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Bar Exam > Property > Flashcards

Property Flashcards

1
Q

Joint Tenancy:

Right of Survivorship?
Alienable inter vivos?
Devisable?
Descendible?

A

Survivorship: Yes - automatically
Alienable: Yes
Devisable: No
Descendible: No

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2
Q

Creating a Joint Tenancy - The Four Unities

A 
The Four Unities
TTIP: 
same TIME, 
by same TITLE, 
IDENTICAL interests, 
right to POSSESS the whole
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3
Q

Severing a Joint Tenancy:

What mechanisms may divide a JT? (think: SAP)
What form of ownership is left?

A

Severance and Partition

Tenancy in Common

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4
Q

Tenancy by the Entirety:

Right of Survivorship?
Alienable inter vivos?
Devisable?
Descendible?

A

Survivorship: Becomes a tenancy in common for the surviving spouse
Alienable: No
Devisable: No
Descendible: No

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5
Q

Tenancy in Common:

Right of Survivorship?
Alienable inter vivos?
Devisable?
Descendible?

A

Survivorship: No - by definition
Alienable: Yes
Devisable: Yes
Descendible: Yes

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6
Q

Kevin and Randall co-own a cabin. Kevin contributed 90% of the purchase price and Randall 10%.

(1) Which form of ownership is this?
(2) A persistent squirrel breaks the cabin’s front window. Randall has repaired the window. He seeks contribution from Kevin for the cost of that repair. Will he succeed?
(3) Randall unilaterally converts part of the cabin into a chem lab for $10,000. He seeks contribution from Kevin. What result?
(4) What if, when the property is sold, the property sells for $15,000 more than expected because of the chem lab. Randall wants as much of it as he can get. What result?

A
  1. Tenancy in common
  2. Yes. Necessary repairs can be demanded of co-tenants.
  3. No. There is no right to contribution for improvements made unilaterally w/o permission from co-tenants.
  4. Randall gets $15,000.
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7
Q

L and T negotiate on the telephone for a commercial lease. They orally agree on a five-year lease with rent at $1,000 a month. Tenancy for years or periodic tenancy?

A

Periodic tenancy. TRICKY! An oral contract of >1 year violates the Statute of Frauds, so it is implied to be a periodic tenancy, with each period being the rent frequency (here, 1 month).

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8
Q

In a periodic tenancy, how much notice to terminate is required for a:

(1) Month-to-month lease?
(2) Week-to-week lease?
(3) Year-to-year lease?
(4) A week-to-week lease that requires 2 months notice to terminate?

A
  1. 1 month
  2. 1 week
  3. 1 month under the Restatement, 6 months at common law, but use the Restatement number
  4. 2 months (parties can change common law notice provisions(
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9
Q
  1. T rents an apartment from L. L wrongfully evicts T. Which implied covenant has L violated?
  2. Suppose instead the apartment’s ceiling collapses. Which covenant then?
A
  1. The Implied Covenant of Quiet Enjoyment

2. Same! It’s just a constructive violation of the same covenant.

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10
Q

What must a tenant show to prove constructive eviction?

A

SING

  1. Substantial Interference with the covenant of quiet enjoyment
  2. Notice: the tenant notified the landlord of the issue
  3. Goodbye: the tenant must actually vacate (even if hardships exist–they must actually leave)
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11
Q

A dentists’ office sues its landlord under the implied warranty of habitability when sewage consistently backs up into the patient waiting area. What result?

A

Denied. The implied warranty of habitability applies ONLY to residential leases.

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12
Q

T rents an apartment from L for 1 year. The lease includes a provision whereby the tenant waives any and all claims to implied warranties of habitability. Three months in, the heater breaks and the apartment drops to subzero temperatures. The tenant brings suit under the implied warranty of habitability.

  1. What result?
  2. What are the tenant’s remedies?
A
  1. Tenant wins. The warranty of habitability is not waivable.
  2. Four options:
    A. Move out and terminate the lease.
    B. Repair and deduct reasonable costs from future rent
    C. Reduce or withhold rent (placing it in escrow) until a new reasonable rent is calculated
    D. Remain in possession, pay full rent, and seek money damages
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13
Q

L leases Blackacre to T1. T1 assigns to T2. T2 assigns to T3. T3 then engages in flagrant abuse to the premises.

(1) Can L proceed against T3, the direct wrongdoer?
(2) Can L proceed against T1, the original tenant?
(3) Can L proceed against T2?

