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Property Review Flashcards

1
Q

devisable v. descendible

A

devisable - passing by will
descendable - passing by heirs

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2
Q

is a joint tenancy devisable or descendible?

A

no but alienable inter vivos. not descendible or devisable bc passes to living JT. would void the transfer.

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3
Q

how to create a joint tenancy

A

need for unities!!! (T-TIP)
-Time
-Title (same deed, will, or other doc)
-Identical, equal interests
-Possess (w right to possess whole)

MUST CLEARLY SAY “WITH RIGHT OF SURVIVORSHIP”
Otherwise, presumed to be TiC

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4
Q

how to sever a JT

A

death of one in 2
partition
unilateral conveyance (would destroy the transferred interest in the JT bc disrupts 4 unities)
title mortgage (minority of states use title theory - most do lien)
foreclosure and sale
intentional murder by one of JT (turns into TiC)

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5
Q

types of partition

A

-voluntary agrmt
-judicial partition in kind [divides prop up - best when tons of acreage] (courts prefer)
-judicial forced sale [best when single building]

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6
Q

tenancy by the entirety

A

must be married when purchased prop! if so, presumed TbE.

creditors of only one spouse cannot touch TbE
unilateral conveyance or encumbrance does not sever [void] (includes mortgage)

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7
Q

how to sever TbE

A

death, divorce, mutual agreement, or execution by joint creditor of BOTH spouses

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8
Q

TiC properties

A

-owns an individual part w rights to possess whole [but no right to exclusive possession of any part]
-devisable, descendible, alienable
-presumed type of tenancy (e.g., Suppose that siblings Kevin and Randall co-own a cabin. Kevin contributed 90% of the purchase price and Randall 10%)

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9
Q

ouster

A

-when one co-tenant wrongfully excludes another co-tenant from possession of the whole
-actionable wrong

Tenant that has ousted is liable to others for rent

HOWEVER, unless FORMAL OUSTER has occurred, exclusive possession alone (without wrongful exclusion) does not render the exclusive possessing tenant liable to others for rent. He can also retain profits from his use of the property.

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10
Q

profit share w co-tenants

A

generally don’t have to except for rent and exploitation of land like mining

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11
Q

ouster and AP

A

Unless they have ousted the other co-tenant, the co-tenant in exclusive possession for the statutory period cannot acquire title to the whole to the exclusion of the other co-tenant.

WHY? Not hostile.

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12
Q

costs and repairs for co-tenants

A

COSTS
-each pays his fair share! Based upon individual share amount.
-includes taxes, mortgages, interest payments
REPAIRS
-contributions for reasonable and necessary repairs [based on share amount] required, provided that the co-tenants give each other notice of the need for the repairs

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13
Q

improvements for co-tenants

A

unilateral improvements
-no contribution required (credit at partition)
-decrease or increase in value by modification absorbed by the modifier!

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14
Q

co-tenant waste

A

must not commit waste or another can bring action against the other, like for partition

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15
Q

are restraints on partition for co-tenants valid

A

yes but only if for a reasonable time

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16
Q

do courts prefer partition in kind or partition by forced sale?

A

in kind but will force a sale if necessary

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17
Q

4 leaseholds

A

-tenancy for yrs
-periodic tenancy
-tenancy at will
-tenancy at sufferance

landlord has future reversion interest

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18
Q

when do the leaseholds end

A

YEARS
-auto at end date
-usually has right of entry if lessee breaks lease covenant (like failure to pay rent)
-SoF (must be in writing if over 1 yr)
PERIODIC
-when lessor OR lessee gives reasonable WRITTEN notice (usually one term) [so, continuous until properly terminated] [1 yr-1 month]
WILL
-terminable by either landlord or tenant [or potentially just tenant] w reasonable notice

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19
Q

how to create periodic tenancy

A

-express (e.g., A conveys to B month to month)
-implication (1. no mention of duration but provision is made for payment at set intervals; 2. oral term of years in violation of SoF; 3. lease after holdover tenant)

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20
Q

tenancy at will

A

“To T for as long as L or T desires”
no fixed period or duration
create expressly (if not, usually seen as periodic)

if the lease gives only the landlord the right to terminate, courts will find tenant also can. but if only tenant can terminate, courts won’t find landlord can.

