
i. Actual Eviction – complete or partial (physical exclusion)
ii. CE – no physical exclusion, but substantial interference that prevents tenants enjoyment of premises
iii. General breach of CQE – not rising to level of actual or constructive eviction, but entitles T to damages
b. Requirements:
i. Notice
ii. Reasonable time to cure (R/T/C)
c. Remedies:
i. Terminate the lease
ii. Withhold rent
iii. Damages (e.g. storage units, hotel costs)

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12
Q

define partial actual eviction

A

encroachment by LL on an appreciable portion of the leased premise

a. Requirements:
i. Notice
ii. R/T/C
b. Remedies:
i. Majority Rule: withhold all rent (complete abatement) for the remainder of the lease term until premises are restored
ii. Minority/Modern Rule: percentage reduction in rent  If 10% encroachment, then 10% off rent – proportional
iii. LL can consider lease terminated and vacate

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13
Q

define constructive eviction

A

occurs when the LL deprives the tenant of the beneficial use or enjoyment of the property so that the action is tantamount to depriving the tenant of physical possession; a reasonable person could not live in the conditions

a. Requirements:
i. Notice
ii. R/T/C – If LL does not cure, tenant must vacate
b. Remedies:
i. Lease terminated, stop paying rent, forced to vacate because of bad conditions

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14
Q

what is the common law for LL’s duties?

A

No implied covenant concerning quality of premises; all obligations to maintain and repair on tenant, not LL; LL failure to perform did not allow tenant to w/h rent; prior to I/W/H, there was caveat emptor, which the LL had no duty of the lessor after the lessee signed the lease

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15
Q

what is the modern view for implied warranty of habitability?

A

LL must maintain livable, habitable conditions/vital facilities (e.g. heat, hot water); most courts look at building/housing codes, but tenant doesn’t necessarily need a code violation

LL must maintain “bare living requirements” (e.g. heat and water)
i. Most jurisdictions do not allow I/W/H to be waived (implied at beginning of lease; even where tenant remains in possession of the premise after the alleged breach; distinguishes from breach of CQE)
ii. Tenant not required to vacate premises, must give LL R/T/C
1. If tenant leaves, the COA turns into Constructive Eviction
iii. No breach occurs for small things (e.g. blinds)

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16
Q

what are the remedies for breach of I/W/H?

A

i. Withhold Rent until problem cured (some courts require rent to be paid to escrow account)
ii. Repair and Deduct (limitation: cannot exceed 1 month’s rent)
iii. Sue for Damages (while remaining in possession)
iv. Terminate the lease and sue for damages
1. Approaches to damages:
a. Fair rental value less fair rental value in unrepaired condition
b. Contract rent less fair rental value in unrepaired condition
c. Percentage diminution approach
*Many states do not recognize IWH for commercial leases, but do recognize IWS

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17
Q

define implies warranty of suitability

A

LL requirement in commercial leases that the premises are suitable for their intended commercial purpose

i. Majority of Jx: Residential only; does not recognize the I/W/H or I/W/S in commercial leases
ii. Minority (Restatement): recognizes I/W/S

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18
Q

define tenancy for years

A

fixed or computable period of time that requires certainty of duration; the death of LL or T does not terminate a tenancy for years

i. Fixed = beginning and ending times of lease are on designated calendar dates
ii. Computable = contains a formula for determining the starting/ending date
b. Creation: an express agreement
c. Termination: terminates automatically at the end of the period specified in the agreement; neither party needs to give notice (no notice)

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19
Q

define periodic tenancy

A

continues for successive periods until terminated; automatically renews until terminated, death of LL or T does not affect duration (e.g. week to week, month to month, and year to year)

b. Creation: express agreement or more typically, inferred from facts
c. Termination: notice is required

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20
Q

define tenancy at will

A

Characteristics: no designated period of duration, at the will of both parties
Creation: express agreement or more typically, inferred from the circumstances
Termination: terminates at the will of either party, OR at the death of either party, OR when LL tries to convey/T tries to assign

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21
Q

define tenancy at sufferance

A

holdover tenants after lease expires, just short of a trespasser

a. C/L: LL could bring eviction action or could accept rent & extend lease for another term period
b. Restatement: requires reasonable time to vacate
c. Some states require the LL to give T notice before terminating or eviction
If the LL excepts payment then it becomes a periodic tenancy

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22
Q

what is the common law/traditional rule for LL personal injury?

