03. Real Property Flashcards
1
Q
What are the ways property can be transferred?
A
1) Sale
2) Gift
3) Divise (will; effective when decedent dies)
4) Intestate succession
2
Q
What is another word for “transferred” in property?
A
Alienated
3
Q
How are ownership interests divided in real property?
A
In time between present interests and future interests
4
Q
What is the key distinction in the division of ownership interest of real property?
A
The timing of possession (e.g., who has the right to possess it NOW?)
5
Q
T or F: Someone must be in possession of property at all times
A
True
6
Q
What is the largest possessory estate?
A
Fee Simple (or Fee Simple Absolute)
7
Q
What does the “absolute” mean in “Fee Simple Absolute”?
A
It means that nothing stops the fee simple estate from continuing or passing on
8
Q
Why is a fee simple estate considered the largest possessory estate?
A
Because it is capable of lasting forever
9
Q
What does it mean for something to be inheritable?
A
Upon the owner’s death, the owner can pass it by will or be intestate succession; can also be transferred by gift or sale during owner’s life.
10
Q
What are the “magic words” to create a fee simple estate?
A
“and his/her heirs” (but this is not required, can just be “O to A”)
11
Q
What happens if a grant of real property is ambiguous?
A
Ig a grant is ambiguous, it creates a fee simple
12
Q
What is the default estate?
A
Fee simple absolute
13
Q
Why is fee simple absolute the default estate?
A
There is a presumption that the grantor conveys the most that she has
14
Q
What effect do precatory words (e.g., “my hope and wish”, words of intent or purpose) have on a conveyange?
A
No effect - if the grantor wishes to make a conveyance, they have the explicitly say it or it won’t count
15
Q
T or F: There is a future interest associated with a fee simple estate
A
False: Because a fee simple estate is capable of lasting forever (e.g., the big wheel of cheese hasn’t been sliced, diced, or bitten), there is no future interest. If you see something like “O to A, then to B when A dies”, then A got a life estate, not a fee simple.
16
Q
What are defeasible fees?
A
Interests that may be terminated by the occurrence of an event (but still capable of lasting forever if the event doesn’t happen); in other words, a condition will cut the fee simple short
17
Q
What is a fee simple determinable?
A
Limited by specific durational language
18
Q
What are examples of durational language that trigger a fee simple determinable?
A
1) “So long as”
2) “While”
3) “During”
19
Q
What is a fee simple subject to condition subsequent?
A
Limited by specific conditional language
20
Q
What are examples of conditional language that trigger a fee simple subject to condition subsequent?
A
1) “But if”
2) “Provided that”
3) “On the condition that”
21
Q
What is the future interest associated with a fee simple determinable?
A
Possibility of Reverter
22
Q
What is a Possibility of Reverter?
A
A future interest held by a grantor following a fee simple determinable that invests automatically after the durational period ends
23
Q
What is the future interest associated with a fee simple subject to condition subsequent?
A
Right of Entry
24
Q
What is a Right of Entry?
A
A future interest held by the grantor following a fee simple subject to condition subsequent that does NOT vest automatically, but must be reclaimed through a specific action by the grantor
25
What is a fee simple subject to executory interest?
Will end upon the happening of an event and the future interest will vest in a third party (NOT the grantor)
26
What is the difference between a fee simple subject to condition subsequent and a fee simple subject to executory interest?
FSSCS --> future interest = grantor
FSSEI --> future interest = third party
27
What is an executory interest?
A future interest that will cut short or terminate an earlier interest (NOT THE GRANTOR)
28
What is another term for terminating a prior interest
Divest
29
What is a life estate?
A present estate that is limited by life
30
What words are used to create a life estate?
"For Life" (doesn't have to be the grantor's life)
NOTE: If ambiguous, look for the grantor's intent to create an estate that will end upon the death of the measuring life (i.e., To A to live in your house; you can only live in a house while alive, so probably a life estate)
31
When does a life estate terminate?
Ends naturally when the measuring life ends
32
Is a life estate transferable?
Yes!
