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Property Tricky Flashcards

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1
Q

When a residential tenant with a term of years lease-hold holds over and tenders rent, what kind of tenancy is presumptively created?

A

A month-to-month periodic tenancy.

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2
Q

When a commercial tenant with a term of years lease-hold holds over and tenders rent, what kind of tenancy is presumptively created?

A

A year-to-year periodic tenancy.

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3
Q

When is chattel annexed into real property?

A

The manifest intent of the annexor determines whether the chattel becomes a fixture. This is an objective standard that focuses on whether the cattle is uniquely adapted to the realty. The factors for evaluating the annexor’s intent are: (i) the nature of the article, (ii) the manner in which it is attached to the realty, (iii) the amount of damage that would be caused by its removal, and (iv) the adaptation of the item for use with the realty.

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4
Q

What is an accession?

A

Chattle that is integral to a fixture or real property, and therefore treated as a part of the fixture or real property (e.g. the organ’s bench, a balcony, a deck, an I-Beam).

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5
Q

What is a leasehold?

A

A leasehold is a nonfreehold estate in land. Nonfreehold estates in land (leaseholds) give possession of land for a limited time. The tenant has a present possessory interest in the leased premises, and the landlord has a future interest (reversion).

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6
Q

What terms and conditions apply to a newly formed lease with a hold over tenant?

A

The terms and conditions of the expired tenancy (e.g., rent, covenants, etc.) apply to the new tenancy.

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7
Q

If the government condemns __________ of the leased land, the tenant’s liability for rent __________, and the tenant __________ entitled to compensation for the taking.

A

If the government condemns all of the leased land, the tenant’s liability for rent is extinguished, and the tenant may be entitled to compensation for the taking. Because both the leasehold and the reversion merge in the condemnor, the lease is terminated. Thus, the tenant’s rent liability does NOT continue. If the government condemns part of the leased land, the tenant’s liability for rent is NOT extinguished.

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8
Q

When a tenant is partially evicted from land, what is the tenant’s rent obligation?

A
  1. Partial actual eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises. Every lease contains an implied covenant that neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises. This covenant is breached by the tenant’s total or partial actual eviction from the leased premises 2. Partial eviction by a paramount title holder results in an apportionment of rent; i.e., the tenant is liable for the reasonable rental value of the portion that he continues to possess.
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9
Q

If a lesee transfers her entire leasehold except for a right of reentry for breach of the lease terms, has the lesee created an assignment or sublease?

A

A complete transfer of the entire remaining lease term constitutes an assignment of the lease. If the tenant retains any part of the remaining lease term, other than a right of reentry for breach of the original lease terms, the transfer is a sublease.

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10
Q

When is a landlord liable for failure to repair or negligent repairs?

A
  1. He covenanted to repair 2. He undertook repairs 3. The repairs needed to be made in a common area 4. The tenant could not have discovered the dangerous features that needed repair through reasonable inspection and the landlord knew about them 5. The failure to repair injures a member of the public
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11
Q

When can a life tenant exploit natural resources on his property?

A

As a general rule, a life tenant may not consume or exploit natural resources on the property. There are exceptions: 1. Land can be exploited in reasonable amounts where necessary for repair and maintenance of the land 2. When the life tenant is expressly given the right to exploit such resources by grant 3. When prior to the grant, the land was used for the exploitation of natural resources, so this was most likely intended by the grantor 4. In many states, where the land is only suitable for exploitation.

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12
Q

Can the possibility of reverter be transferred?

A

Yes. In most states today, it can be transferred and devised. At common law, it cannot be transferred inter vivos or devised by will, but it does descend to heirs.

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13
Q

Can a right of reentry be transferred?

A

In most states today, it cannot be transferred inter vivos but it can be devised and they descend to heirs. At common law, it cannot be transferred inter vivos or devised by will, but it can be inherited.

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14
Q

What is a restraint on alienation?

A

A restriction on a property holder’s ability to sell that property.

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15
Q

How do courts treat restraints on alienation?

A

They are void as a matter of public interest.

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16
Q

What are the three types of restriction on alienation?

A
  1. Disabling restraints: any attempted transfer is ineffective 2. Forfeiture restraints: an attempted transfer results in forfeiture 3. Promissory restraints: an attempted transfer breaches a covenant.
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17
Q

What is a partial restriction?

A

A limitation on who the property can be transferred to or when.

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18
Q

Are partial restrictions void?

A

No. They can be upheld unless they are discriminatory.

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19
Q

What happens when the court voids a restraint on alienation?

A

The restraint is voided but the rest of the interest remains intact.

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20
Q

What happens to encumbrances created by life tenants?

A

They may not extend beyond the duration of the existence of the life tenancy. Once the life tenant dies, the encumbrance dies as well.

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21
Q

What can a life tenant not do to a property?

A

Commit waste.

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22
Q

What happens when A transfers his life estate to B?

A
  1. B takes a life estate per autra vie (measured by the life of the original life tenant). 2. B must also pay taxes on the property.
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23
Q

When can a life tenancy end before the life tenant dies?

