Property Flashcards
(184 cards)
1
Q
Effect of foreclosure on the parties
A
- Extinguishes interest of mortgagor
- Exception = statutory redemption
- Purchaser take property free and clear from junior mortgages
- Senior interests remain
- Junior interests are generally destroyed (if they had notice)
2
Q
How to spot a waste problem
A
- Do multiple parties have a simultaneous interest?
- life tenant, landlord-tenant, concurrent estates, mortgage, etc.
- Is there a change in the value of the property due to the actions/inactions of the party in possession?
- Will the waste substantially change the interest taken by the party out of possession?
3
Q
Possibility of Reverter
A
- Future interest held by a grantor following a fee simple determinable
- Interest auto goes back to grantor (vests) after durational period ends
4
Q
When do other parties need to contribute to maintaining an easement
A
If they use the easement, they must contribute if they had adeuquate notice and an opportunity to participate in repair decisions
If they don’t use the easement, then they don’t need to contribute
5
Q
When is a restraint on alienation allowed and what is the effect of it?
A
- Alienation is restriction on the transfer of property
- Allowed if it is a partial restraint valid for a limited time and for a reasonable purpose
- Void if absolute restraint
- Restriction on use of property is generally allowed
- If restraint is valid, any attempt to transfer property is null and void
6
Q
What is an easement and how do servient vs. dominant fit in?
A
Easement is the right to make use of another person’s land
Servient estate = land burdened
Dominant estate = land benefited
7
Q
What happens if a deed is to a nonexistant buyer (such as a dead or fictional one)?
A
The deed is invalid as to that buyer’s interest
So if it is multiple buyers the others still get their interest
8
Q
What privity is needed for covenants to run?
A
- To run the burden
- Horizontal privity: Estate and covenant are in the same instrument
- Strict vertical privity: Successor took original party’s entire interest
- To rune the benefit
- Relaxed vertical privity: Successor need only take an interest that is carved out of the original party’s estate
9
Q
Is strict adherence to the closing date required?
A
- No not being able to close on the specific date is not grounds for rescinding contract unless the contract specifically states that:*
- time is of the essence
- circumstances indicate that this was the intention of the parties, OR
- one party gives the other party notice that time is of the essence.
10
Q
Duty to avoid waste in Landlord-Tenant situations
A
Implied in all leases
Must avoid voluntary and neglectful waste
Unless lease says otherwise, tenant can make changes that increase the value of the property
11
Q
Lapse (when it comes to wills)
A
- Lapse happens when the intended beneficiary die before the testator
- Gift traditional become part of residuary gift, but states have anti-lapse statutes
- Anti-lapse statute = Statute replaces the intended beneficiary with a family member (child) who stands in the shoes of their parent
- So to qualify the predeceasing beneficiary must be a relative of testator who leaves issue
- Anti-lapse statute = Statute replaces the intended beneficiary with a family member (child) who stands in the shoes of their parent
- Gift traditional become part of residuary gift, but states have anti-lapse statutes
12
Q
What happens if in a joint tenancy, one party leases and then dies
A
When the interest passes to the other owner, the lease is terminated
13
Q
Requirements for an express easement
A
- Subject to SOF, so must be in writing
- Created by a grant or reservation
- Reservation = I grant you blackacre, but I reserve the right to use the pool
- Subject to recording statutes
- Only way to have a negative easement
14
Q
Fee simple subject to an executory interest
A
- Fee simple that ends at the happening of an event, and the future interest is held by a third party (aka not the grantor)
15
Q
Six implied covenants of a deed
A
Present: (pre-deed)
- Covenant of Seisin: deed describes the land in question
- Covenant of the right to convey: grantor has right to convey property
- Covenant against encumberances: there are no undisclosed encumberances on the property that could limit its value
Future: (post-deed)
- Covenant of Quiet Enjoyment: Grantee’s possession will not be disturbed by third party claim
- Covenant of Warranty: Grantor will defend against future claims of title by third parties
- Covenant of Future Assurances: Grantor will fix future title problems
16
Q
Following the transfer of a mortgage is the seller liable for anything?
A
They are still perosnally liable for the note payments, unless there is an agreement that says otherwise.
17
Q
When can a seller keep a deposit as liquidated damages when a buyer breaches/rescinds?
A
When the deposit is less than 10% of the purchase price and the seller actually suffers a loss (such as having to find a new buyer)
Also, there is an overally reasonability component to it
18
Q
If tenant abandons property early or is evicted, does the landlord have a duty to ditigate damages by re-renting the property?
A
Split Rule
- Majority: Landlord must make reasonable efforts to re-rent
- Must treat it as vacant stock
- Does not need to accept unacceptable replacement tenant
- If no efforts made, tenant does not need to continue paying rent
- If efforts made, landlord gets difference between tenant rent and replacement tenant rent
-
Minority: Landlord does not have to mitigate damages
- Often applies to commerical leases
19
Q
Lateral Support Rights
A
A neighboring landowner cannot excavate so as to cause a cave in on an ajacent owner’s land
If adjacent owner’s structure contributes to cave in –> negligence standard
If no structure contribution –> strict liability
20
Q
What is the modern alternative to RAP?
