Real Property Flashcards

Question

LL = No self-help

Answer 1

landlord may not engage in self-help upon tenant’s breach (e.g., forcibly removing tenant or tenant’s belongings, changing locks, etc.)

Answer 2

required at beginning of most leases to secure landlord against damages and/or abandonment Landlord must return deposit to tenant once lease terminates Landlord may subtract damages she has suffer

Answer 3

Landlord is prohibited from retaliatory eviction if a tenant lawfully reports housing code or other violations

Answer 4

can be largely modified by lease terms: Tenant must maintain premises and make ordinary repairs --> Residential tenants’ duty to repair is modified by the implied warranty of habitability

Answer 5

Tenant must not commit waste—three types of waste: 1) Voluntary—overt, harmful acts (e.g., removing fixtures) 2) Permissive—neglect 3) Ameliorative—alterations increasing property value

Answer 6

if tenant uses premises for an illegal purpose, landlord may terminate lease or obtain damages and injunctive relief Occasional, minor illegal activities do not constitute a breach

Answer 7

Destruction of premises without fault of landlord or tenant Common law—tenant held liable for any loss Modern law—tenant can terminate lease

Answer 8

Tenant may be liable for injuries to third persons from the dangerous conditions within the tenant’s control

Answer 9

Duty to deliver possession on first day of lease Majority (English Rule)—actual possession -->Landlord must deliver physical possession to tenant Minority (American Rule)—legal possession (i.e., right to possess) -->New tenant is responsible for evicting a holdover tenant Tenant's remedy for breath = money damages

Answer 10

A tenant has an implied right to quiet use and enjoyment of the premises, without interference from the landlord Breach may occur by actual or constructive eviction Breach may occur by landlord’s wrongful conduct causing loss of use and enjoyment by tenant

Answer 11

Landlord wrongfully evicts or excludes tenant from property

Answer 12

landlord’s actions or inactions render the property uninhabitable or unusable Elements: 1) Breach of duty—landlord breached a duty to the tenant 2) Substantial interference—major and/or chronic problems (e.g., leaky roof) are caused by landlord’s wrongful conduct; 3) Notice—tenant must inform the landlord and give him a reasonable opportunity to repair; landlord must fail to act meaningfully; and 4) Vacate—tenant must vacate within a reasonable period after the landlord fails to repair

Answer 13

Residential property must be fit for basic human dwelling Characteristics: Residential only—not applicable to commercial leases Absolute duty—cannot be modified by lease terms Local code or case law specifies the standard for a breach E.g., no heat in winter, no plumbing, no water, etc. are types of problems that could give rise to violation of the implied warranty of habitability

Answer 14

Tenant’s remedies—after giving notice to landlord, tenant can: 1) Move—vacate premises and terminate the lease 2) Repair—make reasonable repairs and deduct costs from future rent 3) Reduce or withhold rent—reduce rent or stop payment until a court determines the fair rental value given the breach Tenant must place withheld rent in escrow 4) Remain—remain in possession and seek money damages

Answer 15

Modernly, A landlord may be liable for injuries occurring on leased property. LL liable for injuries involving: 1) Common areas — duty of reasonable care --Landlord must exercise reasonable care in maintaining and repairing common areas (e.g., hallways, stairs) 2) Latent defects — duty to disclose - Landlord has a duty to disclose hidden defects he should reasonably know of 3) Assumption of repairs — negligence standard -Landlord is liable for harm caused by negligent repairs he chooses to undertake 4) Public use — landlord is liable for known defects if he knows the property is for public use and tenant is unlikely to repair E.g., concert hall, 5) convention center Seasonal or short term lease of a furnished dwelling Landlord is liable for defects that cause harm to tenant

Answer 16

Once-movable chattel that is annexed (i.e., affixed) to real property such that it becomes part of the realty Often arises with leaseholds, but applies to all real property estates Fixtures pass with ownership of the land Exception—a life tenant’s representative may remove annexed chattel within a reasonable time after life tenant’s death

