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P Flashcards

1
Q

An estate in land can be held concurrently by several persons, all of
whom have the right to enjoyment and possession of the land.
There are three forms of concurrent ownership:

A

The Joint Tenancy
The Tenancy by the Entirety
The Tenancy in Common

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2
Q

The Joint Tenancy

A

Two or more own with the right of survivorship

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3
Q

The Tenancy by the Entirety

A

A protected marital interest between spouses with the right of survivorship

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4
Q

The Tenancy in Common

A

wo or more own without the right of survivorship

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5
Q

joint tenancy

A

right of survivorship- deceased JT’s share goes automatically to surviving JT

alienable intervivos? (transferrable) yes
devisable?(passed by will) no
descendible? (pass thru intestacy) no

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6
Q

How to Create a Joint Tenancy

A

T- at same time
T-by same title
I-identical equal interests
P_right to possess whole

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7
Q

In addition to the four unities, to create a joint tenancy the grantor
must ____the right of survivorship.

A

clearly express

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8
Q

severance of joint tenancy

A

sale: JT sells/transfers during lifetime
(even w/o others knowledge or consent)

partition
voluntary:amicable end
judicial: in kind (phy division);forced sale (division of proceeds)

mortgage
maj of states (lien theory) no severance

minority of states (title theory) no severance

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9
Q

A tenancy by the entirety is a ___estate akin to a joint tenancy. It
can be created only between married partners, who take as a fictitious “one person” with the right of survivorship.

A

marital

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10
Q

how to sever tenancy by entirety

A

divorce (becomes tenancy in common)
death
execution of lien (of both spouses)

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11
Q

tenancy in common

A

no right of survivorship

cotenant owns individual part +right to possess whole

devisable, descendible, alienable

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12
Q

rights and duties of cotenants -possession

A

no ouster (wrongful exclusion from part/whole)

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13
Q

rights and duties of cotenants -rents and profits

A

none from co-tenant in exclusive possession (unless ouster)

fair share if leased to third party

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14
Q

rights and duties of cotenants -adverse possession

A

not unless ouster

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15
Q

rights and duties of cotenants -carrying cost

A

each pays fair share

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16
Q

rights and duties of cotenants -repairs

A

contributions for reasonable necessary repairs with notice

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17
Q

rights and duties of cotenants -unilateral improvements

A

no contribution (credit at partition)

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18
Q

waste: voluntary

A

willful destruction

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19
Q

waste: permissive

A

neglect

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20
Q

waste: ameliorative

A

unilateral change increasing value

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21
Q

judicial partition

A

partition in kind preferred

forced sale allowed if fair/equitable phys division not possible

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22
Q

A leasehold is an estate in land, under which the tenant has a
present possessory interest in the leased premises and the landlord
has a future interest (reversion). There are four leasehold estates:

A
  • The tenancy for years
  • The periodic tenancy
  • The tenancy at will
  • The tenancy at sufferance
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23
Q

This lease, also known as the estate for years or term of years, is for ____ That period could be, for example,
as short as one week or as long as 50 years.

A

a
fixed, determined period of time.

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24
Q

tenancy for years

A

termination automatic (on end date)

no notice needed to terminate

writing typically needed if >1year

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25
Q

periodic tenancy

A

continues for successive intervals until properly terminated

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26
Q

periodic tenancy

A

express (L to T from month to month)

by implication
no mention of duration but rent at set intervals

oral term of years violating statute of frauds

holdover tenant after lease ends

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27
Q

periodic tenancy: notice of termination

A

common law: atleast equal to length of period

month to month: 1 month

week to week: 1 week

year to year: 1 month under restatement

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28
Q

tenancy at will

A

no fixed duration

terminable at will of either party (To T as long as L or T desires)

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29
Q

tenancy at sufferance

A

t wrongfully holds over past lease expiration

L proceeds to recover rent

terminates when L moves to evict or holds T to new tenancy

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30
Q

T’s duty to repair if lease silent

A

maintain premises
make routine repairs
not ordinary wear and tear repairs
dont commit waste

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31
Q

A tenant’s duty to repair is linked to the doctrine of waste. A tenant
cannot damage (meaning, commit waste on) the leased premises.
There are 3 types of waste:

A

Voluntary (affirmative) waste:
It results when the tenant’s overt conduct damages the
premises.

