Real Property

Question 1

Tenant Duties

Answer 1

1. Pay Rent (Unless Exception)
2. Avoid Waste
3. Make Reasonable Repairs

Question 2

Rights and Obligations of Co-Tenants

Answer 2

1. Each Co-tenant has right to possess the entire property
2. Rent: Co-tenant does not owe rent for his use of property but must share rents received from 3rd party.
3. Operating Expenses(Tax/Morgage): Co-t can generally collect expenses if he paid more than his share, unless he is only one in possession and the value of his use (rent rate) is equal/outweighs the overpayment
4. Repairs: Generally no right to be reimbursed. Majority holds contribution for necessary repairs may be compelled through accounting/partition (3rd party rents collected by cotenant may first be used to pay for repairs before sharing with other cotenants)
5. Improvements: Not entitled to reimbursement unless agreement to contrary. At end of cotenancy, improving cotenant will be awarded the increase in value due to improvements

Question 3

Ouster of Co-tenant

Answer 3

occurs when Co-T excludes another Co-T from possession. Party wrongfully excluded may bring action to recover possession and damages.

Question 4

Termination of Periodic Tenancy

Answer 4

May only be terminated
1. At end of natural lease period; and
2. requires written notice at least a full period in advance. (unless year-to-year, then only need six months notice)

Question 5

Landlord Duties

Answer 5

1. Deliver Possesion
2. Duty to Repair
3. Implied Warranty of Habitability
4. Covenant of quiet enjoyment
5. Security Deposits

Question 6

Implied Warranty of Habitability

Answer 6

Implied in every residential lease. Requires LL provide habitable place to live. Property is habitable if it is reasonably suitable for human needs. Determined by looking to local housing/public safety codes, but generally requires heat, running water, electricity, structural integrity)

Breached when T gives LL notice and reasonable opportunity to repair, but no repairs made.

T may
1) Stay in property and deduct rent until repair occurs
2) Pay for repairs and deduct cost from rent
3) terminate lease and move out

Question 7

Covenant of Quiet Enjoyment

Answer 7

Implied in every lease, both commercial and residential. LL cannot disrupt T’s possession/enjoyment of the land.

May result in constructive eviction
1) LL substantially interferes with T’s use and enjoyment of land
2) T gives notice and reasonable time for LL to repair, but LL does not repair; and
3) T vacates premise in reasonable amount of time.

Question 8

Assignment of Lease

Answer 8

Lease may be freely assigned unless provision in lease states otherwise. Occurs when T transfers all remaining assets to 3rd Party.

Assignee liable to LL for rent and all other covenants that run w/ the land b/c privity of estate arises between the assignee and the LL. Assignor also remains liable to LL for rent not paid by assignee becasue privity of K continues to exist.

LL may waive right to enforce assignment prohibition clause if he accepts rent from the assignee

Question 9

Subleases

Answer 9

Lease may be freely sublet unless clause in lease states otherwise. Occurs when T transfers only portion of remaining interest in lease to 3rd party.

Sublessee is not liable to LL for rent or other covenants because no privity of estate with landlord.

Question 10

Prohibition Clause

Answer 10

Lease prohibits only assignment->T may still sublease

T violates prohibition->LL can terminate lease

Waiver: LL accepts payment from new tenant, he waives right to enforce prohibition

Consent clause: LL can only withhold consent on commercially reasonable grounds.

Question 11

Real Covenants

Answer 11

Non-possessory interest in land that obligates the holder to either do something or refrain from doing something with the land. Remedy is damages

Question 12

Real Covenants: Benefit v. Burden to run

Answer 12

Benefit to Run:
1. Writing SoF
2. Intent for covenant to run with land
3. Vertical Privity between succeeding parties (exists when successor holds the entire estate held by the predecessor)
4. Covenant must touch and concern the land

Burden to Run
All of the above, plus
1) Horizontal privity between original parties (two parties shared some interest in the land independent of the covenant)
2) new owner must have notice (actual, constructive, inquiry)

Question 13

Equitable Servitudes

Answer 13

Covenants that equity will enforce if burdened estate had notice of the covenants. E.S. get injunctive relief and not damages.

To be enforceable, E.S. must
1) be in writing (SoF)
2) intent for restriction be enforceable by and against successors
3) servitude must touch and concern the land
4) IF person against whom servitude is to be enforced is purchaser, must have notice!