Answer 17

1) Intent controls—annexor’s intent is usually determinative 2) Fixture almost always arises where annexors affix their own chattel to their own property 3) Chattel integrated into a structure (e.g., heating pipes, bricks built into a wall) almost always becomes a fixture

Answer 18

Agreement between landlord and tenant is controlling, if it exists Tenant installation—tenant may remove chattel she installed if: 1) Removal occurs before the lease expires; and 2) Removal does not cause substantial harm to the property --If tenant impermissibly removes fixtures, she commits voluntary waste

Answer 19

A non-possessory property interest that confers a right to use another’s land for a specified purpose Servient estate = burdened land Dominant estate = benefited land (not always applicable)

Answer 20

An easement’s scope is determined by the terms or conditions that created it In interpreting an easement’s scope, courts will consider the reasonable intent of the original parties

Answer 21

Easement holders cannot unilaterally expand the scope of their easement (e.g., through overuse or misuse) --Overuse or misuse of an easement does not terminate the easement Remedy for violation = injunction or damages

Answer 22

Easement holder has a duty to make repairs if he is the sole user If both the servient landowner and the easement holder use an easement, the repair costs are apportioned

Answer 23

1) Easements Appurtenant 2) Easements in Gross 3) Affirmative Easement 4) Negative Easement

Answer 24

entitles a dominant estate owner to use a servient estate’s land Attaches to the dominant estate and passes automatically (even if not mentioned in a conveyance) Requires 1) 2 pieces of land

Answer 25

entitles an individual or entity (not a dominant landowner) to use the servient estate Attaches only to servient estate; there is no dominant estate --i.e. requires 1 piece of land E.g., right to place a billboard on another’s lot, right to run utility line across land, right to fish in another’s pond Similar to a license, but irrevocable; may be transferred

Answer 26

entitles its holder to make affirmative use of the servient estate

Answer 27

entitles its holder to restrict the servient estate from engaging in otherwise permissible actions on his own land Four categories of acts may be prevented: 1) Light 2) Air 3) Subjacent or lateral support 4) Stream of water from an artificial flow *Must be created by express grant; restricitive covenants used more often for this purpose

Answer 28

easements may be created by prescription, implication, necessity, or expressly by grant or reservation

Answer 29

Easements may be expressly created by grant or reservation Grant—an express grant of the easement Created by instrument (e.g., written agreement) in which the servient estate owner gives easement to owner of dominant estate Reservation—grantor conveys title to land but reserves the right to continue using the land for a designated purpose Grantor may only reserve an easement for himself Void if reserved for the benefit of another E.g., O conveys property to A, reserving an easement allowing access to a path across the property Requirements—express easements must be: 1) In writing (otherwise will violate SoF); and 2) Signed by the servient estate holder

Answer 30

An easement legally implied based on prior use by a common grantor on land subsequently divided into multiple plots. Need not be in writing. Requirements: 1) Easement exists prior to division of a single tract of land; 2) Common grantor’s use is continuous and apparent; 3) Use is reasonably necessary for enjoyment of the dominant tenement; and 4) Parties intended the use to continue after division of the land

Answer 31

easement may be implied without prior use where: a) Subdivision plat—lots in a subdivision are sold with reference to a map plan, or b) Profit à prendre—holder of a profit à prendre has an implied easement to pass over the land’s surface as reasonably necessary to extract materials (e.g., wood, coal)

Answer 32

An easement can arise if access to or from a property is impossible without the easement (i.e., the easement’s existence becomes necessary) Creation — usually arises when a landowner sells a portion of her property and the resulting division deprives one lot owner of access to a public road or utility The owner of the servient estate can choose a reasonable location for the easement

Answer 33

expires automatically when the necessity ends

Answer 34

A process of acquiring an easement; similar to acquiring title by adverse possession Requirements—acquirer’s use of another’s land must be: 1) Continuous—for the applicable statutory period 2) Open and notorious—owner knows or should know of use 3) Actual 4) Hostile—without owner’s permission an easement can also be terminated by prescription if the servient landowner interferes with the easement sufficiently to satisfy the above requirements

