Real Property (Bar Prep)

Front 1

fee simple absolute

Back 1

full estate. alienable, transferable, devisable.

the preference is for this.
restraints on alienation in fsa forbidden.

Front 2

Fee simple determinable

Back 2

a fee simple durational.
corresponding estate: possibility of reverter.

terminates: automatically upon the happening of an event.

language: so long as, until, during, while.

alienable, devisable, descendible subject to condition

In NY: fee on limitation.

Front 3

possibility of reverter

Back 3

alienable, transferable, devisable.
As a vested estate is not subject to RAP

Front 4

fee simple subject to condition subsequent

Back 4

grantor reserves the right to terminate upon the happening of an event.

alienable, devisable, descendible.

NY: fee on condition

MUST carve out right o reneter.

right of entry/power of termination

Front 5

right of reentry

Back 5

must be expressly reserved.
to exercise must file an ejectment action. (take affirmative steps)

NY: right of re-acquisition

some states say that it it is not transferable inter vivos, but definitely descinble and (most states) devisable.

Front 6

fee simple subject to an executory estate

Back 6

determinable or condition subsequent estate where the corresponding reverter or executory interest is held by a thi party

Front 7

life tenant's rights

Back 7

life tenant has the right to ordinary uses and profits of the land.

Front 8

future holder's rights against the life tenant's

Back 8

can enjoin uses that injure their interests.

waste:

Front 9

life tenant's rights with respect to affirmative (voluntary) waste of natural resources

Back 9

limited to:

1. where necessary for the repair or maintenance of the land.
2. land is suitable only for such use
3. expressly or impliedly permitted by grantor

subject to open mines doctrine

Front 10

open mines doctrine

Back 10

permits the usage and exploitation of mines already open when the life estate commences.
-exception to voluntary waste of natural resources doctrine

Front 11

life tenant's duties with re permissive waste

Back 11

Life tenant is obligated to
1: preserve the land and structures in a reasonable state of repair
2. pay mortgage (not principal)
3. pay ordinary taxes on the land
4. pay special assessments for public improvements of short duration
long duration is apportioned between life tenant and future interest holder

Front 12

Ameliorative waste

Back 12

Actionable at CL

Modern law:

allowed: May alter or demolish existing buildings if:

1. it does not diminish the market value of the future interest
AND

the remainder holders do not object or a substantial and permanent change in the neighborhood conditions has deprived the property in its current form of its reasonable productivitiy or usefullness.

Front 13

worthless property

Back 13

Life tenant may seek partition sale, putting the proceeds in a trust and taking the income.

Front 14

rule in Shelley's case

Back 14

if the same instrument gives a life estate, another future interest, and the remainder in the life estate holder's heirs, it becomes a remainder in the life estate holder

rule o law not construction and as such would apply eeven in the face of contrary grantor intent.

abolished in NY, and most jurisdictions

Front 15

Doctrine of Worthier Title

Back 15

If the grantor grants a remainder to his heirs, it becomes a reversion.

viable in most states. Abolished in NY for transfers taking effect after Sept 1 1967

rule of construction and not law so grantor's intent controls.

Front 16

restraints on transfering life estate

Back 16

disabling prohibited. but forfeiture and promissory permitted

Front 17

valid restraints on alienation in general

Back 17

forfeiture restraints on the transferability of future interests,
reasonable restrictions in commercial transactions,
right of first refusal,
and restrictions on assignment and subleases of leasehold interests

Front 18

four unities for jt

Back 18

time, title, interest, possession

Front 19

Judgment lien and the severance of a jt

Back 19

the entrance of a judgment lien itself does not sever the jt. the jt is only severed if there is a foreclosure sale.

Front 20

mortgage's role in severing the jt

Back 20

Mortgage, in most states, also severs the jt only if there is a foreclosure.

in title jurisdictions, however, the granting of a mortgage does sever the jt.

NY: lien theory

Front 21

the granting of a lease's role in severing a jt

Back 21

there is a split in jurisdictions.

Front 22

mortgage or lease in a tbe situation

Back 22

the conveyance by only one spouse is ineffective.

Front 23

tic's responsibility to the other tics with regards to rent or profit

Back 23

She does not need to share rents or profit that she earns, so long as she has not agreed to or there is no ouster.
BUT she must share rent or from third parties or net profits from the exploitation of the land.

Front 24

tenancy by the years

Back 24

statute of fraud will require that it be in writing if it is for longer than one year.

no notice needed to terminate the tby since you know from the beginning when it is terminated

Front 25

surrender of the lease

Back 25

if the statute of frauds requires writing for the creation of the lease, the lease can also only be terminated by writing.

Front 26

notice required to terminate a year to year lease

Back 26

six months, rather than the usual full term.

Front 27

in a tenancy at will, if the lease gives only the landlord the right to terminate...

Back 27

a similar right will be implied in favor of the tenant.

Front 28

tenancy at will can also terminate by the operation of law

Back 28

1. attempt to transfer
2. death of one of the parties.

Front 29

in the holdover doctrine commercial lessees can be held to

Back 29

a year to year periodic tenancy if the period was one year or more, or month-to-month if it was a mont-to moth lease etc

Front 30

in the holdover doctrine residential lessees can be held to

Back 30

month-to-month leases, regardless of original term of the lease.

