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359 Cards in this Set

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  • Back
a lease is both a _______ and a ____________
contract and conveyance
requirements for lease under SoF
writing required if:
*lease is for more than 1 year
*agreement is not to be performed w/in one year from date of making
Are civil rights more important than property rights?
S.Ct. distinguished the two; Bruce doesn't think you can distinguish them.
w/ respect to what lease SoF issue are courts split
lease signed in May, to begin July 1 and end on June 30
when can an oral agreement terminate a lease?
if less time left on lease than required by SoF
describe "tenancy for a fixed term"
w/o contrary agreement, terminates automatically at end of term and doesn't require notice
is there a maximum length for leases?
not really but some states set a statutory limit of 99 years
describe "periodic tenancy"
automatically renewed for successive periods unless notice; min time for notice of termination is at least one full rental term (exception: 6 months notice required to terminate a year-to-year tenancy)
describe "tenancy at will"
no stated duration; may be terminated at the election of either party; most states have statutes that provide for notice
give two common examples of "tenancy at will"
when a L. lets a friend stay for free; when a tenant takes possession of property under an invalid lease
describe "tenancy at sufferance"
holdover tenant
what are a L's options when dealing with a holdover T.
either treat tenant as a new tenant (tenancy at will) or as a trespasser
What is the English Rule?
L. has responsibility to provide right to legal possession and actual posseession
What is the rationale for the English rule?
L. in a better position to know;
T. shouldn't have to sue;
L. is more familiar w/ eviction procedures
What is the American Rule?
L. only has responsibility to provide T. w/ legal right to possession.
Rationale for American rule?
L. shouldn't be responsible for wrong acts of someone else; parties could just K around this anyway; court should not imply covenant that parties didn't make; tenant has a summary remedy at law to removed holdover tenant
What is one neat suggestion to deal w/ the English/American issue?
apply one rule to residential situations, another rule to commercial situations
What is the right to quiet enjoyment?
tenant has right to enjoy his premises w/o interference by the Landlord
In what three main ways can the cov of QE be violated?
actual eviction; partial actual eviction; constructive eviction
what is actual eviction and what are its consequences?
tenant is physically evicted from entire premises (by L. or someone w/ paramount title); T's rental obligation stops
What is partial actual eviction?
when L. takes a portion of T's premises
What are T's options when partially evicted?
1: seek to regain possession
2: terminate the lease
3: recover damages
does the T. lose his possessory rights upon partial actual eviction?
nope
If I have been partially actually evicted or whatever, do I still have to pay rent?
maybe:
1: rent obligation ceases b/c rent conditioned on whole property OR
2: rent is apportioned according to the remaining part of the property
What is constructive eviction?
some breach by L. that causes a "grave and permanent" interference w/ T's use and enjoyment
I have been constructively evicted. What should I do if I don't want to pay rent any more?
1: terminate the lease AND vacate the premises
The stinking L. won't fix the roof. My lease says he should fix the roof. Can I withhold rent until he fixes the roof?
not under CL; he breached but you still have to pay; however, cheer up because you can recover damages
So what is the "gutsy" move?
decision to move out when claiming constructive eviction (this is kind of like material/non-material breach in Ks)
what are the std exceptions to traditional caveat emptor re: L's duty?
1) short term leases of furnished dwellings
2) leases of buildings under construction
3) cases of fraud
What is an important traditional duty of T.s?
not to create WASTE
what are the two kinds of waste?
permissive and voluntary
What is permissive waste?
general wear due to elements and use (not done deliberately)
traditionally speaking, is my L. under duty to maintain good repair?
nope
traditionally speaking, what are the T.'s duties re: permissive waste?
T. must keep premises from deterioration and make "necessary" repairs
In 1857, my leasehold was "suddenly" destroyed by a nasty hurricane? Am I responsible?
nope - L. responsible for sudden destruction of premises
Please tell me everything you know about the implied warranty of habitability with respect to residential leases?
*imposed by virtually all states;
*breach of warranty entitles T. to withhold rent
*can be contracted around by parties
*warranty includes:
-bare living requirments
-premises fit for human consumption
-no violation of health and safety codes
what is the Implied Warranty of Suitability and why is it lonely?
pretty much the IWH but for commercial leases; it's lonely b/c it's only applied in TX
what does the IWS include?
-premises suitable for intended purposes
-no latent defects at the lease's inception
-essential facilities remain in a suitable condition
what still reigns triumphant in commercial leases?
caveat emptor!!!!!!!
I had a sweet lease in a building that was destroyed by fire; does my L. have to rebuild?
nope (unless clear obligation in lease)
My flipping gas station burned down; my L. wants me to rebuild - what's the story?
don't do it - this would only be required if it was the clear intention of the parties
My lease doesn't say jack about who should repair stuff; my L. and I are fighting about who should repair fix the water heater; my cousin who goes to law school told me that there were certain factors that a court would consider. What are they?
1: proportion of cost of curative action to the rent reserved
2: length of lease term remaining
3: benefit to T. compared to L.
4: whether curative action is "structural or non-structural"
5: degree to which the lessee's enjoyment will be interfered w/ while curative action is completed
6: likelihood that parties conemplated app of particular law or oder involved
Rationale for American rule?
L. shouldn't be responsible for wrong acts of someone else; parties could just K around this anyway; court should not imply covenant that parties didn't make; tenant has a summary remedy at law to removed holdover tenant
What is one neat suggestion to deal w/ the English/American issue?
apply one rule to residential situations, another rule to commercial situations
What is the right to quiet enjoyment?
tenant has right to enjoy his premises w/o interference by the Landlord
In what three main ways can the cov of QE be violated?
actual eviction; partial actual eviction; constructive eviction
what is actual eviction and what are its consequences?
tenant is physically evicted from entire premises (by L. or someone w/ paramount title); T's rental obligation stops
What is partial actual eviction?
when L. takes a portion of T's premises
What are T's options when partially evicted?
