Property Flashcards

Question

T’s Duty to Pay Rent: Rent Deposits

Answer 1

Most states restrict the amount of security deposits to one month’s rent, require landlords to pay interest on security deposits, and allow statutory or punitive damages for a landlord’s improper refusal to return a security deposit

Answer 2

Duty to place T in actual, physical possession

Answer 3

T has right to quiet use and enjoyment without interference from L (residential and commercial) Breached by: Wrongful eviction Constructive eviction T can: Stop paying rent Sing Elements for Constructive Eviction: Substantial Interference ---Chronic or permanent problem Notice ---T must notify L Goodbye ---Get out, must vacate

Answer 4

Residential only Premises must be fit for basic human habitation Standard: case law and housing code Triggered by: No heat in winter, no working plumbing, no running water, etc T’s Options if L breaches: Move Repair and deduct Reduce or withhold rent Remain and seek damages

Answer 5

Covenant of quiet enjoyment: T must vacate Warranty of habitability: T may vacate (doesn’t have to)

Answer 6

L can’t terminate/penalize T in retaliation for T’s exercise of legal rights Applies to any harassment or raising rent etc

Answer 7

No housing discrimination on basis of race, color, religion, sex, disability, familial status, national origin Prohibited Actions: Refusing to negotiate, rent, or sell housing, or give mortgage Providing different terms for sale/rental Falsely representing dwelling unavailable Reasonable accommodations for tenants w/disabilities

Answer 8

Owner-occupied buildings with 4 or fewer units Single family homes if owner has no more than 3

Answer 9

Assignment: Transfer of entire remaining term of lease Sublease: Transfer of part of remaining term of lease

Answer 10

Assignee T in privity of estate with L ----Liable on covenants that run with the land Original T in privity of contract (but not estate) with L ----Remains liable for original lease obligations LL and T2: ----In privity of estate after assignment --------Because in possession, liable to each other for those that run with the land ----T1 no longer in privity of estate Not in privity of contract ----No original promissory words ----T1 remains in privity of contract --------Secondarily liable to each other --------T1 can be held liable if T2 doesn’t pay

Answer 11

T2 has no privity (estate or contract) with L T1 and T2 responsible to each other Relationship between L and T1 remains intact T2 has issues, they can go to T1 who goes to L

Answer 12

L has no duty to make premises safe. Exceptions: Common areas Latent defects (L must warn) Assumption of repairs (L is liable if negligent) Public use (short lease, significant defect) Short term lease of furnished dwelling (defective conditions)

Answer 13

Grant of a nonpossessory property interest entitling holder to use/enjoyment of another’s land Affirmative: Right to go on to and do something on another’s land Negative: Right to prevent landowner from doing something (light, air, support, stream water from artificial flow) Creation of negative easement: Can only be created expressly

Answer 14

Benefits holder in use/enjoyment of own land Dominant: derives benefit Servient: bears burden Easement appurtenant to B’s dominant tenement Two parcels involved

Answer 15

Confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land. Servient land is burdened. No benefited or dominant tenement (because the easement benefits the holder rather than another parcel) Ex, The right to place a billboard on another’s lot, The right to swim in another’s pond, The utility company’s right to lay power lines on another’s lot

Answer 16

Easement Appurtenant transfers with the dominant tenement, even with no notice The burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice of the easement. Easements in Gross Not transferable unless for commercial purposes

Answer 17

Prescription Implication Necessity Grant Signed writing unless outside SoF (deed of easement)

Answer 18

Prescription Continuous Open and notorious Actual Hostile

Answer 19

Continuous Open and notorious Actual Hostile

Answer 20

The scope of an easement is determined by the terms of the grant or the conditions that created it If not, will be implied by sufficiency No unilateral expansion remember that such use does not terminate the easement. The appropriate remedy for the servient owner is an injunction against the misuse.

