RP rule statements Flashcards
Theory of constructive eviction
When a landlord substantially interferes with the tenant’s use and enjoyment of the property by breaching a duty to the tenant, the tenant’s obligation to pay rent may be excused under the theory of constructive eviction
How to end lease early bc of constructive eviction
To end a lease before the end of its term by constructive eviction, the landlord must have breached a duty, which caused the loss of the substantial use and enjoyment of the premises, the tenant must give the landlord notice of the problem and reasonable opportunity to cure, and tenant must vacate the property within a reasonable period of time
Acts that don’t amount to constructive eviction
Temporary or de minimis acts generally do not amount to constructive eviction
Duty to repair under CL
Under common law, there was no implied duty on the part of the landlord to repair leased premises
Warranty of fitness/suitability
A warranty of fitness or suitability is implied in a contract for the sale of a newly constructed residence.
Implied duty to repair
modern standard
The majority of jurisdictions today enforce an implied duty upon the landlord to repair under a residential lease, even when the lease attempts to place the burden on the tenant, except for damages caused by the tenant
Implied duty to repair and commercial leases
Courts are reluctant to imply a landlord’s duty to repair in commercial leases because the implied warranty of habitability does not apply in commercial leases.
When does termination of a lease occur
Termination of a lease occurs automatically upon the expiration of the term.
When does a lease end before the expiration of the term
Termination may occur before the expiration of a term when the tenant surrenders the leasehold, and the landlord accepts the return of the leasehold
What happens if a tenant abandons the leasehold without justification
When the tenant abandons the leasehold without justification, the landlord may treat the abandonment as an offer of surrender and could accept that surrender by retaking the premises.
Landlord’s option when tenant tries to terminate lease early
When a tenant abandons the leasehold, the landlord may treat the abandonment as an offer of surrender and accept such surrender, or the landlord may attempt to re rent the premises on the tenant’s behalf and hold the tenant liable for any deficiency
Landlord’s duty to mitigate damages
The majority of jurisdictions require a landlord to mitigate damages by attempting to re-rent the premises in the event that the tenant abandons the property and breaches the lease.
Doctrine of anticipatory breach and leases
The doctrine of anticipatory repudiation does not apply to leases. While the landlord may sue the tenant for rent as it becomes due, a landlord may not sue for future rent under the lease.
What does a grantor of a general warranty deed guarantee
The grantor of a general warranty deed guarantees that he holds 6 covenants of title, three of which are present covenants.
3 covenants of present title
The three present covenants of title are the covenant of seisin, the covenant of the right to convey, and the covenant against encumbrances
Covenant against encumbrances
The covenant against encumbrances guarantees that the deed contains no undisclosed encumbrances.
When does a breach of covenant against encumbrances occur
A breach of the covenant against encumbrances occurs when a property is encumbered by a mortgage, lease, easement, or covenant not specified in the deed
Majority rule on breach of covenant against encumbrance
In most states, a breach of the covenant against encumbrances occurs even if the grantee is aware of the encumbrance.
Minority approach to breach of covenant against encumbrances
Some states do not recognize a breach if the grantee had knowledge of the encumbrance, if it was visible, or if it benefitted the land.
What can a buyer recover for breach of convenant against encumbrances
A buyer can recover for breach of the covenant against encumbrances either the difference in value between title with and without the defect, or the cost of removing the encumbrance, whichever is less.
fee simple determinable
A fee simple determinable is limited by specific durational language (e.g., so long as, until)
termination of a FSD
A fee simple determinable terminates automatically upon the happening of a stated condition
FI associated with a FSD
A grantor retains a possibility of reverter
Fee simple subject to a condition subsequent
A fee simple subject to a condition subsequent is limited in duration by specific conditional language (provided that, but if)
Termination of FSSCS
Upon the occurrence of the stated condition, FSSCS will terminate only if the grantor affirmatively demonstrates an intent to terminate.
FI associated with a FSSCS
The grantor must explicitly retain the right to terminate the fee simple subject to a condition subsequent in the conveyance. The future interest is called the right to reenter
What if it’s not clear whether a conveyance is FSD or FSSCS?
When terms of a conveyance are ambiguous, courts typically adopt a preference for a FSSCS.
What if court implies a FSSCS but there is no forfeiture provision?
Court may chose to imply a forfeiture provision or not. If they imply a forfeiture provision, grantor and their successor must make a demand. If they don’t imply one, the grantee has a fee simple absolutel
majority view on survivorship contingencies
The majority view is that a survivorship contingency applies at the termination of the interests that precede distribution of the remainder
minority view on survivorship contingencies in life tenancies
The minority view interprets a survivorship contingency to require surviving only the testator and not the life tenant.
General rule on assigning leases
Absent language to the contrary, a lease can be freely assigned
What if a lease prohibits T from assigning lease
When a lease prohibits the tenant from assigning the lease, the tenant may nevertheless assign the premises. However, the landlord can then terminate the lease for breach of one of its covenants and recover any damages.
What if a lease prevents assignment w/o L permission and is silent as to the standard for L exercising that permsision
When a lease prevents assignment without the permission of the landlord, and the lease is silent as to a standard for exercising that permission, the majority approach imposes a requirement that the landlord may withhold permission only on a reasonable ground in relation to the property being leased and not on a whim or personal prejudice.
