Term
| What are the two types of “Estates in Land” |
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Definition
| Freehold Estates and Non-Freehold Estates |
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Term
| What are the 4 types of Freehold Estates? |
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Definition
Fee Simple Estates
Defeasible Fees (3 types)
Fee Tail
Life Estate |
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Term
| What is a fee simple absolute |
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Definition
The largest estate permitted by law
The holder can sell it, divide it, or devise it.
If she dies, her heirs will inherit it |
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Term
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Definition
| Words for conveying language in fee simple absolute (NB: “and his heirs” is not necessarily required but existed at CL) |
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Term
| What are the 3 types of defeasible fees? |
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Definition
Fee simple determinable
Fee simple subject to a condition subsequent
Fee simple executory |
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Term
| When a fee is deemed defeasible, does that mean it will eventually terminate? |
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Definition
| Not necessarily. A fee will terminate only if the specified event occurs. |
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Term
| What is a fee simple determinable? |
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Definition
| A conveyance which reverts back to the owner on the occurrence of a specific event. |
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Term
| “O to A for so long as no alcoholic beverages are served or consumed on the premises” |
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Definition
Words for conveying language in fee simple determinable
(Look for ) “so long as…” “unless” “until”) |
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Term
| What steps must the grantor take to enforce a fee simple determinable? |
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Definition
Nothing. The estate reverts back to the grantor automatically. No express words are required
This is known as a “possibility of reverter” and creates a future interest in the estate. |
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Term
| Can a possibility of reverter (say under fee simple determinable) be transferred? |
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Definition
| Yes (though in the past it couldn’t). In most jurisdictions possibility can be transferred inter vivos or devised by will. It also descends to the grantor’s heirs if she dies intestate. |
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Term
| What is a fee simple subject to a condition subsequent? |
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Definition
| The grantor retains the power to terminate the estate of the grantee upon the happening of a specified event. To effect termination, the grantor must reenter and claim the property(or sue to do so). |
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Term
| What is the difference between a fee simple determinable fee and a simple subject to a condition subsequent? |
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Definition
| Both terminate the holder’s interest in the estate upon a specified event. However, in f.s. subject to a condition subsequent, the grantor must re-enter and take back the property. Until she does, the holder may retain possession use of the property. |
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Term
| O to A and his heirs provided that liquor is never sold on the premises; but in the vent liquor is ever sold, O or her heirs may enter and terminate the estate hereby conveyed.” |
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Definition
Words for conveying language in fee simple subject to a condition subsequent.
(Look for words like “provided that…” “but if” “on condition that…”; Also look for power to terminate, re-enter, etc.) |
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Term
| In a fee simple subject to condition subsequent, does the conveyance have to expressly reserve the grantor’s right to reenter? |
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Definition
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Term
| Can a grantor waive her right to terminate the holder’s estate in a fee simple subject to condition subsequent? |
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Definition
Sure
But be careful, because although inaction does not of itself constitute waiver, the grantor may be estopped from terminating the estate if holder relied on inaction to his detriment. |
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Term
| Can a right to renter (under fee simple subject to condition subsequent) be transferred inter vivos? Can it be devised? Will it descend to the grantor’s heirs at death? |
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Definition
A right of entry is not alienable inter vivos (most jurisdictions)
However, in most states rights if entry are devisable and will always descend to the owner’s heirs. |
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Term
| Can a right to renter (under fee simple subject to condition subsequent) be created for the benefit of a third party |
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Definition
No.
That would be a fee simple subject to an executory interest |
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Term
| What is a fee simple subject to an executory interest? |
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Definition
| An estate that, upon the happening of stated event, is automatically divested in favor of a third person (rather than the grantor). |
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Term
| O conveys Blackacre to A provided, however, that if liquor is served on the premises, title shall pass to B. |
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Definition
Words conveying a fee simple subject to an executory interest.
(Look for words like “provided that if …then title passes” “To X but if … , then to Y ”) |
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Term
| For a fee simple subject to an executory interest, must the party with the executory interest take any action to divest the estate for his favor? |
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Definition
| No. The divestiture takes place automatically |
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Term
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Definition
Limits inheritance of the conveyed property to lineal descendants of the grantee.
(Look for language: “to A and the heirs of his body”) |
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Term
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Definition
| An estate that is conveyed to a grantee – but ordinarily limited in time to the life of the grantor. (See exceptions) |
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Term
| Who’s life may be used to measure the duration of a life estate |
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Definition
| Ordinarily the life estate os measured by the life of the grantor. However, it may be measured by the life of another person instead (“life estate pur autre vie) |
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Term
| Can a life estate be defeasible? Can it be limited in duration other than life? |
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Definition
Sure – in all the same ways a fee simple would be defeasible. (Ex: to my wife until she remarries).
If a life estate is, say, “for the grantee’s life but, nonetheless, no more than 10 years”, then it is not a life estate (in that case it is an estate for years). |
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Term
| What are three forms of waste in the “Doctrine of Waste”? |
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Definition
Affirmative (voluntary) waster
Permissive Waste
Ameliorative Waste |
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Term
| What is the general rule in Doctrine of Waste (generally “affirmative waste”) |
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Definition
| A life tenant is entitled to ordinary use of the land, but he cannot lawfully do any act that would injure the interests of the person(s) who own the remainder or reversion |
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Term
| What are the four exception to Doctrine of Waste (Affirmative Waste) |
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Definition
A life tenant may exploit natural resources on the property where necessary to repair and maintenance the land
When the life tenant is expressly given rights to exploit natural resources
Prior to the grant, the land was used in exploitation of such natural resources therefore it’s reasonable such rights continue
Where the land is suitable only for such exploitation |
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Term
| What is the “Open Mines” Doctrine |
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Definition
| If mining had been done on the land before the life estate began, the life tenant is allowed to continue to mine the property – but is limited to the mines already one (i.e. may not open new mines). |
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Term
| What is “Permissive Waste”? |
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Definition
| Permissive waste occurs whenthe life tenant allows the land to fall into disrepair or fails to take a reasonable measures to protect the land. |
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Term
| What are the remedies available to the plaintiff under the doctrine of waste? |
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Definition
| Damages and π may also enjoin any acts of waste. |
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Term
| Is a life tenant under any obligation to make repairs to the property under a life estate? If they are reasonable, must he make permanent improvements to the land |
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Definition
A life tenant is obliged to preserve the land and structures – which means he must maintain them in a reasonable state of repair to the extent of the reasonable rental value of the land (or to the exent of income there from).
But the tenant is under no obligation to make permanent improvements on the land. |
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Term
| Who is obliged to pay taxes during a life estate (grantor or grantee or another?) |
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Definition
| The life estate grantee is obligated to pay all ordinary taxes to the extent of the reasonable rental value of the land |
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Term
| Who pays the principle of the mortgage on a life estate? Who pays the interest? |
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Definition
The remainderman or reversioner pays the principal on the debt to protect their interest.
The life tenant is obligated to pay any interest to the extent of the reasonable rental value of the land |
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Term
| Who is responsible for paying any special assessments for public improvements |
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Definition
| If the improvements are expected to be permanent (sidewalks, storm drains) then the assessments are apportioned between the life tenant and the holders of any future interests. (If any assessed improvement was not expected to outlast the life of the grantee, then he must pay them entirely. |
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Term
| Under the doctrine of ameliorative waste, when may the life tenant make substantial, permanent changes to the property |
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Definition
In general such acts must be intendedto economically benefit the property. There is a two phase test
First, the market value of the property is, in no way, diminished to those with a future interests
Second, either the remaindermen do not object OR
It is proven, that a substantial and permanent change in the neighborhood in tat the property has been deprived of any reasonable usefulness or productivity (house in the middle of a brewery). |
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Term
| What are the three types of future Interests? |
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Definition
Reversions, remainders, and executory interests.
Add to these as well: Right to re-entry and possibility of reverter. |
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Term
| Do defeasible fees create future interests? |
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Definition
Yes – determinable and condition subsequent create future interests in the grantor.
A f.s. determinable creates “possibility of reverter”
A f.s. subject to a condition subsequent creates a right to entry |
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Term
| Define what is meant by a reversion? |
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Definition
| A person owing an estate in real property can create and transfer a lesser estate (in terms of time he had the estate). What residue is left in the grantor becomes a reversion |
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Term
| O conveys Blackacre to A for life, and on A’s death to B if B survives A. |
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Definition
A has a life estate
B has a contingent remainder (it’s not vested – he must survive A)
O has a reversion (B’acre may revert back if B predeceases A) |
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Term
| Are reversionary interests vested or contingent interests |
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Definition
| Actually they are vested. The owner and the event by which the property reverts are certain to occur. Note: Reversionary interests are NOT subject to RAP |
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Term
| Are reversions transferable? Devisable by will? |
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Definition
Yes
Yes. They also will descend to heirs if the owner dies intestate |
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Term
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Definition
| A remainder is a future interest that has the capacity of becoming possessory (capable of becoming a present interest) upon the natural termination of the preceding estate. |
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Term
| What 4 rules MUST be met to create a remainder? |
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Definition
The remainder must have been created at the time of the original grant and with the same instrument (“…to A for life, then to B”)
Prior estates must be life estates (IOW cannot follow f.s. absolute which is indefinite)
It cannot cut short the prior estate – must become possessory at the natural termination (to A for life – or if A divorces, then to B this cuts short A’s estate)
There cannot be any “built-in” time gap |
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Term
| What makes a remainder an indefeasible vested remainder? (4 criteria) |
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Definition
Created in and held only in an ascertainable perso
Is certain to become possessory on termination of the prior estate
Must not be subject to being defeated or divested (Subject to Divestment)
Must not be subject to being diminished in size (Subject to Open) |
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Term
| What is a vested remainder Subject to Open? Give an example |
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Definition
A vested remainder created in a class of persons that is certain to take on the termination of the preceding estate but is subject to diminution by reason of other person becoming entitled to share in the remainder (i.e., join the class).
To A for life, and on A’s death, to her children in equal shares) |
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Term
| T’s will is read: “To my wife Rowena, for life, and on her death to my children in equal shares” |
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Definition
| May be tricky. This is an indefeasible vested remainder. The class of children cannot have their shares diminished because T cannot have any more children (“my children”). (e.g. it’s not a reminder subject an open) |
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Term
| What is a vested remainder Total Divestment? Give an example |
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Definition
A remainderman is vested – IOW he is ascertained and his interest is nor subject to any condition precedent. However, his right to possession and enjoyment is subject to defeat by the happening of a condition subsequent.
“To A for life, then to B for life.” A has a life estate, B has a vested remainder in a life estate (he is a certain person with a certain event to take the estate – the natural termination of A’s estate) but it is subject to total divestment. However it may be totally divested – if he does not outlive A. |
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Term
| What are the two ways to create a contingent remainder? |
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Definition
The remainder is subject to a condition precedent
The remainder is created in unascertainable – usually unborn – persons
So in every example as these questions. If you think it’s a condition precedent – check again (may be a condition subsequent subject to total divestment |
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Term
| In order for a remainder be vested the remainderman must be ascertained (thus it is a contingent remainder). Give an example where a conveyance will not be ascertainable |
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Definition
To A for life, and on A’s death, per stirpes to such of A’s descendant’s as survive her”
(No one is named and we will not know all of A’s descendants until she dies.) |
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Term
| “To A for life, then to A’s first born child” Vested remainder or contingent remainder? |
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Definition
| Either depending on the circumstances. If A has no thad a child, then it is a contingent child (The taker is unascertainable). When A has her first born child, then it’s a vested remainder. |
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Term
| “To A for life, then to A’s children” Vested remainder or contingent remainder? |
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Definition
| If A has no children, then it is a contingent remainder. When A has a child it becomes a vested remainder to that child subject to “open”. |
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Term
#1: “To A for life, and then on A’s death to B. If B predeceases A, on A’s death to C”
#2: To A for life, and on A’s death to B, if B survives A” |
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Definition
These are very confusing!
In #1, the contingency of B’s survival is expressed as a condition subsequent (therefore, B’s remainder is vested subject to total divestment).