Answer 21

Estoppel (servient owner materially changes position in reliance on easement holders assurances that easement will no longer be enforced) Necessity (expires when need ends unless reduced to an express writing) Destruction (of servient land, other than through willful conduct of servient owner) Condemnation (of servient land by government eminent domain) Release (by holder to servient owner) Abandonment (physical action, ie. building a wall blocking road; never good enough to just express potential interest in abandonment) Merger (when title of easement and title of servient land held by the same person, easement ends and merges) Prescription (by servient owner, similar to AP)

Answer 22

Mere privilege to enter another’s land for narrow/delineated purpose ---Not an interest No writing required Freely revocable at will of licensor (unless estoppel applies) Note: neighbors talking by the fence ---Violates statute of fraud if oral easement ---But creates freely revocable license Estoppel applies if relied upon and investments made

Answer 23

Entitles holder to enter servient land and take some resource All of the rules governing creation, alienation, and termination of easements are applicable to profits. A profit may be extinguished through surcharge (misuse that overly burdens the servient estate).

Answer 24

Promise to do or not to do something Negative/Restrictive: Refrain from doing something (ie. “not to build for commercial purposes”) Affirmative Do something related to land (ie. “maintain fence”)

Answer 25

Money damages: construe as covenant at law Injunction: Construe in equity as equitable servitude

Answer 26

Writing Intent Touch and Concern Horizontal and vertical privity Notice

Answer 27

Horizontal: Nexus between original promising parties (succession of estate) Vertical: Nexus between successor and original covenanting party (non-hostile)

Answer 28

Writing Intent Touch and Concern Vertical privity

Answer 29

Injunctive relief Promise equity will enforce against successors of burdened land (regardless of whether it runs with the land) Creation of ES: Writing Intent Touch and Concern Notice Equitable Servitude (not factor just for acronym)

Answer 30

If a developer subdivides land, and some deeds contain restrictive covenants while others do not, the restrictive covenants will be binding on all parcels provided there was a common scheme of development and notice of the covenants. Elements: Scheme of development (including D’s lot) when sales began D had notice of promise when they took Important: If the scheme arises after some lots are sold, no implied servitude can arise with respect to the lots already sold without express covenants

Answer 31

Actual (literal knowledge) Inquiry (lay of the land, may reveal common scheme) Record (public docs)

Answer 32

Court won’t enforce if surrounding neighborhood has changed to obviate the purpose for the restriction

Answer 33

Continuous ---Uninterrupted, as owner might use Open and notorious ---Apparent to put owner on notice Actual and exclusive Hostile ---Permission defeats

Answer 34

AP may tack predecessor’s time so long as they have privity, any non-hostile relationship (defective deed, etc) If ousted, no tacking

Answer 35

The statute of limitations will not run against a true owner who is afflicted by a disability at the inception of the adverse possession (meaning, when the cause of action first accrued). Only the disability of the owner existing at the time the cause of action arose is considered.

Answer 36

1. Contract (conveys equitable title) 2. Closing (deed passes legal title) Space between is known as the escrow period

Answer 37

Statute of Frauds Applicable Contract must be in writing Signed by party against whom enforcement is sought Must also: Identify parties Describe property State consideration

Answer 38

Remedy: specific performance with a pro rata reduction in price

Answer 39

Allows a buyer to enforce an oral real estate contract by specific performance if: The oral contract is certain and clear, and The acts of partial performance clearly prove the existence of a contract This second requirement is usually satisfied if the buyer can prove two of the following three actions: Buyer has taken possession of the property Buyer has paid the purchase price or a significant portion of the purchase price Buyer has made substantial improvements to the premises

Answer 40

Legal title: Deed Equitable title: Contract (risk of loss) Buyer bears risk unless contract says otherwise Risk of loss: Buyer’s risk of loss from moment contract signed Unless contract says otherwise

Answer 41

Seller’s implied promise to provide title reasonably free from doubt/threat of litigation on closing The common defects that render title unmarketable are: Defects in record chain of title—most often, adverse possession Encumbrances (mortgages, liens, easements, restrictive covenants) Zoning violations

Answer 42

Need good record title. Title acquired by AP is unmarketable without a quiet title

Answer 43

Must be protected against unless the buyer has waived them

Answer 44

Zoning restrictions do not affect marketability, but an existing violation of a zoning ordinance does render title unmarketable