(4) What if, instead, T1 subleased only part of her tenancy to T2, and T2 assigned his part entirely to T3? Who can L go after for T3’s abuses?

A

(1) Yes, via privity of estate
(2) Yes, via privity of contract
(3) No. Neither privity exists between L and T2.
(4) ONLY T1. Privity of contract and estate remain with the original parties in a sublease. Because T2 never got privity of estate from T1, it cannot be assigned to T3.

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14
Q

Distinguish the landlord’s liability in tort at common law versus the modern trend.

A

Common Law: caveat leasee (no duty except CLAPS: common areas, latent defects, assumption of repairs (if L starts repairing), public use rule, short-term lease of furnished building)

Modern Trend: hold landlord liable under normal negligence standard provided they had notice of the defect

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15
Q

O conveys a portion of his 10-acre tract to A, with no means of access out except over a portion of O’s remaining land. The parties reduce to express writing their understanding that A enjoys a right of way over a part of O’s remaining acreage. Thereafter, the city builds a public roadway affording A access out. Is A’s easement terminated? Why?

A

No. Normally, this would be an easement by necessity where the necessity is spoiled by the new road, but reducing the easement to writing enables it to survive regardless of the necessity issue.

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16
Q

Neighbor A, talking by the fence with neighbor B, says, “B, you can have that right of way across my land.” Is this oral easement enforceable?

A

No. Such an easement would violate the statute of frauds. Instead, this creates a freely revocable (and therefore unenforceable) license.

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17
Q

Fill in either “a covenant” or “an equitable servitude.”

If the plaintiff seeks money damages, construe the promise as ____.
If the plaintiff seeks an injunction, construe the promise as ____.

A

Covenant.
Equitable servitude.

The two are very similar, and the only way to tell them apart from a fact-pattern without the pattern telling you which is in play is the form of remedy sought.

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18
Q

What requirements must be met for a covenant to BURDEN a successive landowner?

A

WITHN

Writing

Intent - writing must suggest intent to bind successors

Touch and concern - must relate to the land (NOT just the behavior of the parties)

Horizontal and vertical privity - Horiz (req. the two to share some special relationship–most often on the bar, one selling the land to the other (grantor/grantee)–HARD to establish!) and Vert (req. non-hostile nexus between originator and successor–EASY to establish, basically anything short of adverse possession).

Notice - requires actual, inquiry, or record notice

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19
Q

What requirements must be met for a covenant to BENEFIT a successive landowner?

A

To show standing to enforce a promise: WITV

Writing

Intent - writing must suggest intent to bind successors

Touch and concern - must relate to the land (NOT just the behavior of the parties)

Vertical privity - req. non-hostile nexus between originator and successor–EASY to establish, basically anything short of adverse possession

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20
Q

What elements are necessary to hold a defendant to an equitable servitude under the common scheme doctrine? (ie. is held to the ES even when it was not included in their deed)

A
  1. The general scheme (think: making every house a residential building rather than industrial) must have been in existence WHEN SALES BEGAN.
  2. The defendant had actual, inquiry, or recording notice of the ES’ existence.
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21
Q

What are the elements of adverse possession?

A

Time (statute)

Continuous

Open & Notorious

Actual/Exclusive

Hostile

22
Q

Whether a mortgage creates a severance of a joint tenancy depends on whether or not the state follows a lien theory or title theory. Which is which?

A

Lien theory: mortgages DO NOT sever the JT

Title theory: mortgages DO sever the JT

23
Q

A landlord leased an apartment to a tenant for five years. The lease provided that the landlord will: (i) keep the apartment building at a comfortable temperature 24 hours per day, and (ii) have the carpets cleaned once a year. Two years later, the landlord began turning off the air conditioning at 10 p.m. The tenant’s apartment became hot and stuffy, and she demanded that the landlord honor the covenant. The landlord refused. The following month, the pipes burst in the tenant’s only bathroom, rendering it unusable. The resultant flooding soiled some of the carpeting, which had not been cleaned in the past 12 months. The tenant reported the problems to the landlord, who did not return the tenant’s phone calls.

Which of these violations (pipes, carpets, A/C) are valid reasons for the tenant to terminate the lease?

