Property

Question 1

Concurrent Estate

Answer 1

Estate that can be held by several persons at the same time.

Each has the right to use and enjoy the whole.

1. Joint Tenancy
2. Tenancy by the Entirety
3. Tenancy in Common

Question 2

Joint Tenancy

Answer 2

Bunch of people hold it, with:
- Right of Survivorship: Deceased’s share goes automatically to surviving Joint Tenant (JT)
- Alienability Inter Vivos: Transferable during the holder’s lifetime.
- Not Devisable: Not passable by will!
- Not Descendible: Not passable to heirs.

Last survivor takes all.

If original JTs are Phoebe, Ross, and Monica, and Phoebe sells to Chandler, then Ross dies, the remaining share goes to Monica only but not Chandler.

Question 3

How Do You Create a Joint Tenancy?

Answer 3

The Four Unities.

1. T: At the same time.
2. T: By the same title, typically a deed; equal amounts! 2 JTs = 50%, 3 = 33%, etc.
3. I: Identical equal interests.
4. P: Right to possess whole.

Question 4

How Do You Sever a Joint Tenancy?

Answer 4

• Sale: JT sells/transfers during lifetime, including as a collateral against another party for some kind of action. Can be secret, without other JT consent! Think The Likeness.
• Partition:
  1. Voluntary Agreement
  2. Partition in Kind: an action for a physical division of the property, if the best interest of all parties. Makes most sense if large tract, a huge farm - easily divisible.
  3. Forced Sale: Land is sold and the sale proceeds are divided proportionately.

Question 5

Tenancy By The Entirety

Answer 5

A protected marital interest between spouses with the right of survivorship.

Presumptively created in any conveyance to married partners.

Very protected. Can’t touch this.

Question 6

Tenancy in Common

Answer 6

Two or more own without the right of survivorship.

Co-tenant owns individual part + right to possess whole. No rent between them.

Devisable, descendible, alienable.

Cannot oust co-tenant from some part of the property.

If leased to a third party, other CTs entitled to their portion.

Each pays taxes/interest/mortgage /repair costs equivalent to their share.

No right to contribution to improvements made by one party.

Question 7

The Four Leaseholds

Answer 7

1. Tenancy for Years
2. Periodic Tenancy
3. Tenancy at Will
4. Tenancy at Sufferance

Question 8

Tenancy for Years

Answer 8

Tenancy for known, fixed period of time.

Termination automatic at end date. No notice needed.

Writing needed if over 1 year (SoF)

Question 9

Periodic Tenancy

Answer 9

Continues for successive intervals until properly terminated.

No end date. The lease goes on.

How to Create:
1. Express (L to T from month to month); or
2. Implication
- Rent set at intervals; or
- Oral term of years violating SoF. “L and T orally agree on a 5 year lease at $1,000 a month.” Has to be a tenancy for years, because otherwise, breaks SoF.

How to Terminate: Common Law requires notice at least equal to the length of the period. If year-to-year, 1 month needed.

Question 10

Tenancy at Will

Answer 10

No fixed duration.

Terminable at will of either party.

Most states, though, require notice at reasonable time.

Question 11

Tenancy at Sufferance

Answer 11

T wrongfully holds over past lease expiration. L proceeds to recover rent.

Terminates when L
1. Moves to evict; or
2. Holds T to new tenancy.

Question 12

Tenant Duties

Answer 12

1. Duty to Repair if Lease is Silent
2. Duty to Repair with Express Covenant
3. Duty to Pay Rent

Question 13

Duty to Repair if Lease is Silent

Answer 13

• Maintain premises
• Make routine repairs
  
  • Mold in the shower? → No
  • Hair in drain? → Yes
• Don’t Commit Waste
  
  • Voluntary
  • Permissive (neglect)
  • Ameliorative (unless long-term T and reflects neighborhood changes)

Question 14

Duty to Repair with Express Covenant

Answer 14

• Maintain in good repair/condition
• T may terminate if premises destroyed without T’s fault

Question 15

Duty to Pay Rent

Answer 15

1. If T breaches and remains, L can:
   - Evict
   - Continue relationship and sue for rent
2. If T breaches and leaves, L can SIR:
   • Surrender: L can treat the T’s abandonment as a surrender and accept it.
   • Ignore the abandonment and hold T responsible for unpaid rent until the natural end of the lease. Minority of states.
   • Re-Let the premises on the T’s behalf, and hold them liable for any deficiency.