A

LL is not liable for personal injury caused by defects in the premises

Negligence – (1) contracted to make repairs and didn’t do it, or (2) knew, or should have known, of the defects (e.g. foreseeability)

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23
Q

what is the modern rule for LL personal injury?

A

LL has duty to make premises safe; lessors are generally liable for personal injuries suffered on the leased premises

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24
Q

what is the extension of I/W/H to cover safety of a premises?

A

A LL’s I/W/H obliges him to furnish reasonable safeguards to protect tenants from foreseeable criminal activity

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25
Q

under the common law, what is the LL motive for selecting or removing tenants?

A

LL had completed freedom to choose tenants

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26
Q

define the fair housing act of 1968

A

It is unlawful to discriminate in the sale or rental of most housing on the grounds of race, color, religion, sex, familial status or national origin (ex. “children can’t ride bikes on sidewalk” is discrimination against familial status)

2 exceptions: single family home or renting a building

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27
Q

what is the civil rights act of 1860

A

it protects against discrimination based on race

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28
Q

what is the majority rule for assignment

A

transfer of all of the tenant’s rights under the lease to the transferee for remainder of lease

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29
Q

under the majroity assignment view, who has privity of contract with the tenant/assignor and who has privity of estate?

A

LL has privity of K with tenant/assignemtn and privity of estate with assignee. tenant has privity of K with assignee.

If rent does not get paid, LL may sue Tenant/Assignor or the Assignee
Assignee is primarily liable because Assignee has privity of estate (being on the land) and liability runs with the land. Tenant/Assignor has secondary liability. Tenant/Assignor can seek novation, releasing him from the contract

30
Q

what is the majority rule for sublease?

A

not for remainder of lease, anything less than lease term

31
Q

under the majroity sublease view, who has privity of contract with the tenant/assignor and who has privity of estate?

A

LL has privity of K and privity of estate with Tenant/Sublessor. Sublessee has privity of estate and privity of K with Sublessor

If rent does not get paid, LL may only sue Tenant/Sublessor, but can evict both. There is no legal relationship between the LL and the Sublessee, but Sublessee can be evicted because he has no right

32
Q

define the minority/subjctive view test for assignment and subleases

A

abernathy test; look at the terms, who the rent is paid, right of repossession, duration, if rent is for the same amount

33
Q

define the majority [epstein view] for the tenant’s right to assign or sublease

A

LL may arbitraily withold consent unless the lease says he must be reasonable

34
Q

define the minority [hinky dinky view] for the tenant’s right to assign or sublease

A

LL can only withold consent if he has good faith, reasonable obection, even if there is a clause that says LL must give consent

Factors to determine reasonableness:
i. Financial Responsibility of the proposed assignee or sublessee
ii. The assignee’s or sublessee’s suitability for the particular property
iii. Legality of the proposed use
iv. Need for alternation of the premises
v. Nature of the occupancy

35
Q

what is the traditional view on the doctrine of “surrender”

A

A LL who attempted to mitigate by re-entering or re-leasing “accepts” tenant’s “surrender” and loses the right to sue tenant because privity of estate no longer existed

Tended to discourage mitigation of damages because if the T vacated the premises, LL would be more inclined to wait out the lease term and then sue for the full unpaid rent for the lease term, rather than run the risk of taking actions that could be perceived as an “acceptance” of the T’s “offer” to “surrender”

36
Q

what is the traditional restatement 2d for LL remedies/mitigation if the tenant breaches

A

LL has no duty to mitigate in any situation in residential leases

the LL can choose to re-let without releasing the tenant’s liability under the lease. i. While the T is still technically “liable” for rent for the balance of the lease term, the T’s liability for rent is limited to the difference between the rent reserved in the lease and the rent paid by the new T

37
Q

what is the modern trend for LL remedies when a tenant’s breach? (Mitigation)

A

LL is requires to mitigate damages: the LL must take commerically reasonable steps to find a new tenant, an active good faith effort ; defaulting tenant can offset amounts owed by what the LL has collected

38
Q

what are the three appraches for a LL to recover rent?

