Property Flashcards
What are four types of landlord-tenant estates?
- Tenancy for years
- Periodic tenancy
- Tenancy at will
- Tenancy at sufferance
Which covenant is a promise by the landlord not to interfere with the tenant’s possession of the leased premises?
How is this breached?
The implied covenant of quiet enjoyment, which is implied in every lease.
This warranty is breached only when the conduct of the landlord or someone with superior title prevents the tenant from possessing the leased premises.
How do wild crops differ from cultivated crops when it comes to property?
Wild, uncultivated crops (i.e., fructus naturales) are considered part of the real property on which they grow, so they pass automatically with the land. Crops that are purposely planted and cultivated (i.e., fructus industriales) are considered the landowner’s personal property and, similarly, are generally conveyed with the land. However, the prior owner has the right to reenter to remove these crops if they were:
- harvested and therefore severed from the land
- ripe (i.e., mature) and therefore deemed constructively severed from the land (in some courts) or
- planted by a tenant with a lease of uncertain duration or an adverse possessor under a claim of right.*
When analyzing facts concerning a party’s liability for changing the flow of surface water, what three theories should you consider?
- Common Enemy
- Natural Flow
- Reasonable Use
If a buyer is purchasing property using an installment land contract, when does she obtain legal title?
Buyer obtains legal title upon final payment under the installment payment plan.
What are the three common types of concurrent estates? What unities are required for each?
- Tenancy in common: Unity of possession
- Joint tenancy: Unities of possession, interest, time, and title (“PITT”)
- Tenancy by the entirety: Unities of person, possession, interest, time, and title
As between an assignee and a sublessee, who is in privity of estate with the landlord and thus liable to the landlord for rent and other covenants in the lease?
An assignee is in privity of estate with the landlord, and thus he is liable to the landlord for the rent and any other covenants in the lease.
However, if the assignee reassigns the leasehold to a subsequent tenant, then the privity of estate with the landlord ends and the initial assignee is no longer liable to the landlord based on privity of estate.
In a lien jx, what happens when a tenant in common takes out a mortgage (without the other tenant in common) and then dies?
The mortgage extinguishes, because the dead tenant in common’s interest in the property disappears (as it was absorbed by the survivor).
Explain the two doctrines that govern the rights that a land owner has to take or use water from a watercourse that flows through or adjacent to the owner’s land?
Reasonable-use: Favored in the eastern U.S. and allows the owner to make any reasonable use of the water. Water rights cannot be sold or transferred separately.
Prior-appropriation: Favored in the western U.S. and states that water rights are determined by priority of beneficial use (first in time, first in right). Water rights can be sold or transferred separately.
In most states, there is a rebuttable presumption that a conveyance to two or more persons creates what kind of tenancy?
Tenancy in common (which requires only the unity of possession).
For a deed to be effective, what must the grantor and grantee do?
In general a deed transfers title only when
1. The grantor INTENDS to convey an interest,
2. The grantor DELIVERS a deed to the grantee, AND
3. The grantee ACCEPTS the deed.
Tip: When comparing and contrasting questions about delivery, always look to facts indicating the grantor’s INTENT.
What is the type of priority purchase money mortgages have, and what does it mean?
Purchase money mortgages have super priority over all other liens– whether or not the PMM or those liens are recorded– because PMMs secure the purchase price of the mortgaged property.
What is required to get an exception to a zoning ordinance when the ordinance includes a special exception permitting a particular future use of property when a special-use permit is obtained?
If a property owner complies with the procedures for obtaining a special use permit and establishes entitlement to that permit, the responsible government agency must issue the permit.
What two possible components denote a contingent remainder?
The remainder is created in an unascertainable grantee,
OR
if it is subject to a condition precedent to the grantee’s taking.
What are the two types of mortgages?
- Purchase money mortgage: A person takes out a loan for the purpose of purchasing property
- Future advance mortgage: A line of credit used for home equity, construction, business, and commercial loans (“second mortgage”)
How do the remedies available for breach of a real covenant differ from the remedies available for breach of an equitable servitude?
The remedy for breach of a real covenant is money damages, while the remedy for breach of an equitable servitude is an injunction.
Tip: When deciding whether to analyze facts under a real covenant analysis or an equitable servitude analysis, note what the party is seeking (damages or an injunction).
What future interest, held by a third party, is not a remainder, and generally cuts short the prior interest upon the occurrence of a specified condition?
An executory interest
What is a charitable trust?
A charitable trust is one with a stated charitable purpose made to benefit the community at large or a particular segment of the community. As a result, the trust beneficiaries must be reasonably numerous and unidentifiable
What happens when a casualty occurs during the time between execution of a land-sale contract and closing, and the seller is carrying insurance?
Any insurance proceeds the seller receives must be credited against the buyer’s purchase price.
What remedies does a tenant have when a landlord breaches the warranty of habitability?
If the premises are not habitable, then the tenant may choose to:
- Refuse to pay rent
- Remedy the defect and offset the cost against rent
- Defend against eviction
Does the merger doctrine apply to mortgages?
Most jurisdictions have adopted the position that the merger doctrine does not apply to mortgages. Instead, a mortgagee that receives a deed in lieu of foreclosure is treated as having impliedly retained the right to foreclose on its mortgage– unless it had actual notice of a junior lien. If so, the mortgagee cannot foreclose on its mortgage to eliminate that junior lien.
Who bears the risk of loss if real property is destroyed between execution of a land-sale contract and closing?