Answer 45

Seller liable for failure to disclose latent material defects General disclaimers are no good But if specific and particularized, likely upheld

Answer 46

Buyer beware (except for sale of new home by builder)

Answer 47

Deed becomes operative To pass title, must be LEAD: Lawfully executed and delivered Requires: Writing signed by grantor Unambiguous description Identification of parties Words of intent No consideration needed

Answer 48

Oral conditions drop out

Answer 49

Grantor may deliver an executed deed to a third party, known as an escrow agent, with instructions that the deed be delivered to the grantee once certain conditions are met. This typically is related to the purchase of property and the condition typically is the payment of the purchase price. What happens once the conditions are met? If the escrow agent is given written instructions, the grantor is bound by the delivery to the agent. But, if the grantor gives the escrow agent oral instructions, the grantor may change the instructions and recall the deed while it’s still in the agent’s hands, unless there is a written contract of sale.

Answer 50

Quitclaim deed contains no covenants for title

Answer 51

Willingly assumes responsibility for predecessors Warrants against all defects in titles (including by grantor’s predecessors) Six covenants

Answer 52

Present Covenants (breached at delivery) Seisin: Grantor owns Right to convey: Grantor can transfer Against encumbrances: No servitudes or liens Future covenants (breached if grantee disturbed in possession) Quiet enjoyment: No 3rd party lawful claims Warranty: grantor will defend Further assurances: grantor will be perfect

Answer 53

Warranty against all defects in title (only for grantor themselves) Statutory has two promises: Grantor has not conveyed title Free from encumbrances made by grantor

Answer 54

Race: First to record wins Notice: Last BFP to take wins; regardless of recording first Race-notice: BFP and properly recorded first

Answer 55

Purchaser (didn’t take by gift, will, inheritance) Pay valuable consideration Take without notice of prior conveyance

Answer 56

Actual (literal knowledge) Inquiry (what inspection would’ve revealed) Record (on notice of deeds properly recorded in chain of title)

Answer 57

In a race state, conveyance of an estate in land shall not be valid against any subsequent purchaser unless the conveyance is first recorded. First to record, irregardless of BFP status In notice state, last BFP to enter the fact pattern wins Race-notice, BFP and records first

Answer 58

Sequence of recorded documents capable of giving record notice to later takers

Answer 59

Anyone who takes from a BFP will prevail against any interest the BFP would have prevailed against

Answer 60

Recorded deed not connected to the chain of title and therefore incapable of giving constructive notice Same as never recording, incapable of record notice

Answer 61

Grantor purports to convey to grantee realty they don’t then own Grantor later acquires title to the property Title automatically vests in grantee Grantor is estopped from denying validity of pre acquisition conveyance BUT: watch out for BFP: early recording is outside of chain of title ---A deed recorded after the grantor parts with title through a subsequent deed is not ---constructive notice in most states (but is in some “race-notice” jurisdictions) REMEMBER: Once closing happens, contract ends and those promises aren’t necessary

Answer 62

The note is the mortgagor’s personal obligation. This means that the mortgagee is not limited to the land when seeking a remedy for default. If the mortgagor quits paying, in addition to foreclosure, the mortgagee has the option to sue the mortgagor personally for payment of the note. The mortgage is the agreement that says that if the mortgagor quits paying, the land can be sold to pay the mortgagee.

Answer 63

Lender’s security interest in real estate that their loan enables debtor to acquire, ie youre using the mortgage to buy a house youre also collateralizing

Answer 64

Debt (note) + lien in land to secure debt (mortgage) In writing (legal mortgage)

Answer 65

Recording statues protect mortgagees If recorded, mortgage sticks with the land Generally, when a mortgagor transfers title to the property, the grantee automatically takes the property subject to the mortgage.