1: seek to regain possession
2: terminate the lease
3: recover damages
does the T. lose his possessory rights upon partial actual eviction?
nope
If I have been partially actually evicted or whatever, do I still have to pay rent?
maybe:
1: rent obligation ceases b/c rent conditioned on whole property OR
2: rent is apportioned according to the remaining part of the property
What is constructive eviction?
some breach by L. that causes a "grave and permanent" interference w/ T's use and enjoyment
I have been constructively evicted. What should I do if I don't want to pay rent any more?
1: terminate the lease AND vacate the premises
The stinking L. won't fix the roof. My lease says he should fix the roof. Can I withhold rent until he fixes the roof?
not under CL; he breached but you still have to pay; however, cheer up because you can recover damages
So what is the "gutsy" move?
decision to move out when claiming constructive eviction (this is kind of like material/non-material breach in Ks)
what are the std exceptions to traditional caveat emptor re: L's duty?
1) short term leases of furnished dwellings
2) leases of buildings under construction
3) cases of fraud
What is an important traditional duty of T.s?
not to create WASTE
lease unclear as to who should fix things; the water heater breaks - who should fix?
look at provisions of length and context:
1) cost of curative action compared to amount of rent reserved
2) length of lease remaining
3)_ benefit to T. or L.
4) whether curative action structural or non-structural
5) degree to which lessee's enjoyment affected
6) did parties think about this?
the building I'm leasing was destroyed; does my landlord have to rebuild?
nope
the gas station I'm leasing was burned down by an arsonist; do I have to rebuild?
nope - not even if there as a condition of returning in as good a condition as received; this would only be required if it was the clear intention of the parties
what is the general rule for T's liabilty to 3rd parties
liability follows control
I have leased an entire building. The mailman slips on a spilled coke in the main hall. Am I liable?
Yup - absent contrary lease provisions, T. who leases an entire building is liable for injuries caused by dangerous conditions thereon.
I lease only one floor of a building. The mailman slips on a coke in a common area that I usually clean up. Am I liable?
no - L. is probably liable
I myself spilled the coke. I knew it was dangerous. I laughed when the mailman slipped. What now?
Your awareness may mean you are liable. But the L. is liable as well.
It used to be that L.s weren't liable for crap that happened to T. or 3rd parties. But now there are a ton of exceptions. What are they?
1. undisclosed dangerous conditions (known to lessor but not to lessee)
2. conditions dangerous to persons outside premises
3. premises leased for admission to public
4. parts of land retained in lessor's control
5. lessor contracts to repair
6. negligence by lessor in making repairs
URLTA isn't very much fun for L.s, is it? Please comment.
URLTA has made L.s liable for more things; for example, L.s have a duty to keep common areas iin a safe and clean condition.
can you think of a good maxim for property law?
liability follows control
I'm a slum lord. I make lots of money. All sorts of crimes happen on my property. Would I ever be liable for those criminal acts?
maybe; usually no, but following exceptions:
1: you assume a duty through K or voluntary program (proportional protection)
2: liability may attach if L. carries out duty negligently
3. liability attaches when someone invites the public to a place for profit or some gain
4. maybe if ample reason to foresee criminal acts and no reasonable precautions
I just signed a lease that exculpated my L. from all liability for injury and property damage. Is that valid?
maybe:
factors:
1) is business suitable for public reg?
2) does party seeking exculpation perform valuable public services?
3)does party hold himself out as willing to perform a swervice?
4) uneven bargaining?
5) contract of adhesion?
6) person or property is placed under control of L.
What are good reasons to uphold liability waivers in leases?
1) freedom of K
2) leases are a private affair not suitable for public regulation
My L. said that he'd reduce the rent by $50 if I signed a waiver. Is that legit?
not very - some jxs void, some jxs just disfavored
what is an assignment?
an entire transfer of interests
what is a sublease?
created when lessee reserves a reversionary interest; T. becomes L. of sublessee
How is an assignment diff from a sublease?
many ways; first, assignment is a transfer of entire interest w/o reserving a reversionary interest; a sublease is when a lessee transfers possessory rights but reserves a reversionary interest; also, sublesase creates neither privity of estate nor privity of K b/w subT and original L; an assignment creates privity of estate
What's the relationship b/w original L. and assignee?
liable to each other on the covs in the original lease that run w/ the land
What is a surety and how is it relevant to assigning leases?
Assignor remians liable for rent as a surety
Can a L. sue a subtenant?
nope - no privity of estate
what is privity of K?
relationship created when parties agree by K
what is privity of estate?
invented by courts to circumvent lack of privity of K; gives L. right to sue assignee of T. on the covs in the lease that run w/ the land; assignee has same rights to sue L>
why should property be alienable?
full utilization of land
when should there be a limitation on rights to assign?
1) express anti-assignment provision
2) when L. enters a lease w/ tenant who has special skills required for L. to get benefit of the bargain
give the views on L's right to withhold consent from assignment.
minority: even w/ express clause, L. must act reasonably
mmajority : L. may withhold consent unreasonably
What are possible legit reasons to withhold assignment?
1) financial irresponsibility of transferree
2) unsuitability or incompatibility of intended use of the property by the transferee
If an assignee has not assumed the lease, when is assignee liable for stuff?
only for covs that run w/ land and only during privity of estate (when assignee is in possession)
what is required for privity of K b/w assignee and original L.?
actual assumption of lease
What if a L. transfers its ownership interest (reversion) to x?
X receives contract rights and X and T. have privity of estate
what is a holdover tenant?
someone who wrongfully retains possession of premises after lease has expired
What are the L's options for dealing w/ a holdover T?
