Real Property

Front 1

Present Estates -
4 Broad Types

Back 1

1) Fee Simple Absolute
2) Defeasible Fees (3 Kinds)
3) Fee Tail
4) Life Estate

Front 2

Fee Simple Absolute

Back 2

• “To A” = enough
• = absolute ownership of potentially infinite duration
• Divisible (can leave it in your will), Descendible & alienable
•Future Interest? = A’s heirs have NOTHING (only A has ownership)
• Sinead O’Connor - “A living person has no heirs”

Front 3

Fee Tail

Back 3

• “To A & the heirs of his body”
• Historically would pass directly to lineal blood descendants NO MATTER WHAT
• About preserving dynasties
• If try to create it today it's made into a Fee simple Absolute

Front 4

Defeasible Fees -

Fee Simple Determinable

Back 4

• In NY = Fee on Limitation
• “To a so long as”, “To A during”
• = looking for clear durational language
• Forefeiture is automatic if stated condition is violated - very harsh
• = divisible, descendible & alienable
• BUT always subject to the condition!!!!!! Condition is carried w/ it.
• Mick Jagger Rule
• Future interest = possibility of reverter (FSDPOR)

Front 5

Deafeasible Fees -

Fee Simple Subject to Condition Subsequent

Back 5

•in NY = Fee on Condition
• “To A but if X occurs, grantor reserves the right to reenter & retake”
• This estate is NOT automatically terminated BUT can be cut short at the grantors option if the stated condition occurs
• = Bobby Brown of Estate System
• Accompanying future interest = RT of reentry (syn w/ power of termination)
(NY = RT of reacquisition)

Front 6

Defeasible Fees -

Fee Simple Subject to Condition Subsequent (cont.)

Back 6

• NY = Fee on Condition
• Future Interest = Executory interest held by O

Front 7

Defeasible Fees -

Fee Simple Subject to Executory Limitation

Back 7

• “To A but if X occurs then to B”
• Potentially infinite, so long as stated contingency does NOT occur
• Alienable, devisable, descendible all subject to the condition
• = if condition broken estate is AUTOMATICALLY forfeited in favor of someone other than grantor
• Future Interest = Executory Interest held by 3rd P (who = beneficiary)

• Words of mere desire/hope/intent = NOT enough (insufficient to create)
• CT requires clear language b/c disfavored
• NOT ENOUGH = "To a for the purpose of constructing a day care center" OR "To A w/ the hope that she becomes a lawyer" OR "to A w/ the expectation that..."
• In these examples, A has a fee simple absolute

Front 8

What is the Rule on Restraint on Alienation?

Back 8

• An Absolute restraint on alienation is an absolute ban on the power to sell or transfer that is not linked to any reasonable time-limited purpose
• E.g. "To A so long as she never attempts to sell"
• = VOID & A has a fee simple absolute
• BUT "To A so long as she does not attempt to sell until 2008 when clouds on title will be resolved"
• = OK (A has a fee simple determinable & O has POR)

Front 9

What is a life estate and what is a life estate pur autre vie?

Back 9

• = must be measured in explicit life time terms & NEVER in terms of years
• = the romantic estate -“will love you all the days of your life” or “all the days of my life”
• A = has life estate & A known as the life tenant
• O has a reversion, meaning at end of A’s lifetime will revert back to O or O’s heirs
• Pur Autre Vie = life estate measured by a life other than the grantee’s
“To A for the life of B”
• Alienable, devisable & descendible if pur autre vie & measuring life is still alive
• Future Interest = reversion if held by O & remainder if held by 3rd P
• Mick Jagger Rule
• A is known as the "Life Tenant"

Front 10

Doctrine of Waste
(When does it apply + what are the 2 General Rules)

Back 10

•Applies whenever more than one entity has an interest in Blackacre
• Life Tenant is entitled to ALL ordinary uses & profits from the land
• BUT Life tenant must NOT commit waste (= do anything to harm future interest holders)

Front 11

What are the 3 strands of Waste?

Back 11

1) Voluntary or Affirmative Waste
2) Permissive Waste
3) Ameliorative Waste

Front 12

Voluntary or Affirmative Waste

What is is it & what is it referring to?

Back 12

• = actual overt conduct that causes a decrease in value
• E.g. Russell Crowe causing willful acts of destructiveness in the house = will be held liable
• General Rule – thinking about natural resources like timbre, oil, etc.

Front 13

Exceptions to Voluntary Waste

What is the acronym & what does it stand for?

Back 13

PURGE

PU = Prior Use (but Open Mines Doctrine = limited to mines already open)

R = Reasonable Repairs (may consume natural resources for reasonable repairs & maintenance of the premises)

G = Grant (life tenant may exploit if expressly granted RT to do so)

E = exploitation (land is suitable ONLY FOR exploitation, such as w/ a quarry)

Front 14

Permissive Waste

What is is it & what is it referring to?

Back 14

• =land is allowed to fall into disrepair OR the life tenant fails to reasonably protect the land
• Syn. w/ neglect
• Duty to Repair = life tenant must simply MAINTAIN in reasonably good repair (doing no more & no less than ordinary maintenance would require)
o E.g. Russell Crowe required to patch up leaking holes but not replace the entire roof/ceiling
• Life Tenant also required to pay ALL ordinary taxes to the extent of the premises fair rental value

Front 15

Ameliorative Waste

Back 15

• May not engage in acts that will enhance the property’s value – unless future interests holders consent
• Have to demonstrate consultation of interest holders that are known & their consent
• About nostalgic value (don’t want Blackacre turned into a multi-Cineplex)
• NY = life tenant may make improvements that are reasonable UNLESS the remaindermen OBJECT

Front 16

6 Categories of Future Interest & How They Are Classified

Back 16

In Grantor:
1) Possibility of Reverter
2)RT of Entry (aka Power of Termination)
3)Reversion

In Transferees
4) Vested Remainder (3)
5) Contingent Remainder
6)Executory Interest (2)

Front 17

Future Interests Retained by Grantor
(Characteristics)

Back 17

o Reverter (accompanies ONLY fee simple determinable)(FSDPOR)
o Right of Entry (also known as Power of Termination)
Accompanies only fee simple subject to condition subsequent (Bobby Brown)
o Reversion (= future interest that arises in O who transfers an estate of lesser magnitude than she started w/ (excluding 2 previous options)

Front 18

Future Interests Retained by Transferees
(Characteristics)

Back 18

Vested remainder
• Indefeasibly remainder
• Vested Remainder subject to complete defeasance (vested remainder subject to total divestment)
• Divested remainder subject to open

Contingent Remainder

Executory Interest
• Shifting
• Springing

Front 19

Remainder Definition & Comparison To Hollywood

Back 19

• Remainder = future interst created in a grantee
• = Forrest Gump b/c = inherently sociable, patient & polite
Never by themselves – always accompanies a preceding estate of KNOWN FIXED DURATION (= caboose) (on BEX = usually a life estate OR a term of years)
• “To A for life & then to B” OR “To A for 10yrs & then to B”
• B = Forrest Gump who waits patiently for A’s duration to run its course

REMAINDERMAN NEVER FOLLOWS A DEFEASIBLE FEE
• Doesn’t have it in him to be the beneficiary of another’s misfortune
• Remainderman waits patiently for preceding estate to run its natural course
• Instead future interest in these cases would be an executory interest if held by someone other than grantor

Front 20

Vested Remainders vs. Contingent Remainders

Back 20

Vested =
BOTH created in a known ascertained person AND
NOT subject to any condition precedent

Contingent =
Unascertained person OR Subject to condition precedent OR
Both

NY: Future interest in the transferee that is subject to condition precedent CALLED "Remainder Subject to Condition Precedent"

Front 21

Vested vs. Contingent (cont.)