A
The wait and see approach: we wait and see if an interest vests within the perpetuities period, typically 90 years
21
Q
When may a landlord transfer their interest?
A
Whenever, they do not need tenant’s permission
BUT new landlord is bound by terms of the existing lease
22
Q
How is rent treated with concurrent interests?
A
Rents received from a third party’s possession of the property are divided based on ownership interests (can deduct operating expenses)
23
Q
What is a fee simple?
A
- Entire wheel of cheese - The largest of the possessory estates
- Look for “A to O” or “A to O and his heirs”
- No future interest associate with one
24
Q
How are operating expenses, repairs, and improvements treated in a concurrent estate?
A
- Opearating Expenses
- Are necessary charges like tax and mortgage payments
- Divided based on ownership interest
- If one tenant pays more than their share, they can collect contribution from others
- Only one you can get reimbursement for
- Repairs and Improvements
- No right to reimbursement, but can get credit in parition
25
Tenancy at will
* What is it?
* How is it created?
* How is it terminated?
* **Definition:** no specific period and can be terminated at any time
* **Creation:** Just need express or implied agreement
* **Termination:** Can be terminated by either party without notice
* _Implication at Will:_ If lease only gives landlord right to terminate at will, tenant also gets it due to unconciousnability
* BUT vice versa is not true
* Only one where if landlord or tenant dies, the lease is terminated
26
Periodic Tenancy
* What is it?
* How is it created?
* How is it terminated?
* **Definition:** Repetitive and ongoing for a set period of time
* Renews automatically at the end of each period until one party gives termination notice
* **Creation:** Intent to create periodic tenancy
* Express or implied
* **Termination:**
* Old approach = in year to year need 6 months notice
* New approach = 1 month notice
* You must give notice before the start of what will be the last term and it is effective on the last day of the previous term
* Most jurisdiction require written notice
27
What happens if the holder of a vested remainder dies?
The interest passes to the holder's heirs
28
What happens if a contingent remainder does not vest before it becomes possessory?
The grantor has a reversion
29
How does waste apply to mortgages?
A homeowner cannot commit waste that will impair the lender's secuirty interest
It applies no matter the state's theory on lien/title
Concerned about affirmative, voluntary, and permissive waste
30
Declaration and powers of a common interest community
**Declaration:** Governing document that outlines covenants, restrictions, and particulars of board
* Rules are valid as long as they are not illegal, against public policy, or unconstitutional
**Powers:** Manage common property and administer the residents.
*examples:*
* Assements/fees
* Enforce rules
* Create new rules that are reasonably related to further a legitiamte purpose of the association
31
What are the requirements for implied covenant of quiet enjoyment (2)?
Landlord takes actions that make the premises :
* wholly or subtantially **unsuitable** for its intended purpose AND
* the tenant is **constructively evicted**
NOTE: Applies to commerical AND residential leases
32
What are the two methods for foreclosure?
**Judicial Sale:** Sale under supervision of the court
**Power of Sale:** Private Sale held by mortgagee
33
What are the four kinds of implied easements?
1. Easement by necessity
2. Easement by implication (prior use)
3. Easement by prescription
4. Easement by estoppel
34
What are the three types of concurrent ownership?
1. Tenancy in common
2. Joint tenancy
3. Tenancy by the entirety
35
Can you have an executory interest and a remainder at the same time?
Yes
36
Considerations for the scope of an express easement
* If terms are **ambiguous** --\> look at intent and purpose of parites
* If change in use --\> Apply reasonableness standard
* Future use must be reasonably foreseeable
* If after-acquired property --\> cannot use easement to access it
37
When can a tenant assign or sublease lease?
* If lease is silent, they may assign or sublet freely
* If lease requires landlord's permission, but provides no standard then split rule:
* **Majority:** Landlord may deny only for a commercially reasonable reason
* **Minority:** A landlord may deny at their discretion (for any reason)
38
Three types of common interest communities
* Owner's association: pay dues to association or boarch
* Condominiums: Units are individually owned, but common areas are owned as tenants in common
* Cooperatives: Property is owned by a corporation (residents/shareholders) that lease individual units to shareholders
39
Ademption
* Devise of property that fails because it is not in the testator's estate at death
* Basic Rule = gift fails and intended recipient gets nothing
* BUT: Satisfaction if testator gives intended beneficiary the promised gift during life and beneficiary keeps gift
40
In Landlord-Tenant situation, who has the duty to repair?
* Residential Lease --\> Landlord as long as:
* they are notified AND
* tenant did not cause the damage
* Commercial Lease --\> Tenant
41
What is the common law recording rule?