1) evict T as trespasser
2) bind T to a new periodic tenancy according to terms of original lease
What is a wrongful detainer statute?
provision for a summary eviction method which allows a L. to regain possession from a T. who refused to pay rent or has held over
Is there a Const. right to housing?
nope
What kind of things make courts less skeptical about perpetual leases?
rent escalation clauses, T. responsible for all repairs, taxes or whatever
Can the L. use self-help to "encourage" eviction?
nope - L. must use remedy at law; otherwise, L. could be liable to T. for damagees
Does L. have a duty to mitigate upon abandonment?
only in some jxs
Can a L. K out of duty to mitigate?
yup
rationale for recognizing a duty to mitigate?
discourages economic waste, comports w/ the trend of disfavoring K penalties, prevents destruction or damage to the property
What does a L. need to do if it withholds security deposit for a reaon other than unpaid rent?
send a written itemization of deductions w/in 30 days
when does a rental control ordinance constitute an unlawful taking?
when it either: deprives L. of fair return OR doesn't advance legitimate state interests
What are the four categories of found property?
lost/mislaid/abandoned/treasure trove
What is "lost property" and how does law deal w/ it?
owner accidentally lost it and doesn't know where to find it; finder has rights against all except true owner
What is "mislaid" property and how does law deal w/ it?
intentionally placed but forgotten; finder acquires NO rights - owner of premises entitle to possession except to true owner
what is "abandoned" property and how does law deal w/ it?
when owner no longer wants property, finder is entiteld to possession, period.
What is "treasure trove" property?
it's fading away and usually treated as lost property; however, historically it was coins or currency, antiquity, long time ago; finder has rights against all except true owner
I was trespassing on your property and found a millions dollars; mine?
nope - trespasser not allowed to secure possessory rights in found property (rationale: wrongdoer shouldn't be allowed to profit from his wrongdoing)
what is a bailment?
a relationship creatd by the transfer of personal property - bialor to bailee - for the accomplishment of a certain purpose
list some of the characteristics of a bailment?
1. no transferr of title
2. bailee possesses property and is obligated to return or dispose of property in accord w/ terms
3. express K not needed
4. created upon delivery and acceptance of property
5. once bailment is established, the burden is on the bailee to prove due care if property is lost or damaged
Once a bailment is established, who has the burden?
bailee must produce evidence of ordinary care
how is a constructive bailment established?
delivery is not a knowingly intended act, but bailee accepts propety; (ex: when an item is left in a hotel or something)
I had 8 billion dollars in my briefcase. Is the hotel liable for giving my briefcase to someone else?
probably not - only liable for things they coudl have reasonably expected to be in the briefcase
Are bailees insurers?
nope - bailees not liable if goods are damage through no fault of their own
So the bailee returned my car to someone who had stolen my claim ticket? Who is liable?
bailee is not liable - UCC 7-404 - if bailee disposes of good according to terms of a doc, he's not liable
This disclaiomer says that the bailee is exempting himself from liability for his own negligence. legit?
nope
3 elements of a valid inter vivos gift:
intent, delivery, acceptance
describe intent w/ respect to a valid inter vivos gift
present mental capacity, must intend to make an immediate and effective gift of properyt
describe delivery w/ respect to a valid inter vivos gift
title to gift must pass immediatley through an actual or symbolic delivery
describe acceptance w/ respect to a valid inter vivos gift
if gift has value, to donee, law presumes acceptance
what is a causa mortis gift?
made in contemplation of imminent death
What are the reqs of a causa mortis gift?
present mental capacity (intent); delivery during donor's lifteimt; acceptance
True or False: Courts require only a small amount of evidence to uphold a causa mortis gift.
false - courts require convincing evidence
When are causa mortis gifts revocable?
donor expressly reovokes gift, donor recoveres from peril or illness, donee dies before donor
What's the story w/ engagement rings?
most courts treat as a conditional gift; some discussion re: whether to make the decision fault or no-fault; other theories include K approach, inter vivos gift
what is a fixture?
An item of personal property attached to the land so that it that becomes part of the realty (but retains identity); a fixture passes w/ ownership of the land
What are the elements in a fixture analysis?
annexation, adaptaation, intention
What is the annexation factor?
consideration of actual relationship of object to the realty
what is adaptation factor?
when a particular object is clearly adatped tot eh use to which th realty is devoted; is the realty peculiarly valuable in use b/c of the presence of the annexed property?
list some of the factors important in an intention analysis?
nature of article, manner of annexation, injury to land by removal, completeness w/ which chattel is integrated w/ use of land; relation annexer has w/ land; relation annexer ahs w/ chattel; local custom; timpe, place and history; all other relevant facts surrounding annexation
what is the trade fixture rule?
at end of lease, T. may remove business or trade items
what is a fee simple absoulte?
largest esttat permitted by law; of potentially infinite duration; holder has full possessory rights
what is a defeasible fee?
a fee simple estate of potentially infinite duratino that acan be terminated by the happening or non-happening of a specified event; grantor retains a future interest in the estate!
what are the types of defeasible fees?
fee simple determinable and fee simple subject to a condition subsequent
which defeasible fee do courts prefer and why?
fee simple subject to a condition subsequent b/c estate must be terminated by affirmative action (courts don't like forfeitures)
O conveys to A for so long as no alcoholic beverages are consumed on the premises
A has a fee simple determinable and O has a possibility of reverter
O conveys to B and his heirs, provided they don't sell liquor on land, and if they do, then A or A's heirs may enter and terminate the estate
B has a fee simple subject to a condtion subsequent; A has a right of entry
What are the two broad categories of future interests?
those created in the transferor, and those created in a 3rd party
What is automatically retained whenever a grantor conveys a fee simple determinable??
possibility of reverter
When does a possibility of reverter become possessory?
upon occurrence of a stated event
O conveys to A for so long as A uses the land for a golf driving range.