Answer 35

govt. may enact laws to reasonably control land use (cities and counties must be authorized by an enabling act) Limitation — zoning ordinances must be reasonably related to the public welfare, not racially discriminatory, and not violate Constitutional or federal statutory rights (e.g., 1st Amendment or Fair Housing Act)

Answer 36

landowners can get govt. permission to be exempt or vary from literal restrictions of a zoning ordinance Requirements — to qualify for a variance, a landowner must show: 1) Undue hardship; and 2) Variance will not be contrary to public welfare

Answer 37

a once lawful existing use for property, now deemed nonconforming under new zoning laws Govt. cannot eliminate a use all at once (i.e., “zone out”) unless just compensation is paid -->Govt. may provide the landowner with amortization, whereby govt. will make payments to the landowner over a set period of time until the landowner recoups the value of the nonconforming use

Answer 38

A promise to do or refrain from doing something related to land A contractual limitation or promise regarding land Note—covenants are not property interests

Answer 39

covenant concerning real property 1) Runs with the land at law—subsequent owners may be burdened by the covenant or may enforce it ---Different requirements apply for burdens and benefits running with the land 2) Affirmative covenant—a promise to do something related to land 3) Restrictive covenant—a promise to refrain from doing something related to land

Answer 40

can occur by: 1) Written release, 2) Merger of benefited and burdened estates, or 3) Condemnation of burdened property

Answer 41

difference is the remedy Covenant—money damages Equitable servitude—injunction

Answer 42

Equitable servitudes are covenants enforced in equity against successors through injunctive relief (i.e., injunction is the remedy) I.e., a covenant that will be enforced against successors of the burdened land who have notice of the covenant Privity is not required to bind successors

Answer 43

requirements: 1) Writing—written promise ---Exception—reciprocal negative servitudes may be implied from a common scheme for development of a residential subdivision 2) Intent—original parties must intend to bind successors 3) Touches and concerns the land 4) Notice—successors of the burdened land had notice --Notice not required for benefit to run NO NEED FOR PRIVITY SINCE INJUNCTION IS SOUGHT

Answer 44

a court will not enforce an equitable servitude if any of the following conditions exist: Pervasive changes in the neighborhood Estoppel Acquiescence Unclean hands Laches

Answer 45

A successor in interest to the burdened estate will be bound by a covenant if the requirements below are satisfied Requirements: 1) Writing — original covenant was in writing 2) Intent — parties intended to bind successors in interest Look to language of the covenant; courts are liberal in construing requisite intent 3) Touches and concerns the land — covenant must relate to the land and affect parties’ legal relations as landowners (a very low standard) Homeowner association fees satisfy this requirement 4) Horizontal and vertical privity — must exist between interested parties -->Horizontal privity — relationship between the covenanting parties (e.g., grantor/grantee, landlord/tenant, mortgagor/mortgagee) -->Vertical Privity — relationship between covenanting parties and their successors in interest (e.g., contract, devise, descent) 5) Notice — successor in interest had notice of the covenant when she took her interest

Answer 46

A successor in interest to the benefiting estate may enforce the covenant if the requirements below are satisfied Requirements: 1) Writing — original covenant was in writing 2) Intent — original parties intended benefit to run with land Look to language of the covenant; courts are liberal in construing requisite intent 3) Touches and concerns the land -->The covenant must relate to the land and affect parties’ legal relations as landowners (a very low standard) 4) Vertical Privity — successors in interest are in vertical privity with the original covenanting parties (e.g., through contract, devise, or descent) --Horizontal privity is not required for majority of states

Answer 47

1) Contract—agreement to buy/sell land 2) Escrow period—transfer of funds through escrow 3) Closing—escrow completion to deed delivery 4) Conveyance—successful deed transfer, upon which property is conveyed to the new owner

Answer 48

subject to the SoF and must be: 1) In writing; 2) Signed by the parties to be bound; and 3) Articulate essential terms (e.g., 1) identify grantor and grantee, 2) intent to convey, 3) consideration to be paid, and 4) description of the land) --After this, equitable title passes to buyer

Answer 49

1) identify grantor and grantee, 2) intent to convey, 3) consideration to be paid, 4) description of the land; 5) signed at least by seller