Back 21

Remember, while B is alives, B's heirs are unknown
so
"To A for life, then to B's heirs" - if & while B is alive = CR

"To A for life & then to B's heirs who survive A" = CR

"To A for life, then, if B graduates college, to B" (B in high school now)
- B has CR & O has a reversion
- If B graduates it becomes an indefeasibly VR

Front 22

Contingent Remainders - 3 Limiting Doctrines

Back 22

(1) Rule of Destructibility (abolished in NY)
(2) Rule in Shelley's Case (abolished in NY)
(3) Doctrine of Worthier Title

Front 23

Rule of Destructibility

Back 23

= CR destroyed if still contingent at the time preceding estate ended

o Historically B’s CR would be destroyed; O or O’s heirs would take in fee simple absolute

o TODAY Destructibility Rules has been largely demolished – today O or O’s heirs would hold the estate subject to B’s springing executory interest (once B reaches age, he takes)

Front 24

Rule in Shelley's Case

Back 24

• Applies in 1 case only – "To A for life, then on a's death, to A's heirs"

• Historically present & future interest would merge, giving A a fee simple absolute

• Would prevail in the face of contrary grantor intent

• TODAY = virtually abolished
o A would have a life estate & A’s yet unknown heirs have a contingent remainder

O has a reversion since A could die w/o heirs

Front 25

Doctrine of Worthier Title

Back 25

• O WHO IS ALIVE tries to create a future interest in his as yet unknown heirs

• If DWT did not apply, A has life estate & O’s heirs have contingent remainder

• Instead B/c of DWT = contingent remainder in O’s heirs is void; & thus A has life estate & O has a reversion

• DWT endeavors to promote free transfer of land

• LIVES ON TODAY – grantors intent controls … DWT demurs to grantor’s intentions & so it did not perish

• Abolished by statute in NY for transfers after 1967

Front 26

DWT (cont.)

Back 26

"To A for life, then to O's heirs."

Front 27

3 Kinds of VRs

(*ONLY remainders can be vested!)

Back 27

• Indefeasibly VR
• VR Subject to Complete Defeasance (= Total Divestment)
•VR Subject to Open

Front 28

Indefeasibly VR

Back 28

• Certain to acquire estate in future w/ no conditions or strings attach

"To A for life, remainder to B" (both alive)
– A has life estate; B has indefeasibly vested

Remainder b/c B is known & there are no strings attached to B’s taking

At CL, B’s future interest passes by his will or by intestatee to his heirs

N’Sync of VRs

Front 29

VR Subject to Complete Defeasance (= Total Divestment)

Back 29

•Remainderman = known & not subject to any condition precedent
• NO prerequisite
• BUT could be cut short b/c of a condition subsequent!

• "Comma Rule" = comdition follows phrase - taken alone & set off by commas - that would be a VR (= remainder to B)
• "To A for life, remainder to B, provided however that if B dies under the age of 25, to C"
- A has life estate
- B has VRCD
- C has shifting executory interest
- O has a reversion b/c neither C nor C's heirs might exist when breached

BUT if language set off by commas appears before language creating the remainder = condition precedent & you have a CR

e.g. To A for life, & if B reaches 25, to B"
- B has a springing EI if not yet 25

Front 30

VR Subject to Open

Back 30

• =Divested in a Group
• At least one member of group = qualified to take possession
• Each member's share = capable of getting smaller b/c additional takers not yet ascertained can still qualify

•"To A for life, then to B's children"
- current children have a VR subject to open
- if children pre-decease A, at CL their share goes to their devisees or heirs

• Class can be either open or closed

• When does it close?
CL Rule of Convenience = class closes whenever any member can demand possession
E.g. when A dies, class closes

ONE EXCEPTION - Womb Rule

Front 31

Executory Interest
(define & give 2 branches)

Back 31

Executory Interest = future interest created in a transferee & takes effect by either “cutting short” some interest in another person (shifting) or in the grantor/heirs (springing)

- Think Dr. Evil as opposed to Forrest Gump

e.g. "To A & his heirs, but if B returns from Canada sometime next year, to B & his heirs"
B - shifting executory interest
(NOT a remainder b/c those NEVER follow defeasible fees)

A - fee simple subject to B's shifting EI

Front 32

Executory Interest
(more on shifting & springing)

Back 32

SHIFTING
- "To A, but if A uses land for commercial purposes in next 20yrs, to B"
B - shifting EI
A - FS subject to B's EI
- Does NOT violate RAP b/c time limit
- Does NOT matter that A controls her destiny... B still benefits & A subject to B through forfeiture

SPRINGING
- "To a if and when A marries"
- O has fs subject to A's springing EI
- does NOT violate RAP b/c will know by the end of A's life

NY: ABOLISHED distinction btw CR & EI... both now = Remainders Subject to Condition Precedent

Front 33

Rule Against Perpetuities

(what is it?)

Back 33

• = certain kinds of future interest or void if given interest may vest 21yrs after the death of a measuring life
• compromise so that you can tie up land w/ conditions, rules, & uncertainties for only life of one person alive + 21yrs

(= approx. 100yrs)

Front 34

RAP
4 Step Technique for Assessing Potential Problems

Back 34

1) Determine which future interests have been created by the contingency
2) Indentify the conditions precedent to the vesting of the subject future interest
3) Find a measuring life (alive at the time & relevant)
4) Ask "will we know w/ certainty w/in 21yrs from death of measuring life if future holder can take?"

Front 35

RAP
3 Part Process for Getting it Right 80% of the Time

Back 35

1. Last person mentioned by proper name & all prior parties take

2. Next subsequent person not mentioned by proper name takes

3. All additional Parties lose & the property reverts back to grantor or the grantor’s heirs

Front 36

RAP
The Common Law & Certainty Principles

Back 36

At CL, anything is possible
= "parade of horribles"
e.g. Fertile Octogenarian Rule = woman is considered fertile no matter what her age is (even if she is 70+)

Front 37

RAP
2 Bright Line Rules of CL

Back 37

(1) Gift to an open class =
"Bad as to one, bad as to all"
- Must show condition precedent will occur for every member before RAP expires

(2) Executory Interests w/o a time limit = if you see EI w/ no time limit w/in which it must vest, it violates RAP

E.g. "To A so long as..., then to B"

Turns into a FSDPOR

Front 38

What is an easement?

(definition, example, writing, termination)

Back 38

• A grant of an interest in land that allows someone to use another's land
• RT to drive across the land
• Generally required (exceptions: less than 1yr, implication, necessity, & prescription)
• terminates by: END CRAMP = estoppel, necessity expires, destruction of servient land, condemination of servient by eminent domain, release = written, abandonment (mere non-use is insufficient), or merger (under 1 owner), prescription

Front 39

What makes an easement affirmative?

Back 39

• = RT to go onto & do something on servient land
• Created by PING(prescription - COAH, implication, necesssity, grant = writing b/c SOF)
• Can be an easement appurtenant or an easement in gross
• Remedy available = injunction or damages

Front 40

What makes an easement negative?