Front 31

terms of the new lease if holdover

Back 31

If the landlord has notified the tenant of an increase in rent, by holding over the tenant is presumed to have acquisced even if in reality they objected to the terms.

Front 32

Doctrine of waste with re tenants

Back 32

tenants cannot commit waste upon the lease.

Front 33

permissive waste for tenants

Back 33

The tenant has the duty to prevent permissive waste.

waste occurrs when the tenant fails to take reasonable steps to protect the property from damage from the the elements.

liable for all ordinary repairs save wear and ter

if the landlord has the duty by agrement or statute, then the tenant must report deficiencies promptly.

Front 34

Amelioratie waste for tenants

Back 34

the tenant bears the cost for restoration.

Modern exception: if he is a longterm tenant and the change reflects a change in the neighborhood.

Front 35

destruction of premises without fault

Back 35

neither has the duty to repair, but the tenant has the duty to continue to pay rent.

Front 36

covenant of quiet enjoyment

Back 36

every lease has an implied covenant that neither the landlord nor a paramount title holder will interfere with the lessee's quiet enjoyment and possession

Front 37

eviction

Back 37

both actual and partial eviction by the landlord relieves the tenant of the obligation to pay rent.

Front 38

partial eviction by a third party

Back 38

leads to an apportionment of rent.

Front 39

constructive eviction

Back 39

if the landlord does something, or fails to do something s/he has the duty to do, that renders the place uninhabitable the tenant has the right to terminate the lease and seek damages.

note, must terminate within a reasonable time and be connected to the landlord.

Front 40

implied warranty of inhabitability

Back 40

landlord's duty is tied to the standard of local housing codes.
in event of breach, tenant may repair and offset costs against future rent, abate rent to fmv in light of defects, remain in possession, pay rent, sue for damages

nonwaivable
attaches only to commercial leases

Front 41

consequences of assignment

Back 41

the landlord and assignee stand in privity of estate. both are liable for covenants that run with the land.

Front 42

covenants run with the land if

Back 42

it touches and concerns the land and the parties so intend.
touches and concerns the land: if it burdens the landlord,

Front 43

responsibility of rent if there is an assignee

Back 43

the responsibility to pay rent is a covenant that runs with the land so assignee owes it directly to the landlord
however, the assignor remains in privity of contract so owes rent under the contract.

Front 44

lease covenant restricting assignments or subleases

Back 44

are strictly construed against the landlord

Front 45

a landlord can waive prohibition against assignment or sublease if

Back 45

he was aware of it and did not object to it. this waives, unless the landlord specifically reserves the right, the clause as compared to future assignments and subleases.

Front 46

landlord's liability in tort

Back 46

Landlord has a duty to disclose hidden dangerous conditions that they know of or should know of that the tenant is unlikely to discover. If they fail to do so they are liable for all the injuries arising from it.

Front 47

landlord's liability with re common areas

Back 47

the landlord has to exercise reasonable care in maintaining common areas.

Front 48

Landlord's liability for public use

Back 48

the landlord is liable to injuries to members of the public if:

at the time o making the lease he:

knows of or ought to know of a dangerous condition,
has reason to believe the tenant may admit the public before repairing the condition, and
fails to repair the condition

Front 49

liability for furnished short term leases

Back 49

higher liability
Liability for any injuries resulting from any defect
whether or not he knew of the defect

Front 50

negligent repairs by the landlord

Back 50

if there is no duty to repair, but the landlord tries anyways,

he will be liable if the repairs are done negligently or give the appearance of safety.

Front 51

modern trend of landlord liability

Back 51

the landlord has a duty of reasonable care towards residential tenants and will be held liable for injuries arising from ordinary negligence if he had notice of a defect and an opportunity to fix it.

Front 52

When does an item become a fixture

Back 52

if it is part of the realty
if it can be identified but removing it would cause considerable damage (like a brick)
or the person who brought the item's objective intention was to make it part of the realty
intention determined by: nature of the article, manner of attachment, amount of damage that would be caused by its removal, adaption of the item to the use of realty.

Front 53

constructive annexation (fixture)

Back 53

if it is so uniquely adapted to the realty that removing it makes no sense

Front 54

fixtures as between landlord-tenant

Back 54

agreement is controlling
in the absence of an agreement it is presumed the tenant did not intend to permanently improve the property if it would not damage the property or destroy the chattel.

Annexed chattel must be removed the end of the lease term or within a reasonable time and the landlord is responsible for any damage caused by removal of the chattel.

Front 55

if the negative easement is not one of the following types it is a restrictive covenant

Back 55

light,
air,
lateral and subjacent support,
flow of artificial stream

Front 56

ways to create an easement

Back 56

express or in writing
implication
prescription

Front 57

reserved easement

Back 57

can only be reserved for the grantor. an attempt to reserve for the benefit of a third party is void.

Front 58

easement by implication

Back 58

implied from existing use
necessity
Subdivision plat
profit a prendre

parties exceptd that it would survive because it is reasonably necessary to dominant land's use and enjoyment.

