Property Flashcards
All land-sales contracts have an implied warranty that requires the seller to convey marketable title, which is violated if
there is a future interest that does not agree to the transfer
An easement holder may increase the manner, frequency, or intensity of an easement’s use so long as
that increase does not unreasonably damage or interfere with the use or enjoyment of the servient estate
The doctrine of ademption by extinction causes
a devise of a specific asset to fail if a testator does not own it at the time of death
The doctrine of anticipatory breach does not apply to leases, meaning that while the landlord may sue the tenant for rent as it becomes due, a landlord may not
sue for future rent under the lease
The benefit of enforcing an equitable servitude is held only by
the original parties and their successors in interest
If only one party in an at-will lease is expressly given the right to terminate the leasehold, the lease
may be deemed unconscionable and both parties will have the ability to terminate it (generally used against landlords)
Vertical privity required for the passing of a covenant
Burdensome covenant: transfer of entire interest
Beneficial covenant: Any transfer of interest (includes lease)
A covenant touches and concerns the land when it
Affects the land’s use or value
Exceptions to a due-on-sale-clause include
Devises, descents, transfers to JT upon death; transfers to spouse or child; transfer to ex-spouse during divorce; transfers to borrower’s living trust; granting leasehold interest for less than 3 years without an option to purchase
Under the common law exoneration-of-liens doctrine, the recipient of a specific devise of real property can
use remaining assets in the testator’s estate to pay off ANY encumbrances on that property (NOTE: abolished in most jurisdictions)
Equitable servitudes differ from covenants in that
they are enforceable by injunction (rather than damages), and they do not require any form of privity to be formed
BUT like burdensome covenants, notice is required for burdensome servitudes
A non-recourse loan is
secured by collateral, without the borrower being personally liable
An easement by necessity is created when
(1) the dominant estate is virtually useless (e.g. landlocked) without the benefit of the easement
(2) the two estates were once a single tract of land, and
(3) the necessity arose when the land was severed and the two estates were created
An equitable servitude can be implied from a common scheme if
(1) the owner intended to create a common scheme
(2) the intended servitude was restrictive, and
(3) persons to be bound had notice of the servitude
NOTE: cannot be enforced against lots sold before the common scheme arose
Writing is NOT required
A person who acquires property by adverse possession can only transfer ownership of the property
by deed
Under the doctrine of estoppel by deed, a grantor who conveys an interest in land by warranty deed before owning it
Is estopped from later denying the effectiveness of that deed
For a BENEFICIAL covenant to run with the land there must be
(1) writing, (2) intent, (3) touch & concern, and (4) vertical privity
Due to the doctrine of equitable conversion, a judgement obtained against a seller after the execution of a land-sale contract
is not enforceable against the real property - even if the claim arouse before the contract was executed (e.g. sale closed)
Easements are terminated by
END CRAMPS
Estoppel, Necessity ends, Destruction, Condemnation, Release, Abandonment, Merger, Prescription, State conditions
A life tenant has the obligation to pay ordinary taxes on the real property, but only to the extent that
the life tenant receives financial benefit from the property.
When the life tenant occupies the land, the financial benefit is measured by its fair rental value
Horizontal privity requires
An interest other than the covenant promise (e.g. grantor-grantee)
A deed conveying a mortgage’s interest in the mortgaged property to a mortgagee in lieu of foreclosure allows the mortgagee to
Take immediate possession of the property without the formalities of a foreclosure
(HOWEVER - any junior interests remain attached to the property and the mortgagee’s interest is extinguished unless it was reversed)
Termination may occur before the expiration of the term when the tenant surrenders the leasehold and
the landlord accepts the return of the leasehold
A mortgagor in possession of the mortgaged property has a duty to
Not commit waste that would impair the mortgagee’s security interest in the property
Private nuisance arises when
defendant’s interference with plaintiff’s use and enjoyment of his property is both unreasonable and substantial
A deed purporting to transfer real property to a non-existent co-tenant is
void as to the non-existent co-tenant and creates TIC between grantor and other co-tenant(s) named in the deed
A recorded deed that falls outside the chain of title is
a “wild deed” that fails (cannot be used) to give constructive notice to subsequent purchasers
A third party owner of subsurface rights is strictly liability for any failure to
support the land and buildings that PREDATE the conveyance of those rights, provided that the damage would have occurred in the land’s natural state
Easement by prior use (implication) requires
(1) Common prior ownership
(2) Prior use of the land by the owner consistent with an easement (benefited dominant estate)
(3) Continuous / consistent and apparent use at the time of severance, and
(4) a reasonable necessity to the dominant estate’s use and enjoyment of their portion of the property
For a BURDENSOME covenant to run with the land there must be
(1) writing, (2) intent, (3) touch and concern, (4) Notice, (5) Horizontal privity, and (6) Vertical privity
Courts are reluctant to imply a landlord’s duty to repair commercial leases because
the implied warranty of habitability does not apply to commercial leases
A co-tenant can acquire sole ownership of a co-owned property through adverse possession if
(1) ousts the other co-tenant by preventing them from using or accessing the property, and (2) meets the ECHO requirements for adverse possession
A covenant is terminated by abandonment through
An affirmative act - more than simply neglect or misuse - shows a clear intent to relinquish the covenant
Regarding a FSSCS, a grantor (or successor in interest) can enter and terminate the estate by
Affirmatively demonstrating an intent to terminate (exercise the “right of re-entry”)
The owner of mineral rights is strictly liable for (1) __ and only negligently liable for (2) __
(1) Any failure to support the land and any buildings that predate the conveyance of those rights, provided the damage would have occurred in the land’s natural state
(2) Damage to improvements built after the mineral rights were conveyed
For a judicially supervised foreclosure sale, the foreclosing mortgagee must
Give notice to the holders of any junior interests in the property to eliminate those interests
The recording of a deed
is presumptive of delivery
In order to end a lease before the end of its term by constructive eviction, the landlord must have breached a duty which
(1) Caused the loss of the substantial use and enjoyment of the premises,
and the tenant must
(2) Give the landlord notice of the problem and a reasonable opportunity to cure, and
(3) Vacate the property within a reasonable period of time
Judgement creditors are
Not purchasers for value since the attachment of a judgement lien to a debtor’s property is merely a security for a pre-existing debt (no payment of value - no BFP protection)
If the assumption of the mortgage was part of the buyer’s purchase price
the buyer may not raise defenses that the original debtor could have raised against enforcement of the mortgage obligation
How does a lease affect a joint tenancy?
Some jurisdictions hold that it severs the JT, while others hold that it temporarily suspends the JT which resumes after the end of the lease
What are the rights of co-tenants in a tenancy in common?
each co-tenant holds an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the co-tenant’s interest (extends to leasees of a co-tenant)
Rent distribution among co-tenants
A co-tenant must account to other co-tenants for rent received from third parties, but can deduct operating expenses, including necessary repairs, when calculating net proceeds
If the proceeds from a land sale contract exceed the amount of the outstanding mortgage, then
a title defect will be extinguished and the seller can deliver marketable title to the buyer upon closing
When an easement is shared, the owner who maintains or repairs the easement may seek contribution from
(1) the other owners, and
(2) the servient-estate owner if they use the easement
Upon a partial condemnation, a tenant must
continue to pay rent but is entitled to compensation for the portion of the leased property that was taken
(note: vs. complete condemnation where tenant duties are discharged)
A liquidated damages clause is enforceable so long as the amount of liquidated damages is
reasonable (e.g. no more than 10% of the purchase price).
Note: It may not be enforced if the seller suffered no actual loss
Lien priority is determined by the “first in time, first in right” (the common law) rule unless
A recording act applies
Since recording acts protect purchasers for value, they
offer protection to mortgage interests but not necessarily judgement liens
A purchase-money-mortgage (PMM) will be given priority over
liens that arose PRIOR to the PMM - even if it was not recorded
When mortgaged property is transferred to a donee, the donee may
Assert the donor-mortgagor’s defenses against the mortgagee-lender (which a purchaser who assumed the mortgage may NOT do)
Enforcement of a mortgage is subject to the same defenses as
the obligation for which the mortgage serves as a security (e.g. mistake, duress, lack of capacity, statute of limitations)
A deed is void and unenforceable, even by a bona fide purchaser, if
(1) the grantor’s signature is forged
(2) the deed itself is forged, or
(3) the grantor is deceived about the nature of the executed document
When only a portion of the leased property is condemned
The tenant’s duty to pay rent is not discharged
The implied warranty of marketable title requires that the seller, at the time of closing, deliver title to the buyer that is
free from an unreasonable risk of litigation
