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Flashcards in Property Deck (112):

what four unities must be present in order to create a joint tenancy?

1. Time
2. Title
3. Interest
4. Possession


What magic words must be used to create a joint tenancy?

joint tenancy, with right of survivorship.


what is the right of survivorship?

the surviving tenant takes automatically on the death of a joint tenant.


how can one be relieved of common ownership?

1. partition by voluntary agreement
2. file an action for partition.


when does severance of a joint tenancy occur?

when any of the four unities is disturbed. but it cannot be severed by will


does a mortgage sever the unities?

1. in a lien theory state there is no severance. lien attaches to title, but title is not transfered.

2. in a title theory state there is a severance. title passes from mortgagor to mortgagee.


does a contract of sale sever the unities?

yes because of the doctrine of equitable conversion.


when does a creditor's sale sever the unities?

there is no severance until the judicial sale actually takes place. if the owner dies before the creditors sale, there would be no severance.


tenancy in common requires the unity of what?

possession; each co-tenant is entitled to possess the whole of the property.


the modern presumption is in favor of a tenancy in common or joint tenancy?

tenancy in common.


does a tenancy in common have a right to survivorship?

no. that is joint tenancy.


do co-tenants have to account to another co-tenant for his share of the profits?

No unless, agreement, ouster, lease of the property, depletion of natural reasoures.
(load) lease ouster agreement depletion.


what is contribution?

contribution concerns the right of one co-tenant to force the other co tenants to pay their fare share of some expenditure made the property


what type of expenditures does contribution apply to?

necessary repairs (not improvements), mortgage if signed by all co-tenants, paying the taxes


in a co-ownership does each co-tenant have right to possess the whole of the property?



requirement for tenancy of years?

specified beginning and ending date. must be in writing if over a year.

No notice is required to terminate.


is notice required between landlord and tenant to terminate the tenancy for years?



elements for a periodic tenancy?

no agreement as to duration. estate rolls on and on until one party gives proper notice.


what is a holdover tenant?

a tenant who was on the property under a valid lease but the lease has expired and the tenant nonethless remains on the property.


in the case of a hold over tenant, the landlord has two options:

1. sue to evict - sue in trespass and to recover damages
2. imposes new periodic tenancy (cannot impose if it is not reasonable)


when can a landlord demand payment of higher rent for holdovers?

when they give tenant notice of the increase in rent before the expiration of the lease.


what are the duties of tenant?

1. pay rent
2. maintain premises (not commit waste, if they covenant to repair, the tenant is liable for everything, even wear and tear unless excluded in the agreement)


What are the landlord's remedies if tenant fails to pay rent?

1. at common law, landlord could sue for the amount only in rears, and could not terminate the lease.

2. today, all states allow the landlord to sue for damages and terminate the lease, thereby evicting the tenant from the property.


what happens if tenant unjustifiably abandons?

1. landlord may terminate lease, tenant has no further rent obligation.

2. relet the premises, holding the tenant liable for any deficiency. must make a reasonable effort to mitigate.


what are the duties of the landlord?

1. duty to deliver possession of the leased premises when the lease begins, if not, landlord is n breach of the lease.

2. implied warranty of habitability. (reasonably suited for residential use)

3. implied covenant not to interfere with tenant's quiet enjoyment of the leased premises


what happens if landlord breaches implied warranty of habitability?

tenant can move out and end the lease.

tenant can stay on the property and sue for damages.

make reasonable repairs deduct cost from future payments.


what are three ways landlord may breach the implied promise of not to interfere with tenant's quiet enjoyment.

1. total eviction
2. partial eviction
3. constructive eviction


what is a total eviction?

landlord enters tenant's apartment and threw tenant off the premises.

the lease is over.


what is a partial eviction?

landlord physically excludes the tenant from only some portion of the leased property.

if this is the case, tenant does not have to pay rent.


what if the partial eviction is by a third party?

tenant pays rent proportionately reduced to reflect the amount of land taken.


what is a constructive eviction?

1) landlords failure to provide some service
2) that substantially interferes with the tenants quiet enjoyment of property
3) tenant must give the landlord notice and reasonable time to repair
4) tenant must abandon within a reasonable time.


what is an assignment?

tenant transfers all remaining interest to new tenant


what is a sublease?

tenant transfers only a part of the lease


when is the landlord liable?

if there is a privity of estate or contract?


privity of estate exists only between?

present landlord and present tennt


privity of contract exists only when?

where there is an agreement between the landlord and the particular tenant.


does the promise to pay rent run with the land?

yes so liable under privity of estate or contract.


covenant will run with the land if it touches and concerns the land, what is the test for the touch and concern requriement?

does performance of the promise make the land more valuable or more useful?


when are covenants enforced on assignees?

if they run with the land. (touch and concern test)


who can the landlord recover rent from?

anyone whom he is in privity with?


is there a privity of estate between landlord and sublessors?