A has a fee simple determinable. O has a possibility of reverter.
What is a right of entry?
a right to terminate retained by a grantor who conveys an estate in fee simple subject to condition subsequent
what is a reversion?
the interest remaining in one who transfers a lesser estate than the estate that person owned
A conveys to B for life.
B. has a life estate; A has a reversion
O conveys to A for 20 years; however, A may be evicted if property used to build a golf course.
O has a reversion and a right of entry. A has a tenancy for a fixed term.
O conveys to A and her successive generations of lineal descendants.
A has a fee simple absolute.
O conveys to A for life; one year later O conveys all of his interest to C.
A has a life estate; O has a reversion interest for one year; C had O's reversion.
O devises "to A for life, then to B if B survives A."
A has a life estate. B has a contingent remainder interest in fee simple absolute. O has a reversion interest if B doesn't survive A.
O owns a life estate and conveys to A for 99 years.
A has a tenancy for a fixed term.
what is a remainder?
a future interest IN A THIRD PARTY that can become possesory on the natural expiration of the preceding estate.
tell me more about remainders.
can't cut short a prior estate, can't follow a time gap, must bge expressly created, always follows a life estate, can aever follow a fee simple
A conveys to B for life and then to C and his heirs.
C has a remainder
A conveys to B for life and then to C and his heirs one day after B's death.
B has a life estate. A has a remainder. C has a springing executory interest in FSA.
what are the two types of remainders?
vested and contingent
what is a vested remainder?
an estate transferred to a born and ascertained person and not subject to a condition precedent
what are a remainderman's rights?
immediate posssession upon normal termination of the preceding estate
what are the three types of vested remainders?
1. totally vested
2. vested subject to partial divestment
3. vested subect to complete divestment
To A for life and on A's death to B.
A has a life estate. B has a vested remainder. Even if B dies before A, the remainder will pass to B's successors
O conveys "to A for life, remainder to the children of B (C-1 currently alive)."
A has a life estate. C-1 has a vested remainder subject to partial divestment.
O conveys "to A for life, then to B, but if B fails to marry before A dies, then to C"
A has a life estate. B has a vested remainder subject to complete divestment. C has a contingent remainder.
what is a contingent remainder?
an estate that is either:
1) subject to a condition precedent; OR
2) created in an unborn or unascertained person
A conveys to B for life and then to C and his heirs if C marries D
B has a life estate. C has a contingent remainder subject to condition precedent. (C must marry D before he can take possession).
A conveys to B for life, then to C and his heirs if C marries D, otherwise to E and his heirs.
B has a life estate. C and E have alternative contingent remainders.
To A for life, then to A's first-born son in fee. (at time of disposition, A has no children)
A has a life estate. A's first-born son has a contingent remainder subject to him being born.
A conveys to B for life, then to C and his heirs; but if C marries D, then to E and his heirs.
C has a vested remainder subject to complete divestment by E's executory interest.
O conveys to A for life, then to B for life, then to C.
A has a life estate. B has a vested remainder in life estate. C has a vested remainder in FSA.
O conveys to A for life, then to B if B reaches age 25. (B is 20)
A has a life estate. B has a contingent remainder in FSA subject to condition precedent (reaching 25). O has a reversion in FSA if the condition doesn't occur.
O conveys to A for life, then to A's children that survive A.
A has a life estate. A's children have contingent remainders subject to condition precedent of outliving A. O has a reversion interest if A has no children.
O conveys to A for life, then to B if B survives A but to C if B does not survive A.
A has a life estate. B and C have alternative contingent remainders.
O devises to A for five years, then to B.
A has a tenancy for a fixed term. B has a vested remainder in FSA.
O conveys to A for life, then to the children of B. (B has a daughter, C-1 at the time of the conveyance. B then has another child, C-2. C-1 dies).
A has a life estate. C-1 has a vested remainder subject to partial divestment if B has more children (such as C-2).
O conveys to A for life, then to B and her heirs.
A has a life estate. B has a vested remainder in FSA.
what is an executory interest?
if a fee simple estate terminates upon the happening of a state event and then passes to a 3rd party rather than reverting to the grantor or giving the grantor a right to terminate, the 3rd party has an executory interest!!!!!
To A and his heirs for so long as no golf courses are built on the premises; in that event, to B.
A has a fee simple determinable; B has an executory interest.
Blackacre deeded to XYZ church, but if used for anything other than Church (like golf), then to B.
XYZ church has a fee simple determinable. B has an executory interest.
what is a springing executive interest?
means that the interest WILL arise in the future
what is a shifting executive interest?
means that one party's estate is cut short and the interest is shfited to a 3rd party at a future time
O conveys to A upon A's marriage to B.
A has an executory interest in FSA that will spring int he future upon marriage.
O conveys "to A in 2015."
O has a present possessory interest in fee simple subject to a springing executory interest. A has an executive interest that will spring in 2015.
O devises "to A, but if A dies w/o children living then to B."
A has a present estate in fee simple subject to a shifting executory interst. B has a shifting executory interest.
O conveys to A for life, then to B, but if B does not survive A, then to C.
A has a life estate. B has a vested remainder in FSA; C has a shifiting executory interest in FSA
what is the Rule in Shelley's case?
CL: if same isntrument creates LE in A and gives remainder only to A's heirs, remainder not recognized (A would take both life estate and remainder)
what is the doctirne of worthier title?
a remainder in grantor's heirs is invalid and becomes a reversion in the grantor
A to B for life, then to the heirs of A. (consider doctrine of worthier title)
B has a life estate, and A has a reversion.
what is the destructibility of Contingent Remainders?
at CL, a contingent remainder was destroyed if it failed to vest before or upon the termination of the preceding freehold estate
A conveys to B for life, then to C if she reaches age 21.
if B dies before C reaches 21, C is out of luck (meaning her remainder is destroyed)
what is the RAP?