BUT L MAY NOT SELF HELP. No forcing ouster, changing locks, removing T’s possessions, etc.

Question 16

Landlord Duties

Answer 16

1. Duty to Deliver Possession
2. Implied Covenant of Quiet Enjoyment
3. Implied Warranty of Habitability
4. No Retaliatory Eviction
5. Anti-Discrimination Legislation

Question 17

Duty to Deliver Possession

Answer 17

Duty to place T in actual, physical possession

If another tenant is still there on the date the new Tenant is to move in, T gets damages

Question 18

Implied Covenant of Quiet Enjoyment

this will be on the exam

Answer 18

T has the right to the quiet use and enjoyment of property without interference from L.

How Could LL Breach?

• Wrongful Eviction: literally excludes from all of (actual eviction) or part of (partial eviction) property. Both relieves T’s rent obligation.
• Constructive Eviction: LL breach renders the premises unsuitable for occupancy. T must satisfy SING:
  • Substantial Interference: e.g. every time it rains, apt floods.
  • Notice: T must tell L; L must fail to fix.
  • Goodbye: T must vacate.

Then they can sue for damages.

Question 20

No Retaliatory Eviction

Answer 20

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

E.g. T lawfully reports L for housing code violations.

Question 21

Zoning

Answer 21

you know

Enabled by local zoning ordinances

Question 22

Variance

Answer 22

Permission to a property owner to depart from a zoning restriction. Must:

1. Show undue hardship
2. Show no diminution to neighboring property values

…granted or denied by the zoning board.

Question 23

Nonconforming Use

Answer 23

Use previously allowed by zoning is now deemed nonconforming by a new ordinance.

The old use cannot be eliminated all at once unless just compensation is paid.

Question 24

Types of Zoning Ordinances in the U.S.

Answer 24

1. Cumulative Zoning: Land ranked and categorized to create hierarchy of uses.
   
   • E.g. single-family home is the highest; next, two-family; next, apartment; etc.
   • Higher uses are allowed into lesser-use districts, but not vice versa.
2. Noncumulative: Land may only be used for the purpose for which it is zoned. So a single-family home is not allowed in commercial zones.

Question 25

Special Use Permit

Answer 25

List of uses deemed appropriate according to zoning, but because they present certain safety/general welfare concerns, they must pass certain criteria.

E.g. required for hospitals, funeral homes, drive-in businesses, etc.

Question 26

Condominium Association

Answer 26

Gated/walled community. Each owner owns the interior of their individual unit plus an undivided interest in the exterior + common elements (pool, game room, etc.)H

Question 27

Homeowners’ Associations

Answer 27

Oversees common elements in the condo.

Each condo owner is a member.

Elects a board that enforces covenants, conditions, etc.

Special Assessment: one-time fee if dues don’t cover an expense; used for common elements

Association Rules are bundled into the **Declaration of Covenants, Conditions, and Restrictions (CC&R) that prescribe what owners can/can’t do. E.g. no pets.

Question 28

Rights Incidental to Ownership of Land

Answer 28

Owner of real property has exclusive right to use and possess the surface, airspace, and soil

Question 29

Lateral Support

Answer 29

Right to have the land supported in its natural state by adjoining land. No additional structures, shrubbery, etc.

Liability:
- If Your Land is Natural, and a neighbor excavates randomly → causes your natural land to subside → Strict Liability.
- *If Your Land is Improved, and a neighbor causes subside-ing → Negligence Standard.

Question 30

Water Rights

Answer 30

1. The Riparian Doctrine: Water belongs to who owns the land bordering the watercourse.
   - Reasonable Use Theory: Riparians share the right of reasonable use. Use Unreasonably → Liable.
2. Prior Appropriation Doctrine: Water belongs to the state.
   - Priority of Beneficial Use: But one can acquire the right to divert/use if they actually use it, were the first, and for beneficial use.