A

multiple cause of action: LL can recover only those rents which have accurud through the time of the trial; anticipatory breach: LL can bring suit prior to expiriation of lease temrs and obtain a recover of accrued rents and an amount that represents future rent; retained jurisudction: court retains jurisidiction and enter new damage awards as additioanl rents accurued

39
Q

what is the rule of perpetuities [RAP] used for?

A

contingent remainder, executory interests, and certain vested remainders subject to open

40
Q

what is the life tenant owed?

A

is the owner if present, possessory interest, and is typically entitled to income earned by property. however, a LT is typically not entitled to any portion of the pricipal such as proceeds from the sale of property.

41
Q

under the doctrine of waste, what is the life tenant required to do?

A

resposible for ordinary maintnence, but not responsible for permanent improvements

42
Q

what is the majority approach under the doctrine of waste?

A

waste only if it redeuced value of the proeprty; LT that enhances the value of the property won’t have to pay damages

43
Q

define permissive waste

A

LT fails to preserve and protect the property by exercising ordinary care of a reaonable prudent person; letting the place go

statute of limitiations is “continuous” and stats to run at the death of the life tenant. a continuing harm on the property

44
Q

what are the remedies for permissive waste?

A

forfeiture; damages for sustained injuries; injuctive relief in equity or can file suit continuously

45
Q

define commissive waste

A

voluntary waste; LT damages the property in such a way that the property value is permanently reduced; affirmative act

46
Q

what are the remedies for commissive waste?

A

seek monetary damages and equitable relief; extreme cases can do forteiture

47
Q

define ameliorative waste

A

affirmative act that leads to a substnatial change that increasesthe value of the property

think building a swimming pool

48
Q

define the open mind doctrine

A

Exception to a LT’s ability to commit voluntary waste; a doctrine that permits a tenant to commit voluntary waste on a piece of land by depleting it of natural resources when mining was previously done on the land and mines were currently open at the time the tenant took possession of the land. In this situation, a tenant is allowed to continue mining on the land, but can only continue to mine in the open mines already in existence and cannot open any new mines on the land

think a mine existing before LT took occupancy, LT can take operation but cannot increase production to deplete supplier quicker

49
Q

what are retained on alienation

A

Rules against restraints on alienation prohibits restraints on property rights; serves to prevent “the withdrawal of property from commerce”; Hinders owner’s ability to sell property, can discourage productive use of the property

50
Q

define restraints on alienation

A

any provisions that prevents the owner of an interest in property “from disposing of the interest at all or from disposing of it in particular ways or to particular persons”

51
Q

what is direct restraint

A

includes absolute prohibitations on some transfers, prohibitions on transfers without the consent of another, options to purchse land and rights of fost refusal

52
Q

what is the right of first refusal under direct restraint?

A

right to purchase property before it is offered to others; when owner wants to sell to a third party, he is required to give notice to holder of ROFR and give him a reasonable time period to accept before closing with the third party; must be supported by consideration and there is no right to compel to sell; ROFR does not carry over once seller sells to third party; a fix price, no set of how long the duration is can be probomatic,

Essential Terms of a ROFR:
i. The consideration $$$
ii. The condition that the owner has decided to sell the property and is in receipt of an offer from a third party which the owner desires to accept
iii. The requirement for notice of the offer to be given to the holder of the right
iv. A time period for the holder to accept the offer, and
v. closing

53
Q

what are the 3 types of right of first refusal?