Answer 66

Transferee assumes no personal liability But, the mortgage remains on the land as long as the mortgage instrument was properly recorded

Answer 67

Transferee also assumes personal liability

Answer 68

Foreclosure through proper judicial action If not enough proceeds cover debt: creditor can proceed against the debtor in a “deficiency action” If surplus: junior liens paid off in priority, remaining goes to debtor All satisfaction in full in order, remainder can go for deficiency judgment Last amount to debtor

Answer 69

Junior interests terminated (paid in descending order from sale proceeds) Necessary parties: all junior lienholders + debtor ---Failure to include necessary party results in preservation of the given party’s claim ---Their mortgage would remain on the land despite foreclosure and sale Senior interests unaffected (buyer takes subject to them) ---Not personally liable but still on the land Note: junior debt foreclosure will not affect senior mortgage, and buyer not personally liable on debtor

Answer 70

Creditors must record First-in-time, first-in-right Purchase-money mortgage: first priority in parcel financed if recorded properly

Answer 71

By private agreement, a senior creditor may agree to subordinate its priority to a junior creditor. Subordination agreements are permissible.

Answer 72

Debtor can redeem land prior to foreclosure sale by paying Cut off by foreclosure sale No clogging equity of redemption: Debtor cannot waive right to redeem in mortgage itself

Answer 73

Entitles lender to call in all debts Equitable Redemption without: Pay off missed payments, plus accrued interest and costs Equitable Redemption with: Debtor must pay entire balance owed, plus accrued interest and costs

Answer 74

Permission to depart from zoning restriction Show undue hardship and no diminution to neighboring property values

Answer 75

Previously allowed in use, cannot be eliminated all at once unless just compensation paid

Answer 76

Land ranked and categorized to create hierarchy of uses (single-family home is highest use) Land zoned for a particular use may use that land for that use and any higher use

Answer 77

Land may only be used for particular purpose for which the land is zoned

Answer 78

Must be obtained even though zoning proper for intended use (e.g. hospitals, drive-ins) Usually to indicate certain safety standards met

Answer 79

Holds both fee simple and tenancy in common with other residents in the condominium association

Answer 80

Each condo owner is a member Oversee common elements Board enforces covenants, conditions, restrictions Special assessment = one-time fee if dues don’t cover an expense

Answer 81

Right to have land supported in natural state (unadorned, pristine) If landowner causes adjacent land to subside: Land in natural state: strict liability Land improved: liability if negligent

Answer 82

Water belongs to those who own land bordering watercourse Riparians share right of reasonable use Can’t interfere with other reasonable use

Answer 83

Water belongs to state Right to divert/use can be acquired through actual use

Answer 84

Hasn’t reached natural water basin Common enemy rule: Owner can take any protective measures to get rid of surface water/combat its flow Still, must not unreasonably harm or interfere with others use of their own parcels

Answer 85

The possessor of real property has the right to exclude others. Their remedies for invasions include actions for: a. Trespass (land invaded by tangible physical object); b. Private nuisance (land invaded by intangibles such as odors or noise); c. Continuing trespass (land repeatedly invaded by trespasser); and d. Ejectment or unlawful detainer to remove a trespasser or tenant. This action can be joined with a demand for money damages

Answer 86

Devisable: Capable of passing by will Descendible: Capable of passing by intestacy (no will) Alienable: Capable of transfer inter vivos (during life time)

Answer 87

“To A” or “to A and his heirs” Potentially limitless duration Deviseable, descendible, alienable No heirs No heirs, always “heirs apparent”

Answer 88

Fee simples with condition attached (defeasance = forfeiture)

Answer 89

Terminates automatically on happening of stated event Created by clear durational language: “so long as,” “while,” “during, “Until” Devisable, descendible, alienable Creates possibility of reverter

Answer 90

Use of conditional language + explicit right to re-enter “But if… reserves the right to re enter” Creates the right of entry and power of termination (grantor’s prerogative) Court usually weighs in favor of FS/CS due to draconian nature of FSD

Answer 91

To A, but if X event occurs, then to B Third party, not grantor, takes if condition betrayed 3P gets shifting executory interest Forfeiture automatic

Answer 92

Words of mere, desire, hope, intention don’t create a defeasible fee Absolute restraints on alienation are void Void conditions are removed from grant However, reasonable time limited restraints are fine Can’t be discriminatory or encourage marriage/divorce, but support until marriage is fine