Question 31

Ground Water

Answer 31

Surface owner can make reasonable use of groundwaterr

Question 32

Surface Waters

Answer 32

Waters that pass across your land (melting snow, etc.); hasn’t settled into natural resting place/basin.U

Question 33

Use of Surface Waters

Answer 33

Landowners can use surface water within their boundaries for any purpose they desire.

What if you change the Flow? → The Common Enemy Rule: Owner can take any protective measures to get rid of surface water/combat its flow. E.g. build a levy. *But must not harm/unreasonably interfere with other peoples’ parcels of land.

Question 34

Transfers of Leaseholds

Answer 34

Assignments and Subleases

Question 35

Assignment

Answer 35

Transfer of entire remaining term of lease.

Assignee T is…
- …in privity of estate with the Landlord
- …not in privity of contract with the Landlord

Original T is…
-…not in privity of estate with the Landlord
- …in privity of contract with the Landlord

This determines who can proceed against whom.

Question 36

Assignment Example

Answer 36

Say L leases to T1, T1 assigns to T2, T2 to T3. T3 then abuses the premises.

• L can proceed against T3, the direct wrongdoer, because of Privity of Estate
• L can proceed against T1, because of Privity of Contract
• L cannot proceed against T2, because they have neither privity.

Question 37

Assignment (L)

Answer 37

If L leases property to T, and L subsequently assigns L’s interest to L2, T may hold either L or L2 liable when X, a paramount title holder, ejects T.

Question 38

Sublease

Answer 38

Transfer of part of the remaining term of lease.

T2 has no privity, estate or contract, with L.

BUT: T1 and T2 are responsible to each other. T2 can bring action against T1. And the relationship between L and T1 remains intact.

Question 39

Landlord Tort Liability

Answer 39

Caveat Lessee: Tenant Beware. L has no duty to make premises safe, except: CLAPS:

1. Common Areas
2. Latent Defects, where L has a duty to warn of hidden defects they knew/should have known about + T could not have.
3. Assumption of Repairs, where L has a duty to complete repairs that they started.
4. Public Use Rule. L who leases public space (e.g. museum) and who should know, because of the significant nature of the defect and short length of the lease, that a T will not repair, is liable for any defects on the premises that cause injury to members of the public.

Think school that leases museum for prom.

5. Short-Term Lease of Furished Dwelling. Landlord who rents a fully furnished premises for a short period (summer cottage) is responsible for any defective condition which proximately injures a Tenant.

Question 40

Modern Trend in Landlord Tort Liability

Answer 40

General Duty of Reasonable Care.

Many courts now hold a L owes a general duty of reasonable care toward residential tenants and will be held tort liable resulting from ordinary negligence IF L had notice and opportunity to repair

Question 41

Easement

Answer 41

A grant of nonpossesory interest entitling the holder to use or enjoy another’s land in some way. Must be in writing.

1. Affirmative: Right to go on another’s land and do something.
2. Negative: Right to prevent landowner from doing something. Can only be created expressly, and only for LASS:
   - Light (prevent neighbor from impeding your access to sunlight)
   - Air
   - Support
   - Stream water from artificial flow

Question 42

Types of Easements

Answer 42

1. Easement Appurtenant: Benefits its holder in his physical use or enjoyment of his land.
2. Easement in Gross: Confers upon its holder only some personal or pecuniary advantage that is not related to use/enjoyment.

Question 43

Easement Appurtenant

Answer 43

Example: A grants B a right of way across A’s land, so B can easily reach his own land.

B = Dominant Estate; derives the benefit.
A = Servient Estate; bears the burden.

B has an easement appurtenant to his dominant parcel.

Whenever you see two pieces of land, think easement appurtenant.

Transfers:
- Benefit automatically transfers with the dominant tenement, regardless of whether it’s mentioned in the conveyance.
- Burden also automatically passes unless the new owner is a BFP without notice of the easement.

Question 44

Easement in Gross

Answer 44

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

Servient land burdened, and there is no benefited land.

Neil has an easement in gross to use Suchita and Sunny’s pool.

