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161 Cards in this Set

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O devises title "to A and her heirs and B for life. Then, upon B's demise, to C." At the time of O's demise, A B and C are alive. B dies, do A and C have a Joint Tenancy at common law?
No, the unity of time is missing.
What is meant by the "unity of time"?
the unity of time means that two cotenants interest in a property began at the same time.
What is meant by the "unity of title"?
that each cotenant must have received their rights from the identical instrument. (the same deed or will)
O, the fee simple owner of Z, conveyed an undivided 50% title interest to O's eldest son, A by way of deed. Subsequently O conveyed an undivided 50% titel to B by way of another deed. At common law are A and B Joint Tenants?
No, they do not share the unity of title.
What is meant by the "unity of interest"?
each cotenant must have the identical percentage of interest and the identicle type of estate.
If O's will devised "to A for life and to B and his heirs" do A and B have a Joint Tenancy? Why or why not?
No they do not have a Joint Tenancy.

They do not share the unity of interest, A has a life estate and B has a fee simple absolute, so they are unequal interests in the land.
What is meant by the "unity of possession?"
each cotenant must receive the identical right to possess and use any and all of the same property at the same time as the other cotenants.
O transferred "All of my title in Blackacre to A, B, and C, as joint tenants with right of survivorship." B and C immediately began raising cattle on ALL of Blackacre. Originally A never used any part of the property. Then, A decided to get in the sheep raising business. So, A attempted to put its sheep on Blackacre in an are B and C used. B and C immediatly object.

In a traditional common law jurisdiction may A raise his sheep on Blackacre?
Yes, A, B, and C all share the unity of possession, so they are Joint Tenants.
Today, is the presumption for Joint Tenancy or Tenancy in Common?
Tenancy in Common is the preference at modern law.
How can one be sure to create a Joint Tenancy at modern law (if his jurisdiction allows them) and not the preferred Tenancy in Common?
He can specifically say "I grant to _ and _ in joint tenancy with rights of survivorship and not tenancy in commons."
Suppose O lives in a jurisdiction that has statutorily eliminated the Joint Tenancy. O subsequently devises "to A and B as joint tenants with right of survivorship and not as tenants in common." What do A and B have?
A and B are Tenants in Commons.
Suppose O lives in a jurisdiction that has a preference for tenancy in common and against Joint Tenancy. O subsequently devises "to A and B as joint tenants with right of survivorship and not as tenants in common." What do A and B have?
A and B are Joint Tenants because O has sucessfully rebutted the preference for Tenancy in Commons.
A, B and C are Joint Tenants. A sells his interest to D. What does D have?
D becomes a tenant in common with B and C owning A's undivided 1/3
A, B and C are Joint Tenants. A sells his interest to D. What relation do C and B have with each other and with D
B and C are Joint Tenants in respect to each other.

B and C are Tenants in Common with D as to the transferred (A's) property interest.
A and B are Joint Tenants. A sells his interest to D. What relation do B and D have?
B and D are Tenants in Common. (B's Joint tenancy disappears once A sells his interest and becomes a Tenancy in common for an undivided 50% of the property.)
When an interest changes from Joint Tenancy to Tenancy in Common, what happens to the right of survivorship?
the right of survivorship also ceases.
Is SD a lien theory or mortgage theory state?
Lien theory state.
In SD, if A, B, and C are Joint Tenants, and A mortgages his interest to L... What happens to B and C's interest? is their JT destroyed?
No it is not destroyed, since SD is a lien theory state their Joint Tenancy is not disturbed by A's mortaging of his interest.
What are the types of concurrent estates?
Tenancy in Common, Joint Tenancy, Tenancy by the Entirety.
Does Tenancy in Common have a Right of Survivorship?
No.
What is the most prevalent type of concurrent estate today? Why?
Tenancy in Common. Because it is the preferred concurrent estate and there is a legal presumption for it.
What unities are required for a Tenancy in Common?