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21
Q

is notice required for tenancy at sufferance

A

no

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22
Q

holdover tenants and instituting new lease

A

can bind them to new periodic tenancy. holdover equals assent.

residential = month to month
commercial = previous terms

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22
Q

exceptions to holdover doctrine

A

-tenant remains in possession for only a few hours after termination or leaves a few articles of personal property
-delay is not the tenant’s fault (for example severe illness)

in such cases, the landlord cannot bind the new tenant to a new tenancy

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23
Q

main tenant duties

A

-maintain premises
-make routine repairs (other than those due to ordinary wear & tear) [if says need to keep in good condition, heightened standard]
-don’t commit waste

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24
Q

tenant ameliorative waste exception

A

-if long-term tenant and the change reflects changes in neighborhood, that’s ok

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25
Q

yedestruction of premises - tenancy

A

T can terminate if premises destroyed without T’s fault

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26
Q

if the landlord moves to evict under the unlawful detainer statute, are they still entitled to rent?

A

yes until tenant vacates

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27
Q

landlord eviction re self help

A

landlord must not engage in self-help!!!

should not change locks, forcibly remove tenant, or remove the tenant’s possessions. can be punished civilly and criminally.

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28
Q

tenant breaches but is out of possession (wrongfully vacates w time left like on a term of years)

A

SIR

Surrender: ends relationship [T shows by words or conduct that she wants to give up lease]
Ignore abandonment and hold tenant responsible for rent until natural end of lease (minority of states allow)
Re-let premises on wrongdoer’s behalf and hold the wrongdoer liable for any deficiency

Under the majority rule, landlord has a duty to TRY to re-let [miitgation principle]

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29
Q

wrongful eviction

A

actual eviction (from entire premises) - terminates duty to pay rent
partial eviction - terminates duty to pay rent for ENTIRE premises

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30
Q

constructive eviction

A

occurs when landlord’s breach of duty renders the premises unsuitable for occupancy

SING

Substantial Interference (chronic/permanent problem)
Notice (T must notify L and L must fail to fix)
Goodbye (T must vacate within a reasonable time)

If meets elements, can terminate lease and seek damages

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31
Q

acts of other tenants

A

a landlord is not generally L to tenant for wrongful acts of other tenants

2 exceptions:
-landlord has duty to abate nuisance on site
-landlord must control common areas

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32
Q

duty to deliver possession

A

landlord must put tenant in ACTUAL physical possession of the premises at the beginning of the leasehold term

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33
Q

implied covenant of quiet enjoyment

A

ALWAYS TESTED.
-arises by implication in every residential and commercial lease
-tenant has a right to quiet enjoyment and use of the premises, without interference from the landlord or a paramount title holder
-this could be breached by wrongful or constructive eviction

TO PLEAD EVICTION SUCCESSFULY, TENANT MUST VACATE

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34
Q

implied warranty of habitability

A

-residential leases only
-NONWAIVABLE
-“fit for basic human habitation” - meets bare living requirements

Exs:
-no heat in winter
-no working plumbing
-no running water

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35
Q

who does the implied warranty of habitability apply to?

A

ONLY RESIDENTIAL LEASES. NOT COMMERCIAL.