No. so they cant recover rent from them.


what is a non-assignment clause?

clause that says tenant may not assign or sublet without the express permission/consent of the landlord.

strictly construed.

violation makes the attempted transfer voidable at the option of the landlord.


what is the rule regarding waiver?

waiver of non-assignment/non-sublease clause: permission given once means that a nonassignment clause is waived forever, unless landlord states otherwise.

if landlord accepts check, then it is waived forever.

courts are quick to find waiver.


if there is a partial taking by eminent domain does the tenant have to pay rent?

yes full rent, but tenant will get a condemnation award:

amount equal to the rent that was to be paid over the remainder of the lease term for portion of the property condemned.


if there is a complete taking, does the tenant have to pay rent?

no tenant is excused from paying any rent. condemnation award of:

fair rental value - rent due under the lease.


There is no duty imposed on the landlord for injuries sustained on the premises during the period of the lease unless? (5 exception)

1. latent defect landlord knows about (a defect tenant does not know of); must disclose but no duty to repair

2. short term lease of a furnished lease, even if landlord neither knows nor has reason to know.

3. common passageway/ area under landlord's control

4. Negligent Repairs Undertaken by landlord

5. Public Use Exception: landlord must know of major defects, tenant will not fix, public wil be using the premises


is the tenant liable to a third party invitee for negligent failure to correct dangerous conditions?

yes alwaysss!!!!


can fixtures be removed by sellers or tenants?

No fixtures become part of the property.


how do we know if personal property is a fixture?

1. first look to see if there is an agreement.

2. then look to intent


how is intent determined for purpose for fixtures?

------------4 factors -------

1. degree of attachment

2. general custom

3. degree of harm to premises on removal

4. trade fixtures - not considered fixtures. used in trade or business. can always be removed.

has to be removed before closing or vacates at the end of lease.


what is an easement?

is a non-possessory interest in land involving a right to use the land. Right of USE.


what is an easement appurtenant?

directly benefits the use and enjoyment of a specific parcel of land.


what is an easement gross?

benfits no land, instead burdens the servient estate.


what is a servient estate?

property burdened by the easement


what is a dominant estate?

property that benefit from easement.


does an express easement have to be in writing?

yes signed by servient estate and satisfy all the deed formalities. but easements of a year or less does not have to be in writing.


easements by implication can arise by what two situations?

1. previous use by a common grantor (must be continuous, apparent, reasonably necessary)

2. absolute right of access rule. no way out at all. (servient estate can choose the location as long as its reasonable)


what is easement by prescription?

very much like adverse possession has to be (adverse, continuous and uninterruprteed, open) .

If owner grants permission, it destroys hostility.


what are the three ways to create an easement?

1. express easement (has to be in writing)
2. implied easement
3. easement by prescription


Transfer of the easement appurtenant?

the benefit is transferred automatically along with the dominant estate, whether or not the easement is mentioned in the deed of conveyance.

who subsequently succeed to title to the dominant become entitled to the benefit of the easement appurtenant. estate


can easement in gross be transferred?

yes for commercial

no if personal.


transfer of the servient estate?

easements are always binding on subsequent holders of servient estates, provided the subsequent holder had NOTICE of the easement.

Actual; knowledge
Constructive; recorded in buyer's direct chain of title
Inquiry; physical inspection of land and the visible appearance of the easement on the land


use of easement?

specific terms control unless not stated, then:
1. lasts forever
2. reasonable development of dominant estate.


can the easement be used to benefit estates other than the one initially granted?

No. An easement can be used only to benefit the dominant estate.


what is the remedy for excessive use?

dont terminate the easement, you enjoin it.


who must repair the easement?

the owner of the dominant estate is responsible for making any necessary repairs to the easement.

can fix it at anytime. the servient estate has no repair obligation.


how does an easement terminate?

1. Doctrine of Merger (title to the dominant and servient estates come together in the same owner) unity of ownership.

2. Deed of Release (must be in writing) oral doesnt care.

3. Abandonment- intent to abandon must be manifested with some physical action. mere-non use by itself does not constitute abandonment.

4. Termination by Estoppel? need some statement by holder of the dominant estate and the servient estate must make a change in her position.

5. Temination by Prescription? servient state must stope the use of the easement and must keep it stopped for the period of the time required.

