Property Law Flashcards

Question

Pierson v. Post,, holding from this case?

Answer 1

The Holding here is that that you it's not enough to just chase. It's not enough to just invest in going after you need more than that

Answer 2

“deprived of his natural liberty and brought him within his certain control.”

Answer 3

means it's not going to get away from you, mortal wounding would be something that deprives of natural liberty, but these things are less than full possession.

Answer 4

This is where the law is going. This is where property is being created non stop. Intellectual property, plus constitutional protections.

Answer 5

1. Copyright is protected , Copyright is protected and under Article one, Section eight of the Copyright Clause. 2. Trademark protected, trademark is protected by the Commerce Clause, 3. Patent 4. right of publicity

Answer 6

Patent is a limited duration property right relating to an\_\_\_\_7 or\_14 or 21\_\_\_\_\_depending on what it is, in exchange For complete control for your idea. Very high threshold for patents are highest level of protections .

Answer 7

copyright protection is recognized in the Constitution, but it's not the idea that gets the protection. It's the expression. It's the physical embodiment of the idea easier to get copyright protection, basically you get copyright protection. Whenever you create something, whether you register it with the copyright office or not, but the type of protections. You get are relatively meager Copyright protects works of

Answer 8

is the most tricky. Of the three. So, it identifies and distinguishes the source of goods. when a name becomes diluted. It's generally referred to as Whatever the machine does or whatever the thing does it no longer gets trademark protection. So you get higher protection

Answer 9

it's the exclusive right to license and use the identity for commercial promotion. right of publicity has wildly different standards in different states.

Answer 10

Kaczynski very broadly says that when we reduce, Too much in the public sphere to private property. We're depriving everybody because basically at this point in society. We're all standing on the shoulders of giants.

Answer 11

1. they don't want to constrain people from marketing their identities for money. 2. the court doesn't want be somebody who is really smart who finds a clever way around that and does something that gains.

Answer 12

The court references Carson v. Hers’s Johnny portable toilets. Which is not a binding precedent, because that came out of Michigan and this case is coming out of California, but they borrow that persuasive authority and they borrow from a treatise (A legal treatise is a scholarly legal publication

Answer 13

the common law right of publicity. They are slightly different than the statutory right of publicity. But what is critical here is that they are interpreted very differently.

Answer 14

- In property nearly all of the law is legal positivism. The land. It's almost entirely governed by legal positivism, the government, because property, especially real property rights are largely driven by culture and the government reflects that culture. We have a European view.

Answer 15

-property by creation is infinite. It's Anything that human beings. Come up with it's generally thought of within the right within the roles of patents, copyrights right of publicity and trademark. -it's different than real property because there's only so much Earth

Answer 16

Legal Positivism

Answer 17

-They are: 1. right to transfer, 2.the right to exclude, and the 3. right to use (occupancy)

Answer 18

Mackintosh is a Fraudulent plaintiff. He was chosen by the government to bring this case. This case needed to be brought so that the government could establish that anybody who had received Their land directly from a Native American tribe did not have proper title,

Answer 19

if johnson won the case there would be title lawsuits all over the place. titles were coming from the government and native americans. but the government is trying to establish its legitimacy at this time. remember in 1820 the government's still very young. they're trying to get rid of all of this conflict and say this is the United States

Answer 20

I had does the absolute title to the land belongs to the natives, or to the United States government.

Answer 21

Those rights and lands vest when the United States became independent of Britain, the conqueror gets the land.

Answer 22

how do we get land rights is it from sale or is it have to be from the government?

Answer 23

Macintosh holds title to the land, pursuant to the right for the government to transfer (not as important compared to the broad implications of this case)

Answer 24

Rules are bigger than the holdings, the holdings are very fact based, Rules are broader rules are taken from the holdings. see RULE

Answer 25

1. Johnson v. Macintosh and the first one is absolute title cannot exist in at the same time, in different people. What that means is you cannot have competing title, there has to be one title 2. The second rule is that the government holds absolute title over conquered lands, the government holds absolute title over conquered

Answer 26

1. Johnson builds on Pierson because they both are working from the position of first in time and conquer. 2. the difference between Johnson and Pierson and you can say that this is a difference between real property and personal property. 3. they didn't require either Johnson or Macintosh to be doing anything with the land, whereas Pierson says you must have actual occupancy. You must be you must Have certain control so it can't get away. 4. Pierson, personal property required a higher standard of use

Answer 27

freeholder is someone who holds title to land.

Answer 28

1. first in time. 2. economic theory 3. utilitarian theory 4. democratic or civic republican theory 5. personhood

Answer 29

- a person who is allowed to sell body parts that like regenerate. - the law is still really unclear, because it's not the law is lagging behind the science, not in front of the science - if a body part is removed, you do not have rights to that body part. Once it is removed, there are some exceptions.

Answer 30

compensatory damages are more common and most standard. Given to be compensated when you have been injured, or for whatever the loss you've suffered. Think someone hit your car you need it fixed.

Answer 31

are only awarded for the infraction of a legal right when you don't have loss. - So why do we have nominal damages at all because sometimes it's very important to establish the legal right or that you were wronged under the law. usually $1.00 think Taylor Swift case

Answer 32

awarded in addition to compensatory damages. when D has acted with recklessness malice or deceit, used to punish. meant to deter wrongdoing.

Answer 33

if we want as a society to protect the right to exclude we want to protect people's rights , in steenburg it was economically advantageous for them to make a bad decision.

