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44 Cards in this Set

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What are the rights and Duties of a life tenant?

Tenant is to maintain the estate, if they do more or less they have committed waste. Voluntary Waste is any affirmative action beyond the right of maintenance that harms the premises. Permissive waste results from a a tenants failure to maintain--they must repair, pay taxes, & interest on any mortgage. Ameliorative waste alters property, but enhances its value.

When can a life tenant commit waste?

If changed conditions have made the property relatively worthless in its present condition, life estate can tear down w/out liability to the future interests.

What is the rule of convenience?

A class closes when any member of the class is entitled to a distribution.




(For purposes of determining vested and contingent remainders.)

What is the effect of the cypress doctrine in TX?

In Texas a court can shorten the time when vesting occurs to keep the gift over from vesting outside the time period allowed by RAP. The court can only do so to further the wishes of the grantor.

What are the right of tenants in common (co-tenants) in Texas?

They have the right to possession---each can possess the whole. They have the right to partition. There is a duty to account for profit if one co-tenant ousters the another, has an agreement, leases to a third party, or depletes natural resources. They have the right to contribution for repairs, mortgage, & governmental obligations. They have a claim for recoupment for any improvements at the time of the sale or partition.

What is an easement?

An easement is a non-property interest in land involving a right to use the land. An easement appurtenant directly benefits the use and enjoyment of a a specific adjacent piece of land. An easement in gross exists where there is no dominant estate. Easements appurtenant can be transferred with the land, where an easement in gross cannot be transferred unless the language of the easement allows.

What is required for a covenant to run w/ the land?

1. There must be an intent that the covenant to run with the land.


2. Notice to the person against whom enforcement is sought.


3. The covenant must touch & concern the land.


4. There must be privity.

What is the doctrine of constructive adverse possession?

If someone goes into the land under color of title, but does not possess the whole, they will acquire the title to possession of the whole even though they didn't possess the whole. It must be reasonable in relation to the amount possessed, and the land must be contiguous.

What things affect the adverse possession period and how?

Leasing of the property to another counts as possession for Adv. Poss. purposes. Tacking is allowed so long as there is no gaps. If the owner is under a disability when the period begins, the AP doesn't start until the owner is free of the disability. If the disability arises after the AP period begins, it is ignored.

Who has the risk of loss in a land sale contract?

Usually the risk of loss is on the buyer.


Under the Uniform Purchase and Vendor Act if a material part of the property the party in possession of the land will bear the risk of loss.



What is the effect of death of one party before closing?

If the seller dies, buyer closes with the seller's estate and the interest is personal property. If the buyer dies, the seller closes with the buyer's estate and the interest is real property.

What is marketable title?

A title free of encumbrances (easements, restrictive covenants, mortgages, options, etc..) that are not mentioned in the contract. Violation of a zoning ordinance is an encumbrance, but violation of housing or building codes is not an encumbrance.

When can a deed be recorded in Texas?

When can a deed be recorded in Texas? When it is signed or notarized or signed by two witnesses.

What kind of recording act does Texas have?

Notice Recording Act- subsequent purchasers for value who take with out notice have a valid title. Recording is irrelevant except that it may give notice. There is no duty to inspect that would give rise to notice. But, the grantee may have constructive or implied notice.

Joint Tenany

Two characteristics:


1. Right of survivorship


2. Right to partition




Creation of JT requires "four unities" of time, title, interest, and possession - must clearly make intention known (otherwise court construes it as tenancy in common)

Destruction of a Joint Tenancy

Destruction of JT: partition or severance


4 ways to sever on exam:


1. Conveyance - One JT transfers his interest, turning it into a tenancy in common in the buyer; other JTs continue to hold their interests in JT


2. Mortgage:-"Lien theory" majority state = no severance (when mortgage is executed, lien merely attaches to the title; title does not get transferred so no unity is disturbed)-"Title theory" minority state = severance (when mortgage is executed, title actually passes from mortgagor to mortgagee; even though later title goes back to mortgagor, unity was disturbed)


3. Contract of sale - doctrine of equitable conversion means severance occurs when K of sale is signed; execution of a lease does not sever


