Property Essay

Question 1

Tenants in Common

Answer 1

• each tenant owes an undivided interest in the entire property
• this interest is freely devisable or transferable

Question 2

Joint Tenancy with the Right of Survivorship

Answer 2

Creation:
* must have express language creating a joint tenancy
* must have four unities: possession, interest, time, title

When one joint tenant dies, the interest goes to the other joint tenants

Question 3

Restraint on Alienation

Answer 3

• grantor can place a reasonable restraint on alienation
• undetermined/unrestrained amount of time = unreasonable
• if unreasonable –> strike out that restraint

Question 4

Rights and Obligations of Co-Tenants

Answer 4

1. Possession: each cotenant has the right to possess the entire property
   * ouster: cotenant who is being denied access can bring a court action to regain access to the property
   * adverse possession: if one cotenant ousted the other, he can make a claim for adverse possession if he meets the requirements
2. Rent
   * cotenant does not owe rent for his use of the property (don’t have to give proceeds from business run on the property)
   * cotenant must share rents received from 3rd party
3. Operating Expenses (taxes, mortgage payments)
   * cotenant can generally collect expenses if he paid more than his share UNLESS he is the only one in physical possession of the property, and the value of his use is equal to or outweighs the overpayment
4. Repairs and Improvements
   * repairs: cotenant does NOT have right to be reimbursed for repairs, even if necessary. However, the majority rules is that contribution for necessary repairs can be compelled in accounting or partition actions. (can be deducted from rent before distribution to cotenants)
   * improvements: no right to reimbursement, exception in actions for accounting partition

Question 5

Tenancy for years

Answer 5

• definition: measured by a fixed and ascertainable amount of time.
• Creation: express agreement
• termination: At the end of the term, termination occurs automatically and no notice is required unless otherwise specified.

Question 6

Periodic Tenancy

Answer 6

• definition: estate that is repetitive and ongoing by set periods that automatically renew
• creation: parties must intend to create a periodic tenancy (express or implied by periodic payments)
• termination: renews automatically until proper notice given (traditional 6 months for year to year not generally months notice, most jurisdictions require written notice)

Question 7

Tenancy at Will

Answer 7

• definition: may be termianted by either landlord or tenant at any time for any reason
• creation: express or implied
• termination: can be termianted by either party without notice (if agreement only gives the landlord the right to terminate at will, the tenant also gets the right to terminate by implication but not vice versa)

Question 8

Tenancy at Sufferance

Answer 8

• definition: created when a tenant holds over after the lease has ended
• created: NOT by agreement, but by unilateral actions of the tenant
• termination: tenant volunarily leaves, landlord evicts, landlord rerents to the tenant

Question 9

Tenant’s duties

Answer 9

• pay rent - landlord can sue for damages and eviction, landlord has duty to mitigate by trying to re-rent
• avoid waste - cannot damage the property
• make reasonable repairs

Question 10

landlord’s duties

Answer 10

• duty to repair - landlord must repair damages under residential leases, unless the tenant caused the damages
• implied warranty of habitability
• covenant of quiet enjoyment

Question 11

Implied warranty of habilitability

Answer 11

• only applies to **residential leases **
• landlord must maintain the property so that it is **reasonably suited for residence **
• failing to comply with housing codes is breach, especially violations related to health or safety
• tenant must give notice and **reasonable opportunity to repair **
• If landlord fails to make repairs, tenant may: (i) stay in property and deduct rent until repair occurs, (ii) stay in property, pay for repairs, and deduct the cost from the rent, or (iii) terminate the lease and move out

Question 12

Covenant of Quiet Enjoyment

Answer 12

• applies to residential and commercial leases
• landlord cannot disrupt the tenant’s possession or enjoyment of the property
• constructive eviction: (i) landlord substantially interferes with the tenant’s use and enjoyment of the land, (ii) tenant gives notice of the problem and reasonable time for the landlord to repair, but landlord does not repair, (iii) tenant vacates the premises in a reasonable amount of time

Question 13

Assignment

Answer 13

• transfer of the tenant’s remaining lease to a new party
• assignments allowed unless prohibited by the lease
• if tenant violates a prohibition on assignment, the landlord can terminate the lease
• but if landlord accepts payment from new tenant, he waives the right to enforce the prohibition clause
• consent: some clauses allow assignment or sublease only with landlord’s consent –> landlord can only withhold consent on a commercially reasonable ground

Question 14

Sublease

Answer 14

• sublease: transfer of a portion of the tenant’s lease (less than the remainder of the lease)
• if the lease prohibits only assignment, the tenant may still sublease

Question 15

Adverse Possession

Answer 15

• open and notorious
• hostile
• continuous for statutory period
• exclusive

Question 16

What is required for a valid deed?