A

ONLY the pipes. The carpets and A/C would have been valid reasons to terminate had the tenant vacated the property under the doctrine of constructive eviction, which kicks in when a landlord fails to perform some service they are obliged to perform that makes the property uninhabitable. However, to avail herself of it, the tenant would need to show (1) the violative action was by the landlord (check); (2) the premises are uninhabitable (possibly met); and (3) that the tenant vacates in a reasonable time (not met).

The tenant can’t have it both ways: they can’s say it’s uninhabitable AND continue to inhabit the property.

24
Q

What two promises are implied in every land sale contract?

A

Marketable Title and to Make No False Statements of Material Fact

25
Q

Seller and buyer contract to sell Blackacre to Buyer on Nov 1. Closing is scheduled for Jan 1. On December 1, Blackacre is burned to the ground, rendering it valueless. Who bears the cost?

A

Buyer. The buyer is the presumptive owner of the land beginning with the date of contract signing and lasting until the date of closing, absent any contractual language to the contrary.

26
Q

What is the remedy should a title prove to be unmarketable before closing? What about if it proves to be unmarketable after closing?

A

BEFORE: Allow the seller reasonable time to cure the defect. If the seller fails to cure the defect, the buyer may rescind the contract, sue for damages, specific performance w/ abatement, or a quiet title suit.

AFTER: NONE. Once closing occurs and the deed changes hands, the covenant no longer applies – instead, the seller is only liable for express promises in the deed itself.

27
Q

1) What is a seller’s obligation to disclose latent material defects in a property? 2) What if the sale agreement identifies and disclaims specific material defects?
3) What if the sale agreement disclaims “all material defects” in a property?

A

1) They must notify the buyer of any defects they know, or have reason to know, about, which the buyer is unlikely to discover, and which would probably make the buyer reconsider the purchase.
2) This is likely to be upheld, as it notifies the the buyer.
3) This is an unenforceable waiver of obligation. The default rule (duty to disclose) applies.

28
Q

Define the implied warranty of habitability which applies to land SALE agreements.

A

There is none. TRICKY! Implied warranty of habitability applies only to rentals.

EXCEPT! When the home is brand new.

29
Q

Distinguish the promises made by a quitclaim deed? General warranty deed? Special warranty deed?

A

QUITCLAIM: None. The grantor does not even promise they have title to convey. It conveys only the overlap between what the grantor promises in the deed and what they ACTUALLY own.

GENERAL WARRANTY: Warrants against all defects in title, including those attributable to the grantor’s predecessors.

SPECIAL WARRANTY: Warrants only against defects in title attributable to the grantor themselves.

30
Q

Seller conveys Blackacre to A. He later conveys Blackacre–the same parcel–to B. Seller skips town. Who is the owner in:

1) A race jurisdiction?
2) A notice jurisdiction?
3) A race-notice jurisdiction?

A

1) Whichever records first.
2) Whichever buyer was the last bona fide buyer (even if they recorded second or never recorded at all).
3) Whichever buyer was the first bona fide buyer to record.

NB: bona fide buyers MUST be buyers!

31
Q

O conveys to A, who does not record. Later, O conveys the same parcel to B, a BFP, who records. B then conveys to C via will. C has actual knowledge of the O-to-A transfer. In the contest of A vs. C, who prevails?

A

C. Under the Shelter Rule, anyone whose title flows from a BFP–even if they themselves are neither bona fide nor a purchaser–is “sheltered” under the good title of the first BFP. The Shelter Rule applies in BOTH race-notice and notice states.

32
Q

S sells Blackacre to A, who does not record. Then A sells to B. B records the A-to-B deed. S then sells Blackacre to C. C has no actual or inquiry knowledge of the O-to-A or A-to-B conveyances. C records. O has skipped town. In the contest of B vs. C, who prevails?

A

C. B’s deed is a wild deed–one which is undiscoverable to the chain of title because of A’s failure to report (and B’s subsequent failure to ensure they were buying with good chain of title). Wild deeds cannot provide record notice, so (coupled with C’s lack of actual and inquiry notice), C’s deed is the first to validly connect to the chain.

33
Q

C1 lends $200,000 to O, taking a security interest in all of O’s real estate holdings, “whether now owned or hereafter acquired” (a floating lien). C1 records the mortgage note. Six months later, C2 lends O $50,000 to enable O to acquire a parcel known as Blueacre, taking back a security interest in Blueacre and recording that interest. Subsequently, O defaults on all outstanding obligations. All that he has left is Blueacre.

Who has first priority in Blueacre, C1 or C2?

