Real Property Flashcards
(111 cards)
1
Q
Joint Tenancy
A
- Right of Survivorship
- Alienable
- NOT descendible or devisable
- Created by:
1. Interests taken at the same time
2. By the same title
3. With identical, equal interests; and
4. With rigthts to possess the whole - Grantor must CLEARLY express the right of survivorship. Otherwise, a conveyance to two or more persons, without more, is presumed to be a tenance in common.
2
Q
How can joint tenancy be severed?
A
- Severance and Sale (sell or transfer during her liftime w/ notice to joint tenant)
- Partition
a. Voluntary Agreement (both parties agree to end)
b. Partition in Kind (judical partition by physical division)
c. Partition in Forced Sale (judicial partition by selling the land and dividing profits between tenants)
3
Q
What are transactions that WILL NOT sever a joint tenancy?
A
- Mortgages
- One joint tenant murdering another
- Testamentary disposition (i.e., leaving the estate in a will)
4
Q
Tenancy by the Entirety
A
- Marital estate akin to joint tenancy
- Right of survivorship
- Not alienable, deviseable, or descendable
- Created by presumptively conveying land to married partners unless the language of the grant clearly indicate otherwise
5
Q
Can creditors claim a tenancy by the entirety?
A
No, creditors of only one spouse cannot touch this tenancy for satisfaction of the debt. Note, however, that creditors of BOTH spouses may claim the tenancy.
6
Q
How can a tenancy by the entirety be severed?
A
- Death
- Divorce
- Mutual Agreement
- Execution by a joint creditor of BOTH the spouses
Note: Upon divorce, the tenancy becomes a tenancy in common
7
Q
Tenancy in Common
A
- No right of survivorship
- Presumption of tenancy in common
- Alienable, deviseable, and descendable
8
Q
Rights and Duties of Co-Tenants
A
- Possession = Right to possess al portions of the property
- Rents/Profits = A tenant in exclusive possession has the right to retain all profits BUT a co-tenant who leases the property must account to all the co-tenants
- Carrying Costs = Each tenant must pay fair share of taxes/mortgages
- Repairs = Reparing co-tenant may receive contribution forom co-tenants if notified co-tenant of repair
- Improvements = No right to contribution for improvements unilaterally made
- Waste = May not commit waste
9
Q
Waste
A
- Voluntary = willful destruction
- Permissive = neglect
- Ameliorative = unilateral change that increases value
10
Q
Tenancy for Years
A
- Lease for a fixed, determined period of time
- Leases for greater than one year must be in writing to satisfy SoF
11
Q
When does a tenancy for years end?
A
- Automatically at its termination date (no notice is needed to terminate)
- Breach of lease covenant (e.g., failure to pay rent)
- Tenant surrenders the tenancy and the landlord accepts
12
Q
Periodic Tenancy
A
A lease which contiues for successive intervals until either the landlord or the tenant gives proper notice of termination (i.e., continuous until terminated)
13
Q
How are is a periodic tenancy created?
A
- Express (express term from month/month, year/year, or week/week)
- Implication
a. No mention of duration but provision of rent is set in intervals
b. Oral term of years in violation of SoF
c. If a landlord elects to hold over a tenant who has wrongfully stayed on past the conclusion of the original lease
14
Q
How is a period tenancy terminated?
A
May be terminated by landlord but requires notice (usually written). Until the tenancy is terminated the tenancy is automatically renewed.
Generally, notice must be given equal in terms of the length of the tenancy (e.g., 1 month notice for a month lease). For year leases, notice is either 6 months (common law) or 1 month (restatement).
15
Q
Tenancy at Will
A
A tenancy with no fixed period of duration. May be terminable at the will of either the landlord or the tenant.
16
Q
When is a tenancy at will terminated?
A
Can be terminated by either party at any time. However, in most states, notice and a reasonable time to quit are required to terminate a tenancy at will.
May also be terminated by operation of law (e.g., death or commission of waste).
