MBE Property Flashcards
1
Q
Joint Tenancy
A
Two or more own with the right of survivorship
2
Q
Tenancy by the Entirety
A
A protected marital interest between spouses with the right of survivorship
3
Q
Tenancy in Common
A
Two or more own without the right of survivorship
4
Q
What is needed to create a joint tenancy?
A
TTIP
Time: @ the same time
Title: same title (will, deed, etc.)
Interest: identical, equal interests
Possess: rights to possess the whole
5
Q
Severance of a Joint Tenancy results in a
A
Tenancy in Common
6
Q
Severance of a Joint Tenancy – S and P
A
Sale and Partition
7
Q
Three types of partition:
A
1) voluntary agreement
2) Partition in Kind (a judicial action)
3) Forced Sale (a judicial action)
8
Q
How to severe a Tenancy by the Entirety?
A
death, divorce, mutual agreement, or execution by a joint creditors of both the spouses.
9
Q
What are all Co-Tenants Entitled to?
A
(1) Rent from a Third Party and
(2) Reimbursement for costs of necessary repairs
10
Q
Are co-tenants entitled to reimbursement for improvements to the property?
A
No
11
Q
A co-tenant must not commit waste. What are the 3 types of waste?
A
- Voluntary Waste: willful destruction
- Permissive Waste: neglect
- Ameliorative Waste: unilateral change that increases the value
12
Q
Tenancy for Years
A
lasts for a fixed, determined period of time.
NOTE: watch for a term date. If you have a term date from the start it’s a tenancy for years.
13
Q
How does a Tenancy for Years terminate?
A
Automatically at its term date
14
Q
How are Tenancy for Years created?
A
a written lease as required by the SOF
15
Q
Periodic Tenancy
A
continues for a specific period (weekly/monthly) until terminated upon proper notice.
16
Q
How is a Periodic Tenancy created?
A
(a) Express agreement
(b) implication if rent is paid at specific periods OR
(c) law (when a tenant for years remains after term of the period or lease is invalid)
17
Q
Termination of a Periodic Tenancy
A
written notice at least a full period in advance
18
Q
Tenancy at Will
A
continues until either party terminates it
“to T for as long as L or T desires”
19
Q
Creation of a Tenancy at Will
A
Express agreement
20
Q
Termination of a Tenancy at Will
A
notice and reasonable time to quit the premises OR
operation of law (e.g. due to death or commission of waste).
21
Q
Tenancy at Sufferance / Hold-Over
A
Created when a tenant wrongfully holds over – remains in possession past the expiration of the lease
22
Q
Termination of a Tenancy at Sufferance/ Hold-Over
A
Lasts only until the Landlord either evicts the tenant or elects to hold the tenant over (hold the tenant to a new tenancy)
No notice of termination is required.
23
Q
Tenants have a duty to pay rent that runs with the land. If a tenant remains on the land & does not pay rent, the landlord can:
A
(a) Evit the tenant OR
(b) Allow the tenant to remain on the property and sue for damages.
24
Q
May a Landlord engage in self-help if the tenant does not pay rent?
A
NO – it is flatly outlawed and is punishable civilly and criminally
the landlord must not engage in self-help like changing the locks, forcibly removing the tenant, or removing any of the tenant’s possessions.
25
A tenant wrongfully vacates with time left on the lease. What are the landlord's options?
SIR
Surrender
Ignore
Re-let the premises
Under the majority rule, the landlord must at least TRY to re-let to mitigate costs.
26
Implied Warranty of Habitability
Landlord MUST provide a place to live that is habitable (reasonably suitable for human needs)
27
if the Implied Warranty of Habitability is breached then the tenant may:
M R 3: Move, Repair, Reduce, Remain
a) move out & terminate the lease;
b) withhold or reduce the rent;
c) repair the issue & deduct the cost; OR
d) remain on the premises & sue for damages.
28
Constructive Eviction occurs when:
1) Landlord breached a duty to the tenant;
2) The breach caused a loss of the substantial
use and enjoyment of the premises;
3) Tenant gave landlord notice of the condition;
4) Landlord failed to remedy the condition within
a reasonable time; AND
5) Tenant vacated the premises.
*If constructive eviction occurs, the tenant may terminate the lease and seek damages.
