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CA Bar Prep > Property > Flashcards

Property Flashcards

1
Q

Joint Tenants

A

joint tenancy is when two or more people own property equally. A joint tenancy has the right of survivorship meaning that when one joint tenant dies, the other gets the entire interest in land.

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2
Q

Creation of Joint Tenancy

A
  • Time = created at the same time
  • Title = same title
  • Interest
  • Possession
  • Express right of suvivorship
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3
Q

Severance of Joint Tenancy

A

A joint tenancy is severed by a conveyance or partition and depending on if its a title or lien theory jurisdiction, a mortgage. If title jurisdiction, a mortgage does sever the joint tenancy. If a lien theory jurisdiction, the mortgage is just a lien on the property.

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4
Q

Tenants in Common

A

A tenancy in common is the default form of tenancy. tenancy in common is when two or more people each own a undivided interest in land. Tenants in common have no right to survivorship, so when they die, their interest in property pass to their heirs.

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5
Q

Tenancy by the Entirety

A
  • Husband and wife only
  • right of survivorship
  • severed by death, divorce or agreement
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6
Q

Co-Tenancy Rules

A
  • Right to Possession
  • Tax/Mortgage = equal share and may seek reimbursement
  • Improvements = no right to reimbursement for unnecessary improvements
  • cotenants do not have to share profits earned while working on the land.
  • cotenants have to share profits from renting to 3rd parties
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7
Q

Landlord/Tenant Types of Tenancy

A
  1. Tenancies For Years
    Lease for a fixed period
  2. Periodic Tenancies
    Automactically renews from one period to the next, unless a party terminates the lease
  3. Tenancies at will
    Month to Month
  4. Tenancies at Sufferance
    Holdover tenant. Landlord can evict the tenant or hold him over to another term
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8
Q

Landowner Duties

A
  1. Duty to deliver possession of premises
  2. Covenant of Quiet Enjoyment
  3. Implied Warranty of Habitability (residential only) premises must be fit for human habitation
  4. Duty to repair
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9
Q

Tenants Remedies

A
  1. Constructive Eviction
  2. Partial Eviction
  3. Violation of Implied Warranty of Habitability
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10
Q

Constructive Eviction

A
  • premises must be uninhabitable
  • substantial interference with use & enjoyment
  • notice to landlord
  • landlord fails to respond
  • tenant can move out

A landlords action must substantially and permanently interfere with the tenants use and enjoyment of the property and the tenant must vacate the property. If the tenant does not vacate the property, the rent payment is still owed.

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11
Q

Partial Eviction

A
  • Tenant cant occupy the entire premise

- Tenant may withhold rent and doesn’t have to move out

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12
Q

Violation of Implied Warranty of Habitability

A

Tenant has three options.. can

  1. Terminate the lease and move out
  2. Make repairs and deduct cost from rent
  3. pay reduced rent, remain and sue for damages
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13
Q

Tenants Duties

A
  1. Duty to repair
  2. Duty of no illegal activity on land
  3. Duty to pay rent
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14
Q

Landlord Remedies

A

A landlord can evict a tenant. If the tenant abandons the land, the landlord can (1) terminate the lease (2) leave the premises vacant and sue for rent

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15
Q

Waste

A
  1. Voluntary (decreases value)
  2. Permissive (Neglect)
  3. Ameliorative (alterations)

If a mortgage commits waste without consent such as reducing the value of the property, the bank can foreclose and find the mortgager to be in default

Voluntary Waste - a tenant for life is liable to the vested remainderman for voluntary waste

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16
Q

Assignments

A

An assignment is when one person transfers all of their rights under a contract to another person. Assignments and subleases are strictly construed against the landlord so if the covenant prohibits assignment, it doesn’t prohibit sublease.

  • New tenant is personally liable
  • old tenant is also liable unless the landlord releases them by novation
  • An assignment does not give privity between the original landlord and the new tenant unless they sign a formal assignment
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17
Q

Sublease

A

Not the entire Interest

  • New tenant is not personally liable
  • Old tenant is liable
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18
Q

Easement and types of easement

A

An easement is a non-possessory right to use someone’s land.

Easement Appurtenant =
requires two pieces of land owned by two different people. There is a dominant (benefited land) and a servient (burdened land). it runs with the land. Easement belongs to the land and not the specified person

Easement in gross=
requires only one piece of land. It benefits a person. If the land is sold to a new owner, the easement is transferred with the land but the holder of the easement cannot transfer the easement to another person personally.

