Property

Question 1

What are the rights of a life tenant?

Answer 1

1. Right to possession;
2. Right to rent & earn profits during term; and
3. Right to lease, sell, or mortgage

Question 2

What are the duties/obligations of a life tenant?

1.

Answer 2

1. Pay property taxes & mortgage interest;
2. Make reasonable repairs;
3. Not commit waste; and
4. Pay insurance premiums (some jurisdictions)

Question 3

Can a life tenant exploit natural resources on the land?

Answer 3

No, unless exploitation was:

1. Expressly authorized by the grantor;
2. Necessary to maintain the land; or
3. Already occurring before life tenant took ownership (open mines doctrine)

Question 4

How much is the life tenant required to spend when making reasonable repairs to the property?

Answer 4

No more than the income/profits generated by the land

Question 5

rule of convenience

Answer 5

A class closes as soon as at least one member of the class demands possession of the land

Question 6

Rule in Shelley’s Case

Answer 6

Provides that any conveyance, which purports both to convey a present possessory estate of definite duration (such as a life estate) to a grantee and to create the corresponding remainder entirely in the grantee’s heirs, instead results in the conveyance of the grantor’s entire estate to the grantee alone, because both the present and future estates are deemed to be merged in the grantee.

⚠️ Note: Shelley’s Rule has been abolished in most states

Question 7

doctrine of worthier title

Answer 7

When A conveys future interest to heirs, there is a rebuttable presumption that A intended to keep interest to herself

Question 8

How is a joint tenancy created?

Must have the Four Unities (“PITT”):

Answer 8

1. Unity of Possession: equal right of possession;
2. Unity of Interest: equal interest with co-tenants;
3. Unity of Title: same conveyance; and
4. Unity of Time: interests created at the same time

*In some modern jurisdictions, all that is required today is possession and unity.

Question 9

What happens when a joint tenancy is severed?

Answer 9

Becomes a tenancy in common

Question 10

partition

Answer 10

Divides concurrent estate into separate tracts of property in proportion to each tenant’s ownership; can be either voluntary or involuntary (court order).

Two types: partition in kind and partition by sale

Question 11

What is a leasehold (landlord/tenant) estate and what are the 4 types?

Answer 11

Estate created & governed by a lease signed between the parties.

(1) Tenancy for Years – lasts for a fixed period of time; automatically terminated after the period ends.
(2) Periodic Tenancy – continues for a specific period (weekly/monthly) until terminated by proper notice.

− Is created by: (a) express agreement; (b) implication if rent is paid at specific periods; OR (c) law (when a tenant-for-years remains after termination of the period or lease is invalid).

− Termination: notice at least a full period in advance (if yearly, 6 months’ notice is required).

(3) Tenancy at Will – continues until either party terminates it; usually created by express agreement.

− Termination: notice + reasonable time to quit the premises (in some states, no notice is required. There’s also termination due to death of either party, assignment by tenant, transfer by landlord).

• Also Tenancy at sufferance - official name for a tenant holdsover.

Question 12

What are the 4 basic duties of a tenant?

Answer 12

1. Pay rent;
2. Not commit waste (affirmative/voluntary, ameliorative, or permissive);
3. Not use the premises for an illegal purpose; and
4. Protect third party invitees from foreseeable dangers on the premises

Question 13

Tenant’s Duty to Pay Rent

Answer 13

runs with the land. If tenant remains on land + does not pay rent, landlord can:

a) Evict the tenant; OR
b) Allow the tenant to remain on the property and sue for damages.

If tenant abandons the property and doesn’t pay rent, landlord may have to take reasonable steps to mitigate losses (depends on state law).

Question 14

Hold-Over Tenant:

If a tenant holds-over (remains in possession after the lease ends), the landlord may:

Answer 14

a) Initiate eviction proceedings; OR
b) Hold the tenant over.

When a hold-over occurs, the tenancy has identical terms to the original lease.

*If tenant is informed of a higher rent before the end of the lease, the higher rent applies.