First in time, first in right
## Footnote
*All states modify this rule for certain deeds, but if state law doesn't apply common law rule controls*
42
What happens if a junior mortgage is not notified of the foreclosure and sale of the property by the senior mortgagee?
Then their mortgage is not extinguished
43
How is an implied reciprocal servitude created?
*usually comes up in planned communities*
* Must intend to create a covenant on **all plots** in the subdivision
* Promises must be reciprocal (benefit and burden each parcel equally)
* Must be negative: a restriction on the owner's use
* Sucessor must be on notice of the restriction
* Can be actual, constructive, or inquiry
* Must be a common plan or scheme
* Look for:
* Map of community
* Marketing or advertising of the community
* Oral or written mention that the lots are burdend
44
Vested vs. Contingent Remainders
* A vested remainder needs the following two things:
* It is given to a grantee that can be identified AND
* It is not subject to a condition precedent
* If one of those things is not met --\> contingent remainder
45
Easement by estoppel
**Requirements**
* Starts with a permissive use from first neighbor (license)
* Second neighbor relies on the promis in good faith
* Look for invested money
* First neighbor withdraws permission
* If reliance was detrimental to second neighbor, the first neighbor cannot withdraw permission
46
Rule of convenience
Closes a class to avoid RAP by closing when any member of the class is entitled to immediate possession
**Exceptions:**
* Transfer of a specific **dollar amount** to each class member
* Transfer to a sub-class that vests at a specific time
* Ex: To the children of B, and upon the death of each, to that child's issue
47
Who can prepare a contract of sale?
Msot states allow brokers and real estate agents to
BUT real estate agenents cannot draft legal documents like a deed or mortgage
48
What two interests does a lease create?
Property and contract
49
What are the four types of tenancies in a landlord-tenant relationship?
* Tenancy for years
* Tenancy at will
* Periodic tenancy
* Tenancy at sufferance
50
Joint Tenancy four unities + 2
1. Clear Expression of **intent** from grantor
2. **Survivorship** language
**Four Unities (PIT-T)**
* **Possession:** every joint tenant has an equal right to possess the whole of the property
* **Interest:** Joint tenant must have an equal share of the same type of interest
* **Time:** Joint tenants must receive their interests at the same time
* **Title:** Must receive their interst in the same instrument of title
* If one unity is lost the joint tenancy is severed and becomes a tenancy in common*
* Most common loss is inter vivos transfer*
51
What are the three kinds of deeds
1. General Warranty
2. Special Warranty
3. Quitclaim
*The lower in the list, the less protection *
52
What types of interests are covered by recording acts?
* Deeds
* Mortgages
* Leases
* Options
* Judgments affacting title
* Easements
* Covenants
* *title by adverse possession is not covered*
53
Cumulative vs. Mutually Exclusive Zoning
**Cumulative** = Traditional = residential allowed everywhere, commercial use is restricted, and industrial use is allowed in only a few areas
**Mutually Exclusive =** one type of use is permitted per zone
54
Three things that may affect continuous use for adverse possesion
1. Tacking: predecessors time can be tacked on to current possessor's time if they are in privity
2. Diability: If a disability exists when the trespasser enters the property then statute of limitations does not run
1. Diasbility = infancy, insantiy, imprisonment
3. Interuptions: If true owner ejects the adverse possessor the clock stops
55
Special Warranty Deed
Grantor warrants against defects cause by the grantor
Includes the six implied coventants
56
Deed in lieu of foreclosure
Mortgagor conveys the property to the lender to be released from debt instead of face foreclosure
57
What are the three requirements to meet statute of frauds for a land sale?
1. Writing
2. Signed by the party to be charged
3. Includes essential terms: Parties, description of property, price, and payment info
58
How does a lease effect a joint tenancy?
*Split Rule*
* Some say it severs
* Some say it is a temporary suspension of the join tenancy
59
When there are two mortgages on a home, and the first accepts a deed in lieu of foreclosure, what happens?
The second mortgage continues to exist
60
Life estate
* Present estate that is limited by a life
* Look for: For Life
* Or grantor's intent to create an estate that will end upon the death of the measuring life
* Ends when the measuring life ends
* Can be transfered during life, but not by will or intestate succession
61
What happens if only the promissory note and not the mortgage is transferred
The mortgage follows the note so it is also transferred
62
Doctrine of Attornment (l-t)
tenant must honor any covenant in his lease that has been assigned by the landlord to a third party, **if the covenant touches and concerns the land.**
63
In what property situations does the fair housing act prohibit discrimination?
* Rental
* Sale
* Findancing
* Adversiting
* Exceptions do not apply to this except religious organizations and privat clubs
... of property
BUT there are **exceptions:**
* Single family housing sold or rented **without** a broker
* Owner occupied property with \<5 living unites
* Religious organizations
* Private Clubs
64
Can trespassers remove fixtures they installed?