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36
Q

T’s entitlement when implied warranty of habitability is breached

A

MR3

Move out and terminate lease
Repair and deduct
Reduce rent or withhold all rent until court determines fair rental value
Remain in possession, pay full rent, and affirmatively seek money damages

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37
Q

diff btw covenant of quiet enjoyment and implied warranty of habiitability for how u handle

A

quiet enjoyment - must vacate to plead eviction successfully
implied warranty of habitability - can vacate but is not required to

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38
Q

retaliatory eviction

A

landlord cannot terminate lease or otherwise penalize a tenant for exercising their legal rights like reporting them for housing violations

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39
Q

Civil Rights Act

A

bars racial or ethnic discrimination in the sale or rental of all property

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40
Q

Fair Housing Act

A

protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status (except in senior housing)

Prohibited actions:
-refusing to sell, negotiation, or rent, or make available a mortgage, loan, or other financial assistance
-providing diff terms or conditions for sale or rental or fin assistance
-falsely representing a dwelling is not available

BUT does not apply to owner-occupied buildings w 4 or fewer units in which persons live independently of each other

41
Q

Fair Housing Act - Reasonable Accommodations

A

landlords must permit disabled tenants to make reasonable modifications to existing premises to accommodate their disabilities at the tenant’s own expense.

landlords also must make reasonable accommodations in rules, policies, and services when necessary to afford a disabled person an equal opportunity to use the dwelling

42
Q

is a sublessee personally L to landlord

A

no bc no privity of kx

43
Q

caveat lessee

A

tort liability
common law norm: let the tenant beware. landlord under no duty to make premises safe.

5 exceptions:
CLAPS

Common areas
Latent defects
Assumption of repairs
Public use rule
Short-term lease of furnished dwelling

44
Q

latent defects landlord

A

L must warn - not repair tho
if landlord has knowledge or reason to know
but if undertakes repairs, L if does so negligently

45
Q

public use rule

A

a landlord who leases public space (like conventional hall or museum) and who should know, bc of the significant nature of the defect and the short length of the lease, that the tenant will not repair, is LIABLE for any defects that cause injury to members of the public

46
Q

Short-termed lease of furnished dwelling

A

responsible for ANY defective condition which proximately injuries a tenant (whether or not they knew of the defect)

47
Q

easement

A

nonpossessory property interest that allows use or enjoyment of another’s land
presumed to be of perpetual duration unless otherwise stated

48
Q

negative easements

A

-prevent landowner from doing something that would otherwise be permissible
-only FOUR kinds: LASS
-Light
-Air
-Support
-Stream water from artificial Flow

minority of states also allow for scenic view

CAN ONLY BE CREATED BY EXPRESS WRITING SIGNED BY GRANTOR

49
Q

easement in gross examples

A

-billboard on someone’s land
-railroad on someone’s land
-right to swim in another’s pond
-power lines

50
Q

easement appurtenant passing…

A

passes automatically even if not mentioned in subsequent conveyance

unless new owner is BFP without notice of easement

51
Q

easement in gross passing..

A

not transferable unless for commercial purposes [like swim school can use lake]

52
Q

creation of easements

A

PING

Prescription
implication
necessity
grant (SoF)

53
Q

implied easements

A

-pre-existing use (common on exam) [2 reqs: 1. previous use on servant part was APPARENT and CONTINUOUS; 2. parties expected that the use would survive division bc it is reasonably necessary to the dominant tenement’s use and enjoyment]
-subdivison plot (use street to access lots)
-necessity [landlocked]

54
Q

prescriptive easement limitation

A

cannot be acquired on public land

55
Q

easement reservation for 3d party

A

majority does not allow easement reservation for 3d party, only for grantor

56
Q

overuse of an easement

A

generally fine but can get injunction if unreasonably overburdens servient estate

57
Q

easement termination

A

END CRAMP

Estoppel (reasonably relied on)
Necessity
Destruction
Condemnation
Release
Abandonment Merger
Prescription

58
Q

licenses

A

-freely revocable (exception: estoppel [must have invested substantial money or labor in reasonable reliance]
-inalienable
-mere privilege
-need not be in writing

failed easements often become licenses

exes: tickets, neighbors talking by fence

59
Q

profit

A

entitles holder to enter the servient land and take from it some resources like soil or fish/game

all rules applied to easements apply to profits (termination, creation, etc.)
but can also be discharged through SURCHARGE - misuse that overly burdens servient estate

60
Q

covenants to pay money

A

count as touch and concern. may include HoA fees.