29
Under Residential Leases, the Landlord has a duty to:
(1) repair common areas, AND
(2) warn of latent defects that create a risk of serious harm that the landlord knows of (or should know of).
30
The Fair Housing Act does NOT apply to
(1) owner-occupied buildings with 4 or fewer units in which persons live independently of each other and
(2) single-family homes sold or rented by an owner who owns no more than three single-single family homes
31
The Fair Housing Act
protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status (except senior housing).
32
When the Fair Housing Act applies, landlords must permit disabled tenants to:
Make reasonable modifications to the premises to accommodate their disabilities at the tenant's own expense.
33
Assignment of a Lease
when a tenant transfers ALL of his remaining lease interest to a third-party.
A lease may be freely assigned UNLESS the lease states otherwise.
− An assignment CANNOT be for a longer period than the remaining lease term.
34
Assignee and Assignor liability for Rent/ Breach
− Assignee → liable to the landlord for rent and all
other covenants that run with the land (privity of
estate).
− Assignor (Original Tenant) → also remains
liable for rent (privity of contract).
35
Sublease
when a tenant (sublessor) transfers ONLY SOME of his remaining lease interest.
The tenant may freely sublet UNLESS a provision in the lease states otherwise.
− A sublease CANNOT be for a longer period than the remaining lease term.
36
Sublease liability for Rent
Sublessee is NOT liable to the landlord for rent or other covenants (there is no privity of estate).
Sublessor (original tenant) remains liable to landlord for rent (privity of contract).
37
Caveat Lessee
The common law doctrine-
it was the tenant's responsibility to research leased premises before agreeing to a lease and that the landlord was not responsible for the defective condition of the leased premises;
38
Five (5) Exceptions to Caveat Lessee (CLAPS)
CLAPS
Common Areas: duty of reasonable care in maintaining common areas
Latent Defects: duty to warn of hidden defects (dangerous conditions)
Assumption of Repairs: must repair with reasonable care
Public Use Rule: liable for any defects on the premises that cause injury to members of the public
Short-term of furnished dwelling: stricter duty-- responsible for any defective condition which proximately injures a tenant.
39
Fixture
a fixture is a chattel that has been so affixed to the land that is has ceased being personal property and has become a part of the realty.
40
Easement
a non-possessory interest in the use of someone else’s land
41
Easement in Gross
benefits a specific owner’s enjoyment (DOES NOT pass to subsequent owners, unless easement is for commercial activity).
42
Easement Appurtenant
benefits any owner’s enjoyment (DOES pass to subsequent owners, if owner had notice).
43
4 Ways to Create an Easement:
PING
Prescription
Implication
Necessity
Grant
44
Easement by Grant
Requires:
1) writing signed by the grantor;
2) identify the land and parties involved; AND
3) indicate grantor’s intent to convey the easement.
45
Easement by Prescription
COAH
Created when a possessor’s use of the land is:
1) continuous;
2) open and notorious;
3) Actual use for the statutory period (i.e. 10 years).
AND
4) hostile (without permission from the land owner);
46
Easement by Implication
Established when:
1) a single tract of land is divided by a common
owner;
2) a pre-existing use by the grantor is established
prior to the division;
3) continuous and obvious indication that the use
was meant to be permanent;
4) the use affects the value of the land conveyed;
AND
5) the use is reasonably necessary for the owner’s use and enjoyment of the land conveyed (important or highly convenient).
47
Easement by Necessity
Created if:
1) land owned by one owner is subdivided; AND
2) the easement (access of land) is essential to the
use because no other ingress/egress is
available.
48
Termination of an Easement (END CRAMP)
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
49
License
the privilege to use another’s land in a particular way.
Doesn’t need to be in writing.
− May be revoked at any time by the licensor, BUT
licensor may be estopped from revoking if licensee invested substantial money/labor in reasonable reliance.
*A license is NOT an interest in land.
50
Land Sale Contract Requirements
To be valid, the contract MUST:
1) Be in writing (satisfy the Statute of Frauds);
2) Describe the property;
3) Identify the parties;
4) Contain the purchase price; AND
5) Be signed by grantor/grantee (depending on whom the contract is being enforced against).