17
Q
Tenancy at Sufferance
A
Created when a tenant wrongfully holds over (meaning they remain in possession past the expiration of the lease). During such cases, the landlord has the right to recover rent.
18
Q
When are tenancy at sufferance terminated?
A
Only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy. No notice is required.
19
Q
Hold-Over Doctrine
A
If a tenant continues in possession after their right to possession has ended, the landlord may:
1. Evict the tenant; or
2. Bind the tenant to a new periodic tenancy
20
Q
Tentant’s Primary Duties
A
- Repair
- Pay Rent
21
Q
What are the tenant’s duties to repair when the lease is silent?
A
- Maintain premises (routine repairs BUT NOT repair occasioned by ordinary wear and tear)
- May not commit waste
22
Q
What remedies may a landlord seek if the tenant does not pay rent?
A
- Evict through the courts
- Continue the relationship and sue for rent due
Note that the landlord MAY NOT engage in self-help (such as changing the locks, forcibly removing the tenant, or removing any of the tenant’s possessions).
23
Q
What remedies does a landlord have if a tenant vacates with time left on a term of years lease?
A
- Surrender = landlord can choose to treat the tenant’s abandonment as an implicit offer to surrender (thereby ending the lease)
- Ignore = do nothing and hold the tenant responsible for the unpaid rent until the natural end of the lease
- Re-let = re-let the premises on the wrongdoer-tenant’s behalf, and hold the wrong-doer tenant liable for any deficiency
24
Q
Implied Covenant of Quiet Enjoyment
A
Implied promise in every lease that a tenant has a right to quiet use and enjoyment of the premises, without the interference from the landlord or a paramount title holder.
25
When does wrongful eviction occur?
1. Actual Eviction = excludes the tenant from the entire leased premises
2. Partial Eviction = tenant is physically excluded from only part of the leased premises
3. Constructive Eviction = when the landlord's breach of duty renders the premises unsuitable for occupancy
26
Must a tenant pay rent under:
1. Actual Eviction
2. Partial Eviction
3. Constructive Eviction
1. Terminates the tenant's obligation to pay rent
2. Terminates the obligation to pay rent for the entire premises (even if only partial exclusion)
3. Obligation to pay rent may be terminated if:
a. Substantial Interference
b. Notice to the landlord
c. Goodbye (leaving premises)
27
Implied Warranty of Habitability
Implied warranty in **residential** leases that provides that the premises must be fit for basic human habitation.
28
If the implied warranty of habitability is breached, what are a tenant's options?
1. Move out and terminate the lease
2. Repair and deduct from rent
3. Reduce rent or withold all rent until the court determines fair rental value
4. Remain in possession, pay full rent, and affirmatively seek money damages
29
May a tenant transfer their interest in the property?
* In the absence of some prohibition in the lease, a tenant may freely transfer their interest in whole (assignment) or in part (sublease).
* In some cases, a landlord can prohibit a tenant from assigning or subletting without the landlord's prior written approval. However, once the landlord consents to one transfer by a tenant, the landlord waives the right to object to future transfers by that tenant, unless the landlord expressly reserves that right.
30
Assignment
* When a tenant transfers their interest of a lease in whole to a 3rd party.
* The assignee and the landlord are in "privity of estate" but NOT in "privity of contract"
* The original tenant is no longer in privite of estate with the landlord but IS in "privity of contract"
31
Privity of Estate
Liable on all covenants in the lease that "run with the land"
32
Privity of Contract
Liable for original contract obligations (e.g., pay rent)
33
Sublease
* Occurs when a tenant transfers LESS than her entire estate to a 3rd party
* The sublessee is NOT in privity of estate nor privity of contract with the landlord but IS in privity of estate and contract to the original tenant
* The original tenant is in privity of estate AND privity of contract with the landlord
34
Caveat Lesee
A landlord is under no duty to make premises safe.