A

When the life tenant commits waste.

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24
Q

When can a life tenant tare down an existing structure?

A

When changed conditions have rendered the property uninhabitable.

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25
What happens to would-be class members that predecease the a testator?
They drop out of the class. They are forgotten.
26
What remedy will be imposed by the court when co-tenants who are tenants in common disagree on the use of land?
The court will partition the land and allow each tenant to use the land as he pleases, possibly by issuing an injunction.
27
If joint tenants both convey a part of their interest, what is the effect?
They still own the remaining percent as joint tenants because the conveyance is not unilateral. The taker owns a tenancy on common with he joint tenants.
28
Are landlords liable for latent defects?
Only if they knew or had reason to know of the defects. BUT, if you are dealing with (i) a short term lease of (ii) furnished premises, landlords are liable for latent defects they could have discovered through a reasonable search.
29
What happens when landlord accepts the formation of a new tenancy with a holdover tenant?
1. The landlord can impose a periodic tenancy 2. (a) If it is a residential tenancy, than it is a month to month tenancy, (b) if it is a commercial lease, then the period is determined by the previous lease but it cannot exceed one year. 3. (a) If the tenant was notified of a rent increase prior to the lease expiring, the tenant pays the increased amount. (b) If the tenant was not notified, they pay what they have always paid.
30
How are easements usually created?
By writing. They must abide by the statute of frauds.
31
When does merger exterminate an easement?
When the dominant tenement and servant estate come under the same owner in the same form. E.g. A owns X and Y in fee simple. This eliminates all easements. A owns X in fee simple and Y as a life estate. The easement remains because the properties are not in the same form.
32
When is an easement abandoned?
1. It is not used; and 2. The easement holder intends to abandon. This is shown by an affirmative act.
33
When does the statute of limitations period begin for adverse possession?
As soon as the land is used.
34
What is the difference between the requirements for prescriptive easements and adverse possession?
Adverse possession must be exclusive. Prescriptive easements need not be.
35
Can a negative easement be oral?
No. Never.
36
What is required in order to void a restrictive covenant created in a common development scheme?
you have to show that changed conditions effect all of the developments on the common development scheme. If not every lot is effected, then the covenant stays in place.
37
What is the rule for fixtures in commercial buildings?
Prior to the expiration of a commercial lease, the commercial tenant can remove all trade fixtures from the property.
38
Can accessions be removed?
No.
39
Is a buyer personally liable for mortgage debt when he takes a property subject to a mortgage?
No.
40
Is a buyer personally liable for mortgage debt when he assumes a mortgage?
Yes.
41
When does adverse possession turn into marketable title?
When the possessor files a claim to quite title and is granted relief.
42
Does a person have a right to have his property supported laterally and subjacently by his neighbors?
Yes.
43
When can a person recover for a neighbor's removal of lateral or subjacent support?
1. If structures are harmed, when the neighbor acted (i) negligently and (ii) the activity would have caused the land to subside even in its natural state. 3. If the natural property is damaged, strict liability applies.
44
When is possession hostile for the purposes of adverse possession?
When the possessor does not have the true owner's permission to be on the land. It does not mean anger or animosity. Also, the state of mind of the possessor is irrelevant, so it doesn't matter if the possessor believes she owns the land or what.
45
When can a mortgagee take possession of property under the title theory?
As soon as the mortgagor defaults.
46
What is the basic requirement in order to terminate an easement by prescription?
Interference with the easement holder's interest that is sufficient to invite a cause of action against the interferer.
47
Do prescriptive easements have a duration?
No.
48
Define "common enemy" and "natural flow" theories:
Common Enemy: a property owner may divert surface water that pools on his property even if it harms a neighbor's property. Natural Flow: a property owner may not divert the natural flow or course of water if doing so would harm a neighbor.
49
Is the physical possession of a mortgage note required in order for legal title?
No.
50
What what extent a purchasers of property through installment land sale contracts protected?
Only to the extent of the purchase price paid. Never for the entire estate. As such, acceptable remedies include (i) splitting the property by tenancy in common according to the percentage paid, (ii) placing a lien on the property in favor of the installment buyer for the amount paid or (iii) the lien can be for the amount still owed and placed on the entire property.
51
Can a remainder interest be vested when the class that holds the remainder interest is subject to open?
Yes. As long as the remaindermen that are currently in the class are ascertained AND there is no condition precedent, then the remainder is vested.
52
What happens when a seller places a deed in escrow for delivery upon payment of the purchase price and then is incapacitated?
The deal goes through, and the date payment is made relates back to the placement of the deed in escrow.
53
What is a n unborn widow?
A life not yet in being. If a remainder is given to someone's wife, the unborn widow spoils that by tagging the life in being to the husband.
54
What is the effect of and owner's disability on adverse possession?
The SOL does not begin if the owner is disabled at the time the AP entered the land and the SOL is tolled for that time. But, if the owner becomes disabled after AP enters the land, the SOL does not stop ticking.