6. Termination of Easements created by necessity.


if an easement is attempted by fails due to statute of frauds?

it becomes a license, if money is spent in furtherance of an oral license, it becomes irrevocable.

becomes a contract right.


what a profit?

a profit gives the right to go onto land of another and take away a natural resource (timber, coal)

also creates an implied easement.


what is shelter rule?

anyone can shelter under the rights of a Bona fide purchaser.


what is a bona fide purchaser?

purchaser for value who takes without notice.


what is actual notice?

subsequent purchaser had actual notice of the prior unrecorderd conveyance, then the subseqent purchaser is not a BFP.


what is constructive notice?

a deed must be recorded in the buyer's direct chain of title.


what is inquiry notice?

the subsequent purchaser must examine the land and must make inquiry as to any unexplained uses.


do recording statutes protect judgment creditors?



what is a security interest?

a device used to secure a loan on the property.


what happens if the loan is not paid in full?

the sheriff sells the land at a court-ordered foreclosure sale.


absolute deed with promise of reconveyance?

treated as a mortgage.


sale leaseback with option repurchase

treated as a morgage


must equitable mortgage and sale lease back be foreclosed on like mortgages?

yes and will receive protections of a mortgage.


a deed of trust is given by the debtor to a thirt party trustee, who holds the deed of trust until the loan is paid in full. what happens if the loan is not paid?

the trustee can

1. can obtain a court order for a foreclosure sale of the property.

2. the trustee can sell the property by himself or herself at a public action.


what is the debtor's right of redemption or the equity of redemption?

at any time- right up until the moment of the foreclosure sale - the debtor can redeem the property by paying the amount that is dueand payable (the amount in arrears-plus interest) unless the mortgage includes an acceleration clause.


what happens if there is an acceleration clause?

debtor must pay off the entire balance of the mortgage.


when can the debtor waive the right to redemption?

cannot be waived in the original mortgage or the deed in trust, but can be waived later if three is separate condition.


what is clogging?

when you try to waive the right to redemption in the original mortgage, prohibited.


priorities of multiple mortgages?

if there are multiple mortgages on a single property, priority is allocated based on the common law rule of - first in time, first in right- unless that order is changed by a recording statutue


what is a junior mortgage?

a mortgage that comes late in time of the senior mortgage.


priorities can be changed by contract.

senior interest can agree to subordinate to a junior interest.


what is PMM mortgage?

purchase money mortgage taken out to buy property.


what is the rule involving purchase money mortgages?

they receive priority over all other mortgages, even if earlier mortgage is recorded first.


does a pmm mortgage given by the seller usually get priority over a pmm given by third party lender, such as a bank.



what happens to the priorities when there is a foreclosure?

foreclosure wipes out all junior interests, and senior interests remain. the buyer will have the subject to the senior interest.


what are the protections to holders of junior interest?

they have a right to pay off any mortgage being foreclosed on in order to keep their junior interests from being wiped out. thus they are a necessary party to any foreclosure proceeding. if not a party, then their junior interests are not eliminated.


so when there is a foreclose sale, what order does shit get paid back?

1. pay the cost of the foreclosure
2. pay off the mortgage that was foreclosed on
3. pay off junior interest in order of priority
4. pay any remaining balance to mortgagor. (Rare)


what if there is not enough to cover the mortgage being closed on?

allow mortgagee/creditor to sue mortgagor/debtor personally for balance of the note.


what is a forfeiture clause?

if debtor misses a payment, the seller can cancel the contract, keep all the monies paid to date, and retake the property.

courts are hostile to such clauses, and limited to that remedy. cannot get damages or specific performance.


grantor tranfers tittle to the property subject to a mortgage? what happens to the granteee

grantee automatically takes the property subject to the mortgage.


is the grantee personally liable on the mortgage?

no, unless specifcially assumes the mortgage.


is the grantee subject to a foreclosure sale if the grantor has not paid off mortgage?

yes if didnt assume


who can the bank sue for deficieny?

person who signed the note and others who assumed.


what happens if the there is a modification of the obligation by the creditor/grantee?

the original borrower will be free of all liability.


due on sale clause?

if mortgagor transfers the property without the mortgagees consent, the full mount of the loan becomes immediately due and payable.


what happens if the seller of a chattel made a ucc filing within 20s after attachment?

seller may remove the fixture without regard to the priority of the earlier mortgage.


does a landowner have the right to have her land supported by adjoining landowners?

yes, strict liability if the land is not supported.


is adjacent landowner liable for improvements made on the others land?

only if land wouldve collapsed without the weight of the house and barn on his land.


what is subjacent support?

when severance of mineral rights to land rights.


surface owners have the right to have their land supported from the bottom?

yes and strict liability will result if the land is not supported.


what does riparian rights deal with?

riparian refers to those whose property borders on a lake or stream.


what is majority rule for riparian owner?

can use as much as needed for domestic purposes.

riparian owners are limited to reasonable use for non-domestic purposes, that is commercial.


what is the minority rule in riparian rights?

first in time-t takes


what are the rights for underground water (well water)

landowner is entitled to reasonable use of ground water, although landowner must use it on the property and not export it.


what are the rights to surface water (runoff or floodwater)

there are two approaches:

1. natural flow approach - can not make any changes at all in the flow of the floodwater as it rushes across the surface of the land. (impossible to follow this approach)

mordern courts say means take reasonable means to deal with surface waters

2. landowner can do anything he wants with the floodwater (common enemy approach)