Property I Flashcards

Question

Mortgages and leases (tenancy by entirety)

Answer 1

i. Lease 1. Requires consent of both parties ii. Mortgage 1. Tenant cannot mortgage individual share 2. Creditors of one spouse cannot place lies on tenancy by entirety property unless debt is shared

Answer 2

a. Partition in kind i. Divides up land into shares for each tenant in common b. Partition by sale i. Divides up proceeds from sale among tenants in common c. Rule i. Presume partition in kind ii. Court will order a partition by sale if: 1. Property cannot be conveniently partitioned in kind and 2. It is in best interests of the parties a. “Best interest” i. Majority rule 1. Best interest maximizes economic value ii. Minority rule 1. Best interest takes into account multi-factor approach not limited to economic factors (Ark Land Co.) a. Consider both in essay b. Use majority in multiple choice

Answer 3

a. Ouster i. Cotenant in possession ii. Refusal or attempted refusal to use entire property iii. Often raises adverse possession issue 1. When A ousts B, A is in adverse possession of property

Answer 4

When a cotenant seeks to obtain their share of rents or profits generated by the property

Answer 5

When a cotenant seeks reimbursement for expenses they paid for the operation or maintenance of the property

Answer 6

a. Majority i. No duty to pay rent to other cotenant(s) ii. Unless cotenant was ousted b. Minority i. No duty to pay rent to other cotenant(s) ii. Unless cotenant was ousted iii. Non-ousted cotenant entitled to credit for rental value of exclusive occupancy (Esteves)

Answer 7

a. In possession i. Non-leasing cotenant(s) in possession are not entitled to share in rent paid by third parties b. Out of possession i. Non-leasing cotenant(s) out of possession are entitled to share in rents paid by third parties

Answer 8

a. Cotenant(s) entitled to proportionate share of all profits derived from the land

Answer 9

a. Duty to pay proportionate share of expenses (Esteves)

Answer 10

a. No duty to contribute to costs of improvements

Answer 11

i. Duration 1. Fixed period of time ii. Creation 1. Express iii. Termination 1. Ends when agreed period ends iv. Notice 1. No notice required (automatically ends at end of term) v. Statute of frauds 1. Applies to length of initial period 2. More than a year needs to be in writing

Answer 12

i. Duration 1. Initial fixed period 2. Automatically continues ii. Creation 1. Express 2. Implied iii. Termination 1. Either party may terminate iv. Notice 1. Advance notice of termination a. Initial period i. One year or more b. Notice period i. 6 months c. Initial period i. Less than a year d. Notice period i. Equal to length of period v. Statute of frauds 1. Applies to length of initial period 2. More than a year needs to be in writing

Answer 13

i. Duration 1. No fixed duration 2. Continues so long as both parties agree ii. Creation 1. Express or implied a. Implied i. When tenancy doesn’t fit other categories ii. When person informally letting them be there iii. When lease is subject to but fails statute of frauds iv. When tenant is on property before lease fully negotiated iii. Termination 1. Either party may terminate iv. Notice 1. Notice required 2. Reasonable time to leave premises

Answer 14

i. Duration 1. Until eviction or renewal ii. Creation 1. After lease term ends 2. Holdover tenant wrongfully stays in possession iii. Termination 1. Landlord can: a. Evict tenant b. Renew tenancy i. Same duration as original iv. Notice 1. No notice require

Answer 15

i. Landlord has no duty to make premises safe unless: 1. Concealed latent defects 2. Common area defects 3. Negligent repairs 4. Breach of agreement to repair 5. Defects in premises leased for public use

Answer 16

i. Landlord is obligated to deliver the legal right of possession to the tenant when the lease term begins 1. Majority a. Landlord must deliver actual possession of the premises to tenant when least term begins, in addition to legal right to possession 2. Minority a. Landlord only obligated to deliver the legal right to possession to tenant when the lase term begins, unless lease provides otherwise