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19
Q

Creation of an Easement

A
  1. Express (in writing)
  2. Implied
  3. By necessity
  4. By prescription
  5. Estoppel (reliance)
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20
Q

Terminate an Easement (END CRAMP)

A
  1. Estoppel (reliance)
  2. Necessity Ends
  3. Destruction
  4. Condemnation (eminent domain)
  5. Release
  6. Abandonment with action
  7. Merger of Parcels
  8. Prescription
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21
Q

Profits

A

Holder has the right to enter and remove soil of something off the land

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22
Q

License

A

Right to use land for a specific Purpose and is revocable at will

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23
Q

Real Covenant

A

A covenant is a written promise to do or to not do something on the land. If a part is seeking money damages, it is a real covenant. Real covenants run with the land, which means that subsequent owners of the land may enforce or be burdened by the covenant.

  1. writing
  2. intent
  3. touch and concern land
  4. horizontal & vertical privity
  5. notice

intent = intent for the covenant to apply to future owners

touch & concern = promise restricts the use of the parcel or requires the parcel to do something

Horizontal Privity = privity between the original parties. Must have some shared interest in the land

Vertical Privity - Successor must own the entire interest

24
Q

Covenant of Quiet Enjoyment

A

Landlords cannot interfere, or permit others (such as other tenants in a multi-unit property) to interfere, with one’s right to use, possess and enjoy their possessory interest.

25
Q

Equitable Servitude

A

An equitable servitude is also a written promise to do or not do something on the land. If a plaintiff wants an injunction, then equitable servitude applies.

  1. Writing
  2. Intent
  3. Touch and Concern Land
  4. Notice

Remedies = Injunction

Equitable Servitude is implied

  1. Common plan or scheme
  2. Notice

An equitable Servitude can be invalidated for change in the character of the neighborhood. From a residential to a business area. Zoning ordinances do not invalidate a equitable servitude

26
Q

Termination of Covenant & Equitable Servitude

A
  • Agreement
  • Abandonment with action
  • changed conditions
27
Q

Adverse Possession

A

When someone wrongfully enters someones property to get possession. Doesn’t convey marketable title

  1. Open and notorious
  2. Hostile
  3. Exclusive
  4. Continuous
  5. Statutory Period

Government owned property cant be won by adverse possession

28
Q

Land Sale Contract

A

A contract that governs the agreement until the time of closing, at which time the deed merges and becomes controlling

29
Q

SOF Land Sale Contract

A

Contract must be in writing

  • parties identified
  • signed by the person to be bound
  • describes the land
  • price

Part Performance = doctrine of part performance may be used to enforce an otherwise invalid oral contract of sale provided the part performance unequivocally prove the existence of the contract

30
Q

Equatable Conversion

A

Once the contract is signed, the buyer is the owner. If the property is destrouyed before closing, the risk is on the buyer

31
Q

Marketable Title

A

There is an implied promise in every land sale contract that the seller covenants to transfer marketable title at the time fof closing. Marketable title is title free from doubt. There cant be

  • defects in chain of title
  • Encumbrances
  • Zoning
  • Waiver
  • Quitclaim deeds
  • Installment land Contract
32
Q

Remedy for Breach of Land Sale Contract

A
  1. Damages

2. Specific Performance

33
Q

Specific Performance

A
  1. Valid Contract
  2. Legal remedies inadequate
  3. Mutuality (both are bound)
  4. Plaintiff has fully performed
  5. Feasible to enforce
  6. No defenses
34
Q

Mortgages

A

A security interest in land, where the land is collateral. A mortgage must be in wiriting and satisfy the SOF. The mortgage must have a description of the property so a BFP is put on notice of the mortgage. “All real property I won” is insufficient for a mortage.

35
Q

Deed

A

Deed passes legal title

Must be:

  1. Signed by grantor
  2. Describe the land
  3. No consideration required
36
Q

Types of Deeds

A
  1. Quitclaim
  2. General Warranty
  3. Special Warranty
37
Q

Quitclaim Deed

A

Passes whatever interest the grantor actually had

38
Q

General Warranty Deed

A

Warrants against all defects in title

  1. Seisin (owns what he says he owns)
  2. Right to convey
  3. Encumbrances (no encumbrance on land). Covenant by grantor that the estate he will convey is free from encumbrances and is breached the second the deed is delivered entitling damages

ABOVE are personal covenants which must be broken the moment the deed is delivered or they are never broken. These personal covenants never run with the land.