33
T or F: A life tenant (measured by the tenant's life) can pass the property by will
False: the life estate ends at the life tenant's death
34
What is a reversion?
When possession of the land goes back to the grantor after the life estate ends
35
What is a remainder?
When possession of the land goes to a third party after the life estate ends
36
What is the difference between a reversion and a remainder?
Reversion --> possession goes back to grantor
Remainder --> possession goes to third party
37
What is common between a reversion and a remainder?
1) Both follow a life estate
2) Both result in a fee simple
38
What is waste in terms of real property?
Comes into play when more than one party has an interest in the same piece of real property, and a present interest holder's actions are impacting the future interest's value.
39
What are the types of waste?
1) Affirmative
2) Permissive
3) Ameliorative
40
What is affirmative waste?
Waste caused by voluntary conduct, which causes a decrease in value
Ex: dumping hazardous waste
41
What is permissive waste?
Waste caused by neglect toward the property, which causes a decrease in value
Ex: not cleaning up after a natural disaster
42
What is ameliorative waste?
Special situation where a life tenant or other person in possession changes the use of the property and actually increases the value of the property
Ex: Renovation of a house, construction of a dam, fixing a fence
43
In what situations does the doctrine of waste usually apply?
1) Landlord v. Tenant
2) Co-tenant out of possession v. tenant in possession (concurrent estates)
3) Mortgagee (bank/lender) v. mortgagor (borrower)
44
How to spot a waste problem on the bar
1) Do multiple parties have simultaneous interests? (e.g., life tenant, remainder, future interests, landlord v. tenant)
2) Is there a change in the value of the property due to the actions/inactions of the party in possession?
3) Will the waste substantially change the interest taken by the party out of possession? (Do I stop or encourage the waste?)
45
T or F: A remainder cannot follow a vested fee simple
True: (Remainders are Patient) A future interest following a vested fee simple would have to divest the prior interest, but a remainder does not function that way because it instead waits for the prior interest to end
46
What are the two categories of remainders?
1) Vested
2) Contingent
47
T or F: RAP generally applies only to vested remainders
False: RAP generally applies only to contingent remainders
48
What are the two requirements for vested remainders?
1) Given to an ascertained grantee
2) Not subject to a condition precedent
49
What happens if the remainder is either not to an ascertainable grantee or subject to a condition precedent?
Then it is a contingent remainder
50
What happens if the holder of a vested remainder dies?
The interest passes to the holder's heirs
51
What happens if a contingent remainder does not vest before it becomes possessory?
The grantor has a reversion
52
What is a vested remainder subject to open?
1) Vested remainder in a class gift; AND
2) Full class membership is unknown
53
What happens if no one in the class has vested?
The remainder is contingent, NOT vested subject to open
54
What happens when all members of a class are identified?
The class is closed
55
When is it presumed people may have children in property law?
From the time their born until the time they die
56
T or F: RAP applies to a vested remainder subject to open
True
57
What is the Rule of Convenience?
A class-closing mechanism to avoid application of RAP to a class gift
58
How is the Rule of Convenience applied?
If the grant does not have an express closing date, the Rule of Convenience closes the class when any member of the class becomes entitled to immediate possession.
59
What is the Doctrine of Worthier Title?
Prevents against reminders in a grantor's heirs & creates a presumption of a reversion to the grantor
Ex: Changes "to Anna for life, then to my heirs" into a reversion in O with a life estate for Anna
60
What is the Rule in Shelley's Case?
Prevents against reminders in a grantee's heirs & uses the doctrine of merger to create a fee simple
Ex: Changes "to Anna for life, then to Anna's heirs" to "to Anna", so Anna has FSA
61
T or F: Executory interests are not subject to RAP
False
62
What is an executor interest?
Future interest that cuts short (i.e., divests) a prior vested interest
("He's a jerk!")
63
What are the two types of executory interest?
1) Springing
2) Shifting
64
What is a springing executory interest?
Divests the grantor
65
What is a shifting executory interest?
Divests a prior grantee
66
Exam tip for executory interests - count the parties
1) 2 parties --> likely springing
2) 3 parties --> likely shifting
67
What does RAP prevent?
