Real Property Flashcards

Question

Tenant's duty to pay rent – breaches and in possession of premises

Answer 1

Landlord can **evict** (unlawful detainer statute), ***or*** continue relationship and **sue for rent due**. L must **not** engage in **self-help** – cannot change locks, or forcibly remove tenant or his possessions

Answer 2

Landlord has three options: (1) **Surrender** – T shows by words or conduct that she wants to give up lease; landlord accepts (2) **Ignore** – Do nothing; hold T accountable for rent each month as if still present (3) **Relet** – Find a new lessor; hold T liable for any deficiency. L must at least *try* to relet.

Answer 3

* Most states restrict security deposits to one month's rent, and require Ls to pay interest * L can retain SD only for damages *actually suffered* to premises as consequence of T's wrongdoing

Answer 4

Landlord must place tenant in actual, physical possession at start of the lease If prior holdover T is still on site, L has breached → new T gets damages

Answer 5

T has the right to quiet use and enjoyment of the premises without interference from L Arises by implication in every residential and commercial lease

Answer 6

* (1) **Wrongful eviction** – landlord wrongfully evicts T without cause * ***Actual eviction*** – excludes T from entire premises; terminates T's obligation to pay any rent * ***Partial eviction*** – excludes T from part of premises; terminates T's obligation to pay any rent (even though T i possession of remainder) * *Note:* Partial eviction by _paramount title holder_ (not L) results in apportionment of rent (T liable for reasonable rental value of portion he continues to possess) * (2) **Constructive eviction** – L renders premises unsuitable for occupancy * (i) **S**ubstantial **I**nterference – chronic or permanent problem due to L's actions or failures * (ii) **N**otice – T must notify L * (ii) **G**oodbye – T must vacate * If i-iii ("SING") satisfied, T may terminate the lease and seek damages

Answer 7

Generally, **no**. _Two exceptions_: (1) L has a duty to abate a nuisance on site (2) L must control common areas

Answer 8

The premises must be fit for basic human habitation. Standard discerned from case law and local housing code. Arises in residential leases only. Nonwaivable.

Answer 9

_MR3_ **Move** – Move out and terminate the lease; but T does not have to **Repair** – Make necessary repairs and deduct cost from future rent **Reduce** – Reduce or withhold rent until court can determine fair rental value in light of defects; typically must put withheld rental sums in escrow (good faith) **Remain** – Remain in possession, pay full rent, and affirmatively seek money damages

Answer 10

Covenant of quiet enjoyment – T *_must vacate_* to plead constructive eviction Implied warranty of habitability – T *_could_* vacate, but does not have to

Answer 11

L can't terminate lease or penalize T in retaliation for T's exercise of legal rights. *Ex:* raising rent, harassment. Presumption of retaliation if L acts within a certain window – usually 90-180 days. L must show valid, non-retaliatory reason for actions.

Answer 12

Bars racial or ethnic discrimination in the sale or rental of all property

Answer 13

No housing discrimination based on race, color, religion, sex, disability, familial status, or national origin. Must allow reasonable accommodations or modifications for Ts with disabilities. T makes at own expense, but L must allow.

Answer 14

(1) Doesn't apply to **owner-occupied** buildings with **four or fewer** units. (2) Doesn't apply to **single-family homes** sold or rented by an owner who **owns no more than three** single-family homes.

Answer 15

(1) **Refusing** to negotiate, rent, sell housing, or give a mortgage. (2) Providing **different terms** or conditions for sale or rental. (3) Falsely representing dwelling as **unavailable**.

Answer 16

Absent some prohibition against it in the lease, T can transfer interest in the lease. (1) **Assignment** – transfer of entire remaining term of lease (2) **Sublease** – transfer of part of the remaining term of lease

Answer 17

All jurisdictions permit covenants against assignment or sublease. A covenant against assignment ***does not*** prevent sublease. If T transfers her interest in violation of a covenant, the transfer is not void. However, L may terminate the lease or sue for damages. If L consents to one transfer that violates a covenant in the lease, he **waives** his right to avoid future transfers. He may _reserve the right_ to avoid future transfers, but must happen explicitly at time of granting consent.