Front 59

implied from existing use.

Back 59

If:

prior to the division of a single tract,
an apparent and continuous use exists on the servient estate's part
that is reasonably necessary for the enjoyment of the dominant part
and the court determines the parties intended the use to continue after the division of the land

Front 60

easement by necessity

Back 60

when a landowner sells a portion of his tract and by this division deprives one lot of access to a public road or utility line.

Front 61

easemen by prescription

Back 61

open and notorious
hostile
continuous for the statutory period
adverse
note, does NOT have to be exclusive

NY: statutory period is 10 yrs

Front 62

requirements for the burden to run with the land

Back 62

intent, notice, horizontal and vertical privity, touch and concern

Front 63

notice requirement

Back 63

under the recording act, a purchaser FOR VALUE must have had actual inquiry or record notice

Front 64

requirements for the benefit to run

Back 64

intent, vertical privity, and touch and concern

Front 65

implied reciprocal negative easements

Back 65

this is if there was a common scheme
-common scheme must be evidenced at the time of the selling of the first lot.
notice is also required. (inquiry, actual, record)

Front 66

buyer who buys through a bfp

Back 66

so long as you are not the transferee you are protected

Front 67

owners of real property have exclusive right to:

Back 67

air space, use and possess the surface, and the soil

Front 68

ownership of the land includes the right to:

Back 68

land supported by the adjacent land in its natural state.

Front 69

land owner is strictly liable for excavation if:

Back 69

If his excavation causes the adjacent land to subside.

note: if the land would have subsided in its natural state
otherwise, liability only if the excavation is done negligently.

Front 70

responsibility of people owning subjacent support.

Back 70

Must support the surface and buildings existing on the date that the subjacent estate was created.

Front 71

Liability of the owners of subjacent estates for buildings erected subsequently

Back 71

negligence.

Front 72

Allocation of water

Back 72

riparian doctrine
prior allocation doctrine

Front 73

riparian doctrine

Back 73

water belongs to those who own the bordering land.
owners can use only the water that connects with their riparian parcel.

see natural flow theory

Front 74

natural flow theory (subset of______)

Back 74

riparian doctrine

A riparian owner's use resulting in substantial or material diminuation of the water's quality, quantity, and velocity is enjoinable.

Front 75

reasonable use (subset of the ____)

Back 75

riparian doctrine

All the owners have the legal right to reasonable use of the water.

balance utility of their use with the gravity of harm to the other's

Front 76

Factors to determine the gravity of harm for reasonable use

Back 76

alteration of flow
purpose of use
pollution
extent of use
destination of water taken
miscellaneous conduct that may lead to litigation.

Front 77

natural v. artificial use

Back 77

natural uses prevail over artifical uses

Front 78

prior appropriation doctrine

Back 78

individuals acquire rights by actual use.
if multiple users or dimunation of flow, time of use determines priority?

Front 79

doctrines determining groundwater ownership

Back 79

1. absolute ownership doctrine
2. reasonable use doctrine
3. correlative rights doctrine
4 Appropriative rights doctrine

Front 80

absolute ownership doctrine

Back 80

12 eastern states use this

owner of the underlying land can ake as much water as she wants for hatever purpose, including export

Front 81

reasonable use doctrine for groundwater

Back 81

export allowed only if
it does not harm other owners who have the right in the same acquifer

Front 82

correlative rights doctrine

Back 82

California
own the groundwater as jt each allowed reasonable amount for his own use.

Front 83

appropriative rights doctrine

Back 83

priority of use is determinative

Front 84

rights to surface water

Back 84

Use surface water (water without a channel) within his/her boundaries as she pleases.

Front 85

Natural flow for surface water

Back 85

Owners cannot change the natural flow.

some states have softened this to allow for natural changes.

Front 86

Common enemy theory

Back 86

An owner can take any protective measure to get rid of the water.

some courts have limited this to prevent unreasonable damage to someone else's land.

Front 87

reasonable use theory for surface water

Back 87

balancing utility against gravity of harm

Front 88

rights to airspace

Back 88

the owner does not have the exclusive right to the airspace but does have the right to be be free of excessive noise.

Front 89

cooperatives

Back 89

title to the land and buildings is held by a corporation which will then distribute apartments to its shareholders

Front 90

direct restraint on alienation in coops

Back 90

valid

Front 91

ownership in condos

Back 91

condo owner owns the interior of the unit, undivided interest in the exterior and common areas.
as it is considered a fee simple, rules against alienation apply.

Front 92

Zoning regulations

Back 92

permitted as within the state's police power subject to the due process clause and equal protection clauses of the 14th amendment as well as the takings clause of the 5th amendment.

Counties depend on a state enabling clause.

statutes are to protect the health, safety, welfare, and morals.

Front 93

zoning regulations as unconstitutional taking

Back 93

if it so reduces the value of the property as to constitute a taking.

Front 94

If it constitutes a taking then:

Back 94

the local government has to pay the value reduction.

Front 95

However if the zoning regulates activities that were nuisance

Back 95

no liability.

Front 96

if the regulation deprives the property of all its economic use

Back 96

taking.

