REAL PROPERTY Flashcards
COVENANTS IN DEED
There are two kinds of deeds that you will see on the bar exam:
- Quitclaim deed: The grantor gives no covenants (promises nothing) and the grantee gets whatever the grantor has. The grantee takes the land subject to a defect in the title, an undisclosed easement, or other problem, and has no recourse.
- Warranty deed: The grantor gives six covenants—three present covenants and three future covenants. The MEE tends to test present covenants rather than future covenants. The present covenants include (mnemonic=PRESENT): the right to convey, the covenant of seisen (both of these essentially meaning that the seller guarantees he owns the land he is selling), and the covenant against encumbrances (“no encumbrances”—i.e., there are no existing easements, liens, or encumbrances that are not stated in the deed). Future covenants include (mnemonic=FEW): further assurances, quiet enjoyment, and warranty. Under common law, remote grantees can sue only under future (not present) covenants. However, note in your answer that some jurisdictions do not follow the common law rule.
BUILDER’S BREACH OF THE IMPLIED WARRANTY OF FITNESS AND HABITABILITY
A builder of new homes impliedly warrants to the buyer that the home is habitable and fit for its intended purposes. This warranty applies to defects that are discovered within a reasonable time and are due to the builder’s negligence or failure to do work in a workmanlike manner.
MERGER OF CONTRACT INTO DEED
on the closing date, the contract for sale merges into the deed, so at that point, the buyer can only sue on the deed.
NOTICE & RECORDING STATUTE
Be aware of the common law first-in-time first-in-right principle and how the recording acts change that principle. Notice acts are tested frequently on the MEE
Start your essay with the common law rule. Under common law, a grantor can convey only those rights that the grantor had at the time of the conveyance. Thus, common law follows the first-in-time first-in-right principle. All states have recording statutes that change the results of the common law principle.
- There are three kinds of recording statutes:
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Notice statutes protect subsequent bona fide purchasers for value who take without notice of
the earlier transaction. (E.g., “A conveyance of interest in land is not valid against any subsequent purchaser for value without notice unless it is recorded.”) - Race-notice statutes protect subsequent bona fide purchasers for value who take without notice and are the first to record. (E.g., “No conveyance of an interest in land is valid against any subsequent purchaser for value without notice unless it is first recorded.”)
- Pure race statutes protect subsequent purchasers who are first to record. (Thesearerare!)
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Notice statutes protect subsequent bona fide purchasers for value who take without notice of
- What is notice? There are three types of notice (mnemonic=AIR):
- Actual notice: the grantee actually knows about the conveyance.
- Inquiry notice: examination of the land or reference in an instrument would lead a reasonable person to inquire.
- Record notice:The interest is recorded in the chain of title. Deeds that are recorded too late or too early are wild deeds. Wild deeds do not give notice.
TERM FOR YEARS LEASE
a term for years lease specifies both a beginning date and an end date.
ASSIGNMENT OF LEASE
if the lease does not prohibit an assignment or sublease, a tenant can assign or sublease her interest in the lease.
EVICTIONS VS. IMPLIED WARRANTY OF HABITABILITY
A tenant can sue for constructive eviction (commercial or residential) if the tenant can prove that the landlord breached a duty to the tenant (e.g., the duty to repair) and this breach caused a loss of substantial use and enjoyment of the premises, and the tenant vacated the premises within a reasonable time after giving the landlord adequate notice.
This is different than the implied warranty of habitability which is breached only in a residential lease if the premises are uninhabitable. If this occurs, the tenant has several remedies including vacating the premises, suing for damages, offsetting damages, etc.
DUTIES OF A TENANT
The tenant must pay rent. If the tenant does not pay rent but has abandoned the property, the landlord can sue the tenant for damages or treat it as a surrender (the latter excuses future rent obligations).
LAND LORD DUTY TO MITIGATE
Under common law, the landlord has no duty to mitigate damages. Many states have abandoned this approach and require that the landlord make a reasonable effort to mitigate damages (e.g., by attempting to re-rent the premises if the tenant leaves).
THE FAIR HOUSING ACT
This act disallows discrimination in housing sales or rentals on the basis of race, color, religion, sex, familial status, or national origin (but not occupation). This does not apply if the owner occupies one of the units in a multiple-unit dwelling containing no more than four units occupied by persons “living independently of each other.” However, an owner may not place a discriminatory advertisement. If such advertisement is made, the owner and publisher will have violated the act.
CREATION AND TERMINATION OF AN EASEMENT
- Creation: easements can be created expressly, impliedly (by prior use or necessity), or by prescription.
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Termination of easements: Easements may be terminated in a variety of ways such as by their
1. express terms,
2. written release,
3. merger of the dominant and servient tenements,
4. prescription,
5. estoppel,
6. condemnation, or
7. abandonment.- For abandonment, mere nonuse of the easement is not sufficient to abandon it. There must be an act of abandonment.
CREATION AND SEVERANCE OF A JOINT TENANCY
- Creation: A joint tenancy requires the four unities (mnemonic=TTIP): time, title, interest, and possession.
Most states also require using the language “joint tenancy” and adding an express reference to “survivorship” or “survivors” to create a joint tenancy. - Severance: a joint tenancy can be severed in one of four ways (mnemonic=G SAM): by giving it away during life, by signing a contract for sale, by an actual judicial sale by a judgment lien creditor, or by granting a mortgage in a title theory state.
REQUIREMENTS FOR ADVERSE POSESSION
- Requirements: Requirements for adverse possession include possession that’s (mnemonic=CHANGE): (1) continuous, (2) hostile and under a claim of right, (3) actual, (4) open and notorious, (5) goes on for the statutory period, and (6) exclusive. One only acquires title to the area one actually possesses (unless there is color of title, a unitary tract, and possession of an amount that is reasonable in relation to the whole—in which case, the adverse possessor can acquire the whole tract).
- Tacking: in some circumstances, an adverse possessor may tack on the time that a prior adverse possessor had possessed the land to his own time to reach the statutory period.
- Failure to record an interest acquired by adverse possession: the adverse possessor will prevail over a subsequent bona fide purchaser who complies with the recording act because there is no document that the interest holder could record.
