Review of MBE subjects -- property Flashcards
Rule of Destructibility of Contingent Remainders
At CL, any remainder that was still contingent at the time the previous estate ended was destroyed. Now, reverts to O or heirs, who hold subject to a springing executory interest.
Rule in Shelley’s Case
At CL, a grant of LE to A, then remainder to A’s heirs, created a FSA in A. This was to promote alienability. Not recognized in most places anymore.
Doctrine of Worthier Title
At CL (and still in most states today), a grant of an LE from O to A, then remainder to O’s heirs, just creates a reversion in O (not a remainder to O’s heirs).
This is a rule of construction, not of law– so grantor can express his contrary intent.
(Remember this because 0 – A – A’s heirs is Shelley’s Case, but O – A – O’s heirs is DWT. More O’s in the grant and in the doctrine’s name (doctrine, worthier).)
**DOES NOT APPLY IN MA
Under the CL RAP, a class gift that is invalid as to any class member is
void. Bad as to one, bad as to all.
The cy pres doctrine is embraced
by USRAP
Is a joint tenancy alienable, descendible, and devisable?
Alienable (though one party selling will terminate the joint tenancy), NOT descendible or devisable.
Four unities are
T-TIP: time, title, interest, possess
take at same time
by same title (i.e. instrument)
with identical interests, and
right to possess the whole
Act of entering into a K to sell your share of a joint tenancy will
sever the JT as to your interest. (equitable conversion – equitable title is with buyer from moment of K)
For the purposes of the MBE, a tenancy by the entirety arises _______.
For the purposes of MA essays, a TBE arises _______.
presumptively in a grant to married couple.
only if the grant explicitly says TBE. Will presume a grant to a married couple is a tenancy in common.
in MA, a creditor of one spouse can encumber what part of the TBE?
That spouse’s share, BUT can’t defeat the right of survivorship or encumber other spouse’s interest.
An attempt to unilaterally convey your half of a TBE is
void.
if landlord notifies tenant of a rent increase, and tenant holds over past her lease end, the terms of the new lease
will be the new rent price – EVEN IF tenant objected to the increase or said she wouldn’t pay it.
A periodic tenancy is known in MA as a
tenancy at will.
if a tenancy is from year to year (or greater), you must provide how much notice to terminate it?
at least 6 months, unless terms of lease say otherwise.
If a licensee is injured while visiting a tenant, the tenant is
liable, even if the landlord promised to make repairs. (She may, however, be able to seek indemnification from the landlord.)
If a lease is silent about making repairs, the obligation is
the tenant’s, to maintain premises and make ordinary repairs. Tenants cannot commit waste.
If a tenant is going to remove a fixture, when must she do so?
Before the lease ends, otherwise the fixture becomes the landlord’s property.
Constructive annexation occurs when
an item that is so closely connected with realty that it’s treated like a fixture, even though it’s not actually annexed to the realty.
Trade fixtures are
Usually removable, as long as not an integral part of the premises and tenant pays for any damage caused by removal.
Elements of constructive eviction are
SING:
substantial interference notice (given to L) get out (tenant leaves when L doesn't fix problem)
MBE: implied warranty of habitability applies to
residential leases only.
MA: implied warranty of habitability applies to
residential and commercial leases.
If a landlord allows assignment or sublease once, in violation of lease terms, he
has waived right to object to future transfers by that tenant, unless he reserves the right.
Caveat lessee is the
baseline norm on the MBE (not in MA).
Exceptions to caveat lessee on MBE are
CLAPS (tenant “claps” when she finds out about these exceptions):
- -common areas
- -latent defects (of which L knows or should know) – duty to warn but not to repair at CL
- -assumption of repairs – if L makes repairs, can’t do so negligently
- -public use (L who leases public space and should know b/c of nature of defect and short-term nature of lease that T won’t repair)
- -short-term leases of furnished dwellings
Negative easements are generally recognized in these categories:
light, air, support, streamwater from artificial flow (and in some cases, scenic view)
Negative easements can be created
only expressly, in signed writing
An appurtenant easement passes
automatically with the dominant (benefited) tenement
automatically with the servient (burdened) tenement, unless the buyer is a BFP without notice of the easement.(constructive notice counts as notice)
One should record an easement
on the burdened tenement, so that the person with the benefit is protected against future buyers taking the burdened tenement without notice of the easement.
Easements in gross are transferable
only if they are for commercial purposes.
An easement by implication is created when
previous use was apparent, and parties expected it would continue because it was reasonably necessary to the dominant parcel’s use (think: hookup to sewer drain)
A party’s subjective knowledge of an easement’s existence is _____________ when determining whether there is an easement by implication.
irrelevant; as long as the easement was apparent and reasonably necessary to dominant tenement’s use, it doesn’t matter whether the party taking the property knew the easement existed or not.
Nonuse of an easement
is not enough to end it. Must demonstrate by physical action that you don’t intend to use the easement again.
A license is
freely revocable unless estoppel applies.
An attempt to create an oral easement will
create a freely revocable license instead.
When will the burden of a real covenant run?
WITHN: writing, intent to bind successors, touch and concern the land, horizontal and vertical privity, notice (successor had notice when she took)
Notice is NOT needed for the burden of a real covenant to run if
the person whose estate is burdened is a donee.
When will the benefit of a real covenant run?
WITV: writing, intent to bind successors, touch and concern, vertical privity
When will an equitable servitude run with the land?
WITN: writing, intent to bind, touch and concern, notice
**Privity is NOT required for an equitable servitude to run.
MBE only: A covenant contained in a subdivision deed can be enforced, under the general scheme doctrine, by
any neighbor in the subdivision (this is an equitable servitude, so doesn’t have to be privity)
If surrounding developments have meant that no lots in a subdivision are suitable for residential development anymore, ________________, but if some still are, _____________.
the changed conditions doctrine means that covenants may be voided; the covenants will not be voided. Whole area must have become incompatible with residential development.
If O has a disability that begins after A’s adverse possession commences, O is
out of luck. A can still adversely possess.
Implied promises in every land contract are
seller will provide marketable title at closing; seller will not make any false statements of material fact (or material omissions)
There are no implied warranties of fitness or habitability in land Ks, unless
it’s a sale by a seller-builder – then there’s an implied warranty of fitness & workmanlike construction.
Deed must contain
words of grantor’s intent, signature of grantee, ID of parties, description of land.
If identity of grantee is left blank when deed is delivered, courts will
presume that grantee has the authority to add that in.
If grantor has present intent to be bound, but does not handover a deed, the deed has
been delivered. (Even if, e.g., delivery to third party saying: “give this to X when I die.” That still signals a present intent to create a future interest, so delivery requirement is met.)
If deed is delivered with an oral condition,
the oral condition drops out and terms of deed govern.
A wild deed is a deed that’s
untethered to the chain of title and thus incapable of providing record notice.
If buyer of property assumes the mortgage, who is personally liable on the mortgage?
Both buyer and original mortgagor – buyer primarily, original mortgagor secondarily.
If buyer of property does not assume the mortgage but takes subject to it, who is personally liable on the mortgage?
Only the original mortgagor – but mortgagee can still foreclose on the land if he doesn’t pay.
A debtor may/may not waive the right to redeem land after default?
May not.
