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Property Review Flashcards

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1
Q

devisable v. descendible

A

devisable - passing by will
descendable - passing by heirs

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2
Q

is a joint tenancy devisable or descendible?

A

no but alienable inter vivos. not descendible or devisable bc passes to living JT. would void the transfer.

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3
Q

how to create a joint tenancy

A

need for unities!!! (T-TIP)
-Time
-Title (same deed, will, or other doc)
-Identical, equal interests
-Possess (w right to possess whole)

MUST CLEARLY SAY “WITH RIGHT OF SURVIVORSHIP”
Otherwise, presumed to be TiC

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4
Q

how to sever a JT

A

death of one in 2
partition
unilateral conveyance (would destroy the transferred interest in the JT bc disrupts 4 unities)
title mortgage (minority of states use title theory - most do lien)
foreclosure and sale
intentional murder by one of JT (turns into TiC)

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5
Q

types of partition

A

-voluntary agrmt
-judicial partition in kind [divides prop up - best when tons of acreage] (courts prefer)
-judicial forced sale [best when single building]

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6
Q

tenancy by the entirety

A

must be married when purchased prop! if so, presumed TbE.

creditors of only one spouse cannot touch TbE
unilateral conveyance or encumbrance does not sever [void] (includes mortgage)

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7
Q

how to sever TbE

A

death, divorce, mutual agreement, or execution by joint creditor of BOTH spouses

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8
Q

TiC properties

A

-owns an individual part w rights to possess whole [but no right to exclusive possession of any part]
-devisable, descendible, alienable
-presumed type of tenancy (e.g., Suppose that siblings Kevin and Randall co-own a cabin. Kevin contributed 90% of the purchase price and Randall 10%)

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9
Q

ouster

A

-when one co-tenant wrongfully excludes another co-tenant from possession of the whole
-actionable wrong

Tenant that has ousted is liable to others for rent

HOWEVER, unless FORMAL OUSTER has occurred, exclusive possession alone (without wrongful exclusion) does not render the exclusive possessing tenant liable to others for rent. He can also retain profits from his use of the property.

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10
Q

profit share w co-tenants

A

generally don’t have to except for rent and exploitation of land like mining

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11
Q

ouster and AP

A

Unless they have ousted the other co-tenant, the co-tenant in exclusive possession for the statutory period cannot acquire title to the whole to the exclusion of the other co-tenant.

WHY? Not hostile.

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12
Q

costs and repairs for co-tenants

A

COSTS
-each pays his fair share! Based upon individual share amount.
-includes taxes, mortgages, interest payments
REPAIRS
-contributions for reasonable and necessary repairs [based on share amount] required, provided that the co-tenants give each other notice of the need for the repairs

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13
Q

improvements for co-tenants

A

unilateral improvements
-no contribution required (credit at partition)
-decrease or increase in value by modification absorbed by the modifier!

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14
Q

co-tenant waste

A

must not commit waste or another can bring action against the other, like for partition

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15
Q

are restraints on partition for co-tenants valid

A

yes but only if for a reasonable time

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16
Q

do courts prefer partition in kind or partition by forced sale?

A

in kind but will force a sale if necessary

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17
Q

4 leaseholds

A

-tenancy for yrs
-periodic tenancy
-tenancy at will
-tenancy at sufferance

landlord has future reversion interest

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18
Q

when do the leaseholds end

A

YEARS
-auto at end date
-usually has right of entry if lessee breaks lease covenant (like failure to pay rent)
-SoF (must be in writing if over 1 yr)
PERIODIC
-when lessor OR lessee gives reasonable WRITTEN notice (usually one term) [so, continuous until properly terminated] [1 yr-1 month]
WILL
-terminable by either landlord or tenant [or potentially just tenant] w reasonable notice

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19
Q

how to create periodic tenancy

A

-express (e.g., A conveys to B month to month)
-implication (1. no mention of duration but provision is made for payment at set intervals; 2. oral term of years in violation of SoF; 3. lease after holdover tenant)

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20
Q

tenancy at will

A

“To T for as long as L or T desires”
no fixed period or duration
create expressly (if not, usually seen as periodic)

if the lease gives only the landlord the right to terminate, courts will find tenant also can. but if only tenant can terminate, courts won’t find landlord can.