**Old Rule:** No
**New Rule:** Yes (or recover value they added) as long as they acted in good fatih
65
What mindset is needed to be a hostile adverse possessor?
* **Majority:** State of mind does not matter
* **Minority:** State of mind matters. Split on what state of mind is needed:
* **Good faith:** Possessor thinks they are rightful owner (the mistake mindset)
* **Bad Faith:** Possessor knows land is not their and they are trying to acquire title through adverse possession
66
Two basic duties of a tenant
1. Pay Rent
2. Avoid Waste
67
Rule in Shelley's Case
Prevents remainders in a grantees heirs, and merges the interests to create a fee simple
68
Changed circumstances doctrine
When the restriction no longer makes sense due to drastic changes in the surrounding area since the restriction was put in place
69
Tenancy for years
* What is it?
* How is it created?
* How is it terminated?
* **Definition:** For a fixed and ascertainable amount of time
* Does not need to be measured in years
* **Creation:** Intent to create leasehold
* If longer than one year need to satisfy SOF
* **Termination:** Automatically at the end of the term
* No notice is needed
* OR tenant surrenders lease
* OR T or L commits a material breach of the lease
70
Estoppel by deed
When grantor conveys land they do not own, and then later acquire title to the land, they are estopped from trying to repossess
71
Following things about implied easements:
* transferable?
* Sof?
* recording?
* They are transferable
* They are not subject to SOF
* Not subject to recording statutes
72
How does a mortgage impact a join tenancy?
*Split Rule!*
* **Majority:** mortgage is a lien and does not destroy joint tenancy
* **Minority:** Mortgage severs title and severs joint tenancy
73
If a tenant is leasing property and it is condemed what happens to the lease
If it is a full condemnation, the lease is terminated
If it is partial, they still must pay rent under the lease but they are due compensation for the condemed parts
74
What are the three types of notice for recording acts
* Actual: real, personal knowledge of prior interest
* Constructive: prior interest is recorded
* Inquiry: Reasonable investigation would have disclosed existence of prior interest
* Dude on the land and interest mentioned in deed (like an easement)
75
What is needed to be a validating life for RAP?
* Must be alive when the interests were created
* Can validate your own interest
* They tell us whether the interest vests within the perpetuities period
76
Effect of an installment land purchase
* Seller retains title until buyer makes final payment
* If buyer breaches
* Traditional rule = seller keeps the inatallment payments made and the property
* New rules
* Treat contract as mortgage and require seller to foreclose
* And even give buyer equitable right of redemption
* Seller retains ownership, but must pay some restitution
77
What happens if the property is destroyed during escrow (the period between contract and closing)?
The buyer bears the risk of loss
BUT if the seller has casualty insurance, the proceeds must be paid to buyer
78
What happens if an existing structure becomes noncomforming due to a change in zoning
* Usually can get grandfathered in
* Rights are vested if project is in process and already have proper building permits, as long as project was in good faith
* Generally can't expand the noncomforming use or switch to a different noncomforming use
* BUT you can transfer property to a new owner
79
What are the two stages to a land sale and what determines liability at each stage?
* Stage 1: Contract
* Liability is based on contract provision
* Stage 2: Deed
* Liability is based on deed warranty
* Once deed has been executed, **doctrine of merger** merges covenants under the contract into the deed
80
Remainer vs. Reversion
* **Remainder:** Possession of land goes to a third party after life estate ends
* **Reversion:** Possession of the land goed back to grantor after the life estate ends
81
Does recording affect the validity of a deed?
No, a deed is valid at delivery
82
What are the requirements for a right of first refusal clause (3)?
* Satisfies SOF
* Satisfies RAF
* Is reasonable
83
Heir vs. Devisee
Heir takes decedent's property through intestate succession
Devisee take property through will
84
How do you terminate a real covenant and what is the remedy for breach of a real covenant
Remedy = damages
Terminate = same ways you terminate an easement
85
What are the duties of the board of a common interest community
*Deal fairly with memebers of the community, which means:*
* Good faith
* Prudence
* Ordinary Care
* Business judgment rule controls
86
What is a trust?
A device for managing property that creates bifurcated ownership
The trustee owns legal title and manages the trust for the benefit of the beneficiary who holds equitable title and can enforce the trust
87
What is the equity of redemption?
A right held by mortgagor to reclaim title and prevent foreclosure upon the **full payment** of the debt
Must be **before** foreclosure sale
Cannot be clogged (terms that make it harder to exercise)
Can be waived in excahnge for consideration, but court is skeptical of this
88
When is the owner of mineral rights liable for damge done to surface structures?
If the structure was built before the mineral rights were acquired, then they are strictly liable for all damages
If the structure was built after the mineral rights were acquired, they are only liable for damages if they failed to use reasonable care
89
How is the liability to third parites split between landlords and tenants?