Unity of Possession (only)
O conveys 50% of his interest in a property to A, then later conveys the rest (50%) to B... What was O's relationship with A before O conveyed an interest to B? Why?
O and A were tenants in common. O and A shared only the unity of possession. (not interest, title, or time)
A and B are cotentants in Z. A dies with no heirs. who owns A's interest in the land?
A's undivided 50% interest in Z would escheat to the state.
O conveyed "to A and B as tenants in common. B dies devising all his worldly possessions to C. What does B have? What does C have?
B and C both have an undivided 50% interest in the property and the right to use and possess all of the land in the devised property.
What are the theories a tenant might rely upon when dealing with inadequate premises?
- Theory of constructive eviction
- Breach of Covenant of Quiet Enjoyment
- Illegal Lease
- Breach of Implied Warranty of Habitability
Is a covenant of quiet enjoyment implied if it is not explicitly stated in a lease?
Yes
What are the four leasehold estates?
- Tenancy at Will
- Term of Years
- Periodic Tenancy
- Tenancy at sufferance
What does the length of a tenancy at will depend on?
The mutual wills of the parties (meeting of their minds)
Who can terminate a Tenancy at Will?
either the landlord or the tenant.
How is a tenancy at will more often created? expressly or impliedly?
implied.
What is the default tenancy for the entire law of estates in land?
Tenancy at Will
If a court cannot decide which estate a lease creates what will they most likely determine the estate to be?
Tenancy at will
How much notice is required when terminating a tenancy at will?
none
Unless a notice states a future date of termination, when is a tenancy at will terminated?
immediately upon receipt
How much time is a tenant given to vacate the premises upon the termination of a tenancy at will?
a reasonable period of time (efforts to vacate should commence immediately)
Is a Periodic Tenancy inheritable?
Yes
Does a death of a party terminate a Tenancy at Will? Why?
Yes. Because legally the persons "will" does not survive them, since a TaW requires the will of both parties the death of one of the parties terminates that will.
Does a death of a party terminate a Periodic Tenancy? Why?
No, it is inheritable.
Does an assignment or Sublease terminate a tenancy at will?
Yes, both would terminate the tenancy
If L and T are in a tenancy at will and L sells the house, what happens?
The tenancy is terminated.
L and T are in a tenancy at will. T sells to Z. Z demands payment at the continuing rate from L. L pays. What is the relationship between L and Z?
They have created a new, seperate tenancy at will with the same terms as T and L's agreement.
How have most jurisdictions dealt with the notice issue in a tenancy at will?
Many states have required a minimum notice requirement to terminate (commonly 30 days)
What is the notice requirement for a Term of Years?
No notice required.
What is the following a definition of? "an estate that lasts for some fixed period of time or for a period computable by a formula that results in fixing calendar dates for beginning and ending, once the term is created or becomes possessory."
Term of Years
What is the following a definition of? "a lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination."
Periodic Tenancy
What is the following a definition of? "a tenancy of no fixed period that endures so long as both landlord and tenant desire."
Tennancy at Will
What is the term that a Periodic Tenancy renews for?
Self renews for the same period.
How can the Period of a Periodic Tenancy be determined?
It can be implied from the way in which rent is paid.
What was the common law notice requirement for a Periodic Tenancy?
equal to the period, not exceeding 6 months.
At common law there is a periodic tenancy for a period of one year... How much notice is required?
6 months. 6 months is the maximum required no longer how long the period.
In a Periodic Tenancy can a tenant move out before the end of the period at modern law?
In most states (or if the lease specifies) a tenant can move out before the end of the period with proper notice.
Do leasehold estates have a reversion?
Yes, most of the time.
Who is responsible for evicting a holdover tenant under the English rule?
The Landlord
Who is responsible for evicting a holdover tenant under the American rule?
The Tenant
What is the majority rule in the US for evicting a tenant that is holding over?
The English rule
What is the difference between a sublease and an assignment?
A sublease give up only some of the tenants rights, were an assignment gives up ALL legal rights.
If A creates an "assignment" to B for his lease from L, but reserves the right to use some of the property what is the result?
