Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Cards I've Updated > Property > Flashcards

Property Flashcards

1
Q

What are the rights of a life tenant?

A
  1. Right to possession;
  2. Right to rent & earn profits during term; and
  3. Right to lease, sell, or mortgage
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What are the duties/obligations of a life tenant?

1.

A
  1. Pay property taxes & mortgage interest;
  2. Make reasonable repairs;
  3. Not commit waste; and
  4. Pay insurance premiums (some jurisdictions)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Can a life tenant exploit natural resources on the land?

A

No, unless exploitation was:

  1. Expressly authorized by the grantor;
  2. Necessary to maintain the land; or
  3. Already occurring before life tenant took ownership (open mines doctrine)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

How much is the life tenant required to spend when making reasonable repairs to the property?

A

No more than the income/profits generated by the land

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

rule of convenience

A

A class closes as soon as at least one member of the class demands possession of the land

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Rule in Shelley’s Case

A

Provides that any conveyance, which purports both to convey a present possessory estate of definite duration (such as a life estate) to a grantee and to create the corresponding remainder entirely in the grantee’s heirs, instead results in the conveyance of the grantor’s entire estate to the grantee alone, because both the present and future estates are deemed to be merged in the grantee.

⚠️ Note: Shelley’s Rule has been abolished in most states

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

doctrine of worthier title

A

When A conveys future interest to heirs, there is a rebuttable presumption that A intended to keep interest to herself

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

How is a joint tenancy created?

Must have the Four Unities (“PITT”):

A
  1. Unity of Possession: equal right of possession;
  2. Unity of Interest: equal interest with co-tenants;
  3. Unity of Title: same conveyance; and
  4. Unity of Time: interests created at the same time

*In some modern jurisdictions, all that is required today is possession and unity.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What happens when a joint tenancy is severed?

A

Becomes a tenancy in common

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

partition

A

Divides concurrent estate into separate tracts of property in proportion to each tenant’s ownership; can be either voluntary or involuntary (court order).

Two types: partition in kind and partition by sale

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is a leasehold (landlord/tenant) estate and what are the 4 types?

A

Estate created & governed by a lease signed between the parties.

(1) Tenancy for Years – lasts for a fixed period of time; automatically terminated after the period ends.
(2) Periodic Tenancy – continues for a specific period (weekly/monthly) until terminated by proper notice.

− Is created by: (a) express agreement; (b) implication if rent is paid at specific periods; OR (c) law (when a tenant-for-years remains after termination of the period or lease is invalid).

− Termination: notice at least a full period in advance (if yearly, 6 months’ notice is required).

(3) Tenancy at Will – continues until either party terminates it; usually created by express agreement.

− Termination: notice + reasonable time to quit the premises (in some states, no notice is required. There’s also termination due to death of either party, assignment by tenant, transfer by landlord).

  • Also Tenancy at sufferance - official name for a tenant holdsover.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What are the 4 basic duties of a tenant?

A
  1. Pay rent;
  2. Not commit waste (affirmative/voluntary, ameliorative, or permissive);
  3. Not use the premises for an illegal purpose; and
  4. Protect third party invitees from foreseeable dangers on the premises
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Tenant’s Duty to Pay Rent

A

runs with the land. If tenant remains on land + does not pay rent, landlord can:

a) Evict the tenant; OR
b) Allow the tenant to remain on the property and sue for damages.

If tenant abandons the property and doesn’t pay rent, landlord may have to take reasonable steps to mitigate losses (depends on state law).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Hold-Over Tenant:

If a tenant holds-over (remains in possession after the lease ends), the landlord may:

A

a) Initiate eviction proceedings; OR
b) Hold the tenant over.

When a hold-over occurs, the tenancy has identical terms to the original lease.

*If tenant is informed of a higher rent before the end of the lease, the higher rent applies.

Duration:

Modern View: month-to-month tenancy is created.

Common Law: term is equal to original tenancy period.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What are the landlord’s duties to the tenant?

A
  1. Give possession;
  2. Implied warranty of habitability; and
  3. Covenant of quiet enjoyment
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Implied Warranty of Habitability

A

Landlord MUST provide a place to live that is habitable (reasonably suitable for human needs).

− Implied in every residential lease.

− Some courts also impose this warranty in commercial leases (in limited circumstances).

If warranty is breached, tenant may:

a) move out & terminate the lease;
b) withhold or reduce the rent;
c) repair & deduct the cost; OR
d) remain & sue for damages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Can the warranty of habitability be waived or modified in the lease?

A

No, can never be waived or modified in the lease

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Constructive Eviction

A

Every lease includes an implied covenant of quiet enjoyment that prevents a landlord from interfering with tenant’s quiet enjoyment and possession of the property.

*covenant is breached when a tenant is actually or constructively evicted.