Back 40

• = can prevent something that would otherwise be permissible on servient’s land
• Can only be created by EXPRESS WRITING signed by grantor
• Remedy = injunction or damages
• Typically only allowed 4 cases (LASS)
L = light
A = air
S = support
S = stream water from an artificial flow
(and in a minority of states, may acquire for scenic view)

Front 41

What is an easement appurtenant?

Back 41

• = in his physical use or enjoyment of his property
• “It takes two” – meaning 2 parcels of land must be involved (1 = dominant tenement which derives the benefit & a 2nd that = servient tenement & bears the burden)
• transferred automatically w/ dominant tenement regardless of whether it was mentioned in the conveyance

Front 42

What is an easement in gross?

Back 42

• Confers upond its holder ONLY some PERSONAL or PECUNIARY advantage that is NOT related to his use or enjoyment of his land
• No benefited or dominant tenement
• will NOT be transferable unless for commercial purposes
•

Front 43

What is a license?

(definition, e.g., writing requirement, termination)

Back 43

• = Mere privilege to enter another’s land for some delineated purpose
• O allows electrician to come on land & fix outlet
• Not required to be in writing (informal & no SOF)
• Usually revocable at any time (e.g. tickets, neighbors talking at the fence)
• May be irrevocable if coupled w/ an interest or estoppel

Front 44

What happens when an oral easement is invalid?

Back 44

• It becomes a license

Front 45

What is a profit?

(definition, e.g., writing requirement, termination)

Back 45

• = extract something of the soil of servient land
• E.g. remove or cut timbre
• Same writing requirement/exceptions & termination as easements

Front 46

What is a covenant/equitable servitude?

(definition, e.g., writing requirement, termination)

Back 46

• = Promise to do or not do something w/ the land
• = contractual limitation or a promise regarding the land
• E.g. promise not to build a swimming pool on property when you buy it
• Writing required (exception = equitable servitude may be implied from common scheme of development of a residential neighborhood)
• Termination: Release, Merger, Condemnation, and equitable defenses may apply to enforcement of a servitude

Front 47

When is a covenant negative & when is it affirmative?

Back 47

• negative = restrictive covenant & = promise not to do something on the land (e.g. not to build for commercial purposes)
• affirmative = promise to do something (e.g. maintain a fence, water a common garden, paint shared driveway)

Front 48

What is the difference btw a covenant & an equitable servitude?

Back 48

• Difference comes down to the basis of the remedy that your P seeks
• If P seeks $ damages, must construe as a covenant
• If P seeks an injunction, must construe as an equitable servitude
• Covenant = legal device
• Therefore, must construe in equity if want equitable relief (e.g. injunction)
• Privity is also NOT required for an equitable servitude to run

Front 49

When will the covenant run w/ the land?

Back 49

• 2 separate contests have to be resolved
• Burden & benefit must both run
• ALWAYS ANALYZE burden side FIRST b/c harder for burdens to run than for benefits

Front 50

When does a burden run?

Back 50

WITHIN
• W = writing (original promise)
• I = intent (original parties must have intended it to run)
• T = touch & concern the land (affect legal responsibilities as landowners)
• H = BOTH horizontal & vertical privity
(H = originally promising parties in succession of estate (in grantor-grantee or L-T of mortgager-mortgagee relationship)
(Horizontal privity is HARD to establish; its absence is the reason why many burdens won’t run)
Vertical – simply requires some non-hostile nexus: K, devise, or descent; only absent if adverse possession
• N = Notice (A1 must have had some notice when took)

Front 51

When does the benefit run?

Back 51

WITV
•W = original promise in writing
• I = intent by original Ps
• T = touch & concern
• V = vertical privity

Front 52

What is an implied equitable servitude and how is it implied?

Back 52

• = implied promise that equity will enforce against successors
• Even though not in the deed, it can be enforced if 2 elements of Common Scheme Doctrine Apply
• At the time sales in the residential subdivision began, developer had a [evidenced] plan that all parcels would be subject to the restriction
• ∆ lot holder had notice of the promise contained in the prior deeds (AIR: actual, inquiry, or record)

Front 53

What are the equitable defenses to enforcement?

Back 53

DOCTRINE OF CHANGED CIRCUMSTANCES
• Must be so pervasive that the entire area or subdivision has changed
• Never good enough = limited or piecemeal change

Also UNCLEAN HANDS, ACQUIESCENCE, ESTOPPEL, TIME PASSAGE

Front 54

What is Adverse Possession?

Back 54

• = possession for a certain period of time that can sometimes ripen into title (if certain elements are met)

Front 55

What elements are required for adverse possession?

Back 55

COAH
• C = Continuous (uninterrupted for given statutory period)(NY = 10yrs)
• O = Open & Notorious (look for sort of possession/use of usual owner, including leasing)
• A = actual (can’t be hypothetical, fictitious or symbolic... won’t begin to run w/ letter of intent or statement)
• H = Hostile (= w/o true owner’s consent)

Front 56

What intent does the adverse possessor have to have?

Back 56

• none
• intent = irrelevant b/c it is an objective formulation

Front 57

What is tacking and how does it affect adverse possession?

Back 57

• as long as there is privity, one adverse possessor can tack his time onto his predecessor’s time
• Privity is satisfied by ANY non-hostile nexus (such as blood, K, deed, will)
• NO TACKING when there has been an ouster

Front 58

What if the adverse possessor does not occupy all of the land?

Back 58

• Usually will only gain title to land she actually occupies
• In some cases, if occupies a reasonable portion & does so under color of title for the whole parcel, she will be deemed to constructively possess the whole parcel

Front 59

How do disabilities affect adverse possession?

Back 59

• SOL will not run against a true owner who is afflicted by a disability ***at the inception of the adverse of possession
• In other words, only a disability of the owner existing at the time the CoA arose is considered
• Common disabilities include insanity, infancy, imprisonment

Front 60

What is the 2 Step dance always required in land conveyancing?

Back 60

• Land K followed by
• A Closing

Front 61

What are the requirements for a land K?

Back 61

• Must be in WRITING & signed by the party against whom enforcement is sought (∆)
• It MUST describe the land
• AND it MUST state some consideration

Front 62

When is there an exception to the writing requirement (SOF)? What is the relevant doctrine called?

Back 62

• • If any combination of 2 of the following 3, then Doctrine of Part Performance = satisfied & equity will intervene:
• B takes physical possession of the land
• B pays all or part of the purchase price
• B makes substantial improvements to the land

•

Front 63

Who bears the risk of loss after the K is made and why?

Back 63

• “Equity regards as done that which ought to be done”
• = in equity, B is owner of the land subject to the condition that he pay the purchase price at closing
• On national testing day, when told that Blackacre is destroyed in the interval through no fault of either P, buyer bears the risk of loss unless the K states otherwise
• NY Result = remains w/ seller until buyer has title or takes possession

Front 64

What are the 2 implied promises in every land K?

Back 64

• Seller promises to provide ***marketable title AT THE closing
• Seller promises not to make any false statements about material facts or fail to disclose latent material defects (responsible for material lies & omissions)

Front 65

What is marketable title?

Back 65

• = free from reasonable doubt, free from lawsuits & free from the threat of litigation
• it need not be perfect title but must be free of Qs that present an unreasonable risk

Front 66

What 3 circumstances render title unmarketable?