Transfers: No, only for commercial purposes.

Question 45

How Do You Create an Easement?

Answer 45

PING

1. Prescription: Kind of like adverse possession. I cut across your front lawn for years, so after some time I convert from a trespasser to the holder of an easement in gross. Remember COAH:
   - Continuous and Uninterrupted use for the given statute’s period;
   - Open and notorious use, meaning it’s discoverable by the holder upon inspection
   - Actual Use; need not be exclusive
   - Hostile Use; without the servient owner’s consent
2. Implication: Created by operation of law. Passes on if…
   - Previous use on the servient’s part was apparent and continuous; and
   - The parties reasonably expected that the use would survive division because it is reasonably necessary to the dominant tenement’s use and enjoyment.
3. Necessity: Landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land.
4. Grant: In writing and signed by the servient estate owner, unless its duration is less than one year (SoF).

Question 46

How Do You Terminate an Easement?

You will get tested on one of these

Answer 46

END CRAMP

1. Estoppel
2. Necessity
3. Destruction
4. Condemnation
5. Release
6. Abandonment
7. Merger
8. Prescription

Question 47

How Do You Terminate an Easement? Details. 1/3

Answer 47

1. Estoppel. Servient owner materially changes positions in reasonable reliance of easement holder’s assurance that it will no longer be enforced. Enforceable if there’s reliance. **E.g.* A tells B they will no longer cross B’s land, B builds a swimming pool: A cannot enforce.
2. Necessity: Easements created by necessity end when the necessity ends, unless it was in writing. E.g. A has E. Appurt. to cross O’s land. City builds a road A can get out through. Does A still have the easement? NO, because the necessity is gone; but YES if there was a writing!
3. Destruction of the servient land, other than through willful conduct of the servient owner, will terminate the easement.

Question 48

How Do You Terminate an Easement? Details. 2/3

Answer 48

4. Condemnation of the servient estate by governmental eminent domain will terminate the easement. Courts are split on whether the easement holder is entitled to compensation.
5. Release given in writing by the easement holder to the servient will terminate the easement. Applies to an easement in gross too.
6. Abandonment. Easement holder shows by physical action, like building a structure, an intent never to use the easement again.

Question 49

How Do You Terminate an Easement? Details. 3/3

Answer 49

7. Merger: When title to the easement and title to the servient land become vested in the same person, the easement is extinguished. If it splits again, the easement isn’t reinstated; you start from scratch.
8. Prescription: A servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession. COAH: Continuous Interference, open and notorious, actual, hostile to the holder.

E.g. A has an easement across B’s parcel. B erects a fence. With sufficient passage of time, B has extinguished A’s easement by prescription.

Question 50

License

Answer 50

Mere privilege to enter another’s land for a narrow/delineated purpose.

Distinction from Easement: A license is not an interest in the land. It’s flimsy, narrow, revocable. No writing required; freely revocable.

Bar Tip: Licenses show up on the bar as:
- Tickets (like, to shows: creates a revocable license)
- Neighbors Talking By the Fence: Neighbor A says over the fence to B, “You can have right of way across my land.” Not an easement - it’s an oral license, revocable.

*Enforceable only by estoppel (reliance).

Question 51

Profit

Answer 51

Entitles its holder to enter the servient land and take from it. E.g. minerals, timber, oil, fish, game…

Creating/Terminating Rules? Same as easements.

Surcharge: Profits may be extinguished through a surcharged - a misuse that overly burdens the servient estate.

Question 52

Covenants

Answer 52

Promises to do or not do something with regard to the land.

Distinct from easements in that they are not ownership interests.

Question 53

Restrictive Covenant

Answer 53

Refrain from doing something.

Most covenants are restrictive.

Question 54

Affirmative Covenant

Answer 54

Promise to do something related to the land.

“I promise to maintain our shared fence.”

Question 55

Remedies for Equitable Servitude v. Covenants

Answer 55

Equitable Servitude → Injunction

Covenants → Money Damages

Question 56

Requirements for Burden to Run in a Covenant

Answer 56

WITHN

1. Writing
2. Intent to have the covenant run (look at the language)
3. Touch and Concern the Land
4. Horizontal and Vertical Privity
5. Notice

Question 57

Horizontal Privity

Answer 57

Original covenanters had to have had some shared interest in the land other than the covenant.