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21
Q

is notice required for tenancy at sufferance

A

no

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22
Q

holdover tenants and instituting new lease

A

can bind them to new periodic tenancy. holdover equals assent.

residential = month to month
commercial = previous terms

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22
Q

exceptions to holdover doctrine

A

-tenant remains in possession for only a few hours after termination or leaves a few articles of personal property
-delay is not the tenant’s fault (for example severe illness)

in such cases, the landlord cannot bind the new tenant to a new tenancy

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23
Q

main tenant duties

A

-maintain premises
-make routine repairs (other than those due to ordinary wear & tear) [if says need to keep in good condition, heightened standard]
-don’t commit waste

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24
tenant ameliorative waste exception
-if long-term tenant and the change reflects changes in neighborhood, that's ok
25
yedestruction of premises - tenancy
T can terminate if premises destroyed without T's fault
26
if the landlord moves to evict under the unlawful detainer statute, are they still entitled to rent?
yes until tenant vacates
27
landlord eviction re self help
landlord must not engage in self-help!!! should not change locks, forcibly remove tenant, or remove the tenant's possessions. can be punished civilly and criminally.
28
tenant breaches but is out of possession (wrongfully vacates w time left like on a term of years)
SIR Surrender: ends relationship [T shows by words or conduct that she wants to give up lease] Ignore abandonment and hold tenant responsible for rent until natural end of lease (minority of states allow) Re-let premises on wrongdoer's behalf and hold the wrongdoer liable for any deficiency Under the majority rule, landlord has a duty to TRY to re-let [miitgation principle]
29
wrongful eviction
actual eviction (from entire premises) - terminates duty to pay rent partial eviction - terminates duty to pay rent for ENTIRE premises
30
constructive eviction
occurs when landlord's breach of duty renders the premises unsuitable for occupancy SING Substantial Interference (chronic/permanent problem) Notice (T must notify L and L must fail to fix) Goodbye (T must vacate within a reasonable time) If meets elements, can terminate lease and seek damages
31
acts of other tenants
a landlord is not generally L to tenant for wrongful acts of other tenants 2 exceptions: -landlord has duty to abate nuisance on site -landlord must control common areas
32
duty to deliver possession
landlord must put tenant in ACTUAL physical possession of the premises at the beginning of the leasehold term
33
implied covenant of quiet enjoyment
ALWAYS TESTED. -arises by implication in every residential and commercial lease -tenant has a right to quiet enjoyment and use of the premises, without interference from the landlord or a paramount title holder -this could be breached by wrongful or constructive eviction TO PLEAD EVICTION SUCCESSFULY, TENANT MUST VACATE
34
implied warranty of habitability
-residential leases only -NONWAIVABLE -"fit for basic human habitation" - meets bare living requirements Exs: -no heat in winter -no working plumbing -no running water
35
who does the implied warranty of habitability apply to?
ONLY RESIDENTIAL LEASES. NOT COMMERCIAL.
36
T's entitlement when implied warranty of habitability is breached
MR3 Move out and terminate lease Repair and deduct Reduce rent or withhold all rent until court determines fair rental value Remain in possession, pay full rent, and affirmatively seek money damages
37
diff btw covenant of quiet enjoyment and implied warranty of habiitability for how u handle
quiet enjoyment - must vacate to plead eviction successfully implied warranty of habitability - can vacate but is not required to
38
retaliatory eviction
landlord cannot terminate lease or otherwise penalize a tenant for exercising their legal rights like reporting them for housing violations
39
Civil Rights Act
bars racial or ethnic discrimination in the sale or rental of all property
40
Fair Housing Act
protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status (except in senior housing) Prohibited actions: -refusing to sell, negotiation, or rent, or make available a mortgage, loan, or other financial assistance -providing diff terms or conditions for sale or rental or fin assistance -falsely representing a dwelling is not available BUT does not apply to owner-occupied buildings w 4 or fewer units in which persons live independently of each other
41
Fair Housing Act - Reasonable Accommodations
landlords must permit disabled tenants to make reasonable modifications to existing premises to accommodate their disabilities at the tenant's own expense. landlords also must make reasonable accommodations in rules, policies, and services when necessary to afford a disabled person an equal opportunity to use the dwelling
42
is a sublessee personally L to landlord
no bc no privity of kx
43
caveat lessee
tort liability common law norm: let the tenant beware. landlord under no duty to make premises safe. 5 exceptions: CLAPS Common areas Latent defects Assumption of repairs Public use rule Short-term lease of furnished dwelling
44
latent defects landlord
L must warn - not repair tho if landlord has knowledge or reason to know but if undertakes repairs, L if does so negligently