Answer 34

trespass in the right to exclude are an exception to the general rule, if you get nominal damages, you can use this exception to get punitive damages

Answer 35

We have the rule --\> then we have privileges to the rule (1. Consent, 2 necessity (a. private, b. public) --\> then we have exceptions in the shack case

Answer 36

- Under our state law, the ownership of real property does not include the right to bar access to governmental services that is the part that is really important. The fact that they are under a government mandate. - Hence, there was no trespass under the meaning of the penal statute. - they are implying a right to access land. It is an implied right to access land. Migrant workers must be allowed to receive visitors there of his or her own choice, so long as there is no behavior hurtful to others, and members of the press may not be denied reasonable access to the workers do not object to seeing them.

Answer 37

- first impression is an issue that has not been seen by the courts before and therefore the courts are the first to decide on that particular issue.

Answer 38

stands for the absolute right to exclude

Answer 39

Right to use was = value of land was in its use for (farming, tenancy, protection) Custom è the created common law (codified customs) è then statute (codified common law)(see MA)

Answer 40

17th, 18th and 19th century America farming tendencies protection. All of that was wrapped up into the value of land in the right to do with it what you wanted.

Answer 41

you want to look to the statutes. If you have a question about how land is protected or what rights you have in your land. Second (then) look to the common law because the statutes are very well developed in this area. Owners still have enormous broad rights to use their land.

Answer 42

Whenever they have any standard that includes subjective intent, the court has to try to get into people's heads, who's right here who's actually spiteful who do really rise to that level of maliciousness

Answer 43

1. Action must be intentional. 2. It must be non-trespassory - it means that whatever action is taking place. It's happening in the defendants own yard their own space. 3. it has to be unreasonable. - The unreasonableness is the most contentious elements of private nuisance. For now, just know that the third element is unreasonable. 4. substantial interference - whatever is happening in the defendants property must create a substantial interference to the plaintiff. 5. Must affect the use and enjoyment of plaintiffs land: - it cannot simply be that it exists. And it bothers you, it must affect the use and enjoyment of plaintiffs of land.

Answer 44

1. Action must be intentional. 2. It must be non-trespassory- the destruction is non tresspassory 3. it has to be unreasonable. core of this issue is, if the substantial interference is unreasonable. 4. substantial interference- it is a substantial interference with the neighboring houses. They are afraid that it will create a new entryway into the area and reduce their property values by close to 25% if the average value of all of the houses $40,000 at the time. 5. Must affect the use and enjoyment of plaintiffs land.

Answer 45

Why is the dissent important to this case? What did they say, what is the descent feel about the public policy argument of the majority? - he particularly finds problems with the public policy argument - the dissenting judge brings up that it would cause questionable legal precedent. Like, you can't prove that the like. If alive she could just have her house torn down. No problem. So what's the difference when she's dead. - the dissent also finds that this public policy is wispy and ill defined. - The court failed to stick with the fact that what the plaintiffs brought is not discussed

Answer 46

Note: so you can do more with your property in life than death. And that is still an issue that is being questioned in the courts. The broad policy that unites these cases- “you may not do whatever you want with your property” your rights to your property have limits and those limits are generally how much you can harm your neighbors

Answer 47

- recovers the value of an item, but not the item itself.

Answer 48

you want the actual item back

Answer 49

Law uses title in two different ways. 1. as an indication of actual ownership, 2. also referred to title as the entire bundle. (finders?)

Answer 50

in finders the title is relative not absolute. You can split the paper title from possession. the finder has possession (some of the bundle) only . the owner has absolute title, the whole bundle of rights

Answer 51

A rebuttal presumption of ownership- means the rightful owner could still rebut the presumption. (in court)

Answer 52

Abandoned property is the link between the two.

Answer 53

-Usually only prima facia cases but you will see precedent cases again for finders - On an exam discuss what category that the item belongs (lost mislaid or abandoned). - And realize that it's incredibly rare that it's going to be clear cut. Almost always, you're going to want to talk about at least two and maybe all three categories. “I am choosing this item as falling into lost (mislaid or abandoned) because” and explain all the facts that tell you that it is more like lost (mislaid or abandoned) and list all the factors that explain lost (mislaid or abandoned), which category and why. (public or private, you need to determine YOU MUST DISCUSS THE ROLE OF THE FINDER) if you're in a weird place realized that the law is constantly evolving. So when we get to finders the law has evolved to decide. There are places that are private but have public spaces and those are different than public or private • 01:25:07discussed how the space that you're talking about on the exam falls into one category better than the other. Don't get flustered by the ambiguity. This is why Staffordshire is so important to know , if you are an employee, whatever you find is in control or possession of your employer in less your employer. Says you can have it.

Answer 54

-location- where found -state of property- new v. old type of property can change from where it is found, my VW engine was in my yard, they it was in the street. what happened, someone claimed it.

Answer 55

-because a was never aware of the money. So he never knowledge of it. peel v. hannah. -in lindner aviation the money went to the bank -So because b was the possessor of the safe in why had no knowledge of its existence the cash was originally lost or abandoned, but not mislaid 01:34:13The Court distinguishes the actions of an agent from an employee.

Answer 56

Death is a problem with a conditional gift statute because the there has never been a case on this it they've all been settled out of court. - -If the donor dies. The donor is not there to complete the condition. - Court hasn't dealt with that and it's a problem with conditional gift statutes, is there so many holes in them. - The thinking is, we should move away from conditional gifts, because they are so complicated. In practice, and you're dealing with people with a lot of emotions.

Answer 57

1 element that is not listed about, the inter vivos gift it is not revocable at any time up to death for any reason. On the other hand, gift Causa Mortis is revokable at any point up to death for any reason.