61
Q

horizontal privity

A

nexus btw the original promising parties. requires they be in SUCCESSION OF ESTATE like grantor-grantee.

62
Q

vertical privity

A

nexus between successor in interest and one of the originally covenanting parties

requires some NONHOSTILE NEXUS, such as kx, devise, or descent

only time it is absent is when AP

63
Q

requirement for BURDEN to run [when successor in interest is bound - real covenant)

A

WITHIN

Writing
Intent
Touch and concern
Horizontal and vertical privity
Notice

64
Q

requirement for BENEFIT to run [when successor can bind - real covenant]

A

WITV

NO HORIZONTAL PRIVITY. NO NOTICE.

65
Q

are racially restrictive covenants enforceable

A

no

66
Q

breach of real covenant damages

A

generally, award of money damages. equitable remedy for equitable servitude.

67
Q

termination of real covenant or equitable servitude

A
  1. written release
  2. merger
  3. condemnation
68
Q

creation of equitable servitude

A

WITNES

Writing
Intent
Touch and concern
Notice

Equitable servitude

NO PRIVITY REQ

69
Q

what is an implied equitable servitude

A

will b on exam!!

exception to the general requirement that the original promise be in writing

common scheme doctrine

70
Q

common scheme doctrine

A

for implied equitable servitude.

court will imply a “reciprocal negative servitude” [implied equitable servitude] to hold an unrestricted lot holder to the covenant

happens when common plan of development and not all the deeds contain restrictive covenants. covenants will be binding on all.

elements
-when sales began, the subdivider had a GENERAL SCHEME OF RESIDENTIAL DEVELOPMENT which included D’s lot
——> this may be evidenced by a recorded plat, a general pattern of restrictions, or oral representations to early buyers; AND
-Defendant lotholder had NOTICE of the promise contained in those prior deeds when it took. (actual, inquiry, record)

if the scheme arises AFTER some lots are sold, no dice.

71
Q

equitable servitude exceptions

A

-changed neighborhood conditions [EVERY SINGLE LOT AFFECTED]
-unclean hands
-bla bla

72
Q

AP - CONTINUOUS REQUIREMENT

A

-intermittent periods of occupancy insuficient
-if summer home, possession just need to be in summer when usually used
-need not be by SAME person; can tack own possessory periods onto those of predecessor [but must be PRIVITY by kx, deed, or will - ouster defeats privity]

73
Q

AP - open and notorious

A

sufficiently apparent to put the true owner on notice that trespass is occurring

74
Q

AP - actual and exclusive requirement

A

not always required to possess entire parcel. if AP enters under color of title, she is deemed to be in constructive possession of all the land the deed describes, as long as she is in actual possession of a reasonable portion of that land.

75
Q

AP requirmenet

A

ECHOS

Exclusive
Continuous
Hostile
Open and notorious
Statutory period

76
Q

must an AP pay taxes?

A

generally no but helps

77
Q

AP and disability

A

SoL will not run against a true owner who is affected by disability at the INCEPTION of the AP.
Only disability of the OWNER counts tho.

78
Q

AP and future interests

A

SoL for future interests doesnt start running until the interest becomes possessory

79
Q

SoF for land kx requirement

A

in writing
signed by party against
identify parites
describe prop adequately
price or means of determining price

80
Q

B enters into a contract to purchase a farm. The contract
recites that the farm is 100 acres. When B has a survey done, B learns that the farm is actually 98 acres.

A

specific performance w pro rata reduction in price

81
Q

exception to SoF - doctrine of part performance

A

Must have 2/3

possession
substantial improvements
full or close to full payment of purchase price

82
Q

risk of loss for buyer…seller’s job?