Front 97

if the regulation takes almost all economic use leaving it with very little economic value

Back 97

balance
social goals of the regulation,
diminuation in value of the property,
the owner's reasonable expectation for the use of the property.

Front 98

demands that the land owner give some public land in exchange for zoning approval

Back 98

unconstitutional unless exception

Front 99

exception for land owner giving land in exchange for zoning approval

Back 99

government demands are rationally connected to an additional burden the use will place on public facilities and rights
and the dedication is reasonably related in nature and extent to the impact of the proposed developments.

Front 100

if a regulation constitutes a taking

Back 100

the government will be required to compensate the owner for the property or to terminate the regulation and compensate the owner for the temporary takng.

Front 101

transfer of note but not the mortgage

Back 101

Some states say you transfer the mortgage without the other the conveyance is void. Others state that you can bring a equitable action if someone conveys one but not the other to get the other conveyed to you.

Front 102

transfer mortgage not note

Back 102

Can transfer mortgage but not the note, however you must expressl reserve the note or they will both transfer

Front 103

Grantee of the mortgaged property takes-

Back 103

Takes subject to the mortgage

Front 104

Mortgagee’s right of possession

Back 104

lien theory and title theory and intermediate theory

NY: lien theory

Front 105

intermediate theory

Back 105

mortgagor has the legal title until default when the mortgagee gains title and may demand possession (note, little practical difference between this and title theory

Front 106

words of mere desire, hope, or intentiona are insufficient/sufficient to create a defeasible fee

Back 106

insufficient

Front 107

courts disavor restictions

Back 107

on the fre use of land and will not find a defeasible fee unless clear durational languge is used.

Front 108

absolute restraints on alienation are

Back 108

void
an absolute restraint on alienation is an absolute ban on the ower to sell or transfer that is not linked to a reasonable time limited person.

Front 109

life tenant's rights and responsibilities

Back 109

lifetenant is entitled to all ordinary uses and profits from the land
life tneant must not commit waste (harm future holders' interest)

Front 110

types of waste

Back 110

voluntary of affirmative
overt conduct that cause a drop in value.
permissible waste or neglect
when land is allowed to fall into disrepair ofr lfie tenant fails to protect land

ameliorative waste
life tenant must not engage in ats that will enhance the property's value unless all future interest holders' are known and conset.

NY: life tenant may make improvements unless remaindermen object though the life tenant has to be reasonable

Front 111

voluntary waste and natural resources

Back 111

life tenant must not consume or exploit natural resources on the property unless PURGE

PU prior the grant the land was used for exploitation. so then life tenant may continue to exploit unless otherwise agreed.

Repairs: the life tnant may consume natural resources for reasonable repairs and maintenace
G life tenant may exploit if granted hat right
Exploitation, if the land is suitable onl for exploitation

Front 112

permissive waste

Back 112

the life tenant simply must maintain the premises in reasonably good repair.

life tnnat is obligated to pay all ordinary taxes on the land to the extent of income or profits fromt he land. i ther is no income or profit, the life tnantis required to pay all ordinary taxes to the extent of premises' fair rental value

Front 113

possibility o reverter accompanies

Back 113

fee simpl determinable

Front 114

right of reentry accompanies

Back 114

fee simple subject to condition subsequent

Front 115

types of vested remainders

Back 115

indefeasibly vested remainder
vested remainder subject to complete defeasance
vested remainder subject to open

Front 116

remainder

Back 116

future nterest created in grantee capable of beocming possessory upon th EXPIRATION of a prior possessory estate create in the same conveyance i which the remainder is created.

always accompanes apreceeding estate of a known, fixed, duration. which is usually a life estate of term of years

Front 117

vested v. contingent remainder

Back 117

vested: ascertained person and is not subject to any condition precendet

contingent: created in an unascertained person or is subject to a precedent or both

Front 118

remainder subject to a condition precedent

Back 118

NY term for future intrerest in a transferee subject a condition precedent

Front 119

rule of destructibility of contingent remainders

Back 119

at CL: contingent remainder was destroed iif was stil contingent at the time the previou etate ended.

this is abolished in majority of sttes and in NY

Front 120

vested remainder subject to complete defeasance/vested remainder subject to to total divestment

Back 120

NY: remainder vested subject to complete defeasance

remainderman's right of possession could be short because of a condition subsequent.

conditio subsequent: conditional language follows language that taken alone and set off by comma would crete a vested remainder is a condition subsequent..

Front 121

when does a class close

Back 121

CL: rule of convenience

class closes whenever any member can demand possession.

womb rule.

Front 122

executory interest

Back 122

a future intrest created in a transferee a third party which is not a remainder and which takes efect by either cutting short some interest in another person (shifting) or in the grantor or his heirs (sprnging)

Front 123

shifting executory inerest

Back 123

always follows a defeasible fee and custs short someone otherthan grantor

Front 124

springing executory interest

Back 124

cuts short grantor

Front 125

NY rule on executory interests and contingent remainders

Back 125

they are both remainders subject to condition precedent

Front 126

RAP applies only to

Back 126

cotingent remainders, executory interests and certain vested remainders subject to open
NOT
interests in the grantor, indefeasibly vested remainders, vested remainders subject to complete defeasance.