Answer 17

i. Landlord will not wrongfully interfere with tenant’s possession of the property 1. Breached through: a. Constructive eviction i. Wrongful conduct 1. Acts (e.g., blocking access, nuisance, harassing tenant’s customers, etc.) or 2. Omissions (e.g., landlord breaches statutory duty, fails to repair under lease or CL exceptions, allows nuisance) ii. By the landlord 1. Exception a. By third party if landlord has control over third-party conduct iii. That substantially interferes with the tenant’s beneficial use and enjoyment of the leased property 2. Applies to: a. Residential leases b. Commercial leases 3. Procedure a. Notify the landlord about the problem b. Provide landlord with reasonable time to fix the problem c. Vacate the premises if the problem is not fixed (Paolucci)

Answer 18

i. Requires: 1. Landlord to maintain “bare living requirements” and that ensure that premises are fit for human occupation a. Landlord is not required to maintain “perfect conditions at all time” b. Landlord must have reasonable time to fix defects 2. Substantial compliance with building and housing codes provides evidence of habitable premises (Jobe) 3. But showing a code violation is not requires to show breach by landlord ii. Applies to: 1. Residential leases iii. Procedure 1. Notify the landlord about the problem 2. Provide landlord with reasonable time to fix the problem 3. Tenant is not required to vacate the premises

Answer 19

1. Remedies available to tenant a. Four options: i. Move out and sue for damages ii. Repair and deduct the cost of repairs iii. Remained and withhold rent (forces landlord to fix problem) iv. Remain and continue paying rent (later sue for damages) 2. Damages available to tenant a. Fair rental value as warranted minus the fair rental value unrepaired b. Rent (according to lease) minus the fair rental value unrepaired c. “Percentage diminution” based on degree of reduction of tenant’s use and enjoyment of premises reduced by uninhabitable conditions and time

Answer 20

i. Generally 1. Tenant entitled to transfer interest to third parties 2. Unless lease requires landlord’s consent ii. Consent 1. If consent required, either: a. Landlord has sole discretion (majority) b. Landlord may refuse consent for a commercially reasonable objection (minority) c. No standard specified i. Consider 1. Both majority and minority

Answer 21

1. Tenant transfers entire interest to third party a. Lessee and lessor i. Privity of contract b. Lessee and assignor i. Privity of contract c. Lessor and assignee i. Privity of estate

Answer 22

1. Tenant transfers part of interest in lease premises to a third party a. Lessee and lessor i. Privity of contract ii. Privity of estate b. Lessee and sublessee i. Privity of contract ii. Privity of estate c. Lessor and sublessee i. Neither

Answer 23

1. Transfer of land via purchase, inheritance, or reasonable connection (deed or will)

Answer 24

1. Successive statutory periods can be tacked 2. Requires privity

Answer 25

1. Mistaken possession

Answer 26

1. Knowing trespass

Answer 27

1. State of mind is irrelevant

Answer 28

i. Must intent to make: 1. Irrevocable 2. Present transfer 3. Of ownership

Answer 29

(1) “[T]here must be a delivery of the gift, either by a physical delivery of the subject of the gift or a constructive or symbolic delivery such as by an instrument of gift, sufficient to divest the donor of dominion and control over the property.” (2) What is sufficient to constitute delivery “must be tailored to suit the circumstances of the case.”

Answer 30

i. Acceptance is presumed if value added for donee

Answer 31

i. Subject to three-part test: 1. Duration a. Shorter duration more reasonable 2. Scope a. Measured by impact on marketability 3. Purpose a. Charitable purpose more reasonable c. Striking and reclassifying interests i. If a conveyance contains an unreasonable restraint on alienation: 1. Strike invalid restraint 2. Reclassify present and future interests

Answer 32

1. When transferor gives less than he has

Answer 33

1. Follows FSD

Answer 34

1. Follows FSSCS

Answer 35

i. Ascertainable person ii. No condition precedent

Answer 36

i. Ascertainable person ii. No condition precedent iii. Condition subsequent

Answer 37

i. Ascertainable person ii. No condition precedent iii. Class could grown

Answer 38

a. Either i. No ascertainable person ii. Condition precedent

Answer 39

a. From transferor

Answer 40

a. From transferee

Answer 41

i. No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest

Answer 42

i. Identify present and future interests ii. Does RAP apply? 1. RAP applies to: a. Contingent remainder b. Executory interest c. Vested remainder subject to open iii. List lives in being iv. “Give birth” to afterborn children v. “Kill” all lives in being and establish RAP line (+21 years) vi. Possibility that interest will vest beyond RAP line? 1. If possible, then strike interest and reclassify 2. If not possible, then interest is valid