Most often because they were grantor and grantee.

Question 58

Vertical Privity

Answer 58

Everything but adverse possession.

Question 59

Requirements for Benefit to Run in a Covenant

Answer 59

WITV

1. Writing
2. Intent to have the covenant run (look at the language)
3. Touch and Concern the Land
4. Vertical Privity only

Question 60

Equitable Servitude

Answer 60

Promise that the equity will enforce against successors of the burdened land (regardless of whether it runs with the land at law).

Created as a relief for covenants, because of how difficult covenants are to create.

Question 61

Requirements for Creating an Equitable Servitude

Answer 61

WITNES

1. Writing
2. Intent
3. Touch and Concern
4. Notice
5. (For) Equitable Servitudes

No privity required!! :D

Question 62

The General or Common Scheme Doctrine

Answer 62

Courts will assume there was an implied equitable servitude even though there was nothing in the deed IF:

1. There was, from the beginning, a
2. Scheme of development to which
3. Developer had notice, which can be AIR:
   - Actual (literal knowledge)
   - Implied (lay of the land)
   - Record (public documents)

Question 63

Keep in Mind for Common Schemes…

Answer 63

If the Common Scheme arose after some of the original lots are sold, there will be no implied equitable servitude. So, for example, if Lots 1-5 are sold without a restrictive covenant and the deeds to Lots 6-50 contain one, the covenant cannot be enforce as a servitude against the owners of Lots 1-5.

Question 64

Defenses to the Enforcement of an Equitable Servitude

Answer 64

1. The Neighborhood has Changed so significantly that enforcement would be inequitable.
2. Unclean Hands. The person seeking enforcement is violating a similar restriction on his own land.
3. Acquiesced. A benefited party acquiesced in a violation of the servitude by a burdened party.
4. Estoppel. Burdened party has acted in such a way that a reasonable person would believe the covenant abandoned.
5. Laches. The benefited party fails to bring suit against the violator within a reasonable time.

Question 65

Adverse Possession

Answer 65

Possession for a statutorily prescribed time that can ripen into title.

Question 66

Requirements for Adverse Possession

Answer 66

COAH

1. Continuous and Uninterrupted.
2. Open and Notorious.
3. Actual and Exclusive.
4. Hostile. (Permission defeats.)

An adverse possessor will only gain title to land they actually occupy.

Question 67

Tacking

Answer 67

One adverse possessor may tack on to his time with the land his predecessor’s time, as long as there is privity between the possessors (any non-hostile nexus).

A AP’d B for 10 years, passed to C for 10 more, statute prescribes 20 years: belongs to C/A.

Question 68

Exceptions to Adverse Possession

Answer 68

Will not run against a true owner who is afflicted with a disability at the inception of the adverse possession. E.g. insanity, infancy, incarceration….

Question 69

Conveyancing Steps

Answer 69

1. Contract conveys equitable title.
2. Closing, where the deed passes legal title.

Question 70

Requirement for a Land Sale Contract?

Answer 70

The Statute of Frauds!

1. Writing
2. Signed by the defendant; iow, the against whom enforcement is sought.
3. Identify the Parties.
4. Describe the Property.
5. State the Consideration ($ term).

Question 71

Bar Tip: What if the Size Amount in the Writing is Greater than the True Size of the Parcel?

Answer 71

Specific Performance with a pro-rata reduction in price.

E.g., “Be enters a contract to purchase a farm. The contract says the farm is 100 acres. When B has a survey done, B learns it is actually 98 acres. What is B’s remedy? Pro-rata reduction for the 2 acres.

Question 72

Part Performance

Answer 72

An equitable doctrine that allows the buyer to enforce an oral contract by specific performance if:

1. The Contract is certain and clear; and
2. Acts prove the existence of the contract: 2/3 of the following—
   - Buyer took possession
   - Buyer paid purchase price or significant portion
   - Buyer made substantial improvements

E.g. A and B orally agree on a purchase of B’s land. B dies. B’s estate does not want to sell. What can A do? Show the contract is clear and certain, show that they took possession and made improvements.