Back 66

•• Defect in chain of title, namely through variation in land description in deeds, defectively executed deed, evidence that prior grantor lacked capacity to convey AND ***adverse possession – if even a portion of the title rests on AP, it is unmarketable)
•• Encumbrances (marketable title = unencumbered fee simple)
o Thus servitudes & mortgages render title unmarketable unless the buyer has WAIVED them
o BUT Seller has ability to settle mortgages & liens w/ property at the closing
•• VIOLATES a zoning ordinance

Front 67

What is the effect of a disclaimer?

Back 67

• Disclaimer will NOT excuse seller from liability for fraud or failure to disclose

Front 68

What is the Property Condition Disclosure Act?

Back 68

• in NY!!!
• = act that requires sellers of 1-4 family residential dwellings to provide buyers w/ a completed statutory disclosure form BEFORE K is signed

Front 69

What warranties does a land K NOT contain?

Back 69

• contains NO implied warranties of fitness OR habitability
= “Let the Buyer Beware"
• One important exception = fitness/quality in sale of a new home by an owner-vendor

Front 70

What is a deed and what does it require to pass?

Back 70

• = tranfer title to an interest in real property
• Must be in writing, signed by the grantor, and reasonably identify the parties & land via description
• LEAD (Lawfully Executed And Delivered)

Front 71

What happens if grantee name is left blank? or the land description?

Back 71

• Person taking delivery has authority to fill it in
• No land description = VOID

Front 72

What happens if a joint owner attempts to convey property by forging signature(s)?

Back 72

• Valid as to owner whose signature is genuine
• Void as to the other owner(s)
• buyer becomes a tenant in common w/ other joint tenant(s)

Front 73

What is required in the land description?

Back 73

• Description of the land need not be extensive or perfect; law requires an unambiguous description & a good lead
• = definite enough that it can be identified through research
• word "some" = bad

Front 74

What is required in the deed regarding consideration?

Back 74

• While the deed must be in writing & signed by the grantor, it need NOT recite consideration NOR must consideration pass to make a deed valid

Front 75

What are the requirements for delivery?

Back 75

• Could be satisfied when grantor physically/manually transfers deed
• Permissible to use mail, or agent, or messenger
• HOWEVER, does NOT necessarily require actual physical transfer
• Standard = LEGAL standard; = test solely of PRESENT intent
• Delivery accomplished when the present intent to be legally bound is manifested AND accepted

Front 76

How is delivery defeated?

Back 76

• Recipient’s express rejection of the deed defeats delivery (even if just oral)

Front 77

What happens if the deed is to a dead person?

Back 77

• Void and conveys no title
• fact that grantor was unaware of death = irrelevant

Front 78

Is parol evidence allowed to show delivery?

Back 78

• Yes, but only on issue of intent to deliver
• Parol evidence NOT allowed to show delivery was conditional

Front 79

What happens if an oral condition is made at the time of delivery?

Back 79

• oral condition = void & it's as if it was never made

Front 80

What is delivery by escrow - what is involved & what are the conditions?

Back 80

• It is permissible
• = ok for grantor to deliver deed to a 3rd P known as an escrow agent w/ instructions that it be delivered to grantee once certain conditions are met
• once conditions are met, title passes automatically to grantee, even if grantor has died or is unavailable

Front 81

What are the three members of the deed family?

Back 81

• Quitclaim
• General Warranty Deed
• Statutory Special Warranty Deed

Front 82

What is a quitclaim?

Back 82

• = contains NO covenants (grantor not even promising that he has title to convey)
• = worst buyer can hope for
• Shaggy “wasn’t me”
• Wholesale abdication of any legal or moral responsibility

Front 83

What is a General Warranty Deed?

Back 83

• = best deed a buyer could hope for
• = Mother Teresa
• Great b/c it warrants against ALL defects in title INCLUDING those attributable to grantor’s predecessors
• Selfless & altruistic – will willingly assume transgressions of its predecessors
• Typically contains all of the 6 covenants

Front 84

What are the 3 present covenants a GWD contains and what do they stand for?

Back 84

• Covenant of Seisin = Grantor promises he owns estate that he now claims to convey
• *** Covenant of RT to Convey = Grantor promises that he has the power to make this conveyance (meaning there are no temporary restraints/hindrances on grantor’s capacity to sell)
(“I’ve got the Power”)
• Covenant Against Encumbrances – grantor promises that there are no servitudes or mortgages on the land

Front 85

What are the 3 future covenants a GWD contains and what do they stand for?

Back 85

• Covenant of Quiet Enjoyment – grantor promises that grantee will not be disturbed in possession by a 3rd P’s lawful claim of title
• Covenant of Warranty – grantor promises to defend grantee should there be any lawful claims of title asserted by others
• Covenant for Further Assurances – grantor promises to perform whatever future acts are reasonably necessary to perfect grantees title if it later turns out to be imperfect (housekeeping/administrative promise – e.g. signed in wrong color ink on K)

Front 86

What are the SOLs for the convenants contained in the General Warranty Deed?

Back 86

• Present covenant breached if ever at time deed is delivered (SOL begins to run from the instant of delivery)
• Future – won’t be breached until grantee is disturbed in possession (SOL begins to run at some future date)

Front 87

What is a Statutory Special Warranty Deed?

Back 87

• = only on behalf of himself (grantor is making NO representations on behalf of his predecessors in interest)
• "If there is a problem attributable to my predecessor, I will make like a baby & head out first"

• 2 Promises Grantor makes on behalf of himself:
•• (1) Grantor promises that he hasn’t conveyed the estate to anyone other than grantee AND
•• (2) that estate is free from encumbrances made by the grantor
• NY: recognizes this & calls it a Bargain & Sale Deed

Front 88

What fact pattern & 2 Brightline rules can the recording system be reduced to?

Back 88

• Will often come in the form of complicated fact-patters – do NOT BE psyched out!
• Every problem = will have to do w/ a double-dealer & 2 Brightline Rules:

• • If B is a BFP & we are in a NOTICE jurisdiction, B wins, regardless of whether or not she records before A does

• • If B is a BFP & we are in A RACE-NOTICE jurisdiction, B wins if she records properly before A does (even though B got there last)
***NY = race-notice jurisdiction!!!!!

Front 89

What is a BFP?

Back 89

• person must be a purchaser w/o notice (AIR) and pay valuable consideration
• Must be w/o notice only at time of conveyance - does NOT matter if person learns of adverse claim before recording

Front 90

Who does the recording system protect?

Back 90

• exist to protect only BFPs & mortgagees

Front 91

What are 2 common Qs adressing value of the consideration tendered?

Back 91

• Bargain Basement Sale
STANDARD = As long as B remits substantial pecuniary consideration, he qualifies as a purchaser for value

• Shelter Rule
B loses unless the shelter rule applies

DOES NOT protect donees, heirs, or devisees unless the shelter rule applies!!!

Front 92

What is the Shelter Rule?

Back 92

• One who takes from a BFP will prevail against any entity that the trasferor or BFP would have prevailed against.
• In other words, "steps into the shoes" of the BFP even though she otherwise fails to meet requirements of BFP status

Front 93

What are the characteristics of the 3 forms of notice?

