real property

Question 1

tenancy in common

Answer 1

default estate created when land is conveyed to two or more people

each owner owns undivided interest in the property and has right to use and enjoy entire property. interest passes by bequest or intestacy - no right of survivorship

Question 2

joint tenancy

Answer 2

created when 4 unities are present –> time, title (same instrument), interest and possession

must have clear express intent to create JT with right of survivorship

Question 3

joint tenancy severence

Answer 3

when one joint tenant unilaterally transfers interest in his ownership, JT severed and tenants hold as TIC
if there are more than two JT, the JT remains among the other JT that did not transfer

mortgage:
title theory jxn –> severs JT
lien theory –> does not sever JT

if one JT leases –> Maj: severed JT

Question 4

co-tenant entitlement to rent, repairs, and improvements

Answer 4

rent from co-tenant = an out of possession co-tenant does not have right to receive rent unless otherwise agreed or wrongfully ousted

rent from third party = co-tenant entitled to share of rent from third-party

repairs = co-tenant is entitled to reimbursement for costs of necessary repairs paid for unless there was wrongful ouster

improvements = co-tenant not entitled to reimbursements for improvements on property unless otherwise agreed but improving co-tenant entitled to downside risk or upside gain when property is sold

Question 5

types of leasehold interests

Answer 5

a lease grants present possessory interest in real property for limited period of time.
1. tenancy for years - lease for fixed period of time automatically terminated after period ends
2. periodic tenancy - lasts for an initial period, then automatically continues for additional equal periods until terminated with proper notice
termination requires written notice at least a full period in advance, or if period is yearly, 6 months’ notice
3. tenancy at will - continues until either party terminates it; usually created by express agreement
termination requires notice & reasonable time to quit the premises (some states, no notice is required)

Question 6

tenant duties

Answer 6

duty to pay rent: runs with land. if tenant remains on land and does not pay landlord can evict tenant or allow tenant to remain on land and sue for damages

if tenant abandons and doesn’t pay rent, landlord may have to take reasonable steps to mitigate losses

Question 7

hold over tenant

Answer 7

if tenant remains in possession after lease ends, the landlord may evict or hold the tenant over

an implied month-to-month lease is created with identical terms. if tenant is informed of rent increase before the end of lease, a higher rent applies.

duration:
modern view –> month-to-month
common law –> term is equal to OG tenacy period

Question 8

implied warranty of habitability

Answer 8

LL must provide a place to live that is habitable (reasonably suitable for human needs)
- sometimes also implied in commercial leases.

if warranty is breached tenant may:

1. move out and terminate lease
2. withhold or reduce rent
3. repair issue or defect and deduct cost from rent or
4. remain on premises and sue for damages

Question 9

constructive eviction

Answer 9

every lease has implied covenant for quiet enjoyment hat prevents LL from interfering with tenant enjoyment and possession of land. this is breached when tenant is constructively evicted

constructive eviction occurs when

1. LL breached duty to tenant
2. breach caused loss of the substantial use and enjoyment of premises
3. tenant gave LL notice of condition
4. LL failed to remedy AND
5. tenant vacated premises
   * *tenant may seek damages, terminate lease, and avoid rent for time constructively evicted

residential leases&raquo_space; LL has duty to repair common areas and warn of latent defects that create risk of serious harm that LL knows of or should know of
commercial leases&raquo_space; LL has no duty to repair unless specified in lease agreement

Question 10

LL duty to mitigate

Answer 10

Common law&raquo_space; LL NO duty to mitigate

maj&raquo_space; impose duty to take reasonable steps to mitigate losses, but does not have to be successful to recover damages

Question 11

assignment of lease

Answer 11

when the tenant transfers ALL remaining lease to third-party

• freely assignable unless lease states otherwise
• assignment cannot be for longer period than remaining lease term
• liable for covenants that run with land

liability for rent/breach:
assignee&raquo_space; liable to LL for rent and all other covenants that run with land (privity of estate)
assignor/OG tenant&raquo_space; remains liable for rent (privity of k) unless novation
LL&raquo_space; maintenance obligations runs with land (privity of estate)

LL consent for assignment: if lease requires consent, it must be obtained. LL waives right to enforce a provision prohibiting assignment if he accepts rent from assignee

if lease is silent on consent&raquo_space; maj - LL may withhold consent for any reason; some states - LL must have reasonable basis for withholding consent

