Real Property Flashcards
What are the types of present estates?
- Fee simple absolute
- Fee simple determinable
- Fee simple subject to condition subsequent
- Life estate
What are the types of concurrent estates?
- Tenancy in commmon
- Joint tenancy with a right of survivorship
- Tenancy by the entirety
What are the rights and obligations of cotenants?
- Possession
- Rent
- Operating expenses - Only if he paid more than his share (taxes, mortgages payments) unless he is the only one in physical possession of the property, and the value of his use is equal or outweighs the overpayment.
- Repairs and improvements - Only through contribution compelled by accounting or partition actions.
What are the types of leaseholds?
- Tenancy for years
- Periodic tenancy
- Tenancy at will
- Tenancy in sufferance
What are the landlord’s duties?
- Duty to repair - Landlord must repair damages under residential leases, unless tenant caused the damages.
- Implied warranty of habitability - Landlord must maintain the property so it is suitable for residential use. Tenant must give landlord reasonable opportunity to repair. If landlord fails to repair, tenant may: (1) stay in the property and deduct rent until repair occurs; (2) stay in the property, pay for the repairs, and deduct the cost from rent; OR (3) terminate the lease and move out.
- Covenant of quiet enjoyment - Landlord cannot disrupt the tenant’s possession or enjoyment of the property. Includes (1) actual eviction; (2) partial eviction; and (3) constructive eviction, which is where (i) landlord substantially interferes with tenant’s use and enjoyment of the land; (ii) tenant gives notice and reasonable time for landlord for repair but landlord does not repair; AND (iii) tenant vacates the premises in a reasonable amount of time.
- Duty to mitigate - Landlord has a duty to make reasonable attempts to release the property in order to mitigate damages. Minority rule does not require this.
What are the tenant’s duties?
- Duty to pay rent
- Duty to avoid waste
- Duty to make reasonable repairs
What is a prohibition clause and how does it affect landlord-tenant rights?
A prohibition clause is a clause in a lease prohibiting assignment or sublease. If the lease prohibits only assignment, tenant may still sublease. If a tenant violates the prohibition, landlord may terminate the lease. Landlord waives the right to enforce the clause if he accepts payment from a new tenant. Regarding clauses that allow assignment/sublease only with landlord’s consent, landlord can only withhold consent on a commercially reasonable ground.
What are the elements of adverse possession?
- Exclusive
- Continuous
- Hostile
- Open and Notorious
- Actual
What are the requirements for a valid deed?
- Must properly identify the parties
- Must be signed by the grantor
- Must include words of transfer
- Grantor must demonstrate a present intent to transfer, and the grantee must accept the interest.
What are the six covenants in a general warranty deed?
- Covenant of seisin - Grantor warrants they own the property
- Right to convey - Grantor warrants they have the right to convey
- Covenant against encumbrances - Grantor warrants the deed contains no undisclosed encumbrances.
- Covenant of quiet enjoyment - Grantor warrants that grantee’s possession will not be interfered with by a third party’s claim to title
- Covenant of warranty - Grantor warrants that the grantor will defend against a third party’s lawful claim for title
- Covenant of further assurances - Grantor warrants that they will do whatever is necessary to perfect title should it turn out to be defective.
What are the three types of notice in the context of recording acts?
- Actual notice
- Constructive notice - Grantees are on constructive notice of anything recorded in the chain of title.
- Inquiry notice - Where reasonable investigation would have disclosed prior claims.
What are the three primary types of easements?
- Express easements - Affirmatively created by the parties in a writing that satisfies the Statute of Frauds
- Easement by necessity - Generally only created when a parcel would be virtually useless (e.g. landlocked). In addition, both the dominant and servient estates must have been under common ownership in the past.
- Easement by implication - Prior use, recorded plat, easements by prescription, and easements by estoppel.
What are the requirements for a covenant to “run with the land”?
- Writing
- Intent
- “Touch and concern”
- Notice - Only required for burden
- Horizontal privity - Only required for burden. Original parties must have shared some interest other than the promise (e.g. grantor-grantee)
- Vertical privity - For a burden, the owner must transfer the entire estate. For a benefit, the successor can take any portion of the original estate
What are the requirements for an equitable servitude to “run with the land”?
- Writing
- Intent
- “Touch and Concern”
- Notice
What is the general rule regarding priority of interests for mortgages following foreclosure?
Generally, the first mortgage gets priority of later mortgages. Exceptions:
- Purchase money mortgages - A mortgage in which the loan proceeds were used to acquire title to the real property or make improvements on the real property will take priority over non-purchase money mortgages.
- A recording statute applies - If a later mortgage takes the mortgage without notice of a prior mortgage, the later mortgage will have priority.