Permissive waste:
It occurs when the tenant fails to take reasonable steps
to protect the premises from damage from the elements.
Remember, the tenant is liable for maintaining the premises,
excluding ordinary wear and tear. If the duty to maintain the
premises is shifted to the landlord (by lease or statute), the tenant has a duty to report deficiencies promptly.

Ameliorative waste:
It occurs when the tenant unilaterally alters the leased property, thereby increasing its value. Generally, the tenant is liable for the cost of restoration. There is a modern exception to this rule,
however, which permits a tenant to make this type of change if the tenant is a long-term tenant and the change reflects changes in the neighborhood

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32
Q

T’s duty to repair w express covenant

A

maintain in good repair/condition

T may terminate if premises destroyed w/o t’s fault

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33
Q

duty to pay rent; if T breaches and remains on premises:

A

evict

continue relationship and sue for rent

no self help

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34
Q

duty to pay rent; if T breaches and is out of possession

A

S- surrender: end lease
I- ignore: do nothing (hold T liable for rent)
R-Relet: new lease (hold T liable for deficiency)

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35
Q

duty to deliver possession

A

duty to place T in actual physical possession

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36
Q

implied covenant of quiet enjoyment

A

T has right to quiet use and enjoyment w/o interference from L (residential and commercial)

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37
Q

how L breaches IC of Quiet Enjoyment

A

breach by wrongful eviction: exclusion from whole or part of premises

breach by constructive eviction: L renders premises unsuitable for occupancy

SI- substantial interference (chronic/permanent problem)

N- notice (T must notify L)

G- goodbye/get out (T must vacate)

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38
Q

Actual eviction occurs when the landlord, a paramount title holder,
or a hold-over tenant

A

excludes the tenant from the entire leased
premises. Actual eviction terminates the tenant’s obligation to pay
rent

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39
Q

Partial actual eviction occurs when the tenant is

A

physically excluded
from only part of the leased premises. Partial eviction by the landlord
relieves the tenant of the obligation to pay rent for the entire
premises, even though the tenant continues in possession of the
remainder.

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40
Q

implied warranty of habitability

A

residental only

premises must be fit for basic human habitation

standard: case law and housing code

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41
Q

implied warranty of habitability

T’s options if L breaches (M R3)

A

move (doesnt have to)
repair and deduct
reduce or withhold rent
remain and seek damages

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42
Q

distinguish the implied promises : covenant of quiet enjoyment v warranty of habitability

A

1) T must vacate
2) T may but doesnt have to vacate

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43
Q

retaliatory eviction

A

L cant terminate/penalize T in retaliation for T’s exercise of legal rights

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44
Q

The Civil Rights Act bars ___ in the sale or
rental of all property.

A

racial or ethnic discrimination

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45
Q

The Fair Housing Act protects tenants and potential tenants from
discrimination based on ___

A

race, color, religion, national origin, sex, or
disability, as well as familial status (except in senior housing).

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46
Q

Except as relates to advertising (see c., infra), the Fair Housing Act
does not apply to

A

(1) owner-occupied buildings with four or fewer
units in which persons live independently of each other; and (2)
single-family homes sold or rented by an owner who owns no more
than three single-family homes.

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47
Q

FHA prohibited actions

A

Refusing to negotiate, rent, or sell housing or make available a mortgage loan or other financial assistance;

Providing different terms or conditions for the sale or rental
of a dwelling or for a mortgage or other financial assistance; and

Falsely representing that a dwelling is not available for
inspection, sale, or rental.

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48
Q

When the Fair Housing Act applies, landlords must permit disabled
tenants to make reasonable modifications to existing premises
to accommodate their disabilities at the tenants’ own expense.
Landlords must also make

A

reasonable accommodations in rules,
policies, and services when necessary to afford a disabled person an
equal opportunity to use a dwelling.

