MBE - Property Flashcards
What mortgage interests are extinguished at foreclosure?
Junior mortgage is extinguished
Defeasible Fees
1) Courts won’t find unless clear language (wish, desire, hope, expectation does not create defaceable fee)
2) Cannot absolutely restrain transfer (alienation), unless reasonable and time-limited purpose exists.
If clear or complete restrain => FSA and strike the rest.
Rule Against Perpetuities
Future interest is void if there is any possibility that given interest will vest more than 21 years after the death of someone relevant involved in the deed.
Suspect interests: ONLY
1) contingent remainder
2) executory interest
3) vested remainder subject to open
4 Steps to analyze RAP
1) What is the future interest?
2) What has to to happen for future interest holder to take?
3) Choose a relevant life
4) Determine whether within 21 years after the death of the measuring life further interests holder can take.
Cy Pres
Gives the court a power to reform the transfer deed if it violates RAP, in a way that most closely matches the grantor’s intent, instead of striking the violating part.
Adverse Possession Elements
1) Continuous for the statutory period
- tracking: can add new possessor’s time to the old possessors time if there is some privity and no ouster
- disability: time does not start to run if at he beginning of AP the owner was disabled.
2) Open and notorious
3) Exclusive
4) Hostile
Rights of Co-Tenants
- Use and enjoy the whole (prevention causes actionable wrong of ouster)
- a co-tenant does not owe rent to co-tenant for exclusive possession
- each gets appropriate share from rest to this parties
- co-tenant cannot adversely possess (no hostility)
- carrying costs (tax, mortgage) proportional to ownership
- ——unless one of the them has taken the mortgage before co-tenancy was created.
- repairing co-cowner can demand contribution for reasonable & necessary repairs if gave notice (proportional to ownership interest)
- improvements - not during co-tenancy, but yes during partition (proportional)
- waste: can bring action during co-tenancy
What’s Tenant’s Duty to Repair /Fixtures
Duty to Repair (when lease is silent)
- routine repairs; not responsible for wear and tear
- must not commit waste: destructive (voluntary), neglect (permissive), or enhancement (ameliorative)
- cannot remove a fixture - thing done that objectively shows intent to permanently improve (ex: heating systems, lighting installations, etc) BUT CAN TAKE if removal does not cause substantial harm to premises. OTHERWISE it is a destructive waste: fixtures pass with land ownership.
- if lease says T must maintain in good condition for the duration of the lease => T now can end the lease if property’s destroyed by not T’s fault (hurricanes in Hawaii etc.)
Tenant’s Duty to Pay Rent
- if no pay, L can 1) evict through court, 2) let T stay and sue for the rent (tenancy at sufferance)
- L cannot self-help: forcefully remove T, change locks
- if T leaves before end of lease and stops paying:
> L can treat as surrender - intend to end lease
> ignore that T left and hold responsible for the rent
> Majority view => L MUST mitigate and try to re-lease the place and hold old T responsible for loss in the process.
Landlord’s Duties
- duty to make the place available to T
- implied covenant of habitability
- Implied covenant of quiet enjoyment
> cannot wrongfully evict T
> breach by constructive eviction: S I N G
1) substantial interference by L (action or failure)
2) Notice to L, and failure to correct
3) Goodbye: T MUST VACATE the place reasonable time after L fails to correct - not liable for other tenants’ acts, BUT must not allow nuisance and must control common areas
- not liable for latent defects, as long as she did not know about it.
Implied Warranty of Habitability
- Premises must be fit for basic human dwelling
- residential lease only!
- non- waivable
- what can T do?
1) end lease and move out, but DOES NOT HAVE TO MOVE, can
2) repair and deduct from future rent
3) Reduce rent
4) remain, pay rent => sue for damages
Transferring Lease
Assignment => complete transfer L - T1 - T2 => L and T1 have privity of K, no privity of estate. L and T2 have privity of estate, no K. If T2 cannot pay, T1 is liable
Sublease => transfer of less than the time left in lease. [L - T1 ] then [T1 -SL]. T1 fully liable to L, can go after SL. L cannot go after SL.
Caveat Lessee
Under Tort law, L has NO DUTY to make premises safe.
Exceptions: C L A P S
1) L must maintain common areas
2) L must warn about defects
3) L liable if assumes repairs (starts fixing stuff)
4) public use rule - L leases a huge public space - liable cuz lessee has no time or knowledge to repair big stuff
5) Short-Term lease of furnished place.
What Mortgage destroys Joint Tenancy
Lien Theory does not destroy (majority view on the bar)
Title theory does
Partial Actual Eviction
Partial actual eviction occurs when the tenant is excluded from only part of the leased premises.
if by landlord => T does not have to pay rent
if by paramount owner => has to pay for the part that T still occupies.
implied warranty of habitability
does not apply to commercial property, only residential
Constructive Eviction Elements
This is a breach of the covenant of quiet enjoyment
1) Substantial Interference by L (action or failure)
> premises are inhabitable
2) T’s notice to L, L ignores the notice
3) T vacates within reasonable time
Sublease v assignment
T’s reservation of a right of reentry does not result in a sublease, but rather is still an assignment.
If Landlord transfers his interests, who is liable to Tenant?
A landlord may assign the rents and reversion interest that he owns. The assignee is liable to the tenants for performance of all covenants made by the original landlord in the lease, provided that those covenants run with the land. The original landlord also remains liable on all of the covenants he made in the lease.
A novation substitutes a new party for an original party to the contract. It requires the assent of all parties and completely releases the original party.
Generally, promises to do a physical act, such as maintain or repair the property, are considered to run with the land so L2 is liable.
If T transfers interest in violation of covenant against assignment or sublease…
transfer is NOT void, but the landlord usually may terminate the lease under the lease terms or a statute or sue for damages.
Landlord’s oral consent to waive K provisions
is sufficient
surcharge an easement
if the easement holder uses the easement in a way that exceeds its legal scope, the easement is surcharged.
The servient landowner may enjoin the excess use and possibly sue for damages if the land has been harmed.
However, the easement does NOT terminate by operation of law, nor does such use give the servient owner a power of termination.
Will non use of an easement for a long time terminate it?
No! Need physical act for amendment in addition! t
Easement by necessity (Implication) Location
An easement by necessity arises when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line.
The owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient.
Excess use (having increased clients come in) is surcharge and servant can sue for damages and stop the excess use.