4. Creditor's sale of the interest in the JT




TX Only: common law JT doesn't exist in TX; but right of survivorship can be had by K between parties

Tenancy at Will

Either party can terminate at any time, without notice




5 ways to terminate it:


1. Death of either party


2. Waste by tenant


3. Assignment by tenant


4. Transfer of title by landlord


5. Lease by landlord to someone else

Tenancy at Sufferance

Bare possession of a holdover tenant; at landlord's sole option, landlord can either:


1. hold tenant as a wrongdoing trespasser and sue to throw tenant off property and recover damages for the holdover; or


2. impose new periodic tenancy on tenant


-for residential property, new period will always be month-to-month


-for commercial property, new period is determined as follows:


a. if old expired tenancy was for a year or more, new tenancy is year-to-year


b. if the old tenancy was for less than a year, new tenancy is measured by the rent period of the old tenancy




-L cannot impose new tenancy on holdover T if it is not reasonable (for holdover T of just a few hours or if T was holding over due to circumstances beyond T's control, then L cannot impose new tenancy




-If L tells T of higher rent before expiration of lease, and T holds over after expiration, L can impose the new periodic tenancy on the holdover T at the higher rent

Tenant's Duties

if lease is silent on tenant's duties, tenant must:


1. pay rent


2. not commit waste

Landlord's Remedies

-If T fails to pay rent, L can sue both for damages and to throw T off property


-If T unjustifiably abandons the leasehold, L has 2 choices:


1. Treat abandonment as an offer of surrender and accept the offer by retaking the premises; thus ending T's liability as of that date


2. Re-rent the premises on T's account and hold T liable for any deficiency (ie, mitigation of tenant's damages)

Landlord's Duties

1. To give T possession of premises when lease begins (if L cannot give possession, L has breached)


2. To deliver residential premise in a habitable condition


3. Implied covenant of quiet enjoyment

Implied Warranty of Habitability in TX


(Residential Lease Only)

Landlord must provide a safe, decent, and sanitary dwelling, and make repairs of any conditions that threaten the health and safety of an ordinary tenant, and install hot-water device, smoke detectors, and secure locks on all of the doors and windows.



A Landlord must make diligent effort to repair a condition, if:


1. given proper notice of the condition


2. The tenant is not delinquent on his rent at the time the notice is given.


3. The condition materially effects the health and safety of an ordinary tenant.




If landlord breaches then tenant can terminate the lease, remedy the defect and offset the cost of repair against rent, sue for damages, or defend against eviction if the premises are not safe and habitable.





Covenant of Quiet Enjoyment

L breaches Implied Covenant of Quiet Enjoyment by:


a. total eviction of T, which terminates lease, ending T's obligation to pay rent


b.partial eviction of T, which does not terminate lease; T can stay and pays no rent to L (if partial eviction is by person not landlord, but someone with better title, R's rent is aportioned)


c. constructive conviction (where L fails to provide a service L is supposed to provide, thus making premises uninhabitable)




T excused if 3 requirements met:


1. L (not others) has to do it


2. Must be a substantial interference with the covenant of quiet enjoyment


3. Must be an abandonment of the premises within a reasonable time after the breach

Assignment v. Sublease

Assignment is where you transfer everything and have nothing leftover, if you transfers you interest and have any remaining time on the lease it is considered a sublease.




Sublessee is not liable to L because no POC and no POE sublessor is deemed to have kept the estate




TX only: while MBE tenants can assign or sublet unless the lease says otherwise, in Texas there is no right to assign/sublet unless landlord gives permission. Acceptance of rent can serve a permission.

Landlord's Tort Liability - General rule at common law: no duty of landlord to T or to T's invitees of injuries on the premises during the life of the lease

5 Exceptions:


1. Latent defects - L is under a duty to disclose latent defects which L either knows or has reason to know of; latent defect is one T does not know of and a reasonable person in T's position would not discover (L doesn't have to repair, only disclose)


2. Short term lease of a furnished dwelling - L is liable for defects even if L neither knows nor has reason to know of them (short term - 3 months or less)


3. Common areas under L's control - if injury is an area subject to L's control, then L is liable if L failed to use reasonable care


