Real Property

Question 1

Joint Tenancy With Right of Survivorship

Answer 1

A JT is a concurrent estate in land with the right of survivorship. When one JT dies the surviving co-JT takes the property free of the deceased tenant’s interest.

Elements:

1. Intent to create; and
2. Unity of (i) title; (ii) time; (iii) interest; and (iv) possession.

Effect of conveyance: Destroys the JT, converts to a TiC. Seller may never convey more than what they own.

Question 2

Fee Simple Subject to Condition Subsequent

Answer 2

A fee simple subject to condition subsequent is created when the grantor retains the power to terminate the grantee’s estate on the happening of a specified event.

On the occurrence of this event, the grantee’s estate continues until the grantor exercises his power of termination by bringing suit or making reentry.

Question 3

Power of Termination (Right of Re-Entry)

Answer 3

When a fee simple subject to condition subsequent is granted, a power of termination is generally retained by the grantor.

Question 4

Restraint on Alienation

Answer 4

There are three types of restraints on alienation:

1. Disabling restraints, which purport to make any attempted transfer ineffective;
2. Forfeiture restraints, under which an attempted transfer results in a forfeiture of the interest; and
3. Promissory restraints, under which an attempted transfer breaches a covenant.

Any total restraint on fee simple is void, but a restraint for a limited time and reasonable purpose may be upheld.

The effect of voiding a restraint is to strike the condition from the original conveyance.

Question 5

Adverse Possession

Answer 5

To establish title by adverse possession the possessor must show:

1. Actual entry giving exclusive possession;
2. Open and notorious;
3. Adverse (hostile); and
4. Continuous for the statutory period.

Question 6

Adverse Possession: Additional Details

Answer 6

1. Generally may not take a co-tenant’s interest by adverse possession as the co-tenant has the right to possess and enjoy all portions of the property. So sole possession is not enough.
2. May take by adverse possession if there is ouster. Ouster is where you wrongfully exclude another or claim a right to exclusive possession.
3. Generally cannot adversely possession a remainder right, executory interest, etc., but where such an interest is exercisable, and is not exercised, may be barred by laches.

Question 7

Adverse Possession Effect

Answer 7

1. Possession of a portion of tract gives title to the whole tract if: (i) there is a reasonable proportion possessed and the tract; and (ii) the possessor has color of title to the whole tract.
2. Color of title that purports to give title but for reasons NOT APPARENT from its face does not, an example is a properly executed deed that was improperly delivered.

Question 8

Notice

Answer 8

A creditor may be charged with notice of: (i) what he actually knows; (ii) what would have been revealed through reasonably inquiry; or (iii) what was contained in a deed properly recorded in his chain of title.

Question 9

Execution and Delivery of a Deed

Answer 9

1. A deed must: (i) be in writing, (ii) signed by the grantor, and (iii) reasonably identify the parties and the land.
2. Delivery refers to the grantors intention to make a deed presently effective EVEN IF possession is postponed; physical transfer of the deed is NOT necessary.
3. Recording a deed raises a presumption of delivery.
4. When a deed expressly provides that title will not pass until the grantor’s dead, it creates a present possessory life estate in the grantor and a future estate in the grantee.

Question 10

Periodic Tenancy

Answer 10

1. Will be implied if the lease has termination date but provides for periodic payments of rent.
2. A periodic tenancy is automatically renewed from period to period until proper notice of termination is given by either party.
3. The tenancy must end at the ‘natural’ lease period.
4. Notice must be given a full period in advance, thus to terminate a month-to-month tenancy, a full month’s notice is required.
5. Notice must be in writing an delivered to the other party.

Question 11

Landlord Mitigation

Answer 11

1. If a tenant unjustifiably abandons the property, the landlord may do nothing or repossess the property.
2. Traditionally, he LL may let the premises lie idle and collect rent from the abandoning tenant. However, the modern majority view is that he must make reasonable efforts to mitigate his damages by reletting to a new tenant; failure to do so will reduce recovery.

Question 12

Covenant of Quiet Enjoyment

Answer 12

Implied in every lease is a covenant that the LL nor someone with paramount title will interference with tenant’s quiet enjoyment of the property.

Question 13

Constructive Eviction

Answer 13

Can only claim constructive eviction if:

1. LL (ONLY the LL) causes the injury;
2. The breach is substantial and materially deprives the T of her use and enjoyment of the premises;
3. The TT gives the LL notice and a reasonable time to repair; and then
4. Vacates within a reasonable time.

Question 14

Landlord Obligation

Answer 14

1. If the LL act or failure to provide a service he has a legal duty to provide renders the property uninhabitable, the TT may terminate the lease and seek damages.
2. LL has no common law duty to repair, the duty must be provided for in the lease, by statute, or by implied warranty of habitability.
3. Warranty of habitability applies only ro residential leases.

