Property: Top MEE Rules Flashcards
What is a joint tenancy, and how is it created? (6.9%)
A joint tenancy is a conveyance of real property to two or more people that is distinguished by a right of survivorship, whereby the surviving joint tenants automatically take the deceased tenant’s property interest. Thus, joint tenants CANNOT pass their property interest by will or intestate succession (at death, their property interest automatically passes to the other joint tenants).
A joint tenancy is created by a conveyance of real property to two or more people if the grantor:
(1) Makes a clear expression of intent to create a joint tenancy; AND
(2) Uses survivorship language (e.g., “as joint tenants with a right of survivorship”).
Additionally, the “four unities” (T.I.P.I.) must be in place to create a joint tenancy:
(1) Time. Joint tenants must receive their property interests at the same time.
(2) Interest. Each joint tenant must have an equal share of the same type of interest (e.g., two joint tenants each have a 50% share in fee simple).
(3) Possession. Each joint tenant must have an equal right to possess and enjoy the whole property (also required for tenants in common).
(4) Title. Joint tenants must receive their property interest in the same instrument of title.
How is a joint tenancy severed? (6.9%)
If any of the four unities (T.I.P.I.) are severed (i.e., destroyed), then the joint tenancy is terminated and the cotenants hold the property as tenants in common. There are two main situations where this happens:
(1) When a joint tenant conveys her interest to a third party, that party takes the property as a tenant in common (clearly destroys the time and title unities).
(a) If there were originally two joint tenants, the conveyance converts the estate into a tenancy in common (i.e., the two tenants are now tenants in common with no right of survivorship).
(b) If there were originally three or more joint tenants, the joint tenancy remains among the other joint tenants not involved in the conveyance while the third party is a tenant in common.
(2) When a joint tenant grants a mortgage interest in the joint tenancy to a creditor, the effect will depend on the jurisdiction:
(a) In a lien theory jurisdiction (majority view), the mortgage is treated as a lien and does NOT terminate the joint tenancy.
(b) In a title theory jurisdiction (minority view), the mortgage will terminate the joint tenancy, and the tenants will then hold the property as tenants in common.
(3) There is a split among jurisdictions with respect to joint tenancies when one joint tenant leases his interest. Some jurisdictions hold that the lease destroys the unity of interest and thus severs the joint tenancy, while other jurisdictions believe that the lease merely temporarily suspends the joint tenancy, which resumes upon expiration of the lease.
In landlord-tenant law, what is an assignment? Who is liable for rent and covenants that run with the land? (6.9%)
An assignment is a complete transfer of the tenant’s entire remaining term under the lease. In an assignment, the landlord can collect rent from the:
(1) Assignee (because there is privity of estate); OR
(2) Original tenant (because there is privity of contract).
The assignee is also liable to the landlord for covenants that run with the land under privity of estate.
In landlord-tenant law, what is a sublet? From whom may the landlord collect rent?
A sublease is a transfer of less than the tenant’s entire remaining term under the lease. In a sublease, the landlord can ONLY collect rent from the original tenant (because there is privity of contract and estate with the original tenant, but not the subtenant). The subtenant ONLY has rent obligations to the original tenant.
In landlord-tenant law, what is an abandonment? To what is the landlord entitled? (6.9%)
An abandonment occurs when the tenant unilaterally returns possession of the leased premises before the lease expires WITHOUT the landlord’s consent.
When a tenant abandons the leasehold, the landlord may treat the abandonment as an offer of surrender and accept such surrender, or the landlord may attempt to re-rent the premises on the tenant’s behalf and hold the tenant liable for any deficiency.
The majority of jurisdictions now require a landlord to mitigate damages by attempting to re-rent the premises in the event that the tenant abandons the property and breaches of the lease. Accordingly, the landlord has a responsibility to make a good-faith attempt to re-rent the property.
In landlord-tenant law, can assignment or subleasing be prohibited? What happens in the event of a violation?