Question 12

sublease

Answer 12

when T transfers only some of the remaining lease

• T may freely sublet unless provision of lease prohibits
• sublease cannot be for longer than remaining lease term

sublessee is not liable to LL for rent or other covenants (no privity of estate)
OG tenant remains laible to LL for rent (privity of k)

Question 13

surrender of lease

Answer 13

an agreement to end lease early
LL must clearly accept surrender of lease unless otherwise agreed
- attempt to end lease early does not constitute surrender unless LL clearly accepts

if LL accepts surrender&raquo_space; T duty to pay rent after acceptance ends
if LL does not accept&raquo_space; T is deemed to have abandoned and is liable for damages

Question 14

termination of real covenant

Answer 14

merger, written release, or condemnation of burdened property

Question 15

real covenant

Answer 15

non-possessory interest in land that obligates holder to either do something or refrain from doing something

runs with land at law - diff req. depending on benefit/burden

remedy = damages
can be restrictive – these are like negative easements but you can restrict them from doing more than light, air, water, etc., and can be created in more ways than writing

Question 16

enforcing benefit of covenant

Answer 16

WITV
writing 
intent 
touch and concern 
vertical privity (only absent if acquired by AP)

Question 17

enforcing burden of covenant

Answer 17

“WITHN”
writing

intent to run with land

touch and concern (restrictive = must restrict owner in use of land/affirmative = required to do something that increases obligations)

horizontal privity (OG parties shared some interest other than covenant - i.e., landlord/tenant; grantor/grantee, etc.)

vertical privity (non-hostile nexus b/t OG covenant party & successor, i.e., will be present absent AP)

notice

Question 18

notice

Answer 18

actual - knowledge
constructive - recorded notice
inquiry - inspection of records would reveal it

Question 19

equitable servitude

Answer 19

a covenant that equity will enforce if the burdened estate had notice of the covenant regardless of whether it runs with land

remedy = injunction

Question 20

requirements to enforce equitable servitude

Answer 20

must have

1. writing satisfying SOF
2. intent for servitude to be enforceable
3. servitude touches and concerns the land (makes land more useful or valuable)
4. notice

Question 21

common scheme or plan doctrine

Answer 21

courts will imply reciprocal restrictive covenant on land parcels where there is no writing or absent from deed where it is in subdivision sold by developer only if

1. developer had common scheme or plan that all parcels would be subject to restriction at time sold AND
2. land owner had notice of restriction (can be AIR or obvious from looking at subdivision)

only apply to negative covenants and equitable servitudes

Question 22

tort liability LL

Answer 22

CLAPS
Common areas: reasonable care
Latent: disclosure
Assumption of repairs: negligence standard
Public use: known defects LL is aware for public use and tenant is unlikely to repair
Seasonal/short-term lease of furnished home: liable for defects causing harm

some courts hold LL liable for injuries resulting from negligence where LL had notice of defect and opportunity to repair it

Question 23

obligation of common interest community

Answer 23

common interest community is development of individually owned lots that have an obligation to

1. pay for/contribute maintenance of the property held in common or
2. pay dues or assessments to an association that maintains the neighborhood and/or property

i.e., condos, HOA, co-ops

residents and successive owners are subject to recorded obligations (restrictive covenants) that run with land

Question 24

easement

Answer 24

non-possessory interest in the use of someone else’s land

diff from covenant – covenant restricts you or requires you do something on your OWN land

Question 25

types of easements

Answer 25

in gross >> benefits specific owner enjoyment - does not pass to subsequent owners unless easement is for commercial activity (requires one party) appurtenant >> benefits any owner's enjoyment and does pass to subsequent owners with notice (requires two parties - one benefitted and one burdened) affirmative --> entitled holder to make affirmative use of servient estate **affirmative easements take two parties and can be created in other ways than express writing negative --> entitles holder to restrict the servient estate from otherwise permissible activities can only prevent light, air, subjacent/lateral support, or water stream by express grant **restrictive covenants are used more than negative easements to prevent activity on land