Answer 16

• A valid deed must identify the property and the parties, must be signed, and must include words of transfer.
• intent to transfer a valid deed
  1. transfer to grantee –> assumed
  2. transfer to independent third party –> no transfer until the grantor no longer has the right to take the deed back
  3. present intent to transfer

Question 17

What are the three types of notice?

Answer 17

• Actual notice
• inquiry notice - reasonable investigation would have disclosed prior claims
• constructive notice - grantees are on notice of anything recorded in the chain of title

Question 18

Who do recording acts protect?

Answer 18

subsequent purchasers (NOT grantees who acquired the title by gift, intestacy, or devise)

Question 19

Shelter Rule

Answer 19

A person who takes from a bona fide purchaser protected by the reocrding act has the same rights as her grantor (even if they had notice, or acquired the title by gift, or didn’t record etc.)

Question 20

Estoppel by Deed

Answer 20

If a grantor conveys land the grantor does not own and the grantor subsequently acquires the land, the grantor is estopped from trying to repossess on grounds that he didn’t have title when he made original conveyance.

Question 21

Easements - definition, types of estates, classifications, types

Answer 21

• easement: the right to use land
• dominant estate (benefits), servient estate (burdened)
• appurtenant - attached to the land
• in gross - specifi to the person
• types of easement: express easement, easement by necessity, easement by implication
• termination: easement is terminated if the purchaser of the burdened land is a bona fide purchaser (aka had no notice of the easement)

Question 22

express easement

Answer 22

• subject to Statute of Frauds –> must be in writing

Question 23

easement by necessity

Answer 23

• common ownership: dominant and servient estates were owned in common by one person
• necessity at severance: when the estates were severed into two separate estates, one of the properties became **virtually useless **without an easement
• ends when no longer necessity

Question 24

easement by implication (prior use)

Answer 24

• prior** common ownership**
• use like easement before severance
• after severance prior use continued **continuously and apparant **
• use must be reasonably necessary to the dominant estate’s use and enjoyment

Question 25

implied easement by prescription

Answer 25

• adverse possession, but for use rather than possession
• open and notorious, hostile, continuous (but NOT exclusive)

Question 26

easement by estoppel

Answer 26

• permissive use + reliance (reasonable and good faith) + permission withdrawn
• If reliance detrimental –> estopped from withdrawing permission

Question 27

covenant

Answer 27

• covenant: promise to do or not to do something in relation to the land
• requirements to run with the land
  1. writing
  2. intent to run w land
  3. touch and concern

required for burden only
4. notice
5. horizontal privity (OG parties shared some interest such as grantor/grantee)
6. vertical privity (original and successor - must transfer entire interest)

remedy: monetary damages

Question 28

Equitable servitude

Answer 28

• promise to do or not to do something in relation to the land
• requirements
  1. writing
  2. intent to run w land
  3. touch and concern land

required for burdened estate only
4. notice

NO privity required!!

remedy: injunction

Question 29

mortgage - definition and what happens at default

Answer 29

• mortgage: document that conveys a property interest in real property as security for an obligation.
• If homeowner defaults, the house could be sold at public auction

Question 30

Deed of Trust

Answer 30

• Deed of trust: a writing grants an interest in property as security for an obligation, but the deed goes to a third party as trustee
• If homeowner default, the deed of trust can be privately sold

Question 31

Foreclosure

Answer 31

• when the borrower fails to repay the loan, the lender can foreclose upon the property
• priority of interests

first mortgage gets priority
exception: purchase money mortgages take priority over non-purchase money mortgages
recording acts apply