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1L > Property II > Flashcards

Property II Flashcards

1
Q

concurrent ownership

A

each cotenant has the right to use and possess the entire property

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2
Q

3 types of concurrent ownership

A
  1. tenancy in common
  2. joint tenancy
  3. tenancy by the entirety
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3
Q

How is a tenancy in common conveyed? (language)

A

“to A and B”

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4
Q

What is the default type of concurrent ownership?

A

tenancy in common

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5
Q

Tenancy in Common (what does each tenant have)

A

each tenant has an undivided, fractional interest; can use entire parcel, but divide proceeds according to proportionate shares; freely alienable, devisable, and descendible

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6
Q

How is a joint tenancy conveyed?

A

“to A and B as joint tenants with right of survivorship”

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7
Q

Defining factors of joint tenancy (2)

A

right of survivorship and 4 unities of time must be present

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8
Q

4 Unities

A

time, title, interest, possession

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9
Q

What is created if one (or more) of the unities isn’t present?

A

tenancy in common

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10
Q

What type of concurrent ownership is the historical default?

A

joint tenancy

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11
Q

How can a husband/wife create a joint tenancy with his/her spouse?

A

Through a straw man; cannot convey “to myself and my wife as joint tenants with RoS” because time and title were missing

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12
Q

Joint Tenancy

A

not devisable or descendible; can be severed unilaterally when one party transfers her interest; can alienate during lifetime

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13
Q

Why are joint tenancy’s disfavored?

A

because of unilateral severance

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14
Q

How is a tenancy by the entirety created?

A

“to A and B as tenants by the entirety”

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15
Q

Tenancy by the Entirety

A

only for married couples; way to protect assets that’s not a will; undivided right to use and posses, right of survivorship

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16
Q

Difference between tenancy by the entirety and a joint tenancy

A

one spouse cannot unilaterally destroy the other’s right of survivorship

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17
Q

Sawada

A

neither spouse has a separate divisible interest in the property that can be conveyed to third parties or reached by creditors

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18
Q

James v. Taylor

A

if an instrument of conveyance does not show an intent to create a right of survivorship, the instrument cannot create a joint tenancy

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19
Q

Tenhet v. Boswell

A

a lease does not sever joint tenancy but expires upon the death of the lessor

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20
Q

Title Theory

A

mortgage destroys unity of time and title, severs joint tenancy

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21
Q

Lien Theory

A

mortgage does not destroy unities, does not sever joint tenancy (split as to whether mortgage survives death of joint tenant)

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22
Q

Partition

A

any tenant in common or joint tenant has the right to sue for partition (ends the cotenancy and assets are distributed); can have agreements not to partition if reasonable in duration and purpose (traditionally could not)

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23
Q

Partition by Sale

A

more common and more efficient, sell the property and divide the proceeds

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24
Q

Factors a party wanting a Partition by Sale must demonstrate

A

property cannot be conveniently partitioned in kind
the interests of one or more of the parties will be promoted by the sale
the interests of the other parties will not be prejudiced by the sale

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25
Q

Partition by Kind

A

preferred in theory, each keeps proportional share of the land

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26
Q

Esteves v. Esteves

A

a cotenant in possession does not owe any rent to a cotenant out of possession, absent an ouster

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27
Q

Ouster

A

one cotenant in possession refuses to allow another cotenant to occupy the property; becomes an adverse possessor; one who ousts the other is liable to the other for rent

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28
Q

Cotenants Rights: sharing rents and profits

A

each cotenant is entitled to proportionate share

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29
Q

Cotenants Rights: sharing costs

A

no reimbursement required on expenses for improvements and repairs, but can receive credit

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30
Q

Implied Warranty of Habitability

A

requires rental premises be offered and maintained in a physical condition that provides safe, habitable housing for tenants; only applies to residential leases

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31
Q

3 Elements of a WoH Claim

A

defect must be substantial
landlord must have notice of defective condition
landlord must have been given a reasonable time to repair the defect and not done so

