Property MBE

Question 1

Waste

Answer 1

1) Voluntary or affirmative waste- overt conduct that causes a drop in value
2) Permissive waste- land falls into disprepair
3) Ameliorative waste- Acts that enhance property’s value

Question 2

Life tenant can consume resources if one of 4 exceptions apply

Answer 2

1) Prior use - land was previously used for exploitation
2) Repairs- may consume natural resources for repairs and maintenance
3) Granted the right
4) Exploitation- the land is only suitable for exploitation

Question 3

Life tenant’s obligation to repair and pay for the land

Answer 3

Must simply maintain the premises in reasonably good repair. Life tenant must pay ordinary taxes

Question 4

Rule of Destructibility of Contingent Remainders

Answer 4

Common Law- contingent remainder was destroyed if it was still contingent when the preceding estate ended

Modern rule- abolished. O will hold the estate subject to B’s springing executory interest until the condition occurs

Question 5

Shelley’s Case

Answer 5

To A for life, then on A’s death, to A’s heirs. Old rule- present and future interests merge. Modern rule- A has a life estate, heirs have contingent remainder, O has reversion

Question 6

Doctrine of Worthier Title

Answer 6

To A for life, then to O’s heirs. Remainder in O’s heirs is void and O has a reversion. NY abolished

Question 7

Three kinds of vested remainders

Answer 7

1) Indefeasibly vested - no strings attached
2) Subject to complete divestment- has a condition subsequent
3) Subject to open

Question 8

New York Perpetuities Reform Statute

Answer 8

1) Reduces age contingencies to 21 years
2) Fertile octogenarian principle presumes that a woman over 55 cannot have a child
3) NY suspension rule

Question 9

Four unities

Answer 9

1) Time
2) Title
3) Identical interests
4) Right to possess the whole

Question 10

Joint tenancy is severed by

Answer 10

1) Sale
2) Partition
3) Mortgage in minority of states

Question 11

When does a sale sever the joint tenancy?

Answer 11

At the time of entering into the contract because of equitable conversion

Question 12

Three variations on partition

Answer 12

1) Voluntary agreement
2) Partition in kind - Judicial proceeding where court divides if in the best interest of all
3) Forced sale- judicial proceeding where proceeds are divided proportionally

Question 13

Creditors of one spouse in tenancy by the entirety

Answer 13

Cannot touch the tenancy even of the debtor spouse

Question 14

Unilateral conveyance and tenancy by the entirety

Answer 14

Cannot be done

Question 15

Acquiring title from co-tenant through adverse possession

Answer 15

Multstate- Can never do it absent ouster

NY- Co-tenant may acquire full title if he is exclusive possession for 20 straight years. It is an implied ouster

Question 16

Carrying costs for tenancy in common

Answer 16

Each co-tenant is responsible for his fair share

Question 17

Repairs in tenancy in common

Answer 17

Repairing co-tenant enjoys right of contribution for reasonable and necessary repairs

Question 18

Improvements and tenancy in common

Answer 18

At partition, improving co-tenant is entitled to a credit equal to any increase in value caused by her efforts, and any drop caused by her efforts

Question 19

Notice required for termination of a year to year tenancy

Answer 19

6 months

Question 20

IS a tenant liable for injuries sustained by third parties where landlord promised to maintain repairs?

Answer 20

Yes

Question 21

Tenant’s duty to repair when lease is silent

Answer 21

Must maintain the premises and make ordinary repairs

Must not commit waste

Question 22

Tenancy by the entirety is severed by

Answer 22

1) Death
2) Mutual agreement
3) Execution by a joint creditor of both spouses

Question 23

Duration of hold-over tenancy

Answer 23

Commercial tenants- if lease was for one year or more, new year to year tenancy

Residential tenants are generally held to new month-to month

Question 24

Destruction of leased premises without fault

Answer 24

Common law- neither party has a duty to restore premises but T must continue paying rent

Modern trend (including NY) - absent express undertaking, tenant may quit and doesn’t have to be rent

Question 25

What can landlord do if tenant refuses to pay rent?