Remote vesting
68
What is RAP testing for?
Certainty (operates like a statute of limitations for contingent future interests)
69
What is the time period for RAP?
A life + 21 years (approximately 2 generations)
70
When are the two times interests can be created?
1) Inter vivos transfers = interests created at time of the grant
2) Devise (will) = interests created at testator's death (NOT when the will is drafted)
71
Which interests does RAP apply to?
1) Contingent remainders
2) Executory interests
3) Class gifts (vested remainders subject to open) if NOT closed by rule of convenience
72
What is a relevant life (RAP)?
Person who affects vesting, usually mentioned or implied by the grant
Ex: prior life tenant, the parent where a conveyance is made to a child
73
What is a validating life (RAP)?
Person who tells us whether or not the interest vests within the perpetuities period (lifetime + 21 years)
74
What are the requirements for a validating life?
1) Must have been alive when the interests were created
2) Can validate own interest
3) If no validating life, then interest is NO GOOD and we strike it from the grant; if there is a validating life, the interest is GOOD
75
If a portion of a transfer is found to violate the Rule Against Perpetuities, how will courts treat the transfer?
The portion of the transfer that violates the rule is void, and the rest is valid.
76
T or F: If the gift to any member of the class is void under RAP, then the gift is void as to all members of the class
True: The gift is all or nothing
77
What are the exceptions to the "all or nothing" Class Gift rule?
1) Transfers of a specific dollar amount to each class member
2) Transfers to a sub-class that vests at a specific time
78
What are the exceptions to RAP?
1) Charities: RAP does not apply to a gift from one charity to another charity
2) Options: RAP does not apply to an option held by a current tenant to purchase a fee interest in the leasehold property OR to an option (or right of first refusal) in a commercial transaction
79
What is the modern RAP approach?
"Wait and See": Rather than invalidating transfers from the outset under RAP, you wait and see if an interest subject to RAP vests within the perpetuities period (some states have changed the vesting period to 90 years)
80
What is cy pres?
An equitable doctrine (borrowed from the law of trusts) that allows a court to reform a transfer to avoid RAP
81
What are concurrent estates?
Ownership or possession of real property by two or more persons simultaneously
82
What is the basic rule of concurrent estates?
Concurrent owners each have right to use or possess the whole of the property
Exception = concurrent owners can contract out of the basic rule
83
What are the types of concurrent estates?
1) Tenancy in common
2) Joint tenancy
3) Tenancy by the entirety
84
What is tenancy in common?
Concurrent owners have separate but undivided interests in the property with NO right of survivorship.
Default Rule: Any conveyance to more than one person is presumed to be a tenancy in common
85
What is the default concurrent estate?
A tenancy in common
86
What does it mean if a concurrent estate has no right of survivorship?
Each co-tenant can transfer the property freely at death as well as during life
87
What type of concurrent estate generally will not have a right of survivorship?
Tenancy in common
88
What is the defining characteristic of a joint tenancy?
The right of survivorship, whereby the surviving joint tenant(s) automatically take the deceased tenant's interest
89
Oliver conveys Blackacre "to Anna and Ben as joint tenants with a right of survivorship." Anna dies in a tragic hunting accident. Anna's will leaves everything to her daughter Amy. Who owns Blackacre?
Ben, who takes under the right of survivorship (which trumps Anna's will).
90
How do you create a joint tenancy?
1) Grantor must make a clear expression of intent; PLUS
2) Must be survivorship language
Ex: "as joint tenants with a right of survivorship"
91
What is needed to create a joint tenancy?
The four unities
92
What are the four unities?
PITT or T-TIP
1) P: Possession = Every join tenant has an equal right to possess the whole of the property
2) I: Interest = Joint tenants must have an equal share of the same type of interest
3) T: Time = Joint tenants must receive their interests at the same time
4) T: Title = Joint tenants must receive their interests in the same instrument of title
93
What happens if one of the unities is lost?