In #2, B’s taking is expressed as the result of a condition precedent. (therefore it is a contingent remainder). |
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Term
| What is meant by destruction (destructibility) of contingent remainders |
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Definition
| At common law, a contingent remainder had to vest prior to or upon termination of the preceding freehold estate (so at some point it HAD to best). The doctrine of destructibility is no longer practiced in the majority states (Estate reverts and acts as a springing executory interest – e.g. they re transformed to a springing executory interest) |
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Term
| What is the doctrine of merger (?) |
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Definition
| Whenever the same person acquires all of the existing interests in land – present and future – a merger occurs and the person holds a fee simple absolute. Example: O conveys a deed to “A for life:. O now has a reversion; if O conveys his reversion (possible?) to A then A would hold a fee simple absolute. In states still recognizing destructibility a merger overcomes the effect of desctructibility (complex explanation on p. 11 of the outline) |
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Term
| What is the “Rule in Shelley’s Case” |
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Definition
At common law a conveyance like “O grants to A for life and them to the heis of A” the conveyance granted a life estate to A and a contingent remainder to the heirs (not ascertainable until A died). The Rule in Shelley’s Case removed the contingent remainder from the heirs replacing it with, instead, a vested remainder in fee simple in A. Watch out this is different from “to A and his heirs” which is the seminal fee simple absolute. That just creates a fee simple absolute to A. Here O is trying to create a remainder for the heirs.
Many states have abolished. Also be aware that it can be conveyed by will |
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Term
| What is the Doctrine of Worthier Title? |
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Definition
| The Doctrine of Worthier Title provides that one cannot, either by conveyance or by will, give a remainder to one’s own heirs. If one does attempt to create a remainder in one’s own heir, the law will render the remainder void and recognize, instead that the grantor retains a reversion. (“O to A for life and upon A’s death, to O’s heirs at law”). Unlike Shelley’s Case this still is recognized in most states – oher states recognize (A: life estate; O’s heirs: contingent remainder; O: reversion) |
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Term
| What is the characteristic of a remainder that is not shared with an executory interest (e.g. you know it isn’t a remainder) |
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Definition
| A remainder cannot cut short the prior estate – must become possessory at the natural termination of the preceding estate. If the condition conveys the estate prematurely then it is an executory interest. |
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Term
| What are two kinds of executory interests |
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Definition
A shifting executory interest – (Divests a transferee) divests the estate from one transferee to another transferee (O to A and his heir but if B returns to the country then to B and his heirs).
A springing executory interest – (Diverts a transferor) divest the estate from the transferor in favor of the transferee (O to A for A’s life and one year after A’s life to B this divests O of his remainder). |
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Term
| Can a remainder follow a fee simple interest? |
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Definition
| No – it can only follow a life estate. |
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Term
| There are rules as to whether conveyances are contingent vested or executory, etc. based on the order they are communicated in the conveyance. It’s very complicated so review p. 14 |
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Definition
| Enough to say that if B is a contingent remainder due to a condition precedent, if C’s conveyance would have been a vested conveyance due to a condition subsequent (say a vested subject to total divestment), C’s conveyance will be, ntl, a contingent remainder. |
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Term
| Can vested remainders be transferred inter vivos or devised by will? |
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Definition
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Term
| Can contingent remainders and executory interests be transferred inter vivos or devised by will? |
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Definition
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Term
| Can a transferable futue interest be reached by creditors? |
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Definition
| Yes, vested remainders, contingent remainders, and executory interests may be reached by creditors |
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Term
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Definition
| A “class” is a group of persons having acommon characteristic. When a class gift is made, the share of each class member is determined by the number of persons in the class. |
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Term
Who constitute “children” in a class gift to children?
What about class members “in gestation”? |
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Definition
The giftor’s children from all marriages as well as all adopted children. Outline states that the giftor’s stepchildren, grandchildren and nonmarital children are not included
Persons in gestation at the time set for distribution are included in the class if they were born 10 lunar months or 280 days after the time of distribution |
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Term
| How are “heirs” normally defined? |
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Definition
| Those persons who would take the named person’s estate according to the laws of descent in that state (if the person died intestate) |
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Term
| When does a “class” close? What is the “rule of convenience”? |
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Definition
The effect of closing a class is to assert that anyone who could join the class (in the case of children – one being born) will be excluded from sharing in the gift. This is the rule of convenience.
A class closes when some member of the class is able to call for a distribution of his share of the gift (for example if a gift is made outright in a will, the class loses as of the time of the testator’s death) |
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Term
| What happens if no one has joined the class at the time the gift is effective? |
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Definition
| All after-born members who would be eligible to be in the class will be included. |
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Term
| If future interests are descendible to the interest holder’s surviving heirs what happens if an heir does not survive the interest holder? |
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Definition
| Unless such descent is conditioned on the heir surviving the interest holder, then it descends to her heirs. (Ex: T devises B’acre to A for life and on death to her children at equal shares. A has three children A, B, C; however C predeceases A. A, B, and C’s estate will each have 1/3rd interest) |
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Term
| What is the Rule against the Perpetuities? |
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Definition
No interest in property is valid unless it vests, if at all, not later than 21 years after one or more lives in being at the time the interest is created.”
Another way to put it: An interest is void is if there is a possibility – regardless of how remote – that the interest will vest more than 21 years after some life in being at the creation of the interest. |
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Term
| What five future interest (per Prof. Whitman) are subject o the RAP |
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Definition
Contingent remainders
Executory interests
All class gifts
Options (unless the person is a leaseholder)
Rights of first refusal (unless the person is a leaseholder)
In an essay make sure to point out this is/is not an interest subject to RAP |
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Term
| What are some reforms in RAP? |
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Definition
Go ahead and name these.
The Wait and See Rule: Just as it reads, some states will require waiting until the end of the perpetuity period – if an interest actually vests (vested) then there’s no point to hold it invalid.
The If At All Rule” I’m not sure I getthis |
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Term
Remember the “strike-out” procedure Prof. Whitman suggests to determine what happens when RAP fails? How would that apply here:
Ben Jones to John Brown; provided, however, that if marijuana if ever smoked on the premises, then to Candy Barr. OR
Ben Jones to John Brown; for so long as marijuana is never smoked on the premises, then to Candy Barr. |
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Definition
Candy Barr’s (her heirs/issues) violates the RAP.
To John Brown; provided, however, that if marijuana if ever smoked on the premises, then to Candy Barr. The second phrase doesn’t make sense so we struck that too – leaving a fee simple absolute in John Browm
To John Brown; for so long as marijuana is never smoked on the premises, then to Candy Barr. In this case, the second phrase makes sense, so we leave it in creating a possibility of reverter to Ben Jones. |
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Term
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Definition
Executory interest that follows a defeasible fee.(unless there is a time limit)
Age contingency beyond 21 in Open Class (easy to spot)
The Fertile Octogenarian – also watch other “improbable births” for those outside of the stated fact pattern (My nieces and nephews who reach age 21 – could T’s parents have another sibling after T dies?)
The Unborn Widow: A to his widow for for life then to A’s descendant at widow’s death. No widow may be alive attime the interest was created. All lives in being die at time A dies and widow lives more than 21 years thereafter |
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Term
What is this an example of? When is it valid?
“Notwithstanding anything herein to the contrary, ny trust created hereunder shall terminate, if it has not previously terminated, 21 years after the death of the survivor of the following persons [descendants then living of the transferor]; and the remaining principla and undistributed income of such trusts shall be distributed to …” |
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Definition
This is a “perpetuities savings clause”
This clause works in a will but not in an irrevocable trust.
Cannot use animals or organizations as “measuring lives” and they must be reasonable (cannot use a phone directory). |
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Term
| What type of conveyance will be exempt from the RAP? |
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Definition
| Charity-to-charity gifts. |
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Term
Is the following valid under RAP?
“To A, and upon A’s death to A’s children for life, then to B |
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Definition
Yes (technically, it does not apply to RAP – thes are all vested) A is a life in being and has a vested life estate, A’s surviving children has a vested remainder (since A cannot have any children more than 2 years after his own death it’s OK), B will eventually get, therefore, it is presently vested (not contingent) and not subject to the RAP.
WATCH WHEN/IF VESTS – NOT WHEN IT BECOMES POSSESSORY |
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Term
What two types of future interests are created in transferees?
What three types of future interests are created in grantors? |
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Definition
Remainders
Executory Interests
Reversions
Possibility of reverter
Right of re-entry |
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Term
| If O grants Bl’acre to School for as long as it is used as a school and if not to A, does the conveyeance to A violate RAP? What if O deed his possibility of reverter to A? |
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Definition
In the first example, the conveyance to A is an executory interest and would be void under the RAP.
But this creates a possibility of reverter to O – which is VESTED – and therefore not subject to RAP. |
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Term
| Three step process for RAP analysis |
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Definition
First: determine what interests are created: look for the 5 interests subject to RAP
Second: determine the measuring lives that were existence when the conveyance was made (or when gifted if a will or trust)
Three: Analyze whether anyone interests will vest no earlier than 21 years following such measuring life (begin with the “easy” RAPS (unborn widow, open-ended executory interest)
GET POINTS: Mention RAP reform |
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Term
| What is a restraint on alienation of property? What is the general rule? |
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Definition
An express restriction on one’s transfer of property.
There is a general common-law rule against this (Rule Against Restraint of Alienation) |
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Term
What are the three common forms of restraints against alienation?
Which one, for certain, is void |
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Definition
Promissory restraint: Transferee may not transfer property without first getting consent from the grantor
Forfeitures: If transferee, himself, ever transfer the property, grantor may re-enter and terminate the estate
Disabling restraints: Under no condition may the transferee, himself, have the right to transfer the land. Any transfer is nullified.
Disabling transfer – they are contrary to public policy. (A totalprohibition of a specific right of state-hold, may shelter property from creditors) |
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Term
| To A, but if A ever transfer the land without my consent, I may re-enter and terminate the estate. |
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Definition
| A forfeiture (restraint on alienation) |
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Term
| To A, but if A ever wishes to transfer the land she must first obtain my consent. |
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Definition
| A promissory restraint on alienation |
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Term
| To A, but if A ever attempts to transfer the property without my consent, the transfer shall be null and void. |
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Definition
| A disabling restraint on alienation |
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Term
| We know disabling restraints on alienation are void, will promissory or forfeitures ever be enforced. |
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Definition
They can be but they must not unduly restrain alienation. Look for:
The interest is less than a fee simple (is it a life estate? A lease?)
The restraint is limited in time
The restraint may only apply to a limited group of people to whom it cannot be transferred
The restraint has a reasonable purpose (keep the estate in the family)
Look also for commercial restraints (should appear in the agreement)
Due on sale clauses
Right of first refusal
Equitable interests (“spendthrift clauses”; an actually valid disabling restraint) |
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Term
| What are the two types of concurrent ownership? |
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Definition
Tenants-in-common
Joint tenants with rights of survivorship |
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Term
| What is the default or presumed form of concurrent ownership? |
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Definition
| Tenants-in-common – would need to actually state that there is a rights of survivorship not to presume |
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Term
| What is the distinguishing feature in a joint tenancy? |
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Definition
| The right of survivorship |
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Term
| What are the 4 unities required for creation of |
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Definition
Unity of title (was passed by the same instrument)
Unity of time
Unity of interests (must be the same type of interest)
Unity of possession (identical rights of enjoyment – equal shares) |
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Term
| O conveys to A then, one week later, to B with right of survivorship to both A and B. Is this a vlaid joint tenancy? |
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Definition
| No. There is no unity of time. |
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Term
| If A and B want a JTwROS but did not accord with the “4 unities” what common strategy can they follow? |
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Definition
| They can transfer the property to a “straw-man” who will re-convey the property to accord with the “4 unities” |
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Term
| A and B are JTwROS and A decides to re-convey his property to C which will then sever the JT. Does he have to tell B first? |
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Definition
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Term
| A, B, and C are JTwROS in Bl’acre. C makes an inter vivos transfer of her undivided interest to D. Has this severed the JT? |
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Definition
| Only with respect to A and D. B and C still have a 2/3rd JTwROS. |
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Term
| Can a testamentary disposition terminate a joint tenenacy? For example, A, B, and C are JTwROS in Bl’acre. A dies and leaves her undivided interest to her Law School; B dies and leaves his undivided interest to his Church; C dies and leaves his undivided interest to the Art Museum. Who owns Bl’acre? |
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Definition
A JT is not terminated where a joint tenant executes a will devising his interest to another (and dies with such will). Since this interest does not arise until after the devisor’s death, the property has already passed to the survivors.
In this example, the Art Museum get 100% if Bl’acre. |
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Term
| What determines whether a mortgage severs a Joint Tenancy? (A, B and C are JTwROS and A mortgages her interest.) |
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Definition
| Whether the jurisdiction (state) follows the lien theory or the title theory of mortgage. Under lien theory, the mortgagee only has a lien and has not ascended to title so there is no destruction of unity title (Title theory stats will recognized JT was destroyed). Classic bar exam question, A takes mortgage and then dies, Bank tries to enforce mortgage on A’s third, but the property transferred to B & C the moment A died. |
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Term
| Another classic bar exam question: A, B, and C are JTwROS. A defaults on an obligation to X and X brings suit at which the court places a lien on A’s interest in Bl’acre. A then dies, and X tries to enforce the lien on A’s third. |
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Definition
The majority view is that a judgment lien is not a “conveyance” and does not destroy title.