A lease is allowed to prohibit assignment or sublease. If the lease prohibits only assignment, the tenant may still sublease.
If the tenant violates the prohibition, the landlord can terminate the lease. There are two exceptions:
(1) Waiver. If the landlord accepts payment from the new tenant, he waives the right to enforce the prohibition clause.
(2) Consent. Some clauses allow assignment or sublease only with landlord’s consent, in which case the landlord can only withhold consent on a commercially reasonable ground.
In landlord-tenant law, what is the duty to mitigate? (6.9%)
Under the majority rule, the landlord has a duty to mitigate damages if the tenant abandons the property early or is evicted by making reasonable efforts to re-rent the property to another tenant. The duty applies even if the tenant improperly breached the lease. However, if the landlord has multiple vacant apartments, the landlord is not obligated to prioritize the tenant’s vacant apartment. The landlord is entitled to damages for the difference between the original rent and the rent received from the replacement tenant.
Under the minority rule, the landlord does NOT have to mitigate damages (more common in cases involving commercial leases).
What is an implied easement by implication? (6.9%)
An easement is a right held by one person to use another’s land. An implied easement by implication is created when:
(1) A single tract of land is divided by a common owner and a piece of the land is conveyed to another;
(2) Before the division, the common owner used the single tract of land as if there was an easement on it;
(3) After the division, the common owner’s use of the conveyed land must be continuous and apparent; AND
(4) Such use must be reasonably necessary for the owner’s use and enjoyment.
How does an easement terminate? (6.9%)
Mnemonic: SEVEN METHODS ARE POSSIBLE REGARDING ENDING EASEMENTS
(1) Release. An easement is terminated if the holder expressly releases it. The release must be in writing and satisfy the statute of frauds.
(2) Merger. An easement is terminated if the holder acquires fee title to the underlying estate – the easement merges into the title.
(3) Abandonment. An easement is terminated if the holder demonstrates an intent to never use the easement again through physical action (i.e., requires more than non-use or statements).
(4) Prescription. An easement is terminated if the holder fails to protect against trespassers for the statutory period.
(5) Sale to a Bona Fide Purchaser. An easement may be terminated if the landowner sells the burdened property to a BFP who can assert the protection of a recording act.
(6) Estoppel. An easement is terminated if the landowner reasonably relies to his detriment on the easement holder’s assurance that the easement will no longer be used.
(7) End of Necessity. An easement by necessity lasts as long as the easement is necessary – if it is no longer necessary, the easement terminates.
What is a fixture? (6.9%)
A fixture is tangible personal property (i.e., chattel) that is attached to real property in such a manner that it is treated as part of the real property when determining its ownership. Generally, a chattel is considered a fixture if the owner of real property intends for the chattel to become a fixture by attaching it to the real property. Such intent is judged by applying an objective, reasonable person standard that examines such factors as:
(1) The importance of the chattel to the real property;
(2) Whether the chattel was specially designed for use on the real property; AND
(3) The amount of damage that removal of the chattel would cause to the real property.
NOTE. Structures built on real property (e.g., walls) and materials incorporated into a structure (e.g., bricks used in making a wall) become part of the real property. The owner of the real property is generally also the owner of any structures on the real property (including the materials incorporated into the structures).
What is the implied warranty of fitness or suitability, and who may enforce it? (6.9%)
The implied warranty of fitness or suitability applies to defects in new construction. The seller warrants that he used adequate materials and workmanship and that the new construction is safe and fit for human habitation.
The warranty protects against latent defects (i.e., defects that are not discoverable from a reasonable inspection) as well as obvious defects (i.e., patent defects). The buyer has a duty to reasonably inspect the residence.
The buyer may sue for breach against the builder, developer, and contractors within a reasonable time after discovery of the defect.
In most jurisdictions, both the initial purchaser and subsequent purchasers may recover damages.