The joint tenancy is severed and becomes a tenancy in common
94
T or F: Transfer during life of a joint tenancy will not sever the right of survivorship
False: the transfer will sever/destroy the right of survivorship and convert the estate into a tenancy in common
95
What happens if only one of more than two joint tenants conveys their interest in an inter vivos transfer?
This does NOT destroy the joint tenancy of the remaining joint tenants.
96
What happens if a tenant of a joint tenancy has a lien and then dies?
Any lien against a joint tenant's interest terminates upon that tenant's death, so the surviving tenants' interests are not encumbered
97
A joint tenant grants a mortgage interest in the joint tenancy to a creditor. Does the mortgage sever the joint tenancy?
Majority = Lien Theory --> mortgage treated like a lien and does NOT destroy joint tenancy
Minority = Title Theory --> mortgage severs title and the tenancy between the joint tenants and the creditor is converted into a tenancy in common
98
A joint tenant leases her share in the property to a tenant. Does the lease sever the joint tenancy?
Jurisdictions are split!
- Some jurisdictions hold that the lease severs the joint tenancy
- Other jurisdictions treat the lease as a temporary suspension of the joint tenancy
99
What is a tenancy by the entirety?
A joint tenancy between spouses
A joint tenancy with a 5th unity of marriage
100
T or F: Tenants by the entirety cannot alienate or encumber their shares without the consent of their spouse
True
101
How do you convey a tenancy by the entirety?
Property conveyed "as tenants by the entirety, with a right of survivorship"
102
What happens if a grant of tenancy by the entirety is ambiguous?
Courts presume property is held as joint tenants or as tenants in common
103
What is the general rule for possession and use of concurrent owners?
Each co-tenant has right to possess all of the property, regardless of that co-tenant's share and regardless of the type of co-tenancy.
104
Does one co-tenant owe the other a duty to pay rent?
No, a co-tenant in possession is not require to pay rent to co-tenants out of possession
105
What is an ouster?
Co-tenant in possession denies another co-tenant access to the property
106
What must a party show to claim ouster?
You must manifest an intent to possess the property and be denied access (e.g., one tenant changes the locks or throws out the co-tenant's stuff)
107
What are remedies for the ousted tenant?
1) Get an injunction granting access to the property; and/or
2) Recover damages for the value of the use while the co-tenant was unable to access the property
108
How is rent divided among concurrent owners?
Rent received from a third party's possession of the property, minus operating expenses, are divided based on ownership interests on each co-tenant
109
Anna and Ben own Blackacre as tenants in common. Anna has a 10% interest and Ben has a 90% interest in Blackacre. Carmen is renting Blackacre for $1,000 a month. How much is Anna and Ben each entitled to?
Anna = $100 (10% of $1,000)
Ben = $900 (90% of $1,000)
110
What are operating expenses?
Necessary charges, such as taxes or mortgage payments
111
How are operating expenses divided between co-owners?
Based on ownership interest of each co-tenant
112
What happens if a co-tenant pays more of her share of the operating expenses?
A co-tenant can collect contributions from the other co-tenants for payments in excess of her share of the operating expenses
113
What happens if a co-tenant pays for necessary repairs?
There is no right to reimbursement from co-tenants for necessary repairs, but they can get credit in partition action.
114
What happens if a co-tenant pays for improvements?
There is no right to reimbursement from co-tenants for improvements, but they can get credit in partition action.
115
What is a partition?
An equitable remedy available to all holders of tenancy in common or joint tenancy (unilateral right) to divide the property into distinct portions.
NOTE: This is NOT available for tenants by the entirety
116
What are the two types of partitions?
1) Partition in kind (physical division)
2) Partition by sale
117
What type of partition is preferred by the court?
Partition in kind
118
When will a court order a partition by sale?
If the physical partition is:
1) Not practical (e.g., land has complicated terrain); OR
2) Not fair to all parties
119
How are proceeds from a partition by sale divided?
Proceeds from a partition by sale are divided among the co-tenants based on their ownership interests.
120
Anna and Ben own a condo unit as tenants in common, each with a 50% share in the property. Anna sues for partition. What kind of partition will the court order?