Answer 50

A land sale contract outside the SoF is enforceable against the seller if the buyer does any two of the following: a) Pays all or part of the purchase price; b) Takes possession; and/or c) Makes substantial improvements

Answer 51

during escrow (after land sale K but before deed delivery), buyer owns the real property, but seller owns personal property (i.e., the right to proceeds of the sale) 1) Seller holds legal title in trust for buyer 2) Action against seller for claims arising before the K—any judgment against seller is converted into an interest in sale proceeds; judgment is not enforceable against real property (i.e., buyer is protected)

Answer 52

If property is destroyed before closing through no fault of the parties, buyer bears the risk of loss in most jurisdictions -Applies even if buyer has not taken possession -Parties can contract differently -Seller must credit any insurance proceeds from loss against the purchase price

Answer 53

if buyer or seller dies before closing, rights to the contract pass according to interests held 1) Seller ’s interest—passes as personal property I.e., seller’s estate can sue for sale proceeds 2) Buyer ’s interest—passes as real property I.e., buyer’s estate can sue for delivery

Answer 54

Promise that title will be reasonably free from doubt and risk of litigation upon closing:

Answer 55

1) Acquired by adverse possession, 2) Encumbered by interests (e.g., servitude, mortgage, liens, future interest); but seller has the right to satisfy outstanding mortgages or liens with sale proceeds, or 3) Zoning ordinance violations existing at sale **Can be waived by buyer (but not seller); need not be perfect

Answer 56

Needs to be marketable by closing; seller has time to make it marketable

Answer 57

1) Seller must not materially misrepresent facts or make false statements concerning the property or omit facts that result in a material misrepresentation. 2) Seller has a duty to disclose known, latent material defects, which may be disclaimed if disclaimer is clear and specific New property — seller/builder is subject to an implied warranty of habitability and fitness/quality in construction

Answer 58

As Is Clauses do not protect against fraud

Answer 59

buyer must notify seller before closing and give reasonable time for seller to cure defects If seller fails to cure, buyer can rescind, file for damages, demand specific performance, or file suit to quiet title Merger — if buyer fails to notify seller before closing, contract merges with the deed and seller is not liable

Answer 60

A deed passes legal title from seller to buyer Requirements: to be effective, a deed must be: 1) Lawfully executed — deed must be signed by grantor and must reasonably identify the parties and the land; and 2) Delivered — requires present intent to be bound by the conveyance ---Title passes upon effective delivery; cannot be rescinded ---Present intent controls; physical transfer not required 3) Acceptance — grantee must accept the deed; acceptance is usually presumed; non-existent/void entity cannot accept deed Rejection by grantee = ineffective delivery

Answer 61

1) a writing 2) signed by the grantor 3) identifying the parties; 4) an unambiguous description of the land; and 5) words of intent to transfer

Answer 62

Third-party or conditional transfers — if a deed is transferred with conditions or via a third party, courts look at grantor’s intent and whether she retains control to rescind transfer

Answer 63

1) General warranty — includes six covenants for title 2) Special warranty — grantor assures that: a) He has not conveyed the land to another; and b) The land is free from encumbrances attaching while grantor owned the land 3) Quitclaim — transfers whatever interest grantor purports to have in property; no covenants included I.e., grantor is not even promising he has title to convey

Answer 64

Includes 6 covenants of title (not property itself): Present covenants breached at delivery: 1) Seisin — grantor covenants that he is the rightful owner (i.e., has title, possession) and that deed covers described land 2) Right to convey — grantor covenants that he has the right to convey 3) Against encumbrances — grantor covenants that the land is free from encumbrances (e.g., servitudes, mortgages) Future Covenants breached after delivery: 1) Quiet enjoyment — grantor covenants that grantee will not be disturbed by a third party’s claim of lawful title 2) Warranty — grantor agrees to defend against lawful claims of title by others 3) Further assurances — grantor promises to perform future acts reasonably necessary to perfect the title conveyed

Answer 65

grantor assures that: a) He has not conveyed the land to another; and b) The land is free from encumbrances attaching while grantor owned the land c) plus the six covenants but only to himself, not predecessors