Duration:

Modern View: month-to-month tenancy is created.

Common Law: term is equal to original tenancy period.

Question 15

What are the landlord’s duties to the tenant?

Answer 15

1. Give possession;
2. Implied warranty of habitability; and
3. Covenant of quiet enjoyment

Question 16

Implied Warranty of Habitability

Answer 16

Landlord MUST provide a place to live that is habitable (reasonably suitable for human needs).

− Implied in every residential lease.

− Some courts also impose this warranty in commercial leases (in limited circumstances).

If warranty is breached, tenant may:

a) move out & terminate the lease;
b) withhold or reduce the rent;
c) repair & deduct the cost; OR
d) remain & sue for damages.

Question 17

Can the warranty of habitability be waived or modified in the lease?

Answer 17

No, can never be waived or modified in the lease

Question 18

Constructive Eviction

Answer 18

Every lease includes an implied covenant of quiet enjoyment that prevents a landlord from interfering with tenant’s quiet enjoyment and possession of the property.

*covenant is breached when a tenant is actually or constructively evicted.

Constructive Eviction occurs when:

1) Landlord breached a duty to 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, tenant may terminate the lease and seek damages.

Question 19

Landlord’s Duties to repair, Residential and Commercial

Answer 19

Residential Leases: 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).

Commercial Leases: landlord has NO duty to repair.

Question 20

Surrender of a Lease

Answer 20

an agreement to end a lease early.

Landlord must clearly accept surrender of the lease (unless otherwise agreed).

An attempt to end the lease early (such as leaving the keys) DOES NOT constitute a surrender unless landlord clearly accepts.

If landlord:

ACCEPTS the surrender: tenant’s duty to pay rent (after the acceptance) ends.

DOES NOT accept the surrender: tenant is deemed to have abandoned and is liable for damages.

Question 21

If the tenant abandons the property, is the landlord required to mitigate damages?

Answer 21

Majority: Yes, should make good faith effort to rent to other tenants and can seek damages from tenant for losses.

Minority: No, landlord can seek damages for all unpaid rent

Question 22

What is an assignment and to whom is the assignee liable?

Answer 22

Transfer of the entire lease to new tenant (assignee)

Assignee is in privity with landlord and liable for all rent owed to the landlord

Question 23

What is a sublease and to whom is the subleasee liable?

Transfer of only part of the lease term to the subleasee

Subleasee is in not privity with the landlord and thus is liable to the subleasor only.

Answer 23

Transfer of only part of the lease term to the subleasee

Subleasee is in not privity with the landlord and thus is liable to the subleasor only.

Question 24

Can a tenant freely assign or sublease the property?

Answer 24

Yes, unless otherwise specified in the lease

Question 25

If the property is **condemned**, does the tenant need to continue making rent payments?

Answer 25

**If partial** (tenant still has partial use of the property) **or temporary**: Yes, but tenant is entitled to compensation for dispossession from condemnation **If full condemndation:** No

Question 26

easement

Answer 26

Right to a **non-possessory** property interest in land that entitles the owner to use or enjoyment of the land

Question 27

easement appurtenant

Answer 27

**Benefits** one parcel of land **(dominant estate)** while **burdening** another (**servient estate**) ⭐️ Attached to the **land** and not a person

Question 28

easement in gross

Answer 28

Benefits a **person or entity** instead of a parcel of land. No dominant estate involved, only servient estate. Ex. Billboard or power lines on servient estate

Question 29

What are **4 ways** in which an easement can be created?

Answer 29

1. Prescription; 2. Implication; 3. Necessity; or 4. Grant (signed in writing) 💡Remember "P-I-N-G"

Question 30

How do you create an **easement by prescription? ANOCH**

Answer 30

Similar to acquiring land by adverse possession. Use of easement must be: 1. Continuous; 2. Open and Notorious; 3. Hostile; and 4. Actual ⚠️ No exclusivity requirement

Question 31

What is an **easement by implication** and how is it created?