Traditional rule for L exercising discretion over assignments
The traditional rule is that the landlord may withold permission at his discretion
diff from maj rule
Tenancy for years
A tenancy for years is an estate measured by a fixed and ascertainable amount of time
How may a termination of tenancy for years occur
Termination of a tenancy for years may occur before the expiration of the term, such as when the tenant surrenders the leasehold.
when does a tenant surrender the lease
A tenant surrenders a lease by offering to return the lease to the landlord and the landlord accepting the return
What if the landlord accepts the surrender of the lease
If the landlord accepts surrender, the lease is terminated and the tenant is not obligated for future rent
What if the landlord does not accept surrender of the lease
If the landlord does not accept the tenant’s surrender of the lease (e.g., notifies the tenant as such), they retain the right to continue to enforce the lease, which means the tenant is obligated to continue paying rent
What is a nonconforming use post-zoning change
When a zoning ordinance is enacted or modified, there are often properties within a zone that do not conform to the requirements for that zone – i.e., nonconforming use
General rule about making provisions for property with an existing nonconforming use
A zoning ordinance must generally make provisions for property with an existing nonconforming use
Test for whether a nonconforming use is protected by grandfather provision
Unless the ordinance provides otherwise, the time for testing whether the nonconforming use is protected by a grandfather provision is the date the zoning ordinance takes effect.
Increasing nonconforming use if you’re grandfathered in
Generally, a property owner whose nonconforming use has been grandfathered in is not entitled to subsequently increase the nonconforming use, such as by enlarging a building that houses a nonconforming use or acquiring and developing adjacent property in accord with the nonconforming use
Can a nonconforming use be increased in frequency?
An owner may be permitted to increase the frequency of nonconforming use to upgrade the means to accomplish the nonconforming use, so long as the nature and character of the use does not constitute a substantial change.
mortgage definition
A mortgage is an interest in real property that serves as a security for an obligation.
Future advance mortgage definition
A future advances mortgage is a mortgage given by a borrower in exchange for the right to receive money from the lender in the future
What are future advance mortgages used for
Future advance mortgages are generally used for home-equity, construction, business, and commercial loans
What provisions can future advance mortgages have
Future advance mortgages can provide for obligatory advances or optional advances.
Basic rule for determining priority of interests on property
If there is more than one interest in property, the basic “first in time, first in right” rule is applied to determine the priority of interests.
Exception for first in time first in right with regard to future advance mortgages.
The first in time first in right rule is subject to an exception for future advance mortgages. If the advances under this kind of mortgage are optional, a subsequent mortgage has priority over amounts that are actually loaned after the future advances mortgagee has notice of the subsequent mortgage
majority rule on notice, future advance mortgages, and priorty
In a majority of states, the mortgagee must have actual notice of a subsequent interest in order for later loan disbursements to lose priority.
minority rule on notice, future advance mortgages, and priorty
The minority rule requires constructive notice of a subsequent interest.
General rule statement for general warranty deed
no pun intended
The grantor of a general warranty deed guarantees that he holds six covenants of title – three future covenants, and three present covenants.
What are the three present covenants of title
The three present covenants are the covenant of seisin, the covenant of the right to convey, and the covenant against encumbrances.
Easement in gross
An easement is in gross if it is granted to benefit a particular person or entity (as opposed to the land)
When does an express easement by grant arise
An express easement by grant arises when it is affirmatively created by the parties in a writing that satisfies the requirements for a deed.
What if a written easement is granted but not recorded
If a written easement is granted, but not recorded against the servient estate, then the easement is not enforceable against a bona fide purchaser
What if an easement in gross is recorded
If an easement in gross is recorded, then the burden of the easement is transferred automatically with the transfer of the servient estate
What does the warranty of fitness/suitability provide
Under this type of warranty, the seller warrants that he used adequate materials and good workmanship in working on the residence.
What does the implied warranty of fitness/suitability cover the buyer for
The implied warranty generally covers latent construction defects, such as a defective electrical, plumbing, or mechanical system, or a leaky roof or drainage problem that does not manifest itself until after the sale
What are the damages for a breach of implied warranty of fitness/suitability
Damages are generally based on the cost of repairs to bring the residence into compliance with the warranty
Termination of easements
easements can terminate by written release, prescription, estoppel, condemnation, and abandonment.
what is not sufficient to terminate an easement
neither a statement of an intent to abandon, nor non use alone can extinguish an easement absent affirmative conduct
Terminating an easement by abandonment
an easement can only be terminated based on a theory of abandonment if the owner of the easement acts in an affirmative way that clearly shows intent to relinquish the easement right
rule to determine priorities in the absence of a recording act
unless a recording act governs, the common law rule of first in time, first in right generally applies to determine priorities in land.
purpose of notice statute
a notice statute tends to protect subsequent pruchasers against interest holders who could have, but failed to record documents describing their interest.
How can notice arise
notice can be actual, by inquiry, or constructive
wild deeds
a recorded deed that is not within the chain of title is a wild deed. Thus, it will not show up in a grantor-grantee index
inquiry notice
A grantee has inquiry notice if a reasonable investigation would have disclosed the existence of prior claims. A grantee with inquiry notice cannot prevail against prior claims
Does taking a quitclaim deed create inquiry notice?
In most states, taking a quitclaim deed does not itself create inquiry notice
tenancy in common
A tenancy in common is any tenancy with two or more grantees with equal rights to posses or use the property, but no right of survivorship.
Joint tenancy
A joint tenancy exists when two or more persons own property with the right of survivorship
creation of a joint tenancy
A joint tenancy must be created (i) with each joint tenant having equal right to possess or use the property, (ii) with equal interests, (iii) at the same time, (iv) and in the same instrument.
PITT