Answer 43

i. Fertile octogenarian ii. Unborn widow iii. Slothful executor

Answer 44

i. If joint tenant mortgages their interest and dies before paying back the loan, mortgage disappears

Answer 45

i. Divides up land into shares for each tenant in common

Answer 46

i. Divides up proceeds from sale among tenants in common

Answer 47

i. When tenancy doesn’t fit other categories ii. When person informally letting them be there iii. When lease is subject to but fails statute of frauds iv. When tenant is on property before lease fully negotiated

Answer 48

i. Wrongful conduct 1. Acts (e.g., blocking access, nuisance, harassing tenant’s customers, etc.) or 2. Omissions (e.g., landlord breaches statutory duty, fails to repair under lease or CL exceptions, allows nuisance) ii. By the landlord 1. Exception a. By third party if landlord has control over third-party conduct iii. That substantially interferes with the tenant’s beneficial use and enjoyment of the leased property

Answer 49

a. Notify the landlord about the problem b. Provide landlord with reasonable time to fix the problem c. Vacate the premises if the problem is not fixed (Paolucci)

Answer 50

1. Notify the landlord about the problem 2. Provide landlord with reasonable time to fix the problem 3. Tenant is not required to vacate the premises

Answer 51

ii. Consent 1. If consent required, either: a. Landlord has sole discretion (majority) b. Landlord may refuse consent for a commercially reasonable objection (minority) c. No standard specified i. Consider 1. Both majority and minority

Answer 52

Property is the legally recognized relationship between people with regard to things

Answer 53

What is legally recognized as “property” is (1) a human invention and (2) exists only in so far as the government recognize a thing as property

Answer 54

* Right to transfer (alienability) * Right to exclude * Right to use * Right to destroy

Answer 55

Adverse possession is a doctrine under which a person in possession of land that is owned by someone else may acquire title to the land if certain requirements are met. If the requirements of adverse possession is satisfied, the former owner loses title and the adverse possessor gains title.

Answer 56

Two issues: 1. Continuous possession; summer occupancy 2. Statutory period; tacking

Answer 57

(1) Uninterrupted pursuit (2) Mortal wound

Answer 58

(1) Pursuit (2) Power and control that shows no intent to abandon (3) Not required: Absolute security against the possibility of escape

Answer 59

(1) Kill whale with bomb-lance (2) Capture (3) Rule based on custom of whalers in Provincetown, Massachusetts

Answer 60

Father transferred “some value” of painting in the letter to his son in form of remainder (via letters).

Answer 61

Transfer or sale

Answer 62

Intestate succession

Answer 63

Words that identify who is purchasing (or receiving) the property (e.g., “to A”)

Answer 64

Words that identify the kind of property interest given (e.g., “and her heirs” = fee simple absolute)

Answer 65

(1) The union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property; the legal link between a person who owns property and the property itself. (2) Legal evidence of a person's ownership rights in property; an instrument (such as a deed) that constitutes such evidence.

Answer 66

The ownership history of a piece of land, from its first owner to the present one.

Answer 67

A title that a reasonable buyer would accept because it appears to lack any defect and to cover the entire property that the seller has purported to sell--aka "good title.” If marketable title no good, buyer does not have to go through with the sale.

Answer 68

1. Alienable 2. Devisable 3. Descendible Ambiguity is resolved in favor of a fee simple

Answer 69

1. Alienable 2. Devisable 3. Descendible Not subject to waste

Answer 70

1. Alienable 2. Devisable 3. Descendible When ambiguity exists, preferred over a FSD; not subject to waste

Answer 71

Alienable Devisable Descendible Future interest in a third party follows the estate; not subject to waste

Answer 72

1. Alienable 2. Not devisable 3. Not descendible Subject to waste; when conveyed to another becomes LE pur autre vie

Answer 73

When life estate is conveyed to another ("for the life of another")

Answer 74

1. Alienable 2. Devisable 3. Descendible Subject to waste

Answer 75

Demolition of the barn would increase the value of the land.

Answer 76

A defeasible estate is present possessory estate that may end upon the occurrence of some future event.