Answer 31

Easement i**mplied by prior use.** Exists when: 1. Easement **existed on a single tract** of land that was **subsequently severed** into the servient and dominant estate; 2. Prior use was **continuous and apparent**; 3. Parties **intended** the easement to continue; and 4. Easement is **reasonably necessary** for enjoyment of dominant estate

Question 32

What is an **easement by necessity** and how is it created?

Answer 32

Easement is **absolutely necessary** to access the property Created if: 1. Dominant and servient estates were **once a single parcel** under common ownership; and 2. Severance of the parcel made the easement **absolutely necessary**

Question 33

What constitutes **expanding the scope** of an easement? Is it allowed?

Answer 33

**Overusing** the easement or going outside the scope of reasonable use. **No**, not allowed to unilaterally expand the scope. Servient estate can seek injunction to prevent further violations.

Question 34

Termination of an Easement – An easement may be terminated by:

Answer 34

a) Estoppel – when the servient estate owner reasonably relies (or materially changes position) on an assurance that the easement will not be enforced; b) Termination of the necessity; c) Involuntary destruction of the servient estate; d) Condemnation of the servient estate; e) Written release; f) Abandonment – a physical action showing an intent to never use the easement again; g) Merger of the properties (if land is separated again, it does not revive the easement); OR h) Prescription (Continual interference with the easement for the statutory period); i) Severance

Question 35

How do you terminate an easement by **severance**?

Answer 35

For an easement appurtenant, any attempt to **sever the easement from the dominant estate** will sever the easement

Question 36

What happens if property is sold to bona fide purchaser **without notice** **of the easement**?

Answer 36

Easement is **unenforceable** against the BFP

Question 37

Differentiate between a **license** and an **easement**

Answer 37

**Licenses:** * Freely revocable (unless detrimental reliance or coupled with interest) * Privilege, not an interest in land * Can be created without consideration or writing (no SOF requirement) **Easements:** * Last for specific period or indefinitely * Interest in land * Must satisfy SOF

Question 38

What is required for the **burden** of a covenant to run with the land?

Answer 38

1. **Writing**: original agreement in writing; 2. **Intent**: parties intended to bind successors (courts are liberal in finding requisite intent); 3. **Touches and concerns** the land; 4. **Horizontal and vertical privity**; and 5. **Notice**: successor had notice of the covenant when she took

Question 39

What is required for the **benefit** of a covenant to run with the land? ## Footnote WIT-V

Answer 39

1. **Writing**: original agreement in writing; 2. **Intent**: parties intended benefit to run; 3. **Touches and concerns** the land; and 4. Successor is in **vertical privity** with original parties ⚠️ Horizontal privity is **not required**

Question 40

What does it mean for a covenant to **"touch and concern"** the land?

Answer 40

Covenant affects both parties *as landowners*, not as individuals (very low bar)

Question 41

equitable servitudes

Answer 41

Covenants enforced by **equity** (e.g. injunctions)

Question 42

Elements for an **equitable servitude** WIT-N

Answer 42

1. **Writing**: original agreement in writing; 2. **Intent**: original parties must intend to bind successors; 3. **Touches and concerns** the land; 4. **Notice:** burdened party had actual, record, or inquiry notice (not required for benefit to run)

Question 43

What is an **implied reciprocal negative servitude** and what are the **requirements**?

Answer 43

Also called the "common scheme doctrine." Allows owners in a subdivision to **enforce restrictions on an unrestricted lot owner** Requirements: 1. When sales began, developer had a **common scheme for subdivision**; and 2. Owner of unrestricted lot had **notice** (actual, record, or inquiry) of the restriction

Question 44

What are **defenses to enforcement** of equitable servitudes?

Answer 44

1. Pervasive changes that fundamentally alter the neighborhood; 2. Laches; 3. Estoppel; 4. Acquiescence (when party didn't enforce the servitude on other parties, so their right to enforce may be waived) 5. Unclean hands (party seeking enforcement is violating restriction on their own land)

Question 45

What must the owner prove to receive a zoning variance?