Answer 58

the right to exclude. - The lease separate who holds title from who has possession and modifies that right to exclude. - Owner return is governed by statutes both federal statutes and state statutes, they will tell you when an owner may return and who they may exclude.

Answer 59

pre-possessory interest

Answer 60

a qualified right to possession

Answer 61

Pierson v. Post: 1. What? Wild animal 2. Where? Public, unclaimed land 3. When? it's deprived of natural liberty. And brought under certain control ( it makes escape and impossible, you have dominion and control) 4. How? through possession. When you're able to possess through depriving of natural liberty and natural and certain control. You could possess the animal you have captured it

Answer 62

It is movable property. It's tangible personal property. (tangible = things you can touch)

Answer 63

1- Capture 2- find 3- adverse possession 4- gift

Answer 64

**1. LOST-**Property is lost when the owner **un**intentionally and **in**voluntarily _part with it_ 2. **Mislaid** -Property is mislaid when the owner **voluntarily** and knowingly places it somewhere, but then **un**intentionally _forgets it._ **3. Abandoned**- property is abandoned when the owner knowingly relinquishes all **ri**gh**t**, **i**nterest and **t**itle. (think RIT, Right, Interest, Title) How can you tell the difference between lost and mislaid property? Voluntarily placed v. involuntarily placed

Answer 65

we are learning her subtle disticntions between finders and mislaid property. and we need to look at the context clues, it is location, both broadly and narrowly The locations is the presumption Broad- where did I find it (the found it in the store) Narrow- where specifically did I find it (they found it in the public area of the store) Also need to look at the type of property Who finds it matter- was it an employee or a guest Manner as which it was found (character of the finding)

Answer 66

Categorizing Found Property The TYPE of found property is determined by examining ALL the facts and circumstances. What factors are considered? Place Location and manner manner appearance- pristine v. beat up character of finder- why were they there

Answer 67

Never say “\_**\_clearly** \_\_\_\_\_\_\_\_” “\_\_\_**\_obviously\_**\_\_\_\_\_\_\_\_” \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_on an exam.

Answer 68

**3. Manual Delivery** is required by law unless you cannot deliver , Manually deliver manual delivery is required by law unless you can't manually deliver something. So if you're looking at delivering something that's incredibly large, it can be very difficult to have manual delivery, in which case constructive or symbolic is going to be allowed. But if it is not impracticable or impossible manual delivery is required by the court. **2. CONSTRUCTIVE Delivery-** is manually providing physical delivery of an item that provides access to whatever the inter vivos goes gift is. So a key unlocks the house, therefore it's providing access. **Think keys**. **3. Symbolic Delivery**- the donor physically transfers to the donee and object that represents or symbolizes the gifted item like the letters and groom. LEAST FAVORED BY THE COURT. * Symbolic is difficult because can interpret the symbol differently. * It's even more of a challenge when you're dealing with transfer of an intangible object like stock options. * as soon as you meet the elements of interview vivos gift it belongs to the donate, even if the Donee dies in the process of taking it and then it goes into their estate.

Answer 69

**Delivery Problems** Pointing to Gold Pen on desk? None WORDS ARE NEVER ENOUGH (plus can you carry this away) **Pointing: “Drawer and everything in it.” O hand P key. Diamond and Title to O’s car**. **Constructive delivery the answer is maybe. Look at the working this, this is not delivery if you can pick up the drawer (look at how she plays with these.** “I **want you to have my Van Gogh. Pick it up (office in Rome) whenever.”** No, transfer of any physical object, this the letters form gruen. **Handing over bank book, all the money is yours**. NO, a bank book is symbolic of a savings account with a bank book it either has to be delivered to the done and a letter must be fully delivered to the bank in order for it to constitute proper delivery. So that if it's just a bank book with no delivery to the bank or the money was never taken out. It is not delivery but bank books have separate rules. **200 shares of Google stock, handing them to P. “…when I die. Keep them safe.”** No, this needed to be in a will, because when I die. O lends a book. Finds 2nd copy. Calls “Keep that book I let you. It’s yours!” physical , the order does not mater, **you can inform intent after delivery! The 3 elements can happen in any order.** **Beware of checks and bank books!** Majority rule on checks? Majority rule on checks, is that they are not considered delivered until they are cached. WhyBecause the time period between when you hand the check in, when they actually cash the check all of the money from the bank can be withdrawn

Answer 70

The Fair Housing Act applies to most housing. There are a few exemptions to the Fair Housing Act: A dwelling with four or fewer units, if the owner lives in one of the units – Single family housing sold or rented without the use of a broker, if the private individual owner does not own more than three such single-family homes at one time. In addition, religious organizations and private clubs can give preference to members if they don’t discriminate in their membership.

Answer 71

But if you say you may have all of my jewelry. Here's a piece of lintThat comes from my pocket where I normally keep my ring. Some courts will say, that's enough. There was a physical transfer, even though that physical transfer doesn't really meet what we would look for an interview those gifts. Other states have said no, absolutely not. You need to have something in writing, you need to have some sort of constructive delivery of something Even if it's here are my house keys. I'm jumping out of a plane that was house keys will give you access to the jewelry

Answer 72

On an exam you need to use manual delivery, if not you need to explain Constructive gives access and keys

Answer 73

History: **Non-freehold estates** (leased)- estate theory, on **top of the land did not matte**r, this is common law 15-17 century, the value was in the land, never had an issues because land cannot be desytroyed (farming) a leasehold was seen as an “estate in land” or a “nonfreehold estate” are leases. Under this model the (lessor) **transferred the exclusive right to poss**ession of the premises to the tenant (or Lessee) and **retained a future interes**t (usually a Reversion), the lease was governed by property law concepts. Things started to change in 1960s, today most jurisdictions view the lease as a hybrid, governed by both property law and contract law. Landlord tenant revolution – in favor of the tenant. **Modern rule-** “contract theory”, governed by statutes, modern leases cover only structure, without modern rule could not cover condos or coops.