* Tenant owes a duty of care to all invitees, licensees, and foreseeable trespassers
* Landlord duty is split rule
* Common law rule says landlord is responsible for speicifc things:
* Hidden defects that the tenant has not been warned about
* Faulty repairs negligently completed by landlord
* Negligence that causes injuries in common areas
* Modern law says landlords have a general duty of reasonable care
90
Two types of executory interests
* **Springing:** Divests the grantor
* Usually two parites
* **Shifting:** Divests a prior grantee
* Usually three parties
91
Escheat (what happens if decedent dies without will or heirs)?
Decedent's property goes to the state
92
Profits and Licenses
*Both are NOT easements*
* **Profit:** Right to enter another's land and remove a specific natural resource
* **License:** _Revocable_ permission to use another's land (think licensee)
93
Quitclaim Deed
Grantor makes **no warranties** as to the health of the tile
94
Duty to disclose defects
Most jurisdictions impose a duty on the seller to disclose to buyer all known, physical and material defects (specifically hidden ones)
Material defect = something that substantially affects the value of the home, health, and safety of its occupants or the desireability of their home
General disclaimer (as is) will not satisfy the seller's duty to disclose
95
Doctrine of worthier title
Creates a presumption of a reversion to the grantor, instead of the grantor's heirs
96
Executory Interest
future interest that will terminate/divest an earlier interest
97
What three things does RAP apply to?
* Contingent remainders
* Executory interests
* Class gifts subject to open
98
Buyer's remedies on seller's breach
* Money damages: difference between contract price and market price on date of breach
* EXCEPTION: can only get out of pocket expenses if buyer breached in good faith
* Recission: buyer gets money back and contract canceled
* Specific performance
## Footnote
*Note: Cannot get damages and specific performance*
99
What are fixtures and who is entitled to them?
They are tangible property attached to the real property and treated as part of it (Ex: bridge)
Fee simple owners can do what that they want, but life estates and tenants are limited by waste
Buyer gets them, unless they are reserved for seller in contract BUT life tenants and tenants can remove fixtures unless it would damage property
100
When is the tenant's duty to pay rent suspended?
(three situations)
1. Premises are destroyed (not by tenant)
2. Landlord evicts the tenant either:
1. Completely: removes tenant from entire property OR
2. Partially: removes tenant from portion of property
3. Landlord materially breaches the lease
101
What type of remainders does Rap apply to?
Contingent remainders
102
Four types of equitable mortgages (alternative to mortgage)
1. Deed of trust
1. trustee holds title for benefit of lender
2. Intallment land Contract
1. When seller finances the purchase
3. Absolute deed
1. transfer of deed to lender instead of security interest
4. Conditional Sale and Repurchase
1. Owner sells prop to lender, who leases prop to owener and gives option to repurchase when loan is paid
103
General warranty deed
Greatest title protection
Warrants title against **all** defects, even if the grantor did not cause defects
104
What are the 7 ways an easement can be terminated?
1. Express **release** by holder of easement (need writing)
2. **Merger:** holder of easement acquires fee title of underlying estate
3. **Abandoment:** Holder shows non-use and intent to abandon easement
4. **Prescription:** holder fails to protect against a trespasser
5. **Sale to a bona fide purchaser**
6. **Estoppel:** Holder says they've abandoned and servient owner changes position to their detriment on reliance
7. **End of Necessity**
105
The three types of recording statutes
1. **Race:** First to record wins (doesn't matter if subsequent had notice)
2. **Notice:** Subsequent wins if they acquired without notice of prior unrecorded conveyance
3. **Race-Notice:** Subsequent acquired without notice *and* recorded first
106
Exceptions to the first in time priority rule (7)
* Purchase Money Mortgage (money used to buy property)
* Recording act protection
* Junior mortgage is first to satisfy recording act
* Subordination agreement between mortgagees
* Senior mortgage is modified to be more burdensome
* Only the modification is subordinated
* Senior mortgage is released and replaced
* Mortgage retains same priority *unless* a change is materially prejudicial to junior
* Future advance mortgages (flexible line of credit)
* After-acquired property
* Junior to purchase-money mortgage
107
Fee Simple Subject to Condition Subsequent
* Limited by specific **conditional** language
* Look for:
* but if
* provided that
* on the condition
* Language will suggest the grantor must exercise right to retake possession
108
Who bears the risk of loss if there is damage to or destruction of the property between contract and deed stages?
Equitable Conversion Doctrine Controls
**Majority:** Buyer holds equitable title during in between and bears the risk of loss. Seller keeps legal title and can possess.
**Minority:** Seller holds equitable title and bears the risk of loss
109
What types of discrimination does the fair housing act cover?