A partition by sale, because a physical partition is not feasible.
121
Can co-tenants agree not to partition?
Yes; such agreements are enforceable, as long as they are:
1) clear; and
2) the time limitation is reasonable
122
What does the FHA do?
The Fair Housing Act (FHA) prohibits discrimination in the:
1) Sale;
2) Rental; AND
3) Financing
of dwellings (homes, apartments, etc.)
It also prohibits advertising that states a discriminatory preference
123
Who is the primary focus of the FHA?
Multi-family residential housing
124
What are the 3 exemptions from the FHA?
1) Single-family housing that is sold or rented without a broker
2) Owner-occupied buildings with 4 or fewer living units
3) Religious organizations and private clubs
125
What are the protected traits under the FHA?
1) Race
2) Color
3) Religion
4) National Origin
5) Sex (includes orientation & gender identity)
6) Disability
7) Familial Status (families w/ children under 18 or someone pregnant)
126
When may a landlord treat someone differently under the FHA?
When providing reasonable accommodations for persons with disabilities (e.g., ramp, elevator, etc).
127
What is prohibited under the FHA?
Based on a protected trait:
1) Refusing to rent, sell, or finance a dwelling;
2) Requiring different rents;
3) Falsely denying that a unit is available;
4) Providing different services to facilities; OR
5) Stating a discriminatory preference in an advertisement
128
What intent is allowed in FHA cases?
1) Disparate Treatment (intent)
2) Disparate Impact (effect)
129
What must be shown in an FHA case?
That the prohibited behavior is linked to the protected trait (causal nexus)
130
What is the default controlling law in property?
Law of the Situs = controlling law is based on where the property is located
131
When does law of the situs not control?
1) If the instrument in question designates an applicable jurisdiction
2) Marriage: the domicile of the party may override, specifically with respect to classifying property as marital or separate
3) Mortgage: mortgage documents require repayment to be made in another state
132
What types of interests are created by a lease?
1) Contract
2) Property
133
What are the 4 tenancies that govern the landlord-tenant relationship?
1) Tenancy for years
2) Periodic tenancy
3) Tenancy at will
4) Tenancy at sufferance
134
What is a tenancy for years?
Measured by a fixed and ascertainable amount of time (doesn't have to be in years)
135
What is required to create a tenancy for years?
1) An agreement by the landlord and the tenant (purpose = demonstrate the intent to create a leasehold)
2) IF longer than 1 year, then the agreement must be signed and in writing (Statute of Frauds)
136
How is a tenancy for years terminated?
1) At the end of the term = automatic (no notice needed)
2) Before the end of the term = tenant surrenders the lease OR the tenant or landlord commits a material breach
137
What is a periodic tenancy?
Estate that is repetitive and ongoing for a set period of time (e.g., month-to-month, year-to-year) that renews automatically at the end of each period until one party gives proper notice of termination
138
What is required to create a periodic tenancy?
Parties must intent to create a periodic tenancy, which can be express (e.g., a signed lease) or implied (e.g., payment of rent)
139
How is a periodic tenancy terminated?
- Renews automatically until proper notice is given
- OLD: in a year-to-year, need at least 6 month notice
- NEW: most states lowered to month's notice
- Proper Notice = terminating party gives notice before the start of what will be the last term
- Most jurisdictions require written notice of termination
- Notice is effective on the last day of the period
140
What is a tenancy at will?
May be terminated by either landlord or tenant at any time, for any reason
141
What is required to create a tenancy at will created?
Can be created by express agreement or by implication
142
How is a tenancy at will terminated?
Can be terminated by either party without notice
- If the agreement gives only the landlord the right to terminate at will, the tenant also gets the right to terminate by implication
- If the agreement gives only the tenant the right to terminate at will, the landlord is NOT given the right to terminate at will
- If the landlord or tenant dies, the tenancy at will terminates (NOT true for tenancy for years or periodic tenancy)
143
What is a tenancy at sufferance?