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49
Q

assignment

A

transfer of entire remaining term of lease

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50
Q

sublease

A

transfer of part of remaining term of lease

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51
Q

assignment

A

assignee T in privity of estate w/L

liable on covenants that run w land

original T in privity of K (but not estate) w/L

liable for org lease obligations

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52
Q

sublease; T2 has no privity (estate or k w L) … T1 and T2 ____

relationship b/w L and T1 ____

A

responsible to eachother

remain intact

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53
Q

Common Law of Caveat Lessee
The common law norm is: Let the tenant beware. In tort, a landlord
was under no duty to make the premises safe.
The five exceptions to caveat lessee: CLAPS

A

-Common areas
* Latent defects (L must warn)
* Assumption of repairs (L liable if negligent)
* Public use rule (short lease, significant defect)
* Short-term lease of furnished dwelling

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54
Q

Easement

A

grant of nonpossessory property interest entitling holder to use/enjoyment of anothers land

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55
Q

affirmative easement

A

right to go on to and do something on another’s land

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56
Q

negative easement

A

right to prevent landowner from doing something (light, air, support, stream water from artificial flow)

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57
Q

negative easement creation

A

must be express

58
Q

easement appurtenant

A

benefits holder in use/enjoyment of own land

two parcels
dominant: derives benefits
servient: bears burden

59
Q

An easement is in gross if it confers ____

A

upon its holder only some
personal or pecuniary advantage that is not related to their use or
enjoyment of their land.

servient land burdened

no benefited/dominant tenement

ex:
The right to place a billboard on another’s lot

The right to swim in another’s pond

The utility company’s right to lay power lines on another’s lot

60
Q

The appurtenant easement passes _____ with transfers of
the dominant tenement, regardless of whether it is even mentioned in
the conveyance.

A

automatically

61
Q

The burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is ____

A

a bona fide
purchaser without notice of the easement.

62
Q

An easement in gross is not transferable unless it is for ____

A

commercial
purposes.

63
Q

The basic methods of creating an easement can be remembered by
P I N G:

A
  • Prescription
    -continuous,
    -open and notorious,
    -actual,
    -hostile
  • Implication (preexisting use/quasi-easement)
  • Necessity
  • Grant- signed writing (unless outside statute of frauds)
64
Q

termination of easement

A

E-estoppel (servient owner materially changes positions in reliance)

N-necessity (when need ends unless writing)

D-estruction (of servient land)

C-ondemnation (of servient land)

R-elease (by holder to servient owner)

A-bandonment (physical action)

M-erger (easement and servient land held by same person)

P-rescription (by servient owner)

65
Q

license

A

mere privilege to enter another’s land for narrow/delineated purpose

66
Q

creation of license

A

no writing req’d

freely revocable at will of licensor

67
Q

profit

A

entitles holder to enter servient land and take some resource

68
Q

covenant

A

promise to do or not do something

69
Q

negative/restrictive covenant

A

refrain from doing something

70
Q

affirmative covenant

A

do something related to land

71
Q

On the exam, the same set of facts could seem to give rise to either
a covenant or an equitable servitude. How will you know which
analysis to apply?

A

money damages: construe as covenant at law

injunction: construe in equity as equitable servitude

72
Q

If the following requirements are met, any successor in interest to the
burdened estate will be bound by the covenant as if they themselves
had expressly agreed to it. For the requirements for the burden of a
covenant to run, remember W I T H N:

A
  • Writing
  • Intent
  • Touch and concern
  • Horizontal and vertical privity
  • Notice
73
Q

Both horizontal and vertical privity are required for

A

the burden to run

74
Q

Horizontal Privity

A

Horizontal privity refers to the nexus between the original
promising parties (A and B). It requires that they be in succession of estate, meaning that they were in a grantor-grantee or
landlord-tenant or mortgagor-mortgagee relationship when the
covenant was created. In other words, at the time the promisor
entered into the covenant with the promisee, the two must have
shared some interest in the land independent of the covenant.
Horizontal privity is difficult to establish. Its absence is the
reason why many burdens will not run.