Answer 66

If a prior conveyance or interest is not recorded, a subsequent purchaser/mortgagee may be protected under a recording statute Level of protection depends on the type of recording statute. Three types: 1) notice statutes 2) race-notice statutes 3) race statutes

Answer 67

A BFP is one who purchases 1) property for value (i.e., gives pecuniary consideration) 2) without notice of a prior conveyance Purchasers: 1) Includes mortgagees for value 2) Does not include donees, heirs, or devisees Not protected by the recording statutes unless the Shelter Rule applies

Answer 68

one who takes from a BFP will prevail against any interest the transferor-BFP would have prevailed against, even if the transferee had actual notice of a prior conveyance Protects donees, heirs, or devisees of BFPs who cannot qualify as BFPs and would not otherwise receive protection under notice or race-notice statutes

Answer 69

Subsequent BFP always prevails Whether or not she recorded first, a subsequent BFP always prevails over a prior grantee who fails to record Sample language: “No conveyance or mortgage of an interest in land shall be valid against any subsequent purchaser for value without notice thereof unless it is recorded”

Answer 70

first subsequent BFP to record prevails Sample language: “No conveyance or mortgage of an interest in land shall be valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded”

Answer 71

first grantee to record prevails, regardless of whether buyer is a BFP E.g., non-BFP purchaser who records first prevails over BFP Sample language: “No conveyance or mortgage of an interest in land shall be valid against a subsequent purchaser whose conveyance is first recorded”

Answer 72

a buyer has notice of a prior conveyance by any of: 1) Actual Notice - actual knowledge, from any source 2) Inquiry notice — what a reasonable inspection of the land would reveal (regardless of whether buyer actually inspects) 3) Record notice — knowledge from a routine title search

Answer 73

a recorded deed unconnected to the chain of title (e.g., due to a clerk’s filing error or the failure to record a prior deed) Record notice cannot be derived from a wild deed Wild deed cannot exist in a tract index system

Answer 74

a grantor who conveys title to land he does not then own is estopped from subsequently acquiring the same land Title automatically passes to the benefit of grantee Prevents one from conveying land they do not presently own and later validly acquiring it (e.g., through a will)

Answer 75

(“listing broker”)—broker who obtains listing from seller, i.e., engaged by seller to assist in sale of property Has fiduciary duty to seller Earns commission from sale of property once the sale closes --->Seller’s agent may still earn commission if the sale fails to close due to seller’s fault (e.g., seller backs out)

Answer 76

(“selling broker”)—primary relationship is with buyer, e.g., shows buyer potential properties buyer may purchase Typically compensated by receiving a portion of listing broker’s commission, e., gets paid out of seller’s agent’s commission Common law—owes a fiduciary duty to seller b/c buyer’s agent is technically a subagent of the seller’s agent Modern statutes—requires separate agreement between buyer’s agent and buyer; buyer’s agent owes fiduciary duty to buyer but no fiduciary duty to seller

Answer 77

agents have a duty to disclose material information about which they have actual knowledge

Answer 78

A trespasser may acquire title to another’s property without compensation by possessing the property for a specified period, in a manner conflicting with the true owner’s rights Requirements — trespasser’s possession of the land must be: 1) Continuous for the statutory period — possession must be similar to an ordinary owner’s use of the property ->Daily possession is not required if an ordinary user would not use the property daily (e.g., winter cabin) 2) Open and notorious — trespasser’s possession must be conspicuous, such that the true owner would know of the trespass if he inspected his property regularly ->Owner need not actually know of the trespasser’s use 3) Actual and exclusive — must possess a reasonable portion of the property to the exclusion of the owner and the public 4) Hostile — possession must be without owner’s permission ->No knowledge or intent requirement (i.e., trespasser need not intend to adversely possess) Leasehold — if a tenant stays in possession after a lease has expired, he is presumed to have permission (i.e., tenancy at sufferance arises, as opposed to the beginning of an adverse possession period)