Exceptions:
1. Common areas
2. Latent defects (must warn of hidden deffects with the landlord knows or has reason to know)
3. Assumption of repairs (once repairs are undertaken, the landlord must complete them with reasonable care)
4. Public use rule (a landlord who leases a public space and who should know that a tenant will not repair because of the short length of the lease and the significant nature of the defect)
5. Short-term lease of furnished dwelling
Modern Trend = landlord owes a general duty of reaonable care toward residential tenants, and will be held liable for injuries in tort resulting from ordinary negligence if the landlord had notice of a defect and an opportunity to repair it.
35
Easement
* Grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land.
* Assumed to be of perpetual duration unless grant specifically limits interests
36
Affirmative vs Negative Easements
* **Affirmative** = the right to go onto and do something on servient land
* **Negative** = entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible (generally falls within light, air, support, or stream water)
37
How are negative easements created?
Expressly, by a writing signed by the grantor
38
Easement Appurtenant vs in Gross
* **Appurtenant** = the easement benefits its holder in his physical use or enjoyment of his own land (2 land affected)
* **In Gross** = confers upon its holder only some personal or pecuinary advantage that is not related to their use or enjoyment of their land (only 1 land affected)
39
Dominant vs Servient Tenement
* **Dominant** = derives the benefits of the easement
* **Servient** = bears the burden of the easement
40
Transferability of Easements
* **Appurtenant** = passes automatically with transfers of the dominant tenement, regardless of whether it is even mentioned in the conveyance; also passes automatically with the servient estate, unless the new owner is a bona fide purchaser w/o notice of the easement
* **In Gross** = not transferable unless it is for commercial purposes
41
How are easements created?
* **Prescription**= adverse prescription (continuous and uninterrupted use, open and notorious, actual use, and hostile use)
* **Implication** = easement that does not satisfy the SoF (i.e., an oral agreement), but there is preexisting use
* **Necessity** = implied when a landowner conveys a portion of her land with no way out except over some part of the grantor's remaing land
* **Grant** = writing signed by holder of servient tenement
42
What is the scope of easements?
* The scope of an easement is determined by the terms of the grant or conditions that created it.
* If an easement is created but not specifically located on the servient tenement, an easement of sufficient width, height, and direction for the intended use will be implied
* The owner of the servient tenement may select the location of the easement so long as their selection is reasonable
43
How are easements terminated?
* **Estoppel** = when the servient owner materially changes their position in reaosnable reliance on the easement holder's assurances that the easement is terminated
* **Necessity** = easements created by necessity expire as the necessity ends
* **Destruction** = destruction of the servient land
* **Condemnation** = government eminent domain over the servient tenement
* **Release** = the easement holder terminates the easement
* **Abandonment** = physical action by the easement holder that demonstrates intent to never use the easement again
* **Merger** = title to the easementa and title to the servient land become vested in the same person
* **Prescription** = adverse possession
44
License
* Mere privilege to enter another's land for some delineated purpose
* Not an interest in land
* Revocable at will of the licensor (except estoppel applies)
* Inalienable
* May be created by oral agreement
45
Covenant
A written promise to do or not do something related to land
46
Negative vs Affirmative Covenants
* Negative = restrictive covenants; promise to refrain from doing something related to the land
* Affirmative = promise to do something related to the land
47
Covenant vs Equitable Servitude
Covenant = monetary damages
Equitable Servitude = injunction
48
What are the requirements for a burden covenant to run with the land?
**WITHN**
1. Writing
2. Intent
3. Touch and Concern
4. Horizontal and Vertical Privity
5. Notice
49
Touch and Concern
* Restriction the use of the landowners use of land (negative covenants) or require the landowner to do something to their land (affirmative covenants)
* Must be specific to land and not community in general
50
Horizontal Privity
* Nexus between the original promising parties
* Requires that they be be succession of estate (e.g., grantor/grantee, landlord/tenant, or mortgagor/mortgagee)
51
Vertical Privity
* Nexus between the successor in interest and the original covenanting party
* Requires some **non-hostile** nexus (e.g., contract, devise, or descent)
52
What are the requirements for a benefit covenant to run with the land?
