Real Prop Essay Review

Question 1

3 types of eviction

Answer 1

Actual (excludes tenant from entire premises - T does not need to pay rent )

Partial (excludes tenant from part of premises - T does not need to pay rent)

Constructive (LL’s conduct causes premises to be uninhabitable - Tenant must either (1) vacate after giving notice and reasonable time to repair, or (2) terminate lease and sue for damages

Question 2

what are tenants options if warranty of habitability is breached?

Answer 2

(1) vacate and terminate lease
(2) make reasonable repairs and deduct costs
(3) reduce or withhold rent
(4) remain in possession, pay rent, seek damages

Question 3

LL liability in tort (CL vs. modern law)

Answer 3

CL: no duty
ML: LL is liable for: common areas, latent defects, assumption of repairs, public use, or, defects in a short term lease of a furnished dwelling

Question 4

Rights and duties of cotenants

Answer 4

(1) possession of the whole
(2) right to retain profits from own use of the property (must share: net from 3rd party rent, net profits from exploitation of the land)
(3) must pay fair share of taxes and mortgage interest payments
(4) if they make reasonably necessary repairs and give notice, entitled to contribution
(5) no right to contribution for improvements
(6) must not commit waste

Question 5

Tenant duties

Answer 5

(1) to repair; ie maintain premises and make ordinary repairs
(2) to pay rent

Question 6

May a tenant remove fixtures ?

Answer 6

yes, if it does not cause substantial harm to the premises

Question 7

when will statutory adverse possession period not begin to run?

Answer 7

True owner under some disability (infancy, insanity, or imprisonment)

Question 8

Termination of an easement

Answer 8

(1) estoppel (servient owner materially changes position in reasonable reliance on easement holder’s assurances that easement will no longer be enforced)
(2) necessity ends
(3) destruction of servient land (unless willful)
(4) condemnation of servient estate (can be eminent domain)
(5) release by easement holder
(6) abandonment
(7) Merger
(8) prescription

Question 9

what is a license?

Answer 9

privilege to enter land for a narrow purpose (SoF does not apply and revocable unless estoppel applies)

Question 10

What is a profit

Answer 10

holder may enter and take mineral, soil, or other natural resource

Question 11

Creation of an equitable servitude

Answer 11

Writing
Intent
Touch and Concern the land
Notice

Question 12

defensse to equitable servitude enforcement

Answer 12

changed neighborhood circumstances

Question 13

Lateral support - in natural state

Answer 13

strict liability

Question 14

Lateral support - with buildings

Answer 14

strict liability if it would have collapsed in its natural state; negligence otherwise

Question 15

subjacent support

Answer 15

must support surface and building existing on the date the subjacent estate was created
Liability for subsequently erected building is negligence standard

Question 16

when may a nonconforming use be stopped immediately?

Answer 16

if given just compensation. Otherwise, may continue

Question 17

essential terms in land sale K

Answer 17

parties, description of property, price, manner of payment

Question 18

what is equitable conversion?

Answer 18

after K is signed, buyer is seen as owner in equity and all risk of loss on them

Question 19

What makes title unmarketable?

Answer 19

(1) defects in chain of title
(2) title acquired by adverse possession
(3) future interests held by unborn or unascertained persons
(4) encumbrances (unless waived)
(5) zoning violation existing at time of contract

Question 20

Deeds requirements

Answer 20

(1) in writing
(2) signed by grantor
(3) reasonably identifies parties and land
(4) delivery (either Grantor intends to make deed presently effective even if possession is postponed; manually delivered; notarized acknowledgement by grantor; recording; anything else showing grantor’s intent)

Question 21

What are the present covenants?

Answer 21

seisin, right to convey, against encumbrances

Question 22

what is covenant of seisin?

Answer 22

grantor has the estate he purports to convey

Question 23

what is covenant of right to convey

Answer 23

grantor has authority to make grant

Question 24

what is covenant against encumbrances?

Answer 24

no mortgages or servitudes

Question 25

what are the future covenants?

Answer 25

quiet enjoyment; warranty; further assurances

Question 26

what is covenant of quiet enjoyment?

Answer 26

grantee will not be disturbed by 3rd party

Question 27

what is covenant of warranty

Answer 27

grantor agrees to defend and to compensate grantee against claim of superior title

Question 28

what is covenant of further assurances

Answer 28

grantor agrees to act reasonably to perfect title

Question 29

Race statutes: does a Bone fide purchaser prevail?

Answer 29

Notice: Yes, over prior grantee who fails to record
Race-notice: Yes, but only if he records before the prior grantee
Race: Whoever records first prevails

Question 30

Who is a bone fide purchaser

Answer 30

a purchaser without notice (actual, inquiry, constructive/record)

Question 31

What happens if tenant effectively surrenders and LL accepts

Answer 31

tenants liability for future rents ends

Question 32

what is it called when one tenant excludes another from whole or part possession?

Answer 32

ouster

Question 33

what does an ousted co-tenant get as damages?

Answer 33

their share of the fair rental value of the property for the time they were ousted

Question 34

4 unities creating a joint tenancy

Answer 34

Time - interests vested at same time
Title - interests acquired by same instrument
Interest - same type of interest and duration
Possession - interest given gives identical rights to enjoyment

Question 35

what is the shelter rule?

Answer 35

anyone who takes from a BFP will prevail against anyone the BFP would have prevailed against (even if they had notice!)

Question 36

what damages does a buyer get for a breach of a warranty in land?

Answer 36

the difference in the value of the land as warrantied and as it actually is

Question 37

LL duty if nuisance arises

Answer 37

LL has a duty to abate a nuisance on site

Question 38

rule against restraints on alienation

Answer 38

generally any restriction on the transferability of a legal interest in property violates the CL rules against restraints on alienation

Question 39

Types of restraints on alienation

Answer 39

(1) disabling restraints
(2) forfeiture restraints
(3) promissory restraints

Question 40

are total restraints allowed?

Answer 40

no

Question 41

Are partial restraints allowed?

Answer 41

may be valid

Question 42

What are LL’s options if tenant wrongfully retains possession

Answer 42

(1) eviction
(2) impose new periodic tenancy

Question 43

Is a tenant allowed to assign a lease?

Answer 43

unless there is an express restriction, yes

Question 44

does an assignment have to be in writing?

Answer 44

if it is longer than a year, yes

Question 45

what is the remedy for the breach of a covenant?

Answer 45

money damages, but may also ask court to impose an equitable servitude instead

Question 46

easement appurtenant on transfer. What happens if benefitted land transferred? What happens if burdened land transferred?

Answer 46

benefitted: the benefit transfers automatically
Burden: new owner takes subject to the burden unless they are a BFP without notice

Question 47

life tenant has to pay the taxes on the land while in possession UNLESS

Answer 47

land is unproductive (i.e. not producing any income)

Question 48

what does an involuntary dismissal of a claim for failure to prosecute do?

Answer 48

it functions as an adjudication on the merits