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32
Q

Marital Property

A

at common law, a woman lost all property rights upon marriage and every conveyance to a married couple was a tenancy by the entirety

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33
Q

Dower Rights

A

surviving spouse gets a life estate in 1/3 of all the freehold land which was owned by the decedent spouse and inheritable by his issue; cannot be destroyed even upon conveyance to a third party

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34
Q

Separate Property System

A

during marriage: property is separately owned by the spouse who acquires it; creditors cannot attach to spouse’s property

divorce: equitable distribution
death: forced/elective share

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35
Q

Community Property System

A

During: owned by both spouses equally; equal, undivided shares; gifts, inheritance, prior owned property all remains separate
Divorce: community property is divided, equal share or equitable distribution factors
Death: devise half, however, the other half belongs to surviving spouse

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36
Q

Traditional Landlord Rights

A

set rent, gain possession at the end of the term, choose tenants, right of the parties to decide on the extent of landlord services

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37
Q

Immutable Rules

A

supersede any contrary provisions in the lease, usually to protect vulnerable RESIDENTIAL tenants

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38
Q

Default Rules

A

fills in gaps parties did not address in the lease; can ignore default rules, but cannot evade immutable rules

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39
Q

Choosing the Tenant

A

Landlord is free to choose whatever tenant, but may not discriminate based on race, gender, or national origin, but may not advertise in a discriminatory way

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40
Q

FHC v. Roommate.com

A

the anti-discrimination provisions of the FHA do not apply to roommate selection because of the nature of the roommate relationship

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41
Q

Neithamer v. Brenneman Property Services

A

Once a plaintiff makes a prima facie showing of discrimination under the FHA, the defendant may provide a nondiscriminatory reason for rejecting the application, but the plaintiff may rebut this by establishing the defendant’s reason is merely pretext.

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42
Q

Proving Discriminatory Intent

A
  1. the plaintiff establishes a prima facie case of discrimination
  2. the burden then shifts to the defendants to prove a legitimate, non-discriminatory reason for his conduct
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43
Q

4 Nonfreehold Estates

A
  1. Term of Years (fixed duration)
  2. Periodic Tenancy (automatically renewed)
  3. Tenancy at Will (no fixed ending)
  4. Tenancy at sufferance (wrongful occupation)
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44
Q

Leases and SoF

A

lease of real property for longer than 1 year cannot be enforced unless it is in writing

45
Q

Standard Form Leases

A

tenants are not allowed to negotiate terms

46
Q

Rent Control

A

ordinance limits the amount of rent a landlord can charge

47
Q

Keydata Corp. .v U.S.

A

a lessor is obligated to provide the lessee with actual possession of the leased premises at the beginning of the term; incoming tenant may sue holdover tenant but not landlord (split as to whether landlord must deliver physical possession)

48
Q

American Rule (delivering of possession)

A

lessor only promises that possession of the premises will not be withheld by the lessor or someone with superior title

49
Q

English Rule (delivering possession)

A

lessor covenants to deliver actual possession of the premises to the lessee

50
Q

Transferring the Tenant’s Interest

A

CL: leasehold interest is freely alienable; contractual restrictions permitted
Majority Rule: where a lease contains an approval clause, the lessor may arbitrarily refuse
Minority Rule: must have commercially reasonable objection

51
Q

Novation

A

landlord expressly releases the tenant from future liability

52
Q

Ernst v. Conditt

A

one who takes assignment of a leasehold interest is responsible to the lessor under the terms of the lease

53
Q

Berg v. Wiley

A

when a lessor feels that the tenant in possession is violating the terms of the lease, the lessor must exercise judicial remedies to retake the property

54
Q

Sole Discretion Clause

A

landlord may refuse consent for any reason in his sole discretion

55
Q

Reasonableness Clause

A

refuse consent only on a commercially reasonable basis

56
Q

Silent Consent Clause

A

no standard in lease; might require landlord’s consent, but contain no standard to guide his decision