51
Merger Doctrine (Land Conveyances)
Once the deed is delivered & accepted, the land sale contract merges with the deed.
− Result is that rights to sue under the contract are EXTINGUISHED, and a buyer may only sue upon the deed.
Some Courts→will NOT apply the merger doctrine if it doesn’t carry out the probable intent of the parties.
− Examples: mutual mistake, scrivener’s error.
52
Warranty of Marketable Title
The Seller has the duty
to convey marketable title to a buyer.
53
Marketable Title
title must be free from any
cloud and not subject to any adverse claim.
54
Title is Unmarketable if the property has a substantial defect, such as:
a) Defect in the record chain of title; and/or
b) Encumbrances→mortgages, liens, restrictive
covenants, easements, a claim of adverse
possession, or zoning violations.
*Zoning restrictions DO NOT make title unmarketable.
55
If seller CANNOT convey marketable title at closing, the buyer may
withdraw without penalty OR
waive the defect. If the buyer waives, seller cannot cancel the contract.
56
Damages for Breach of Warranty of Marketable Title are measure by
the reduced value of land.
57
Doctrine of Equitable Conversion
splits ownership between the buyer and seller once the land sale contract is signed.
– Buyer → has equitable title of the property.
– Seller → has legal title, and holds the property in
trust for the buyer.
58
Risk of Loss Majority View
risk of loss transfers to the buyer
upon signing the contract.
59
Risk of Loss Minority View
Seller bears the risk of loss
UNLESS buyer has possession or title to the property at the time of loss.
60
If the contract contains a “time is of the essence” clause and the buyer fails to perform on the closing date, it’s deemed a
material breach
and the seller may keep the down payment as liquidated damages.
61
Is specific performance an appropriate remedy for real proper?
YES, Real property is unique.
EXCEPT when the property has been sold to a Bona Fide Purchaser without notice.
62
When is Specific Performance NOT an appropriate remedy for real property?
When the property has been sold to a BFP
63
Home Builder’s Implied Warranty
Protects buyers of newly built homes against latent defects AND warrants the home is safe and fit for human habitation at the time of sale.
64
Breach of the Home Builder’s Implied Warranty
allows a buyer to recover damages discovered within a reasonable time for:
a) Defective construction; OR
b) Construction not performed in a workmanlike
manner (the accepted norms of the industry).
65
Deed Requirements
A valid deed MUST:
1) be in writing;
2) signed by the grantor;
3) identify the parties (grantor & grantee);
4) describe the property; AND
5) indicate the grantor’s intent to convey the land.
66
General Warranty Deed – Contains 6 covenants of title:
What are the Present Covenants (only breached at the time of conveyance)?
1) Seisin – rightful owner;
2) Right to convey; and
3) Covenant against encumbrances.
67
General Warranty Deed – Contains 6 covenants of title:
What are the Future Covenants (only breached at the time of conveyance)?
1) Warranty – to defend against any third-party
claims to title;
2) Quiet enjoyment – to not be bothered by a
third-party’s claim to title; and
3) Further assurances – to do whatever is
reasonable to perfect title.
68
Quitclaim Deed
Is an “as is” deed; contains NO warrantees/covenants.
− The grantor is NOT liable for any encumbrances or defects in title.
69
Special Warranty Deed
Warrants that seller has not breached the covenants of title during the ownership:
1) Seller has not previously conveyed the property;
AND
2) No encumbrances against title made by seller.
70
Estoppel by Deed
If grantor conveys title to real property before he owns it, the title will automatically vest in the grantee as soon as grantor acquires title.
71
Chain of Title
shows all transfers for a piece of land. −
2 Indexes → one organized by names of
grantors, and one organized by names of grantees.
72
Wild Deed
A deed NOT recorded properly, and thus not discoverable in the chain of title.
− A wild deed DOES NOT put subsequent purchasers on constructive notice of a land transfer.
73
Notice Statute Jurisdiction
a subsequent bona fide purchaser (no notice + pays value) will prevail over a prior grantee that failed to record.
74
Race Statute Jurisdiction
whomever records first prevails (notice is irrelevant).
75
Race-Notice Statute Jurisdiction
a subsequent bona fide purchaser (no notice + pays value) is protected ONLY IF he records before the prior guarantee.