4. Negligent repairs - L is liable for injury resulting from L's repair of a defect in the premises, even if L used all due care in making the repair (TX only: because L has statutory duty to repair, L can be liable in tort if the injured person is in the class of persons protected by the statute)


5. Public use exception - L is liable for injury from defects in the premises, if 3 requirements are satisfied:


a) L must know or should know of major defects;


b) L must know or should know that T will not fix the defect; and


c) L must know or should know the public will be using the premises

Adverse Possession- TX Time Periods

4 time periods in Texas:


-if possessor is there under a color of title and has only narrow specified defects in title: 3 years


-if possessor is there under a color of title and pays all taxes: 5 years


-if possessor is just in bare possession of property with no color of title (naked trespasser): 10 years, but possession is limited to 160 acres (unless a larger area is fenced in)

Contract of the Sale of Land

K governed by regular K rules, plus these:


1. Statute of Frauds - any K of sale of an interest in property must be in writing and signed by the one who is sued-only need some kind of signed writing, provided there is a description of property, names of parties, and price-exception to S/F: doctrine of part performance


2. Legal effect of the K of sale between time of signing or K and closing -- 4 issues:


a. Risk of Loss


b. Death of a party before closing


c. Marketable title


d. Time of performance

Part Performance


Exception to the Statute of Frauds

-Exception to S/F- 2 requirements:


1. Oral K must be certain and clear (no ambiguities) and


2. Acts of part performance must clearly prove up a K-Look for claimaint in possession, and:




1. Paying full purchase price (or something close) or


2. Erecting improvements-Finding at lest one of these situations will take it out of S/F, allowing specific performance of the oral K

Remedies of Buyer if Seller's Title is Unmarketable

-Buyer must notify seller and give seller reasonable time to cure the defect, even if that postpones closing


-If problem not corrected, buyer has 3 remedies:


1. Recession - buyer walks away


2. Damages


3. Specific performance - buyer takes what seller can give and price gets lowered to cover defect (if buyer goes to closing and accepts deed without problems being cured, then no recourse against seller based on the K - any action must then be based on what is in deed)




Time of performance - even if there is a closing day specified in K, time is not of the essence in land sales Ks, unless the K says so or the facts make clear that is what the parties expected; if time is not of the essence, then performance must be tendered within a reasonable time after the date for closing set in K (2 months late is ok); but, if K has a time of the essence clause, and it is violated, party who failed to perform on date can no longer enforce the K

Remedies for Breach of Sales Contract

1. Damages - measure is difference between K price and value of the land on the day of the breach


- Liquidated damages - buyer's deposit can be forfeited as liquidated damages so long as it is not more than 10% of sales price




2. Specific performance of a land sale contract - always available to both buyer and seller

Defects on the property

land not fit for ordinary purposes and buyer wants to rescind




General rule: buyer cannot recover: caveat emptor!




2 Exceptions:


1. Seller must disclose serious defects that seller knows of and are not obvious to buyer; seller cannot actively conceal defects


2. There is an implied warranty of merchantability or fitness for new homes sold by a seller (this warranty is very narrow)

Deed




Once deed is accepted, K merges into deed and is destroyed, and all K provisions (implied warranty of merchantable title) are lost unless included in deed (or K specifies that they survive)

2 requirements for passage of legal title from seller to buyer:


1. Execution - deed is subject to S/F (seller must sign deed); description of land need not be very specific, just be able to identify the property (if cannot, deed is void for vagueness, and nothing gets transferred); description by metes and bounds always controls over description by acreage (or any other description)




2. Delivery of deed - does not always mean physical transfer; legal test is solely a question of intent to pass title; if facts show intent to pass title, mere safeguarding of paper by grantor does not show lack of delivery; recording a deed raises a presumption of delivery (even if grantee never sees deed and knows nothing about it); once delivery occurs, title passes, and returning deed to grantor or tearing up deed has no effect; in showing intent of grantor re: delivery, can use any parol evidence; one presumption on delivery: if grantor dies and still has deed in grantor's possession, presumption of no delivery (can be rebutted by grantee) Grantee mus ACCEPT the deed.