Question 14

Common Scheme Doctrine

Answer 14

Court will imply reciprocal restrictive covenants on parcels in a subdivision sold by a developer if
1) developer had common scheme/plan that all parcels would be subject to at time parcel was sold
2) D land owner had notice (actual, inquiry, record)

Question 15

Easements

Answer 15

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

Gross: benefits specific owner’s enjoyment/use of land. Does not attach to land or pass to subsequent landowners

Appurtenant: Benefits any owner’s use and enjoyment of land and does attach. Passes to subsequent landowners so long as notice

Question 16

Easement: Express Grant

Answer 16

Express agreement allowing easement that must
1) Be in writing signed by grantor
2) ID land and parties
3) indicate grantors intent to convey the easement

Question 17

Easement: Prescription

Answer 17

Like adverse possession
use of land is
1) Open and Notorious
2) continuous
3) Hostile
4) for statutory period
(No exclusivity requirement like in AP)

Question 18

Easement by Implication (Implied by prior use)

Answer 18

established when (SPAR)
1) single tract of land divided by common owner
2) pre-existing use by grantor that benefits the land is established prior to division
3) use is continuous and apparent
4) use is reasonably necessary for owners use and enjoyment of property (met if landowner would have to spend substantial money/labor to provide substitute)

Question 19

Easement by Necessity

Answer 19

Created if
1) the OG piece of land owned by owner is subdivided
2) access the easement provides is essential to the use of the property b/c there is no other entry/exit

Question 20

Scope of easements

Answer 20

Use must continue to be as parties intended or how it was created (if by implication/prescription)

Reasonable Changes in manner/frequency/intensity are ok, but cannot change scope to impose unreasonable burden on servient land

Question 21

Termination of Easements

Answer 21

Generally perpetual, but may be terminated by
1) Estoppel (servient estate owner reasonably relies on/materially changes position due to holder’s assurances that easement will not be enforced)
2) Termination of necessity that created easement
3) involuntary destruction of servient estate
4) Condemnation
5) written release
6) abandonment
7) merger

Question 22

Adverse Possession

Answer 22

AP allows someone in possession of land to acquire title when possession of property is (Change)
1) Continuous
2) Hostile
3) apparent (open and notorious)
4) go on for statutory period
5) exclusive

If true owner has disability (JIM: Jail, insane, minor) then period is told until disability lifted

Question 23

Warranty of Marketable Title

Answer 23

Seller has a duty to coney marketable title to a buyer: title is free from defects that create an unreasonable risk of litigation.

Defectst include: future interest; encumbrance; violation of zoning ordinance; significant physical defect; title held by AP but not yet quieted.

Defect remains at closing-> rescission with recovery of costs; suing for breach; specific performance with abatement of purchase price

Merger: once deed is delivered and accepted, all rights to sue under K are extinguished.

Question 24

General Warranty Deed covenants

Answer 24

PRESENT Covenants may be breached at time of conveyance
1) Seisin: Grantor is rightful owner
2) Right to convey
3) No encumberances

Future covenants may be breached at any time upon interference (FEW)
1) Warranty: Grantor will defend grantee against 3rd party claim
2) quiet enjoyment: Grantee will not be bothered by 3rd party’s lawful claim to tile
3) further assurances (grantor will do whatever is reasonably necessary to perfect title if problem arises.

Question 25

Quitclaim

Answer 25

no covenants or promises. As-is deed

Question 26

Special Warranty deed

Answer 26

Same implied covenants as general warranty deed, but only protects against defects if they arose during time grantor has title

Question 27

Zoning Variances

Answer 27

Exception to zoning ordinance. Two types: Use variance and Area variance

granted if
1) property owner shows she will suffer hardship because of ordinance
2) variance will not damage or harm public welfare

Question 28

Zoning Ordinance: Previous Non-Conforming Use

Answer 28

Allows landowner to continue to use his land in violation of later enacted zoning law. If use of land was originally legal, subsequent zoning law will not bar continued use of land as it was legally used before. Use must be continuos.

OK: insubstantial changes and reasonable alterations to repair
Not OK: change is inconsistent with the current zoning law, any doubts resolved against change

Question 29

Private Nuisance

Answer 29

A 1) substantial 2) unreasonable interference with 3) another persons use or enjoyment of their property.

Substantial Interference=offensive, inconvenient, annoying to the average person

Unreasonable=severity of inflicted injury must outweigh the utility of the conduct. Courts take into account ever person entitled to use land in reasonable way, considering neighborhood, land values, and existence of any alternative courses of conduct open to defendant.

Question 30

Abandonment

Answer 30

Tenant
1) quits the premises
2) has no intention of returning
3) defaults on rent

Question 31

Deed of Trust

Answer 31

An arrangement where a 3rd party holds a deed in a trust to stand as collateral for a debt owed. With a deed of trust, if the debtor fails to make payments and ends up in default on the loan, the party that made the loan can initiate a foreclosure and execute a private sale of the property

Question 32

Order of Payment in a Foreclosure Sale

Answer 32

When a foreclosure is executed, the priority of payment is
1) all fees are paid for the foreclosure
2) senior creditor interests are paid first and in order to the junior interests;
3) anything left over is given to the debtor