75
Q

Vertical Privity

A

Vertical privity refers to the nexus between the successor in
interest (A-1) and the originally covenanting party (A). It simply
requires some non-hostile nexus, such as contract, devise, or
descent. The only time vertical privity will be absent is when the
successor acquired her interest through adverse possession.

76
Q

req for benefit to run

A

writing
Intent
touch and concern
vertical privity

77
Q

equitable servitude

A

promise equity will enforce against successors of burdened land (regardless of whether it runs w land at law)

78
Q

Generally, as with real covenants, equitable servitudes are created by
promises contained in a writing that satisfies the Statute of Frauds.
To create an equitable servitude that will bind successors, remember
W I T N E S:

A

writing
intent
touch and concern
notice
equitable servitude

79
Q

The two elements of the general or common scheme doctrine:

A

Scheme of development (including D’s lot) when sales began

D had notice of promise when they took

80
Q

forms of notice

A

actual (literal knowledge)
Inquiry (lay of the land)
record (public docs)

81
Q

A court will not enforce an equitable servitude if:

A

a. The neighborhood conditions have changed so significantly
that enforcement would be inequitable. The changed circumstances alleged by the party seeking release from the terms of
an equitable servitude must be so pervasive that the entire area
or subdivision has changed. What’s never good enough here is
piecemeal change or mere pockets of limited change;
b. The person seeking enforcement is violating a similar restriction
on his own land (unclean hands);
c. A benefited party acquiesced in a violation of the servitude by a
burdened party;
d. A benefited party acted in such a way that a reasonable
person would believe the covenant was abandoned or waived
(estoppel); or
e. The benefited party fails to bring suit against the violator within
a reasonable time (laches)

82
Q

adverse possession

A

possession for statutorily prescribed time can ripen into title if elements met

continuous (uninterrupted, as owner might use)
open and notorious (apparent to put owner on notice)
actual and exclusive
hostile (permission defeats)

83
Q

One adverse possessor may tack on to his time with the land his
predecessor’s time, so long as there is ____between the possessors.

A

privity

84
Q

Privity is satisfied by

A

any non-hostile nexus, such as a contract,
deed, or will.

85
Q

privity is absent when

A

the possessor
acquires possession by ousting his predecessor in possession.

86
Q

conveyancing: 2 step process

step 1

step 2

A

1) contract (conveys equitable title)

2)****

87
Q

statute of frauds applicable

A

k must be in writing

signed by party against whom enforcement sought

must also:
identify parties
describe property
state consideration

88
Q

preferred remedy for land k

A

specific performance

89
Q

part performance

allows buyer to enforce oral K by specific performance if

A

1) **
2)

90
Q

part performance

acts usually satisfied by 2/3 of following:

A

1) **
2)
3)

91
Q

equitable conversion

A

**

92
Q

marketable title

A
93
Q

zoning

A
94
Q

no false statements of material fact

A
95
Q

no implied warranty of fitness or habitability

A

buyer beware (except sale of new home by builder)

96
Q

to pass title, must be “LEAD” lawfully executed and delivered

lawful; execution requires

A

Writing signed by grantor
Unambiguous description
I**
W**

**no consideration needed

97
Q

delivery req

A

legal standard testing grantor present intent (did they have present intent to be bound)

98
Q

oral condition

A
99
Q
A
100
Q

3 types of deed

A

quitclaim
general warranty
special warranty

101
Q

quitclaim

A

no covenants for title

102
Q

general warranty

A

warrants against all defects in title (including by grantors predecessors)

103
Q

6 covenants for title

A
104
Q

special warranty deed

A

warrants against all defects in title (only for grantor themselves)

105
Q

brightline rules for recording statutes

A

race

notice

race notice

106
Q

race jx

A
107
Q

notice jx

A
108
Q

race notice jx

A
109
Q

bonafide purchaser

A

purchaser

pay valuable consideration

take w/o notice of prior conveyance

110
Q

actual notice

A

B learns of A (literal knowledge)