A

Even though the risk of loss is on the buyer, if the property is
damaged or destroyed, the seller must credit any fire or
casualty insurance proceeds they receive against the
purchase price the buyer is required to pay

83
Q

passage of title on death

A

buyer dies? - passes as real prop to buyer estate
seller dies? - right to purchase price passes to seller’s estate as personal prop

contract remains enforceable

84
Q

marketable title

A

at closing, free from:
-defects in record chain of title (like AP) [if even portion affected by AP, not marketable]
-encumbranches (mortgages, liens, easements, restrictive covenants_
-zoning violations [only violations, not restrictions]

85
Q

seller’s misrepresentations or failure to disclose

A

-knowing false statement of material fact or failure to disclose may render the seller L after closing for defects

to be L for failure to disclose:
-must know or have reason to know of defect
-seller must realize buyer is unlikely to discover defect AND
-defect must be serious enough that buyer would probably reconsider purchase

86
Q

disclaimers of L

A

-general disclaimers such as “property sold as is” or “with faults” are insufficient
-disclaimers identifying specific defects will likely be upheld

87
Q

do land kx have implied warranties of fitness or havility?

A

no. none. buyer should be checking prior to closing for quality of premises.

exception for NEW HOMES

88
Q

requirements for a valid deed

A
  • A writing signed by the grantor
  • An unambiguous description of the land [if insufficient, title isn’t transferred]
  • Identification of the parties by name or description
  • Words of intent to transfer, such as “grant”
89
Q

delivery of deed requirement

A

-physical delivery (agent ok)
-if not physical, standard is to ask: Did the grantor have the present intent to part with legal control of the property?

rejection defeats delivery.

presumptions re delivery:
-delivery presumed if deed is:
—–handed to grantee
—–acknowledged by grantor before notary
—–recorded

delivery w oral conditions? oral conditions drop out.

90
Q

general warranty deed covenants

A

current:
-seisin
-right to convey
-right against encumbrances

future:
-quiet enjoyment [won’t be disturbed by 3d party claim of lawful title]
-warranty [grantor will defend against reasonable title claims by 3d party and compensate grantee for loss sustained by claim of superior title]
-further assurances [will do whatever necessary to perfect title if turns out later title is imperfect]

91
Q

special warranty deed

A

makes only promises on behalf of himself

92
Q

BFP

A

consideration, no notice

93
Q

how to spot recording statutes

A

An easy way to spot the different statutes is to look for
the words “notice” and “first.
*“First” only = race statute
*“Notice” only = notice statute
*“Notice” & “first” = race-notice statute

94
Q

deed in lieu of foreclosure

A

-mortgagee takes deed in lieu of foreclosure on the property. since there is no actual foreclosure, it doesnt operate to terminate any junior liens!!!!

will b tested

95
Q

when are zoning ordinances invalid

A

Zoning ordinances are generally invalid if they have no
reasonable relation to public welfare, are too restrictive,
are discriminatory as to a particular parcel, are beyond
the grant of authority, violate due process, or are racially
discriminatory.

96
Q

cumulative v noncumulative zoning ordinances

A

cumulative
-creates hierarchy of uses of land (single family highest, 2 family, apt building, strip mall, factory)
-land zoned for a particular use may be use for the stated purpose or anything higher

noncumulative
-only used for the purpose for which it is zoned

97
Q

lateral rights

A

SL if natural state
L if neg
SL if same effect if in natural state

98
Q

life tenant rights and duties

A

entitled to any ordinary use and profits of the land but can’t do anything that injures the interests of a remainder man or reversioner.

a future interest holder may sue for damages or to enjoin such acts

99
Q

ameliorative waste exception for life tenant

A

Can demolish or alter existing buildings if:
-market value of future interests is not diminished; AND EITHER
1. remaidnermen do not object; OR
2. a substantial or permanent change in neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness

100
Q

remainder

A

-in 3d person that becomes possessory on the natural expiration of the preceding estate
-always follow LIFE ESTATES
-must be expressly created

vested - one known and alive
contingent - unborn or unascertained or subject to condition precedent {To A for life, and, if B goes to college, then to B}

101
Q

springing v shifting exec interest

A

shifting - cuts short 3d party
springing - cuts short grantor

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