Answer 77

A restraint on alienation is a limitation on the transfer or sale of property right

Answer 78

A future interest is a present, nonpossessory property right that may become possessory in the future.

Answer 79

A remainder is a future interest in transferee that both: (1) is capable of becoming possessory immediately upon the expiration of the prior estate; and (2) does not divest (cut short) any interest in a prior transferee [“it waits patiently”].

Answer 80

An executory interest is a future interest that either: (1) is incapable of becoming possessory immediately upon the expiration of the preceding estate; or (2) it divests (cuts short) the preceding estate upon the occurrence or nonoccurrence of a condition [“it is pushy”].

Answer 81

Must be met before remainder possessory

Answer 82

If it occurs, will bring something to an end

Answer 83

Person who is alive and identifiable at time of transfer

Answer 84

1. Is the future interest a remainder? a. Remainder: (1) Capable of becoming possessory immediately upon the expiration of the prior estate AND (2) it does not divest (cut short) any interest in a prior transferee [“it waits patiently”] b. If not a remainder, then it is an executory interest (see definition) 2. If it is a remainder, is it a vested remainder or contingent remainder? a. Vested: (1) Given to at least one ascertainable person AND (2) not subject to a condition precedent b. If not vested, then it is a contingent remainder (see definition) 3. If it is a vested remainder, what type is it? a. Vested remainder subject to divestment: is subject to a condition subsequent (can be divested by later event) b. Vested remainder subject to open: is given to one or more members of a class that could grow c. Or is an indefeasibly vested remainder (neither of the above)

Answer 85

Even if O is 80 years old, the law presumes O is still capable of having children.

Answer 86

Considers a spouse who is not yet born at the time of the conveyance.

Answer 87

Considers the possibility that probate might take more than 21 years.

Answer 88

Concurrent ownership is when two or more people own real property at the same time. Each co-owner or cotenant has the right to use the entire property.

Answer 89

Phrasing “jointly and severally” was insufficient to establish a joint tenancy. To create a joint tenancy with right of survivorship, the grant must contain explicitly language indicating so.

Answer 90

Severance ends or “severs” a joint tenancy without the consent of the other cotenants.

Answer 91

Cotenant may lease interest without informing other tenants or breaking joint tenancy as long as four unities are not violated.

Answer 92

In an action for partition by sale, the court considered the length of time the Caudill family owned the property, as well as the family’s emotional connection to the land. It held that the economic benefit of the sale did not outweigh these additional costs.

Answer 93

The court held that credit for the reasonable value of the occupancy enjoyed by the parents over the approximately eighteen years while they, and not their son, occupied the property offset defendant’s obligation to contribute one-half of the $61,892 expended by his parents respecting the house they all owned.

Answer 94

* Type of lease * Statute of frauds

Answer 95

* Majority “English rule” * Minority “American rule”

Answer 96

* Landlord’s liability for personal tenancy * IWQE breached by: (1) actual (and partial) eviction and (2) constructive eviction * Implied warranty of habitability

Answer 97

(1) Term of years (2) Periodic tenancy (3) Tenancy at will

Answer 98

L knew about rotten roof beam, causing roof to collapse and T’s injury

Answer 99

L neglected to repair a broken railing, causing T to fall off the stairs

Answer 100

L carelessly repaired T’s leaky roof, causing T to slip on slippery floor

Answer 101

L promised to fix a kitchen door, but doesn’t, and it falls off the hinges, injuring T

Answer 102

L leased building for public theater, fails to inspect roof, causing a patron to slip

Answer 103

The tenant bears the burden of proving that he did abandon the premises within a reasonable time after the untenantable condition occurred. If the tenant fails to vacate within a reasonable time, the tenant is considered to have waived the landlord’s breach of covenant. The court held that the defendant waived claim to constructive eviction because failed to vacate premises in reasonable time.

Answer 104

Premises was in violation of city codes; substantial hazard to health and safety of occupants (raw sewage and stagnant water). Landlord received reasonable notice but only provided temporary solutions.

Answer 105

Color of title is when the claimant has a claim to land based on a defective document that purports to transfer title, like a deed or will. In these cases, the claimant is deemed to have “constructive possession” of the entire parcel of the land described in the faulty instrument, even if they only actually possessed part of it.