Question 26

ways to create a negative easement

Answer 26

writing signed by grantor

Question 27

ways to create an affirmative easement

Answer 27

by grant >> requires 1. writing signed by grantor 2. identify land and parties involved and 3. indicate grantor intent to convey easement scope: use agreed upon prescription >> created when possessor's use of land is 1. open and notorious 2. continuous 3. hostile (without permission from land owner) and 4. for statutory period scope: actual usage during statutory period implication >> established when 1. single tract of land is divided by a common owner 2. pre-existing use by grantor is established prior to division 3. use was continuous and apparent indicating that it was meant to be permanent and 4. the use is reasonably necessary for owner use and enjoyment of the land conveyed scope: prior use exceptions: easement may be implied without prior use where: - common scheme plan/subdivision - profit a prendre: holder has implied easement to pass over land surface as reasonably necessary to extract materials necessity >> created if 1. land owned by one owner is subdivided and 2. the easement is essential to the use b/c no other ingress is available scope: limited to remedying the necessity

Question 28

termination of the easement

Answer 28

END CRAMP 1. estoppel - when servient estate owner reasonable relies on assurance that easement will not be enforced 2. termination of necessity 3. involuntary destruction of servient estate 4. condemnation of servient estate 5. written release 6. abandonment - physical action showing intent to never use easement again 7. merger of properties (separation after merger does not revive easement) 8. prescription

Question 29

license

Answer 29

privilege to use anothers land in a particular way doesn't have to be in writing may be revoked at any time by licensor, but licensor may be estopped from revocation if licensee invested substantial money in reasonable reliance **NOT an interest in land cannot be assigned or transferred

Question 30

profit

Answer 30

gives holder the right to take natural resources from the land of another can be terminated through misuse or overuse of resources on estate **can be in gross or appurtenant in gross = doesn't serve a dom. estate and can be transferred without transfer of property appurtenant = benefits dom estate and cannot transfer independently - must transfer with transfer of land

Question 31

fixture

Answer 31

personal property affixed to the land so that it becomes part of the land whether it is so incorporated that it loses its identity or its removal would cause considerable damages to property the more incorporated, the more likely it is a fixture trade fixture exception: an item attached for tenant's trade or business is not fixture unless removal causes sub damage to property but the item may become a fixture if it is not removed before end of lease term

Question 32

adverse possession

Answer 32

allows possessor to acquire title to land without conveyance requires possession to be 1. continuous for statutory period 2. open and notorious - use would put true owner of land on notice 3. exclusive 4. actual - possess the land as true owner would and 5. hostile under claim of right (w/o owner consent)

Question 33

adverse possession aggregation or tacking

Answer 33

adverse possessors in privity may aggregate their years in possession to meet statutory period privity >> exists when land is voluntarily transferred to another SOL does not run against future interest holder until the interest becomes possessory must quite title before you can convey the property - you do not have title to the property under AP even though you "own" it

Question 34

constructive adverse possession

Answer 34

if person take possession of portion of land under color of title (invalid deed) the adverse possession extends to the entire portion of the land described in deed or title

Question 35

land sale k requirements

Answer 35

k must 1. meet SOF 2. describe property 3. identify parties 4. contain purchase price and 5. be signed by grantor/grantee (depending on who enforced against) merger doctrine: once deed is delivered & accepted, the land sale k merges with the deed - result is that rights under k are extinguished and buyer may only sue upon deed some courts >> do not apply merger doctrine if it does not carry out probable intent of parties

Question 36

warranty of marketable title

Answer 36

the seller has duty to convey marketable title to buyer. this ensures title is free from any close and not subject to adverse claim title is unmarketable if the property has substantial defect, such as 1. defect in record chain of title and/or 2. encumbrance >> mortgage, lien, restrictive covenants, easement, adverse possession, zoning violations * *zoning RESTRICTIONS do not make it unmarketable exception: if an easement benefits the land and is visible or known to the buyer, it is not an encumbrance if seller cannot convey marketable title at closing, the buyer may withdraw without penalty buyer may waive defect - if buyer waives, seller cannot cancel k

Question 37

damages for breach of marketable title

Answer 37

measured by reduced value of land courts are divided on whether damages are recoverable if encumbrance is known or obvious

Question 38

doctrine of equitable conversion

Answer 38

splits ownership b/t buyer and seller once the land sale k is signed buyer >> equitable title of property seller >> legal title, and holds property in trust for buyer risk of loss: maj: risk of loss transfers to buyer upon signing k min: seller bears risk of loss unless buyer has possession or title to the property at time of loss