The lien does attach to Bl’acre. When A dies, B may now be considered the sole owner, X has lien on nothing. X could have foreclosed on A’s interest in Bla’acre and force a judgment sale. The sale to X (or to any other Buyer to satisfy the lien) would destroy the JT. (X or Buyer and B are tenats-in-common). |
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Term
| If a JT leases her property interest, will that action sever the JT |
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Definition
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Term
| What is a tenancy-in-common |
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Definition
| A concurrent estate with no rights of survivorship. Each owner has a distinct, proportionate, undivided interest in the property. |
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Term
| Common bar review question: In a tenancy-in-common, which one of the “unities” still are required |
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Definition
| Unity of possession: each tenant is entitled to full possession of the whole estate. |
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Term
| A and B are tenants-in-common, A demands that her “half” of the tenancy exists along the north section of the property. Can she exclude B from the north section? What is this referred to? |
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Definition
No – each co-tenant has the right to possess sll portions of the property – no co-tenant has exclusive possession to any part.
This action would be referred to as a partial ouster. |
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Term
A and B are tenants-in-common, A demands that her “half” of the tenancy exists along the north section of the property. Can B bring possessory action?
What would B be entitled to if he could? |
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Definition
B cannot bring possessory action unless A actually ousts him. If B is put out of possession by A then B can bring possessory action against her.
The ousted co-tenant (B) is entitled to receive his share of FM rental value for the time he was deprived possessory interest. |
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Term
| A and B own a house as tenants-in-common. B moves out of state and A stays in the house. B sends A a letter demanding that she pay his half the fair market rental value? Can B enforce this demand? |
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Definition
| No. A has possessory interest of the full house |
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Term
| A and B own a house as tenants-in-common. B moves out of state and A stays in the house. A rents B’s part of the house to C for $500 per month. B sends A a letter demanding that she pay him the $500? A in turn demands that B pay half of the $300 monthly mortgage? Can either B or A enforce their demand? |
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Definition
| B may request half of the $500 rent received from C. B also is obliged to pay his half of the mortgage. |
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Term
| A and B are tenants-in-common, A demands that her “half” of the tenancy exists along the north section of the property. Can B demand a partition of the property into two separate parcels? Can B demand that the property be sold and the proceeds split between the two. |
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Definition
Yes – these actions may be requested as “partition”
Physical division of the property is referred to as a “partition in kind”. By judgment sale = “partition by sale” |
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Term
| In a partition by sale, what may either party request as part of the process? |
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Definition
| An accounting. This will clear the books on any uncollected or unreimbursed rents, taxes, repairs, mortgage. |
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Term
| Is an agreement provision prohibiting partition by tenants-in-common an unlawful restraint on alienation? |
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Definition
| Not really. It may be valid due to reasonability. Also courts are less concerned because it does not affect the parties’ ability to transfer the property. |
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Term
| If the parties are JTwROS, does partition sever the joint tenancy? |
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Definition
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Term
| A and B own a house as tenants-in-common. B moves out of state and A stays in the house. A makes various upkeep repairs to the house. May she request reimbursement from B |
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Definition
| Yes if necessary. A co-tenant who pays more than her pro-rata share of the cost of necessary repairs is entitled to contribution from the other c-tenants. |
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Term
| A and B own a house as tenants-in-common. B moves out of state and A stays in the house. A adds a back deck to the house. May she request reimbursement from B? If not can she ever realize any reimbursement? |
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Definition
| No, generally there is no right of contribution for the cost of improvements. At a later sale, A may receive any sale proceeds attributable to the improvement |
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Term
| A and B are concurrent owners of Bl’acre. Inadvertently, neither c-tenant paid the taxes on Bl’acre and the county placed it for sale in a judgment ale. A attends the sale and buys the property for a discount and takes sole title free and clear. Does he have any obligations to B? |
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Definition
| A owes a fiduciary duty to B and, must allow B to make his portion of the reacquisition costs and restore his name on the title. |
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Term
| What are the 3 kinds of tenant leaseholds |
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Definition
Tenancy for years (a.k.a. fixed term lease)
Periodic tenancy
At-will tenancy |
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Term
| What are the elements of tenancy for years? |
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Definition
It is a tenancy established for fixed duration
It terminates at the end of the fixed period witout requirement for notice |
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Term
| Can a tenancy for years actually be for less than one year? If it is for more than one year what is required? |
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Definition
| Yes – it simply is for a fixed duration so a tenancy for “years” could be for 10 days. However, if it is for more than one year, the SOF requires that it be in a writing. |
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Term
| The lease will continue until the Republicans no longer are in the governor’s mansion. Is that a valid lease? What kind? |
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Definition
| This would be a valid tenancy-for-years – the actual date of termination may be uncertain. All that is required is that the parties attempted to affix time period |
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Term
| Can a tenancy for years be subject to condition subsequent (or be determinable) |
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Definition
| The outline says “yes” (p. 34) |
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Term
| What is a periodic tenancy |
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Definition
| A tenancy that continues from one time period to the next similar time period (year-to-year, month-to-month). The termination date is uncertain |
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Term
| What are the three different ways a periodic tenancy can be created (EIO) |
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Definition
Express agreement:
Implication: look at words like “payable monthly” or I will pay you on the 15th of every month
Operation of Law:
Tenant Holdover – If T remains in possession after the termination of his tenancy period, LL may elect to treat T as a periodic tenant on the same terms asd the original lease.
Invalid lease – if the lease fails (looks like most obvious is failure for SOF) but the parties continue in a T-LL relationship with T making regular payments, there is a periodic tenancy |
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Term
| How are terminations of periodic leases handled? |
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Definition
Termination of periodic leases are NOT automatic – notice is required (and delivered).
Notice must be made a full period in advance of the period in question (e.g. a month-to-month lease must be made at least one month in advance)
The tenancy must terminate at the end of the natural lease period (e.g. at the end of the month it took effect) |
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Term
| For a periodic tenancy, notice must be made a full period in advance of the period in question. Any exceptions? |
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Definition
| For a periodic tenancy of year-to-year, only six months notice is required |
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Term
| What is a tenancy at will? |
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Definition
| An estate in land that is terminable at the will of either party (T or LL). BOTH parties must have the right to terminate thelase at will |
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Term
| If there is a periodic lease which gives the LL the right to terminate at will, what approach will the courts take to enforcing it? |
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Definition
| If the lease gives the LL a right to terminate at will, the law will infer a similar right on the T and thus create a tenancy-at-wili |
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Term
| If a LL conveys a tenancy to a T “for so long as the tenant wishes” is a tenancy-at-will created? |
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Definition
No, not according to the outline (p. 36)
LL is presumed to have created a life estate (or possibly a fee simple). Outline also states that if it is not in writing then it will be a tenancy-at-will |
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Term
| Must the parties expressly indicate that they have a tenancy at will? |
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Definition
Yes.
If the agreement does not expressly indicate tenancy-at-will, then a court will generally presume regular rent payments have created a periodic tenancy |
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Term
| Must a party give notice of termination in a tenancy-at-will |
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Definition
| According to the outline, No, though a reasonable demand to quit the premises may be required. (p.36) |
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Term
| How will a tenancy-at-will be terminated by operation of law? |
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Definition
Either party dies
The tenant commits waste
The tenant assigned his tenancy
The LL transferred his interest in the property
The LL executed a term lease with a third party |
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Term
| If a T continues in possession after the termination of his right to possession what 2 things can the LL do? |
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Definition
Eviction: May treat the hold-over T as a trespasser and evict him (a.k.a. unlawful detainer)
Bind the T to a periodic tenancy: |
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Term
| Particularly in residential leases, what period do courts normally determine a hold-over T is bound to? |
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Definition
| Month-to-month (but not all courts – so could be on the hook for an annual lease) |
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Term
| T has a fixed term lease for $500/month. LL informs T that when he renews his lease, the rent will change to $600/month. T fails to move out at the end of the lease. If LL decides to enforce a new periodic lease, how much will the rent be? |
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Definition
$600/month. If the T received notice, then he must acquiesce to the new terms.
Provided the terms are not unreasonable. |
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Term
| Name three situations where a holdover tenant will not be bound to a new tenancy |
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Definition
He overstayed his original lease by only a few hours
His holdover was a result of circumstances beyond his control (ordinary fact pattern is T was confined in the hospital)
A seasonal lease |
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Term
| If the LL chooses to evict the holdover T, may she simply enter the property and remove the T and his possessions? |
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Definition
| This would be unwise. Most states prohibit this action – termed as “self-help” holding that the LL only has a legal right to evict (not eject) and that he must enforce that right in court. |
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Term
| What are the duties of the Tenant to the Landlord |
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Definition
Duty to pay rent
Duty not to commit waste
Duty not to use the premises for an illegal purpose |
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Term
| What is the Doctrine of Waste |
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Definition
| A possessory estate holder may not damage or take action/omission that would injure the interests of the person(s) who own a future interest in the land |
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Term
| Is a tenant under any obligations under the Doctrine of Waste |
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Definition
| Yes – pretty much along the same lines as the life estate holder |
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Term
| Does the T have a duty to make repairs to the property he is leasing? |
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Definition
Generally yes, under the concept of permissive waste. The T has a duty to the LL to make “orinary” repairs to preserve the property in the same condition in which it was at the commencement of the lease term.
He also must make necessary repairs to prevent damage from the elements (“wind and water tight”) |
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Term
| Under CL, is a tenant obligated to future interests in acts of ameliorative waste? What remedy may be sought? Has this changed under any modern views? |
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Definition
Yes. Even if the substantial alterations resulted in increased value to the property.
If he does, he is liable for the cost of restoration should he commit ameliorative waste
In the modern view, if the demised premises have been significantly reduced in value, courts wil permit changes as long as:
The change increasesthe value of the oremises
It had been performed by a long-term tenant (outline: 25 years)
The change also reflects a change in the nature and character of the neighborhood. |
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Term
| What duties exist if the premises in a lease are destroyed through no fault of either T or LL? |
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Definition
There is no duty to restore the premises.
At CL, T still had the duty to pay rent, but the majority of states now ive the tenat the option to terminate the lease (again, provide they were destroyed through no fault of T) |
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Term
| What remedy is available to LL if the T uses the property for illegal purposes. What are the elements of purposeful illegal use? |
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Definition
If T uses the premises or illegal purposes, the LL may terminate the lease and recover damages. Alternatively he may seek injunctive relief (and damages)
The LL cannot be party to the illegal use
The illegal use must be continuous (not occasional)
If illegal use was cut off by public authority, LL must take remedial stateps within a reasonable time period |
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Term
| What are LL’s remedies if T fails to pay rent |
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Definition
Eviction for unlawful detainer. (For the vast majority of states)
Sue for rent |
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Term
| If T unjustly abandons the LL’s property, what remedies are available to LL |
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Definition
Do Nothing: He may let the premises lie idle and T continues to owe accumulating rent. However, if T tenders an acceptable substitute tenant, LL has obligation to make reasonable efforts to mitigate his damages by reletting.
LL may repossess and relet the premises |
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Term
| If LL repossesses the property and relets it, (after T has discontinued paying rent) what damages does T owe to LL |
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Definition
It depends or not as to whether a surrender has occurred and been accepted. A surrender has been deemed to occur and accepted if the LL resumes possession (rentering to make repairs or get back keys may constitute acceptance)
If LL accepts surrender, then T is no longer obligated for any rent liability accruing after acceptance. If LL does not accept the surrender, T is responsible for the difference between the promised rent (?) and the rent received from the new tenant (alternative, fair rental value). |
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Term
| What are the Landlord’s duties to the Tenant |
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Definition
Duty to Deliver Possession of the Premises
Duty of Quiet Enjoyment
Implied Warranty of Habitability |
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Term
| What is the general approach taken by the majority of courts/states in imposing a duty on the LL to deliver possession of the premises to T |
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Definition
The L must put the T in actual possession of the premises at the beginning of the leasehold term (not merely give him legal possession). This means that the LL must evict all holdover tenants.
