Real Property

Question 1

Joint tenancy

Answer 1

A joint tenancy is a concurrent estate in land with the right of survivorship. A joint tenancy is reached by a clear expression of intent and requires that the four unities must be present, meaning the interests must: vest at the same time, have been acquired by the same title, be of the same type and duration, and give identical rights to possession.
A joint tenant’s inter vivos transfer of his interest destroys the joint tenancy and the transferee takes as a tenant in common. A majority of states regard a mortgage as a lien on title, which does not sever a joint tenancy, a minority regard a mortgage as a transfer of title, which severs the joint tenancy.

Question 2

Mortgages

Answer 2

A mortgage is a security interest in real estate. Upon default, the mortgagee can take title to the real estate or have it sold and use the proceeds to pay the debt.

Question 3

Ouster

Answer 3

Each co-tenant has the right to possess and enjoy all portions of the property. An ouster occurs if one tenant wrongfully excludes another or claims a right to exclusive possession. An ousted co tenant is entitled to her share of the fair rental value of the property for the time she was wrongfully deprived of possession.

Question 4

Co-tenant contribution

Answer 4

Rent payment - A co-tenant out of possession has a right to share in rents from third parties.
Repairs - A co-tenant who pays more than his pro rata share of the cost of necessary repairs is entitled to contribution from other co-tenants.
Taxes - A co-tenant not in sole possession who pays the taxes can compel contribution from the other co-tenants, however a cotenant in sole possession is reimbursed only for the amount that exceeds the rental value of the property.

Question 5

Tenancy

Answer 5

A tenancy for years is for a fixed period of time. It ends automatically on its termination date, without either party giving notice, but may terminate prematurely when the tenant exercises a remedy for the landlords breach.

A periodic tenancy will be implied if the lease has no set termination date but provides for periodic payments. A periodic tenancy is automatically renewed from period to period until proper notice of termination is given by either party. The tenancy must end at the end of a natural lease period. Notice must be given a full period in advance, and the notice must be in writing and delivered to the other party.

Question 6

Covenant of quiet enjoyment

Answer 6

Implied in every lease is a covenant that neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment of the premises. If a landlord’s act or failure to provide a service he has a legal duty to provide renders the property uninhabitable, the tenant may terminate the lease and seek damages. A tenant can claim constructive eviction only if the landlord causes the injury, the breach substantially and materially deprives the tenant of her use and enjoyment of the premises, the tenant gives the landlord notice and a reasonable time to repair, and then the tenant vacates within a reasonable time. A landlord has no common law duty to repair, the duty must be provided for in the lease or required by statute or by the implied warranty of habitability.

Question 7

Implied warranty of habitability

Answer 7

Most states have an implied warranty of habitability for residential tenancies. The basic standard is that conditions must be reasonably suitable for human residence. When a landlord breaches the warranty of habitability, courts have allowed tenants to move out and terminate the lease, make repairs directly and offset the cost against future rent obligations, reduce or abate rent to an amount equal to the fair rental value in view of the defects, or remain in possession, pay full rent, and seek damages.

Question 8

Easements appurtenant

Answer 8

An easement appurtenant is the right to use someone else’s land, the servient parcel, for the benefit of the holder’s own tract of land, the dominant parcel. An easement holder has the right to use a tract of land but has no right to possess the land. Easements may be created expressly, through a writing that satisfies the statute of frauds. An easement is assumed to be perpetual unless the grant specifically limits the interest. An express perpetual easement may be terminated by unity of ownership, written release, abandonment, estoppel, or prescription. Recordation is not essential to the validity of a deed between grantor and grantee. An easement by reservation arises when a landowner conveys land but reserves the right to continue to use the tract after conveyance. When a servient parcel is transferred, the new owner takes it subject to the easement unless they are a BFP without actual, constructive, or inquiry notice.

Question 9

Deed of trust

Answer 9

A deed of trust is a security interest in real estate, in which the debtor gives a deed to a third party trustee and in the event of default, the lender instructs the trustee to foreclose on the deed of trust by sale. The sale may be either judicial or non judicial, under a power of sale clause that authorizes the trustee to advertise, give appropriate notices, and conduct the sale personally.

Question 10

Recording acts - race notice

Answer 10

Recording acts typically apply to both purchasers and deed of trust beneficiaries. Under a race notice act, a prior grantee will prevail unless a subsequent purchaser or beneficiary both is a BFP and records before the prior grantee.

Question 11

Deficiency

Answer 11

If the proceeds of a foreclosure sale are insufficient to satisfy the debt under a deed of trust, the beneficiary may sue the debtor for the deficiency.

Question 12

General warranty deeds

Answer 12

A general warranty deed contains six covenants for title: three present covenants - of seisin, of right to convey, and against encumbrances; and three future covenants - for quiet enjoyment, of warranty, and for further assurances.

Question 13

Future covenants

Answer 13

The covenant of warranty assures that the grantor will defend the grantee against any lawful claims of title by a third party and compensate the grantee for any losses sustained. The covenant of quiet enjoyment assures that the grantee will not be disturbed in her possession or enjoyment of the property by a third party’s lawful claim of title. The covenant of further assurances is a covenant to perform whatever acts are reasonably necessary to perfect the title conveyed if it turns out to be imperfect. Future covenants are not breached until a third party interferes with the possession of the grantee or her successors and liability arises when the covenanting party receives notice of the claim.