- Created when a tenant holds over after the lease has ended
- A temporary tenancy that exists before the landlord either:
1) evicts the prior tenant OR
2) re-rents the property to the tenant (creates a new tenancy with the holdover tenant)
- Tenant owes the landlord reasonable value of the daily use, as well as reasonably foreseeable special damages
144
What is required to create a tenancy at sufferance?
Created by actions of the tenant alone
145
What is the difference between a tenancy at will and a tenancy at sufferance?
- Tenancy at will: Created by agreement of the landlord and tenant (meeting of the minds)
- Tenancy at sufferance: Created by actions of the tenant alone
146
How is a tenancy at sufferance terminated?
1) Tenant voluntarily leaves;
2) Landlord evicts tenant; OR
3) Landlord re-rents to the tenant
147
What are the tenants 2 basic duties?
1) Pay rent
2) Avoid waste
148
Where does the duty to pay rent arise from?
The contractual relationship between landlord and tenant (i.e., the lease requires it; consideration)
149
What are the 3 situations where the duty to pay rent is supsended?
1) Premises are destroyed, so long as the tenant didn't cause the damage
2) The landlord completely or partially evicts the tenant
3) The landlord materially breaches the lease
150
What is complete eviction?
Removal of tenant from the entire property
151
What is partial eviction?
Removal of tenant from a portion of the property
152
What are the 2 implied warranties landlords must uphold?
1) Implied covenant of quiet enjoyment
2) Implied warranty of habitability
153
What types of properties does the implied covenant of quiet enjoyment apply to?
Both commercial and residential
154
What types of properties does the implied warrant of habitability apply to?
Residential ONLY
155
What is the implied covenant of quiet enjoyment?
The tenant can withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for the intended purposes, and the tenant is constructively evicted
156
What are the elements of constructive eviction?
1) Premises were unusable for their intended purposes (i.e., breach of the covenant of quiet enjoyment);
2) The tenant notifies the landlord of the problem;
3) The landlord does not correct the problem; AND
4) The tenant vacates the premises after a reasonable amount of time has passed
157
What is the implied warranty of habitability?
The landlord has an obligation to maintain the property such that it is suitable for residential use.
158
What conditions are of primary concern with regard to the implied warranty of habitability?
1) Tenant's health
2) Tenant's safety
159
T or F: A tenant may waive habitability protection
False: The tenant cannot waive habitability protection
160
What may constitute evidence of a breach of the implied warranty of habitability?
The landlord's failure to comply with applicable housing codes
161
What options does a tenant have if the premises are not habitable?
1) Refuse to pay rent;
2) Remedy the defect and offset costs against the rent; OR
3) Defend against eviction
162
What must a tenant do if they choose to withhold rent for a breach of the implied warranty of habitability?
1) Notify the landlord of the problem; AND
2) Give the landlord reasonable opportunity to correct the problem
163
T or F: The implied warranty of habitability requires the tenant to vacate the premises after notifying the landlord of defects and waiting a reasonable amount of time
False: Unlike quiet enjoyment and constructive eviction, IWH does not require the tenant to vacate the premises
164
Must the duty to avoid waste be expressed in the lease?
No; the duty to avoid waste is a background rule that does not have to be expressed in a lease in order to apply
165
What is the duty to avoid waste?
The tenant has a duty not to commit affirmative (voluntary) waste or permissive (neglectful) waste
166
How may landlords handle ameliorative waste?
Landlord's usually require permission before a tenant can make improvements or changes to the property, even those that increase the property's value (ameliorative waste). A landlord can also put a provision in the lease prohibiting the tenant from making improvements to the property.
167
What is the duty to repair?
In a residential lease, the landlord is presumed to be responsible for repairs. The tenant must notify the landlord of any needed repairs.
NOTE: The landlord is NOT responsible to make repairs caused by the tenant's actions (though they likely will & charge the tenant)
NOTE: In a commercial lease, the landlord can place the duty to repair on the tenant
168
If the tenant abandons the property early or is evicted by the landlord, does the landlord have an obligation to mitigate damages by re-renting the property?