Question 15

Breach of Lease Terms

Answer 15

1. At common law, covenants in a lease were independent of each other, meaning that one party’s breach resulted in a claim for damages but did not excuse performance or entitle nonbreaching party to termination.
2. Modern view view covenants as dependent when the breach relates to a material part of the lease, excusing one party’s performance after: (i) proper notice; and (ii) time to cure.

Question 16

Right to Transfer

Answer 16

1. Absent an express restriction in the lease, a tenant may freely transfer their interest.
2. A complete transfer of remaining lease term is an assignment, a transfer of less is a sublease.
3. Assignee and LL are in privity of estate.
4. A covenant runs if the original parties so intended and the covenant touches and concerns the [leased] land.

Question 17

Privity after Transfer

Answer 17

1. The covenant to pay rent runs with the land, an assignee owes rent directly to the landlord.
2. Assignee is liable for rent only for the time she is in privity of estate.
3. After assignment, the original tenant is no longer in privity with LL, but can still be held liable on his original contractual obligations to pay rent because there is still privity of contract.

Question 18

BFP

Answer 18

What is a BFP? One who: pays value and does not have ACTUAL, RECORD, OR INQUIRY NOTICE.

Question 19

Deed of Trust

Answer 19

Security instrument in which the debtor gives a deed of trust to a third party trustee and in the event of default the lender tells the trustee to foreclose.

Sale may be judicial or non-judicial.

Question 20

Foreclosure

Answer 20

If proceeds of foreclosure are insufficient, the lender may typically seek a deficiency judgment.

Question 21

Easement Appurtenant

Answer 21

An easement appurtenant is a right to use someone else’s land for the benefit of the holder’s own tract. Easements may be created expressly, through a writing satisfying SOF. Recordation is not essential as between grantor and grantee. Easement presumed perpetual unless it says otherwise.

Question 21

Easement Appurtenant

Answer 21

An easement appurtenant is a right to use someone else’s land for the benefit of the holder’s own tract. Easements may be created expressly, through a writing satisfying SOF. Recordation is not essential as between grantor and grantee. Easement presumed perpetual unless it says otherwise.

Question 22

General Warranty Deed

Answer 22

Six Covenants:

1. Seisen
2. Right to convey
3. Encumbrances
4. Quiet enjoyment
5. Warranty; and
6. Further assurances.

Question 23

Covenant Against Encumbrances

Answer 23

1. The covenant against encumbrances assures that there are neither visible nor invisible encumbrances.
2. Grantor breaches if property is so encumbered when conveyed.
3. Most jurisdictions hold the grantor liable for breach of covenants even if grantee knew of the encumbrance.

Question 24

Future Covenants Liability

Answer 24

1. For covenant of warranty, assures grantor will defend the grantee against any lawful claims of title by a third party and compensate for losses thereby
2. Covenant of quiet enjoyment protects grantee from disturbance in possession or enjoyment in property by claim of lawful title from someone else.
3. Further assurances, means do what is necessary to assure party as to security of title.

Liability doesn’t arise until third party actually interferes (notification of claim is enough).

Question 25

Covenant

Answer 25

1. Written promise to do or not do something;
2. Run with the land at law, subsequent owners may enforce or be burdened by it.

Remedy for breach: Money damages.

Question 26

Run With the Land

Answer 26

1. Original parties must have intended successors to be able to enforce the covenant.
2. Successor must have notice;
3. Horizontal privity between covenanting parties;
4. Vertical privity between successor and predecessor; and
5. Must touch and concern the land.

Question 27

Horizontal Privity

Answer 27

Must share some interest in the land independent of the covenant (i.e., grantor/grantee).

Question 28

Vertical Privity

Answer 28

Successor in interest must hold the entire durational interest held by the covenanter at the time of the covenant.

Question 29

Touch and Concern the Land

Answer 29

Touches and concerns the land where it affects the legal relationship of the parties as landowners and not merely as members of the community at large.

The majority rule is that a promise to pay money runs with the land if the money is to be used in a way connected with the land.

Question 30

Equitable Servitude

Answer 30

An equitable servitude is a covenant that equity will enforce against the assignee of the burdened land who have notice of it. An equitable servitude generally must be created in writing that satisfies SOF. Usually remedy is injunctive relief. For burden to run:

1. Intent to run;
2. Assignee must have notice;
3. Must touch and concern the land.

Question 31

Sublessee

Answer 31

A sublessee is NOT in privity of contract or estate with LL, because it does NOT hold the original tenant’s full estate; thus the covenants in the MAIN lease do not bind the sublessee.

Question 32

Nuisance

Answer 32

Private Nuisance: Intangibles that substantially and unreasonably interfere with a private individual’s use or enjoyment of her property.

Public Nuisance: Same as a above but for broad segment of the population. Private party may not recover unless unique damage.

Interference is substantial where it would be offensive, inconvenient, or annoying to the average person.

Interference is unreasonable when the severity of the injury outweighs the utility of the conduct considering the neighborhood, land values, and alternative conduct open to the D.