**WITV**
1. Writing
2. Intent
3. Touch and Concern
4. Vertical Privity
53
When are covenants terminated?
1. Written release
2. Merger
3. Condemnation of burdened property
54
Equitable Servitude
Promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is a bona fide purchaser.
55
How are equitable servitudes created?
**WITNES**
1. Writing
2. Intent
3. Touch and Concern
4. Notice
56
Common Scheme Doctrine
The court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the promise. Thus, if a developer subdivides land, and some deeds contain restrictive covenants while other do not, the restrictive covenants will be binding on all parcels provided that there was a common scheme of development and notice of the covenants.
57
What are the elements of the common scheme doctrine?
1. When the sale began, the subdivider had a general scheme of residential development which included the defendant's lot; and
2. The defendant lot-holder had notice of the promise contained in those prior deeds
a. Actual Notice
b. Inquiry Notice (neighborhood conforms with the restriction)
c. Record Notice (public record)
58
When will a court not enforce an equitable servitude?
1. Neighborhood conditions have changed so siginificantly that enforcement would be inequitable
2. The person seeking enforcement is violating a similar restriction on his own land (unclean hands)
3. The benefited party acquiesced in a violation of the servitude by the burdened party
4. A benefited party acted in such a way that a reasonable person would believe the covenant was abandonded or waived (estoppel)
5. The benefited party fails to bring suit against the violator within a reasonable time (laches)
59
When are equitable servitudes terminated?
1. Written release from the benefit holders
2. Merger of the benefited and burdened estates
3. Condemnation of the burdend property
60
Adverse Possession
**COAH**
1. **Continuous** = continous possession throughout the statutory period or constant use that the usual owner would make
2. **Open and Notorious** = sufficiently apparent to put the true owner on notice that a trespass is occurring
3. **Actual and Exclusive** = land that is actually occupied or taken under color of title (invalid deed)
4. **Hostile** = without the owner's permission, regardless of the possessor's state of mind
61
Tacking
| Adverse Possession
* One adverse possessor may tack on to his time with the land his predecessor's time, so long as there is privity between the possessors
* Privity is satisfied by any non-hostile nexus, such as a contract, deed, or will
62
Do disabilities affect adverse possession?
The statute of limitations will not run against a true owner who is afflicted by a disability at the **inception** of the adverse possession.
63
What is the process of conveyance of real estate?
1. Land contract - conveys equitable title
2. Closing - deed passes legal title
64
If property is damages or destroyed before closing but after the contract is signed, who bears the cost of the loss?
The buyer
65
Land Sale Contract Requirements
1. Signed writing
2. Identify the parties
3. Describe the property
4. Price or means of determining the price
66
If the land description in the land sale contract is inaccurate, what is the remedy?
Specific performance with a pro rata reduction in price
67
What happens if there the land sale contract is not in writing or the writing falls short of the SoF requirements?
Doctrine of Part Performance (allows a buyer to enforce an oral real estate K):
1. The oral contract was certain and clear; and
2. The acts of partial performance clearly prove the existence of a K
a. Buyer has taken possession of the property
b. Buyer has paid the purchase price or a significant portion of the purchase price
c. Buyer has made substantial improvements to the premesis
68
Doctrine of Equitable Conversion
Once the contract is signed, equity regards the buyer as the owner of the real property. The contract conveys equitable title while the deed conveys legal title. Thus, the seller is entitled to possession until closing.
69
What happens if one of the parties to a land sale dies after the contract but before the closing?
The interests of the departed party pass to their estate. Therefore, the buyer's interest in the party passes to their estate and the contract remains enforceable.
70
Implied Covenant of Marketable Title
* Every contract contains an implied covenant that the seller will provide a marketable title at closing.
* Marketable title = reasonable free from doubt and the treat of litigation
71
What are common defects that render title unmarketable?