An interest is void if there is any possibilty that the interest may vest more than 21 years after some life in being at the creation of the interest.
O devises to A for life, then to B if B survives A.
A has a life estate. B has a contingent remainder in fSA. O's heirs have a reversion interest if B doesn't survive A.
O conveys to A so long as the property is used for commercial purposes, then to B.
RAP invalidates B's contingent interest b/c it is unknown how long the property would be used for commercial purposes. So A has a Fee simple determinable.
O conveys to A for life, then to B. O is 93 and in poor health. A is ten years old.
A has a life estate. B has a vested remainder.
O conveys to A for life, then to A's first child to reach 25. (At time of conveyance, A has one child, age 24)
A has a life estate and A's first child has a contingent remainder. A's kid has notta b/c RAP invalidates their remainder.
O conveys to upon A's marriage to B.
uncertainty will be resolved w/in A's life + 21 years so no RAP; O has a fee simple subject to A's springing executory interest. A has a spring executory interest in FSA.
how have courts modified the RAP?
Cy Pres, Wait and See, equitable modification
how do courts treat a doc that is affected by RAP?
some just modify it; others hold that any agreement that violates the rule is void
what is Cy Pres?
reform conveyance and carry out grantor's interest as much as possible
what is "wait and see approach?"
determine validity at end of life estate rather than at creation of interest
when can courts modify a will to effectuate intent?
conditions:
1: intent easily determined
2: general intent doesn't violate rule
3: particular intent that violates is not that important
4: modifications will effectuatte general intent and avoid consequesnces of intestacy and conform to policy considerations
what is a tenancy in common?
tenants concurrently own the same or diff percentage interests in the property - each is entitled to possession of the whole?
Are TiC interests alienable and stuff?
yup
What is favored: tenancy in common or joint tenancy?
tenancy in common.
what is a joint tenancy?
right of survivorship
what is required to form a joint tenancy?
unities of time, title, interest and possession - tricky lang - usually must say "as joint tenants, with rights of survivorship, and not as tenants in common" or something stupid like that
what is a tenancy by the entirety?
marital estate akin to JT, limited exclusively to married couples, cannot be severed unilaterally, cannot be conveyed unilaterally, cannot be encumbered by only one individual, blah blah and blah
How many diff approaches are there to the rights of creditors in one party's interest (in a tenancy by the entireties)? Describe the approaches
3; 1: interest of debtor spouse may be sold for his debts subject to the other spouse's contingent right of survivorship
2: attempted conveyance by either spouse is void, and estate may not be subjected to the separate debts of one spounse only; 3: contingent right of survivorship of either spouse is attachable by creditors durign the marriage
I own a sweet ranch with my friend Trygg. Trygg goes through a mean streak, and excludes me from the property. He sits outside the gate all day with a gun. Can I make him pay me rent?
yup - if a co-tenant is excluded from use of the property by other T.s, the excluded T. has the right to collect rent for her portion of the property from the exclusive tenants
Trygg has now moved to the bahamas, but has rented out the ranch to Isaac. I still can't go to my ranch. Options?
huzzah for the Statute of Anne. If a co-T. receives more than his share of rent, he must split it fairly with other co-T.s. this is limtited to rental payments and other tangible receipts from a 3rd party.
While Trygg was exluding me, he did put in a neat swimming pool. We finally sold the ranch last week, and it fetched $40K more than it would have w/o the swimming pool. What's the story?
Trygg gets some of that $ - a co-T can receive enhancment valud of the improvement to the property (measurement is diff in value b/w land w/o improvements and land w/ improvements); however, the swimming pool $ would be offset a bit by my damages for exclusion
what constitutes ouster?
tenant out of poss. must show acts of possession inconsistent w/ right of co-T.s and such as would amount to an ouster b/w L. and T., and knowledge on the part of hte co-T. of his claim of exclusive ownership
how does a divorce affect a joint tenancy?
absent explicit statement, the divorce decree doesn't elimnate the rights of survivorship; essentially, the parties must have a CLEAR intent to partition the tenancy
so how can I sever my joint tenancy?
well, you can probably just execute and record a self-conveyance. However, in some jxs, you may need to use a strawman. What's important is intent and notice!
Emily and I own a sweet ranch in Joint Tenancy. As we get older, we both become a little senile. I am very adamant that all of my property should go to the USGA and I have said that in my will. Emily is very adamant that all her property go the Chruch and she has said that in her will. Emily gets the wise idea of leasing her portion of the ranch to her crazy cousin Danica for 99 years. Emily passes on one day before I do. What happens?
courts differ in their approach;
1. some courts hold that a lease does not amount to a severance fo the JT; if the JT dies, the lease becomes null and the T's interst goes to the other JT by right of survivorship (all property would go to USGA and they could kick out Danica)
2. conveyance is a severance; if JT dies, interest in estate goes to her heirs (USGA gets 1/2, Church gets 1/2)
3. conveyance is merely a temporary severance (same result as 2 - but it could have been diff under diff facts)
what happens to a Tenancy by the entirety when not mentioned in the divorce proceedings?
TinC or JT - jxs are split - args on both sides
majority: TiC most likely representative of parties' intent
minority: divorce does not affect title of parties to the property, and arangment becomes a JT
jeremy and Angie owned a house as Tenants by the entirety. They separated and the ageement said that Angie would have exclusive possession for a certain period; at end of period, house to be sold and proceeds divided. Angie later filed for divorce. B/fore divorce decree and before house was sold, Angie died, leaving A as her sole heir. Who owns what interest in the house?