Answer 18

Assignee stands in shoes of original tenant in **direct relationship** with L. Assignee is in **privity of estate** with L. Liable on covenants that run with the land. Original T in **privity of contract** with L. Liable for original lease obligations. Remains secondarily liable to assignee; if A cannot pay, T is liable.

Answer 19

Sublessee and L have **no privity**. Sublessee is responsible to original T. Relationship between L and T remains fully intact. If S breaches, L proceeds immediately against T (primarily liable). T then proceeds against S. If L breaches, S proceeds against T. T then proceeds against L.

Answer 20

***Caveat lessee*** – “tenant beware” At common law, the landlord is under no duty to make the premises safe. Five exceptions.

Answer 21

* **Common areas** – *ex:* hallways, stairs, elevators * **Latent defects** – landlord has duty to ***warn*** tenant, not a duty to repair * Latent defect = dangerous condition T couldn't discover by reasonable inspection * **Assumption of repairs** – once L undertakes repairs, must complete with reasonable care * L liable if negligent * **Public use rule** – lease for public space (*ex:* convention hall) and L should know (_significant nature of defect_ + _short nature of lease_) that T won't repair * L liable for any defects that cause injury to members of the public * **Short-term lease of furnished dwelling** – *ex:* furnished summer cottage for a few weeks * L responsible for any defective condition that injures T “CLAPS”

Answer 22

The grant of a non-possessory property interest. Entitles holders to use or enjoyment of another's land.

Answer 23

The right to go onto another's land (the servient parcel) and do something. The most common type of easement.

Answer 24

The right to prevent the servient landowner from doing something that would otherwise be permissible. These can only be created *_expressly_*, signed writing by grantor. _Four categories_: (1) **Light**; (2) **Air**; (3) **Support**; (4) **Stream water** from artificial slow; _minority of states_ also allow for **scenic view**.

Answer 25

Benefits its holder in his physical use or enjoyment *_of his own land_*. Requires _two parcels_ be involved: **Dominant tenement** – derives benefit **Servient tenement** – bears burden

Answer 26

Confers upon its holder some *_personal or pecuniary advantage_* **unrelated** to the use or enjoyment of their land. Servient land is burdened; however – no benefitted or dominant tenement. *Examples:* Right to place a billboard on another's lot, right to swim in another's pond, utility company's right to lay power lines

Answer 27

**Easement appurtenant** – passes ***automatically*** with transfers of the dominant tenant. Does **not** need to be mentioned in conveyance. Burden also passes automatically with servient estate, *_unless_* new owner is BFP without notice. **Easement in gross** – not transferrable, *_unless_* it is for ***commercial*** purposes

Answer 28

* **Prescription** – analogous to adverse possession * Use must be: continuous, open and notorious, actual (but *_not exclusive_*), and hostile * **Implication** – created by operation of law * ***Pre-existing use / quasi-easement*** – (1) previous use apparent and continuous; and (2) parties expected use would survive division, reasonably necessary to dominant tenant's use and enjoyment * **Necessity** – when O conveys part of their land with no way out except over part of O's remaining land * Servient parcel owner has right to locate easement * **Grant** – memorialized in writing and signed by holder of servient tenement (unless outside SoF for short duration) * *Dead of easement*, must comply with all deed requirements “PING”

Answer 29

Determined by _terms of the grant_ or the _conditions that create_ the easement. No unilateral expansion. *Note:* Overuse or misuse does not terminate the easement.

