small stuff for property

Question 1

lease vs. sublease

Answer 1

Assignment of lease: when the assignor transfers his ENTIRE interest in the property, meaning all of his rights and duties under the lease are given to assignee for entire time remaining.

Sublease: transfer of anything less than tenant’s entire interest to third party (not for remaining time)

Question 2

Sublesssee liability

Answer 2

a sublease does NOT establish privity of estate or contract between sublessee and LL. The sublessee is not liable to the LL, but the original lessee is still liable to the LL under privity of K and estate

Only OG tenant liable.

Question 3

Assignee liability

Answer 3

New tenant landlord relationship is established between LL and assignee. The landlord and assignee are now in privity of estate with each other, but OG tenant is also liability under privity of K.

Both liable.

Question 4

elements of constructive eviction

Answer 4

SING
1) substantial interference
2) notice - Tenant must inform LL and give him reasonable opportunity to repair
3) Good bye - tenant must vacate within reasonable time after LL fails to repair

Question 5

Covenants implied in lease

Answer 5

Implied warranty of habitability (ONLY RESIDENTIAL, NOT COMMERCIAL)

Question 6

covenant of quiet enjoyment leases

Answer 6

neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises. A landlord can breach this covenant through constructive eviction.

Question 7

tenant’s remedies when implied warranty of habitability is breached

Answer 7

MR3
1) move
2) repair and deduct
3) Reduce rent or withhold all rent
4) remain in possession and sue for damages

Question 8

LL liability for defects in public use property

Answer 8

known defects

Question 9

For a seasonal or short term lease of a dwelling, what is LL liable for

Answer 9

defects that cause harm to tenant

Question 10

4 types of easements?

Answer 10

1) easement appurtenant
2) easement in gross
3) affirmative easement
4) negative easement

Question 11

4 types of affirmative easements (implied)

Answer 11

PING
1) prescription
2) implication
3) necessity
4) grant

Question 12

4 types of negative easements

Answer 12

LASS
1) Light
2) Air
3) Support
4) stream water

Question 13

what is an easement in gross?

Answer 13

No one is benefitted by the easement (no dominant parcel), and there is only 1 parcel

*easement is for commercial purposes

ex. right to place a billboard on another’s lot, right to run utility line across land, right to fish in another’s pond

Question 14

ways an easement is terminated

Answer 14

END CRAMP

E - Estoppel (servient owner materially changes positions in reliance, relied on holder who said they would abandon)
N - Necessity ends (when need ends unless expressed in a WRITING)
D - destruction (of serviant land)
C - Condemnation (of serviant land) - eminent domain power will terminate the easement
R - Release by holder to servient owner
A - Abandonment (physical action)
M - Merger (easement and servient land held by same person)
P - Prescription (by servient owner)

Question 15

how is an implied reciprocal servitude created? IMPORTANT HIGHLY TESTED

Answer 15

1. developer had a common scheme of residential development; and
2. The lot holder had notice of the promise in the prior deeds (AIR)

Question 16

if a party is seeking an injunction, but then there is no writing evidencing the covenant, what is your next option for recovery?

Answer 16

implied equitable servitude – common scheme doctrine

Question 17

notice statute

Answer 17

Under a notice state, a subsequent BFP who pays valuable consideration takes the property free of all prior interests.

3 types of notice

Question 18

3 types of notice:

Answer 18

1) actual
2) inquiry
3) record

Question 19

warranty deed covenants

Answer 19

PRESENT:
Right to convey
Seisin
No encumbrances

FEW: future
Further assurances
Quiet Enjoyment
Warranty

Question 20

Shelter Rule

Answer 20

Even if a BFP HAD notice, they can still take the land free of it under the Shelter Rule. Under the shelter rule, a person who is a bona fide purchaser will prevail against any interest that the transferor would have prevailed against because they took from a purchaser who did not have notice.

Question 21

WD: covenant against encumbrances

Answer 21

assures that there are neither visible encumbrances nor invisible encumbrances (easements, servitudes, mortgages)

Question 22

Present covenants are breached

Answer 22

at the time of conveyance. Time may pass to enforce and it does not run with the land

Question 23

who cannot enforce a present covenant against an original grantor

Answer 23

a remote grantee. Majority courts say that a remote grantee cannot sue to enforce a present covenant. Minority rule says unless had notice of encumbrance.

Question 24

easement by implication

Answer 24

does not need to be in writing. Typically, you need a prior use by common grantor that was subsequently divided. However, if there was no prior use, the easement can still exist where:
1. lots in subdivision are sold with reference to a map plan; or
2. holder of profit has an implied easement for extraction of materials

Question 25

issue with whether an easement continues with a subsequent purchaser

Answer 25

whether the purchaser was a BFP for valuable consideration without notice of the easement. If they had any type of notice, they take subject to it.

Question 26

creation of Fee simple condition subsequent

Answer 26

But if
Upon condition that
Provided that

Question 27

fee simple determinable

Answer 27

So long as
Until
Within
During

Question 28

a possibility of reverter for a fee simple determinable gives the party

Answer 28

they are owner in fee simple

Question 29

devisable

Answer 29

pass by will

Question 30

descendible

Answer 30

pass by intestacy if holder dies with no will

Question 31

alienable

Answer 31

transferable during holders lifetime

Question 32

CL Rule and Recording Statutes

Answer 32

Under Common law, the default was first in time first in right. Recording statutes change this to protect later grantees.

Question 33

wild deeds

Answer 33

a recorded deed unconnected to the chain of title (e.g., due to a clerk’s filing error or the failure to record a prior deed). Arises when the original deed between grantor grantee was not recorded, so a records search would not yield subsequent deeds.

Question 34

implied easement

Answer 34

1, Easement exists prior to division of a single tract of land;
2. Common grantor’s use is continuous and apparent;
3. Use is reasonably necessary for enjoyment of the dominant tenement; and
4. Parties intended the use to continue after division of the land

Question 35

what if the tenant wrongfully vacates with time left on their lease, what are the LLs options?

Answer 35

SIR

1) surrender (did the LL accept surrender)
2) ignore the abandonment (do nothing and hold tenant liable for rent)
3) re-let the premises

majority of states require LL to at least try to relet. If she does not attempt to do so, her recover will be reduced

Question 36

Landlord duties to repair or maintain

Answer 36

Generally, Landlord has no duty to repair or maintain the premises unless provided for in the lease or by statute under the implied warranty of habitability.

Question 37

what kinds of things can expose a LL to tort liability to a tenant?

Answer 37

CLAPS
1) common areas (reasonable care)
2) latent defects (duty to disclose)
3) assumption of repairs (liable for negligent repairs)
4) public use (known defects)
5) seasonal or short term lease of a furnished dwelling (defects that will cause harm)