Jeremy gets it all - because the separation agreement did not terminate the tenancy by the entirety, and the agreement to seek a buyer and convey the entireties interest in the future did not transform the tenancy to one in common. The court reasoned that the separation agreement was an executory contract and was not an instrument of partition or division under applicable law
what is dower?
widow entitle to a life estate in 1/3 of all inheritable land which her husband had at any time during marriage
what two types of interests are represented by condos?
FSA and TiC
what are some of the regulatory measures on apt to condo conversions?
approval by certain percentage of tenants, giving tenants advnace notice and right of first refusal, moratoriums on conversion
what are the options for time-sharing?
1) TiC w/ separate agreements
2) interval onwership, with each owner a tenant for a specific tenancy for a fixed term, and an undivided interest in a vested reaminder
what are the possible ways to clearly express the intent to sever a JT?
1. voluntary conveyance
2. partition
3. mutual agreement
4. forced severance
A and B are JTs. A murders B. who gets property?
1: B's heirs
2: 1/2 to each party (A gets 1/2 interst, B gets 1/2 interst)
3: A keeps by right of survivorship (leave crim law up to crim system)
What are the two rights of property owners?
present enjoyment and possession
If you're worried about a JT getting busted, how could you ensure survivorship?
use future interests
what is owelty?
payment from one former TiC to another former TiC when there's a diff in value of estates partitioned
can creditors reach a wife's dower interest?
nope
what's a statutory share?
suriving spouse given 1/3 or 1/2 of decedent's estate in fee simple (not just a life interst) - covers both real and personal property owned at time of death
If W's husband dies, with a will, what are her options?
statutory share or will; creditors can reach these interests
What is an easement?
a right to use or limit use of another's property for a special purpose (not the right to possess)
what are two general types of easements?
affirmative, negative
what are two other general types of easements?
in gross, appurtenant
what is an easement in gross?
personal
what is an easement appurtenant
runs with the land
is an easement in gross transferable?
nope
does an easement need to be in writing?
yes, if for more than 1 year - must be in writing and signed by holder of servient tenement
what are the rules for creation of easements?
1: can't create easement on own property
2: intention to grant must be manifest
3: presumption in favor of easement appurtenant
4: test for appurtnenacy is whether the easement is a useful adjunct
5: presumption for termination when purpose is gone
6: easement appurtenant passes w/ dominant estate even if not specifically mentioned
what is express reservation?
transferor of property may reserve an easement to benefit land that the transferor retains
what problems arise in an express reservation?
when transferor seeks to reserve an easement to benefit someone else; courts divided; trad view: cannot reseve and easement to benefit a stranger; other courts recognize intention of transferor
why do courts give interpretation preference to easement appurtenant?
b/c cthey look at relationship of land, bias toward alienability, court willing to allow an owner to put a burden on his own property
what/how is an easement created by implication
created by operation of law rather than by express grant
what 3 elements must be shown to establish an easement by implied reservation?
a) permanent andd obvious servitude
b) continuity
c) reasonably necessary for enjoyment
what's the story with an easement implied by necessity?
1) unity of title
2) severance
3) necessity at severance
4) necessity continues
even if an easement implied by necessity is found, what rights does the servient estate still have?
the right to reasonably locate the easement
what is an easement implied from a quasi easement?
prior to time tract is divide, a use exists and parties intended use to continue to exist after division of property
what are the reqs for implied from quasi-easement?
1)common ownership at severance
2) common owner's use was apparent and continuous
3)land was actually transferred)
4) at severance, reasonably necessary to continue preexisting use
-some courts require strict necessity;
-reasonable necessity must be more than just convenient
easement implied in favor of grantor is a _________
implied reservation
easement implied in favor of a grantee is a _______
implied grant
I live in Wyoming and I want to condemn an easement in my neighbors property. Can I?
probably, but you'll have to pay him and show necessity (statutory way of necessity)
when the language is ambiguous, where should I look?
at the parties' intent
what's the story w/ prescriptive easements?
analagous to acquiring property by adverse possession
to acquire a prescriptive easement, use must be:
1) open and notorious
2) adverse
3) continuous and uninterrupted
4) for the statutory period
Can the general public acquire a prescriptive easement?
no - prescriptive easement ends up being an easement in gross, and rights are confined to actual adverse user
Are there easements for light and air?
not really; in English CL, though, there was some ancient lights stuff
I have a easement that i got from a general grant. I want to build disneyland, using the easement to funnel everyone in. O.k?
the increased use of the easement in Hayes v. Aquia Marina was o.k.; however, this change must be "reasonable"
My easement was for walking my dog across. Now I want to use it for building a massive sewage line. O.k.?
no, different use of easement usu. not allowed; however, courts assume easement was intended to meet both present and future needs (ex: wider cars)
I have an easement on a path across my neighbor's back yard. Can I build a highway?
no. use that imposes additional burden on servient estate usu. not allowed;; however, improvements are allowed
who cleans up my easement?
you do; easement holder has right to use reasonable efforts to clean or repair an easement
can I move my easement by a unilateral act?
nope
can I let my brother run across my easement?
yes - easement not for the exclusive right of easement holder (absent express provision)
Can I transfer my easement in gross to my cousin Jimmy?
no (unless you had intent to make it assignable, or unless it's an easement for commercial purposes)
i stopped using my easement. Does that mean I've abandoned it and it's terminated?
no; easement holder must show a clear intention to abandon
What happens when I buy my neighbor's property that i had an easement on?
easement ends by merger
can an easement be terminated by prescription?
yup
I conveyed mys ervient estate to a bonda fide purchaser w/o providing actual, constructive or inquiry notice of the easement.
easement terminates
what is a license?
license privilege their holders to go upon the land of another
Is my license an interest in land??
nope; it's just a privilege
Can I sell my license on ebay?
nope
when can my license be revoked?
any time; except:
1) give me reasonable opportunity to leave
2) if it's coupled w/ interest
3) reasonable reliance (huzzah for estoppel)
what is an irrevocable license?
an easement by estoppel (courts are split on this stuff)
what is a real covenant?
a written promise to do something on the land or a promise not to domsething on the land
what do real covs run with?
the land; this means subsequent owners may enforce or be burdened by the covs
How do I create a cov that will run w/ the land?