Answer 74

largely governed by statutes, housing courts, health statutes. People just want a place to live, you want the same basic things, no roof leak, hot water etc some rules that apply to both

Answer 75

**largely governed by common law** because parties knowledgeable and they know what they want Negotiated into the lease by sophisticated parties SOME RULES APPLY TO BOTH

Answer 76

Immutable Rules- Supersede terms of the lease; does not matter what is written in the lease. Immutable rules usually deal with unconscionable terms , health and safety ( habitability ) usually governed by state property statutes

Answer 77

Default rules- these rules fill in the gaps that the parties did not address in the lease. these are Gap filler if not written into contract, and if a problem develops in this area they we will use a gap fill * gap fillers when provisions are left out of a lease * usually found in statute, under contract law governing leases * can be under UCC , or common law

Answer 78

·leasehold modify the right to exclude because they separate. 1. who holds **title from who has possession** and modifies that right to exclude. _once a property is leased the owner has limited rights to return to the property._ 2. **Owner return is governed** by statutes both _federal statutes and state statutes, t_hey will tell you when an _owner may return and who they may exclude._

Answer 79

2 theories of discrimination: disparate treatment disparate impact (**this discrimination is not covered in this course)**

Answer 80

The federal Fair Housing Act provides an exemption provides exemptions to the following types of housing situations: **· Religious organization**s and **nonprofit institutions associated with religious organizations.** These groups are permitted to limit the sale, rental, and occupancy of dwellings they own and operate for non-commercial reasons to persons of the same religion. This exemption is only valid, however, if membership in the religion is not restricted on the basis of race, color or national origin. **· Private clubs** which provide housing for other than commercial purposes as long as the provision of housing is “incident[al] to its primary purpose” 24 CFR 100.10(a)(2). · **Housing for older persons** as defined under the act. **· Homes sold or rented by the owner without the services of the real estate agent, broke**r, or any person in the business of buying and selling real estate so long as the owner has no interest in the proceeds, has most recently lived in the property at issue, and owns no more than three single family homes. Please contact the Fair Housing Enforcement Program for more details related to this exemption. **· Transactions involving apartments located within private homes** or buildings containing four or fewer living units in which the owner resides in one unit. (“Mrs. Murphy’s Exemption”)

Answer 81

English rule

Answer 82

**General Definition (book):** exercise have dominion over property. (Part of that exercise of Dominion includes the right to exclude) But this broad definition breaks down into two other definitions: **Actual Possession**: actual possession means that you have the right to physical occupancy. You can move in with your stuff. you must have the right to be able to physically move into the space to occupy the space a holdover tenant may not be there. **ENGLISH RULE** **Legal Possession**: legal possession is the right to obtain physical possession. (that is the issue with legal possession, LL has signed a lease and if there is a holdover tenant it is the new lessee’s responsibility to get the holdover out.) Florida still has this distinction for residential. legal right of possession gives you the right to evict the holdover tenants. (this works with related entities) **AMERICAN RULE!**

Answer 83

**Term of years tenancy** – fixed years or months often used in commercial (on and exam look for a start AND end date, it automatically ends at this date) Definite duration! **A term of years would say January 1 2022 December 31 2020** **Periodic tenancy-** automatically renewed unless landlord or tenant terminates **A periodic Tenancy would say January 1 2020 for a period of one year.** The only way to distinguish this from a years of tenancy is that it will not have an end date), could go on forever. **Tenancy at will**- no end point, continues “only so long as tenant and landlord desire” tenancy at will, is for a term until people decide they don't want to live together anymore. (this is a common law, you will need to go to the states statute to see what each states rules are), AT will can go on potentially forever, but has a much shorter length than a periodic tenancy. Month to month. **Tenancy at sufferance**—a person who rightfully took possession of land continues possession after right ends. isn't a real type of tendency, just a holdover.

Answer 84

**term of years tenancy**-usually you need to give one or two months notice if you're moving out before the end of the term. Note: in Massachusetts. You can be held to a term of years.through the end of the lease (exceptions are domestic violence and inhabitable). **periodic tenancy** a **months notice**. If you have a month to month periodic. if it's a one year. You need to give **six month notice** **At will-** you technically can just leave whenever you want. In reality there are statutory terms that vary by state that tell you how much notice you need to give

Answer 85

The Massachusetts rule is the **A**m**e**rican rule- right to l**e**g**a**l possession, can have holdovers

Answer 86

**residential leases** have had the **English rule** for a while its statutory in most States **except for Florida (florida can have holdovers).**

Answer 87

1. Must de-lead or cover paint hazards when there is a child under six years old living there. 2. May not refuse to rent to someone with a child under six years old because of the presence of lead paint. This is a violation of FHA Massachusetts anti discrimination law end family status. 3. If a child under six years old is poisoned buy lead paint the owner or agent is liable civilly being perhaps criminally, child endangerment.

Answer 88

I also almost always either have a jurisdiction that is a new state and therefore has every cases first impression and they haven't had a chance to enact statutes or a give you the statute from the state. The reason I do this is if you have different jurisdictional interpretations. I want you to tell me both I want you to say in this jurisdiction, they adopted it this way. And in this jurisdiction, they adopted it that way. Here is how these facts would apply in jurisdiction, a Here's how they would adopt how that would be adopted at b. This is the one that this new jurisdiction state of hope should adopt.