Constructive Eviction occurs when:

1) Landlord breached a duty to tenant;
2) The breach caused a loss of the substantial use and enjoyment of the premises;
3) Tenant gave landlord notice of the condition;
4) Landlord failed to remedy the condition within a reasonable time; AND
5) Tenant vacated the premises.

*If constructive eviction occurs, tenant may terminate the lease and seek damages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Landlord’s Duties to repair, Residential and Commercial

A

Residential Leases: landlord has a duty to (1) repair common areas, and (2) warn of latent defects that create a risk of serious harm that the landlord knows of (or should know of).

Commercial Leases: landlord has NO duty to repair.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Surrender of a Lease

A

an agreement to end a lease early.

Landlord must clearly accept surrender of the lease (unless otherwise agreed).

An attempt to end the lease early (such as leaving the keys) DOES NOT constitute a surrender unless landlord clearly accepts.

If landlord:

ACCEPTS the surrender: tenant’s duty to pay rent (after the acceptance) ends.

DOES NOT accept the surrender: tenant is deemed to have abandoned and is liable for damages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

If the tenant abandons the property, is the landlord required to mitigate damages?

A

Majority: Yes, should make good faith effort to rent to other tenants and can seek damages from tenant for losses.

Minority: No, landlord can seek damages for all unpaid rent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is an assignment and to whom is the assignee liable?

A

Transfer of the entire lease to new tenant (assignee)

Assignee is in privity with landlord and liable for all rent owed to the landlord

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is a sublease and to whom is the subleasee liable?

Transfer of only part of the lease term to the subleasee

Subleasee is in not privity with the landlord and thus is liable to the subleasor only.

A

Transfer of only part of the lease term to the subleasee

Subleasee is in not privity with the landlord and thus is liable to the subleasor only.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Can a tenant freely assign or sublease the property?

A

Yes, unless otherwise specified in the lease

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

If the property is condemned, does the tenant need to continue making rent payments?

A

If partial (tenant still has partial use of the property) or temporary: Yes, but tenant is entitled to compensation for dispossession from condemnation

If full condemndation: No

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

easement

A

Right to a non-possessory property interest in land that entitles the owner to use or enjoyment of the land

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

easement appurtenant

A

Benefits one parcel of land (dominant estate) while burdening another (servient estate)

⭐️ Attached to the land and not a person

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

easement in gross

A

Benefits a person or entity instead of a parcel of land. No dominant estate involved, only servient estate.

Ex. Billboard or power lines on servient estate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What are 4 ways in which an easement can be created?

A
  1. Prescription;
  2. Implication;
  3. Necessity; or
  4. Grant (signed in writing)

💡Remember “P-I-N-G”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

How do you create an easement by prescription? ANOCH

A

Similar to acquiring land by adverse possession. Use of easement must be:

  1. Continuous;
  2. Open and Notorious;
  3. Hostile; and
  4. Actual

⚠️ No exclusivity requirement

31
Q

What is an easement by implication and how is it created?

A

Easement implied by prior use.

Exists when:

  1. Easement existed on a single tract of land that was subsequently severed into the servient and dominant estate;
  2. Prior use was continuous and apparent;
  3. Parties intended the easement to continue; and
  4. Easement is reasonably necessary for enjoyment of dominant estate
32
Q

What is an easement by necessity and how is it created?

A

Easement is absolutely necessary to access the property

Created if:

  1. Dominant and servient estates were once a single parcel under common ownership; and
  2. Severance of the parcel made the easement absolutely necessary
33
Q

What constitutes expanding the scope of an easement? Is it allowed?

A

Overusing the easement or going outside the scope of reasonable use.

No, not allowed to unilaterally expand the scope. Servient estate can seek injunction to prevent further violations.

34
Q

Termination of an Easement – An easement may be terminated by:

A

a) Estoppel – when the servient estate owner reasonably relies (or materially changes position) on an assurance that the easement will not be enforced;
b) Termination of the necessity;
c) Involuntary destruction of the servient estate;
d) Condemnation of the servient estate;
e) Written release;
f) Abandonment – a physical action showing an intent to never use the easement again;
g) Merger of the properties (if land is separated again, it does not revive the easement); OR
h) Prescription (Continual interference with the easement for the statutory period);
i) Severance

35
Q

How do you terminate an easement by severance?

A

For an easement appurtenant, any attempt to sever the easement from the dominant estate will sever the easement

36
Q

What happens if property is sold to bona fide purchaser without notice of the easement?

A

Easement is unenforceable against the BFP

37
Q

Differentiate between a license and an easement

A

Licenses:

  • Freely revocable (unless detrimental reliance or coupled with interest)
  • Privilege, not an interest in land
  • Can be created without consideration or writing (no SOF requirement)

Easements:

  • Last for specific period or indefinitely
  • Interest in land
  • Must satisfy SOF
38
Q

What is required for the burden of a covenant to run with the land?