Back 93

•• Actual
• Prior to B’s closing, B gets literal knowledge of A’s existence
• Includes warning from a friend
•• Inquiry
• Whether he looks or not, he is on inquiry notice of whatever an examination of the land would reveal (buyer ahs duty to inspect premises)
• ALSO on inquiry notice for whatever a reasonable follow-up would have revealed
•• Record Notice
• B is on record notice if A’s deed was properly recorded w/in the chain of title at time of taking

Front 94

What happens if it is not properly recorded?

Back 94

• Not enough to merely record – must do it properly w/in the Chain of Title
• Series of Docs = capable of giving record notice through a title search of the grantor-grantee index done both ways (or tract index)
• If the recorder makes a mistake, it is still considered recorded when filed & subsequent purchaser is charged w/ notice (has a CoA against recorder's office)

Front 95

When is purchaser protected by a recording statute?

Back 95

• Purchaser protected only from time consideration is paid
• Even if the deed was delivered & recorded before the consideration was paid, a purchaser will not prevail over deeds recorded subsequently if done before consideration paid

Front 96

What is a wild deed?

Back 96

• O sells to A who does not record & then A sells to B, who records
• If a deed, entered on the records (A to B) has a grantor unconnected to the chain of title (O to A), it = wild deed & is incapable of giving record notice of its existence b/c missing grantor link is missing from the public records
• The A – B deed therefore = wild deed
• If O later grants to C and C records, then C prevails in both types of jurisdictions

Front 97

What is estoppel by deed?

Back 97

• Hypo = X sells land to A before he actually has title to it and A records, but X later resells the property to B after X finally gains title & B records.
• A owns the property until X resells BUT B owns once he records if he is a BFP b/c A's earlier recording was a nullity
• A should have done a proper title search

Front 98

What is a mortgage & what does it represent?

Back 98

• = conveyance of a security interest in land & intended to be collateral for the repayment of a $ obligation

• Represents union of 2 elements – (1) debt & (2) voluntary transfer of a security interest

Front 99

Who is the debtor & who is the creditor?

Back 99

• Debtor = mortgagor
• Creditor = mortgagee

Front 100

Does it have to be in writing?

Back 100

• Typically has to be in writing to satisfy SOF

= LEGAL mortgage is evidenced by a writing

Front 101

What are other names for a mortgage?

Back 101

• Mortgage Deed
• Note
• Security Interest in Land
• Deed of Trust
• Sale Leaseback

• All referring to the same thing which = legal mortgage (written instrument)

Front 102

What is an equitable mortgage?

Back 102

• Creditor lends O, who owns Blackacre, a sum of $. Parties understand Blackacre is collateral but instead of executing a note or mortgage deed, O hands creditor a deed to Blackacre that is absolute on its face
• Btw original parties (O & Creditor) parole E is freely admissible to show the Ps true intent
• If creditor decides to sell to BFP X, then X owns it!

Front 103

What are the RTs of the Parties once the mortgage is created?

Back 103

• Debtor mortgager has title & the RT to possession;
• creditor mortgagee has a lien which = RT to look to the land if there is a default

Front 104

Can the parties transfer their interest & if so how?

Back 104

• All Ps to a mortgage can transfer their interest; mortgage will automatically follow properly transferred note

Front 105

How does a creditor-mortgagee transfer his interest?

Back 105

• (1) Endorsing the note & delivering it to transferee OR
• (2) By executing a separate document of assignment

Front 106

What does it mean that transferee of the mortgagee's interest becomes a Holder in Due Course (HDC)?

Back 106

• = takes the note free of any personal defenses that could have been raised against original mortgagee

Personal defenses include
• Lack of consideration
• Fraud in the inducement
• Unconsciability
• Waiver
• Estoppel

Front 107

What are the real defenses that HDC is still subject to, despite not being subject to personal defenses that maker might raise?

Back 107

•Real Defenses = angry poodle pack

MAD FIFI 4
o MA = Material Alteration
o D = duress
o FIFI = Fraud in the Factum (= lie about the instrument; debtor lied to about what he was signing)
o I = Incapacity
o I = Illegality
o I = Infancy
o I = Insolvency

Front 108

What criteria must be met to become a HDC of the note?

Back 108

• Note must be negotiable, made payable to named mortgagee
• Original Note must be endorsed
• Original Note must be delivered to the transferee (photocopies are unacceptable)
• Transferee must take the Note in good faith & w/o notice of illegality
• Transferee must pay value for the Note (amount more than nominal)

Front 109

What is the relationship btw mortgages & recording statutes?

Back 109

• Recording statutes protect mortgagees!
A couple fact patterns will link mortgage systems to recording system
• If O sells Blackacre which is now mortgaged, the lien remains on the land providing that the instrument has been properly recorded

Front 110

What happens if an executory interest violates RAP? In other words, if it has no time limit what is the solution to fix the conveyance?

Back 110

Strike the grammatically incorrect part of the conveyance.

e.g. "but if..." will often stike entire phrase before it & original grantee lucks out w/ a fee simple absolute

(other times, it has a POR in grantor if conditional phrase still makes sense grammatically)

Front 111

What is an exception to RAP?

Back 111

charity-to-charity exception (= gift from one charity to another will not violate RAP)

Front 112

What is the "wait-and-see"/"second look" doctrine in RAP area?

Back 112

= principle reform effort of RAP & mandates a determination on the basis of the facts as they now exist at the conclusion of our measuring life
(eliminates the “what if?” or “anything is possible” line of inquiry)

= assess on basis of facts as they’ve actually occurred now that measuring life has run its course

Front 113

What is the cy pres doctrine?

Back 113

Embraced by both "Wait & See" & USRAP

= “As near as possible” – CT applies in a way that most closely matches grantor’s intent while still complying w/ RAP

- Allows CT to conform an otherwise infirm grant

- Will reduce any age contingency back down to 21yrs

Front 114

What is USRAP?

Back 114

= reform that provides for a 90yr vesting period

Front 115

Describe the NY RAP Reform Statute (what NY has rejected & what 3 points to know)

Back 115

o NY applies CL RAP & has rejected wait-and-see & Cy Pres except for charitable trusts & powers of appointment

3 Points

(1) Age contingency is reduced to 21yrs

(2) Fertile Octogenarian Principle is modified – women over age 55 cannot have a child (adoption possibility disregarded)

(3) Rule Against Suspension of the absolute power of alienation - applies CL RAP to restrictions on power to sell or transfer (links power to sell or transfer to CL RAP)

Front 116

What are 3 types of concurrent estates?

Back 116

(1) tenancy by entirety
(2) tenancy in common
(3) joint tenancy

Front 117

What is a tenancy by entirety?

Back 117

= protected marital interest btw H&W w/ RT of survivorship

Front 118

What is a tenancy in common?

Back 118

= 2 or more own w/ NO RT of survivorship

Front 119

What is a joint tenancy?

Back 119

= 2 or more own w/ RT of survivorship

Front 120

What is the RT of survivorship in a Joint Tenancy?

Back 120

= when 1 JTe dies his share passes automatically to surviving JTes

Front 121

Is a JTe alienable? Devisable? Descendible?

Back 121

= alienable

BUT NOT divisible or descendible (cannot leave it in your will) b/c their share passes automatically to surviving JTes

Front 122

Are the 4 unities required & waht are they again?