Answer 89

right of physical possession. LL has responsibility to ensure property is empty the ENGLISH RULE

Answer 90

the **A**m**e**rican Rule you can have holdovers on this one

Answer 91

The legal term or the cause of action, you would bring would be implied warranty of habitability. But how you would explain it to someone, is it deals with substandard housing.

Answer 92

is similar to IWH but it applies to commercial. In commercial leases. **You don't want to talk about habitability** on the exam with a commercial lease.

Answer 93

permissive waste is the tenants failure to make normal repairs on the property to protect it from substantial deterioration. Removing snow or mowing lawns. failure to maintain and estate.

Answer 94

leases are made up of a number of clauses. At history, each one of those clauses was independent of one another. What that meant in practice is that **if a landlord failed to maintain the property per the terms of the lease the tenants still had a responsibility to pay rent** **the only remedy** was a lawsuit. At times, when there is a housing shortage. No one wants to sue their landlord.

Answer 95

withhold rent (put it in escro) withhold rent for the area of the apartment that is not habitable. or a lawsuit to end lease and move out. historically under commone law: Lease was interpreted as a bunch of independent covenants. Implied covenant of quiet enjoyment

Answer 96

is still good law for both residential and commercial leases today. **BUT mostly uses with _commercial law_** because implied warranty of habitability has more remedies.

Answer 97

It was a promise by the landlord that he would not wrongfully interfere with tenants right of possession. This Covenant was put into leases to prevent the landlord's from coming in and taking all the crops from stealing the cows and saying, well, it's my land **NOW: i believe it evolved into constructive eviction** (my notes are weak in this area)

Answer 98

Example of test question: If in a rainstorm, T has rain leaking through the roof. Lets say, There was a small leak coming from the roof. They had actually started to buckle, the wall, but the wall was structurally safe just really ugly. But then the rain started to actually pull on the floor so that the floor was slippery. **You want to argue**. Okay, that is reasonable to leave because its It is a safety hazard once there is rain on the floor. **OR You want to argue** with it, not reasonable to leave because you could throw a towel over that that's not really harmful, you go both ways. It is a question of fact. remember that substantial interference differs per jurisdiction.

Answer 99

Waiver: waiver is the failure to vacate Doctrine of Laches- Failure to bring a legal claim in the proper, or a reasonable, time.

Answer 100

the landlord has to be **given time to remedy** the problem. if Paolucci said, "I'm out tomorrow," the _Court would say you gave no time to remedy_ this isn't a constructive eviction issue.

Answer 101

Warranty of habitability is based on housing codes, would these standards, they are considered immutable terms. Housing coded vary significantly by jurisdictions. Some housing codes are just the bare living essentials.

Answer 102

**Constructive eviction** is the only remedy for **commercial tenants** in **49 states)** **utah has both implied warranty of habitability and constructive eviction for commercial leases.**

Answer 103

Implied warranty of habitability works better for residential tenants, why? There are more remedies available. You can withhold rent. You can repair it yourself and deduct what you spent for the repair from your rent you can sue for damages, if you continue paying rent. Or you can terminate the lease, you can say this is not the least, that I signed, you're not pulling up your end of the bargain. I'm out.

Answer 104

the building or space has to be right for lets say a retail store. you cannon move a retail store into bowling alley. So it needs to be suitable for the stated purpose.

Answer 105

**implied covenant of quiet enjoyment _is not a cause of action_**. Do not bring this up on the _midterm or the final exam_ implied warrant covenant of quiet enjoyment. Is something that is a part of the idea of leasing land and it has its **historical predates constructive eviction**, it's not a cause of action unless it is an explicit terminal lease. if there is a line in the lease that says, and the landlord warrants implied covenant of quiet enjoyment. _All that this means is that the landlord (LL) had noted constructive eviction as a part of the lease. Even if it is not in the lease it is still an options._

Answer 106

Privity of contract is the four corners of the contract (lease) that you sign, it is a document between you and your landlord. IT IS THE CONTRACT BETWEEN **T** AND **LL** **If you transfer your interest in a property** before that contract runs out. **you are still on the hook for that contract**. (UNLESS NOVATION)

Answer 107

privacy of Estate your relationship with your landlord is based on your possession of the land. if you leave the land and you're not coming back, privity of estate is broken between you and your landlord. if you **transfer your rights** and duties to the land (via a sublease). It doesn't sever the contract, **the contract is still existing**

Answer 108

Requirement: T1 gives away **ALL his rights** in the land to **T2** **T1 and LL** will remain **connected** by privity of **contract**, (unless novation, novation is a separate contact between T1 and LL. To break The original lease) **T1 and T2 have privity of contract** (there should be a contract between T1 and T2 setting out their relationship is. And T2 and LL have P of contract) **T2 and LL have privity of estate** (even if there is not a written contracts between T2 and landlord, they still have a relationship. And it's a relationship that can be the basis for a lawsuit) If T2 breaks lease, LL can sue T1 (through privity of contract) or T2 (through privity of estate(

Answer 109

**T1 plans to come BACK to the land.** Can be 6 months, 1 week, or 1 minute=T1 only needs the ability to come back for transfer to be sublease, not assignment. **T1 has privaty of contract and estate with LL (none are broken)** **T1 and T2 have privaty of contract and estate** **T2 and LL have no relationship**

Answer 110

tends to be in there when there's a hot market where everybody wants the property and T don't really care whether the landlord is going to be arbitrary because the T desperately need the property.