A
  1. Writing: original agreement in writing;
  2. Intent: parties intended to bind successors (courts are liberal in finding requisite intent);
  3. Touches and concerns the land;
  4. Horizontal and vertical privity; and
  5. Notice: successor had notice of the covenant when she took
39
Q

What is required for the benefit of a covenant to run with the land?

WIT-V

A
  1. Writing: original agreement in writing;
  2. Intent: parties intended benefit to run;
  3. Touches and concerns the land; and
  4. Successor is in vertical privity with original parties

⚠️ Horizontal privity is not required

40
Q

What does it mean for a covenant to “touch and concern” the land?

A

Covenant affects both parties as landowners, not as individuals (very low bar)

41
Q

equitable servitudes

A

Covenants enforced by equity (e.g. injunctions)

42
Q

Elements for an equitable servitude

WIT-N

A
  1. Writing: original agreement in writing;
  2. Intent: original parties must intend to bind successors;
  3. Touches and concerns the land;
  4. Notice: burdened party had actual, record, or inquiry notice (not required for benefit to run)
43
Q

What is an implied reciprocal negative servitude and what are the requirements?

A

Also called the “common scheme doctrine.” Allows owners in a subdivision to enforce restrictions on an unrestricted lot owner

Requirements:

  1. When sales began, developer had a common scheme for subdivision; and
  2. Owner of unrestricted lot had notice (actual, record, or inquiry) of the restriction
44
Q

What are defenses to enforcement of equitable servitudes?

A
  1. Pervasive changes that fundamentally alter the neighborhood;
  2. Laches;
  3. Estoppel;
  4. Acquiescence (when party didn’t enforce the servitude on other parties, so their right to enforce may be waived)
  5. Unclean hands (party seeking enforcement is violating restriction on their own land)
45
Q

What must the owner prove to receive a zoning variance?

A
  1. Compliance would create undue hardship that is unique to the property and not the fault of the owner;
  2. Variance doesn’t go against general purpose of the ordinance; and
  3. Variance doesn’t harm the general welfare
46
Q

Differentiate between area and use variance

A

Area: restriction on development/construction of property (e.g. no third story).

Use: restriction on use (e.g. no commercial use in neighborhood)

47
Q

What is the difference between a mortgage and a note?

A

Mortgage: represents the interest in the land.

Note: represents the debt of mortgagor.

⭐️ Remember: The mortgage follows the note. If you have the note, then it is presumed you have the mortgage.

48
Q

If a mortgagor transfers the property, who is liable upon default if the buyer:

  1. Assumes the mortgage?
  2. Takes subject to the mortgage?
A

If the buyer/transferee “assumes” the mortgage:

  • Buyer/transferee is primarily liable for the loan
  • Mortgagor is secondarily liable unless released by transferee

If buyer/transferee takes “subject to” the mortgage:

  • Mortgagor is primarily liable
  • Buyer/transferee incurs no liability to repay the loan
49
Q

What are due-on-sale clauses?

A

Gives lender the ability to demand the entire balance if the deed is transferred, unless the lender has given permission for the transfer

⚠️ Note: Due-on-sale clauses cannot be enforced for transfers to spouses, children, living trusts, or automatic transfers upon the death of the borrower

50
Q

What is a deed in lieu of foreclosure?

A

If mortgagor (borrower) goes into default, the mortgagor can give the deed to mortgagee (lender) to satisfy the mortgage debt.

Mortgagee has immediate possession, and takes it subject to all junior liens attached.

51
Q

Requirements for a land sale contract to satisfy the SOF

A
  1. In writing;
  2. Signed by the parties to be bound;
  3. Contain essential terms of the deal (description of the land, consideration to be paid, etc)
52
Q

When does a land sale contract not need to satisfy the SOF?

A

If buyer does 2 of the following:

  1. Takes possession of the land;
  2. Makes physical improvements; and/or
  3. Pays significant part of the purchase price
53
Q

implied covenant of marketable title

A

title is free from defects and unreasonable risk of litigation

54
Q

What defects render a title unmarketable?

A
  1. Encumberances;
    • Covenants
    • Easements
    • Mortgages
    • Liens
  2. Title acquired by adverse possession;
  3. ​Zoning violations;
  4. Incurable physical defects; and
  5. Future interests that have not consented to transfer
55
Q

duty to disclose

1.

A
  1. Seller has duty to disclose all material latent defects; and
  2. Seller cannot misrepresent or fraudulently conceal
56
Q

What can the buyer do if they discover the title is unmarketable?

A

Notify the seller before the closing date and give them a reasonable time to cure defects

If seller doesn’t cure, buyer can seek specific performance, damages, and an action to quiet title

⚠️ If buyer doesn’t notify seller beforehand, deed controls b/c of the merger doctrine and seller is not liable

57
Q

What is the Home Builder’s implied warranty?