1) enforceable promise
2) don't violate rules of K or const.
3) SoF!
what is an alias of a reciprocal negative easement
equitable servitude
what is an equitable servitude?
cov that equity will enforce against the assignees of the burdened land who had notice of the covenant
must equitable servitudes satisfy SoF
usually; exception: common scheme for devleopment of a residential subdivision
to enforce a real cov at law, you must first remember a long list for your property exam. Attempt.
1. enforceable (meaning clear)
2. intent (original parites)
3. touch and concern (relate to the land in some way)
4. privity of estate (huzzah for vertical and horizontal)
5. notice
isn't equity easier than law? explain
yup - only touch and concern, burdened party have notice;
focus on reasonbaleness, intent, notice
I like randomly driving throughout the country attempting to enforce real covs. Is that legal?
not really; the usual court issues relate to developers and subdivision residents; in general, it's helpful if you live nearby; common schemes are neat; hopefully the developer didn't reserve Zeus-like power to approve exceptions
when do real covs terminate at common law?
ha ha trick question
what are some reasons for a real cov to end?
1. statute
2. destroyed by merger, release or prescription
3. parties' conduct or change of circs
what is an exclusive right to sell listing?
seller pays listing broker a commission no matter what
what is an exclusive agency listing?
seller pays commission if anyone but seller produces a purchaser
what is an open listing?
seller pays commission only if broker produces a purchaser
what's the deal on commissions? is there some kind of split?
some jxs: ready willing and able
others: sale must be consummated
I'm selling my house. My broker found a buyer and did all the work. Then I decided i didn't really want to sell so I trashed the place and imported one million fireants. The buyer backed out (huzzah!) But now my broker wants money? What's the deal?
yup - broker may be entitled to a commission if seller interfered w/ closing in bad faith or was otherwise at fault for the sale not being consummated
brokers v. lawyers
brokers can usually fill in ks, but when acting as attorney, they have std of care of an attorney
how does a deed pass the SoF?
writing or part performance
explain writing req for a RE contract of sale
SoF doesn't say but most courts think
1: name of parties
2: description of land
3: purchase price
4: signed by party to be charge
explain rationale for part perf
SoF really is just about protecting against fabrication; estoppel should protect honest folks against the evil SoF
explain factors as to what constitutes part perf
1. payment of consideration
2. taking possession of the property
3. making improvments
(some courts require one, others more; payment isn't sufficient)
marketable title?
every K contains an implied warranty that the seller will provide marketable title at closing
reasonable prudent buyer std
need not be perfect title; should be free of q.s that present unreasonable risk of litigation
when must a title be marketable?
closing
There's a swamp on my property that no one knows about except me because I hid it. Will this affect marketable title?
usu., physical defects don't affect title; however, if you were being sneaky, buyer might get you for fraudulent misrep
what happens if title is unmarketable at closing?
purchaser can w/draw of sometimes get spec. perf. w/ abatement of price
Can I expressly K for a cloud-free title?
yup.
I was not aware of the title defect. Am i liable for actual damages?
courts are split
i was aware of title defect but I distracted the buyer w/ ice cream. Liable? consequences?
yes; buyer entiteld to damages based on K-market differential
Is spec. perf. available for sellers?
sometimes - it's controversial
will the breaching buyer forfeit his deposit?
if non-intentional breach, and seller suffered no loss, buyer probably getts his deeposit back
what two docs does a mortgage txn usually involve?
promissory note and mortgage
what is a redemption in equity?
opp for mortgagor to redeem property before foreclosure sale
what is a subject to financing clause?
basically the sale doesn't go through w/o financing, and there is no breach; intent is to protect buyer from an involuntary breach
is a contract too vague to be enforceable when it doesn't say the interest rate?
*some jxs say K too vague; others courts are willing to read in a reasonable rate
I'm taking over my uncle bob's mortgage. What are my options?
you can either: 1) start paying w/o any obligation to lender; 2) expressly assume the obligation
is forfeiture in an installment land K favored?
nope - courts will require foreclosure over forfeiture when: unconscionable result OR the defaulter will lose too much money (courts compare amount lost to the total purchase price; if the amount lost is a substantial percentage, then foreclosure will follow)
what are other factors in determining whether to allow a forfeiture in an installment land K?
1) who pays taxes and insurance
2) timing of default
3) motivation behind default
4) abandonment by purhcaser
(at common law) A conveys to B; A conveys to C; who wins?
A - at CL, "first in time, first in right"
is recording essential to the validity of the deed
(no) but it is helpful in protecting the grantee's rights
what do recording statutes provide:
1) any doc affecting tile should be recorded
2) recording the doc gives constructive notice
3) if the doc not recorded, person claiming under it will lose priority against subsequent bona fide purchasers
describe a race system
whoever records first wins; notice is not relevant
describe a race-notice system
subsequent purchasers are protected only if they pay value, take w/o notice AND record before previous purchaser
describe a notice system
subsequent purchaser is protected only if he pays value and takes w/o notice (key is that subsequent purchaser had no actual or constructive notice at the time of conveyance)
(notice system) O conveys to A on Jan 1. A does not record. O conveys to B on Jan 15 for valuable consideration. B had no notice.