BELOW are continuous in nature and may be enforced by later parties because of privity of estate continues to exist for subsequent owners who have warranty deeds

  1. Warranty of Title (promise to defend there is a lawsuit
  2. Quiet Enjoyment (promise possession wont be take)
  3. Further Assurances (promise will do anything to perfect title if there is a problem.. Not breached until there is an eviction from the property or person is damaged)
39
Q

Special Warranty Deed

A

Promise that grantor hasn’t conveyed the property to someone else and the land is free from encumbrances. Seller warrants that no title defects have occured during his ownership of the property

40
Q

Deed Delivery

A
  1. Physical transfer
  2. Intent to make a present transfer
  3. Acceptance

Delivery of a deed must have the present intent to transfer an interest. Ex: When Lisa graduates law school is a valid deed delivery because the grantor has relinquished control of the deed.

41
Q

Recording Acts

A

Types

  1. Notice
  2. Race
  3. Race Notice

BFP

  • take for value
  • no notice

Types of Notice

  1. Actual
  2. Record
  3. Inquiry

Make sure that the original deed was recorded because it may be outside the chain of title and later purchasers will validly own the land

42
Q

Subject to or Assumes mortgage

A

“Subject to” grantee not personally liable

“assumes the mortgage” is personally liable

43
Q

Uniform Vender & Purchaser Risk Act (M)

A

Minority of states, the risk of loss remains with the seller until the buyer takes possession of the land

44
Q

Vested Remainder

A

If the contingency never happens, then the person gets to keep the land. The property is going to pass to the person so it cant be contingent just the person may not be able to keep it if something happens

45
Q

Property Uninhabitable at Common Law (M)

A

the tenant is still liable to the landlord for the monthly rent despite the fact the property is uninhabitable.

46
Q

Ouster

A

Because a tenant has the right to exclusive possession of a property, a tenant cannot claim ownership of the property through adverse possession unless he commits an ouster. An ouster occurs when one tenant manages to wrongfully exclude their co-tenant from possession of the property. Has to be hostile and adverse to the co-tenants interest and the clock doesn’t start running if there hasn’t been an ouster.

An out of possession co-tenant is entitled to share in rents from 3rd parties, but an out of possession co-tenant is not entitled to collect rent from a co-tenant who is in actual possession unless the in possession co-tenant has wrongfully ousted the other co-tenant.

47
Q

If the tenant buys the property they are paying rent for (M)

A

The tenant is no longer obligated to pay under the contract because the landlord no longer has title.

48
Q

Non-Assignability Clause

A

Non assignability clause only prevent assignments and not subleases and vis a versa.

49
Q

Junior interest

A

Junior interest are usually extinguished when the property is sold at a foreclosure sale. However, if the junior interest holder is not made a party in the judicial proceeding and not provided notice of the foreclosure sale, its interest will not be extinguished and they can proceed against the buyer personally

50
Q

The right to redeem (M)

A

The right to redeem cannot be waived at the time the mortgage is created

51
Q

Installment Land Sale Contract

A

Not a mortgage. The buyer takes possession under a contract and makes payments to the seller. The seller doesn’t deliver a deed and legal title until all the payments have been made. If buyer defaults, foreclosure isn’t necessary. Lender can retake the property and the buyer forfeits all installment payments

52
Q

Proceeds of a Foreclosure Sale

A
  1. 1st to the costs of the sale
  2. Mortgage interest foreclosed
  3. then to junior interest
  4. then to the mortgager if any proceeds remain.

If there isn’t enough money left over for the mortgagor, then they can get a judgment personally against the mortgagee

53
Q

Fixtures

A

Trade fixtures, fixtures a tenant uses in a commercial lease for their business may be removed before the end of the lease unless removal would cause substantial damage. If damage is caused the tenant must either restore the premises or pay the cost of restoration.

54
Q

Estoppel by Deed

A

Also known as after acquired title. If a party grants title he doesn’t actually have and later acquires it, it will automatically transfer

55
Q

Fee Simple Subject to Condition Subsequent

A

an ownership interest in land where the present owner owns the land until something occurs. Then the grantor has the option to reenter the land and retake possession. Grantor must use words such as “but if” “right to reentry”.

56
Q

Restraint on Alienation

A

when a grantor attempts to restrict the transfer of land. A grantor can impose certain conditions on the land but cant stop a grantee from transferring the land to others. Sometimes a court will uphold a reasonable restraint on alienation such as a restriction that lasts only for a specified period of time, like a life estate.

57
Q

Fee Simple Determinable

A

Creates a possibility of reverter in the granto which means that the grantor’s right vests automatically as soon as the occurrence takes place without any action needed by the grantor.

CA Bar Prep (11 decks)

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