Answer 45

1. Compliance would create **undue hardship** that is unique to the property and not the fault of the owner; 2. Variance doesn't go **against general purpose** of the ordinance; and 3. Variance doesn't harm the **general welfare**

Question 46

Differentiate between **area** and **use** variance

Answer 46

Area: restriction on **development/construction** of property (e.g. no third story). Use: restriction on **use** (e.g. no commercial use in neighborhood)

Question 47

What is the difference between a **mortgage** and a **note**?

Answer 47

Mortgage: represents the **interest in the land.** Note: represents the **debt of mortgagor.** **⭐️** Remember: **The mortgage follows the note**. If you have the note, then it is presumed you have the mortgage.

Question 48

If a mortgagor **transfers** the property, who is liable upon default if the buyer: 1. **Assumes** the mortgage? 2. **Takes subject to** the mortgage?

Answer 48

If the buyer/transferee "**assumes"** the mortgage: * **Buyer/transferee** is primarily liable for the loan * Mortgagor is secondarily liable unless released by transferee If buyer/transferee takes "**subject to"** the mortgage: * **Mortgagor** is primarily liable * Buyer/transferee incurs **no liability** to repay the loan

Question 49

What are **due-on-sale clauses**?

Answer 49

Gives lender the ability to demand the **entire balance** if the deed is transferred, unless the lender has given permission for the transfer ⚠️ Note: Due-on-sale clauses cannot be enforced for transfers to spouses, children, living trusts, or automatic transfers upon the death of the borrower

Question 50

What is a **deed in lieu of foreclosure**?

Answer 50

If mortgagor (borrower) goes into default, the mortgagor can give the deed to mortgagee (lender) to satisfy the mortgage debt. Mortgagee has immediate possession, and takes it **subject to all junior liens** attached.

Question 51

Requirements for a land sale contract to satisfy the SOF

Answer 51

1. In **writing;** 2. **Signed** by the parties to be bound; 3. Contain **essential terms** of the deal (description of the land, consideration to be paid, etc)

Question 52

When does a land sale contract **not** need to satisfy the SOF?

Answer 52

If buyer does **2** of the following: 1. Takes **possession** of the land; 2. Makes **physical improvements**; and/or 3. **Pays** significant part of the purchase price

Question 53

implied covenant of marketable title

Answer 53

title is free from defects and unreasonable risk of litigation

Question 54

What defects render a title **unmarketable**?

Answer 54

1. **Encumberances**; * Covenants * Easements * Mortgages * Liens 2. Title acquired by **adverse possession**; 3. **​**Zoning ***violations***; 4. **Incurable physical defects**; and 5. Future interests that have **not consented** to transfer

Question 55

duty to disclose 1.

Answer 55

1. Seller has duty to disclose all **material latent defects**; and 2. Seller cannot **misrepresent** or **fraudulently conceal**

Question 56

What can the buyer do if they **discover the title is unmarketable?**

Answer 56

Notify the seller **before the closing date** and give them a reasonable time to cure defects If seller doesn't cure, buyer can seek specific performance, damages, and an action to quiet title ⚠️ If buyer doesn't notify seller beforehand, deed controls b/c of the merger doctrine and seller is not liable

Question 57

What is the Home Builder's implied warranty?

Answer 57

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. Latent Defect = a defect that could not have been discovered by a reasonable inspection. **Breach** – 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). **Subsequent Purchasers**: Some States: requires privity of contract with the home builder. Other States: warranty applies because a subsequent buyer is in the same vulnerable position.

Question 58

What's the **doctrine of merger** and its effect?

Answer 58

Once the deed is transferred/conveyed to the buyer, the contract merges with the deed and the **deed** **controls**, not the contract. ⭐️ This means that whatever obligations the seller had under the contract are not enforceable unless they are **also contained in the deed**.

Question 59

What is the **doctrine of equitable conversion**?