111
Q

inquiry notice

A

B charged w what inspection wouldve revealed

112
Q

record notice

A

B on notice of deeds properly recorded in chain of title

113
Q

chain of title

A

sequence of recorded documents capable of giving record notice to later takers

114
Q

shelter rule

A

anyone who takes from a bfp will prevail against any interest the BFP wouldve prevaield against

115
Q

wild deed

A

recorded deed that isnt connected to chain of title (incapable of giving constructive notice)

116
Q

estoppel by deed

A

grantor purports to convey to grantee realty they dont then own

grantor later acquires titles to the property

title automatically vests in grantee

grantor is estopped from denying validity of preacquistion conveyance

but watch out for BFP: early recording is outside chain of title

117
Q

mortgagor

A

debtor (person owing money to lender)

118
Q

mortgagee

A

creditor (lender)

119
Q

purchase money mortgage

A

lender’s security interest in real estate that their loan enables debtor to acquire

120
Q

mortage creation

A

debt (note) + lien in land to secure debt (mortgage)

in writing

121
Q

transfers by mortgagor

A

recording statutes protect mortgagees

if recorded, mortgage sticks w land

122
Q

whos personally liable on debt?

if O mortgagor sells blackacre to B

A

B assumes mortgage: both O and B

B takes subject to mortgage: only O but if recorded, blackacre can be foreclosed

123
Q

foreclosure

A
124
Q

effect of foreclosure on interests

A

junior interests terminated (paid in decending order from sale proceeds)

necessary parties: all junior lienholders +debtor\

senior interest unaffected (buyer takes subject to them)

125
Q

priority of creditors

A

creditors must rceord

first in time first in right

purchase money mortgage: 1st priority in parcel financed

126
Q

no clogging equity of redemption

A

debtor cannot waive right to redeem mortgage itself

127
Q

Pursuant to its police powers, government may enact statutes to
reasonably control land use for the protection of the health, safety,
morals, and welfare of its citizens.

A
128
Q

The variance is granted or denied by administrative action, typically
in the form of a zoning board. Usually, a variance will not be granted if

A

the hardship has been created by the applicant themselves

129
Q

The variance is the principal means to achieve flexibility in zoning.
The variance grants a landowner permission to depart from the
literal restrictions of a zoning ordinance

What must a proponent of a
variance show?

A

show undue hardship + no diminution to neighboring property values

130
Q

nonconforming use

A

prev allowed use cannot be eliminated all at once unless just compensation paid

131
Q

cumulative zoning

A

land ranked and categorized to create hierarchy of uses (single family home is highest use)

132
Q

noncumulative zoning

A

land may be used only for the particular purposes for which the land is zoned

133
Q

special use permit

A

must be obtained even tho zoning proper for intended use (eg hospitals, drive ins)

134
Q

In a condominium, each owner owns the interior of their individual
unit plus an undivided interest in the exterior and common elements.
Because condominium unit ownership is treated as fee ownership,
the ordinary rules against restraints on alienation apply. What are
some examples of common elements?

A

the common walkways, hallways, pool, community room, game room

135
Q

homeowner association

A

each condo owner is member

oversee common elements

board enforces covenants conditions restrictions

special assessment= one time fee if dues dont cover an expense

136
Q

lateral support

A

right to have land supported in natural state

137
Q

if landowner causes adjacent land to subside

A

land in natural state: strict liability

land improved: liability if negligent

138
Q

There are two major systems for determining allocation of water
in watercourses:

A

the riparian doctrine and the prior appropriation
doctrine. A boundary line also can be affected by accretion or
avulsion.

139
Q

riparian doctrine

A

water belongs to those who own land bordering watercourse

riparians share right of reasonable use

140
Q

prior appropriation doctrine

A

water belongs to state

right to divert/ use can be acquired thru actual use

141
Q

common enemy rule

A

owner can take any protective measures to get rid of surface water/combat its flow

142
Q
A

100 (21 decks)

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