Answer 111

**financial responsibility** that straight up makes sense **suitability of the use for the property**. So this comes up when you're dealing with restaurants or grocery stores or anything that needs a lot of refrigeration equipment or major renovations to the property that may make it unusable to the next tenants. l**egality of proposed use this is presently** a fight in both Rhode Island and Massachusetts and when you're dealing with People who are trying to start up farms for marijuana cultivation. at the state level. This is legal. At the federal level, it is not. so they're currently fights over whether it is **Need for alteration** of the premises is very close to suitability of use nature of occupancy. There are some examples there in the book. So if you have a lease where one tenant must be the lead tenants.You can't have to leave tenants. It's okay to say we're not going to sublease to this because there'll be a lead tenant. What do I need by lead tenants. So if you go to a mall Macy's. JC Penney's Sears when it existed. We're all lead tenants, they always had in their leases with malls that there could only be certain other types of lead tenants.

Answer 112

Note on :No Standard in lease”: means the only language in the lease is that the Landlord has the right to approve an assignment or sublease. (use this to decipher what clause they have) **you want to read this language closely because:** if it says that the landlord has discretion to choose if there's an assignment. It means just an assignment. If the language and the lease says that the landlord may approve our must have to be able to approve anybody who is a sublet, it is just subleases. Or it can say the landlord's consent is required for any transfer of any type of the premises, which means assignment sublease or adding somebody else to the lease.\ **This should be on a test.** **Read the least terms very carefully.** - if Lease says that sublease is are barred. That does not mean that assignments are barred - If the lease says there will be no assignments or sub leases or transfers **of any kind**, to another party. That means subleasing and assignments, and having someone else come into the lease is going to be barred, If it just says no sub leases then assignment is fine if it says no transfer of any kind, sublease is in assignments are both going to be barred If it says no sub lease or assignments sub lease or an assignment are barred, but there may be another transfer, as in bringing somebody else on the lease that would be okay.

Answer 113

Hypotheticals, Pg. 510 In a 25 year commercial lease for space in L shopping mall T will use as a furniture store the lease contains a **silent consent clause** under the Kendall standard U plans to open a wine store the store will include a wine bar where customers may sample various wines. LL believes that drinking alcohol is morally wrong. He's also concerned that customers at the wine bar may become drunk, causing problems for other businesses in the mall under kendal's reasonableness. Is that commercially reasonable to deny the sublet or assignment. ANS: U’s wine store - I thought it was unreasonable to deny, It's because it was on moral grounds in the thought process of people could get drunk (speculation is not commercially reasonable, but is there was proof from a different location), but he has no proof of that. V will open a green card store G, Another tenant in the same shopping mall already operates a greeting card store LL is convinced that V store will adversely affect G store. Ans: V’s greeting card store- if they were to bring on a gift card shop. Well, there's another gift card shop already in the mall. It's going to be taking business away from gift card shop. Number one, which probably can inhibit its ability to pay rent. X wants to start a comic book store X is 24 years old and has no business experience, but her wealthy father will co-sign the lease and ensure all rent payments are made L has met X and does not like her (this was a reg herring). Ans: you don't have any experience. So how am I supposed to know that you know how to run a business and then that could be like An issue. Also, a poorly operated business in a mall can negatively impact how the mall is viewed by others, and it can negatively impact the other stores and how they operate.

Answer 114

Abandonment means that a **tenant vacates without justification** and without any pretense of returning and defaults on payments. It does not matter whether the tenant tells the landlord. They're leaving or not abandonment is they have left. They're not coming back in the landlord has not legally accepted that they're leaving. T is on the hook for rent. Need to add to this after case

Answer 115

**Surrender** is when the landlord and the tenant agree to end the lease early Generally, this happens when the landlord knows they can re rent the apartment for a **higher price.**

Answer 116

Residential Leases can have “no assignment without consent” If the landlord approves the first assignment, but does not tell T2 that they reserve the right to consent to future assignments, he is deemed to have waived the right to few to consent to future assignments. (THIS CASE IS FOR ASSINGMENTS ONLY, NOT SUBLEASES. ) (the reason it is for assignment only is because in a sublease T1 still has privity on contract with LL, so there was no need to write it into a contact)

Answer 117

the **majority rule** _before this case_? “ **no duty to mitigate**” (meaning LL does not need to fill the apartment if you leave early) **_This is still the case in Massachusetts._** NOW! **“Landlord has a duty to mitigate damages when he seeks to recover rents due to a defaulting tenant” page 515** It is also the new rule: Landlord has a duty to mitigate damages when he seeks to recover rents due to a defaulting tenant”

Answer 118

eviction is when a person is required to quit a premises outside the terms of their lease.

Answer 119

heirs are the people who recieve real property heirs apparent - living people do not have heirs, they have heirs apparent.

Answer 120

Absolute ownership with potentially infinite duration and no limitation on its inherent ability and it cannot be divested

Answer 121

refers to a situation where a tenant makes repairs and improvements on property that increase the value of the property, but, did not ask permission of the landowner or any future interest holders to make these improvements.

Answer 122

_Anything that altered the identity of the process was considered waste. you could not do anything._ Except, keep the property in the same condition that you got it in. So you had to maintain it. If you didn't, maintain it. It was considered permissive waste.

Answer 123

generally the duty of a life tenant and should use the property in a manner that does not injure the rights of future interest holders.