Question 39

home builder implied warranty

Answer 39

protects buyers of newly built homes against latent defects and warrants home is safe and fit for human habitation at the time of sale latent defect = a defect that could not have been discovered with reasonable inspection breach: allows buyer to recover damages discovered within reasonable time for defective construction or construction not performed in workmanlike manner (accepted norms of industry) subsequent purchasers = some state>> requires privity of k with home builder others >> warranty applies b/c subsequent buyer is in same vulnerable position

Question 40

valid deed requirements

Answer 40

deed must be lawfully executed and delivered lawful execution requires 1. signed by grantor 3. identify parties 4. describe property where deed does not identify g/ee, g/tee must fill in their name to be valid delivery = requires intent to be bound by conveyance intent will not be found if grantor expressly reserves right to revoke the deed or gives instruction to only deliver the deed upon death; present intent controls, physical delivery not required recording of notarized deed is PF evidence of delivery when deed is unconditional on its face and given to grantee, any additional oral conditions are not valid and will drop out **does not apply where conditions are given with deed to third party - i.e., deliver to x upon x condition...

Question 41

general warranty deed

Answer 41

present covenants 1. seisin - rightful owner 2. right to convey and 3. covenant against encumbrances future covenants 1. warranty to defend against any third party claims to title 2. quiet enjoyment - to not be bothered by third party claim to title (only applies where g/tee is evicted by 3d party w/ paramount title) 3. further assurances - to do whatever reasonable to perfect title enforcement of covenants common law: present covenants are not enforceable by remote grantees some states: will enforce the covenant against encumbrances if the remote grantee did not have notice of encumbrance

Question 42

special warranty deed

Answer 42

warrants seller has not breached the covenants of title during the ownership 1. seller has not previously conveyed the property and 2. no encumbrances against title made by seller

Question 43

quitclaim deed

Answer 43

contains no warranties or covenants | grantor not liable for any defects

Question 44

estoppel by deed

Answer 44

if grantor conveys title to real property before he owns it, the title will automatically vest in the grantee as soon as grantor acquires title

Question 45

chain of title

Answer 45

shows all transfers of land | 2 indexes -- one organized by grantors and one organized by grantees

Question 46

notice statute jxn

Answer 46

subsequent BFP (no notice + pay value) will prevail over prior grantee that failed to record

Question 47

race statute jxn

Answer 47

whomever records first prevails (notice irrelevant)

Question 48

race-notice jxn

Answer 48

a subsequent BFP is protected only if he records before the prior guarantee

Question 49

shelter rule

Answer 49

a person who purchases land from BFP receives the same status and rights as BFP

Question 50

BFP

Answer 50

takes real property without notice of prior conveyance and pays valuable consideration does not include gifts or bequests

Question 51

title insurance - owners vs. lender policy

Answer 51

insures good record title of property exists as of policy date and agrees to defend if litigated owners policy: protects owner of insurance & does not run to subseq purchasers lenders policy: follows any assignment of mortgage -- policy ends when mortgage is paid off

Question 52

mortgage party rights

Answer 52

maj: lien theory >> mortgagor has title and right to possession absent foreclosure title theory >> mortgagee has title to property during loan term, not mortgagor-borrower

Question 53

mortgage requirements

Answer 53

1. writing 2. signed by party to be charged and 3. reasonably identify land

Question 54

purchase money mortgage

Answer 54

used by the buyer/borrower to purchase real property, and the seller is the lender who secures the mortgage on the property priority over all other junior and senior mortgages

Question 55

future-advance mortgage

Answer 55

loan by which the lender may provide future payments under original loan -- lender secures the mortgage for entire amount the loan, including future advances obligatory vs. optional future payments obligatory >> lender has duty to advance funds regardless of the situation options >> lender has discretion whether to make future advances priority: future payments are obligatory >> all payments are party of OG loan and have priority over later liens future payments optional >> the future payments do not have priority over liens recorded before payment is made

Question 56

redemption in equity

Answer 56

at any time prior to foreclosure sale, mortgagor can redeem property by paying full amount due statutory redemption - the right to recover land after foreclosure remains by paying entire sale price equitable redemption - right to recover by paying amount overdue plus interest at any time prior to foreclosure sale unless there's acceleration clause

Question 57

deed of trust

Answer 57

similar to mortgage but involves 3 parties 1. borrower 2. lender and 3. third-party trustee who holds title to the property until the loan is paid off * *title is transferred to the purchaser once the loan is paid