T may impose actual damages (more expensive interim living arrangements) and consequential losses (business losses) |
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Term
| What is the LL duty not to interfere with quiet enjoyment |
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Definition
| There is implied in every lease, a covenant that neither LL nor someone with paramount title will interfere with T’s quiet enjoyment and possesson of the premises. |
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Term
| In what three ways might a LL breach a T’s covenant to quiet enjoyments? |
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Definition
Actual eviction: Occurs when the LL or another with paramount title excludes the T from the entire leased premises. (Terminates the T’s obligation to pay rent)
Partial actual eviction: If such part eviction is rendered by the LL, then T has no obligation to ppay rent on the entire leasehold. If by the 3rd party, T is still liable for that portion of the fair rental value for what he does have possession.
Constructive Eviction: When the LL acts or fails to act in providing some service that he has a legal duty to provide and thereby makes the property uninhabitable (see also Implied Warrantuyof Habitability – but note differences, as well) |
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Term
| What elements must be satisfied in order for a tenant to impose remedies under Constructive Eviction |
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Definition
Acts causing the injury to the T were caused by the LL (or by those acting on his behalf) – IOW can’t be caused by neighbors or strangers
The resulting condition must be so bad that a court could conclude convincingly that the premises are uninhabitable (think flooding, no heat in the winter)
The T must move out of the premises (truly evicted because of uninhabitability). Failue to do so within a reasonable time may waive the claim
T may terminate the lease and sue for damages. |
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Term
| What is the Implied Warranty of Habitability? How does it differ from Constructive Eviction? |
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Definition
Similar to Constructive Eviction, the LL usually fails to act in providing basic services for which he has a legal duty to provide, thereby making the property uninhabitable.
The standard for IWH are more favorable and easier to prove than Constructive Eviction – must be suitable for human residence – use the housing code
It is only available for residential tenancies
The remedies available are broader |
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Term
| What rememdies are available to tenants for breach of implied warrant of habitability? |
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Definition
Tenant may move out and terminate lease
Tenant may make repairs airectly and offset the cost from future rent obligations
Tenant may abate rent to some measure of reduced fair market rental value
Damages |
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Term
| What is a retaliatory eviction? |
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Definition
If a tenant exercises the lrgal right to report housing or building code violations (or any other rights provided under a LL-T ordinance), the LL is not permitted to terminate the tenant’s lease in retaliation
Look for other “retaliatory” actions ( raising rents depriving other tenant services).
Any of these actions are presumed retaliatory in motive if taken within 90 to 180 days after the T exercises his rights. |
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Term
| Is a tenant entitled to transfer his leasehold interest if he chooses? |
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Definition
| Yes unless there is some restriction that restrains such alienability (see restraints on alienability) |
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Term
| What’s the difference between assignment of a lease and subleasing |
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Definition
| If T transfer the entire remaining term of his lease – it is an assignment of the leasehold; If he retains any part of the leasehold, then it is a sublease. |
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Term
| Must an assignee take the lease under the same terms of the lease? If he (assignee) breaches the lease what rights does the LL have? Against whom? What rights does the T have? |
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Definition
| The assignee must take the lease on its original terms. The assignee and the LL are in direct privity (“privity of estate”) so if there is any breach of the lease the LL can proceed directly against the assignee. LL may also proceed against original T for privity of contract. T is entitled to re-enter and terminate the assignment for a breach |
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Term
| What types of matters can a LL bring against an assignee for breach? |
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Definition
| Any covenant of the lease that “touches and concerns” the land (known as covenants that run with the land). “Touches and concerns” means |
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Term
| Technically, does an assignee owe the rent directly to the LL. |
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Definition
| Yes – the covenant to pay rent run with the land meaning that the assignee “in privity of estate” with the LL. |
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Term
| If the first assignee (A1) later re-assigns the lease to another assignee (A2) does his privity of estate end with the LL. |
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Definition
| Yes. A1 is not liable for A2’s future failure to pay rent. However, he still may be in “privity of contract” with the LL if he made statements that implied he was liable to the LL for payment of the rent. |
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Term
| Is a sublessee personally liable to the LL for rent |
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Definition
| No. He is, however, liable to pay rent to the original leaseholder |
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Term
| If sublessee is not personally liable for the rent – and the rent doesn’t get paid (say, by the sublessee) can the LL terminate the sublease |
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Definition
| Indirectly, yes. A LL can terminate for breach of covenant (in this case no one paid the rent) and terminate the lease. Once the loease is terminated, the sublease is as well |
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Term
| Is it possible for the sublessee to be personally liable to the LL on a sublease? |
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Definition
| Yes – the sublessee may assume the rent covenant. Any covenant assumption must be expressed (writing? SOF?) which makes the LL a third party beneficiary. |
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Term
| Can a lease contain a covenant restricting or prohibiting assignment or sublease? |
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Definition
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Term
| Can a restriction against subleases in a lease, be construed to include a prohibition on assignment of leases |
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Definition
| No – restrictions/prohibitions on on subleases and assignement are construed strictly against the LL |
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Term
| Is it possible to waive a restriction against assignments & subleases in a lease |
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Definition
Yes.
If the LL knows about the assignment ans does not object. Look for the obvious here – accepting rents from the assignee. |
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Term
| T holds a lease in estate with LL. Although there is a restriction on subleases, T subleases the estate to A1 with knowledge and consent of LL. Can A1 sublet to A2? |
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Definition
| Yes – if the LL consents to one transfer he cannot object to future transfers unless he expressly reserves the rights to do so. |
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Term
| What happens to a leasehold taken by Eminent Domain? |
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Definition
The leasehold and the reversion have merged in the condemnor meaning there no longer is a lease estate
For partial taking, the T is still obligated to pay rent and she is entitled to a portion of the takings compensation |
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Term
| What is the general rule, at common law, concerning a LL’s duty to a the T or third parties |
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Definition
| A landlord has no duty to make the premises safe (always start with this) |
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Term
| What is the modern view concerning a LL’s duty to a the T or third parties |
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Definition
| A LL has a general duty of reasonable care with respect to residential tenants. They have a duty to tenants and their guests from the LL’s ordinary negligence with respect to a known defect. (A defect is expected to be known if it existed before the lease to the tenant. If it is provent the defect arose after the T took possession, than the LL will not likely be held liable. |
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Term
| What are the 6 exceptions to the rule that a landlord has no duty to make the premises safe |
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Definition
A latent, dangerous defect
Common areas
Public use
Furnished Short-Term Residence
Negligent repairs
A covenant to make repairs |
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Term
One of the steps leading to the porch of a leased house is rotten and dangerous, but the step appears to be sound. T steps on it and it gives way breaking T’s leg. Would LL be liable for T’s injury?
LL knew of the rotten step and alerted T of the defect. T acknowledges his being informed. A week later, X comes over. The step gives way breaking X’s leg. Would LL be liable for X’s injury? |
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Definition
The broken step is a latent, dangerous defect; however, T would have to prove 1) that LL knew or had reason to know of the defective step and 2) LL failed to disclose the defect.
In the second scenario, the outline indicates that T (not LL) would be liable to X. (Note LL still might be liable to X if LL covenanted to repair) |
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Term
| What is a “common area” What duty does LL have to T with regard to common areas |
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Definition
A common area is that part of the structure that not leased to an individual tenant and remain under the control of the LL (elevators, hallways, stairwells).
A LL has a duty of reasonable care with respect to common areas (similar to the duty of an owner-occupier to a guest). Look for burned-out lights, water/ice on the steps. What about third parties? |
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Term
| T rents a furnished summer cottage for two months during the summer. After arriving, T is injured by a loose floorboard. Is LL liable for the injury. |
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Definition
| Yes. Many jurisdiction hold that the LL is liable when the property is 1) furnished, 2) the lease is short term – like three months and 3) there is a defect in the premises causing the injury. |
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Term
| LL owns a commercial building which he leases to T so T can operate her salon. A client, C, is injured when a faultily-hung air duct falls and strikes her. Can LL be liable? |
|
Definition
Yes – a landlord is liable for injuries to members of the public (public use) if it is proven that at the time of the injury:
LL knows o should know of a dangerous condition
LL has reason to believe that T will admit members of the public before repairing the defect
LL failed to repair the defect |
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Term
| A clause in the lease reads: “Landlord will keep the premises in good repair” T is injured by a broken, live electrical outlet. Is the LL liable to T for the injury? |
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Definition
| Yes – the lease contains a covenant to make repairs |
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Term
| There is no clause in the lease that obliges the LL to keep the premises in good repair. NTL, the LL attempt to make a repair to a plumbing valve. His attempt fails, and the T is scalded. Is the LL liable to T for the injury? |
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Definition
Probably yes – the LL is liable for attempted repairs that are done negligently.
Note this breach may also apply if the LL put up a railing that gave the appearance of suitability but were unsafe. |
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Term
| In what 3 circumstances might a duty arise to a LL with regard to security? |
|
Definition
When such security obligations appear in thehousing code
Whn the LL failed to maintain ordinary security measures (working locks to and in the building)
Where the LL has advertised extraordinary scurity measures and then failed to provide them (look to non-working surveillance cameras or missing doormen) |
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Term
|
Definition
| A chattel that has been affixed to land so that I has ceased to be personal property and has becme part of the realty |
|
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Term
| What is the difference between “common-ownership” fixtures and “divided ownership” fixtures? |
|
Definition
“Common-ownership” fixtures involve situations in which the person who brings the chattel onto the land owns both the chattel and the land.
“Divided-ownership” fixtures involve situations in which the person who owns and installs the fixture does not own the land; or vice versa (the person who owns the land does not own the fixture. ( common in this grouping is when a seller has a security interest in the fixture). |
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Term
| What is the rule concerning chattels that are incorporated into the structure of the leased premises |
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Definition
| Where items become incorporated into the realty so that they lose their identity, they become part of the realty. Think individual bricks that become part of the building. |
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Term
| If the chattel has not been “incorporated into the structure” what 4 criteria are used to determine whether it becomes a fixture? |
|
Definition
The following criteria are used to determine the intent of the “annexation” (Outline often refers to as the “intention test”
The nature of the article (how essential is it use to the normal use of the premises)
The manner in which the article is attached to the realty (the more substantially attached, the more likely it is a fixture
The amount of damage that would be caused to the structure, if the chattels were removed.)
The adaptation of the item to the use of the realty (think wall-to-wall carpeting here, a doorbell chime). |
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Term
| Does an item actually have to be affixed to the structure to be considered a fixture? |
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Definition
| Not at all. F the items is so uniquely adapted to the real estate, that it makes no sense to separate it. (Keys to the doors, carpeting cut to shape a uniquely designed room) |
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Term
| What is the test for determining whether a particular item of chattel is “part of the realty” is it is not expressly indicated in the transfer |
|
Definition
| The 4-part intention test is used, then the question is asked whether a reasonable purchaser would expect the disputed item was part of the realty. |
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|
Term
| Can a fixture be implied to be included as security for a mortgage given on the property? |
|
Definition
It depends:
First on when the fixture was added to the property (an after-mortgage fixture would be considered a windfall to the mortgagee). This rule, though, is not universal – and some courts may apply the intention test.
Were the chattels, themelves, subject to an Article 9 security interest (under a divided-ownership question |
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Term
| What is the “trade-fixtures’ exception for fixtures that are owned by parties other than the landlord/owner. |
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Definition
| This is an American exception to the English CL rule that ownership of such chattels had passed to the LL. In this variation under the intention test, it would be reasonably argued that it was the chattel owner’s intention to take the chattels when they left the land and not permanently annex them. |
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Term
| Under a “divided-ownership” type fixtures question, the owner of the chattel would be expected to be able to take the chattel with her (no intent to annex) unless what two possible exceptions existed |
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Definition
If there was an expess agreement between the LL and the T as to wther the chattel annexed was intended to be a fixture
(More common) If by removingthe chattel, the chattelowner woud cause substantial damage to the premises (or virtually destroy the chattel). |
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Term
| When must a chattel/fixture be reoved by the tenant? |
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Definition
| By the end of the lease term. Failure to do so may signify the chattel becomes property of the LL. |
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Term
If a licensee annexed chattels to the property, may she remove them?
What about a trespasser? |
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Definition
As a general rule – yes. Please note the licensee is subject to a duty to repair any damage caused by the removal of the chattels
A trespasser (remember TP can include an AP who has not established possession) lose their annexation where or not it was intalled in good faith. (Good faith trespasser may be entitled to compensation) |
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Term
| Bank receives a mortgage from Mortgagor. In turn Mortgagor leases the land to Tenant. Tenant annexes a trade-fixture which he is entitled to remove at the end of lease-term with Mortgagor. Mortgagor default on the note. May Bank foreclose on the trade-fixture? |
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Definition
| No – the Bank cannot have an greater rights to the trade-fixture than the Mortgagor did |
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Term
| Landowner lease property to Tenant. Tenant affixes a trade-fixture to the property which he is entitled to remove at the end of lease-term with Mortgagor. Bank receives a mortgage from Landowner/Mortgagor. Mortgagor default on the note. May Bank foreclose on the trade-fixture? |
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Definition
It depends.