* Race
* Color
* Religion
* National Origin
* Sex
* Disability
* Requires reasonable accommodations
* Family Status: Whether you have kids or are pregnant
* EXCEPTION: Senior living communities
* **Note:** Sexual Orientation not covered
110
How to get a variance from a zoning ordiance after they are in place (5) and the two types of variance
**Types**
* Use Variance: Right to use property in manner not permitted by zoning
* Area Variance: Right to use property that isn't yours (ex: building fence to follow tree line)
**Requirements (need all 5)**
1. Compliance would create unecesary hardship
2. Hardship arises from circumanstances unique to the property
3. The owner did not create the hardship
4. The variance is in keeping with the overally purpose of the ordinance AND
5. The variance will not cause substantial harm to the general welfare
111
What are the four ways property can be transfered?
1. Sale
2. Gift
3. Devise (will)
4. Intestate Succession
112
Easement by Necessity
* Created only when property is virtually useless
* Usually **landlocked**
* Two conditions
* _Dominant and servient estates were owned in common by one person_ AND
* Necessity existed at severance
* Terminated when no longer necessary
113
What is the doctrine of exoneration of liens?
The devisee of real property is entitled to have any outstanding balance of a mortgage or other encumbrance on the property to be paid from the remaining assets of the testator's estate.
**Note:** This doctrine is common law, and many jurisdiction no longer apply it
114
When an adverse possessor gets title, what is the date of that title?
It relates back to the date of the person's entry onto the property
115
Options when the implied warranty of habitability is breached (3)
Tenant may:
* Refuse to pay rent BUT
* must first notify landlord of the problem AND
* give them engough time to correct problem
* Remedy the defect and offset costs against the rent OR
* Defend against eviction
NOTE: does not require tenant to vacate
116
Implied Warranty of Fitness or Suitability
* Applies to defects in new contructions
* Suit must be brought in a reasonable amount of time after discovery of defect
* Majority: Original purchasers and subsequent purchasers may recover damages
* Minority: Only original purchaser can
117
What happens when there is a RAP violation?
We cross out the violating interest as if it was never created in the first place
118
What are the five requirements for a real covenant to run with the land?
* **Writing** - subject to SOF
* **Intent** for it to run with the land
* Ex: and his heirs and assigns
* **Touch and concern** the land and effect both parties
* Discriminatory covenants are unenforceable
* Covenant to pay money (think homeowners association) does touch and concern
* **Notice** - Either actual or constructive
* inquiry is ok for equitable servitude
* **Privity**
119
What happens when a buyer buys property subject to a mortgage?
The buyer is not personally liable for the mortgage BUT the mortgage holder can still foreclose
120
Shelter Rule
A person who takes from a BFP is protected by the recording act and rights of their grantor
121
Easement appurtenant vs gross
Appurtenant = tied to the use of the land (**transferable)**
Gross = benefits the holder personally (transferable **only if** there is an intent for it to be) --- ex. use neighbor's pool
122
What is a vested remainder subject to a complete divestment?
When a remainder has been vested, but there is still a condition attached that could prevent the interest holder from receiving the property.
123
What happens if the previous transfer did not record a deed and then you buy the property and record?
The deed is now a wild deed, and does not qualify as notice to subsequent purchasers
124
What is the scope of an implied easement?
determined by the nature of the prior use or necessity
125
What is ouster and what are the remedies?
* One co-tenant in possession denies another access to the property
* Remedies:
* Injunction granting access to the property AND/OR
* Damages for the value while unable to access
126
What is the remedy for breach of an equitable servitude?
Injunctive relief
127
What is a tenancy by the entirety and what are its features?
A joint tenancy between married people (four unities + marriage)
* Has a right of survivorship
* Need consent to alienante or encumber their shares
* Must be explicit to get it
128
What are the four requirements for adverse possession?
1. Exclusive
1. Possessor does not share possession with true owner (but can share with other adverse person)
2. Continuous for statutory period
1. Seasonal/Infrequent use is ok if use is consistent with type of property (cabin)
3. Hostile
1. Possesion is adverse to the owner's interests
4. Open and notorious
1. Use puts a reasonable true owner on notice
2. Trespasser must use property as if they were the true owner
129
Remedies for nuisance
Damages UNLESS inadequate, then injunctive relief
130
Easement by implication
*aka prior use easement*
**Conditions that must be met**
* Prior common ownership
* Berfore severance, owner used land as if there was an easement
* Use is **continuous and apparent** at time of severance
* Use must be **reasonably necessary** to the dominant estate's use and enjoyment
131
Can the recording of a deed be enough to satisfy the delivery requirement?
Yes
132
General rule for possession with concurrent estates
Conccurent owners each have the right to use or possess the whole of property no matter their share or the type of co-tenancy
BUT they can contract out of this
133
What law controls in property?
The state where the property is located
**Exceptions:**
* Agreement designates other jurisdiction
* Marriage property division
* Mortgage cases where mortgage documents require repayment made in another state
134
Requirements for a valid transfer of a deed (2)
* Delivery: Specifically, did the grantor have present intent to transfer the property
* Physical transfer is not required
* Can deliver to agent
* Is it possible to revoke?