Answer 59

Doctrine that helps determine who bears the risk of loss. Once the buyer signs K to purchase land at a later date, but before closing: * Buyer has **equitable** title; and * Seller has **legal** title Buyer, as holder of equitable title, bears the risk of loss if property is destroyed. UNLESS property was destroyed due to intentional or negligent acts of seller.

Question 60

What is required for a deed to be effective?

Answer 60

1. In **writing** and signed by grantor; 2. **Describe** the parties and the land; 3. **Delivered** (i.e. seller must have present intent to transfer the interest)

Question 61

What types of actions show **present intent to transfer the deed**?

Answer 61

1. **Physical delivery:** mailing or handing the deed to the person; or 2. Any other conduct or words that would **imply present intent to transfer** * ex. recording the deed, drafting the deed

Question 62

If the grantor **keeps** the deed after writing it, has there been delivery?

Answer 62

No, rebuttable presumption that the grantor **did not** presently intend to transfer the property

Question 63

If the grantor **transfers** the deed to her **own agent** (e.g. attorney), and tells the attorney to deliver the deed in the *future*, does the **transfer** count as **delivery**?

Answer 63

**No,** delivery only occurs once the agent actually **delivers** the deed to the **grantee.** **\***Delivery to Grantee's agent (attorney) does count as valid deliver.

Question 64

death escrow

Answer 64

Occurs when grantor instructs agent to deliver deed to grantee *upon grantor's death.* ⭐️ Only valid if grantor places deed **beyond his/her control**, i.e. retains zero control upon transfer to attorney. If grantor retains any power over the deed (e.g. asking it to be returned), then no valid death escrow has been created and no valid deed delivery.

Question 65

general warranty deed

Answer 65

Contains **6 present and future** **covenants of title** that cover the property's entire history Present: 1. Seisin (Grantor owns the property); 2. Right to convey (Grantor has right to convey the property); and 3. Against encumbrances Future: 1. Quiet enjoyment (Third party will not assert a claim); 2. Warranty (Grantor will defend against a claim if they do); and 3. Further assurances (Grantor will do anything reasonably necessary to perfect grantee's title)

Question 66

special warranty deed

Answer 66

Contains the **same covenants of title** as a general warranty deed, but only for the **period of the seller's ownership** of the land. Does not contain any warranties for what happened before the grantor took ownership

Question 67

bona fide purchaser for value (BFP)

Answer 67

Buyer who: 1. Purchases property for **value**; 2. Without **notice** of any prior claims

Question 68

What are the 3 **types** of **notice?**

Answer 68

1. Actual; 2. Record (also called constructive notice); and 3. Inquiry **Inquiry: Reasonable inspection** would have revealed the prior claim ⚠️ The buyer **doesn't need to actually inspect** to have inquiry notice. As long as the buyer *would have discovered* the claim if they had reasonably investigated, they will have inquiry notice

Question 69

Who prevails in a **notice jurisdiction**?

Answer 69

**Subsequent** bona fide purchaser (regardless of whether she records before the prior grantee)

Question 70

Who prevails in a **race jurisdiction**?

Answer 70

**First** grantee to record (regardless of whether they are a BFP)

Question 71

Who prevails in a **race-notice jurisdiction**?

Answer 71

**First BFP** to properly **record**

Question 72

Are **mortgagees** considered BFP's and thus protected by recording acts?

Answer 72

Yes because they have paid value

Question 73

Are grantees who were given the deed by **gift or will** protected by the recording statutes? (generally)

Answer 73

No, because they did not pay value. If they received the deed from a BFP, however, the Shelter Rule will apply and they will be protected. ⚠️ This is true even if the grantee **records** the deed. Since they did not pay value, they are not protected against prior claims (unless Shelter Rule applies)

Question 74

Wild Deed

Answer 74

A deed NOT recorded properly, and thus not discoverable in the chain of title. 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. − A wild deed DOES NOT put subsequent purchasers on constructive notice of a land transfer.