- Majority Rule: The landlord must make reasonable efforts to re-rent the property
- Minority Rule: The landlord does NOT have to mitigate damages (more common in commercial leases)
169
Under the majority rule for the duty to mitigate damages, what would reasonable efforts to re-rent a property entail?
Treat the leasehold as if it was vacant stock (advertise & show like the rest, but don't have to do something special)
170
What happens if the landlord doesn't make diligent efforts to re-rent after abandonment or eviction (Majority Rule)?
The tenant is relieved from the obligation to continue paying rent
171
What is the landlord entitled to if he does make diligent efforts to mitigate damages (Majority Rule)?
The difference between the original rent and the rent received from the replacement tenant
172
T or F: The landlord does not have to accept an unacceptable replacement tenant when mitigating damages
True
173
What type of relationship is established if a landlord accepts rent from a holdover tenant?
A new periodic tenancy
174
Can a landlord increase rent?
Yes, the landlord can impose a higher rent if the landlord had informed the tenant of the increase before the expiration of the old lease.
175
What is the duty to deliver possession?
- Majority Rule: The landlord must deliver actual possession
- Minority Rule: The landlord need only deliver legal possession
176
How is quiet enjoyment violated?
When the landlord, or someone connected to the landlord, renders the premises unsuitable for the intended purpose.
177
What must the landlord control in order to ensure quiet enjoyment?
1) Common areas (e.g., lobby, hallway, laundry room, etc.)
2) Nuisance-like behavior of other tenants
178
What does a landlord NOT have to control?
Off-premises actions of third parties that are beyond the landlord's control (e.g., noisy bar across the street)
179
If a tenant complains about conditions, what can a landlord NOT do?
Retaliate by evicting the tenant
180
In a residential lease, how must the landlord maintain the premises?
Habitable
181
Who does the tenant owe a duty of care to?
1) Invitees
2) Licensees
3) Foreseeable trespassers
182
What is the landlord's duty of care under common law?
1) Responsible in negligence for latent (hidden) defects about which the tenant has not been warned;
2) Responsible for faulty repairs completed by the landlord or the landlord's agent negligently;
3) Responsible for negligence that causes injuries in common areas of the property
183
What is the landlord's duty of care under the modern trend?
A general duty of reasonable care
184
What is an assignment?
A complete transfer of the tenant's remaining term
185
What is a sublease?
A transfer for less than the entire duration of the lease
186
What type of transfer is it if the tenant retains a reversionary interest in the leasehold?
A sublease
187
What are the 2 types of privity in leaseholds?
1) Contract
2) Estate
188
How can a landlord collect rent if there has been a transfer?
There needs to be either privity of contract or privity of estate.
189
Who can a landlord collect rent from in an assignment?
1) Tenant (contract & estate)
2) Subtenant (estate)
190
Who can a landlord collect rent from in a sublease?
Only the tenant (contract & estate), because the subtenant only has privity with the tenant.
191
What happens if the lease is silent on the issue of assignment or sublease?
A tenant may assign or sublet freely
192
What happens if the lease requires the landlord's permission to transfer, but is silent on the applicable standard?
- Majority Rule: A landlord may deny permission to a transfer only for a commercially reasonable reason
- Minority Rule: A landlord may deny permission at her discretion
193
Does a landlord need a tenant's permission to transfer the landlord's interest to a new landlord?
No; but the new landlord is bound by the terms of the existing lease
194
Who is a listing agent?
The agent who assists the seller in promoting and selling the property
195
Who is the broker?
Sometimes the real estate agent, it's the intermediary between buyer and seller
196
Who is a seller's agent?
A sub-agent for the listing agent who helps find buyers.
NOTE: In most cases, the listing and seller's agent share the commission. The agent who shows you property is, in effect, working for the seller
197
Who is the buyer's agent?
The broker who serves as the representative of the buyer; will receive commission similar to seller's agent fee
198
What is a dual agent?
Someone who represents both buyer and seller (many states forbid dual agency as a conflict of interest)
199
What are the 2 stages of land sale contracts?
