Real Property

Question 1

Possession (Co-tenants)

Answer 1

Each co-tenant has the right to possess all of the property

One co-tenant may not bind the other co-tenant to a boundary line agreement with a neighbor

Question 2

Tenancy by the Entirety

Answer 2

A joint tenancy between married persons with a right of survivorship. Joint tenants must be married when a deed is executed

Neither spouse can alienate property without other’s consent

Question 3

Joint Tenancy with Right of Survivorship

Answer 3

Requires 4 unities (possession, interest, time, title). Each co-tenant must have equal right to possess, equal interests, and must have been granted interests at the same time and via the same instrument.

There needs to be clear intent to create a joint tenancy with right of survivorship (often with survivorship language)

Question 4

Rights of co-tenants (Profits)

Answer 4

Need to share with other co-tenants:
- Profits from natural sources on land (split by each tenant’s share)
- Profits from 3rd parties
- Rent from 3rd parties

Do not need to share with other co-tenants:
- Profits from own use of land
- Rent for own use/possession of land

Question 5

Ouster

Answer 5

Under the majority rule, for an ouster to occur, the co-tenant in possession must refuse a demand by another co-tenant to use the property.

When a co-tenant refuses to allow another co-tenant access to the property, the other co-tenant may seek an injunction against the first to gain access to the property.

Question 6

Obligations of co-tenants (Payments)

Answer 6

When is contribution allowed:
- Property-related expenditures (taxes/mortgages) - if more than co-tenant’s share, can compel (but if sole possessor, can only collect if > rental value of property)

When is contribution not allowed:
- Repairs (unless, in some jurisdictions, other co-tenants were notified of repairs). But note, necessary repairs can be offset from rental income received from 3rd party.
- Improvements

Question 7

Landlord - Tenant Agreements

Answer 7

Tenancy for Years - express tenancy agreement for a fixed period of time. Termination occurs automatically upon expiration of term (no notice required in such case), or prior to end of term if parties agree or there has been a material breach.

Periodic Tenancy - tenancy that renews periodically (i.e. monthly or yearly) for an indefinite period of time. To terminate, usually must give notice before the beginning of the last period of the periodic tenancy

Tenancy at Will - tenancy that proceeds indefinitely, so long as tenant and landlord desire. Can be terminated by either party, usually with advanced notice (most states - 30 days).

Question 8

Easement

Answer 8

A right held by one person to use the land of another for a specific or limited purpose. The land that is subject to the easement is the servient estate, while the land that benefits from the easement is the dominant estate.

Types:
Express
Implication
Necessity
Prescription

Characteristics:
Always discuss if easement is affirmative (gives easement holder right to use land in some way) or negative (restricts owner from using land in some way). Also discuss if easement is appurtenant or gross.

Easements are presumed to be appurtenant (tied to the land) unless facts clearly indicate otherwise. Such easements automatically transfer with the land.

Scope:
Always include discussion of scope. Change in scope is based on reasonableness standard.

Question 9

Express Easement

Answer 9

An express easement is a written agreement that conveys an easement. Such agreements must comply with the Statute of Frauds and the requirements for a valid deed (need identities of grantor and grantee, words of transfer, description of property interest being transferred, and grantor’s signature).

Scope:
Defined by terms of express agreement. If not well-defined, then courts look to intent. Scope of easement cannot conflict with terms of express agreement. In absence of express conflict, courts often evaluate whether change in scope is reasonable.

Question 10

Easement by Necessity

Answer 10

An easement by necessity is an easement that is created when a parcel is rendered virtually useless after being severed. To have an easement by necessity, you need the following elements: (1) dominant and servient parcels were previously under common ownership, (2) the lot was severed into the two parcels, (3) upon severance, the dominant lot was rendered virtually useless (eg landlocked) without the benefit of an easement

Question 11

Landlord Duties

Answer 11

Duty to Repair, IWH, IWQE

Question 11

Termination of easement

Answer 11

Easement can be terminated through a variety of methods, including:

Abandonment - owner of easement acts in an affirmative way that shows clear intent to relinquish easement right.
Agreement (Express writing)
Merger -
End of necessity
Prescription (adverse possession elements)
Estoppel - detrimental reliance on ineffective abandonment

Question 12

Real covenants and Equitable servitudes

Answer 12

(1) restrict the right to use real property or (2) impose obligations on owners of real property. Covenant - damages, equitable servitude - injunction

Defenses (always include!!)
Changed circumstances
- if benefit of a restriction cannot be realized due to changed circumstances, the restriction may not be enforceable.

For equitable servitude:
Laches (unreasonable delay in pursuing equitable relief)
Unclean hands

Question 13

Tenant Duties

Answer 13

Duty to pay rent, Duty to not commit waste

Duties are discharged if: (1) landlord materially breaches agreement, or (2) the premises are destroyed and tenant is not at fault for the destruction

Question 14

Duty to repair

Answer 14

The landlord has an implied duty to repair under residential leases, even when the lease attempts to place the burden on the tenant (except for damages caused by tenant). Failure to comply with this duty may constitute a constructive eviction or breach of IWH

Question 15

IWH

Answer 15

Implied warranty of habitability is an implied landlord covenant in residential leases

requires the landlord to maintain the property such that it is reasonably suited for residential use and habitation. Violations of applicable housing and safety codes constitute a breach of IWH.