A

Protects buyers of newly built homes against latent defects AND warrants the home is safe and fit for human habitation at the time of sale.

Latent Defect = a defect that could not have been discovered by a reasonable inspection.

Breach – allows a buyer to recover damages discovered within a reasonable time for:

a) Defective construction; OR
b) Construction not performed in a workmanlike manner (the accepted norms of the industry).

Subsequent Purchasers:

Some States: requires privity of contract with the home builder.

Other States: warranty applies because a subsequent buyer is in the same vulnerable position.

58
Q

What’s the doctrine of merger and its effect?

A

Once the deed is transferred/conveyed to the buyer, the contract merges with the deed and the deed controls, not the contract.

⭐️ This means that whatever obligations the seller had under the contract are not enforceable unless they are also contained in the deed.

59
Q

What is the doctrine of equitable conversion?

A

Doctrine that helps determine who bears the risk of loss. Once the buyer signs K to purchase land at a later date, but before closing:

  • Buyer has equitable title; and
  • Seller has legal title

Buyer, as holder of equitable title, bears the risk of loss if property is destroyed. UNLESS property was destroyed due to intentional or negligent acts of seller.

60
Q

What is required for a deed to be effective?

A
  1. In writing and signed by grantor;
  2. Describe the parties and the land;
  3. Delivered (i.e. seller must have present intent to transfer the interest)
61
Q

What types of actions show present intent to transfer the deed?

A
  1. Physical delivery: mailing or handing the deed to the person; or
  2. Any other conduct or words that would imply present intent to transfer
  • ex. recording the deed, drafting the deed
62
Q

If the grantor keeps the deed after writing it, has there been delivery?

A

No, rebuttable presumption that the grantor did not presently intend to transfer the property

63
Q

If the grantor transfers the deed to her own agent (e.g. attorney), and tells the attorney to deliver the deed in the future, does the transfer count as delivery?

A

No, delivery only occurs once the agent actually delivers the deed to the grantee.

*Delivery to Grantee’s agent (attorney) does count as valid deliver.

64
Q

death escrow

A

Occurs when grantor instructs agent to deliver deed to grantee upon grantor’s death.

⭐️ Only valid if grantor places deed beyond his/her control, i.e. retains zero control upon transfer to attorney. If grantor retains any power over the deed (e.g. asking it to be returned), then no valid death escrow has been created and no valid deed delivery.

65
Q

general warranty deed

A

Contains 6 present and future covenants of title that cover the property’s entire history

Present:

  1. Seisin (Grantor owns the property);
  2. Right to convey (Grantor has right to convey the property); and
  3. Against encumbrances

Future:

  1. Quiet enjoyment (Third party will not assert a claim);
  2. Warranty (Grantor will defend against a claim if they do); and
  3. Further assurances (Grantor will do anything reasonably necessary to perfect grantee’s title)
66
Q

special warranty deed

A

Contains the same covenants of title as a general warranty deed, but only for the period of the seller’s ownership of the land. Does not contain any warranties for what happened before the grantor took ownership

67
Q

bona fide purchaser for value (BFP)

A

Buyer who:

  1. Purchases property for value;
  2. Without notice of any prior claims
68
Q

What are the 3 types of notice?

A
  1. Actual;
  2. Record (also called constructive notice); and
  3. Inquiry

Inquiry: Reasonable inspection would have revealed the prior claim

⚠️ The buyer doesn’t need to actually inspect to have inquiry notice. As long as the buyer would have discovered the claim if they had reasonably investigated, they will have inquiry notice

69
Q

Who prevails in a notice jurisdiction?

A

Subsequent bona fide purchaser (regardless of whether she records before the prior grantee)

70
Q

Who prevails in a race jurisdiction?

A

First grantee to record (regardless of whether they are a BFP)

71
Q

Who prevails in a race-notice jurisdiction?

A

First BFP to properly record

72
Q

Are mortgagees considered BFP’s and thus protected by recording acts?

A

Yes because they have paid value

73
Q

Are grantees who were given the deed by gift or will protected by the recording statutes? (generally)

A

No, because they did not pay value.

If they received the deed from a BFP, however, the Shelter Rule will apply and they will be protected.

⚠️ This is true even if the grantee records the deed. Since they did not pay value, they are not protected against prior claims (unless Shelter Rule applies)

74
Q

Wild Deed

A

A deed NOT recorded properly, and thus not discoverable in the chain of title.

Chain of Title – shows all transfers for a piece of land.

2 Indexes: one organized by names of grantors, and one organized by names of grantees.

− A wild deed DOES NOT put subsequent purchasers on constructive notice of a land transfer.

Cards I've Updated (17 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions