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Bar Exam > Property > Flashcards

Property Flashcards

1
Q

Joint tenancy with the right of survivorship

A

Characteristics
- Alienable intervivos
- not descendible or devisable

4 unities - TTIP
- same time
- same title
- identical equal interests
- right to possess the whole

Common law - created when four unities

Modern - need clear expression of right of survivorship otherwise presumed tenancy in common

Severance - SAP
- sale and partition
by voluntary agreement, judicial action for partition in kind, or judicial action for forced sale

Mortgages
- lien theory - does not sever unless foreclose
- title theory

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2
Q

Tenancy by the entirety

A

Martial estate - right of survivorship
presumed when conveyed to married partners

Can’t touch this
- creditors of only one spouse
- unilateral conveyance or encumbrance

Severance
- death, divorce, mutual agreement, execution by a joint creditor of both spouses
- divorce makes it a tenancy in common

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3
Q

Tenancy in common

A

No right of survivorship
presumed

do not have to be equal shares, but right to possess the whole
- ouster - wrongly excluding from possession of the whole or any part

devisable, descendible, alienable

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4
Q

Waste

A

Voluntary - willful destruction/decrease in value
Permissive - neglect
Ameliorative - change that increases value

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5
Q

Rights and duties of co-tenants

A

No rent for exclusive possession
proportional rent from third parties

not adverse possession unless ouster

Fair share of carrying costs - taxes, mortgage interest

fair share of reasonably necessary repairs - must notify of need

No right to contribution for improvements, but gets credit at sale for inc in value

No waste

Right to partition - restraints for reasonable time are valid

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6
Q

Four leasehold interests

A

Tenancy for years
Periodic Tenancy
Tenancy at will
Tenancy at sufferance

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7
Q

3 concurrent tenancies

A

Joint tenancy
tenancy by the entirety
tenancy in common

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8
Q

Tenancy for years

A

fixed, determined period of time
know the termination date

terminates automatically, no notice needed

can terminate by surrender or breach of lease covenants

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9
Q

Periodic tenancy

A

Continues for successive intervals until proper notice of termination

Creation
- express
- implication - no mention of duration and payment of rent at intervals, oral term of years in violation of SOF, holdover tenant

Automatic renewal until termination notice
notice equal to one period, timed to terminate at end of period
- month to month - one month
- week to week - one week
- year to year - 6 mo at common law, 1 mo modernly

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10
Q

Tenancy at will

A

No fixed period - terminable at the will of either LL or T

Must be express agreement
If right only given to landlord, implied for tenant but not vice versa.

Termination - most states required notice and reasonable time to vacate, or by operation of law

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11
Q

Tenancy at sufferance

A

Wrongfully holds over

lasts until LL evicts or elects to hold a new tenancy

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12
Q

Tenant’s duties

A

Repair and pay rent

Repair
- maintain premises - routine repairs other than ordinary wear and tear

no waste
- exception to ameliorative - if T is a long term T and the change reflects changes in the neighborhood

Destruction
- Common law - any loss T responsible
- modern - t may terminate if premises is destroyed without T’s fault

No self help for failure to pay rent

Breach but out of possession - SIR
surrender, ignore (minority, relet (majority)

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13
Q

Landlord’s duties

A

Duty to deliver possession
- actual physical possession

Implied Covenant of quiet enjoyment
- residential and commercial
- right to quiet use and enjoyment without interference from the landlord or paramount titleholder
-wrongful eviction = breach

Acts of other tenant
- only to abate a nuisance on site and to control common areas

Implied warranty of habitability
- only residential leases and nonwaivable
- do not need to vacate
- premises must be fit for basic human habitation - case law and housing code
- remedies:
move out and terminate
reapire and deduct
reduce rent or withhold
remain in possession and seek damages

No retaliatory eviction
- rebuttably presumed if acts within 90-180 days after T exercises rights

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14
Q

Wrongful eviction - breach of implied covenant of quiet enjoyment

A

actual
- excludes tenant from entire lease - terminates obligation to pay

Partial
- partial eviction by LANDLORD relieves T for obligation to pay for entire premises

Constructive
- LL breach renders premises unsuitable for occupancy - SING
- substantial interference, notice, goodbye
-MUST vacate

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15
Q

Assignment v Sublease

A

Assignment - transfer of entire remaining term
Assignee and LL = Privity of estate (covenants that run with the land)
LL and T = Privity of contract (original contract covenants)

Sublease - tenant has retained some part of the remaining term other than a right to reenter
LL and assignee - no PE or PK
LL and T - PE and PK

Once LL consent to one transfer, waives right to object to future transfers unless expressly reserve right

if covenant against transfer by LL was aware and did not object - waived

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16
Q

Caveat lessee - common law

A

Modern - general duty of reasonable care

Common law:
Let the tenant beware
LL under no duty to make premises safe under tort law

Exception - CLAPS
- common areas

  • latent defect - warn T of hidden defects - T could not discover with reasonable inspection and LL knows or has reason to know
  • assumption of repairs - no duty to repair, but once do, must complete with reasonable care
  • public use rule - liable for any defects that cause injury to member of the public for leases of public spaces
  • short term lease of furnished dwellings - responsble for any defective condition which proximately injures T whether of not they knew of the defect
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17
Q

Easement

A

grant of a nonpossessory property interest that entitles holder to some form of use or enjoyment of another’s land

Affirmative and negative

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18
Q

Negative Easement

A

prevent servient landowner from doing something that would otherwise be permissible - LASS
- light
- air
- support
- stream water from an artificial flow
minority - scenic view

Only created expressly

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19
Q

Affirmative Easement

A

right to go onto and do something on servient land

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20
Q

Easement appurenant or in gross

A

Appurtenant
- benefits its holder in his physical use or enjoyment of own land
- two parcels - dominant tenement that derives the benefit and servient tenement that bears the burden

-passes automatically with transfer of dominant even if no notice
- passes with servient unless BFP with no notice of easement

In gross
- confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of the land

  • not transferrable unless it is for a commerical purpose
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21
Q

Creating an easement

A

PING
- prescription
- implication
- necessity
- grant

Prescription
- COAH - like adverse possession
- continuou
- open and notorious
- actual
- hostile

Implication
- preexisting use/quasi easement - prev owner prior to division used apparently and continuously, and parties expected it to survive division because necessary to dominant use and enjoyment

Necessity
- no way out except over servient land
- owner of servient has right to locate the easement

Grant
-in writing and signed by holder of servient unless outside SOF
- deed of easement

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22
Q

Easement termination

A

END CRAMP
- estoppel
- necessity
- destruction
- condemnation
- release
- abandonment
- merger
- prescription

Estoppel
- material change in position in reasonable reliance of termination

Necessity
- when necessity ends unless reduced to express grant

Destruction
- not willful by servient

Condemnation
- by government

Release
- release in writing

Abandonment
- an intent to never use shown by a physical action
- mere words or non use is not enough without an action - but could lead to estoppel
- oral expression plus long period of non-use may be enough

Merger
- title of easement and servient land become vested in one person

Prescription
- COAH adverse possession

23
Q

License

A

Mere privilege to enter another’s land for some delineated purpose

revocable at will unless estoppel
- investing substantial money or labor in reliance- estopped until receive sufficient benefit to reimburse for expenditures

not alienable - personal to licensee

no writing needed
- failed attempt at making an easement creates a license

Examples:
- tickets
- talking by fence - oral easements

24
Q

Profit

A

Entitles holder to enter the servient land and take from it some resources

Same rules as easements

Surcharge - misuse that overly burdens land use may extinguish profit - but for easements, can only enjoin misuse, does not terminate

25
Q

Restrictive covenants

A

Contractual limitation or promise regarding the land

Restrictive - promise to refrain from doing something related to the land

affirmative - promise to do something related to the land

Termination
- written release, merger, condemnation

26
Q

Covenant v Equitable servitude

A

Money damages = covenant

Injunction = equitable servitude

27
Q

When will covenants run with the land - burdened land

A

For burden to run - WITHN
- writing
- intent
- touch and concern
- horizontal and vertical privity
- notice

Writing
- original promise must have been in writing

Intent
- intent that covenant would run

Touch and concern
- use of parcel, affect legal rights as landowners

Horizontal and vertical privity
- horizontal - between original parties - grantor-grantee or LL-T or mortgagor-mortgagee when covenant created
-vertical - original party and successor - some non-hostile nexus - contract, devise, descent

Notice
- successor must have notice of promise when took

28
Q

When will covenant run with the land - benefit

A

WITV
- writing
- intent
- touch and concern
- vertical privity - non hostile nexus between B and B1

29
Q

Equitable servitude - to bind successors

A

a promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land, unless successor is a BFP without notice

no privity required

Creation
- promise in writing - WITNES
-writing
- intent
- touch and concern
- notice - if not a purchaser, bound even if no notice
- equitable servitude

Implied ES - common scheme doctrine
- exception to promise in writing
-developer subdivides and some deeds contain restrictive covenant while others do not, covenant bind all parcels if common scheme of development and notice

defenses- neighborhood conditions have changed so significantly - not enough that it is pockets of limited change

termination
-written release, merger, condemnation

30
Q

Adverse possession

A

COAH
- continuous
- open and notorious
- actual and exclusive
- hostile

if enter under color of title - deemed to be in constructive possession of all the land the deed describes

Tacking
- one AP can tack his time to predecessor’s if there is privity - nonhostile and no ouster

Tolling
- statute of limitations will not run against owner with disability at the inception of the aP

31
Q

Conveyance 2 steps

A

Contract - equitable title
Closing - legal title

32
Q

Land contract

A

If overstates land - specific performance with pro rata reduction in price

Equitable conversion - after contract equity regards buyer as the owner, right to possess only with legal title

Risk of loss - buyer unless contract says otherwise

Implied promises
- seller will provide marketable title - title free from doubt and the threat of litigation - marketable on the day of closing - give reasonable time to cure

  • seller will not make false statements of material fact - can not have general disclaimer but can have specific disclaimers
33
Q

Closing - the deed

A

contract disappears - all rights now in the deed

transfers legal title - lawfully executed and delivered
- delivery = intent, not actual delivery and rejection defeats delivery

extrinsic evidence admissible to prove intent but not condition in deed

34
Q

Covenants for title

A

General warranty deed
- warrants against all defects in title, include those attributable to his predecessors

  • present covenants - breached at time the deed is delivered
    -seisin - grantor owns this estate
    -right to convey - grantor can transfer
    -against encumbrances - no servitudes or liens
  • future covenants - breached when disturbed in possession
  • covenant of quiet enjoyment - not disturbed by third party claiming title
  • warranty - defend against all reasonable claims of title and compensate for loss
  • further assurance - do whatever is needed to perfect title

special warranty deed
- same warranties as general, but only on grantor’s behalf, not predecessors

quitclaim deed
- non covenants
- conveys only what grantor has at time of conveyance

35
Q

Race jurisdiction

A

whoever records first wins

… unless the conveyance is first recorded

36
Q

Notice jurisdiction

A

Last BFP wins
- purchaser for value without notice

… without notice thereof, unless the conveyance was recorded

37
Q

Race-notice jurisdiction

A

BFP and first to record wins
- purchaser for value without notice

… without notice thereof, whose conveyance is first recorded

38
Q

Notice

A

Actual, inquiry, record

Actual - literal knowledge
Inquiry- whatever would be revealed in an examination of the property, or recorded instrument makes reference to an unrecorded transaction

Record - chain of title

39
Q

The shelter rule

A

anyone who takes from a BFP will prevail against any interest the BFP would have prevailed against

40
Q

Wild deed

A

if a deed entered on the records has a grantor unconnected to the chain of title, the deed is wild and is incapable of giving record notice of its existence

O to A but a doesnt record
then A to B and b records - wild deed

41
Q

Estoppel by deed

A

one who conveys reality in which he has no interest is estopped from denying the validity of that conveyance if he subsequently acquires the title that he had previously purported to transfer

42
Q

Mortgage terms

A

Mortgagor - borrower
mortgagee - lender

43
Q

Transfer by mortgagee

A

Indorsing the note and delivering it to the transferee

or

executing a separate document of assignment

can freely transfer the note and the mortgage automatically follows

44
Q

Transfer by mortgagor

A

Assumption - agreements to be personally liable

subject to - only subject to the foreclosure action, not personally liable

mortgage remains on the land as long as it was properly recorded - recording statutes apply

45
Q

Right to equitable redemption

A

up to the date of sale

not waivable

pay off missed payment and interest and costs

if acceleration clause - pay off entire balance plus interests and costs

46
Q

Statutory right of redemption

A

right to redeem for a fixed period after the foreclosure sale

amount is the foreclosure sale price

47
Q

The variance

A

means to achieve flexibility in zoning

grants landowner permission to depart from the literal restrictions of a zoning ordinance

must show undue hardship and no diminution to neighboring property value

48
Q

Nonconforming use

A

if was once lawful existing use is now nonconforming- cannot eliminate all at once without just compensation

49
Q

Cumulative zoning

A

hierarchy of uses

land zoned for that use may be used for the stated purpose and any higher purposes

50
Q

Noncumulative zoning

A

land may be used only for that purpose

51
Q

Special use permit

A

must be obtained even though zoning is proper for the intended use

52
Q

Support of land in natural state

A

landowner strictly libale if their excavation causes adjacent land to subside

if the land is improved and not natural and that land caves in from excavation, only liable if negligent unless show that it wouldve happened in natural state

53
Q

Water rights

A

riparian doctrine - water courses
- water belongs to those who own the land bordering

prior appropriation doctrine - water courses
- initially belongs to state but the right to divert it and use it can be acquired by individual’s actual use

ground water
- absolute ownership - owner of overlying land

surface water
- natural flow - cannot change natural drainage patters
- common enemy - owner can take protective measures ot get rid of the water or combat its flow

Bar Exam (12 decks)

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