* Acceptance: Presumed if transfer is for value
135
Who has the duty to maintain the property subject to an easement?
The owner of the easement UNLESS contracted otherwise
136
What happens to a joint tenancy if a party leases their interest?
*split jurisdictions*
Some say it severs and some says it just temporarily suspends the joint tenancy
137
Easement by prescription
Acquiring easement through adverse possession (need to meet all requirements except exclusivity)
138
What are the four requirements for a fair housing act case?
1. Covered situation
2. Prohibited discrimination
3. Intent
1. Can be diparate impact or disparate treatment cases
4. Causation
1. Prohibited behavior must be linked to the protectected basis
139
What is the name of the person who creates the trust?
Settlor
140
What is the default concurrent interest?
Tenancy in common
141
Does a landowner have a legal right to natural light?
No
Comes up when a neighbor is trying to build a tall building that will block natural light
142
Who is protected and not protected by recording acts?
Subsequent purchasers for value *are protected*
Grantees who acquire title by gift, intestacy, or devise *are not protected*
143
If statute of limitations has run on a note, can the lender still foreclose on mortgage?
No
144
What is statutory redemption
* Only available in some states
* Allows mortgagor to redeem the property after foreclosure sale
* Nullifies the foreclosure sale
145
If landlord re-rents to a holdover tenant, what is the rent due?
The rent under the old lease
EXCEPTION: Landlord informed tenant or rent increase **prior to** the expiration of the old lease
146
When can the mortgagee take possesion?
* Lien State = Must wait until foreclosure is complete
* Title State = Can technically possess at any time
* Some modify this to mortgagor retains title until default, and then mortgagee can take possession
147
If you get title through adverse possession, what do you get?
* The legal boundaries of the property
* EXCEPTION: Constructive Adverse Possession
* Where you enter under invalid instrument and occupy the land described in instrument. They are in actual possession of what is described.
* Subsurface rights (as long as third party doesn't have them)
148
Exceptions to the due on sale acceleration clauses
The following transfers of residential property (\<6 units) do not tirgger the clause:
* Automatic survivorship transwer
* Transfer by will or intestacy upon death of the borrower
* Transfer to spouse or child of borrower
* Transfer to ex-spouse due to divorce
* Transfer to the borrower's living trust
149
When does waste apply and what are the three kinds?
* applies when more than one party has an interest in the same piece of property*
* ***The types:**
* Affrimative waste
* Voluntary conduct that decreases value
* Permissive waste
* Neglect that decreases value
* Amelioritive waste
* Conduct that increases value
150
Public vs. Private Nuisance
**Private =** A substantial and unreasonable interference with another individual's use or enjoyment of his property
Subtantial = something that would be offensive, inconvenient, or annoying to an *average person* in the community
Unreasonable = Injury outweighs the usefulness of the defendant's actions
**Public** = Unreasonable intereference with the health, safety, or property rights of community
For private party to have standing, they must show that they suffered a different kind of harm than the rest of the community
151
What are the two exceptions to needing to meet SOF in a land sale?
1. Part Performance, which needs two of the following by the buyer:
1. Possession
2. Payment
3. Improvements
2. Detrimental Reliance: Party reasonably relied on contract and would suffer hardship if the contract was not enforced
152
When a lender releases a mortgage interest and the property has been sold to a new buyer who assumes liability for the mortgage, is the original owner still liable?
No
153
Duty of landlord to deliver possession
*Split Rule*
**Majority:** Must deliver actual/physical possession
**Minority:** Only need to deliver legal possesion
154
What does it mean that the landlord must provide the tenant quiet enjoyment?
Quiet enjoyment is violated when the landlord or someone connected to the landlord renders the premises unsuitable for the intended purpose
**Landlord must control:**
* Common areas
* Nuisance like behavior of other tenants (crickets)
**Landlord does not need to control:**
* Off-premises actions of third parties (eg noisy bar across the street)
155
What is the remedy for breach of a general warranty or special warranty deed?
Damages
156
What is the process of a partition?
* **Parition in Kind:** Court divides the property into distinct/separate physical portions
* **Partition by Sale:** Property is sold, and proceeds are divided based on ownership interests
* Default = In Kind unless:
* It is not practical to all parites OR
* It is not fair to all parites
157
What must a deed contain (4)?
1. Identify the parties
2. Signed by the grantor (don't need grantee)
1. If signature is forged, deed is void
3. Include words of transfer
4. Sufficient description the property
1. Does not need to be a legal description
158
Benefit vs burden of the covenant
Benefit = ability to enforce the covenant
Burden = being subject to the covenant
159
Assignment vs. Sublease
and who is responsible for unpaid rent?