Answer 93

Measured in lifetime terms (not in term of years) “To A for life” (A = life tenant) Note: if limited, then leasehold not grant of fs Pur Autre Vie: For the life of another Grantor holds a reversion

Answer 94

Reminder: Life estate future interest held by O: reversion Someone else: remainder

Answer 95

All ordinary uses and profits from land Don’t commit waste

Answer 96

Voluntary: overt conduct causing drop in value Permissive: Failure to take reasonable measures to protect land (neglect) Ameliorative: Unilateral change that enhances value

Answer 97

Exploitation of natural resources (for example, minerals) by a life tenant is generally limited to situations when: (1) necessary for repair or maintenance of the land; (2) the land is suitable only for such use; or (3) it’s expressly or impliedly permitted by the grantor.

Answer 98

if mining was done on the land prior to the life estate, the life tenant can continue mining—but they’re limited to the mines already open.

Answer 99

Reasonable state of repair Taxes When no income or profits are coming in from the land, the life tenant’s tax liability for the parcel will be computed not on the basis of Blackacre’s fair market value but instead on the basis of its mere fair rental value (a considerably lesser sum). Life tenant pays interest on mortgage Principal paid by owner Life tenant is not obligated to insure the premises for the benefit of remaindermen and is not responsible for damages caused by a third-party tortfeasor.

Answer 100

The life tenant can’t engage in acts that will enhance the property’s value, unless all future interest holders are known and consent. Today a life tenant may alter or even demolish existing buildings if: (1) The market value of the future interests is not diminished; and either (2) The remaindermen do not object; or (3) A substantial and permanent change in the neighborhood conditions (for example, change from residential to 90% industrial) has deprived the property in its current form of reasonable productivity or usefulness.

Answer 101

Possibility of reverter: Accompanies fee simple determinable Right of entry/power of termination: Accompanies fee simple subject to condition subsequent Reversion: Accompanies when grantor conveys estate of lesser duration (other than above)

Answer 102

Possession on natural expiration of preceding estate for 3P (e.g., life estate) Exists mostly with LE’s and terms of years Does not apply to defeasance Ex. To A for life, then to B (A = life tenant, B = remainderman)

Answer 103

Taker as yet unascertainable or subject to condition precedent “To A for life, then B’s heirs” Condition precedent: prerequisite for eligibility, yet unmet prerequisites Destructibility of contingent remainder: Abolished usually Shelly’s case = wrong mbe answer

Answer 104

Condition met

Answer 105

An indefeasibly vested remainder is a vested remainder that is not subject to divestment or diminution. The holder of this remainder is certain to acquire an estate in the future, with no strings or conditions attached.

Answer 106

Subject to condition subsequent Condition Precedent: Appears before language introducing remainderman Subsequent: Appears after language that, alone and set off by commas, creates remainders

Answer 107

Class of takers, at least one already qualified to take Each possible taker presents a diminution in possession Closed when: Rule of convenience: When any member can demand possession Womb rule: Child in womb will get to share

Answer 108

Cut short prior taker Shifting: Follows defeasible fee, cuts short someone other than grantor Springing: Cuts short grantor

Answer 109

Certain future interests are void if there’s any possibility they might vest more than 21 years after a person alive at the time of the grant has died 4-step technique for RAP: 1. Determine the future interest ---Only applies to contingent remainders, EIs, and vested remainders subject to open 2. What has to happen for future interest holder to take? 3. Find measuring life 4. When will we know if future holder can take? RAP strikes void interests from grant

Answer 110

=Violates RAP An executory interest with no limit on time before vesting (“so long as used for”)

Answer 111

Wait and see: validity determined per facts as they come to be USRAP: Provides alternative 90-year vesting period Cy pres: Court can redraft “as near as possible” to grantor’s intent

Answer 112

Disabling: absolute ban (void) Forfeiture: attempted transfer forfeits interest (valid if reasonable/time limited) Promissory: Attempted transfer breaches covenant (valid if reasonable/time limited) Discriminatory: Based on race, religion, ethnicity (void)

Property Flashcards

(137 cards)