Real Property MEE Rules Flashcards
When may a T’s obligation to pay the rent be excused under the theory of constructive eviction?
When LL substantially interferes with the T’s use and enjoyment of the property by breaching a duty to the T
In order to end a lease before the end of its term by constructive eviction:
LL must have breached a duty, which caused the loss of substantial use and enjoyment of the premises, T must have given the LL notice of the problem and reasonable opportunity to cure, and the T must vacate the property within a reasonable period of time
There is no constructive eviction when:
the acts of the LL are temporary or de minimis
Under common law, does the LL have a duty to repair leased premises?
Not under the common law; modern approach is to enforce an implied duty upon the LL to repair under a residential lease, even when the lease attempts to place the burden on the T, except for damages caused the T
Courts are reluctant to imply a LL’s duty to:
repair in commercial leases because the implied warranty of habitability does not apply in commercial leases
The covenant of quiet enjoyment is breached when:
the LL, someone claiming through the LL, or someone with superior title disrupts the possession of the T
Termination of a lease occurs:
automatically upon the experation of the term; termination also may occur before the expiration of the term when T surrenders the leasehold, and the LL accepts the return of the leasehold
When a T abandons a leasehold without justification:
LL may treat the abandonment as an offer of surrender and could accept that surrender by retaking the premises
When a T abandons a leasehold, LL may:
treat the abandonment as an offer to surrender and accept such surrender, or LL may attempt to re-rent the premises on the T’s behalf and hold T liable for any deficiency
Do a majority of jurisdictions require LL to mitigate damages?
Yes. A majority of jurisdictions require LL to mitigate damages by attempting to re-rent premises, in good faith, in the event T abandons the property and breaches the lease
Does the doctrine of anticipatory breach apply to leases?
No. While a LL may sue T for rent as it becomes due, LL may not sue for future rent under the lease
Termination of easement by merger:
occurs when the owner of the dominant or servient estate acquires fee title to the other estate
An easement by implication may be created when:
The owner of two parcels of land previously used one parcel to benefit the other - court may find that upon the transfer of one parcel, the parties intended the use to continue if that use was continuous, apparent or known, and reasonably necessary to the dominant land’s use and enjoyment
Generally, when there are 2+ mortgages on a property, which has priority?
The earliest mortgage
When does a joint tenancy exists?
When at least two people own property with the right of survivorship, AND each joint tenant has the four unities: the right to possess or use the property and equal interests which were created at the same time and in the same instrument
What is the result of the severance of a joint tenancy?
The severed share is converted to a tenancy in common
Can a joint tenant grant a mortgage in his joint tenancy interest?
Yes
In title theory states (minority), granting a mortgage:
constitutes a transfer of title, severing a joint tenancy and converting it into a tenancy in common
What result does a joint tenant leasing his interest have on the joint tenancy?
Some jurisdictions hold that the lease destroys the unity of interest;
Other jurisdictions believe the lease merely temporarily suspends the joint tenancy, which resumes upon expiration of the lease
When does a tenancy in common exist?
When two or more co-owners have an equal right to possess property, but DO NOT have a right of survivorship
What are the rights of tenants in common?
Each co-tenant holds an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the co-tenant’s interest;
Each tenant can unilaterally transfer, devise, mortgage, or lease his interest to a third party without affecting the interest of the other tenants
A co-tenant must account to other co-tenants for:
Rent received form third parties, but can deduct operating expenses, including necessary repairs, when calculating net proceeds
What happens when a joint tenant dies?
Its property passes automatically to the remaining joint tenants due to the right of survivorship.
What is the majority presumption regarding a conveyance to two or more persons?
The presumption is that the conveyance creates a tenancy in common rather than a joint tenancy, unless there is a clear expression of intent and survivorship language
Joint tenant grants mortgage in lien theory state
Mortgage is only a lien on the property and does not sever the joint tenancy absent a default and foreclosure sale
Joint tenant grants mortgage in title theory state
Mortgage severs title and tenancy would be converted into a tenancy in common
Joint tenant conveys individual interest to third party
Joint tenancy is severed and converted into a tenancy in common
What is a bona fide purchaser?
Purchaser who paid value for an interest and did not receive notice of the prior in time interest.
What are the three types of sufficient notice?
Actual, by inquiry, or constructive.
When is a grantee held to have constructive notice?
When all prior conveyances were properly recorded
Under the doctrine of equitable conversion, when a contracting party dies prior to performance:
Seller’s interest may be treated as personal property and the buyer’s interest may be treated as a real property interest for purposes of distributing property
Under the doctrine of equitable conversion, when the seller has devised his real property interests:
Proceeds from the sale of the property under contract are treated as personal property that passes to the devisee of the seller’s personal property
