Real Property

Question 1

Forms of Concurrent Estates

Answer 1

Joint Tenancy - Two or more own with right of survivorship

Tenancy by the Entirety - Spouses own with right of survivorship

Tenancy In Common - Two or more own without right of survivorship

Question 2

Joint Tenancy

Answer 2

Characteristics - (1) Right of survivorship, (2) alienable inter vivos, & (3) not descendible or devisable

Four Unities - (1) Time, (2) title, (3) identical, equal interests, & (4) rights to possess the whole

Clear Expression of Right of Survivorship - Grantor must clearly express the right of survivorship

Severance - Severed by (1) sale or (2) partition
- Sale - Transferee is a tenant in common
- Partition - (1) Voluntary agreement: peaceful way to end relationship, (2) judicial action in kind: physical division of the property, and (3) judicial action forced sale: proceeds divided proportionately

Transactions that Will Not Sever - (1) Mortgage, (2) slayer, and (3) testamentary disposition

Question 3

Tenancy by the Entirety

Answer 3

Characteristics - (1) Conveyance to married partners, (2) right of survivorship, and (3) protected from creditors of a single spouse

Severance - (1) Death, (2) divorce, (3) mutual agreement, or (4) execution by a joint creditor
- Divorce - Tenancy morphs into a tenancy in common

Question 4

Tenancy in Common

Answer 4

Characteristics - (1) Default form of tenancy, (2) no right of survivorship, (3) right to possess the whole, and (3) alienable, divisible, and descendible.

Question 5

Rights of Co-Tenants

Answer 5

Possession - Each co-tenant has the right to possess the whole
- Ouster - Actionable wrong resulting from wrongfully excluding a co-tenant’s right of possession

Rents and Profits - Each co-tenant has a proportional right to rents and profits generated from the property

Adverse Possession - Unless they’ve been ousted, co-tenants cannot obtain the property through adverse possession

Carrying Costs - Each co-tenant is required to pay a proportional share of carrying costs

Repairs - Each co-tenant is required to pay a proportional share of repairs

Improvements - Improving tenant is not entitled to contribution but will a credit or debit for improvements upon sale or partition

Waste - A co-tenant must not commit waste
- Voluntary Waste - Willful destruction
- Permissive Waste - Neglect
- Ameliorative Wase - Unilateral change that increase value

Encumbering the Property - Co-tenants may encumber their own interest but not the interests of the other co-tenant(s)

Fair Dealing - Co-tenants have a duty of fair dealing toward the other co-tenant(s)

Question 6

Forms of Leaseholds

Answer 6

Tenancy for Years - Tenancy for a fixed, determined period of time

Periodic Tenancy - Tenancy that continues for successive intervals

Tenancy At Will - No fixed period of duration with express agreement of termination at any time

Tenancy At Sufferance - Tenant wrongfully holds over

Question 7

Tenancy for Years

Answer 7

Characteristics - Tenancy for a fixed, determined period of time

Termination - (1) Ends automatically at the termination date, (2) breach of lease covenant (i.e., failure to pay rent), and (3) landlord’s acceptance of tenant’s surrender

Writing - Required when over one year (satisfy Statute of Frauds)

Question 8

Periodic Tenancy

Answer 8

Characteristics - Tenancy that continues for successive intervals

Creation - (1) Express language or (2) implication/operation of law (i.e., rent set in specific intervals or tenancy for years that does not satisfy the Statute of Frauds)

Termination - (1) Written notice (2) at least equal to the length of the period
- Year-to-Year - One month notice is sufficient

Question 9

Tenancy At Will

Answer 9

Characteristics - No fixed period of duration

Creation - Express agreement that the lease can be terminated at any time

Termination - Either party may terminate at any time with notice and a reasonable time to vacate

Question 10

Tenancy At Sufferance

Answer 10

Characteristics - Tenant wrongfully holds over

Termination - Landlord (1) evicts or (2) elects to hold the tenant to a new tenancy

Hold-Over Doctrine - If a tenant continues to in possession after their right has expired the landlord may (1) evict or (2) bind the tenant to a new periodic tenancy
- Commercial Leases - Same period
- Residential Leases - Month-to-month

Question 11

Leases

Answer 11

Characteristics - A contract that governs the landlord-tenant relationship

Lease Covenants
- Common Law - If one party breached the covenant, the other party could recover damages for that breach but the landlord-tenant relationship persisted and the lease endured
- Modern Law -
– Landlord - Can terminate a lease for lack of payment
– Tenant - Can terminate lease for breach of quiet enjoyment or habitability

