Property

Question 1

Fee Simple (Absolute)

Answer 1

Strongest estate with full possessory rights now & in the future. No restraints on alienation

“O to A” & “O to A and his heirs”

Question 2

Fee Simple Determinable

Answer 2

An estate that lasts until the happening of an event. Uses conditional language such as “so long as, during”. Automatic possibility of revertor in grantor.

If not followed by estate in grantor but to third party, then third party has executory interest

Question 3

Fee Simple Subject to Condition Subsequent

Answer 3

Estate where grantor retains power to terminate upon happening of event. Uses “but if” languge. Grantor must exercise right of re-entry or subject to laches defense.

If not followed by estate in grantor but to third party, then third party has executory interest

Question 4

Life Estate

Answer 4

Estate that lasts for duration of person’s life. Follwed by either

reversion (back to grantee) or remainder (goes to someone else)

vested remainder= no conditions to get it

contingent remainder= get it if they fullfill certain conditions

Life tenant must pay property taxes/interest on mortgage to the extent they derive income from land or lands reasonable rental value

Question 5

Adverse Possession

Answer 5

Involves acquisition of title by occupier of land w/out consent of true owner. Possession must be:

1. Open and Notorious (would put reasonable person on notice)
2. Actual and Exclusive (only possesor uses the property)
3. Hostile or Adverse (no permission or consent)
4. Continuous (constant use)
5. for Statutory Period

Question 6

Class Gifts (rule of convenience)

Answer 6

class closes when a class member can call for the distribution of their share absent a contrary intent in instrument to include all members of a class whenever born

Question 7

Joint Tenancy

Answer 7

requires that the 4 unities are met:

1. time (acquired @ same time)
2. title (hold title in same instrument)
3. interest (identical– same type & duration)
4. possesion (each have right to possess)

+ express right of survivorship

Question 8

Tenancy in Common

Answer 8

Title in co-owners is presumed to be tenancy in common unless otherwise stated

No right of survivorship

Question 9

Severance of Joint Tenancy – by conveyance

Answer 9

When a joint tenant conveys their interest to a third person, it severs the joint tenancy, & creates a tenancy in common

Question 10

Severance of Joint Tenancy–by Mortgage/Lien

Answer 10

In majority lien theory states, mortgages/liens do not sever the joint tenancy on creation of the mortgage/lien. If mortgaging joint tenant dies, surviving joint tenant gets property free of the mortgage & lender gets nothing

In minority title theory states, mortgages/liens sever the joint tenancy on creation of the mortgage/lien. Become tenants in common. Lender/mortgagee holds a mortgage on the 1/2 tenancy in common interest owned by mortgaging co-tenant. If mortgaging co-tenant dies, mortgage survives on that 1/2 tenancy in common interest.

Question 11

Co-tenants Right

to Possess All Property

Answer 11

Co-tenants have a right to possess all of the property BUT co-tenants out of possession can’t bring a possessory action or claim that posessing co-tenant owes them rent absent an ouster (wrongful exclusion from possession)

Question 12

Co-tenants Right

to Retain Profits

Answer 12

Co-tenant in possession has the right to retain profits made from their use of the property, & there is no need to share these profits w/ other cotenants or reimburse them for rent, absent a written agreement OR if the profits are made from uses that deplete the property value (like mining)

Question 13

Co-tenant Right

to Share in Rents from Third Parties

Answer 13

co-tenants out of possession have the right to their pro-rata share in rents/ profits from third parties in all circumstances

Question 14

Co-tenants Contribution for Necessary Repairs

Answer 14

A co-tenant who pays more than their pro-rata share for necessary repairs, is entitled to contribution from other co-tenants in an action for accounting/partition– but there’s no right to contribution for mere improvements.

In addition, majority of courts permit an independent action for contribution if the repairs are necessary and re-pairing co-tenant first gives notice to other co-tenants

Question 15

Co-tenants Duty

to Pay Taxes & Mortgage Payments

Answer 15

each co-tenant has a duty ot pay their share of property taxes/ mortgage payments.

Co-tenant who is not in possession & makes these payments is entitled to contribution from other co-tenants.

Co-tenant who is in sole posession & makes these payments is only entitled to reimbursement in the amount that exceeds fair rental value of the property.

Question 16

Landlord /Tenant Roadmap

Answer 16

1. Identify the type of lease (what type of lease is it?)
2. Discuss whether there is a failure to pay rent
3. Discuss whether there are any defenses to tenant’s failure to pay rent
4. Discuss any issues arising from the assignment of the lease by landlord or tenant

Question 17

Term of Years Lease

Answer 17

has a set start & end date , automatically terminates

on the end date, and does not renew absent the exercise

of a renewal clause

Question 18

Periodic Tenancy

Answer 18

continues from year to year, or successive fractions like month to month. It automatically renews absent written notice of termination (usually 30 day minimum).

Failure to properly terminate will cause tenant to owe rent unless they can argue there has been a breach of implied/ express covenants

Question 19

Holdover Lease

Answer 19

occurs if a tenant stays beyond the term of the lease by consent of the landlord & continues for the same rent but can be terminated by landlord w/ 30 days’ oral/written notice

Question 20

Defense to Non-Payment of Rent:

Landlord Duty to Mitigate

Answer 20

When tenant wrongfully terminates lease & breaches their duty to pay rent, landlord has a duty to mitigate by attempting to reasonably re-let the premises.

Failure to mitigate is a defense to the non-payment of rent.

Question 21

Assignment

– whether lease can be assigned

Answer 21

generally, a party has the right to assign a lease unless there is a covenant not to assign (look for language in lease binding “all successors & assigns” or generic description of parties as L/T).