Back 122

YES - need 4 Unities (T-TIP)

(1) T = at the same time
(2) T= by the same title (meaning in the same instrument
(3) I = w/ identical equal interests
(4) P = w/ identical RTs to possess the whole

Front 123

Besides the 4 Unities, what else must the grantor do to create a JTe?

Back 123

= Grantor MUST EXPRESS the RT of survivorship

- B/c JTes are disfavored so in addition to 4 Unities, Grantor must clearly state RT of survivorship

Front 124

What is a straw man & how does it fit into JTes? What is the NY approach to straw men?

Back 124

= at CL a person had to use a straw man in order to create a JTe btw himself & someone else (done in order to get all of the required 4 Unities)

E.g. =
Step 1 – Dave conveys Blackacre to straw man
Step 2 - Straw man conveys back to Dave & Paul as JTes w/ RT of survivorship

- NY by statute has dispensed w/ need for Straw; so in NY Dave can convey directly only using 1 piece of paper

Front 125

What are the different ways to sever a JTe? (3 ways - acronym)

Back 125

SPAM (Sale, Partition And Mortgage)

(1) Severance & Sale
(2) Severance & Partition
(3) Severance & Mortgage

Front 126

Describe Severance & Sale - how is it done, what are the consequences for the JTe, and does it require consent.

Back 126

= JTe can sell or transfer secretly w/o knowledge or consent of other JTes
• Disrupts the 4 Unities so Buyer becomes a Tenant in Common
• JTe remains in tact for remaining tenants

Front 127

*** What is the Doctrine of Equitable Conversion?

Back 127

In equity, as to that contracting party’s interest, it will sever the JTe.

= equity regards as done what ought to be done

Front 128

Describe Severance & Partition - what are the 2 ways it is done & what are the consequences.

Back 128

(1) = Voluntary agreement... a peaceful way to end the relationship

• Partition in kind = judicial action for physical division of the property if in the best interest of all parties
(works best w/ vast rural parcel)

(2) Forced Sale = judicial action, if in the best interest of all, where the land is sold & the same proceeds divided up proportionately
(works best when Blackacre = a building)

Front 129

*** Describe Severance & Mortgage - what are the 2 Rules/Theories for the majority vs. minority.

Back 129

Title Theory of Mortgages (minority) = one JTe's execution of a mortgage or a lien on his or her share will sever the JTe as to that now encumbered share.

Lien Theory of Mortgages (majority) = a JTe's execution of a mortgage on his or her interest will NOT sever the JTe

NY follows Lien Theory!

Front 130

In whom can a tenancy by entirety be created, when does it arise presumptively & what is NY's take on it?

Back 130

• Can only be created in H&Wife as fictitious one person w/ RT of survivorship

• Arises presumptively in any conveyance to H&W unless clearly stated otherwise

• Recognized in NY

Front 131

What is a standout aspect of the Tenancy by Entirety? (song) What is the NY modification on this feature.

Back 131

• Very protected form of ownership – “Can’t touch this”

= means creditors of 1 spouse CANNOT touch this tenancy

- NY modifies by allowing 1 spouse to mortgage his interest and his creditors may enforce against that interest, but only as to the debtor spouse’s share. Further, the non-debtor spouse’s RTs, including the right of survivorship, must not be compromised.

Front 132

Can one spouse convey a tenancy by entirety?

Back 132

The rule regarding unilateral conveyance = neither tenant acting alone can defeat a tenancy by entirety by unilateral conveyance to a 3rd party

Front 133

What are the 3 features that you must remember about the tenancy in common?

Back 133

(1) Each co-tenant owns an individual part & each has a RT to possess the whole
(2) Each interest is descendible, divisible, & alienable (meaning there are NO RTs of survivorship btw tenants in common)
(3)Presumption of the CT favors tenants in common

Front 134

What are the RTs of co-tenants when it comes to possession.

Back 134

• Each co –tenant is entitled to possess & enjoy the whole irrespective of their individual share (one tenant cannot use paint & mark off another tenant's 10% if he owns 90%)

Front 135

What is it called if one tenant - even a tenant w/ majority ownership - tries to keep another tenant from possessing part of the property?

Back 135

= wrongful ouster

Front 136

What are the RTs of co-tenants regarding rent from a co-tenant w/ exclusive possession?

Back 136

Absent ouster, a tenant w/ exclusive possession is not liable to the others for rent

Front 137

What are the RTs of co-tenants regarding rent from 3rd parties?

Back 137

• Co-tenant who leases all or part of the premises to a 3rd party MUST account to his co-tenants, providing them their fair share of the rental income

• so if one tenant owns 10% then entitled to 10% of 3rd party’s rent

Front 138

Can a co-tenant acquire through adverse possession if has exclusive possession for the statutory period?

Back 138

• No, can’t acquire it unless he has actually ousted the others, the mere fact that statutory period has passed = not enough

Front 139

What are the respective responsibilities of co-tenants w/ respect to the carrying costs of the property?

Back 139

• Each co-tenant is responsible for his or her fair share of carrying costs, such as taxes and mortgage interest payments.

• Liability assessed based on the share that he or she owns/holds

Front 140

What are the RTs & duties of co-tenants w/ regard to repairs?

Back 140

• repairing co-tenant will have RT to contribution for necessary repairs provided that she has notified the others of the need for those repairs
(e.g. owner who owns 90% must contribute 90% of the costs of the repairs)

Front 141

What are the RTs & duties of co-tenants w/ regard to improvements?

Back 141

• 1 co-tenant's “improvement” could be another’s nightmare

• during the life of the co-tenancy, there is no RT to contribution for “improvements”
• However, at partition, the improving tenant is entitled to a credit for any increase in value caused by her efforts
• BUT at partition – the co-tenant ALSO BEARS responsibility for any decrease in value caused by her efforts

Front 142

What are the RTs & duties of co-tenants w/ regard to waste? What is the timing of the action for it?

Back 142

• a co–tenant must NOT commit waste

• Co-tenant can bring an action for waste DURING THE LIFE OF THE TENANCY

Front 143

When can a joint-tenant bring an action for partition?

Back 143

• a joint-tenant ALWAYS has a RT to bring action for partition (see other cards on partition)

Front 144

What is the significance of the Theory of Implied Ouster?

Back 144

• ***Recent NY CT of Appeals determined that a co-tenant may acquire full title by adverse possession if he is in exclusive possession for 20 continuous years

Front 145

What are the 4 Non-Freehold Estates?

Back 145

• Tenancy for Years
• Periodic Tenancy
• Tenancy at Will
• Tenancy at Sufferance

Front 146

Describe a Tenancy for Years - what is it, how long does it last, how does it terminate, & what are the writing requirements.

Back 146

• = lease for a fixed determined period of time
• Could be for 1 day, or 2mths, or 50yrs
• When you know termination at the start = tenancy for years
• No notice is needed to terminate (b/c already know when it ends when it begins)
• Must be in WRITING to be enforceable (SOF) if greater than 1yr

Front 147

Describe a Periodic Tenancy - what is it, how long does it last, how does it terminate, & what are the writing requirements.

Back 147

• “Successive intervals” – until L or T given proper notice of Termination
• From “month to month” or “week to week” or “year to year”
• Usually written notice must be given to terminate it... CL = at least equal to length of the period itself unless otherwise agreed
• EXCEPTION = if it runs from yr-to-yr or more, then only 6mths notice

Front 148

What are the 3 ways an implied periodic tenancy comes into being?