In other jurisdictions, only the initial purchaser can enforce this warranty.
Damages are generally based on the cost of repairs to bring the residence into compliance with the warranty.
What are the requirements of adverse possession? What is the scope of possession that may be acquired? (6.9%)
Adverse possession allows a trespasser in unlawful possession of land owned by another to acquire title to that land if their possession is:
(1) Continuous for the statutory period;
(a) Seasonal or infrequent use will suffice if the use is consistent with the type of property being possessed.
(b) Tacking. An adverse possessor can tack on the time of possession of a prior adverse possessor to meet the statutory period requirement if the adverse possessors are in privity with one another (i.e., the transfer of land was voluntarily agreed upon).
(c) Disabilities. The statutory period will not run against a true owner who had a disability (e.g., insanity, imprisonment, etc.) at the time the adverse possession begun.
(2) Actual: The adverse possessor must have actual possession of the land;
(3) Open and notorious: The adverse possessor must use the property as if they were a true owner (i.e., the trespasser’s possession of the property cannot be hidden from the true owner);
(4) Exclusive: The adverse possessor cannot share possession of the property with the true owner; AND
(5) Hostile: The adverse possessor cannot have the true owner’s consent to possess or use the property (i.e., the possession must be adverse to the true owner’s interest).
CAOEH
Generally, adverse possession only transfers title to the portion that was actually adversely possessed. But color of title (i.e., enters pursuant to a deed or will that is not actually valid) allows the possessor to obtain title to the whole property under constructive adverse possession. Property acquired through adverse possession is still subject to existing easements on the land.
In land-sale contracts, what is the deed? What happens at closing? What are the types of deeds? (10.3%)
After closing, the land sale contract merges into the deed. Subsequently, any liability must arise out of the deed rather than the contract. There are three kinds of deeds:
(1) General Warranty Deed. General warranty deeds provide the greatest amount of title protection. The grantor warrants title against all defects, EVEN IF the grantor did not cause the defects.
(2) Special Warranty Deed. Special warranty deeds provide less title protection than general warranty deeds. The grantor warrants titles against defects caused by the grantor.
(3) Quitclaim Deed. Quitclaim deeds provide the least amount of title protection. The grantor makes no warranties as to the health of the title (contains no covenants of title). The grantee receives whatever interest the grantor possessed.
In land-sale contracts, what are present covenants, and in which types of deeds are they contained? When does breach occur? Do they run with the land? (10.3%)
There are six implied covenants (three present covenants + three future covenants) in general warranty and special warranty deeds. The three present covenants are:
(1) Covenant of Seisin. Warrants that the deed describes the land in question and that the grantor is the rightful owner.
(2) Covenant of the Right to Convey. Warrants that the grantor has the right to convey the property.
(3) Covenant Against Encumbrances. Warrants that there are no undisclosed encumbrances on the property that could limit its value (e.g., easements, mortgages, etc.).
Breach occurs at the time of conveyance. Present covenants do not run with the land; a later grantee cannot sue the original grantor.
In land-sale contracts, what are future covenants, and in which types of deeds are they contained? When does breach occur? Do they run with the land? (10.3%)
There are six implied covenants (three present covenants + three future covenants) in general warranty and special warranty deeds. The three future covenants are:
(1) Covenant of Quiet Enjoyment. Guarantees that the grantee’s possession will not be interfered with by a third party’s lawful claim for title.
(2) Covenant of Warranty. Guarantees that the grantor will defend against a third party’s lawful claim for title (Studicata: defend against future developments that extend into the grantee’s property boundary).
(3) Covenant of Further Assurances. Guarantees that the grantor will do whatever is necessary to perfect title should it turn out to be defective, though this covenant is not recognized in all states (Studicata: Grantor promises to do what is reasonably necessary to cure future problems with title).
Breach occurs when there is interference with possession. Future covenants run with the land; a later grantee can sue the original grantor.