Covenant not to assign will be enforced although consent cannot be unreasonably withheld

Question 22

Assignment

– whether the lease was assigned

Answer 22

An assignment assigns the entire leashold estate–it is a complete transfer of the remaining term

Absent a novation, both the assignor & assignee remain liable on the covenant to pay rent bc the assignor, having signed the original contract, is in privity of K with the landlord, & the assignee, who is now in possession, is in privity of estate UNLESS landlord & new tenant execute an assumption of the lease.

Question 23

Sublease

Answer 23

If tenant retains any part of the premises or remaining term, then they have made a sublease

sublessee is not personally liable to the landlord for rent, BUT the landlord can terminate the lease & evict the sublessee if they don’t pay

Question 24

Landlord Duty

to Deliver Possession

Answer 24

refers to timely posession & runs w/ the lease when assigned

Question 25

Landlord’s Implied Covenant of Quiet Enjoyment

Answer 25

automatically runs w/ the lease when assigned & goes to the use & enjoyment of premises. Can be breached by: 1) actual/partial eviction OR 2) constructive eviction

Prior to invoking a remedy, Tenant must give Landlord notice & reasonable opportunity to repair

Question 26

Actual/ Partial Eviction

Answer 26

actual/ partial eviction consists of the the landlord physically excluding the tenant from all or part of the premises

Question 27

Constructive Eviction

Answer 27

Requires that:

1) the landlord breach a duty set out in the lease; and
2) the breach materially & substantially interferes w/ tenant’s use & enjoyment of the premises

Tenant must give notice & reasonable opportunity to repair. Remedy is to move out & terminate the lease if done timely (but waived if no timely move out)

Question 28

Implied Warranty of Habitability

Answer 28

requires that property be reasonably suitable for human existence & only applies to residential leases

If landlord breaches tenant may: 1) move out & terminate lease; 2) make repairs & offset cost against rent; or 3) seek damages. Tenant must give notice

Question 29

Fixtures

Answer 29

Fixture is chattel that has been so affixed to the property that it has ceased being personal property & removal would cause substantial damage. It passes w/ the land.

Tenant generally can’t remove a fixture, absent a written agreement to the contrary unless its a trade fixture (equipment used in T’s trade/ business)

Question 30

Tenants Implied Covenants

Answer 30

1. covenant to pay rent (breach gives LL right to terminate & evict)
2. covenant to repair damage they have caused
3. covenant not to commit waste (voluntary, permissive, ameliorative)

Question 31

Express Covenants in Leases that have Been Assigned

Answer 31

express covenants in a lease run with the land–meaning they are binding on successor landlords & tenants– if there is

1) intent (based on the lease language)
2) touches & concerns the land (affects the value of the lease to either party)

Question 32

Traditional Rule for

Breach of Express Covenants

Answer 32

Express covenants in a lease are independent of each other. THUS, if L or T breaches an express covenant, breaching party may owe damages but non-breaching party is still not excused from performance

Exception for covenant to pay rent. If tenant breaches, LL may terminate & evict or refuse to renew lease even if landlord has breached other express covenants

Question 33

Modern Rule for

Breach of Express Covenant

Answer 33

all express covenants are dependent of eachother. If the breach of landlord’s express covenant is material, that may be grounds for tenant to terminate lease & claim damages. BUT tenant may not refuse to pay rent unless they teminate the lease & move out timely.

Question 34

Specific Performance/ Injunction of Express Covenant

Answer 34

If LL/T want to enforce the covenant by specific performance/injunc., instead of suing suing for damages, they can seek enforcement by showing:

1. intent;
2. notice; &
3. touch and concern

Question 35

Waste

Answer 35

an act done by someone in rightful possession of the property that does permanent injury to the land, harming the interest of someone entitled to future possession

Three types:

1. voluntary – deliberate destructive acts
2. permissive – acts of ommission or neglect
3. ameliorative – alter property but result in increase in property value

Question 36

Easement

Answer 36

the right to enter onto & use land for a particular purpose such as to travel through it

ESSAY ROADMAP:

1. how an easement is created (5 ways– express, reservation, implication, necessity, & prescription)
2. what type of easment is it? (2 types– appurtenant or in gross)
3. was the easement terminated?

Question 37

ways of creating an easement: ERINP (every rich idiot needs pull)

Express Easement

Answer 37

a direct grant of the easement, preferably w/ a deed, bc SOF requires interest in land to be evidenced in writing by grantor

Question 38

ways of creating an easement: ERINP (every rich idiot needs pull)

Easement by Reservation

Answer 38

grantor reserves an easement for herself as part of the conveyance of the property to another

Question 39

ways of creating easement: ERINP

Easement by Implication

Answer 39

if there was a prior use over a period of time amounting to consent. Prior use must be:

1) continuous & apparent at time tracts are divided; and
2) reasonably necessary to the enjoyment of the dominant parcel considering such factors as:
a) cost and difficulty of the alternatives &
b) whether price paid reflects the continued use of easement

Question 40

ways of creating an easement: ERINP (every rich idiot needs pull)

Easement by Necessity

Answer 40

Arises where:

1) there was no prior use
2) the two parcels were originally under the same ownership @ one time;
3) party asserting the easement owns landlocked property w/ no access whatsoever to a public road

NOTE: Expires when necessity ends unless reduced to express easement

Question 41

ways of creating an easement: ERINP (every rich idiot needs pull)

Easement by Prescription

Answer 41

(Same requirements as adverse possession EXCEPT no requirement for exclusive possession)

1. open & notorious
2. actual possession
3. hostile or adverse
4. continous for the statutory period