Back 148

(1) Land is leased w/ no mention of duration but provision is made for the payment of rent at set intervals
(2) Oral term of years in violation of SOF, measured by the way rent is tendered
(3) Holdover Doctrine – if L elects to hold onto a T past original lease, an implied periodic tenancy arises measured by the way rent is now tendered

Front 149

When can a periodic tenancy end?

Back 149

• A Periodic tenancy HAS GOT TO END at the conclusion of a natural lease period

Front 150

Describe a tenancy at will - how long does it last, how is it created, how is it terminated.

Back 150

• = Tenancy for NO FIXED PERIOD of duration
• Has become increasingly rare (usually treated as an implied periodic tenancy by CTS unless expressly stipulated to by the parties)
• May be terminated by either party at any time
• HOWEVER a reasonable demand to vacate is typically required
(NY - L must give 30 days written notice to T)

Front 151

Describe a Tenancy at Sufferance - how is it created.

Back 151

• Created b/c T has wrongfully held over past the expiration of the lease

• Call it this in order to permit L to recover rent

Front 152

How does a Landlord terminate a Tenancy at Sufference (2 ways).

Back 152

• • Lasts until L either
(1) evicts T OR
(2) elects to hold T to a new tenancy

Front 153

What is the NY rule for a tenancy at sufferance?

Back 153

• NY – L acceptance of rent subsequent to expiration creates an implied mth-to-mth until otherwise determined

Front 154

What are a tenant's 3 duties?

Back 154

1) Liability to 3rd parties
2) Duty to repair
3) Duty to pay rent

Front 155

What is involved in Tenant's liability to 3rd parties? What is the landlord's role/liability? Who is responsible for an injured guest?

Back 155

• = matter of tort law
• T is responsible for keeping premises in reasonably good repair
• T is liable for injuries sustained by 3rd parties that T invited

Front 156

L leases a building to T, expressly promising to maintain the premises in a state of good repair. T’s invitee trips over a loose floorboard and sues T. If invitee sues T, what result?

Back 156

T always loses.

It does not matter that T may seek indemnification from L.

Front 157

What happens if L has expressly promised to make all repairs?

Back 157

• T is still liable to the injured guest even where L has expressly promised to make all repairs

Front 158

What is the standard for T’s duty to repair when lease is silent?

Back 158

= maintenance, meaning T must maintain premises & make ordinary repairs

Front 159

How does the doctrine of waste come into play w/ a tenant's duty to repair?

Back 159

• T better not commit any of the 3:
(1) Overt harmful acts
(2) Permissive waste (= neglect)
(3) Ameliorative waste (alterations that increase premises value)

Front 160

What is the law of fixtures? How is it related to the waste doctrine? How does it impact a tenant's ability to have control over the property?

Back 160

• When T removes a fixture he commits voluntary waste
• T MUST NOT remove a fixture no matter that she installed it; fixtures will pass w/ ownership of the land

Front 161

What is a fixture?

Back 161

• Fixture = once moveable chattel that by virtue of its attachment to reality objectively shows the intent to permanently improve the reality
(E.g. – heating systems, customized storm windows, furnace, certain lighting installations, etc)

Front 162

How will you know if it qualifies as a fixture? (2 different situations) How does the intent of the tenant come into play?

Back 162

(1) Express Agreement btw L & T is binding
(2) Absent an agreement, T may remove a chattel she has installed so long as removal does not cause substantial harm to the premises
• If removal will cause substantial damage, then don’t care what T thought subjectively, & T has demonstrated by her actions that she meant to install a fixture & it stays put

Front 163

What happens if there is an express promise in the lease to maintain in good condition (in other words, T covenanted in the lease)? Discuss the CL & the Majority view & where NY falls.

Back 163

• CL = T was responsible for ANY loss to the property, including loss attributed to nature
(T was a sitting duck)
• Majority View now = T may terminate the lease if the premises are destroyed w/o T’s fault
• NY is in accord w/ majority view

Front 164

Suppose the landlord is your client & T stops paying rent & is still there - what are the landlord's options? Hint: L has only 2 options

Back 164

• L’s only options =
(1) EVICT through the CTs OR (2) continue the relationship & sue for rent due
• If L moves to evict she is nonetheless entitled to rent until T (who is now a tenant at sufferance) vacates

Front 165

What may a landlord NOT do when a tenant stops paying rent? What is the consequence in NY?

Back 165

• WARNING TO L = “you MUST NOT engage in self-help, such as changing the locks or forcibly removing the tenant or removing any of tenants possessions”

• Self-help = expressly outlawed & punishable civilly & criminally
• In NY, entitles T to treble damages

Front 166

What happens if T wrongfully vacates w/ time left on term of years lease? 3 Options

Back 166

• SIR
• S = surrender (L can treat it as such, which L accepts) (= T demonstrates by words or actions that she wishes to give up the leasehold)
- If unexpired term is greater than 1yr it must be in writing to satisfy SOF
• I = ignore abandonment & hold T responsible for unpaid rent just as if T were still there (option available only in a minority of states b/c of ‘R” in SIR)
• R = try to Re-let
- More often states require that L at least try (= mitigation principle) but doesn’t have to succeed

Front 167

What does NY require a L to do if tenant has wrongfully vacated?

Back 167

• NY DOES NOT require L to mitigate

Front 168

What are the 4 landlord duties?

Back 168

(1) Duty to deliver possession
(2) Implied covenant of quiet enjoyment
(3) Implied warranty of habitability
(4) Retaliatory eviction: e.g., if T lawfully reports L for housing code violations, L is barred from penalizing T, by, for example.

Front 169

What are the majority rule & the minority rule regarding the L's duty to deliver possession? & what are T's entitlements when L fails to deliver?

Back 169

Majority Rule (aka English Rule) = requires that L put T in actual physical possession of the premises
- thus, if there is a prior holdover, then L is in breach & new T is entitled to damages

Minority Rule (aka the American Rule) = in place only in a small minority of states & DOES NOT require that L put T in actual physical possession; requires only that L give T legal possession (= RT to be there)

Front 170

What is the implied covenant of quiet enjoyment? What does it apply to?

Back 170

= vitally important promise that applies to both residential & commercial leases & tells us that T has a RT to quiet use & enjoyment of the premises w/o interference form L

Front 171

What are the 3 ways a L can breach the covenant of quiet enjoyment?

Back 171

(1) L can breach this by a wrongful eviction OR
(2) When L excludes T from the premises OR
(3) CONSTRUCTIVE EVICTION

Front 172

What are the requirements for there to be a constructive eviction? (acronym)

Back 172

• SING
• S&I = Substantial Interference - A chronic problem attributable to L’s actions of failure to act… for a T to plead this, T must first show that there is substantial interference (= chronic… doesn’t have to be every day)
• N = T must give L notice of given problem & L must fail to respond meaningfully
• ***G = goodbye or get out (meaning T must vacate w/in a reasonable amount of time after L fails to fix the problem)
(= Aggrieved T cannot have it both ways – claim forced out & remain in possession)

Front 173

What is L's liability when T is constuctively evicted by another tenant?

Back 173

• L = NOT responsible for other Ts except that L has a duty not to permit a nuisance on the premises
E.g. leases upstairs to Riverdance

Front 174

What is the Implied Warranty of Habitability and what does it apply to? What is the standard for it?