They have actually created a sublease, even though they stated their intention to create an assignment. What they call it doesn' t matter, the rules they implement dictate what it is.
Who can L sue for back rent when A makes an assigmnent to B?
L can only sue B because in an assignment A has given up all legal rights in the lease.
Who can L sue for back rent when A makes a sublease to B?
L can only sue B if it's explicit in the sublease.
Can a landlord use the financial ability to pay as a basis for turning down an assignment?
Yes
Can a landlord use Suitability of Use for the intended purpose as a basis for turning down an assignment?
Yes
Can a landlord use the legality of the proposed use as a basis for turning down an assignment?
Yes
Can a landlord use the nature (or diversity) of businesses as a basis for turning down an assignment?
Yes
Can a landlord use the need for alteration of the premisis as a basis for turning down an assignment?
Yes
Can a landlord use personal taste as a basis for turning down an assignment?
No
Can a landlord use convenience as a basis for turning down an assignment?
No
Can a landlord use sensibility as a basis for turning down an assignment?
No
Can a landlord use the desire to get a better bargain as a basis for turning down an assignment?
No (ex. when the market value of the property has risen beyond what the current [assigned] rent is)
What is the only lawful means to dispossess a tenant who has not abandoned nor voluntarily surrendered but who claims possession adversely to a landlord's claim of breach of a written lease?
resorting to judicial process. (self-help reposession is NOT allowed)
If a tenant has abandoned possession of an tenancy, is the landlord required to attempt to mitigate his losses?
Yes, (find a new tenant)
When is a defect latent?
when it is a problem that is in existence before a tenant takes possession that the tenant does not know about.
When is a defect patent?
When it is a problem that is in existence before a tenant takes possession and the tenant knows of the problem.
What does the covenant of quiet enjoyment protect?
The tenants right to possession.
What types of conduct by a landlord can breach the covenant of quiet enjoyment?
Actual Eviction and Constructive Eviction
What does a constructive eviction stem from?
conduct, other than an actual eviction, that deprives the tenant of use and enjoyment of the premises.
To be a constructive eviction what must the conduct do?
substantially interfere with the tenants right to possession.
For a constructive eviction to occur must the tenant be actually convicted?
No, that's why it's "constructive."
What remedies does a constructive eviction offer the tenant?
The same as if they had been physically evicted.
What are the three primary elements for a constructive eviction to occur?
1. The lanlords conduct must interfere with the tenants possession.
2. The interference must be substantial.
3. The tenant abandons possession of the premises.
Under modern law, must a landlord have intent to carry out a constructive eviction?
No, not in modern cases.
Must a tenant, in a constructive eviction situation give the landlord notice of a condition causing the constructive eviction?
Yes, As well as give the L a reasonable amount of time to correct the condition.
Who is at fault if someone disrupts a tenants quiet enjoyment of property by claiming to have superior title?
the landlord is at fault.
Can a constructive eviction result from a landlords failure to act?
yes
For there to be a constructive eviction, the interference with the tenant's right to use and enjoy the premises must be ____________.
Substantial.
Must the tenant abandon the premises for a constructive eviction?
YES. the tenant must abandon the premises within a reasonable period of time after the event or events that constitute the constructive eviction.
Why must a tenant claiming a constructive eviction actually abandon the premises?
a constructive eviction is supposed to be "like" an actual eviction...
What happens if a tenant believes a constructive eviction has occured, they vacate the premises, and a court determines that no eviction occured?
the tenant is responsible for back rent and has incurred moving expenses to boot.
Can a tenant in a constructive eviction continue to live in the premises?
after an initial abandonment they can insist that the landlord eliminate the cause of eviction and allow the tenant to resume posession.
Can a tenant who abandons under a constructive eviction theory recover damages?
yes
What are THE KEY ELEMENTS to remember for constructive eviction?
1. The Landlords wrongful conduct
2. amounts to a substantial interference with possession
2. causing the tenant's abandonment of the premises.