Answer 124

The implied warranty of habitability requires that the landlord must, within a reasonable time, fix any reported conditions that are dangerous to tenant health, safety, or the habitability of their apartment. In determining whether a condition is unsafe, courts frequently apply the local housing code if one exists; if there is none, the court asks whether the conditions are reasonably suitable for human residence.

Answer 125

conditional language associated with FSSCS, unless there is a "," and a thirp party

Answer 126

conditional language associated with FSSCS, unless there is a "," and a third party

Answer 127

conditional language associated with FSSCS, unless there is a "," and a third party

Answer 128

durational language, indicanting a FSD, (favored under the law), unless has "," and a third party.

Answer 129

durational language, indicanting a FSD, (favored under the law), unless has "," and a third party.

Answer 130

durational language, indicanting a FSD, (favored under the law), unless has "," and a third party.

Answer 131

durational language, indicanting a FSD, (favored under the law), unless has "," and a third party.

Answer 132

Fee Simple Subject to Condition Subsequent (FSSCS)

Answer 133

Fee Simple **D**eterminable

Answer 134

Fee Simple Subject to Executory Limitation

Answer 135

Fee Simple Subject to Conditions Subsequent.

Answer 136

**Fee Simple** **Determinable. (proprty automatically goes back to O)**

Answer 137

**a Life Estate: Fee Tail; or contingent remainder.**

Answer 138

**EXECUTORY INTEREST** follows an estate **that is curt short or a termination of the prior estate**

Answer 139

REMAINDER follows the **_Natural Termination_** of the prior estate For example if you have a life estate with no conditions with a third party.

Answer 140

1. questions of law and 2. questions of fact

Answer 141

is the holder of the estate. At the present time, the person who has the current right to possess the real estate. you need to recognize is if you are looking at who currently has it, and has the right to have it. That's your present possessor estate. So if I give you a problem where oh conveys to X for life Oh dies, who has it.

Answer 142

**Vested-** assigned to an ascertained person and ascertained person is a person who is alive and identifiable

Answer 143

Vested Remainder- is an absolute right to receive title after the presently existing interest in real property terminates. we know who the person is, and they have _CERTAINTY_ they they are going to get the estate. there are no conditions or restriction

Answer 144

Indefeasible(Y)- means that which cannot be defeated revoked or made void.

Answer 145

**Indefeasibly Vested Remainder**- goes to an ascertained. Identifiable person we know who they are and they're born alive right now and nothing can take it away. There are no conditions or restrictions on they're holding there is no uncertainty on they're holding. They are absolutely going to get it.

Answer 146

Example: X for life then to Y: Y is definitely going to get it there and ascertained person there identifiable. We know that there are no conditions or restrictions on Y getting the estate. it and they're absolutely going to get the present possessory estate in the future because eventually x will die.

Answer 147

Reversion- Means is returned to the grantor * A reversion can follow a life estate or reversion * can follow a term of yours a reversion * absolutely **must** follow fee simple determine and fee simple subject to condition subsequent

Answer 148

If I have fee simple subject to condition subsequent. What is the future interest the future interest must be right of entry, sometimes called power of termination. NOTE THIS IS A TYPE OF REVERSION FOR FSSCS

Answer 149

Possibility of Reverter (TYPE OF REVERSION FOR FSD OR LED (LIFE ESTATE DETERMINABLE)

Answer 150

Possibility of Reverter (TYPE OF REVERSION FOR FSD OR LED (LIFE ESTATE DETERMINABLE)

Answer 151

The land when the land will pass to someone other than the grand tour after the natural termination of the prior estates. an estate that has a time limit or something on it that's going to make it ends without cutting it off. So think a life estate _a life estate, with no conditions._ What comes after that the future interest is a remainder. always in a third party. can only come after and estate that ends on its own terms. * Example: for x for life., then to y.the remainder goes to y

Answer 152

**an executory interest is a future interests** that will be _triggered by the happening of a stated event_ and will automatically past property to a third party. **An executory interest**s like remainder must be in a third party, it must be in a third party when an executive very interest rips away or cuts off the prior estate. to x, so long as she never wears red shoes, if she wears red shoes, then to Y. Y can be ripped away from from her wearing red shoes and it goes to a third party. that's an executory interest NOTE: THIS MAY NEVER BE VESTED, BECAUSE X MAY NEVER WEAR RED SHOES.

Answer 153

Sure to x, so long as she never wears red shoes if she wears red shoes, then to y. it can be ripped away from from her wearing red shoes and it goes to a third party. So that's an executory interest.

Answer 154

Contingent: (ONLY USED WITH REMAINDER) Contingent means occurring or existing only if certain other circumstances ARE dependent on.

Answer 155

* Contingent remainder: . (two types of contingent remainders) 1. **unascertained person contingent remainder**- For example: a life estate to cassidy brown, then to the children of cassidy brown. Since Cassidy does not have any children they are unascertained at this time. 2. **Type II- when the event is may or may not happen**- for example, to X for life. Then to Sally once she graduates from law school. (the condition is on the person who has the remainder. (you can never mix **contingent remainder** **or remainders** and **executory interests**. An executory interest has to cut off the prior state a remainder is the opposite, It's the natural termination of the prior state. you can have one or the other) · to X for life. · Then to Sally once she graduates from law school. (please note that in this case there could be an instance where O springs and holds the estate until sally graduates law school)

Answer 156

**Remainder Subject to Divestment (always attached to remainder)-** at least one person is known, BUT something can take the property after they get possession. You have it but if you do something, it is ripped away by a 4^th party. So there is a Life estate, third party has remainder subject to divestment (example: Y never wears red shoes, if where red shoes it goes to A) this is hard to distinguish from contingent remainder

Answer 157

contingent remainders something has to happen **before** in order for the remainder to be operative. divestment (remainder) means they have it, but it can be ripped away.