57
Q

Kendall v. Ernest Pestana

A

A commercial lessor may not unreasonably withhold his consent to an assignment of a lease, with or without a clause requiring landlord’s consent to transfer the lease (minority rule, but is growing)

58
Q

Factors used to determine reasonableness of landlord withholding consent

A
  1. suitability of property for the use
  2. legality of proposed us
  3. need for alteration of premises
  4. nature of occupancy
  5. the financials of the new lease
59
Q

Summer v. Kridel

A

a landlord has a duty to mitigate damages when he seeks to recover rent due from a defaulting tenant

60
Q

3 Ways to End the Tenancy

A
  1. surrender
  2. abandonment
  3. eviction
61
Q

surrender

A

mutual agreement to terminate the lease early

62
Q

abandonment

A

tenant vacates premises and stops paying rent before the lease is up

63
Q

abandonment options

A

sue for all rent, terminate the lease, mitigate damages and then sue for ren

64
Q

eviction

A

if tenant stops paying rent but remains on the premises, the landlord may retake possesson

65
Q

constructive eviction

A

when the landlord so substantially interferes with the tenant’s access, use and enjoyment, or causes or allows conditions that are tantamount to an actual eviction

66
Q

Must a tenant vacate the premises for constructive eviction?

A

yes

67
Q

Remedies for eviction

A

terminate lease and stop paying rent

68
Q

Necessary Elements for Constructive Eviction

A

intentional (actual or inferred) acts or failures to act by the landlord (who has notice or knowledge of the problem) that breach of a duty owed to the tenant
wrongful conduct: act or omission
that substantially interferes with the tenant’s enjoyment of the premises or render the premises unfit for the purpose for which it was leased
the tenant vacates the premises within a reasonable time after the landlord’s action

69
Q

JMB Properties v. Paolucci

A

Because Paolucci entered into a new lease and remained on the premises, he failed to surrender the premises within aa reasonable time after the alleged constructive eviction, and thus waived his claim to constructive eviction

70
Q

Elk Creek Management v. Gilbert

A

a landlord unlawfully retaliates against a tenant if the landlord terminates a lease because of the tenant’s good faith complaint

71
Q

In Re Clark

A

Tenants can receive damages for egregious living conditions

72
Q

Implied Warranty of Habitability

A

“do whatever is necessary to put and keep the premises in a fit and habitable condition” and imposes specific duties as well, such as providing running water (including hot water); adequate heating, lighting, and plumbing; trash facilities; and safe and clean common areas; The Revised Uniform Residential Landlord and Tenant Act (2015) extends this list to include: effective waterproofing; control of rodents, bedbugs, and vermin; prevention of exposure to hazardous substances such as lead paint, mold, and radon gas; floors, doors, stairways, etc. in good repair; locks and other security devices in good repair; and provision of safety equipment required by law.

73
Q

Can the IWoH be waived?

A

no

74
Q

Is there a requirement for the tenant to vacate the premises for a IWoH claim?

A

no requirement to abandon or vacate

75
Q

Law of Waste

A

tenant’ implied duty to make repairs

76
Q

Caveat Emptor

A

a tenant has a duty to inspect the premises to determine safety and suitability before entering a lease

77
Q

Remedies for IWoH

A

withhold rent, repair and deduct, sue for damages, terminate the lease

78
Q

Percentage Diminution Approach (IWoH)

A

tenant’s recovery reflects the percentage by which the tenant’s use and enjoyment has been reduced by the uninhabitable conditions

79
Q

IWoH Majority Rule

A

only applies to residential leases

80
Q

Wade v. Jobe

A

if a landlord breaches the IWoH, the tenant is entitled to a percentage reduction of the rent for the period of the breach

81
Q

Implied Covenant of Quiet Enjoyment

A

a promise by the landlord that she would not wrongfully interfere with the tenant’s possession

82
Q

Fidelity Mutual v. Kaminsky

A

landlord is not responsible for the actions of third parties only when the landlord does not permit the third party to act

83
Q

Landlord Responsibility for Actions of Third Party

A

a landlord is not responsible for the actions of third parties ONLY when the landlord does not permit the third party to act

84
Q

Is an oral agreement for the sale of an interest in real property enforceable?