For a breach of the covenant of quiet enjoyment, that does not amount to a constructive eviction, what are the remedies of the tenant.
Stay in possession and sue for damages equal to the difference between the value of the property with and without the breach.
What is the remedy for a constructive eviction?
the tenant may abandon the premises, in which event he is relieved of any liability for future rent and entitled to recover damages to copensate both for losses realized while in possession and for losses resulting from a higher rent for equivalent replacement premises.
When does an Illegal Lease arise?
If a lease is an illegal contract made in violation of statutory prohibitions and therefore is unenforceable.
Can an illegal lease apply if code violations develop after the making of a lease?
No.
Can minor technical violations of statutory prohibitions render a lease illegal?
No.
Do violations of which the landlord had notice cause a lease to be illegal?
if they violate statory prohibitions, then yes.
Do violation of which the landlord had no notice cause a leaste to be illegal?
No.
What can a tenant do under an illegal lease theory?
withhold rent while staying on the premises.
Are housing violations that develop after the lease begins subject to an illegal lease situation?
No, they must have been in existence before the lease began.
Is abandonment required under an illegal lease?
No
Is abandonment required under a breach of the implied warranty of habitability?
No.
What must a T seeking a breach of the Implied Warranty of Habilitability do to proceed?
must give the landlord notice of the problem, then allow the landlord a reasonable amount of time after the notice to rectify the situation.
If a state of disrepair of a dwelling, which is known to the defendants, substantially reduces the value of the leasehold from the agreed rental value... what is that?
Breach of the implied warranty of habitability.
What remedies does a tenant have in a Breach of the implied warranty of habitability?
a tenant may avail himself of all the basic contract remedies, damages, rescission, and reformation.
What is a retaliatory eviction?
When a T informs a L of a potential problem with the dwelling and the L attempts to evict the T.
what types of DAMAGES are allowed in a breach of the implied warranty of habitability?
Compensatory (difference between value of dwelling and rent paid), Punitive (must show willful, wanton, or fraudulent conduct)
If a lease specifically said that a Landlord isn't liable for tort liability, what effect would that have?
none, the effort would be ineffective.
Who bears the risk of loss in a landlord tenant situation?
it depends on the jurisdiction, it should be put explicitly into the lease.
When is a title marketable?
when it is free from reasonable doubt.
What renders a title unmarketable?
a substantial defect that expose the purchasor to the hazards of litigation
May defects that will likely not cause the purchasor to suffer injury make a title unmarketable?
No, the purchasor must be likely to suffer an injury.
What is a title if it exposes the party holding it to the hazard of litigation?
the title is unmarketable.
Are zoning ordinances public or private land use controls?
public
Are restrictive covenants public or private land use controls?
private
which land use control is placed on the deed?
restrictive covenants
which land use control is a restriction of record?
a restrictive covenant, because it's filed with the deed. (recorded)
What is the enforcement mechanism for a breach of a restrictive covenant?
Possibly an injuction to conform. Those affected (neighbors) can sue for decreased value of their property.
Who is protected by a restrictive covenant?
everyone benefited by the restriction (ex. everyone in the subdivision)
True or False, an encumbrance that is a restriction of record is an encumbrance?
False, an encumbrance that isn't a restriction of record is a breach of contract.
For there to be a breach of contract, there must be an encumbrance that is ____________________.
not a restriction of record.
Is a marketable title necessarily a marketable record title?
no, marketable title can include title based on adverse possession. Marketable Record title can't.
What should a buyer who wants marketable record title do?
specify that they want MRT and not just MT
Who bears the risk of loss in a sale of property upon "equitable conversion?"
different in each jurisdiction. Can (should) be put in the contract.
When must a seller of a house disclose defects?
when the seller of a home knows of facts materially affecting the value of the peroperty which are not readily observable and are not known to the buyer.
What does the doctrine of merger say?
once therer is closing and the buyer gets a deed, all contract of sale claims are lost.
What is the modern view of the doctrine of merger?
it is largely held in disfavor
Does a builders implied warranty of quality require privity of contract?
No.