If the Bank had notice of the trade-fixture agreement at the time of the mortgage, in all likelihood, No. If Bank did not – it’s possible that Bank relied on the existence of the trade fixture as part of the security for the debt – and may possibly include in judgment sale. |
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Term
| O owns a building in which she operates her law offices. After a time, O borrows money from Bank, giving a mortgage on the building. Next, O uses only some of the funds to purchase baseboard heaters for the building. The cost of the improvements still carried a balance, and O gives an Article 9 security interest in the heaters to Finance Company (who financed the purchase of the heaters). O defaults on both the mortgage and the finance contract. Which can foreclose on the heaters? |
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Definition
Depends:
The general rule is whichever party records their lien first.
Exception: Under Article 9, the Finance Company issued a “purchase money security interest” and may have priority on the heaters provided they filed heir interest as a “fixture filing” within 20 days from the date the fixtures are installed. |
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Term
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Definition
| A non-possessory right which entitles one to use land possessed by another (known as a servient tenement). (May not possess or enjoy the land). |
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Term
| What are the two types of easements |
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Definition
Easement Appurtenant
Easement in Gross |
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Term
| What are the two forms of easements (their intended use) |
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Definition
Affirmative easements: Entitles the holder to enter upon the servient tenement and make affirmative use of it. Therefore, it privileges the holder of the benefit of making use of the servient tenement
Negative Easement: Does not grant any right to use or entry on the land. Instead, it provides the holder the privilege to compel the servient tenement to refrain form engaging in activities upon the servient tenement. |
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Term
| What is an Easement Appurtenant? |
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Definition
| An easement that involves 2 parcels of land. The easement deems the right of special use benefits to the holder of the easement (the dominant tenure) over another’s land (the servient tenement). |
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Term
| In an easement appurtenant, must the easement provide that use of the servient’s land benefit the dominant tenement in the use and enjoyment of her land? |
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Definition
Yes.
It s not enough that the easement extends a benefit. Example from outline, A owns Lot 6 and B owns the adjacent Lot 7. A grants to B the right to use part of Lot 6 to mine coal. The grant is not a easement appurtenant because the benefit grante was not related B’s physical use or enjoyment of Lot 7. |
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Term
| Does an easement appurtenant run with the land? |
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Definition
Yes
Dominant tenement: All who possess or subsequently succeed to title to the dominant tenement become by virtue of fact of possession, entitled to the benefit of te easement. The easement need not be mentioned in the deed.
Servient tenement: the new owner tales the land subject to the the burden of the easement; UNLESS she is a BFP for value w/o notice. |
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Term
| How might it be argued that a BFP had notice of an easement appurtenant? |
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Definition
Three ways:
Actual knowledge
Notice form the visible appearance of the easement
Notice in the public records |
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Term
| What is an Easement in Gross? |
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Definition
| An easement that involves a single parcel of land (servient tenement). The easement in gross is created where the holder of the easement interest requires a right to special use that is independent of any possession or use of his land. |
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Term
| What are some examples of easement in gross? |
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Definition
Personal easement of gross: O gives A the right to fish in his lake
Commericila easement of gross: Utility easement for power lines) |
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Term
| How are easements created? |
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Definition
P-I-N-E
Express Grant: The Statute of Frauds apply so an easement must be writing. And signed by the grantor. According to Prof. Whitman it should state there is an easement, the location of the easement, the scope of the easement, and duration.
Implication: These arise in two circumstances, 1) where a use existed before the dominant and servient tenements were severed thus intending the use to continue as an easement (quasi-easement) and 2) easement by necessity
Necessity – see implied easement
Prescriptive Easement: Strongly reminiscent of adverse possession in which the adverse use establishes an easement |
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Term
| In addition to an express grant for an easement, how else might one expressly create an easement? |
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Definition
| Express reservation: Where an owner conveys title to another but reserves the right to use the tract for a special purpose after the transfer. Currently, one cannot grant an easement by reservation that creates right to a third party. |
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Term
| What is a “quasi-easement”? |
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Definition
| These arise as implied easements and existed before the dominant and servient estates were formed by division. Prior to the tme the tract is divided, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part”. If it is determined that the aprties intended this use to exists after the division of the propertoes, the courts may find an implied easement. (Called a “quasi-easement” since its use could not have been an easement in the prior united property (can’t have an easement on your own property. |
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Term
| What are the elements of a “quasi-easement” |
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Definition
The use giving rise to the easement existed ath the time the parcel was divided. It was apparent and continuous in use.
Use is reasonably necessary to the enjoyment of the dominant parcel (look for factors, convenience, cost of alternative, etc.) |
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Term
| Name two other form of implied easements |
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Definition
Profit a prendre: If a landowner grants a profit a prendre to another to remove valuable product of the soil – there is an implied easement to pass over the surface of the land and reasonable use of it as part of extracting the resources.
Subdivision plat – use of streets to reach their propery. |
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Term
| What is easement of necessity |
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Definition
Technically another implied easement.
When the owner of a tract of land sells the land, thus depriving one lot of access to a public road or utility line, a right of way by absolute necessity is created by implied grant or reservation over tht land in order to get access. |
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Term
| In an easement of necessity, who determines the location of the easement? When does the easement terminate? |
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Definition
The servient tenement has the right to locate the easement – provided the location is reasonably convenient
An easement by necessity terminates when the necessity ceases. Necessity need not be convenient. |
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Term
What are the elements for creating a prescriptive easement (easement by prescription).
In which element does it differ from adverse possession |
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Definition
Open and notorious: User cannot conceal his use
Continuous use: As with AP, this is regular use as an owner normally would (need not be constant, but cannot be intermittent)
Adverse: Must not be with express permission of the owner
Exclusive use is NOT an element! Typical example – common driveway |
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Term
| When can’t a prescriptive easement be acquired? |
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Definition
Outline says publicly lands (this must be like the AP rule that one cannot acquire AP in government lands).
Cannot acquire a negative easement by prescription |
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Term
| In 1905, X received an easement to drive his horse-drawn wagon across Y’s property to get to the only public road. Today, the X heirs still need to use the easement to drive their car over the same route. Is that within the scope of the 1905 grant |
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Definition
| Most courts will says “yes” though they may struggle if the grant said only “one-horse”. |
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Term
| In 1905, X received an easement to drive his horse-drawn wagon across Y’s property to get to the only public road. Today, the X heirs still need to use the easement to drive their car over the same route and run power, cable, and telephone lines. Are these within the scope of the 1905 grant? |
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Definition
| Most courts will says “yes” to the use of cars but will says “no” to the changed use of utilities. (Keep in mind necessity if it’s available). |
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Term
| For quasi-easement and easement by necessity, how is the scope of the easement determined? |
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Definition
| Since these are not created under an express agreement, the court must consider the circumstances and the extent of the necessity. |
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Term
| Who has a duty to make necessary repairs to the easement? |
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Definition
| If the holder of the benefit is making exclusive use of the easement, then he has the obligation. When both the dominant and servient estates use the easement, repairs will be apportioned |
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Term
| A has an easement to use B’s property – Blackacre – to access a pubic road. Later, A subdivides Blackacre to three parcels and grants them to C & D. Will C & D succeed to the original easement benefit? |
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Definition
| It will depend on to what degree the changed circumstances burdens B. Courts will look to the extent and degree thatthoriginal parties envisioned how much B would have been burdened – and whether the current use unreasonably burdens B. |
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Term
| When is an easement surcharged? |
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Definition
| When the easement is being used outside of the scope of easement. The remedy of the servient is an injunction of the excess use and possible damages – but not the termination of the easement. |
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Term
| What are the (9) ways in which an easement is terminated? |
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Definition
“Up East, Dr. C.!”
On a stated condition
Unity of ownership
Release
Abandonment
Estoppel
Prescription
Necessity ends
Condemnation destruction (of the servient state) |
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Term
| Can a an easement contain a stated condition likening to a f.s. determinable? |
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Definition
| Yes. An easement can terminate under a stated specific condition or under conditions like “so long as repairs are maintained” until the dominant tenement is used for commercial purposes” |
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Term
| Given example where an easement may not be extinguished by unity of ownership when both properties are acquired by the same owner. |
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Definition
If the holder of the servient tenement acquires the easement interests, the title acquired must be equal or greater than her interest or estate in the servient tenement. Otherwise it’s an incomplete acquisition of title and the easement is not terminated.
Ex: A is the owner of the servient tenement in fee simple. A conveys a 10 year fixed term tenancy in the s.t. to B. Unless there is a stated condition limiting the easement for less than 10 years, there is no extinguishment due to unity. |
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Term
| If an easement exists but then is extinguished under unity of ownership can it be revived if there is a later separation of ownership? |
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Definition
| No – the extinguished easement cannot be revived without a recognized form of creation. Watch out for tricky questions (easement by necessity). |
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Term
Can a dominant tenement convey the easement to a third person without conveying the land? What is the obvious exception?
What about an easement in gross? |
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Definition
Generally no.
Obviously, the dominant tenement may convey the easement back to the servient tenement – known as a release. Releases MUST be conveyed with all the same formalities that the easement was created and on concurrence of both parties (note: acquisition can be made by prescription or by estoppel)
An easement in gross is also inalienable. A commercial easement in gross can be transferred and it also may be released to the servient tenement |
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Term
| A has granted an easement to B in order for B to use a driveway to access a public road. B uses the road for about three years. When an extension of the public road is constructed to pass along the south border of A and B’s property, B accesses the road directly and after a while stops using the original easement. When A asks about the disuse of easement, B tells him that he has been using his own driveway. Since B has abandoned the easement, may A put a fence across it? |
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Definition
No. This is a trick question. B hasn’t abandoned the easement. Non-use of the easement and even words describing non-use is not sufficient. There must be a physical act of abandonment or an express agreement of release. If B were to build a garage over the road or fence off himself and make it unusable, it’s possible that courts may view the easement was abandoned.
Generally – watch out for hypos where someone is building a fence over the easement – and look for statutory period for prescription or AP. |
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Term
| What are the 3 elements of termination of an easement by means of estoppel |
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Definition
Some conduct or assertion by the owner of the easement (permission for different use or improvement of the easement)
A reasonable reliance by the owner of the servient tenement
Reliance is also coupled with a change in position |
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Term
| We know that an easement can be created by prescription; can it be terminated by prescription? |
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Definition
Yes
Long continued possession and enjoyment of the servient tenement in way that would indicate to the public that no easement right existed will end the easement right.
Look for the statutory period in the question then conduct the OC_AN analysis |
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Term
| What two changes in character in the servient tenement may terminate/extinguish an easement |
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Definition
Condemnation: When the servient tenement loses non-possessory element in the estate. DT might get compensation
Destruction of the servient estate: Usually a building |
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Term
| What is a license and how does it differ from an easement? |
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Definition
| A privilege to go onto the land of another (licensor) that is revocable at will of the licensor). Therefore, the licensee does not acquire an interest in the land, only a privilege to use it. (also SOF does not apply) |
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Term
| Can a license be assigned? |
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Definition
| No – it is personal to the licensee and is not alienable. |
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Term
| In what ways can a license be terminated? |
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Definition
It may be evoked at will by the licensor
Revocation can be expires or implied by action that interfere with licensee’s use of it.
Licensee may also surrender the license at will
Licenses terminate as operation of law when licensee dies
Also – possible that attempt to transfer a license (by the licensee) may act to terminate it. |
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Term
| Can revocation of license, nonetheless, result in damages for the licensee? |
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Definition
| Yes, when it is determined that the revocation amounts to a breach of contract. This does not deprive the licensor her right to revoke however. Ex: LR sells a ticket for $50 to LE to an NFL game. At half-time, LR kicks LE out of the stadium. LR has right to do so – but LE might be able to sue for $25 |
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Term
| An easement for more than one year requires a writing per the SOF. If A makes an oral easement to B to use part of A’s land for a garden, what is the result? |
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Definition
| B has a license to use the land and may continue to use the land as such until the license is revoked by A. Watch for irrevocability of license under estoppel theory or cause of action for breach of K (The night before harvest, A attempts to revoke B’s license) |
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Term
| Under what two principles may a license be made irrevocable? |
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Definition
Estoppel theory – detrimental reliance on the license
License coupled with an interest |
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Term
| Under what circumstances might a license be considered to be “coupled with an interest” (3 Examples) |
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Definition
| Vendee of a chattel: If the LE has purchased a chattel located on LR’s land, LE has a license to enter LR’s land to remove it Termination of tenancy: Right to enter and remove personal property (subject to reasonability) Inspection of waste: One with a future interest has the right to enter to determine whether waste is being committed (subject to reasonability) |
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Term
| What are “profits” and how might they differ from easements |
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Definition
Profit a prendre is a non-possessory interest in the land for the purpose of removing soil or “substance of the soil” (minerals, lumber).