A

C2. Purchase-money mortgage lenders get superpriority in the property they help purchase, even over preexisting liens attached to the individual borrower.

34
Q

Owner owns Blackacre, which she financed with a mortgage through Creditor. The mortgage includes an acceleration clause. Owner misses a payment and Creditor moves to foreclose. On the day before Blackacre is sold, Owner hands Creditor a check for the remaining balance owed, plus interest and costs. Can Owner so prevent the sale of Blackacre?

A

Yes. The equitable right of redemption applies up till the date of sale – meaning the debt (plus interest and costs) can be paid off any time before the property is sold. This is a NON-WAIVABLE RIGHT – it cannot be bargained away by any mortgage instrument.

35
Q

Five elements of a valid trust?

A 
Intent
Identifiable corpus
Ascertainable beneficiaries
Proper purpose
Mechanics and formalities
36
Q

Rule Against Perpetuities

The rule essentially means that you can’t convey property to someone who does not exist yet if there is ANY WAY they might STILL not exist 21 years after the death of the last person in the chain of conveyance who DOES exist today.

Think: “To A, then to A’s kids, then to A’s grandkids.”

TO A: A already exist today, so no RAP problems.
TO A’S KIDS: The latest A’s kids could come into existence is 9 months after A’s death. 9 months is less than 21 years, so no RAP problems.
TO A’S GRANDKIDS: If A dies today, and A’s kid is born today, it’s totally possible that A’s kid waits longer than 21 years to have A’s grandkid. RAP is violated.

A
37
Q

Requirements for a valid will

A

Capacity
Intent
Execution

38
Q

Elements of undue influence for purposes of contesting a will

A
  1. Influence existed and was exerted
  2. Effect was to overpower the mind and free will
  3. The influence caused the provision

NAGGING ISN’T ENOUGH

39
Q

Requirements to incorporate a document by reference into a will

A
  1. Document must exist at the time the will was executed
  2. The language of the will must sufficiently describe the writing to permit its identification
  3. The will must manifest an intention to incorporate the document
40
Q

True or false: parents and collateral kin NEVER inherit via intestacy if the decedent is survived by children or other direct descendants

A

TRUE. Intestacy is how non-willed property is distributed. It goes down the family tree, whenever possible, and leaves nothing for those above or to the sides of the decedent.

41
Q

When is a slayer statute triggered? And how does it work?

A

SSs are triggered when an heir killed the decedent whose estate is at issue. They treat that heir as having predeceased the decedent (so their descendants could still inherit!)

42
Q

What is the order of intestacy?

A 
Spouse
Descendants
Parents
Siblings
Descendants of Siblings
43
Q

Testator wills a ring to Friend. Executor sells the ring to pay for care for Testator once she becomes incompetent. Testator dies. Is the gift adeemed?

A

No. Specific gifts would normally be adeemed if the testator sold them prior to death, but when they are sold by someone else, that sale does not spoil testamentory intent with respect to the gift, so the recipient is entitled to the remaining proceeds from the sale. Here, Friend gets whatever is left from the ring’s sale.

44
Q

Most jurisdictions require that, to terminate a trust at the request of its beneficiaries, what two things must be true?

A
  1. ALL the beneficiaries agree to terminate the trust.

2. Termination would not interfere with the purpose of the trust.

45
Q

What is a spendthrift trust?

A

An irrevokable trust which can neither be altered by its beneficiary nor attacked by the beneficiary’s creditors.

46
Q

Requirements for a Trust

A 
Intent
Delivered Corpus
Ascertainable beneficiaries
Proper purpose
Mechanics and formalities
47
Q

Covenant for Quiet Enjoyment

A

Promise that a third-party won’t disturb the buyer with a lawful claim of title. (Breach can’t occur till after deed is delivered.)

48
Q

Covenant of Warranty

A

Promise to:

(1) defend buyer against reasonable claims made by third-parties
(2) compensate buyer in the event that a third-party has a superior claim of title

(Breach can’t occur till after deed is delivered.)

49
Q

Covenant of Future Assurances

A

Promise to do whatever is needed to perfect buyer’s title if it turns out to be imperfect for some reason. (Breach can’t occur till after deed is delivered.)

50
Q

Covenant of Right to Convey and Seisin

A

Promise that the seller owns the land he is selling. (Breached when deed is delivered)

51
Q

Covenant Against Encumbrances

A

Promise that the deed lists all encumbrances/easements/liens on the property (Breached when deed is delivered)

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