Question 12

Tenant’s Duties

Answer 12

Implied Duty to Repair - Maintain the premises with routine repairs and not commit waste
- Does not included ordinary wear and tear

Express Duty to Repair
- Residential Lease - Landlord must maintain habitability
- Commercial Lease - Express covenants to repair are enforceable

Duty to Pay Rent - Failure to pay rent results in landlord ability to evict or sue for rent
- Self-Help - Landlord must not engage (i.e., change locks, forcibly remove tenant, or remove tenant’s possessions)
- Tenant Lacks Possession - (1) Surrender, (2) ignore, or (3) re-let
– Surrender - Landlord treats the tenant as abandoning premises as implicit offer to surrender, thus ending the lease
– Ignore - Landlord holds tenant responsible for unpaid rent Minority Rule
– Re-let - Landlord may re-let the premises on the tenant’s behalf and hold the tenant liable for any deficiency MAJORITY RULE

Rent Deposits - Landlords may retain a security deposit for damage actually suffered to the premises

Condemnation of Leaseholds - If the entire leasehold is taken by eminent domain, the tenant’s liability for rent is extinguished
- Compensation - Lessee is entitled to compensation
- Temporary or Partial Condemnation - Does not discharge rent obligation, but lessee is entitled to compensation

Duty to Not Use Premises for Illegal Purpose - If the premises is used for illegal purposes, the landlord may terminate or obtain damages and injunctive relief

Question 13

Landlord’s Duties

Answer 13

Duty to Deliver Possession -

Implied Covenant of Quiet Enjoyment -

Implied Warranty of Habitability -

Retaliatory Eviction -

Anti-Discrimination Legislation -

Question 14

Transfers of Leaseholds

Answer 14

Assignment -

Sublease -

Question 15

Landlord’s Tort Liability

Answer 15

COMMON LAW Caveat Lessee -
- Exceptions -

MODERN TREND General Duty of Reasonable Care -

Fixtures -

Chattels Incorporated Into Structure -

Common Ownership -

Divided Ownership -

Question 16

Forms of Easements

Answer 16

Affirmative -

Negative -

Appurtenant -

Gross -

Question 17

Creation of an Easement

Answer 17

Grant -

Implication -

Prescription -

Express Reservation -

Question 18

Scope of Easements

Answer 18

Scope -

Use of Servient Estate -

Question 19

Termination

Answer 19

Estoppel -

Necessity -

Destruction -

Condemnation -

Release -

Abandonment -

Merger -

Prescription -

Question 20

Licenses

Answer 20

Characteristics -

Creation -

Revocation -
- Estoppel -
- License Coupled with an Interest -

Question 21

Profits

Answer 21

Characteristics -

Question 22

Covenants

Answer 22

Characteristics -

Negative Covenants -

Affirmative Covenants -

Question 23

Covenants the Run with the Land

Answer 23

Requirements for Burden to Run -

Requirements for Benefit to Run -

Question 24

Equitable Servitudes

Answer 24

Characteristics -

Creation -

General/Common Scheme Doctrine -

Defenses -

Termination -

Question 25

Adverse Possession

Answer 25

Elements -
- Continuous -
- Open and Notorious -
- Actual and Exclusive -
- Hostile -

Tacking -

Disabilities -

Future Interests -

Covenants in True Owners Deed -

Land Immune from Adverse Possession -

Question 26

Land Sale Contracts

Answer 26

Characteristics - Conveys equitable title

Statute of Frauds Applied - Contract requires a writing signed by the party against whom enforcement is sought
- EXCEPTION Doctrine of Part Performance - If Statute of Frauds is no met, a buyer may still enforce the contract if: (1) the oral contract was certain and clear, and (2) acts of partial performance clearly prove the existence of a contract (i.e., two of the following (1) buyer takes possession, (2) buyer has paid the purchase price or a significant portion, or (3) buyer has made substantial improvement to the property)

Inaccurate Descriptions of Land - When land is in accurately described, the contract is valid but the price is adjusted pro rata

Doctrine of Equitable Conversion - Once the contract is signed, the buyer is the owner of the property, but the seller retain legal and right of possession until the closing

Risk of Loss - Once the contract is signed, the buyer bears the risk of loss

Passage of Title on Death - If a party dies between the signing of the contract and the closing, the parties title passes to their estate

Implied Promises - Seller (1) will provide marketable title at closing and (2) will not make false statement of material fact
- Marketable Title - Title is reasonably free from doubt and threat of litigation