Answer 25

Evict through the courts or continue relationship and sue for rent due. Cannot engage in self-help (NY treble damages)

Question 26

When tenant abandons property, landlord can

Answer 26

1) Treat it as surrender (writing required to satisfy SOF where applicable)
2) RE-let the premises on the tenant’s behalf (NY doesn’t require mitigation of damages for abandonment)

Question 27

Landlord’s Duties

Answer 27

1) Duty to deliver possession (majority rule requires actual possession)
2) Implied covenant of quiet enjoyment
3) Implied warranty of habitability
4) Retaliatory eviction

Question 28

How does a landlord breach an implied covenant of quiet enjoyment?

Answer 28

1) Actual wrongful eviction
2) Constructive eviction- requires substantial interference due to L’s actions/failures, notice, and L vacating within a reasonable time after L fails to fix premises

Question 29

What type of leases does the implied covenant of quiet enjoyment apply to?

Answer 29

Commercial and residential

Question 30

What type of leases does the implied warranty of habitability apply to?

Answer 30

Only residential leases

Question 31

T’s remedies for breach of warranty of habitability

Answer 31

1) Can move out
2) Repair and deduct from rent
3) Reduce rent until court determines fair rental value
4) Seek money damages

Question 32

Landlord’s tort liability (5)

Answer 32

1) Common areas
2) Latent defects
3) Assumption of repairs
4) Public use rule
5) Short term lease of furnished dwelling

Question 33

When does an easement appurtenant pass with the land?

Answer 33

Easement appurtenant. Burden passes with servient estate unless buyer is BFP with no actual or constructive notice

Question 34

When does easement in gross pass with the land?

Answer 34

Only where it is a commercial right

Question 35

Easement by implication

Answer 35

1) Previous use was apparent
2) Parties intended the easement to continue after division
3) Easement was reasonably necessary for the dominant land’s use and enjoyment

Question 36

Requirements for covenant burden to run

Answer 36

1) Writing
2) Intent
3) Touch and concern
4) Horizontal privity
5) Vertical privity
6) Notice

Question 37

Requirement for covenant benefit to run with the land

Answer 37

1) Writing
2) Intent
3) Touch and concern
4) Vertical privity

Question 38

Common scheme doctrine

Answer 38

1) Subdivider had general scheme of residential development

2) Defendant lotholder had notice of the promise contained in the prior deeds

Question 39

State of mind for adverse possession

Answer 39

Multistate- state of mind irrelevant

NY- must have a good faith belief that the land is his

Question 40

Termination of easement (8)

Answer 40

1) Estoppel
2) Necessity ends
3) Destruction of servient land
4) Condemnation of servient estate
5) Release given by easement holder
6) Abandonment shown by physical act
7) Merger doctrine
8) Prescription

Question 41

Tacking

Answer 41

Requires privity, a non-hostile nexus between the previous possessor and current one

Question 42

Exception to statute of frauds for land sale contract

Answer 42

Part performance doctrine. Requires two of

1) B takes possession
2) B pays all/part of the price
3) B makes substantial improvements

Question 43

Risk of loss after land contract

Answer 43

MBE- B bears the risk of loss

NY- so long as B is without fault, risk of loss remains with seller until B takes possession

Question 44

Requirements for deed

Answer 44

1) In writing, signed by grantor
2) Description of the land (need not be perfect)
3) Delivery (question of intent)

Question 45

General warranty deed

Answer 45

1) Covenant of seisin- Grantor owns the estate
2) Covenant of right to convey- power to transfer and no temporary restraints on alienation
3) Covenant against encumbrances
4) Covenant for quiet enjoyment- won’t be disturbed by 3rd party claim of title
5) Covenant of warranty- Grantor will defend against lawful claims of title
6) Covenant for further assurances

Question 46

Special warranty deed

Answer 46

1) Grantor promises he hasn’t conveyed the estate to anyone other than grantee
2) Free from encumbrances made by grantor

Question 47

Wild deed

Answer 47

A deed not connected to the chain of title. Cannot provide record notice

Question 48

Equitable mortgage

Answer 48

Instead of transferring a mortgage deed or a note, debtor gives creditor a deed to property to hold. Parol evidence can be used to show true intent

If creditor sells land to BFP, BFP owns the land and O must proceed against creditor