In most states, the buyer bears the risk of loss (regardless of whether the buyer takes possession of the property), except when the loss is due to seller’s intentional or negligent actions (then seller bears risk).
What is the intermediate theory of mortgages?
Under the intermediate theory of mortgages, a mortgagor is entitled to possession until default, at which time the lender acquires legal title to the mortgaged property.
In contrast, under the majority rule lien theory, the lender cannot take possession prior to foreclosure, whereas under the minority title theory, the lender may take possession at any time.
How is the Doctrine of Ancient Lights treated in the US?
The English common-law Doctrine of Ancient Lights enabled landowners to protect their right to light by preventing neighbors from building any structure that blocked the landowner’s access to sunlight. This doctrine has been rejected in the United States. As a result, landowners can only restrict another’s blockage of light if they are protected by statute or enter into an agreement with the neighboring landowner to create a negative easement.
A landlord’s failure to comply with applicable housing code requirements is evidence of a breach of which warranty?
The implied warranty of habitability, which applies to residential leases and is nonwaivable.
After a mortgaged property is sold at a foreclosure sale, in what order are the proceeds distributed to different stakeholders? (Identify at least four.)
- Proceeds are used to pay any costs related to the sale.
- The party who foreclosed on the property is paid, up to the amount outstanding on its mortgage interest.
- If any money remains, any junior interests are paid in order of their priority.
- If any money remains, the mortgagor is paid.
What is the difference between a sublease and an assignment?
An assignment is a complete transfer of a tenant’s remaining lease term; a transfer of less than that is a sublease.
Tip: If the tenant retains a reversionary interest in the leasehold, then the transfer is a sublease.
What does it mean if a remainder is subject to a condition precedent?
The condition must first be met or satisfied for a remainderman to ever take possession.
Example: Carlos conveys his bakery “to A for life, then to B if B eats cake every day for one year.” B’s remainder is contingent because she must eat cake every day for one year before she can take possession.
What are the three requirements in a land sale contract to satisfy the Statute of Frauds?
It must be in writing, signed by the party to be charged, AND contain all essential terms (parties, description of property, price/payment info).
In a lien theory state (which is the majority), a mortgage interest is treated as a lien that does not affect a joint tenancy until foreclosure. What does a mortgage do to a joint tenancy in a title theory state?
In a title theory state, the joint tenancy is severed upon the granting of the mortgage, and the interest is converted into a tenancy in common.
What is the doctrine of merger?
The doctrine of merger applies to mortgages when the same person acquires both: a mortgagee’s (lender’s) interest in real property and the mortgagor’s (borrower’s) interest in that same property. When this occurs, the mortgage merges into the fee estate and is thereby extinguished.
Can a buyer who assumed a mortgage as part of a purchase price raise defenses that the debtor could have raised to avoid the mortgage obligation?
A buyer who assumed a mortgage as part of the purchase price may not raise defenses—e.g., duress, statute of limitations, lack of legal capacity—that the debtor could have raised to avoid the mortgage obligation. Otherwise, the buyer would be unjustly enriched.
What is a prematurely recorded deed, and does it provide record notice?
A prematurely recorded deed is a deed recorded by a buyer before the seller owns the property, and it falls outside a later buyer’s chain of title and fails to provide record notice.
What happens when a joint tenant leases his interest?
There is a split among jurisdictions with respect to joint tenancies when one joint tenant leases his interest. Some jurisdictions hold that the lease destroys the unity of interest and thus severs the joint tenancy, while other jurisdictions believe that the lease merely temporarily suspends the joint tenancy, which resumes upon expiration of the lease.
What is a mortgage?
A mortgage is a security device used to secure payment of a debt.
A conveyance by will by a joint tenant of his property interest has what effect?
NONE.
The property passes automatically to the remaining joint tenant(s) due to the right of survivorship.
What is an actual eviction?
An actual eviction, as opposed to a constructive eviction, occurs when the landlord removes the tenant from the premises. This total eviction terminates the lease and ends the tenant’s obligation to pay rent.
What are the prerequisites for creating an easement by necessity?
The dominant and servient estates must have been under common ownership in the past, and the necessity arose when the property was severed (which rendered the dominant property virtually useless without the benefit of an easement across the servient estate).
What is a landowner’s liability if he excavates on his land and causes the adjacent, undeveloped land to collapse or subside?
The excavating land owner is strictly liable.
Name four real property instruments that must comply with the Statute of Frauds (aside from a land sales contract).
- Promise to create an interest in real property
- Assignment of a right to purchase
- Option contract
- Promise to give a mortgage or other lien security
What are the two types of executory interests? How is each defined?
- Shifting executory interest: divests the interest of the grantee by cutting short a prior estate created in the same conveyance. The estate “shifts” from one grantee to another on the happening of the condition.
- Springing executory interest: divests the interest of the grantor or fills a gap in possession in which the estate reverts to the grantor.
Why is the following grant a fee simple absolute rather than a fee simple determinable?: Grantor conveys Blackacre “to B to be used for a horse farm.” B does not use Blackacre as a horse farm.
Grantor’s language merely indicates his desire, intent, or purpose for which the property should be used rather than imposing a condition that could limit the duration of the estate.
How does abandonment relate to covenants?
A covenant can be terminated in the same manner as an easement, including by abandonment. Abandonment occurs when an affirmative act—something more than neglect or nonuse—shows a clear intent to relinquish the covenant.
By what point in time must a seller deliver marketable title?
Seller is not required to deliver marketable title until closing (as sellers often use the proceeds of the sale to satisfy any prior mortgages or liens).
For installment contracts, not until delivery.