Front 127

AT CL

a gi to an open class that is conditioned on the members surviving to an age beyond 21

Back 127

violates CL RAP

Front 128

USRAP

Back 128

condifies the common law rap and in addition provides for an alteranative 90 ear vestng period.

wait and see and usrap apply cy pres

and reduction of any offensive ge contingency to 21 years

Front 129

NY perpetuities reform statute

Back 129

NY applies the CL rule and has rejected wait nd see and cy pres except for charitable truss and powers o appointment

however, if the interst would be invalid ecause it is made to depend on any person having to attain an age over 21 years, contingency reduced to 21 yrs.

NY presumes a woman over the ag of 55 cannot have a child.

applies CL RAP to restrictions on power to transfer or sell.

Front 130

joint tenancies are

Back 130

disfavored. in addition to the four unities you must clearl state the right of survivorship

Front 131

creation of a jt by someone already in possession

Back 131

CL: requires a straw so 4 unities

NY: eliminated need for sraw. enough to convey to him and the other as jt with right of survovrship

Front 132

severance of a joint tenancy

Back 132

can be done secretly but buyer takes as a tic

joint tenants mere act of entering into a contract for te sale of his or her share will sever the jt as to contracting party's interests: equitable conversion

Front 133

partiton in kind

Back 133

court action.

court action for the physical diviion i it is in the best interest of the parties and feasible

Front 134

forced sale

Back 134

requires a court action and also is done if in the interest of all parties.

tit is sold and proceeds are divided proportionally.

residential situation.

Front 135

creditors in the tenancy by the entirety

Back 135

creditors of only one spouse cannot touch tenancy

in NY: one spouse may mortgage his interest and his creditors may enforce against that interest, but only as to the debtor spouses share. further the non-debtor spouse rights, including the right of survivorship must not be compromised

Front 136

unilateral conveyance in tbe

Back 136

neither tnenat acting alone can defeat the right of survivorship by unilateral transfer to third party

Front 137

if one co-tenant excludes another from possession of

Back 137

whole or any part (remember co-tenancy_

then it is wrongful ouster

Front 138

unless he has ousted the other co-tenants, one co-tenant in exclusive possesion for th statutory adverse possession

Back 138

cannot acquire title to exlcusionof others.

however, NY: can acquire adverse possession if you remain in exlcusive possesion for 20 consecutive years as there is an assumption of hostilit . iplied ouster.

Front 139

co-tenants responsibility with repect to carrying costs

Back 139

each co-tenant is responsible for his or her fair share of carrying costs such as taxes and mortgage interest payments based upon his indivisible shares.

Front 140

co-tenants responsibility with regards to repair

Back 140

repairng co-tenant enjoys right to contribution for necessary and reasonable repairs provided that she has tod the others of the needs

Front 141

co-tenants rights with regards to improvements

Back 141

during the life of the co-tenancy there is no right to contirbution for improvements.
however at partition the improving co-tenant is entitled to a credit equal t any increase in value caused by his/her efforts

similarly, the improver bears ful liability for any drop in value caused by her efforts.

Front 142

co-tennt's responsibility for waste and rights to prtition

Back 142

a co-tenant must not commit wate and has a right to bring an action for partition

Front 143

periodic tenancy can also arise by implication

Back 143

(in addition to expresly)

land is leased with no mention of duration but provision is made for payment of rent on set intervals

an oral term of years in violation of statute of frauds creates implied periodic tenancy measured by the way rent is tendered

holdover: in a residential lease, if L elects to holdover a T who has wrongfully stayed on past the conclusin of the original lease, implied periodic tenancy arises measured by the way rent is now tendered.

NY: landlod who elects to holdover a tenant creates an implied month to month periodic tenancy unless otherwise agreed

Front 144

how to terminate a periodic tenancy

Back 144

notice, usually written, must be given.
periodic tenancy must end at the conclision of a natural lease period.

at CL: at least equal to the length of the period itself unless otherwise agreed.
however, if the tenancy is year to year or greater six months notice

Front 145

if the parties do not expressly agree to a tenancy at will

Back 145

the payment of regular rent will cause court to imply a periodic tenacy.

Front 146

tenancy at will may be terminated

Back 146

usually reasonable amount of notice to allow them to vacate.

NY: landlord terminating a tenancy at will must give a minimum of 30 days written notice of termination.

Front 147

tenancy at sufferance

Back 147

created when T has wrongfuly held over past the expiration of the leease. permits L to recover rent.

lasts until L evicts T or elects to hold T to a new tenancy

in NY: landlord's acceptance of rent subsquent to the xpiration of the term will create an implied month-to-month periodic tenancy unless otherwise agreed.

Front 148

tenant's liablity to third parties

Back 148

T i responsible for keeping premises in good repair

t is liable for injuries sustained by third parties T invited even where L has exressly promised to make all repairs.