What does the implied warranty of quality deal with?
building defects by a builder.
what theory is "neither a tort nor a contract concept, but a freak hybrid born of the illicit intercourse of tort and contract?"
the Implied warranty of quality.
true or false in an implied warranty of quality breach, the defects must be patent?
false, the defects must be LATENT.
is action upon a breach of the implied warranty of quality limited in any way?
yes,

defects must be latent
limited to a reasonable period of time.
What does the Uniform Land Transactions Act say is a reasonable time period for a builder to be held liable for a breach of the implied warranty of habitability?
6 years
what says that 6 years is a reasonable amount of time for a builder to be held liable for a breach of the implied warranty of quality?
the Uniform Land Transactions Act
what are 4 defenses to the Implied warranty of quality?
Builder can say...
1. defects are not my fault.
2. defects are the result of age or ordinary wear and tear.
3. defects are result of substantial changes by a previous owner.
4. builders duty is only that of customary standard of ordinary skill and care.
What are the six warranties that exist in general warranty deeds?
warranty of...
1. seisin
2. right to convey
3. against encumbrances
4. general warranty
5. quiet enjoyment
6. further assurances
What are the three future warranties?
general warranty
Warranty of quiet enjoyment
Warranty of further assurances
What are the three present warranties?
warranty of seisin
warranty of right to convey
warranty against encumbrances.
What warranties does SD use?
1. future present warranty of seisin and right to convey
2. future present warranty against encumbrances
3. future warranty of quiet and peaceable enjoyment
4. future warranty to defend title.
When are present warranties breached?
at closing.
when does the statute of limitations start to run for a breach of a present warranty?
upon closing.
When are future warranties breached?
when something happens to breach them, and not until then.
When can a lawsuit be brought based on a breach of a future warranty?
whenever something actually goes wrong, not before.
What are the three deeds used in the US?
1. General Warranty deed
2. Special Warranty deed
3. Quitclaim deed
What is given under a General Warranty deed?
all 6 present and future warranties.
What is given under a Special Warranty deed?
all the covenants of a General Warranty, but ONLY if the grantor did something that caused a breach. No protection against encumbrances created by previous owners.
Does a Special Warranty deed protect against encumbrances created by previous owners?
No, only against encumbrances created by the seller.
What is given under a Quitclaim deed?
A buyer gets whatever interest the Seller has in the property, if any. No warranties are conveyed.
Idem Sonans, means what?
things that sound the same but are spelled differently.
What was the common law rule about recording statutes?
at common law the first in time won.
What are the three recording system schemes?
1. Race Statute
2. Notice Statute
3. Race Notice Statute
What happens under a race statute?
the person who wins the race to record prevails. Whether a subsequent purchaser has actual knowledge of the prior purchaser's claim is irrelevant.
What happens under a notice statute?
If a subsequent purchaser had notice of a prior unrecorded instrument, the purchaser could not prevail over the prior grantee, for such would work a fraud on the prior grantee.
What happens under a race-notice statute?
a subsequent purchaser is protected against prior unrecorded instruments only if the subsequent purchaser (1) is without notice of the prior instrument and (2) records before the prior instrument is recorded.
What are the requirements in a race notice statute for a subsequent purchaser to be protected?
he must be without notice of prior instrument and he must record before the prior instrument.
What does a covenant of seisin do?
the grantor warrants that he owns the estate that he purports to convey.
what does a covenant of right to convey do?
the grantor warrants that he has the right to convey the property.
What does a covenant againsst encumbrances do?
the grantor warrants that there are no encumbrances on the property (mortgages, liens, easements, and covenants)
what does a covenant of general warranty do?
the grantor warrants that he will defend against lawful claims and will compensate the grantee for any loss that the grantee may sustain by assertion of superior title.
what does a covenant of quiet enjoyment do?
the grantor warrants that the grantee will not be distrubed in possession and enjoyment by assertion of superior title.
What does the covenant of further assurances do?
the grantor promises that he will execute any other documents required to perfect the title conveyed.