Profits are construed to be easements in gross |
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Term
| What is the difference between an exclusive profit and a non-exclusive profit? How are profits construed? |
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Definition
An exclusive profit means that the grantee has the sole right to remove the resources (even to the exclusion of the grantor)
Ordinarily, profits are construed to be non-exclusory |
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Term
| To what will the courts look to determine apportionment of a profit a prendre appurtenant if the grantee subdivides his tenement |
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Definition
| Same as with easement we are looking at an inordinate burden placed on the servient tenement. (The rocks removal hypo is very helpful here – p. 59) |
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Term
| To what will the courts look to determine apportionment of a profit a prendre in gross if the grantee subdivides his tenement |
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Definition
| Whether or not the profit was exclusionary or non-exclusionary. If non-exclusionary, the profit cannot be transferred to others. The courts will also consider the burden placed on the servient tenement. |
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Term
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Definition
| A written promise to do something on the land or a promise to refrain from doing something |
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Term
| Do covenants run with the land? |
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Definition
| Yes – for both enforcing and being burdened by the covenant. |
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Term
| What elements are required for a covenant to run with the land to the burdened party? |
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Definition
Note” to run with the land, it must be determined that the covenant
1) was intended to do so,
2) that there was notice (to a BFP),
3) and that there was horizontal privity between the parties making the covenant (that is the 2 shared some interest in the land independent of the covenant by means of an easement or deed)
4) and that there was vertical privity between the parties making the covenant (the agreeing party must hold the entire durational interest held by the covenantor at the time she made the covenant)
5) The covenant must be the type that touch and concern the land |
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Term
| A and B are simply next-door neighbors. One day B promises to A that he will not raise pigs on his property. B sells his property to C. can A enforce a covenant to prevent C from raising pigs; that is does the covenant meet the test for horizontal privity? |
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Definition
| No. A and B shared no interest in the land independent of the covenant and the burden was imposed on C by easement or a deed. |
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Term
| What is he difference between an affirmative covenant and a negative easement? |
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Definition
| Both must at least touch and concern the land. In a negative easement, the covenant must restrict the holder of the servient estate in his use of that parcel of land In an affirmative easement, the covenant must require the holder of the servient estate to use of that parcel of land in a certain way. See examples on p. 61) |
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Term
| What elements are required for a covenant to run with the land to the benefitted party? |
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Definition
Note” to run with the land, it must be determined that the covenant
1) was intended to do so on successors to the covenantee
2) that there was vertical privity between the parties making the covenant (the agreeing party must hold the entire durational interest held by the covenantor at the time she made the covenant)
3) The covenant must be the type that touch and concern the land |
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Term
| Is horizontal privity necessary to create a covenant to the benefiting party? |
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Definition
| No See top of p. 62. Also draw out in a diagram. This can make for a complicated question |
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Term
| What is an equitable servitude |
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Definition
| A covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. |
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Term
| What is the reciprocal of negative servitude |
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Definition
This is a negative easement which create an equitable servitude when there is a common scheme (common plan) and some parcels have negative easements while others do not. Notice is required.
A common plan must exist – think subdivision in which the developer intends all parcels to carry the same negative covenants. |
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Term
| If one is subjected to a negative covenant under a reciprocal negative servitude, how is notice proven? |
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Definition
Actual notice
Record notice
Inquiry notice – it is evident from the neighborhood that the negative easement in effect |
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Term
| What is needed to prove an equitable servitude? What is not required? |
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Definition
Intent that the covenant was to run with the land
Notice – actual or constructive
The covenant must touch and concern the land
Privity is not required – the action is with the land not with the parties. |
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Term
| What are appropriate defenses against an action in equitable servitude? |
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Definition
Unclean hands – if the π is violating the same covenant
Acquiescence – If the party agrees not to enforce an equitable servitude on the burdened party then he may be deemed to have abandoned the servitude
Estoppel/laches: Similar to acquiescence. The benefitting party is not enforcing the servitude and in doing so a reasonable person would believe that the covenant was abandoned. If the party relies on this to his detriment, then the benefitted party may be estopped to enforcing the covenant.
Changed Neighborhood conditions. Look also for zoning changes – they are not an absolute bar to injunction but strong evidence of changed conditions |
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Term
| With respect to equitable servitudes, what is meant by “entering the wedge” |
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Definition
| If a remote parcel on the outer edge) seeks to break the covenant because the neighborhood adjacent has changed conditions, an injunction may still be enforced if there is concern the injunction will set a domino effect in motion. |
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Term
| What is the basic difference between a covenant and a zoning ordinance |
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Definition
| Covenant are private binding restrictions/instructions of land which may be enforced in court of civil law or equity. A zoning ordinance can (only) be enforced by the government. |
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Term
| What is adverse possession? |
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Definition
| Where title to property is gained as an operation of law – the S/O/L for trespass to real property. If an owner does not – within the statutory period – take legal action to eject the possessor (claiming all other elements of AP) he may be barred from ejectment |
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Term
| What are the elements of adverse possession? |
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Definition
1) O-C-E-A-N, 2) for the statutory period.
Open and notorious possession
Continuous use
Exclusive use by the trespasser
Actual use of the property
Non-permissive or hostile use |
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Term
| What is the general rule for proving actual use in a claim for adverse possession |
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Definition
| It is the sort of use a “normal” owner would make of the land. For example, if the neighbor rents out the next door neighbor’s land through the statutory period that’s actual use (Owner would have done the same trick question on sample exam) |
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Term
| In adverse possession, does exclusive use of the land require that the possessor solely possess the land during the statutory period. |
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Definition
| No; but it does mean he cannot share the property with the owner. In adverse possessor may share land with other APs – and they will take the land in tandem. |
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Term
| What is meant that the AP is using the land openly and notoriously? |
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Definition
| It is being used in so apparently that a true owner would notice that trespassing was occurring if true owner entered the land. |
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Term
| Since he originally had permission, can a leaseholder be an adverse possessor? |
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Definition
| Yes – but he must communicate to the true owner that he is possessing the property without permission (say, a hold-over tenant; note that absent any communication, the holdover tenant is presumed to have the LL’s permission). |
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Term
| True or False? A co-tenant could become an adverse possessor. |
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Definition
| True. Although each co-tenant always has possessory interest in the property even if one is making sole use (e.g. no exclusivity), a co-tenant can commence adverse possession by means of ouster. |
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Term
| How do courts interpret adverse possession in misplaced boundaries |
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Definition
Courts look to see if there is an agreement concerning the boundary. If so then the boundary will be set at the agreed-to property line provided it is shown:
There was original uncertainty as to the true line
The agreed line was established
There has been lengthy acquiescence |
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Term
| Can one adverse possessor tack on time logged by a prior adverse possessor for the purpose of meeting the statutory period? |
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Definition
| Yes. There need not be continuous possession by the same person. It is required that there is privity between the two adverse holders. (Look for conveyance by deed, descent, or devise). Ouster and abandonment will not count. |
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Term
| Can the adverse possessor be required to pay taxes on the land? |
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Definition
| Some states make such requirement (though a minority). |
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Term
| What types of things will toll the statutory period for adverse possession? At what point during the possession would these things have to occur? |
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Definition
Disability: The 3 “I’s”
Infancy, Insanity, Imprisonment
The true owner must be under one of the disabilities when the cause of action first accrued (i.e. at the inception of the adverse possession). |
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Term
| There is a 10 year statutory period for adverse position. O is 11 years old when A commences adverse possession of Bl’acre. Just before she turns 18, O is declared insane. At age 29 she is no longer deemed insane. Can she still claim Bl’acre for her own? |
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Definition
No, although the period of infancy (11 to 18) tolled the period A could claim for AP. O cannot tack it on to the second disability (insanity).
Supervening disability: Keep in mind that O could have devised Bl’acre to B who was insane at the time of the conveyance but the tolled S/O/L ceases at the conveyance. |
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Term
| O conveys Bl’acre to A for life and on A’s death to B. After O makes this conveyance to A, X moves on to the land as an adverse claimant. After the statutory period runs, has A assumed adverse possession? |
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Definition
| Yes but only in a life estate in autre vie (A’s life). When A dies, B is entitled to take possession |
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Term
| There is a 10 year statutory period for adverse position. O conveys Bl’acre to A for so long as A is a practicing Christian. X moves into possession immediately upon the conveyance. One day 5 years later A converts to Zen Buddhism, how much longer must X wait to acquire title through adverse possession? |
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Definition
| 10 years from the time that A no longer is a Christian. |
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Term
| There is a 10 year statutory period for adverse position. O conveys Bl’acre to A but if A discontinues practicing Christianity, then O has a right to renter and reclaim possession of Bl’acre. X moves into possession immediately upon the conveyance. One day 5 years later A converts to Zen Buddhism, how much longer must X wait to acquire title through adverse possession? |
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Definition
| In most states, X cannot apply the S/O/L until O asserts his right to renter. Many states will require O to assert his right of entry within a reasonable time or be barred from this defense by laches. |
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Term
| For a land sale contract (and deed?) to comply with the SOF, what needs to be included in the writing? |
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Definition
The essential terms of the K:
Description of the property,
Identity of the parties,
The price and manner of payment,
In addition the writing must indicate intent to enter into the K and
be signed by the party against whom it is trying to be enforced.
Any other items not included in the writing will be determined by custom |
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Term
From the outline (SOF), if a deed is delivered ( term of art) with the grantee’s name left blank, is the person to whom the deed is delivered authorized to enter the identity of the grantee
What if the land description is left blank? |
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Definition
Yes, the courts will assume that such person has authority to fill in the name of the grantee.
But if the land description is left blank no such authority will be presumed. |
|
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Term
| What is a void deed? Voidable deed? |
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Definition
Deeds that were 1) forged, 2) never delivered, 3) fraud in the execution are VOID
Deeds that are unenforceable due to minority, mental incapacity, or acquired through fraud in the inducement, duress, undue influence, mistake, or breach of fiduciary duty are VOIDABLE |
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Term
How might land be described in a deed?
What would be an insufficient land description? |
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Definition
Reference to a government survey
By metes and bounds
By courses and angles
Reference in a recorded plat.