A

permits the riht’s owner to purchase property at a fixed price if the property owner, his heirs, or assigns should ever desire to sell. permits the pre-emptioner to purchase the property at “market value” if the owner, his heirs or assigns should ever desire to sell. permits the pre-emptioner to purchase the property at a price equal to any bona fide offer that the owner,, his heirs or assigns desire to accept

54
Q

what is indirect restraint

A

transfer fees payable by the grantor to another and use restrictions that may affect the value of the property

55
Q

what are the characteristics of tenancy in common

A

i. Undivided right to use and possess property
ii. Each cotenant may transfer interest
iii. Freely alienable (ability to sell/lease), devisable (could put % in a will), and descendible (when someone dies intestate, w/o a will, assets pass through probate to heirs)
iv. No requirement to be equal
v. No right of survivorship
vi. Divisible

56
Q

what are the characteristics of joint tenancy

A

i. Undivided right to use and possess property
ii. Right of survivorship
iii. Not divisible or descendible
iv. Need four unities (TTIP)

  1. Unity of Time: all tenants must take their interest at the same time
  2. Unity of Title: all tenants must take their interest from the same source, either the same deed, will, or intestate
  3. Unity of Interest: all tenants must have an equal and identical interest in the property. Equal in size and duration.
  4. Unity of Possession: all tenants must have a possessory interest in the whole; equal right to possess, use and enjoy
57
Q

what are the characteristics of tenancy by the entirety

A

i. Undivided right to use and possess
ii. Right of survivorship
iii. Cannot be destroyed by unilateral act
iv. Single shared interest
v. Five unities
1. All four from joint tenancy AND Unity of Person (parties are married)
vi. Creditor cannot take property b/c unfair to non-debtor spouse

58
Q

what are the characteristics for community property

A

i. Undivided right to use and possess
ii. Derived from earnings of any spouse
iii. Surviving spouse gets at least half

59
Q

what are the characteristics of partitioning?

A

i. Only applicable in Tenancy in Common AND Joint Tenancy
1. If one cotenant wants to sell, they can bring action of partition
ii. Voluntary (not forced) OR Judicial Proceeding (forced)
1. Two Types:
a. Division in Kind: divided into pieces
b. Division in Sale: sell and split profits
iii. Prohibiting partitioning = a restraint on alienation (depending on 3 factor test of price, purpose, and duration)

60
Q

what is the traditional view for joint tenancy

A

if ambiguous, recnogize as joint tenancy

61
Q

what is the modern view for joint tenacy

A

if ambiguous, recognize as tenancy in common

62
Q

what is the doctrine of ouster

A

whena contenant makes a demand to use the land that is the in the exclusie possession of another cotenant and that contenant refuses to allow itl the contenant demanding use then has a claim

i. Ousted T may sue for rent and profits, but this is allowed only up to the amount of the other T’s cost of repairs and maintenance
ii. There is no recovery for repairs and improvements unless it is done with the consent other T, UNLESS the other T files ouster and may get value of improvements upon sale

63
Q

what is the majority view for ousters

A

cotenant will not have to account for benefits from land in absence of ouster as long as it doesn’t reduce land’s value

64
Q

what is the minority view of ousters

A

some courts require an accounting if a notenant takes a benefitin excess of his propertion of ownership

65
Q

what are the characteristics of possession by co-tenant

A

i. Each is equally entitled to the possession of the entire co-tenancy property.
ii. No co-tenant may exclude another co-tenant from any part of the property

66
Q

what are the characteristics for repairs in an ouster

A

If one co-tenant pays the cost for repairs – and the other co-tenants have not agreed to help him, most courts do not allow him to make a direct claim for contribution for their share of the expenses.

can recieve credit tho

67
Q

what is the common law approach for termination of joint tenancies

A

if a T transferred his right of possession (lease), it severed the JT and converted it to a tenancy in common; a JT cannot destroy the RoS by conveying property to herself; conveying property from JT to a third party requires a “strawman” (whereas modern courts don’t require strawman)

68
Q

what is the modern view of termination of joint tenancies

A

leasing of property does not sever JT; if cotenant dies, lease is terminated and other tenant gets property under RoS

69
Q

what is the Lien Thory for termination of joint tenancies

A

this is the majority view; JT is not severed when one joint tenant executes a mortgage on his interest in the property, since all unities have been preserved

70
Q

what is the title theory for termination under joint tenancies

A

this is the minority view; mortgage is a conveyance of a legal estate vesting title to the property in the mortgage; a JT is severed by one of the joint tenants mortgaging his interest to a stranger

Property (2 decks)

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