Front 149

T;s duty to repair when the lease is silent

Back 149

T must maintain premises and make ordinary repairs

T must not commit waste

Front 150

three types of waste

Back 150

voluntary waste (overt harmful acts)
permissive (neglect)
ameliorative waste (alternatives that enhance value)

Front 151

law of fixtures

Back 151

when a tenant removes a fixture, tenant commits voluntary waste.

fixture: is a once movable chattel that, by virtue of its annexatio to realty: objectiely shows the intent to permanently imrve realty.

T must not remove a fixture, no matter that she installed it.

Front 152

fixtures when

Back 152

express agreement controls

in the absence of agreement, T may remove a chattel that she has installed so long as removal does not cause substantial harm to the premises.

if removal will cause substantial damage then in objective judgment T has shown the intent to install fixture

Front 153

T's duty to repair when T has expressly covenanted in the lease to maintain the propert in good condition for the duration of the lease

Back 153

at CL: T was liable fo any loss to the premises include loss due to force majeur

majority: T may terminate the lease if premises are destoryed w/o T's fault

NY: absence tenant'sexpress undertaking to restore the premises in he event of their destruction if the premises are destroyed through no fault of tenant, enant may quit the premises and surrender possession w/o any further duty to pay rent

Front 154

if t breaches duty to pay rent and is in possession of the premises

Back 154

the landlord's only option are to evict through court or contnue the relationship. if the landlord mvoes to evict she is nonetheless entitled to rent from the tenant until the tenant who is now a tenant at sufferance vacates.

No-self help

Front 155

landlord must not engage in

Back 155

self-help such as chnging the locks or forcibly removing T or removing any of T's possession

self-help is flatly outlawed and isis punishably civlly nd criminally

NY: self-help is flatly prohibited and entitles tenant to treble damages

Front 156

tenant breaches duty but is out of possession

Back 156

S L treats T abandonment as SURRENDER and accept
Ignore the abandonment and hold T responsible for the unpaid rent just as if T were still there. (minority)
Relet premises on the wrongdoer tenant's behalf and hold him or her liable. majority: L must at least try to relet. this is a reasonable effort mitigation principle

NY does not generally require that landlord mitigate damages when tenant abandons the premises

Front 157

landlord's duties

Back 157

duty to deliver possesson

implied covenant of quiet enjoyment

implied warrant of habitability

Front 158

duty to deliver possession

Back 158

english (majority): L put T in physical possession of the premises. Thus if at the start of the ts lease a prior holdover is still in possession L has breached and the new T gets damages.

minority: doesn't oblige L to put T in actual possession but provide legal title

Front 159

implied covenant of quiet enjoyment

Back 159

residential and commercial leases

T has the right to quiet enjoyment without interfeence from L

breach occurs when L wrongfully evicts T

breach by constructive eviction

Substnatial interference due to L's axn or failure to Act
Notice: t must notify L of the problem. L must fail to act meaningfully
Goodbye. T must vacate within reasonable time after L fails to fix problem

Front 160

landlord is not liable for acts of other tenants except

Back 160

landlord must not permit nusance on site
L mustcontrol common areas

Front 161

implied warrant of habitability

Back 161

applies only to residential leases
this nonwaivable

must be fit for basic human habitation.

appropriate standard may be supplied by local housing codes or case law.

Front 162

tenat's entitlement when implied warranty of habitability is breached

Back 162

Moving out and ending leases but T does NOT have to.
Repair and adjust: allowable by statute in a growing number of jurisdictions. t may make the rasonable eapirs and deduct their cost from future rent
Reduce rent or withold ll rent until the court determines fair rental value. tyically t must place withheld rent in escrow to show her good faith
Remain in possession, pay rent and affirmatively seek damages

Front 163

L can prohibit T from assigning or subletting

Back 163

wihout L's prior written approval in the lease.

but
once L consents to one transfer by T L waives the right to object to future transfers by that T unless L expressly reserves that right

Front 164

NY's rules about assign or leases

Back 164

unless the lease provides otherwise, a residential T may not asign without L's written consent. L can unreasonably withhold consent to assign and T's sole remedy is to seek release from lease. By contrast, in NY a T in a reidential building having four or more units has the rights to sublease subject to L's written consnet. consnet to sublease cannot be unreasonabl witheld. unreasonably witheld consent is deemed consent.

Front 165

assignment results in

Back 165

L and T in privity of estate.

but not privity of th contract unless T2 expressly assumed all promises in the original lease.

L and T1 are not in privity of estate but are in privit of K which means T1 is secondarily liable.

Front 166

landlord's tort liability

Back 166

common law: caveat lessee. T beware in tort L under no duty to make premises safe

exceptions:

Common areas: L must make maintain all common areas
Latent defects: L must warn T of hidden defects L knows about or should know about. (remember warn not repair)
Assumption of repairs: L who volunteers to make repairs must complete them with reasonable care
Public use rule. L must who leases public space and who should know because of the nature f tje defect and length of lease that T will not reapir is liable for any defects on the premises.
Short term leases of furnished dwelling. L is liable for any defects on site.

Front 167

easement appurtenat

Back 167

passes automatically with dominant tenant

burden passes automatically unless the new owner is a bfp w/o notice of easement.