Answer 30

* **Estoppel** – If servient owner materially changes position in reasonable reliance on easement holder's representations that easement will no longer be used * Usually, oral expression of intent to abandon won't terminate unless also in writing (release) or accompanied by action (abandonment) * **Necessity** – Expires as soon as the need that created the easement has ended * Unless easement born of necessity was reduced to an express writing * **Destruction** – of servient land, other than by willful conduct of owner * **Condemnation** – of servient land by governmental eminent domain * **Release** – by easement holder, must be in writing * **Abandonment** – easement holder shows by physical action an intent to never use again * Pattern of nonuse, or mere words, are insufficient * **Merger** – easement and title to servient land become vested in same person (estates merge) * **Prescription** – servient owner interferes with easement using elements of adverse possession “END CRAMP”

Answer 31

A mere privilege to enter another's land for a narrow or delineated purpose. Not considered an “interest” in land – very flimsy

Answer 32

No writing required – not subject to SoF. Freely revocable at will of licensor (unless estoppel).

Answer 33

Only when licensee has invested substantial money or labor (or both) in reasonable reliance on the license's continuation. Becomes **easement by estoppel** – lasts until holder receives sufficient benefit to reimburse him for his expenditures.

Answer 34

A profit entitles its holder to enter the servient land and *_take some resource_*. *Ex:* minerals, timber, oil, fish, game. All rules governing creation, alienation, and termination of easements are applicable to profits. _Additionally_: Profit may be extinguished through **surcharge** – misuse that overly burdens the serivent estate.

Answer 35

A written promise to do, or not do, something related to land (contractual). **Negative or restrictive** – promise to refrain from doing something related to land Affirmative – promise to do something related to land

Answer 36

If plaintiff wants money damages → covenant If plaintiff wants injunction → equitable servitude

Answer 37

Must determine whether: (1) the ***burden*** runs with the land; then whether (2) the ***benefit*** runs with the land. _Requirements for burden to run_ – “WITHN” (1) **Writing** (2) **Intent** – can be inferred from circumstances, but usually in conveyance itself (3) **Touch and concern the land** – affects legal relations as landowners (4) **Horizontal and vertical privity** ***Horizontal*** – original promising parties were in succession of estate when covenant was made (shared some other relationship regarding land); *ex:* grantor-grantee, landlord-tenant, mortgagor-mortgagee ***Vertical*** – non-hostile necus between successor in interest and originally covenanting party (only absent in case of adverse possession) (5) **Notice** – successor must have had notice of promise when she took _Requirements for benefit to run_ – **Writing**, **Intent**, **Touch and Concern**, **Vertical privity**

Answer 38

Promise that equity will enforce against successors of burdened land, regardless of whether it runs with the land at law. Relief from strict rules of covenants. *_Unless_* the successor is a BFP. Accompanied by injunctive relief.

Answer 39

* **Writing** – generally, but not always (common scheme doctrine is exception) * **Intent** * **Touch and concern the land** * **Notice** – successor to burdened land must have had some notice when they took * Non-purchasers (i.e. donees, heirs) bound by covenant whether they knew or not * **Equitable Servitude** *Note:* No privity requirement

Answer 40

**Common scheme doctrine** – court will imply a reciprocal negative servitude. _Two elements_: (1) When sales began, subdivider had *_general scheme of residential development_* which included defendant's plot. *Ex:* recorded plat, general pattern of restrictions, oral representations to early buyers (2) Defendant lot-holder had *_notice_* of the promise contained in those prior deeds when it took. _Actual notice_ – literal knowledge of promises; _Inquiry notice_ – lay of the land, neighborhood appears to conform to common restriction; _Record notice_ – prior deed in grantee's chain of title, or other documents. Common scheme must have been in place ***from the inception***. If arises after some initial lots sold, no ES.

Answer 41

An equitable defense to enforcement. A court will not enforce an ES if the surrounding neighborhood has *_so forever changed_* as to obviate the very purpose of the restriction. *Note:* Piecemeal change, or mere pockets of limited change, are never sufficient.

Answer 42

Possession for a *_statutorily prescribed time_* can ripen into tile if the elements of AP are met. _Elements_: (1) **Continuous** – Uninterrupted, as an owner might use; intermittent insufficient. One AP may ***tack*** his time onto a previous AP's time, so long as privity (non-hostile nexus) between the possessors. (2) **Open and notorious** – Sufficiently apparent to put true owner on notice. (3) **Actual and exclusive** – Must actually occupy; not sharing with true owner or the public. (4) **Hostile** – Without owner's consent (permission defeats)

Answer 43

Statute of limitations *_will not run_* against a true owner who is afflicted by a **disability** at the _inception_ of the adverse possession. Disability *ex:* insanity, infancy, imprisonment

Answer 44

(1) **Land contract** – conveys ***equitable title*** (risk of loss) (2) **Closing** – deed passes ***legal title*** (right to possess) Time between contract and closing → the “**escrow period**” (gives buyer chance for inspection, mortgage, check integrity of title, etc.)