* Defects in record chain of title
* **Significant** encumbrances (mortgages, liens, easements, restrictive covenants)
* Zoning violations (NOT zoning restrictions--zoning **violations**)
72
When must title be marketable?
* On the day of closing
* The seller has up until closing to clear up whatever defect is making the title unmarketable
73
What is the remedy if title is not marketable?
* The buyer must notify the seller that title is unmarketable and give the seller reasonable time to cure the defects.
* If the seller fails to cure the defects, the buyer's remedies include recission, damages, specific performance with abatement, and a quiet title suit
74
Implied Promise Not to make False Statements of Material Fact
* The seller will not make any false statements of material fact
* The seller may be liable to the purchaser after closing for defects, if they knowingly made false statement of material fact that the buyer relied on, actively concealed a defect, or failed to disclose known defects in the property
75
When is a seller liable for failure to disclose?
1. The seller knows or had reason to know of the defect
2. The seller realized that the buyer is unlikely to discover the defect; and
3. The defect must be serious enough that the buyer would probably reconsider the purchase
76
Can a seller avoid liability for fraud or failure to disclose by including in the contract a general disclaimer of liability?
No, general disclaimers do not waive liability.
However, if the disclaimer identifies specific types of defects, it will likely be upheld.
77
Do land sale contract have implied warranties of fitness or habitability?
No, except in the sale of a new home by the builder
78
When must land sale contracts be performed?
Courts presume that time is not "of the essence" in real estate contracts. Thus, the closing date is not absolutely binding, and a party late in tendering their own performance can still enforce the contract if they tender it within a **reasonable time** after the closing date.
79
When is time considered "of the essence" in land sale contracts?
1. The contract states
2. The circumstances indicate that was the parties' intent; or
3. One party gives the other notice that time is of the essence
80
What are the remedies for breach of a land sale contract?
Nonbreaching party is entitled to damages (difference b/w K price and market value on date of breach + incidential damages) **AND** specific performance
81
When closing occurs, what happens to the land sale contract?
It merges with the deed and, in the absence of fraud, the seller is no longer liable on the promises in the contract, only those in the deed.
82
Executing a valid deed requires:
1. Writing signed by grantor
2. Unambiguous description of the land (need not be perfect, but it must be unambiguous to provide a good "lead")
3. Identification of the parties by name or description
4. Words of intent to transfer (delivery)
83
When is a deed delivered?
When the grantor's intent that title passes (even if possession is postponed).May be satisfied by:
1. Physical delivery (may be mail, agent, or messenger); or
2. Present intent to part with legal control
84
Delivery is presumed if the deed is:
* Handed to the grantee
* Acknowledged by the grantor in front of a notary; or
* Recorded
85
If a deed, absolute on its face, is transferred to the grantee with a oral condition, what is the result?
The oral condition drops out
86
If a deed is transferred to the grantee with a written condition, what is the result?
The written condition is generally valid when delivered
87
Is delievery of a deed to a 3rd party valid delivery?
Yes, provided that the 3rd party is an agent of the grantor or the grantee
88
Is delievery of a deed to an escrow agent valid delivery?
The grantor may deliver an executed deed to an escrow agent, with the instructions that the deed be delivered to the grantee once certain conditions are met.
If the escrow agent is given written instructions, the grantor is bound by the delivery to the agent. But if the grantor gives the escrow agent oral instructions, the grantor may change the instructions and recall the deed while it's still in the agent's hands, unless there is a written contract of sale
89
Covenants for Title
1. **General Warranty Deed** - Warrants against all defects in title, including those attributable to grantor's predecessors
2. **Special Warranty Deed** - Same covenants as general warranty deed, but only on behalf of the grantor
3. **Quitclaim Deed** - Conveys only what the grantor has at the time of conveyance
90
What are the covenants in a general warranty deed?