Answer 158

**C****onditions precedent** is a descriptive term condition precedent is a descriptive term that describes _“__an event that must be met before the contingent remainder is operative”_ **Conditions Preceden**t (you see this linked to contingent remainders, ) (in future interests) If you identify a conditions precedent, you know there is a contingent remainder, so you need to see what FIs are attached to condition remainders

Answer 159

**Ascertainable Persons-** we know who they are and they're born (you can physically point them out)

Answer 160

* Reversion - any time you have a LE there is a reversion * Contingent remainder- you always have a reversion with a contingent remainder because it is possible the condition needs to happen, never happens. * Fee Tail * Term of years

Answer 161

What is the ONLY TYPE of estate has **possibility of reverter** as a future interest? * Fee Simple Determinable – has to be followed by the future interest of **Possibility or Reverter**

Answer 162

What is the ONLY TYPE (2) of estate has right of entry as a future interest? * Fee Simple Subject to Conditions Subsequent * Life Estate Subject to Conditions Subsequent

Answer 163

So make sure that if there is anything asks about what does somebody hold you understand that if somebody holds 00:21:11By tenancy in common, or joint tenancy and they later get married, they have to actively choose and go through a process with an attorney in order to have tendency by the entirety.

Answer 164

- is the holder of the estate. At the present time, the person who has the current right to possess the real estate.

Answer 165

- assigned to an ascertained person and ascertained person is a person who is alive and identifiable Vested Remainder- is an absolute right to receive title _after the presently existing interest_ in real property terminates.

Answer 166

- - means that which cannot be defeated revoked or made void.

Answer 167

1. straight REVERSION 2. POSSIBILITY OF REVERTER 3. RIGHT OF ENTRY

Answer 168

fee simple subject to condition subsequent FSSCS you must have a right of entry

Answer 169

Possibility of Reverter (TYPE OF REVERSION FOR **FSD** OR **LED** (LIFE ESTATE DETERMINABLE)

Answer 170

LE, TOY or missing one

Answer 171

future interest is a remainder. always in a third party. hint if you do not see a 3rd party, then you cannot have a remainder

Answer 172

is a future interests that will be t_riggered by the happening of a stated event_ and will automatically past property to a **third party.**

Answer 173

is when there is _some uncertainty_ about who or how the person is going to get the remainder. (two types of contingent remainders)

Answer 174

**unascertained person contingent remainder**- For example: a life estate to cassidy brown, then to the _children of cassidy brown._ Since Cassidy does not have any children they are unascertained at this time.

Answer 175

**when the event is may or may not happen**- for example, to X for life. Then to Sally _once she graduates from law schoo_l. (the condition is on the person who has the remainder. note sally has a springing execurtoy interest

Answer 176

.An executory interest has to cut off the prior estate, it is the HATCHET. -a contingent remainder is the opposite, It's the natural termination of the prior state. you can have one or the other. PILLOW

Answer 177

(always attached to remainder)- at least one person is known, BUT something can take the property after they get possession. You have it but if you do something, it is ripped away by a 4th party. Example: O to X for Life (natural end), third party has remainder subject to divestment (example: Y never wears red shoes, if where red shoes it goes to A)

Answer 178

Conditions precedent is a descriptive term condition precedent is a descriptive term that describes “an event that must be met before the contingent remainder is operative” preceding condition that needs to be met prior to the estate becoming operative.

Answer 179

Reversion - any time you have a LE there is a reversion Contingent remainder- you always have a reversion with a contingent remainder because it is possible the condition needs to happen, never happens. Fee Tail Term of years

Answer 180

Fee Simple Determinable – has to be followed by the future interest of Possibility or Reverter

Answer 181

Fee Simple Subject to Conditions Subsequent Life Estate Subject to Conditions Subsequent

Answer 182

1) Is this a devise or a conveyance? (what does O devise or convery) a device limits what can happen next. O is dead. You can't have anything in the Grantor (and maybe transferor) because O is dead. You have to have a third party involved. If conveyance it can be anything. 2) What is the first estate/second party after the comma? (who gets the first estate) FSA- then you are done Fee tail. You are done. We know what happens next. it goes to the descendants, the heirs of the body. life Estate- you know that there's going to be something after it. Defeasible Fee simples- FSD- possibility or reverter FSSCS- Right of entry next FSSEL- they whole host of possibilities 3) Who has the future interest? (third section of sentence, who has the FI) It if goes to a third party (one of 2 things) Remainder Executory interest If goes back to transferor or grantor ( can be one of three things and you are done) A reversion Right of entry Or reverter 4) How will the future interest will become possessory? (this was not explained well) If it's naturally terminating “to X for life” with no conditions we know we have a remainder To x for life, provided she keeps the property in pristine condition. There's a condition on X is holding it has to be an executive, the interest 5) if the interest is a remainder, is the interest is vested or contingent?

Answer 183

Not an estate, but the _possibility of an estate_. Need to meet a condition to get it. * Follow the \_\_\_expiration of the preceding estate. * **Does NOT** immediately become \_possessory \_at the expiration of the prior estate. At time of creation, the remainder is created in: at the time of creation, the remainder is created in a person who is unascertained that either we don't know where they are **OR** the remainder can only become possessed rate after the condition is met the there is a condition precedent something before that must happen for it to become possessory. Contingent remainders always have a reversion by operation of law, Contingent remainders ALWAYS have a \_\_REVERSION\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_by operation of law.

Property Law Flashcards

(214 cards)