Answer 45

Specific performance with a pro rata reduction in price

Answer 46

* In writing (SoF) * Signed by party against whom enforcement is sought * Identifies the parties * Describes the property * State consideration (or a means of determining the price)

Answer 47

Allows buyer to enforce an oral contract for land by specific performance if: (1) contract is _certain and clear_; and (2) _acts prove the existence_ of a contract. “Acts” usually satisfied by **two** of the following: (i) buyer took possession; (ii) buyer paid purchase price or a specific portion; (iii) buyer made substantial improvements.

Answer 48

(1) Seller will provide **marketable title** – title free from reasonable doubt or the threat of litigation at closing. _Unmarketable examples_: ***Defects in record chain of title*** – *ex:* If even a portion of the title rests on AP, unmarketable; must be good, record title ***Encumbrances*** – ex: mortgages, liens, easements, restrictive covenants, significant encroachments ***Zoning violations*** – existing violation of a zoning ordinance (2) Seller will not make **false statements of material fact**, nor **fail to disclose latent material defects**. Seller can disclaim *_specific_* defects (general disclaimers likely not upheld). No implied warranties of fitness or habitability (unless new home from builder).

Answer 49

Land contract **merges** with the deed at closing; deed becomes the *_legally operative_* document. To pass legal title, the deed must be **lawfully executed and delivered**.

Answer 50

* Writing signed by grantor * Unambiguous description of land (okay if imperfect, just needs to provide good “lead”) * Identification of parties * Words of intent *Note:* No consideration required

Answer 51

Legal standard testing grantor's **present intent** to be bound. Does not require actual physical transfer. Rejection defeats delivery – if grantee expressly rejects, deed is ineffective to pass title.

Answer 52

If deed is absolute on its face, but transferred to grantee with oral condition – oral condition **drops out.** The delivery is done and oral condition can't be proved

Answer 53

Grantor may *_deliver executed deed to third party_*, known as an **escrow agent**, with instructions that the deed be delivered to grantee once certain conditions are met (ex: payment of purchase price). ***Written instructions*** – grantor bound by delivery to agent ***Oral instructions*** – grantor may change instructions or recall deed while in agent's hands (unless written contract of sale)

Answer 54

Best deed – warrants against _all defects_ in title, including those attributable to grantor's predecessors. **_Present covenants_** – breached, if ever, at time of delivery (SoL runs) (1) ***Covenant of seisin*** – grantor owns this estate (2) ***Covenant of right to convey*** – grantor has power to transfer (3) ***Covenant against encumbrances*** – no servitudes or liens **_Future covenants_** – breached if grantee disturbed in possession (SoL runs at disturbance) (4) ***Quiet enjoyment*** – grantee won't be disturbed in possession by a third party's lawful superior claim of title (5) ***Warranty*** – grantor will defend grantee (should any claims be asserted by others) (6) ***Further assurances*** – grantor will do whatever needed to perfect grantee's title if later turns out to be imperfect

Answer 55

Contains the same six covenants as a general warranty deed (warrants against all defects in title), but grantor makes those promises *_only on behalf of himself._* Does not protect against actions by predecessors in interest.

Answer 56

Worst deed – contains ***no*** covenants for title Grantor not even promising that he has good title to convey.

Answer 57

When not specified as to what kind of deed (just says “grant”) – statutory special warranty deed presumed Grantor makes **two promises**, only *_on behalf of himself_*: (1) hasn't granted estate to anyone other than grantee; (2) estate free of encumbrances made by grantor.

Answer 58

At common law, the first conveyance takes title. Unless there is a recording statute, this applies.