Present Covenants
* Seisin (grantor owns estate)
* Right to Convey (grantor can transfer estate)
* No Encumbrances (no servitudes/liens)
Future Covenants
* Quiet Enjoyment (will not be disturbed by a 3rd party's lawful claim of title)
* Warranty (defend against reasonable claims of title by a 3rd party)
91
Recording System Types
* **Race** - First to record properly wins
* **Notice** - Last BFP wins
* **Race-Notice** - First to record properly and BFP wins
92
To be a bonafide purchaser, a grantee must:
1. Be a purchaser (not one who received the property by gift, will, or inheritance)
2. Pay valuable consideration
3. Take without notice of prior conveyance
93
Types of notice:
1. **Actual Notice** - Literal, express notice
2. **Inquiry Notice** - If, prior to closing, an examination of the estate would have revealed prior title (i.e., previous title holder is in possession of estate)
3. **Record Notice** - If the prior deed was properly recorded in chain of title
94
"A conveyance of an estate in land shall be valid against a subsequent purchaser for value unless the conveyance is first recorded"
Race Statute
95
"A conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded"
Notice Statute
96
"Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded."
Race-Notice Statute
97
Shelter Rule
Anyone who takes from a BFP will prevail against any interest the BFP would ahve prevailed agaisnt it
98
Wild Deed
* Recorded deed that is not connected to the chain of title
* Does not impart constructive notice
99
Estoppel by Deed
One who conveys realty in which he has no interest, is estopped from denying the validity of that conveyance if he subsequently acquires the title that he had previously purported to transfer
100
Purchase-Money Mortgage
Value by a lender who takes as collateral a security interest in the very real estate that its loan enables the debtor to acquire
101
Non-Purchase Money Mortgage
A security interest in land that the debtor has already acquired
102
Creation of a Mortgage
1. Debt (note)
2. Lien in land to secure debt (mortgage)
2. Writing (legal mortgage)
103
Due-on-Sale Clause
Allow the lender to demand full payment of the loan if the mortgagor transfers any interest in the property without the lender's consent
104
What happens when a motgagor transfers title to property?
* The grantee automatically takes the property subject to the mortgage.
* The grantee will not be personally liable on the mortgage unless they specifically assume the mortgage; however, the morgage remains on the land as long as the mortgage instrument was properly recorded
105
Who is personally liable on a mortgage if the debtor/mortgagor sells the property?
* If the buyer has assumed the mortgage, both the original debtor/mortgagor and the buyer are personally liable. The buyer is primarily liable and the debtor/mortgagor is secondarily liable.
* If the buyer takes "subject to the mortgage," the buyer assumes no personal liability and only the original debtor/mortgagor remains personally liable. However, the mortgage remains on the land.
106
If a debtor defaults on a mortgage, how must the mortgage proceed?
The mortgage must foreclose by proper judicial proceeding and the sale proceeds go to satisfying the debt
107
What if the proceeds from the foreclosure do not pay off the mortgage?
The mortgagee brings deficiency actions against the debtor.
108
What is the order of priority on mortgages?
From the bank who foreclosed, go down the list:
1. Purchase-Money Mortgage
2. Junior Mortgages in order of record
Each mortgage must be paid in full before a junior creditor is paid. If there is not enough money, the creditor can bring a deficiency claim against the debtor.
If the foreclosure bank is a junior mortgage, **all** junior mortgages are extinguished (regardless whether they were paid off), while senior mortgages are unaffected.
109
Equitable Redemption
Any time prior to the foreclosure sale, the debtor has the right to redeem the land by freeing it of the mortgage.
Exception: A valid acceleration clause may permit acceleration for failure to pay the mortgage debt as well as for defaults in mortgage covenants.
110
Variance
A variance grants a landowner permission to depart from the literal restrictions of a zoning ordinance. It requiures:
1. Undue hardship
2. Diminution to neighboring property values
111
Types of Zoning Ordinances
1. **Cumulative** - land that is zoned for a particular use may be used for the stated purpose and for any lower ranked use
2. **Non-Cumulative** - land may be used only for the purpose for which it is zoned