Question 58

assumption of mortgage

Answer 58

may be express or implied express >> occurs if there is an express agreement for grantee to take the real property and continue making mortgage payments implied >> only allowed in some states - occurs if there is no express agreement, grantee/buyer pays the seller only the equity on home and grantee continues to make payments to lender on the balance of mortgage if buyer assumes mortgage, he is primarily and personally liable on mortgage and the seller remains secondarily liable if a buyer takes real property subject to seller's mortgage he is not personally liable on the mortgage, but a duly recorded mortgage remains on the land and mortgagee (lender) may foreclose on the mortgage

Question 59

foreclosure order of preference

Answer 59

extinguishes all junior mortgages order: proceeds from foreclosure sale are used to pay off debts in this order: 1. atty fees and expenses associated with the sale 2. debts owed to lender 3. any amount left over goes to debtor

Question 60

deficiency judgment

Answer 60

lender may seek a deficiency judgment against the debtor if the proceeds are insufficient to satisfy the mortgage debt

Question 61

transfer of mortgage note

Answer 61

some states require that the mortgage note be assigned along with the mortgage other states allow the note to automatically follow the mortgage when it is properly assigned, even without notice to mortgagor a mortgagor is not liable to an assignee of he mortgage note for any payments made to assignor if the mortgagor pays assignor and never received notice of assignment

Question 62

validity of zoning and land-use regulations

Answer 62

zoning and land use regulations are allowed when it reasonably protects the health, safety, or general welfare of community

Question 63

variance

Answer 63

an exception to zoning ordinace two types: use and area a variance application may be granted if property owner shows he will suffer hardship b/c of the ordinance and variance will not damage or harm the public

Question 64

previous use of property non-conforming to zoning/land use reg

Answer 64

allows a landowner to continue his use of land in violation of a later enacted zoning law (applies if use was originally legal) the non-conforming use must be continuous otherwise it loses protection changes to non-conforming use property - insubstantial changes and reasonable alterations are permitted - substantial changes that enlarge, alter, or extend non-conforming use are not allowed

Question 65

choice of law property

Answer 65

apply the law of state where property is located. rest. 2d >> it is presumed that the situs has most significant relationship rest. 1st >> apply state law where property is located interest analysis >> the state law where the property is located unless another state has greater interest if the land is merely incidental to a k, then apply choice of law rules for k

Question 66

fair housing act

Answer 66

the FHA prohibits discrimination in housing-related activities based on person race, color, religion, sex, national origin, disability, and/or familial status unless deemed senior housing FHA exceptions: does not apply to: 1. owner occupied buildings with no more than 4 units or 2. single-family houses sold or rented by the owner without the use of an agent as long as private landowner does not own more than 3 homes discriminatory advertisements are prohibited under FHA even if falling into an exception

Question 67

equitable mortgage

Answer 67

If a deed is given for security purposes rather than as an outright transfer of the property, it will be treated as an "equitable" mortgage and the creditor will be required to foreclose it by judicial action like any other mortgage.

Question 68

cumulative zoning vs. noncumulative zoning

Answer 68

cumulative = hierarchy of uses where single-family home is highest use followed by other uses -- land that is zone for particular use may be used for the stated purpose and any other HIGHER use non-cumulative = land can only be used for what it is zoned for

Question 69

lateral support

Answer 69

ownership of land includes right to have land supported in natural state by adjoining land; owners can be liable for excavations that cause damage to adjacent land land in natural state - strict liability building on land - for D to be strictly liable for damages to buildings, P must show his land would have collapsed even in its natural state due to D excavations negligence - D is negligent in excavation, his liability is for loss to adjacent land and buildings even if it would not have collapsed in natural state

Question 70

subjacent support

Answer 70

underground structures must support surface structures existing when subjacent estate was created strict - liable for failure to support surface land and preexisting surface structures negligence - subjacent owners are negligent for failure to support subsequently constructed buildings

Question 71

riparian doctrine

Answer 71

water belongs to those who own land bordering the watercourse maj: reasonable use theory - owners share rights to reasonable used and are liable to other owners if their use unreasonably interference with other owner use balance utility of use vs. gravity of harm natural uses always prevail over artificial uses

Question 72

prior appropriation doctrine

Answer 72

water rights acquired by actual use - priority of beneficial use determines the rights to water