Question 73

Equitable Conversion

Answer 73

Once the contract is signed, equity regards the buyer as the owner of the real property.

By contrast, closing gives legal title to the buyer.

Question 74

Right to Possession rests with…

Answer 74

…the party that holds the legal title.

Question 75

Difference between Legal Title and Equitable Title

Answer 75

Equitable Title: Contract—Risk of Loss

Legal Title: Deed—Right to Possession

Question 76

Implied Promises in Every Land Sale Contract

Answer 76

1. Seller will provide Marketable Title
2. Seller will not make False Statements of Material Fact

Question 77

Seller Will Provide Marketable Title

Answer 77

Promise that the title is reasonably free of doubt/threat of a lawsuit on closing. Will be tested!!

What Renders a Title Unmarketable?
- Defects in Record Chain of Title, e.g. adverse possession or no good record title.
- Encumbrances, e.g. mortgages, liens, covenants, easements
- Zoning Violations seller is guilty of.

If buyer determines title is unmarketable, must notify the seller and give reasonable time for them to cure.

Closing date may be extended to allow time to cure.

Question 78

Seller Will Not Make False Statements of Material Fact

Answer 78

Seller may be liable to the purchase after closing for defects, e.g. leaky roof, if they knowingly made a false statement the buyer relied upon, actively concealed a defect, or failed to disclose one.

General Disclaimers are No Good. But if the disclaimer identifies specific types of defects (e.g. the roof) it will likely be upheld.

Question 79

Implied Warranties of Fitness or Habitability in Land Contracts?

Answer 79

None. Buyer Beware. This is what the escrow period is for.

One Exception: Sale of new home by a builder.

Question 80

Deeds

Answer 80

At closing, deeds become the document.

Seller therefore is no longer liable for the promises in the contract.

Question 81

To Pass Legal Title from Grantor to Grantee, the **Deed* must be:

Answer 81

LEAD:

Lawfully
Executed
And
Delivered

Question 82

Lawful Execution requires:

Answer 82

WUIW

1. Writing signed by grantor;
2. Unambiguous description of the land (“O conveys all of O’s land”; not, “some of his land).
3. Identification of Parties
4. Words of Intent

No consideration needed.

Question 83

Delivery Requirement for Deeds

Answer 83

Legal standard testing grantor’s present intent. Did they have present intent to part with legal control?

Does not require physical transfer.

Mail, agent, messenger, etc. fine.

Question 84

Transfer to Third Party with Conditions

Answer 84

Escrow Transaction

Grantor may deliver an executed deed to an escrow agent, with instructions that title is to pass from escrow agent to grantee once certain conditions are met.

Dad gives deed to escrow agent, to be delivered to Rohit once he passes the bar.

Question 85

Types of Covenants for Title

Answer 85

1. General Warranty Deed.
2. Special Warranty Deed.
3. Quitclaim.

Question 86

General Warranty Deed

Answer 86

The Best Deed.

Warranties against all defects in title.

Contains All Six Covenants:

1. Present Covenants:
   - Seisin (grantor owns this estate, can vest it)
   - Right to Convey (grantor can transfer this estate, she is under no temporary defects)
   - Against Encumbrances (no servitudes/liens on this land)
2. Future Covenants:
   - Quiet enjoyment
   - Warranty (even if 3rd party claim, grantor will defend against reasonable claims of title + compensate for loss)
   - Further Assurances (grantor will perfect title if deed turns out to be imperfect)

Question 87

Special Warranty Deed

Answer 87

Warrants against all defects in title but only for grantor themselves.

Statutory Special Warranty Deed: When the deed is ambiguous as to which deed-type it is, statutory special warranty will be presumed.

Two Promises:
1. Grantor hasn’t conveyed to anyone else (not a dirty double dealer)
2. Grant is free of encumbrances

Question 88

Quitclaim

Answer 88

The Worst Deed.

No covenants for the title.

Taking a Quitclaim = Taking Nothing.