A

no

85
Q

Purchase Contract

A

the parties negotiate and sign a written purchase contract, and prepare to consummate the transaction

86
Q

When is a deed effective?

A

a deed is only affective when it is delivered AND accepted

87
Q

Rosengrant v. Rosengrant

A

did the grantor demonstrate his intent that the grantee receive an immediate interest in the property?

88
Q

Restatements Approach to Delivery of a Deed

A

delivery is accomplished when the donor manifests that the document is to be legally operative while the donor is alive

89
Q

4 Most Common Issues that arise during closing

A
  1. Statute of Frauds
  2. Marketable Title
  3. Duty to Disclose
  4. Equitable Conversion
90
Q

Statue of Frauds

A

Contract must meet these requirements

  • essential terms (identity of the parties, price, and property description)
  • writing (formal contract or informal memo)
  • signature (must be signed by the parties sought to be bound
91
Q

Does failure to comply with SoF make the contract void?

A

No, it simply prevents the contract from being enforced

92
Q

Doctrine of Part Performance

A

an oral contract for the sale of real property may be enforced if the buyer

  1. takes possession
  2. pays at lease party of the purchase price
  3. makes improvements to the property
93
Q

Equitable Estoppel/Hickey v. Green

A

an oral contract may be enforced if

  1. one party acts to his detriment in reasonable reliance on another’s oral promise, or
  2. serious injury would result if enforcement is refused (some courts require a high degree of hardship)
94
Q

Marketable Title

A

in every contract for the sale of real property, the seller expressly or impliedly promises that she will deliver marketable/merchantable title (unless the contract specifies otherwise)
Marketable title is the default standard

95
Q

When is title considered to be marketable?

A

if a reasonable, prudent purchaser would pay fair market value for the property

96
Q

Title is unmarketable if:

A
  • the seller’s interest is less than the one she purports to sell
  • the seller’s title is subject to an encumbrance (almost any private encumbrance causes title to be unmarketable, but not public ones)
  • there is reasonable doubt about 1 or 2
97
Q

Does existence of zoning ordinances or other public encumbrances render title unmarketable?

A

NO; however, if there were a violation of a public encumbrance title would be unmarketable

98
Q

Insurable Title

A

title insurance company would be willing to insure the property at normal rates

99
Q

Record Title

A

title that appears in the public land records; can have record title that is invalid

100
Q

Lohmeyer v. Bower

A

purchaser may choose to cancel the sale if the title to the land is unmarketable

101
Q

When is seller required to produce marketable title?

A

seller is not required to produce a marketable title until the closing, and once the buyer accepts the deed at closing, she can no longer sue to enforce the seller’s promise to deliver marketable title

102
Q

Duty to Disclose–Caveat Emptor (CL)

A

“buyer beware” the seller of real property had no duty to disclose defects to the buyers; buyer had complete responsibility to assess the condition of the premises

103
Q

Caveat Venditor

A

let the seller beware; opposite of caveat emptor

104
Q

When does the seller have a duty to disclose?

A

in most jurisdictions, the seller of residential property is obligated to disclose defects he knows about that

  1. materially affect the value of the property, and
  2. are not known to or readily discoverable by a buyer
105
Q

Is actual knowledge of the defect required?

A

actual knowledge of the defect is generally required, whether the seller or realtor should have known about it is inconsequential

106
Q

Stambovsky v. Ackley

A

prospective buyer has no duty to disclose facts which materially affect the value of the property

107
Q

Implied Warranty of Quality/Strawn v. Canuso

A

developer of newly-constructed residential property impliedly warrants that the property is fit for its intended use

108
Q

Strawn v. Canuso

A

seller may be liable even if he has no actual knowledge of defects in the house he sells

109
Q

Equitable Conversion

A

Once the parties execute an enforceable contract for the sale and purchase of property, the buyer is regarded as the equitable owner of the property, and the seller acquires the equitable right to be paid the purchase price

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