If it provides a reasonably reliable “lead” to the identity of the property (my land in Alameda County)
If the description is too indefinite (“one acre along the west end of my property”) it would be insufficient and require reformantion |
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Term
| Is parol evidence admissible to clarify an ambiguity in the deed (or land sales contract?) |
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Definition
| Yes. Generally, parol evidence is admissible to clarify a patent ambiguity (“land east of the river”, and seller only owns land west of the river) or latent ambiguity (my house in San Francisco” must only own one house in San Francisco, depends on what the parol evidence says) |
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Term
| What are the priorities for construing an inconsistent land description in a deed or conveyance? |
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Definition
Natural monuments prevail over other methods of description
Artificial monuments
Courses
Name or any other general description |
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Term
| If the property involves a bordering right of way also owned by the grantor, what is the rule to determining the grantee’s ownership with respect to the right of way |
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Definition
| He owns the right of way to the center of it – or the whole right of way of the grantor does not own any adjacent land (law does not want to leave thin strips of land) This is a rebuttable presumption and can be overcome by any language on the deed (“property running along the street, stream”) |
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Term
| Under what conditions will a court of equity reform a deed? |
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Definition
Deeds that dod not reflect the partis’ intention due to”
Mutual mistake
Scriveners’ error
Unilateral mistake induced by misrepresentation. |
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Term
| What is the Doctrine of Equitable Conversion |
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Definition
| Hold that once a land sale contract is signed and each party is entitled to specific performance, equity regards the purchaser as the owner of real property. Conversely, the seller’s interest is considered to be personal property. The seller retains legal title (and therefore possession) in trust for the purchaser as security. |
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Term
| According to the majority rule, who bears the risk of loss under the doctrine equitable conversion |
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Definition
| The risk of loss is on the buyer |
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Term
| Under the doctrine of equitable conversion, what happens if the purchase was incomplete and the seller dies? |
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Definition
| The title to the property passes to his heirs who receive real property. Regardless, the descendant are obligated to pass the property upon the closing to the buyer. The cash proceeds then are conveyed to those heirs who receive personal property. |
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Term
| If the parties enter only into an oral contract for a sale of land, what would provide for performance of the contract by the seller despite absence of a writing |
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Definition
Part performance (must be at least 2 of these):
Possession of the land by the purchaser
Making of substantial improvements
Payment of all or part of the purchase price by the purchaser |
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Term
| If the parties enter only into an oral contract for a sale of land, what would provide for performance of the contract by the purchaser despite absence of a writing |
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Definition
If the court follows the evidentiary theory, the buyer may be required to perform the contract when (anyone’s) actions clearly indicate existence of a contract
If the court finds that the seller acted on detrimental reliance on purchaser’s promise to buy causing undue hardship on the seller (outline stresses that the seller’s actions must cause the undue hardship not the buyer’s). |
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Term
| What is the warranty of marketable title |
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Definition
There is an implied warranty in every land sale contract that at closing the seller will provide the buyer with a title that is marketable:
Title is marketable when it is reasonably believed to be free of encumbrances, free of defects; and for which a prudent person would have accepted it. |
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Term
| What types of items are a defect in the recorded chain of title |
|
Definition
Adverse possession
Encumbrances including mortgages, liens, easements, encroachments. |
|
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Term
| Are zoning ordinances an encumbrance on the title of property |
|
Definition
No
But violations of zoning ordinances are |
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Term
| For the purposes of the bar exam, does adverse possession make title unmarketable? |
|
Definition
For the bar exam: YES
Notice this may not be the case in the “real world” (which bar examiners never need to face) a title acquired by adverse possession might be marketable if the possession is long in duration and unlikely to fail in a legal challenge by the true owner. |
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Term
| The title states To A for life and upon A’s death to A’s eldest surviving daughter. A’s has one daughter, B. Can A and B convey marketable title to C? |
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Definition
Not immediately – since A could have another daughter and B could die, they cannot convey marketable title to C. Also, guardian ad litem cannot represent an unborn or unascertained person for the purposes of conveying land.
If A dies and B remains his eldest surviving child, the title becomes marketable. (what if …) |
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Term
| A wants to convey Bl’acre to B. However, A has given a mortgage to Bank for a note. Does this mean that A cannot deliver marketable title? |
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Definition
| No. A seller has the right to satisfy a mortgage or lien at closing with the proceeds of the sale. (Provided the proceeds exceed the outstanding debt obligation) |
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Term
| When does an easement render a title unmarketable? When would an easement have no effect on marketability? |
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Definition
An easement that reduces the value of property will almost always make the title unmarketable.
Known and visible easements might suggest the buyer agreed to take subject to the easement.
A beneficial easement that was visible or known to the buyer does not constitute an encumbrance. |
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Term
| Do restrictive covenants make title unmarketable? |
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Definition
| Yes, restrictive covenants make title unmarketable |
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Term
| Will an encroachment make a title unmarketable? |
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Definition
Significant encroachment constitutes a title defect.
However, the encroachment will not render title unmarketable if:
It is very slight (think a few inches) and poses no inconvenience
The owner has indicated he will not sue on the encroachment
The encroachment has existed for a long time |
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Term
| What is the remedy for an unmarketable title? |
|
Definition
Rescission
Damages
Specific performance
Require seller to quiet title |
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Term
| What steps must take place to take action for a defect in marketable title? |
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Definition
Purchaser must notify seller of defect and give him reasonable opportunity to cure the defect.
If the seller fails to cure defects, hen the buyer may pursue remedies |
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Term
| The default for performance of a real estate contract is “time is of the essence” meaning that the closing date and time in the contract is absolutely binding and, with certain exemptions, the non-compliant party is in material breach. True or False |
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Definition
| False. The presumption in a contract that does not provide for such, is thattime is not of the essence and the contract can still be enforced if performance is tendred within a reasonable time after the date in the contract. |
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Term
| When will the presumption that time is not of the essence |
|
Definition
“Time is of the essence” in the contract
The circumstances indicate it was the parties intended time to be of the essence (has sold other home, taking a job out of town)
At some point one party gives the other notice has does so within reasonable time before the close. |
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Term
| If A has repudiated on his contractual obligation to tender performance on a land sale contract, is B’s performance excused? |
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Definition
| Yes – such performance is unnecessary |
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Term
| If time is not of the essence, and neither party has tendered performance on the land sale contract, the closing date is automatically extended indefinitely until one of them does. True or False? |
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Definition
|
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Term
| What are the damages remedy to the seller if the buyer breaches on a land sales contract |
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Definition
| K – FMV + incidental damages |
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Term
| What are liquidated damages in a land sales contract and when will it be upheld by a court |
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Definition
| Typically, the buyer deposits “earnest money”. On breach by buyer, the seller may retain the earnest money as liquidated damages. A cort will uphold such an award unless the earnest money is unreasonable (in comparison to the contract – typically 10% of the contract) |
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Term
| What is the standard remedy to a buyer when a seller breaches on a land sales contract |
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Definition
| Specific performance. The law hold sthat damages (remedy at law) are inadequate due to the unique nature of land |
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Term
| If a buyer insists on specific performance on a land sales contract for which the seller cannot give marketable title, what further remedy may the buyer require? |
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Definition
| Abatement of the purchase price in the amount reflecting the title defect. NOTE: The outline later says that half the courts may just award the buyer his out of pocket costs and provide for return of the earnest money (sort of a rescission of the contract) |
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Term
| What is the standard remedy to a seller when a buyer breaches on a land sales contract? What is the modern trend? |
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Definition
| According to the outline, courts also generally will give a specific performance decree for the seller. This is a reflection of “mutuality of remedies” principle. More recently, courts will refuse to require specific performance particularly when the property is not unique (Centex Homes) |
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Term
| Unlike sales of personal property goods, sales of property do not normally carry an implied warranties concerning fitness for purpose, etc. True or False |
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Definition
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Term
| When would a warranty for fitness or quality ever apply in a sale of real property |
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Definition
If ever, such warranties will apply to new construction only.
Note anyone who contracts for building a house will always be able to sue the builder for negligence. In some jurisdiction this has been extended to an ultimate buyer (considered in privity) |
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Term
| Under what theories may a buyer sue a seller for defects in the property? |
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Definition
Generally under torts, a buyer may sue the seller for
Misrepresentation
Active concealment (attempt to cover up the known defect)
Failure to disclose a defect. Must prove:
Seller knows or has reason to know
The defect is not apparent or obvious – and seller knows it’s unlikely to be discovered
The buyer would probably have not purchased the property had he known of he defect. |
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Term
If a seller includes a clause in a land sales contract to the effect of “seller is not liable for leak in the rook” will such a clause be upheld for any defects?
If seller includes a clause like “as is” and the seller knows of serious defects, will the clause protect the seller from liability? |
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Definition
Generally, yes.
But a general clause such as “property as is” in not sufficient to overcome a seller’s liability for fraud, concealment, or failure to disclose |
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Term
| What’s the general rule on delivery of a deed |
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Definition
| A deed is not effective to transfer an interest in realty unless it has been delivered. |
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Term
| A deed must be physically delivered to the grantee in order for it to be considered delivered for the effect of transferring interest in the property. True or False? |
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Definition
False
“Delivery” refers to the grantor’s intent. It is satisfied by words or conduct evidencing the grantor’s intention that the deed has some operative effect in which title passes immediately and irrevocably.
Delivery will be satisfied when the grantor does physically or manually deliver the deed to the grantor. |
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Term
| Name three situations where it will be presumed that a deed was delivered? |
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Definition
It has been handed to the grantee
Acknowledged by the grantor before a notary
It was recorded |
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Term
| A gives B a deed to Bl’acre telling B, I want you to have Bl’acre when I die, so hold on to this deed until then. Can A later use her statement as parol evidence that her handing B the deed was not intended to have present effect? |
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Definition
| Yes – parol evidence may be admitted to show either grantor intent of delivery; or to prove grantor intended no present effect. |
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Term
| A delivers B a deed to Bl’acre. The deed is for absolute titles, but, nonetheless, A tells B that the deed is effective only if she pays ff the remaining liens. Can A later use her statement as parol evidence that the deed was not effective absent the condition? Any exceptions? |
|
Definition
No.
If the deed is unconditional on its face, and was delivered to the grantee, parol evidence is not admissible to show evidence of a condition
If the deed is deposited with a third party in escrow, and that party instructed to transfer the deed only upon satisfaction of the condition (pay $5,000) then parol evidence is admissible |
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Term
| A gives her deed to Attorney. Attorney falsely records the deed nd then conveys the property to BFP. Can BFP enforce the deed purchase against A’s claim? When would this answer differ? |
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Definition
Generally, the BFP may NOT assert claim to the property – because deed was never delivered to the seller.
It’s possible, that BFP can make such an assertion if it is proven that A negligently permitted another with possession of the deed. (Estoppel in favor of innocent parties) |
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Term
| A gives C a deed to Bl’acre. The deed indicates B is the grantee and that C should give it to B upon A’s death. Has delivery taken place. What if A gave the same deed (B is the grantee) to C and told her to hang onto it until further instruction. |
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Definition
In most jurisdictions, the answer is Yes. This means the deed is delivered and A cannot recall.
In the second fact-pattern, there usually is more details necessary to consider delivery. In this case, the fact that C is A’s attorney might likely imply there has been delivery. Anyone else may imply a simple agency relationship and A still has the power to recall the deed. |
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Term
| Under a commercial transaction, A escrows Bl’acre with C on March 1 – with instruction that the deed be transferred to B when B has paid $5,000. B pays the $5,000 on June 1. On what date did the property pass to B? Would it be different if A dies on May 15, and B aid the $5,000 on June 1? |
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Definition
Title does NOT relate back to the date that the deed is deposited, so the title passes to B on June 1.
Relation-back will be valid if the grantor dies – in order to comply with rule that title must pass before death. (I’m not sure if the title passes on March 1 or May 15 in this example).
Relation-back also occurs if grantor becomes incompetent or one of his creditor’s subsequently attaches a claim to the property (does not apply to BFP). |
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Term
| What are the three types of present covenants and what are the three types of future covenants? |
|
Definition
Present:
Covenant of seisin
Covenant of right to convey
Covenant of against encumbrances
Future:
Covenant for quiet enjoyment
Covenant of Warranty
Covenant of Further Assurances. |
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Term
| A conveys Bl’acre to B (with covenants of seisin and right to convey) and B then conveys Bl’acre to C. It is later discovered that A was not the owner of Bl’acre, may C go after A? |
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Definition
| In most jurisdictions, the answer is No |
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Term
| When does the S/O/L run for present covenants? Future covenants |
|
Definition
Present covenants are breach at the time of conveyance
Future covenants are not breached until the third party attempts to interfere with possession.
S/O/L begins at the breach. |
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Term
| A conveys Bl’acre to B (with covenants of quiet enjoyment, warranty and further assurances) and B then conveys Bl’acre to C. Later X attempts to evict C, claiming to be the true title-holder of Bl’acre, may C go after A? |
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Definition
| Yes (for these warranties) Note the difference between this rule and the resent covenants |
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Term
| Explain what damages are available from a remote grantee (A – B – C – D) of a land for breach of future covenants (i.e. who can D sue) |
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Definition
| Remember for future covenants the grantee can sue remotely. According to the outline, many states allow the grantee to sue ANY covenantor for consideration she received. (Defendant shopping encouraged). |
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Term
|
Definition
| Essentially the deed has no warranties. The grantor is released from all interest in the property. |
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Term
| What is the concept of Estoppel by Deed |
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Definition
| In an instance in which the grantor did not have title to the property when it was conveyed, SUBSEQUENT acquisition of lawful title automatically inures to the grantee. (Outline: only applies to warranty deeds, e.g. not to quitclaim deeds) |
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Term
| What is the purpose of Recording Acts? |
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Definition
| They seek to protect subsequent BFP, and therefore by recording you give notice to all (including BFP) so in effect they protect a purchaser FROM a BFP. Only BFPs are protected by the “notice” and “race-notice” statutes (In essay question define elements of BFP). |
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Term
| What kind of interests in land can be recorded? |
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Definition
Deed
Mortgage
Contract to convey (Purchase Agreement)
Judgment liens
Lis pendens |
|
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Term
What does a Notice Statute imply
What kind of language will appear on the Bar Exam |
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Definition
A subsequent BFP (for value without notice) wins – period.