76
3 types of Notice
(a) actual notice;
(b) constructive (record) notice; or
(c) inquiry notice (notice of what a reasonable inspection of land would provide).
77
Bona Fide Purchasers (BFP)
is a person who:
1) takes real property without notice of a prior
conveyance; AND
2) pays valuable consideration.
78
Is a person who receives land by gift (a donee) or by bequest (heir, devisee) a Bona Fide Purchaser?
NO
79
Shelter Rule
A person who purchases land from a BFP receives the same status and rights as the BFP.
80
To be valid, the mortgage MUST:
1) be in writing,
2) be signed by the party to be charged, AND
3) reasonably identify the parties and the land.
81
Purchase Money Mortgage
Used by the buyer (the borrower) to purchase real property, and the seller is the lender who secures the mortgage on the property.
− The holder has priority over ALL other junior and senior mortgages.
82
Future-Advance Mortgage
a loan by which the lender may provide future payments under the original loan.
− Lender secures the mortgage for the ENTIRE amount the loan, including future advances.
83
Deed of Trust
Similar to a mortgage, but involves 3 parties:
1) Borrower (the purchaser of the property); 2) Lender, and
3) Third-party Trustee who holds title to the
property until the loan is paid off.
*Title is transferred to the purchaser once the loan is paid.
84
Zoning Ordinances & Laws (land-use regulations) – are ALLOWED when it
easonably protects the health, safety, morals, or general welfare of the community.
85
Variance
Is an exception to a zoning ordinance. −
Two types → (i) use variance and (ii) area
variance.
86
A variance application may be granted if:
1) Property owner shows he will suffer hardship
because of the ordinance; AND
2) Variance will not damage or harm the public
welfare.
87
Previous Non-Conforming Use – Allows a landowner to continue to use his land...
in violation of a later enacted zoning law.
− If the prior use was originally legal, a subsequent zoning law will NOT bar the continued use.
*The non-conforming use MUST be continuous, otherwise it’s no longer protected.
88
Adverse Possession Elements
1) Continuous for the statutory period;
2) Open and notorious – use that would put a true
owner on notice;
3) Exclusive;
4) Actual – possess the land as a true owner would; AND
5) Hostile and under a claim of right (without the true owner’s consent).
89
Aggregation / Tacking
Adverse possessors in privity may aggregate their years spent possessing the property to meet the statutory period.
90
Privity exists when
the land is voluntarily transferred to another (i.e. deed or bequest).
91
Constructive Adverse Possession
If a person takes possession of a portion of land under color of title (invalid deed), the adverse possession extends to the entire portion of land described in the deed/title.
92
Real Covenant
a non-possessory interest in land that obligates the holder to either do something or refrain from doing something.
93
To enforce the Benefit of a Covenant, must have:
1) a writing satisfying the statute of frauds,
2) intent that the covenant runs with the land,
3) vertical privity – when a successor holds the
entire interest held by a predecessor, AND
4) the covenant touches & concerns the land
(makes the land more useful or valuable).
94
To enforce the Burden of a Covenant, must have
1) a writing
2) intent
3) vertical privity
4) the covenant touches & concerns the land
(5) horizontal privity AND
(6 ) the new owner must of had notice of the covenant.
95
Equitable Servitude
a covenant that equity will enforce if the burdened estate had notice of the covenant (regardless of whether it runs with the land).
Remedy = injunctive relief
96
To enforce the Benefit of an Equitable Servitude, must have:
1) a writing satisfying the statute of frauds,
2) intent for the servitude to be enforceable, AND
3) the servitude touches and concerns the land
(makes the land more useful or valuable).
97
To enforce the Burden of an Equitable Servitude, must have
1) a writing satisfying the statute of frauds,
2) intent for the servitude to be enforceable,
3) the servitude touches and concerns the land
(makes the land more useful or valuable). AND
(4) the new owner must have notice of the servitude (actual, constructive, or inquiry).
98
Common Scheme or Plan Doctrine –
courts will imply reciprocal restrictive covenants on land parcels in a subdivision sold by a developer ONLY IF:
1) Developer had a common scheme or plan that ALL parcels would be subject to the restriction at the time sold; AND
2) Landowner had notice of the restriction