Covenants for Title

If grantor makes no promises regarding title, grantee gets Quit Claim Deed; grantee gets whatever grantor owns and grantor gets nothing




If grantor makes promises regarding title, they are covenants for title, and deeds with the 6 traditional covenants for title are called general warranty deeds

Covenants for Title - 6 covenants are placed in 2 categories


(Contained in a General Warranty Deed)

1. Present covenants: can sue immediately on these, thus they are personal to grantee and do not run with land;




3 present covenants:


a. Covenant of seison - represent promise of seller that seller has title and possession and can validly convey both


b. Covenant of the right to convey - same as covenant of seisen


c. Covenant against encumbrances - grantor promises no easements, restrictive covenants, liens, etc




2. Future covenants: not breached immediately, but only later, when grantee is disturbed in possession (true owner shows up); because future covenant is breached only in future, it runs with land and can be enforced by all subsequent purchasers:


a. Covenant for quiet enjoyment - represent the promise of seller that seller will protect buyer against anyone who later shows up and claims title


b. Covenant of warranty - same as covenant for quiet enjoyment


c. Covenant of further assurance - "mop up" covenant; if seller forgot to do something to pass valid title, seller promises to do whatever necessary (ex. sign deed)

Special Warranty Deed

A special warranty deed contains the same covenants of title but only warrants against defects arising during the time the grantor has title.

Shelter Rule Exception

anyone (even heirs, donees, devisees) can shelter under the rights of a BFP




E.g. if BFP is protected by recording act so are there heirs, donees, ect.

TX only: validly perfected mechanics' and materialmen's lien can protect workers and suppliers to workers on real property; has priority over mortgages or other liens

Requirements to perfect MML:




1. affidavit must be filed with county clerk where property is located no later than the 15th day of the 4th calendar month after day the indebtedness accrues


2. affidavit must list the amount of the claim, the names/addresses of all relevant persons, general statement of work done and materials furnished


3. affidavit must give a legal description of the property sought to be charged with the lien


4. copy of the affidavit must be sent by certified or registered mail to owner within 5 days of filing

Water Rights Categories

1. Rivers and Lakes


2. Water under Ground


3. Surface Water

Water Rights- Rivers and Lakes

2 legal systems:


a. riparian rights (majority) - property borders on lake/stream; owner can use all water needed for domestic purposes; if use is non-domestic, owner limited to reasonable use - act reasonably toward owners downstream or on lake (can't impair quality/quantity)


b. prior appropriation (minority) - first in time takes: anyone, not just riparian owner, who makes beneficial use of water, has right to continue to use it, and that right is protected from those who come later, as long as use continues




TX only: permit regulatory system exists, with prior appropriation being main factor, and previous uses before new law can be continued

Water Rights- Under Ground Water

landowner is entitled to reasonable use of ground water; landowner must use it on property and not export it elsewhere




TX only: follows rule of capture - landowner does not have to be reasonable - can take all water from a well on your property even if you take all water from your neighbor's well at the same time

Water Rights- Surface Water

Two competing approaches:


1. Natural flow approach - court allows reasonable steps to deal with flood water; on exam, drainage pipes/ditches to divert flood water are okay; Texas follows this approach


2. Common enemy approach - can do anything with floodwater, whether reasonable or not

Non-Judicial Foreclosure

The nonjudicial foreclosure process is used if a power-of-sale clause exists in a mortgage or deed of trust authorizing the sale of the property to pay off any default loan balance. For residential property, a notice of default must be served by certified mail and provide at least 20 days to cure the default before notice of sale will be given. After the 20 days’ notice, notice of the sale must be filed with the county clerk, posted on the courthouse door, and served on the debtor by certified mail at least 21 days before the sale date.

Equitable Right of Redemption

Texas homeowners may end the foreclosure process by paying off the debt before the foreclosure sale begins.


The seller must notify a purchaser who is in default their right to cure the debt and allow the purchaser at least 60 days to do so.

Who gets what whenever a property is sold at a foreclosure sale?

The money from the sale would be first applied to the costs associated with the sale, second to the balance and interest of the debt itself, and finally to all junior interest holders. Any residue would be paid to the debtor.




The purchaser of the property would take the property free of any liens from any junior mortgages, but subject to any senior mortgages.