No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded. |
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Term
What does a Race-Notice Statute imply
What kind of language will appear on the Bar Exam |
|
Definition
A subsequent BFP (for value without notice) WHO RECORDS FIRST wins
No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, whoe conveyance is first recorded |
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Term
What does a Race Statute imply
What kind of language will appear on the Bar Exam |
|
Definition
A grantee who records first prevails – notice does not matter. So even if BFP had notice (e.g. he’s not really a BFP then – see language) the statute will protect him if he records before the other grantee.
No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded |
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Term
| O conveys B’acre to A. A fails to record. O dies and X his heir/devisee succeeds to his property interests. Is X a BFP without notice of A? |
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Definition
No
X did not give anything of value for the property.
NOTE however: If X sold Bl’acre to Y, Y would be a BFP. |
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Term
| Can a mortgagee be a BFP purchaser? Holder of a judgment lien on the property? |
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Definition
Yes
Courts are split on judgment liens – majority says No – b/c lien-holder did not pay value for the interest in the property. Alternatively, if he property was conveyed there is no property to attach the lien. |
|
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Term
| What is the shelter rule? |
|
Definition
| A person who takes from a BFP will prevail against any interest that the transferor-BFP would have prevailed against EVEN IF transferee HAS NOTICE. (Seems to always be on the exam samples, so as longas you know this – address the BFP’s rights under the recording act. |
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Term
| Who is not sheltered under the shelter rule? |
|
Definition
| Someone who previously held title and had notice of the unrecorded interest. This person cannot cheat the system to deprive the person who did not record (Outline refers o as “sippingthrough”). Example. O conveys to A who does not record, O then conveys to B. B is a BFP. If he conveys to C who does have notice, C can prevail over A in a notice jurisdiction. BUT, if B reconveys to O, O cannot prevail over A. |
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Term
| Can a purchaser under an installment land contract be a BFP? |
|
Definition
Yes. The remedies here include:
Making the installment BFP a tenant-in-common with the prior grantee, effecting a lien on the prior grantee’s property, conveying the property but effecting a lien on the property for the benefit of the prior grantee. In each case, the controlling lien/tenancy is equivalent to the installments paid/owed. |
|
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Term
| How are recorded deeds indexed? |
|
Definition
They are recorded in a manner to permit title searches:
- grantor’s name
- grantee’s name
- tract (land description) |
|
|
Term
| What are “wild deeds” and what impact do they have on notice? |
|
Definition
When a deed is properly recorded (regardless of how indexed), that is “notice to the world”
A wild deed is a recorded deeds that is not xconnected to a chain of title.
Wild deeds do not provide constructive notice to a BFP since it would be impractically difficult to locate. Apparently more common in grantor-grantee index recorder’s jurisdiction. Look for someone who DID record but the BFP could not have known about it. |
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|
Term
| What ar the different types of notice (available to subsequent purchasers) |
|
Definition
Actual notice: Somehow, directly or indirectly, she has learned of the earlier grant
Record notice: By title search
Inquiry notice: She is obligated to make reasonable inquiry f any information that would reveal earlier conveyance (reference in the records/deeds, grantor’s title, inspection of land for possessors |
|
|
Term
Describe the different types of secutiry interests in land:
- Mortgage
- Deed of trust
- Equitable mortgage |
|
Definition
A mortgage: a debt in which the mortgagee (bank) gives money to the mortgagor in exchange for a promissory note and the mortgage (security interest). If the debt is not repaid then the mortgagee can either take title to the land or have it sold (judicial sale)
A deed of trust: The landowner gives deed to the land trustee who holds it for the benefit of the lender (beneficiary). If the debt is not repaid, the lender can foreclose on the property. In many cases, the trustee has a power of sale in the trust instrument so it avoids a judicial sale.
Equitable mortgage: Here the land is “sold” to the lender for some consideration. These are essentially a means to have a mortgage that would give the mortgagee the chance to avoid judicial sale. They usually are converted to a mortgage by the court if they pbviously operate as loans (e.g. “equitable” mortgages) |
|
|
Term
| Can a mortgagee transfer a mortgage without transferring the note |
|
Definition
|
|
Term
| What are the ways in which a mortgagor can transfer his mortgaged property? |
|
Definition
| By which the grantee takes 1) subject to the mortgage or 2) takes subject to the mortgage |
|
|
Term
| Who is liable for (unpaid) mortgage if the grantee assumes the mortgage |
|
Definition
| The grantee is primarily liable for the mortgage BUT the original mortgagor/grantor is secondarily liable as a surety. (Unless the mortgagee releases the mortgagor) |
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Term
| Who is liable for (unpaid) mortgage if the grantee only takes the property subject to the mortgage |
|
Definition
The original mortgagor/grantor is primarily and personally liable for the mortgage
(The outline takes the approach that all grantees take subject to the mortgage and either are an assuming or non-assuming grantee) |
|
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Term
| What would a lender consider doing if he was concerned or insecure about potential transfers by the mortgagor? |
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Definition
| Include a “due-on-sale” clause in the mortgage which would entitle him to require full payment of the mortgage balance if the mortgagee attempts to transfer the property without the lender’s consent. (Watch for fedral preemption of state law on certain federally-backed mortgages – Fannie Mae, etc.) |
|
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Term
| If a mortgagor defaults on his loan payment, may the lender take possession of the property prior to foreclosure? (to protect interests or collect rents) |
|
Definition
It depends on which theory of title the state has adopted:
Lien Theory state: The mortgagee only has a secrity interest in the property – the owner still may possess the property until it is foreclosed (IOW: No)
Title Theory state: Legal title is in the mortgage until the mortgage is foreclosed or satisfied. Therefore, the mortgagee may take possession as soon as default has occurred. (Intermediate theory has the same effect, just prior to default, the owner did have title). |
|
|
Term
| What is a receivership and why might a lender consider using one. |
|
Definition
A receivership is a process in which a third party is appointed by the court (a receiver) to manage property (and receive rents) following default. A lender would prefer a receiver be appointed rather than taking the property himself (“mortgagee-in-possession”) t avoid liability risks and strict accounting for rents received.
NOTE: A court will only appoint a receiver if the curt believes the property is in danger of waste, or if at risk because it is inadequate to secure the debt or the mortgagor is insolvent. |
|
|
Term
| What do all states generally require as a component of foreclosure? |
|
Definition
Sale of the property. Foreclosure by sale.
The sale need not be a judicial sale – but judicial sale almost always will be required on foreclosed mortgages. (e.g. a deed of trus usually is accomplished by a power of sale.) |
|
|
Term
| Ordinarily, what would be required within a mortgage contract to permit a foreclosure by sale |
|
Definition
| An acceleration clause (Mortgage due in full upon default). Never screw up and not put one in. |
|
|
Term
| Regardless of the existence of an acceleration clause, what right does a mortgagor have with respect to a mortgage in default |
|
Definition
| Equity of redemption (equitable redemption): The mortgagor has the right to redeem the land by paying all of the amount due together with any interest due. This remedy is available prior to the foreclosure sale. The outline states that if there is an acceleration clause, the mortgagor must pay the full balance (again don’t screw up) |
|
|
Term
| Can a mortgage contract permit a mortgagee to waive his right to equity of redemption? |
|
Definition
| No – this is referred to as “clogging” and is prohibited. The outline says that such a waiver can be negotiated for consideration at some later date. |
|
|
Term
| What is statutory redemption |
|
Definition
| A statutory equity of redemption right. In the case of statutory redemption, the right of redemption continues in effect for some fixed period AFTER the foreclosure sale (6 months to a year). The amount to be paid is the foreclosure sale price. |
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|
Term
Upon foreclosure by a lien-holder, what are the consequences to other lien-holders on the property.
What can a junior lien-holder do to avoid having his interest wiped out? |
|
Definition
Foreclosure destroys all interests junior ro rhe mortgage being foreclosed. When the property is disposed of in a foreclosure sale, the buyer at the sae takes subject to such mortgage.
A junior lien-holder has the right to pay off the lien in default to the senior lien-holder. For that reason, all lien-holders are necessary parties to a foreclosure action (omitting a jr. lien-holder preserves their interest). |
|
|
Term
| How is the priority of liens on a property determined? How might that change? |
|
Definition
Priority is established chronologically – y the time in whih it was placed on the mortgae.
This might change when:
- The 2nd mortgage was a BFP
- Use of a subordination agreement
- It’s a purchase money mortgage (PMM) over any non-PMMs (mortgage was given for the purchase of the property; if 2 – the PMM given to the vendor has priority)
- Modification of the senior mortgage (WATCH THIS FOR THE BAR EXAM – easy to sneak past, modification must be of some burden) |
|
|
Term
| How are proceeds of a foreclosure sale distributed? |
|
Definition
1. Pay expenses of the sale
2. Attorney’s fees (YAY!)
3. Principal and past interest and fees of the foreclosing lien-holder
4. Junior lien-holders
5. The mortgage-holder
Senior liens stay on the property. |
|
|
Term
| What happens if the proceeds of the foreclosure sale are insufficient to satisfy the debt? |
|
Definition
| The lien-holder can enter a deficiency judgment |
|
|
Term
| What action does a vendor take upon default of an installment contract (contract for deed?) |
|
Definition
A forfeiture (rather than a foreclosure).
In this action, the property simply reverts back to the vendor. |
|
|
Term
| What types of relief have been developed to ease the harshness of a forfeiture on a contract for deed? |
|
Definition
Equity of redemption
Restitution: A return of some of the installment – usually measured as an excess of the fair rental value of the property.
Waiver: Reviewing past treatment of late payments for any pattern and providing reasonable repayment before forfeiture. |
|
|
Term
| What is contemplated in he rights to lateral and subjacent support of land? |
|
Definition
Ownership of land includes the right to have the land supported in its natural state by adjoining land:
Lateral Support: A landowner is STRICTLY LIABLE for damages to the neighboring landowner when his excavation causes the land to subside or building on the land to subside – if it’s proven the land alone would have subsided). He is also strictly liable (for building damage) if his excavation was done negligently |
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Term
| What are the two means for determining water in watercourses |
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Definition
The riparian doctrine (Eastern states)
The prior appropriation doctrine (Western states)
Note this is for watercourse not percolating ground water |
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Term
What is the Riparian Doctrine?
How is the riparian doctrine fashioned to resolve disputes of water use. (A favorite bar question) |
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Definition
The riparian doctrine holds that the water in water courses is owned by those who border the water (and their adjacent land). No one riparian owner may use water unreasonably so as to deprive other riparian owners. There are two approaches used for resolving water use issues:
1. Natural flow theory: A riparian owner is entitled to the water but onlt to the extent he does not substantially or materially diminish its quantity, quality, or velocity.
2. Reasonable Use Theory: Seems siilar, but it suggests some utilitarian standard of reasonable use. 6 factors are considered in determining “unreasonable”: (MAPPED - See book)
In each case “natural use” (drinking, washing) has priority over “artificial use” (manufacturing, large-scale irrigation – versus gardening). |
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Term
| What is the Prior Appropriation Doctrine? |
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Definition
Contrary to riparian doctrine, the water is believed to belong to the state. It essentially says those who seek to use it may acquire such rights (usually a complex administrative process)
Outline says for the Bar Exam:
1. Established by priority of beneficial use
2. When necessary, reduced acquisition of water is done by priority
3. An appropriative right can be abandoned and it can be severed at the will of the landowner. |
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Term
| What are the 4 doctrines employed to determine groundwater rights |
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Definition
1. Absolute ownership doctrine: Owner of the land can take all the groundwater therin for whatever use he chooses
2. Reasonable use doctrine: Similar to absolute ownership doctrine but limits exporting the water whn others have acess to the same aquifer
3. Correlative rights doctrine (Calif.) Reasonable use because all users of the same basin are joint tenants (similar to use of land in a JT)
4. Appropriative rights doctrine: Same as with watercourse – how you use it is what Is ensured. |
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Term
| What is the general rule concerning surface water rights? What two common rules apply n restricting surface water that might naturally cross onto other’s lands |
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Definition
If it falls on his land, he can keep it. He can use the water for any purpose he desires.
Two common theories concern altering the drainage of that water (i.e. keeping it on his land; keeping it off his land).
Natural Flow Theory: Owner cannot restrict water that would have naturally drained onto another’s land.
Common Enemy Theory: An owner can take any protective measures to get rid of the water or keep it off his land (e.g. he can build dikes). |
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