45
public use rule
a landlord who leases public space (like conventional hall or museum) and who should know, bc of the significant nature of the defect and the short length of the lease, that the tenant will not repair, is LIABLE for any defects that cause injury to members of the public
46
Short-termed lease of furnished dwelling
responsible for ANY defective condition which proximately injuries a tenant (whether or not they knew of the defect)
47
easement
nonpossessory property interest that allows use or enjoyment of another's land presumed to be of perpetual duration unless otherwise stated
48
negative easements
-prevent landowner from doing something that would otherwise be permissible -only FOUR kinds: LASS -Light -Air -Support -Stream water from artificial Flow minority of states also allow for scenic view CAN ONLY BE CREATED BY EXPRESS WRITING SIGNED BY GRANTOR
49
easement in gross examples
-billboard on someone's land -railroad on someone's land -right to swim in another's pond -power lines
50
easement appurtenant passing...
passes automatically even if not mentioned in subsequent conveyance unless new owner is BFP without notice of easement
51
easement in gross passing..
not transferable unless for commercial purposes [like swim school can use lake]
52
creation of easements
PING Prescription implication necessity grant (SoF)
53
implied easements
-pre-existing use (common on exam) [2 reqs: 1. previous use on servant part was APPARENT and CONTINUOUS; 2. parties expected that the use would survive division bc it is reasonably necessary to the dominant tenement's use and enjoyment] -subdivison plot (use street to access lots) -necessity [landlocked]
54
prescriptive easement limitation
cannot be acquired on public land
55
easement reservation for 3d party
majority does not allow easement reservation for 3d party, only for grantor
56
overuse of an easement
generally fine but can get injunction if unreasonably overburdens servient estate
57
easement termination
END CRAMP Estoppel (reasonably relied on) Necessity Destruction Condemnation Release Abandonment Merger Prescription
58
licenses
-freely revocable (exception: estoppel [must have invested substantial money or labor in reasonable reliance] -inalienable -mere privilege -need not be in writing failed easements often become licenses exes: tickets, neighbors talking by fence
59
profit
entitles holder to enter the servient land and take from it some resources like soil or fish/game all rules applied to easements apply to profits (termination, creation, etc.) but can also be discharged through SURCHARGE - misuse that overly burdens servient estate
60
covenants to pay money
count as touch and concern. may include HoA fees.
61
horizontal privity
nexus btw the original promising parties. requires they be in SUCCESSION OF ESTATE like grantor-grantee.
62
vertical privity
nexus between successor in interest and one of the originally covenanting parties requires some NONHOSTILE NEXUS, such as kx, devise, or descent only time it is absent is when AP
63
requirement for BURDEN to run [when successor in interest is bound - real covenant)
WITHIN Writing Intent Touch and concern Horizontal and vertical privity Notice
64
requirement for BENEFIT to run [when successor can bind - real covenant]
WITV NO HORIZONTAL PRIVITY. NO NOTICE.
65
are racially restrictive covenants enforceable
no
66
breach of real covenant damages
generally, award of money damages. equitable remedy for equitable servitude.
67
termination of real covenant or equitable servitude
1. written release 2. merger 3. condemnation
68
creation of equitable servitude
WITNES Writing Intent Touch and concern Notice Equitable servitude NO PRIVITY REQ
69
what is an implied equitable servitude
will b on exam!! exception to the general requirement that the original promise be in writing common scheme doctrine
70
common scheme doctrine
for implied equitable servitude. court will imply a "reciprocal negative servitude" [implied equitable servitude] to hold an unrestricted lot holder to the covenant happens when common plan of development and not all the deeds contain restrictive covenants. covenants will be binding on all. elements -when sales began, the subdivider had a GENERAL SCHEME OF RESIDENTIAL DEVELOPMENT which included D's lot ------> this may be evidenced by a recorded plat, a general pattern of restrictions, or oral representations to early buyers; AND -Defendant lotholder had NOTICE of the promise contained in those prior deeds when it took. (actual, inquiry, record) if the scheme arises AFTER some lots are sold, no dice.
71
equitable servitude exceptions
-changed neighborhood conditions [EVERY SINGLE LOT AFFECTED] -unclean hands -bla bla
72
AP - CONTINUOUS REQUIREMENT
-intermittent periods of occupancy insuficient -if summer home, possession just need to be in summer when usually used -need not be by SAME person; can tack own possessory periods onto those of predecessor [but must be PRIVITY by kx, deed, or will - ouster defeats privity]
73
AP - open and notorious
sufficiently apparent to put the true owner on notice that trespass is occurring
74
AP - actual and exclusive requirement
not always required to possess entire parcel. if AP enters under color of title, she is deemed to be in constructive possession of all the land the deed describes, as long as she is in actual possession of a reasonable portion of that land.
75
AP requirmenet
ECHOS Exclusive Continuous Hostile Open and notorious Statutory period
76