**Assignment** = complete transfer of tenant's remaining term
Old tenant (privity of contract) and new tenant (privity of estate)
**Sublease** = transfer for less than entire remaining term
Just the old tenant, new tenant only has rent obligations to old tenant
160
Seller's remedies when buyer breaches
* Money damages: difference between contract price and market price
* Recission: can sell property to someone else
* Specific performance
## Footnote
*Note: Cannot get damages and specific performance*
161
Can property in a neighborhood that later becomes part of a common plan be subject to the restrictions of that common plan?
Only if the restriction can be found in the seller's original deed, the buyer's new deed, or the common plan
162
What is the standard applied to determine if a title is marketable
The title must be free of an unreasonable risk of litigation at the time of closing.
163
What happens if a bank transfers the mortgage but not the note
Two possible outcomes:
1. Transfer is void because note is evidence of debt
2. The note follows the morgage
164
What is a real covenant?
A promise concerning the use of the land that runs with the land (binds successorts to the promise)
165
If the seller breaches the contract, but the buyer still wants to buy, can the buyer do anything?
Yes, they can sue for specific performance
166
What is a vested subject to open remainder?
A vested remainder in a class, but the full class membership is unknown
One person in the class must have vested, otherwise contingent remainder
Closed when all members of a class are identified
167
What are the four elements of constructive eviction?
1. Permises were unuseable for their intended purpose
2. The tenant notifies the landlord of the problem
3. Landlord does not correct problem AND
4. Tenant vacates the premises after a reasonable amount of time has passed
168
What is a tenancy of common/the features of it?
* Each owner has a separate but undivided interest in the property
* There is no right of survivorship
* And each tenant can transfer the property freely during life or at death
169
What is the default estate transferred?
A fee simple absolute
Presumption that grantor conveys the most they have
Including if grant is ambiguous
You need actual intent to change the interest granted from a fee simple absolute
170
What is the effect of someone exceeding the scope of their easement?
They are trespassing on the servient estate
171
How do you get a partition?
* Available to any tenant in a **joint tenancy**
* ****Not available to tenants in entirety
* It is a unilateral right so any tenant can ask for one
* EXCEPTION: Tenants can agree not to partition if the agreement is:
* Clear
* Limited by a reasonable amount of time
172
Affirmative vs. Negative Easement
Affirmative = holder has the right to do something on someone else's property
Negative = holder has the right to prevent someone from doing something on their land
173
Subjacent support rights
Such as mineral rights
Surface landowners have the right to not have their land subside from the avitivities of the the owners of underground rights
174
Inter vivos transfer vs. Devise
Inter vivos = during life and interest is created at time of grant
Devise = at death and interest is created at testator's death
175
Two approaches to water rights
* Riparian Rights (border)
* Landowners who border a waterway own rights to it
* They own reasonable right to use of it, and cannot interfere with another's use
* Prior Appropriation
* First in time, first in right - First to have beneficial use (regardless of property location) has the rights
* Beneficial use = any productive use
176
Tenancy at Sufferance
* What is it?
* How is it created?
* How is it terminated?
* **Definition:** Created when tenant holdsover after lease ended
* Tenant owes landlord reasonable value for daily use and foreseeable special damages
* Temporary
* **Creation:** Tenant holds over
* **Termination:** Three options
* Tenant voluntarily leaves
* Landlord evicts the tenant
* Landlord re-rents to the tenant who becomes a periodic tenant
177
Marketable Title Details
* Implied covenant for it in every land sale **contract**
* ****So post deed, no longer have covenant
* Is a title free from unreasonable risk of litigation
* Any defects in title must be cured or fixed before closing, otherwise buyer can **rescind**
* Standard is that of a reasonable buyer
178
Fee simple determinable
* Limited by specific durational language
* Look for:
* So long as
* While
* During
* Until
* One time period is over, the interest ends
179
Implied Warranty of Habitability
Landlord must maintain the property to be suitable for **residential use** (does *not* apply to commercial leases)
Look for conditions that threaten health and safety of tenant
CANNOT be waived by tenant
Breached if housing code is not followed
180
Right of Entry
* Aka power of termination
* Future interest held by the grantor following a fee simple subject to condition subsequent
* Does not auto rever, it must be reclaimed by grantor
181
Can an agent execute a deed?
Yes, as long as the agency relationship is created in writing
182
What are the three exceptions to RAP
* Class gifts when rule of convenience applies
* A gift from one charity to another charity
* to Make a Wish, so long as they grant wishes, then to Ronald McDonald House
* Options
* held by current tenant to purchase fee interest
* right of first refusal in commercial transaction
183
Equitable servitude - what is it and what are the four requirements and how does one terminate?
It is another, easier way to bind a successor to an original party's promise
**The Requirements:**
1. In writing
2. Intended to run with the land
3. Must touch and concern the land
4. Successor must have notice
1. Can be actual, record, or inquire
*So the requirements are the same as real covenant, but you don't need privity*
Terminate the same ways as an easement
184
RAP and Class Gift Effect
*Bad as to one, bad as to all*
If the gift to any member of the class is void under RAP, then the gift is void as to all members of the class