Front 168

easement in gross is

Back 168

not transferable unless it is for commercial purposes

Front 169

easement created by grant

Back 169

easement to endure for moer than oneyear must be in writing that complies with formal elements of a deed.

writing to evidene the easement is called deed of easement.

if writing requirement not complied with then it becomes a license

Front 170

termination of easement

Back 170

Estoppel. serient owner materially changes his or positin in reasonable reliance on the easement holders' assurances that he easement will no longer be used.

Necessit: easements created by necessity expire as soon as the need ends. unless the easement was created by express grant.
Destruction of the servient land, otherthan throught he willfull conduct of the servient owner
Condemnaion of the servient estate ends it.
Release: a written release given by easement holder
Abandoment: the easement holder must demonstrate by physical axn intent to never use easement agin.
require physical axn by easement holder. mere nonuse or mere words are insufficient to terminate by abandoment
Merger. unity of ownership
Prescription: the servient owner may extinguish the easement by interfering with it n accordance with elements of adverse possesion.

Front 171

license

Back 171

mere privilege to enter another's land for a delinated person

not subject to SOF. Licenses are freely revocable at the will of the licensor unless estoppel to bar revocation

Front 172

estoppel to prevent revocation of license

Back 172

estoppelw ill apply to bar revocation only when th licensee has invested substantial labor or oney or both in reasonable reliance on the license's continuation

Front 173

profit

Back 173

entitles holder to enter servient land and take from it soil or some substance from the soil.

shares all rules of license

Front 174

requirements for burden to run fo covenant

Back 174

WITHVN
Writing
intent the original parties intend for it to run.
touch and concern: promise must affect parties' legal rlations as land owners and not sipl as mebers of community at large
homeowners asso fees and covenant not to compete DO touch and conecern
Horizontal
vertical privity
notice

Front 175

horizontal privity

Back 175

succession of estate, meaningthey were n grantor-grantee or mortgagor-mortgagee orlandlord tenant rel

Front 176

vertical privity

Back 176

some honhostile nexus such as contract, devise, descent.

only time not: aderse possession

Front 177

requirements for benefits to run

Back 177

WITV

Front 178

equitable servitude

Back 178

is a promise that equity will enforce against successors. it is accompanied by injunctive relief

Front 179

equitable servitude that will bind a successor

Back 179

WITNES
writing (generally but not always that original promise was in writing)
intent original parties intend that promise would be enforceable
touch and concern.
notice: assignees of burdened land had notice of the promise

Front 180

three types of notice imputed to D

Back 180

actual notice
inquiry notice
record notice --split

Front 181

record notice

Back 181

form of notice sometimes impued on the basiss of recordation.

split. some courts take the view that a subsequent buyer is on record notce of the contens o prior deeds transferred to others by a common gantor. t
the other (NY) view: subsequent buyer does not have record notice of the conents of the prior deeds ransferred to others by the common grantor

Front 182

equitable defenses to enforcement of an equitable se

Back 182

changed conditins.

so prevalent and nfectious that entire area or subdvision has been changed.

Front 183

adverse posssession in NY

Back 183

possessor must have a good faith belief albeit a misttaken one that the land that he is occupying is actually his.

NY: bad faith an an impediment to successful adverse possession claim for the claimaint to know that he is occupying another's land.

Front 184

tacking

Back 184

one adverse possessor may take on to his time with the land his precedessor' time so long as privit which is satisfied by nonhostile nexus such as contract, deed, will, blood.

not allowed with outster

Front 185

Statute of limitations will not run in adverse possession

Back 185

against a true owner who is afflicted by a disability at the START of adverse possession.

common disabilities include insanity, infancy, imprisoment.

Front 186

two steps n real estate conveyance

Back 186

. land contract
2. closing where the deed becomes our operative document

Front 187

land contract

Back 187

land contract must be in writing signed by the party to be bound, must describe black acre and recite consideration

Front 188

exception to SoF for land contracts

Back 188

two of the following three

B takes possession
B pays all or part of the price,
and/or
B makes substantial performance

Front 189

risk of loss for land contracts

Back 189

Appl the doctrine of equitble conversion: once the contract is signed the buyer owns the land subject to the conditin that he pays the purchase price at closing.

so if in the interim the land is destroyed through no fault of either party.
HOWEVER: In NY so long as buyer is without fault, the risk of loss remains with seller until buyer has title or takes possession.

Front 190

two implied promises in ever land contract

Back 190

seller promises to provide marketable title at closing. namely title is free from reasonable doubt free from losses, threat of litigation

seller promises not to make any false statement of material fact.
majority of states now also hold sellers liable for failure to disclose latent material defects, material lies, and omissions.

Front 191

seller promises to provide marketable title

Back 191

adverse possession if even part of the title rests on adverse possession it is unmarketable. seller must provide good record title

encumberances.
marketable title means unencumbered thus servitudes and mortgages render title unmarketable unless buyer has waived them.

zoning violations whn B violates zoning ordinances.