Answer 59

* Be a **purchaser** * Does not protect heirs, donees, or devisees (unless shelter rule) * Pay **valuable consideration** * Even if a “bargain basement sale” – so long as substantial pecuniary consideration * Take **without notice** of prior conveyance * Actual, inquiry, or record

Answer 60

_B wins, if he wins the race to record._ Very few states have pure race statute. Under a race statute, the **first party to record** wins. Notice of a prior conveyance by the grantor doesn't matter (don't need to be a BFP). “Conveyance shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded.”

Answer 61

_B wins, if he's the last BFP to take._ The last BFP to enter the facts wins, regardless of who wins the race to record. If properly recorded, B would have notice, and would not be a BFP. “Conveyance of land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.”

Answer 62

_B wins, if he's a BFP, and he records before A does_. Must be a BFP, ***and*** must record first. “Conveyance of land shall not be valid against any subsequent purchase for value, without notice thereof, whose conveyance is first recorded."

Answer 63

Race statute

Answer 64

Notice statute

Answer 65

Race-notice statute

Answer 66

To give record notice, a deed must be recorded properly within the chain of title. The chain of title is the **sequence of recorded documents** capable of giving record notice to later takers. Established, for example, through title search of the grantor-grantee index.

Answer 67

Anyone *_who takes from a BFP_* **will prevail** against any interest the BFP would have prevailed against. Transferee “takes shelter” in the status of her transferor. System protects BFP, makes it easier for her to transfer successfully.

Answer 68

A recorded deed that *_isn't connected to the chain of title_*. It **does not impart record notice** because a subsequent buyer could not feasibly find it.

Answer 69

One who conveys realty in which he has no interest is **estopped from denying the validity of that conveyance** if he subsequently acquires the title. The title automatically vests in the grantee. *But* – watch out for a BFP! The early recording is outside chain of title, a wild deed that gives no notice.

Answer 70

* **Promissory note** – mortgagor's personal obligation * Mortgagee not limited to the land when seeking a remedy for default (can sue personally for repayment) * **Mortgage** – agreement that if the mortgagor quits paying, the land can be sold to pay the mortgagee

Answer 71

Extension of value by a lender *_who takes as collateral a security interest_* (lien – mortgage) **on the very parcel** that the loan enables the debtor to acquire

Answer 72

Lender is not extending value to enable mortgagors to own a home; it is a collateralization of land (owned outright) **to finance a new venture**

Answer 73

Debt (promissory note) + voluntary lien in land to secure debt (mortgage) In writing – **legal mortgage**; must satisfy SoF

Answer 74

Mortgage deed, deed of trust, sale leaseback, security interest in land

Answer 75

Yes. _Two methods_: (1) Endorsing the note and delivering it to the transferee; or (2) Executing a separate document of assignment

Answer 76

Yes. If mortgagor transfers the property, the buyer *_either assumes the mortgage*_, or _*takes the property subject to the mortgage_*. Transferee assumes **no personal liability**. Only the original debtor-mortgagor is personally liable. However, if the mortgagor defaults, the mortgagee can foreclose on the land. *Note:* Recording statutes protect mortgages. If **recorded**, the mortgage **sticks with the land**.

Answer 77

If B “assumes” the mortgage – **both** original debtor and B **are personally liable**. ***B is primarily liable***, and O remains secondarily liable.

Answer 78

B assumes **no personal liability**. Only the original mortgagor is personally liable. However, if recorded, the mortgage remains on the land; if mortgagor does not pay, mortgage may be foreclosed.

Answer 79

Occurs through proper judicial proceedings. **Land is sold**, and proceeds go towards satisfying the debt.

Answer 80

Mortgagee brings a **deficiency action** against the debtor.

Answer 81

* **Junior lien are paid off** in order of their priority * Any remaining surplus **goes to the debtor**

Answer 82

(1) Off the top – attorney's fees and expenses of foreclosure; any accrued interest on the first priority lender's mortgage (2) Proceeds then used to pay off mortgages in order of priority; each claimant entitled to ***satisfaction in full*** before a junior lienholder may take (3) Junior interests are terminated (**not** senior interests). Junior lienholders can no longer look to the land for satisfaction – must bring deficiency judgment.