Answer 79

A mortgage is a security interest in land that serves as collateral for the repayment of a loan (a.k.a. “mortgage deed,” “note”) Writing required—must be in writing to satisfy the SoF -->Usually called a promissory note Mortgagor = debtor/borrower/landowner Mortgagee = creditor

Answer 80

Majority - mortgagor has title and the right to possession absent foreclosure Mortgagee has a lien, conferring a right to take action for ownership of the land if the mortgagor defaults on the loan Note—unless instructed otherwise, assume lien theory applies on the MBE

Answer 81

(minority)—mortgagee has title to the property during loan term, not mortgagor-borrower

Answer 82

(minority)—mortgagor has title and right to possession until default occurs per the mortgage; after default mortgagee has title and right to possession

Answer 83

debtor gives creditor a deed to his land as collateral for the debt (instead of executing a mortgage)

Answer 84

terms in loan agreements that require mortgagor to pay off full loan immediately if certain conditions are met, e.g., if mortgagor misses too many payments

Answer 85

The process in which the mortgagor's interest in a property is terminated. Upon default, mortgagee can satisfy debt through foreclosure by judicial action Property is sold to satisfy the debt in whole or in part If proceeds exceed the debt balance, junior liens are paid in order of priority

Answer 86

if the debt exceeds sale proceeds, mortgagee can file suit against mortgagor for debt balance

Answer 87

at any time prior to a judicial foreclosure sale, mortgagor can redeem the property by paying the amount due 1) Equitable mortgage—redemption rights apply to an equitable mortgage situation where creditor appears to hold legal title to the land via a deed

Answer 88

1) Statutory right of redemption—some jurisdictions allow mortgagor, for a certain period, to buy back the property after foreclosure sale

Answer 89

to avoid foreclosure, mortgagor can agree to give mortgagee deed to property; such transactions will be valid as long as they are fair and reasonable under the circumstances

Answer 90

mortgagee’s right to possession prior to foreclosure depends on the jurisdiction: 1) Lien theory—no right to possess prior to foreclosure 2) Title theory—right to possess at any time upon demand 3) Intermediate theory—right to possess upon default Mortgagee can always take possession with mortgagor’s consent or abandonment Mortgagee in possession assumes the risk of accounting for rents, managing property, and tort liability to third parties

Answer 91

where mortgagor sells property, mortgage remains on the land (i.e., grantee takes subject to the mortgage but is not liable for repayment) Mortgagor remains liable to mortgagee for the loan Assumption—grantee promises to pay existing mortgage loan --->Grantee becomes primarily liable to mortgagee; original party is secondarily liable as surety

Answer 92

1) Endorsing the mortgage note and delivering it to transferee 2) Executing a separate assignment of the mortgage interest

Answer 93

a holder in due course lender takes a mortgage note free of any personal defenses mortgagor could have raised against original mortgagee (e.g., lack of consideration, fraudulent inducement) He still remains subject to real defenses (e.g., duress, fraud, etc.)

Answer 94

1) Negotiable note—must be made payable to the named mortgagee; 2) Indorsed—note must be signed by the named mortgagee; 3) Delivered—note must be delivered to the transferee; and 4) Good faith and value paid—transferee must take the note in good faith (i.e., without notice of illegality) and pay value

Answer 95

Creditors must record their interests 1) Recorded interests take priority in the order recorded 2) Purchase money mortgages (PMM)—superior to all interests 3) Creditors can agree to subordinate priority to a junior creditor

Answer 96

PMM = mortgage given in exchange for funds used to buy the property; PMM is given either to the seller as part of the purchase price or to a third-party lender (if both, seller’s PMM is senior to the third-party lender)

Answer 97

terminated by foreclosure of a superior claim I.e., upon foreclosure, junior interest holders cannot look to the land to satisfy debts Junior interest holders can seek a deficiency judgment against debtor, but they have no interest in the subject property Necessary parties—junior interests are necessary parties and must be included in a senior foreclosure action Otherwise, the junior interest will remain on the land

Answer 98

unaffected by junior interest foreclosures Buyer of foreclosed property takes it subject to senior interests -->Buyer is not liable for senior debt, but the senior mortgage remains on the land

Real Property Flashcards

(122 cards)