Front 192

contract contains a general disclaimer of liablity

Back 192

won't excuse seller for liability for fraud or failure to disclose

Front 193

if the land contrct contains no implied warranties of fitness or habitability

Back 193

the CL norm is caveat emptor

however imlied warrant of ftness and workmanlike construction applies to the sale of a new home by buider-vendor

Front 194

the closing document is the deed
deed is transferred

Back 194

upon being lawfully executed and delivered
must be in writing signed by grantor need not recite or need consideration.

description of the land does not have to be perfect but law requires only unambigious descripton and good lead

Front 195

delivery requirement for deeds

Back 195

delivery equirement can be satisfied when the grantor physicall or manally gives possession.

permissible to use mail, messenger, or an agent.

however, delivery doesn't necssarily require actual physical transfer of instrument.

legal standard: test of preenti ntent. did grantor have the present intent to be bound.

recipient'sexpress reection defeats delivery.

if a deed absolute on its face is transferred to grantee wih an oral condition the oral condition drops out.

delivery by scrow is allowed: may deliver executed deed to a third party known as the escrow agent with instructions that the deed be delivered to grantee once conditions are met. once this happens give papers to grantee

if grantor dies or becomes incompetent or is otherwise unavailable before hte express cnditins are met under escrow title still passes

Front 196

three types of deed

Back 196

quitclaim: no covenant. grantor isn't even promises that he has title to convey.

general warrnaty deeds: warants against all defects in title including those due to grantor's predecessor.

statutory special warrnty deed
(in NY: bargain and sale deed) grnator promises hat he has not conveyed t another other han grantee and the buyer is free from encumberances made by grant

Front 197

general warranty deed

Back 197

present covenants (SoL begins to run from instance of delivery)
covenant of seisin: grantor promises she owns the estate
covenant of right to convey: grantor has the power to transfer
covenant against encumerances: no servitudes or mortgages on B

a future covnant is not breached until grantee is disturbed i possession. SoL will not begin to run until future term

covenant for quiet enjoyment grantee won't be disturbed in possession by a third partys lawful claim of title
covenant of warranty: grantor will defendgrantee should their bee a lwaful claim of title

covenant for future assurances: will do what is needed to perfect title.

Front 198

inquiry notice charged to a bfp who is trying to argue that his title is better

Back 198

whether or not prchaser bothers to lok, he is charged with whatever an examination would show.

buyer of real estate has a duty to examne and look before transfer of title to see if someone else is in possession.

Front 199

NY is a race notice jurisdiction

Back 199

so to prevail buyer must be BFP and win race to record

Front 200

in both notice and race notice jurisdictions

Back 200

A had prmpty and properly recorded before B takes. in other words As recordation puts later buyers on record notice, therby defeating their status as bfp w/o notice.

to give record notice: deed must be recorded proerply within the chain or title which refers to that sequence ofrecorded documents capable of recordation. chain of title established through a title search of grantor-grantee relationships

Front 201

shelter rule (chain of title)

Back 201

one who takes from a bfp will prevail against any entity that the transfeorr or BFP would have prevailed against.

Front 202

wild deed

Back 202

if there is a break in the recorded title, it is a wild deed, not connected to the chain of title.
if a deed entered on the records has a grantor unconnected to the hcain of title the deed i a wild deed which is incapable of giving recor notice of its existence.
this means A cannot record properly and the bfp would always win

Front 203

estoppel by deed

Back 203

one who conveys a realty in which he has no interest is estopped from denying the validity of that conveyance if later he acquires the interest he had previously transferred

but be careful in a race notice jurisdiction a recordation before there is actual title won't be effective.

Front 204

mortgage

Back 204

A mortgage is the conveyance of a security interest in land intended by the parties to be collateral for repayment of debt.

debt and voluntary transfer of a security interest in debtor's land to secure debt.

under the SoF mortgages must typically be in writin.

Front 205

equitable mortgage

Back 205

parties gave a deed, undestandng that th land was collateral. parole evidence is evidence to show debt.

if creditor moves to sel land to bfp the bfp owns land and conveyer's only recourse is t proceed agains creditor for fraud and to recover proceeds

Front 206

All parties to a morgage can/cannot transfer their interest

Back 206

can.

the mortgage automaticaly follows the note.

Front 207

creditor mortgagee can transfer his interest by

Back 207

endorsing note and delvering it to transferee
or by executing separate document of assignment

if the note is endorsed and delivered the transferee is eligible to become hholder in due course. this means that he takes the note free of any personal defenses.
personal defenses include lack of consideratio, fraud unconscionability.

thus the holder in due course may foreclose despite the presence of any such personal defenses.

real defenses

Material
alteration
duress
fraud in fctum
incapacity
illegality
insolvency
infancy.

Front 208

requirements for the transferee to be in due course

Back 208

note must be negotiable, made payable to the named mortgagee,
the original note must be endorsed and signedby the named mortgageee
the original note must be delivered to the transfeee a photo copy is unacceptable,
the ransferee must ake he note in good faith without notice of any illegality,
and the transfee pays value for the note meaning some amount that is more than nominal

Front 209

foreclosure will terminate nterests

Back 209

junior to the mortgage being foreclosed but will not affect senior interests.

Front 210

debtor-mortgagor is also considered a

Back 210

necesarry part and must be joined particularly if creditor wishes to proceed against debtor for a personal deficiency jugment

if he fails to join, his mortgage remains on land