Answer 83

**First in time**, first in right. However – **must record**. A purchase-money mortgage has *_first priority in the parcel financed_* – takes “super priority” over, for *ex:* a floating lien. _Subordination agreement_ – by private agreement, a senior creditor may agree to subordinate its priority to a junior creditor.

Answer 84

All junior lienholders and the debtor. If a necessary party is not joined, their mortgage remains on the land (despite foreclosure and sale).

Answer 85

Universally recognized up to the date of foreclosure sale. Debtor has a right to **redeem the land** (by paying) and free it of the mortgage. _Acceleration clause_ – permits the mortgagee to declare the full balance due in the event of default. If no acceleration clause → ER by paying off missed payments + accrued interests and costs If acceleration clause → ER by paying off entire balance owed + accrued interests and costs

Answer 86

Delegates to local government the capacity to pass zoning ordinances in furtherance of the state's police powers

Answer 87

A means to achieve flexibility in zoning. **Permission to depart** from zoning restrictions. _Must show_: (1) undue hardship; and (2) no diminution to neighboring property values. Determined by administrative action.

Answer 88

A previously allowed use cannot be eliminated all at once by a new zoning ordinance unless just compensation is paid.

Answer 89

* Land is ranked and categorized to create a **hierarchy of uses** * Single-family home is highest use * *Then:* two-family home, apartment building, strip mall, factory * Land zoned for particular use may be used for that use, as well as **any higher use**

Answer 90

Land may be used ***only*** for the purpose for which it is zoned

Answer 91

Must be obtained even though the zoning is proper for the intended use. Usually in areas where there are safety, general welfare concerns. *Ex:* hospitals, funeral homes, drive-in businesses, etc.

Answer 92

Each owner *_owns the interior of their individual unit*_, plus an _*undivided interest in the exterior and common_* elements. Owns unit in **fee simple**. Owns exterior/common elements as a **tenant in common**.

Answer 93

* Each condo owner is a member * Oversee common elements * Board enforces covenants, conditions, restrictions on each owner's use of the property * Members must pay regular dues to HOA, used to maintain common elements * ***Special assessment*** – one-time fee if dues don't cover an expense

Answer 94

Landowner has exclusive right to use and possess the surface, airspace, and soil of the property.

Answer 95

The right to have land *_supported in its natural state_* by adjoining land. If landowner causes adjacent land to subside: (1) Land in **natural state** – strict liability (2) Land **improved** – liability if negligent

Answer 96

Watercourses – streams, rivers, lakes **Riparian doctrine** – Water belongs to those who *_own the land bordering_* the watercourse Owners riparian share the right of reasonable use of the water. **Prior appropriation doctrine** – Water belongs to the state; right to divert or use can be acquired through actual use ***Priority of beneficial use*** – be among the first to use, regardless of land ownership.

Answer 97

Groundwater – percolating water Surface owner can make *_reasonable use_* of groundwater.

Answer 98

Surface waters – waters passing across your lands as a consequence of heavy rains, springs, or melting snow, which have not yet reached a natural watercourse or basin Owner can use surface water within their boundaries *_for any purpose_* they desire. **Common enemy rule** – owner can take any protective measures to get rid of surface water or combat its flow.

Answer 99

Right to be free of trespass and nuisance. **Trespass** – invasion by tangible physical object **Continuing trespass** – land repeatedly invaded by trespasser Private nuisance – land invaded by intangibles, such as odor or noise

Answer 100

Once a land contract is signed, both parties are entitled to specific performance. Equity regards the buyer as the owner of the real property, and the seller has the right to the proceeds of sale (personal property). If seller dies – the bare legal title passes to takers of her real property, but must give to buyer when contract closes. (Buyer gets deed, full legal title, from estate). The money passes to those who take the seller's personal property. If property destroyed – buyer bears risk following completed contract.