Back 174

= Premises must be fit for basic human habitation

= bare living requirements must be met (so not a lofty standard… not even rooted in niceties)

• Standard may be supplied by local housing code or judicial conclusions

= Fundamental basic requirements... failure to provide heat in winter, lack of plumbing, lack of running water

• Applies only to residential leases!!!! Does NOT apply commercially

Front 175

Can a tenant waive the implied warrant of habitability?

Back 175

• Deemed so essential to L-T relationship that = non-waivable (cannot be negated in lease)

Front 176

What are T’s entitlements when L breaches the implied warrant of habitability? (acronym)

Back 176

• MRRR or MR3
M = Move out & terminate the Lease
R = Repair & deduct
R = Reduce Rent (or withhold all rent until the CT can figure out fair rental value... typically T has to place rent into escrow account)
R = Remain in possession (pay rent & affirmatively seek $ damages)

Front 177

Must a T vacate when a L breaches the warrant of habitability?

Back 177

No, not like constructive eviction

Front 178

What types of things is the L barred from doing as npart of the prohibition on retaliatory eviction?

Back 178

• Raising rent
• Ending lease
• Harassing T OR
• Taking any other reprisals

Front 179

What does it mean if a lease does not mention assignments or subleases?

Back 179

In the absence of some prohibition in the lease, a T may freely transfer his or her interest in whole (= assignment) or in part (= sublease).

Front 180

Can a L prohibit assignment or sublets in the lease? How rigid is the restriction?

Back 180

• L can prohibit T from assigning or subletting w/o L’s prior written approval
• However, once L consents to one transfer by T, L waives the RT to object to future transfers by that T, unless L expressly reserves the RT

Front 181

What are the rules for tenants assigning their lease in NY? What are a T's remedies of porhibited from assigning?

Back 181

• In NY, unless the lease provides otherwise, a residential T may not assign without L’s written consent.

• L can unreasonably withhold consent to assign, & T’s sole remedy = seek release from the lease

Front 182

What is the rule in ny regarding tenants & subletting? What is a T's remedy?

Back 182

• By contrast, in NY, a T in a residential building having 4+ units has RT to sublease subject to L’s written consent.
• Consent to sublease cannot be unreasonably withheld.
• Unreasonably withheld consent = deemed consent.

Front 183

What is privity of estate & when does it arise?

Back 183

• If L & T2 are in privity of estate, it means that L & T2 are liable to each other for all covenants originally in the lease that run w/ the land... most will

E.g. = promise to pay rent or to paint the premises or to repair or to pay taxes

Front 184

What is privity of K & when does it arise?

Back 184

• L & T2 ARE NOT in privity of K UNLESS T2 expressly assumed ALL PROMISES originally in the lease
• L & T1 are no longer in privity of estate HOWEVER they remain in privity of K

Front 185

What happens to the relationship btw L & T1 after T1 assigns his lease interest?

Back 185

• L & T1 are no longer in privity of estate HOWEVER they remain in privity of K
• Means L & T1 are secondarily liable to one another

Front 186

What does it mean that T1 is secondarily liable to L?

Back 186

b/c of privity of K, T1 = secondarily liable to L; means if direct wrongdoer has fled the jurisdiction or is judgment proof or bankrupt then T1 is accountable

Front 187

What happens if T2 assigns to T3 & L wants to proceed against T2? Can he?

Back 187

No, L loses b/c privity of estate ended once T2 assigned to T3; & no privity of K UNLESS T2 EXPRESSLY assumed all promises in the original lease

Front 188

What happens w/ sublets & privity of estate vs. privity of K?

Back 188

L and sublessee are in neither privity of estate nor privity of contract.

T2 is responsible to T1 & vice versa

Front 189

What is L's tort liability under Common Law?

Back 189

• IN TORT, L was under no duty to make the premises safe
= Coldhearted tort-based regime

Front 190

What are the 5 exceptions to a L's usual freedom from tort liability under the CL? (acronym)

Back 190

• CLAPS
• C = Common Areas – L must maintain all common areas, like hallways, stairwells,
• L = Latent defects rule; L must warn T of hidden defects of which L has knowledge or reason to know
(not = duty to repair)(e.g. electric wiring is flawed)
• A = assumption of repairs – while under no duty to make repairs, once undertaken, L must complete them w/ reasonable care
• P = public use rule – L that leases public space (like convention hall or museum) & should know b/c of nature of the defect & the length of the lease that T won’t repair = liable for any defects on the premises
• S = short-term lease of a furnished dwelling (L responsible for any defective condition which proximately harms T)

Front 191

What 5 factors indicate an equitable mortgage?

Back 191

(i) the existence of a debt or promise of payment by the deed's grantor;
(ii) the grantee's promise to return the land if the debt is paid;
(iii) the fact that the amount advanced to the grantor/debtor was much lower than the value of the property;
(iv) the degree of the grantor's financial distress; AND
(v) the parties' prior negotiations.

Front 192

What will the CT need to find TO ENFORCE the reciprocal negative servitude?

Back 192

(i) a common scheme for development AND
(ii) notice of the covenants.

Front 193

What happens when 1 joint tenant mortgages his share?

Back 193

Most states regard a mortgage as a lien on title. In these states, when one joint tenant mortgages the property that does not, by itself, sever a joint tenancy until default and foreclosure proceedings have been completed.

Front 194

How can an easement be extinguished?

Back 194

An easement can be extinguished where the holder demonstrates by PHYSICAL ACTION that she intends to permanently abandon the easement.

However, NONUSE of the easement, without more, will NOT constitute a manifestation of an intent never to make use of the easement again .

Front 195

What happens when a mortgagor sells the mortgaged property and conveys a deed? What happens to the liability for the mortgage?

Back 195

The grantee takes subject to the mortgage, which remains on the land.

HOWEVER, THE MORTGAGOR REMAINS PRIMARILY AND PERSONALLY LIABLE on the loan UNLESS THE GRANTEE HAS SIGNED AN ASSUMPTION AGREEMENT.

Front 196

What does it mean when a sale is made "subject to a mortgage? In other words, what are the mortgagee's options? what happens if B takes “subject to the mortgage”?

Back 196

• B assumes no personal liability on the debt
• Only the original mortgagor = personally liable
• ***BUT if recorded the mortgage remains on the land; thus if O does not pay, the mortgage may be foreclosed

In most jurisdictions, when a sale is made "subject to" the mortgage, the mortgagee has the option of: (1) foreclosing on the land OR (2) suing the mortgagor on the debt.

Front 197

What happens if a mortgagee does not get paid in a foreclosure?

Back 197

• Mortgagee can bring a personal action against debtor for a deficiency judgment

Front 198

What happens if there are junior liens on a mortgage? What happens after they are paid?

Back 198

• Junior liens – meaning creditors w/ lesser priority – are paid off in order of their priority
• Any remaining surplus thereafter goes to debtor

Front 199

***What is the Effect of Foreclosure on Various Interests?

Back 199

• Will terminate interests junior to mortgage being foreclosed...

Front 200

What happens if junior lienholders are not listed as parties in a foreclosure?

Back 200

• BUT ONCE FORECLOSURE of a SUPERIOR claim has occurred w/ proceeds distributed appropriate, JUNIOR LIEN HOLDERS can NO longer look to the land (Blackacre) for satisfaction
• They are necessary Ps to action