Question 14

Real covenants

Answer 14

A real covenant is a written promise to do or not do something on the land and runs with the land at law and subsequent owners may enforce are be burdened by it. For a burden to run with the land, there must have been intent by the original parties that successors can enforce the covenant, the successor must have notice under the relevant recording act, horizontal privity must exit between the original covenanting parties, vertical privity must exist between the successor and his predecessor, and the covenant must touch and concern the land.

Question 15

Equitable servitude

Answer 15

An equitable servitude is a covenant that equity will enforce against the assignees of the burdened land who have notice of it. It must generally be created in a writing that satisfies the statute of frauds and the usual remedy is an injunction against a violation of the covenant. For the burden to run, the covenanting parties must have intended that the servitude be enforceable by and against assignees, the assignee must have notice of the covenant, and the covenant must touch and concern the property. If the covenant is silent as to holds the benefit, any party subject to the servitude will be entitled to enforce the covenant.

Question 16

Sublease

Answer 16

If less than a full interest in a lease is transferred, it is a sublease. A sublease is not in privity of contract or privity or privity of estate with the landlord because it does not hold the original tenant’s full estate. Thus covenants in the main lease do not run with the land to bind the sublessee.

Question 17

Unlawful detainer

Answer 17

Most states have enacted unlawful detainer statutes which permit a landlord to evict a defaulting tenant or sublessee. In some states, a commercial landlord who does not receive rent when due can assert a lien on the personal property found on the leased premise. Most states statutorily prohibit forcible entry and prevent a landlord from using self-help to remove a tenant. Some states also bar the landlord from more subtle methods of regaining possession, such as changing locks.

Question 18

Nuisance

Answer 18

Private nuisance occurs when intangibles substantially and unreasonably interfere with a private individual’s use or enjoyment of her property. Public nuisance occurs when intangibles unreasonably interfere with the health, safety, or property rights of a broad segment of the community. To recover for public nuisance, a private party must suffer some unique damage not suffered by the public at large. Interference is substantial when it would be offensive, inconvenient, or annoying to an average person, as opposed to the result of the plaintiff’s hypersensitivity. Interference is unreasonable when the severity of the injury outweighs the utility of the defendant’s conduct, considering the neighborhood, land values, and alternative courses of conduct available to the defendant.

Question 19

Execution and delivery of a deed

Answer 19

A deed must be validly executed, delivered, and accpted. Execution means a deed must be in writing, be signed by the grantor, and reasonably identify the parties and the land. Delivery refers to the grantor’s intention to make a deed presently effective even if possession is postponed; physical transfer of the deed is not necessary. Recording of a deed raises the presumption of delivery but is not essential. When a deed expressly provides that title will not pass until the grantor’s death, it creates a present possessory life estate in the grantor and a future estate in the grantee.

Question 20

Adverse possession

Answer 20

To acquire property by adverse possession, the possessor must show an actual entry giving exclusive possession that is open and notorious, adverse and under a claim of right, and continuous throughout the statutory period. Exclusive possession means not sharing the land with the true owner or public at large. Possession is open and notorious when it is a use the owner would make of the land. The occupation must be sufficiently apparent to put the owner on notice. The adverse possessor must generally enter without the owners permission, but permissive possession can become hostile if the possessor clearly indicates he is now claiming the land hostilely. Actual possession gives the owner notice of trespass and an adverse possessor gains title only to the land they possess.

Question 21

Waste

Answer 21

A life tenant owes the future interest holder a duty to not commit waste on the premise, which includes a duty to not consume or exploit natural resources on the property.

Question 22

Judgement leins

Answer 22

By statute, a judgement creditor can obtain a lien on the defendant’s real estate. A creditor may be charged with notice of what he actually knows, what would have been revealed through reasonable inquiry, or what was contained in a deed properly recorded in his chain of title.

Question 23

Breach of lease terms

Answer 23

While traditionally covenants were independent of each other and one parties breach did not excuse the performance of the other party, modernly courts construe covenants as dependent when the breach relates to a material portion of the lease. As such the non breaching party’s performance may be excused after proper notice and time to cure.

Question 24

Fee simple subject to condition subsequent

Answer 24

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. The power of termination is generally retained by the grantor.

Question 25

Restraints on alienation

Answer 25

There are three types of restraint on alienation. Disabling restraints, which purport to make any attempted transfer ineffective; forfeiture restraints, under which an attempted transfer results in a forfeiture of the interest, and promissory restraints, under which an attempted transfer breaches a covenant. Any total restraint on a fee simple is void, but a restraint for a limited time a reasonable purpose may be upheld. When a restraint is voided, the effect is to strike the condition containing the restraint from the original conveyance.

Question 26

Transfers of interest

Answer 26

Absent an express restriction in the lease, a tenant may freely transfer his interest. A complete transfer of the entire remaining term is an assignment. A transfer of less than the entire remaining term is a sublease. An assignee and the landlord are in privity of estate and each is liable on all lease covenants that run with the land. A covenant runs if the original parties so intend and the covenant touches and concerns the leased land, meaning there is benefit to one party and a burden to the other. The covenant to pay rent runs with the land.