When a tenant’s premises are rendered unsuitable for residential use, the tenant must notify the landlord, and give the landlord reasonable time to remedy the issue. If the landlord fails to do so, the tenant may (1) withhold rent, (2) pay for repairs and deduct the cost from rent, or (3) defend against eviction. The tenant does not have a duty to move out, however.

Question 16

IWQE

Answer 16

Summary:
IWQE - implied covenant in most lease agreements (residential and commercial) which prohibits landlord from taking actions which substantially interfere with tenant’s possession, use, and enjoyment of land. A breach of IWQE may occur via actual/partial eviction, or constructive eviction.

Actual eviction - landlord kicks the tenant out of the property (no obligation to continue to pay rent)

Partial eviction - landlord renders a portion of the property unusable for tenant. Tenant’s obligation to pay rent for entirety of premises is excused

Constructive eviction:
When (1) landlord substantially interferes with tenant’s use or enjoyment of land, (2) tenant provides notice to landlord, (3) landlord fails to rectify , and (4) tenant moves out within REASONABLE time, the tenant is said to be constructively evicted and is excused from paying rent.

Question 17

Lease assignment

Answer 17

In general, when a lease is silent as to whether a tenant can assign or sublet, the tenant is free to do so. If the contract restricts this right contingent on the tenant’s obtaining of consent from the landlord, courts often look to see what standards are delineated as to providing such consent. If no standard, majority of jurisdictions require that it be for a commercially reasonable ground. Minority of jurisdiction allow for landlord to exercise discretion.

Question 18

Landlord suing for future rent

Answer 18

Although a landlord can sue a tenant for rent as it becomes due, a landlord cannot sue for future rent due under the lease because the doctrine of anticipatory repudiation does not apply to leases

Question 19

Restraint on Alienation

Answer 19

A restraint on alienation is a restriction on transferring property. Generally, restraints on alienation are only permissible if reasonable.

When determining reasonableness, courts often look at a number of factors, including the duration of the restraint and its utility.

Restraints for a definite amount of time –> usually reasonable.
Restraints for an indefinite amount of time –> usually unreasonable

Unreasonable restraints are stricken from conveyance

Question 20

Prohibition Clauses (on Assignments or Sublets)

Answer 20

Prohibition clauses on assignments or sublets are generally valid.

If a lease prohibits assignment, the tenant can still usually sublet

If the tenant breaches the prohibition clause, the landlord can terminate the lease. BUT, landlord waives the prohibition as soon as he/she accepts payment from the tenant

When the lease allows assignment/sublet only with landlord’s consent, the grounds for denial must be on a commercially reasonable ground

Question 21

Testamentary transfer

Answer 21

If a grantor gives the deed to an independent third party for delivery upon the grantor’s death, the grantor’s intent to make a present transfer is determined by the facts.

If the grantor identified to transfer only upon his death, it is not a present intent to transfer, and such testamentary transfer must meet the requirements of a will.

Question 22

BFPs (Bona Fide Purchasers)

Answer 22

Persons who pay value for property and have no notice of prior claims.

BFPs are protected by notice and race-notice statutes

Question 23

General Warranty Deed

Answer 23

Present Covenants: Covenant of Seisin, Covenant of Right to Convey, Covenant Against Encumbrances

Future Covenants: Covenant of Quiet Enjoyment, Warranty, and Future Assurances

Question 24

Special Warranty Deed

Answer 24

Contains same covenants as general warranty deed but only warrants against defects arising during the time grantor had title

Question 25

Quitclaim Deed

Answer 25

No covenants

Question 26

Scope of easements

Answer 26

Express - defined by terms
by Necessity - determined by extent of necessity
by Implication - determine by quasi-easement
by Prescription - limited to nature and extent of adverse use

Change in scope is evaluated under a reasonableness standard in light of the purpose of the easement

Question 27

Non-conforming use variance (Grandfathering in)

Answer 27

A non-conforming use variance is a waiver of an existing zoning ordinance, permitting the landowner to use the land for the exact same purpose in which it was used prior to the current ordinance

Must show that it is not contrary to public interest

This is for nonconformities that were already in existence pre-ordinance

Exceptions -
(1) Cannot expand on nonconformity (but can increase frequency)
(2) involuntary termination of nonconformity (if nonconformity terminated by natural cases, then cannot resumed nonconforming use)

Question 28

Use variance (for post-ordinance development)

Answer 28

A landowner seeking to develop a property in violation of a zoning ordinance may seek a use variance. To do so, the landowner must show (1) that the variance would not be contrary to public interest and that (2) compliance with the ordinance would result in unnecessary hardship

Question 29

Easement by Implication

Answer 29

Elements:
(1) severance of common ownership
(2) prior use
(3) apparent and continuous
(4) reasonably necessary

Question 30

Lateral Support

Answer 30

A party has a right to lateral support from adjoining land. When an individual excavates his own land, that individual is strictly liable for any damage that occurs to the natural state of the land. If the land has been improved (i.e. a structure has been built on the land), the first individual is strictly liable only if the land would have collapsed in its natural state. If the damage arises because of improvements on the land, then the owner of the property may only recover based on negligence.

Question 31

Deed of Trust

Answer 31

mortgage alternative wherein the borrower delivers title to a 3rd party trustee as security for the payment of the note to the lender, with the condition that the trustee re-conveys title to lender upon payment of note

Question 32

Distribution of proceeds from foreclosure sale

Answer 32

Go first to expenses associated with sale, balance and interest of mortgage obligation being foreclosed, balance and interest of mortgage obligations of junior lien holders in order of decreasing priority, and remainder to debtor-mortagor