55
What is constructive annexation?
Something, though not attached to the realty, is so uniquely adapted to the real estate that it makes no sense to separate it is treated as a fixture.
56
When is a joint tenancy created under modern law?
When two people take a property and a right of survivorship is explicitly created.
57
When is a joint tenancy created under common law?
When two people take a property and the four unities are satisfied.
58
Joint tenancies are ________ under modern law.
Disfavored
59
Do BFP's take property subject to unrecorded and unknown mortgages?
No. Recording statutes protect BFPs from prior grantee's interests, and that includes mortgagees.
60
If a buyer takes a property with a mortgage and is on record notice, does buyer take subject to the mortgage?
Yes. A buyer that takes with record notice of a mortgage is not a BFP and therefore takes the property subject to the mortgage.
61
When can purchasers of property no longer contest marketable title?
If the deed is executed. At that point, the covenant of marketable title merges into the sale. Alternatively, they cannot contest marketable title if they waive marketable title.
62
Can you waive marketable title?
Yes.
63
What is a springing executory interest?
An executory interest that follows a gap in possession between the present possessory interest the future interest. E.g. to X as long as does not sell before next presidential election, then to Y after the election. Y has a springing executory interest, because X could attempt to sell before the next election, and the property would pass back to grantor as a reverter. Y could only exercise his executory interest after the election.
64
What is the doctrine of reciprocal negative servitudes?
When a developer places negative covenants on some of his subdivided property but not all, the negative covenants extend to all of the properties when (i) they are part of a common scheme or development, and (ii) buyers have notice of the covenants. Notice can be satisfied by actual, record, or inquiry notice.
65
The Rule Against Perpetuities does not apply to:
1. Options to buy held by a current lessee 2. Rights of first refusal
66
What factors lead a court to establish a conveyance is actually an equitable mortgage?
1. The existence of a debt or promise of payment by the deeds grantor 2. The grantee's promise to return the land if the grant is paid 3. The fact that the amount advanced was much lower than the value of the property 4. The degree of the debtor's financial distress 5. The parties' prior negotiations
67
Do mortgagees have to inform mortgagors before they transfer nots attached to the mortgage?
Yes. If they don't payment to the original mortgagee satisfies the mortgage.
68
The notice requirement for negative servitudes to run with the land does not apply to \_\_\_\_\_. It only applies to \_\_\_\_\_\_.
1. Donees and heirs 2. Bona Fide Purchasers
69
Can a party to a contract waive strict performance of an installment land contract?
Yes.
70
How can a party waive strict performance of an installment land sale contract?
By accepting late payments.
71
How can a party that has waived strict performance of an installment land sale reestablish strict performance?
By notifying the vendee that strict performance will be reinstated and giving the vendee time to make up late payments.
72
If a right of first refusal is assignable, it \_\_\_\_\_\_\_.
Is subject to the rule against perpetuities.
73
When does a will take effect?
At the time of the testator's death.
74
When will a deed be reformed?
When the deed is the product of (i) mutual mistake, (ii) a scrivener's error, or (iii) a unilateral mistake caused by misrepresentation.
75
What is the order of construction for deeds?
1. Natural monuments 2. Artificial monuments 3. Courses 4. Distances 5. Name 6. Quantity
76
What is the primary difference between equitable redemption and statutory redemption?
Statutory redemption applies after foreclosure, equitable redemption applies before foreclosure.
77
When do easements in appurtenant pass with the land?
Always, whether or not they were recorded, unless the person taking the subservient estate is a bona fide purchaser without notice of the easement.
78
Can easements in gross be transferred?
Not unless they are commercial.
79
When a partial condemnation occurs to a leased property, what can the tenant collect?
The tenant can collect part of the condemnation award if his rights were substantially effected. But, the tenant is still on the hook for the entire rent obligation.
80
When a property is taken subject to a mortgage by a person with a present interest and a remainder man or reverter, what are the responsibilities of each owner regarding the mortgage payments?
The present interest holder pays the interest on the mortgage. The future interest holder pays the principal on the mortgage.
81
When an option applies to leasehold, is that option subject to the Rule Against Perpetuities?
No. Not unless it is separated from the lease. It is immune to RAP even if the lease is assigned.
82
When does the statute for adverse possession begin to run against remainder interests?
Only once those interests become possessory.
83
Redemption Chart:
84
How does Dumpor's law work?
1. The landlord places a restraint on assignment or subletting 2. The landlord at some later time permits an assignment or subletting. 3. Even if the landlord required permission and gave permission, if he did not explicilty reserve the right to refuse further assignments and subletts, he can no longer do so. I.e. he has waived his right to refuse after permiting a single assignment under any conditions.
85
Do present covenants survive conveyance?
No. They must be enforced, if at all, at the time of conveyance.
86
Do present covenants run with the land?
**Majority:** No. They don't. **Minority:** remote grantees can sue as long as they did not have notice of the breach of the covenant at the time of conveyance.
87
Will a court enforce a discriminatory covenant or condition subsequent placed on a property?
No. This would be unconstitutional state action under the 14th Amendment.

Property Tricky (3 decks)

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