must an AP pay taxes?
generally no but helps
77
AP and disability
SoL will not run against a true owner who is affected by disability at the INCEPTION of the AP. Only disability of the OWNER counts tho.
78
AP and future interests
SoL for future interests doesnt start running until the interest becomes possessory
79
SoF for land kx requirement
in writing signed by party against identify parites describe prop adequately price or means of determining price
80
B enters into a contract to purchase a farm. The contract recites that the farm is 100 acres. When B has a survey done, B learns that the farm is actually 98 acres.
specific performance w pro rata reduction in price
81
exception to SoF - doctrine of part performance
Must have 2/3 possession substantial improvements full or close to full payment of purchase price
82
risk of loss for buyer...seller's job?
Even though the risk of loss is on the buyer, if the property is damaged or destroyed, the seller must credit any fire or casualty insurance proceeds they receive against the purchase price the buyer is required to pay
83
passage of title on death
buyer dies? - passes as real prop to buyer estate seller dies? - right to purchase price passes to seller's estate as personal prop contract remains enforceable
84
marketable title
at closing, free from: -defects in record chain of title (like AP) [if even portion affected by AP, not marketable] -encumbranches (mortgages, liens, easements, restrictive covenants_ -zoning violations [only violations, not restrictions]
85
seller's misrepresentations or failure to disclose
-knowing false statement of material fact or failure to disclose may render the seller L after closing for defects to be L for failure to disclose: -must know or have reason to know of defect -seller must realize buyer is unlikely to discover defect AND -defect must be serious enough that buyer would probably reconsider purchase
86
disclaimers of L
-general disclaimers such as "property sold as is" or "with faults" are insufficient -disclaimers identifying specific defects will likely be upheld
87
do land kx have implied warranties of fitness or havility?
no. none. buyer should be checking prior to closing for quality of premises. exception for NEW HOMES
88
requirements for a valid deed
* A writing signed by the grantor * An unambiguous description of the land [if insufficient, title isn't transferred] * Identification of the parties by name or description * Words of intent to transfer, such as “grant”
89
delivery of deed requirement
-physical delivery (agent ok) -if not physical, standard is to ask: Did the grantor have the present intent to part with legal control of the property? rejection defeats delivery. presumptions re delivery: -delivery presumed if deed is: -----handed to grantee -----acknowledged by grantor before notary -----recorded delivery w oral conditions? oral conditions drop out.
90
general warranty deed covenants
current: -seisin -right to convey -right against encumbrances future: -quiet enjoyment [won't be disturbed by 3d party claim of lawful title] -warranty [grantor will defend against reasonable title claims by 3d party and compensate grantee for loss sustained by claim of superior title] -further assurances [will do whatever necessary to perfect title if turns out later title is imperfect]
91
special warranty deed
makes only promises on behalf of himself
92
BFP
consideration, no notice
93
how to spot recording statutes
An easy way to spot the different statutes is to look for the words “notice” and “first. *“First” only = race statute *“Notice” only = notice statute *“Notice” & “first” = race-notice statute
94
deed in lieu of foreclosure
-mortgagee takes deed in lieu of foreclosure on the property. since there is no actual foreclosure, it doesnt operate to terminate any junior liens!!!! will b tested
95
when are zoning ordinances invalid
Zoning ordinances are generally invalid if they have no reasonable relation to public welfare, are too restrictive, are discriminatory as to a particular parcel, are beyond the grant of authority, violate due process, or are racially discriminatory.
96
cumulative v noncumulative zoning ordinances
cumulative -creates hierarchy of uses of land (single family highest, 2 family, apt building, strip mall, factory) -land zoned for a particular use may be use for the stated purpose or anything higher noncumulative -only used for the purpose for which it is zoned
97
lateral rights
SL if natural state L if neg SL if same effect if in natural state
98
life tenant rights and duties
entitled to any ordinary use and profits of the land but can't do anything that injures the interests of a remainder man or reversioner. a future interest holder may sue for damages or to enjoin such acts
99
ameliorative waste exception for life tenant
Can demolish or alter existing buildings if: -market value of future interests is not diminished; AND EITHER 1. remaidnermen do not object; OR 2. a substantial or permanent change in neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness
100
remainder
-in 3d person that becomes possessory on the natural expiration of the preceding estate -always follow LIFE ESTATES -must be expressly created vested - one known and alive contingent - unborn or unascertained or subject to condition precedent {To A for life, and, if B goes to college, then to B}
101
springing v shifting exec interest
shifting - cuts short 3d party springing - cuts short grantor

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