B prevails over A. (doesn't matter if A records after Jan 15)
race-notice: O conveys to A on Jan 1 (NR) O conveys to B on Jan 15. B has no notice. A records on Jan 18. B records on Jan 20;
A prevails over B b/c B didn't record first
O first conveys to A who fails to record; O next conveys to B, who knows of the conveyance to A and records.
race: B wins
notice: A wins
race-notice: A wins
What if B has no notice of conveyance to A and fails to record, and A records after conveyance to B?
race: A wins
notice: B wins
race-notice: A wins
what must one do to qualify as a bona fide purchaser?
give valuable consideration and take w/o notice
How can donees protect themselves?
by recording first
is nominal consideration enough to qualify as a purchaser for value?
courts are divided
what is a wild doc?
when a prior essential instrument in the chain of title has not been recorded, any later recorded instrument is "wild"
does a QC deed put buyer on inquiry notice?
some courts say yes, the purchaser must search beyond the chain of title
Does a landowner ever have to search beyond his own deed for restrictions on title?
maybe, if land is conveyed by a common grantor, landowner should look at all deeds conveyed by the grantor for restricitons on his own property
what signs of possession will "arrest attention" and thus put subsequent purchasers on inquiry notice?
some jxs: any open and obvious signs; ther jxs: subsequent purchaser must actually see the property
what do marketable title statutes do?
limit the required period of search to a certain period of time
why might marketable title statutes be unconstitutional?
b/c they raise q.s of unconst. takings b/c they can eliminate prior interests
heluva
hostile
exclusive
lasting
uninterrupted
visible/open/notorious
actual
does adverse possession apply against holders of future interest or nonposessory interests or the govt?
nope
what is the exclusive element?
means the possessor is not sharing w/ the true owner or the public
what is the actual element?
acutally using the property as an owner would (for suitable purposes)
what does lasting mean?
lasts for the statutory period
uninterrupted
msut be continuous througout statutory period
what does hostile mean?
w/o owner's permissions, uses property as his own, doesn't permit others w/o permission
what does visible/open/notorious mean?
AP's occupation of the property must be sufficiently apparent to put the true owner on notice that a trespass is occurring
can you claim AP against the govt?
nope but maybe you can against muni govts (split: some give munis exemptions, others just give munis a rebuttable presumption re: public use)
what is title insurance?
a guarantee made by a 3rd party who has examine the chain of title
why is title insurance kind of BS?
b/c they can make exceptions for anything they want to (this allows them to assess risk very accurately)
My title insurance co. did a crappy title search. Can I sue them for negligence?
some jxs: yes (they hold themselves out as experts; other jxs: nope, they're just an insurance co.
Have you ever seen a title insurance company out inspecting a property?
nope
I found a defect in my title. Should I just sell and not tell my title insurance co?
no; you can't do that (you should notify title co. of defect)
what things must a deed include?
names, words of conveyance, grantor's signature (sometimes witness signatures)
What does adequacy of description basically depend upon?
whether the description can refer to one and only one piece of land
The river slowly expanded my property.
Sweet for you.
The earthquake suddenly expanded my property line.
no it didn't; it stayed at the same place as it was before the natural boundary shifted
what kind of covs are in a general warranty deed?
present and future
what kind of present covs are in a general warranty deed?
seisin, right to convey, covenant against encumbrances
is a violated public zoning ordinance at time of conveyance a breach of cov against encumbrances?
courts are having a hard time with this . . .
do present covs in a GW deed run with the land?
nope
do future covs in a GW deed run with the land?
yup
what are the future covs in a GW deed?
QE, cov of warranty, furhter assurances
what is the cov of QE?
grantor promises the grantee will not be disturbed in possession of a 3rd party's lawful claim of title (as by a paramount title holder)
what is the cov of warranty?
grantor agrees to defend against reasonable claims of title by a third party, and compensat the grantee for any loss sustained by the claim of superior title
what is the cov of further assurances?
grantor promises to perform acts or execute docs necessary to make the title good
who should I sue if evicted by lawful claim of title?
everyone up the line
how much can I recover?
some jxs: full consideration received by a D-covenantor
others: lesser of what paid v. what received
what is a special warranty deed?
includes all 6 covs as in GW deed except that grantor promises only that the estate is free from encumbrances created by the grantor
what is delivery and why is it important?
refers to grantor's intention to make a deed presently effective even if possession is postponed; essential to validity of conveyance
I turned delivery over to a third party to deliver to Bob upon my death, but I told the third party I might want it back. valid delivery?
nope
must a condition attached to delivery be expressed in the deed
yes and no
what is the merger rule?
accceptance of deed tenderened in perf of a K merges or extinguished the covs and stips of the K
I signed a k that warranted against encumbrances. but the deed said it only warranted against potatoes. What kind of warranty do i have?
nothing - the warranty in the deed merged into deed b/c it should have been in deed
what is the warranty of quality by a builder?
length (reasonableness) breadth (livable, workmanlike quality), damages (usu. cost of remeding the condition)
I negotiated with my builder and he bought me a #6 at Wendy's in exchange for no warranties in the bargain. My sprinkling system just broke; can I make him fix it?
hmmm . . .if "no warranties" was part of the bargain, you might be in bad shape; but you could argue that you weren't aware that he was disclaiming the implied warranty
I bought my house from Bob who bought it from the builder. I would like to sue the builder.
two views:
1) privity of K required (you're out of luck)
2) no privity of K required (sue away)
How will the builder defend himself?
showing the defects are the result of wear and tear on the house or that previous owners have made substantial changes
The builder put in clear and unambiguous language that he was contracting out of the implied warranties bit. What gives?
he can do that.
So the people knew their water heater was broken but didn't tell us. I even asked and they lied. What gives? I wouldn't have bought the place if I had known I would need to buy a new water heater.
sue for damages.