1) Contract stage = where parties negotiate terms
2) Deed stage = where parties transfer property
200
How is liability determined during land sale contracts?
By the stage where the breach occurs
201
What happens if a breach occurs in the contract stage of a land sale?
Any liability must be based on a contract provision
202
What happens if a breach occurs in the deed stage of a land sale?
Any liability must be based on a deed warranty
203
What is the doctrine of merger in land sale contracts?
Covenants under the contract are merged into the deed and any remedy will flow from the deed
204
What are the Statute of Frauds requirements for land sale contracts?
1) Writing
2) Signed by the party to be charged
3) Include essential terms:
- The parties (i.e., the seller and the buyer)
- Description of the property
- Price and payment info
205
What are the exceptions to the Statute of Frauds requirements for land sale contracts?
1) Part performance
2) Detrimental reliance (estoppel)
206
What is required to establish partial performance such that the Statute of Frauds requirements are waived for land sale contracts?
Need 2 of the following 3:
1) Payment of all or part of the purchase price;
2) Possession by the purchaser; OR
3) Improvements by the purchaser
NOTE: These acts can be by either the seller or the buyer
207
How may detrimental reliance excuse the Statute of Frauds requirements for land sale contracts?
Applies where a party has reasonably relied on the contract and would suffer hardship if the contract were not enforced
208
What covenant is implied in ever land sale contract?
Marketable Title
209
What is marketable title?
The implied covenant that the title is free from an unreasonable risk of litigation
210
What are examples of defects in title that would render title unmarketable?
1) Title acquired by adverse possession that hasn't been quieted
2) Private encumbrances (e.g., mortgage, covenant, easement)
3) Violation of a zoning ordinance
211
When must a defect in title be cured?
Before closing, at which point the contract and deed merge and the deed controls
212
What standard is used in judging whether title is unmarketable?
That of a reasonable buyer
213
What is the buyer's remedy if the seller cannot deliver marketable title?
Rescission of the contract
214
Can a buyer rescind a land sale contract upon finding that the title has a racially discriminatory covenant?
No; Since the covenant is not enforceable under the FHA or the 14th Amendment, there is no risk of litigation
215
What is the basic rule of timing for land sale contracts?
Unless the contract or parties notify, time is NOT of the essence. This means that failure to close on the date set for close may be a breach of the contract, but is not grounds for rescission, as specific performance is still available.
216
What is the implied warranty of fitness or suitability?
A builder warranty that applies to defects in new construction.
217
Who is covered under the implied warranty of fitness or suitability?
- Majority: initial homeowner-purchaser & subsequent purchasers
- Minority: only the original homeowner-purchaser
218
When must suit for breach of the implied warranty of fitness or suitability be brought?
Generally must be brought within a reasonable time after discovery of the defect (some jurisdictions have a statutory time period)
219
What is the duty to disclose defects?
Most jurisdictions impost a duty on the seller to disclose to the buyer all known, physical, and material defects
220
What types of defects is the duty to disclose defects primarily concerned about?
Latent or hidden defects
221
What is a material defect?
A defect that substantially affects the value of the home, health, and safety of its occupants, or the desirability of the home
222
Will a general disclaimer satisfy the seller's duty to disclose?
No
223
What is merger in land sale contracts?
- After closing, obligations contained in the contract are merged into the deed
- If there was something important in the contract that is not in the deed, the cause of action is lost because the deed controls after closing
224
What remedies are available to a seller in the event of buyer breach of a land sale contract?
1) Damages = (Contract Price) - (Market Price)
2) Rescission: Seller can sell the property to someone else
3) Specific performance
225
What remedies are available to a buyer in the event of seller breach of a land sale contract?
1) Damages = (Contract Price) - (Market Value on Date of Breach)
- NOTE: If seller breached in good faith, buyer can only recover out-of-pocket expenses
2) Rescission: Returns payments to the buyer and cancel the contract
3) Specific performance
226
What choice must buyers and sellers make when selecting remedies?
Buyers and sellers must choose between damages and specific performance - they cannot have both remedies
227
Who bears the risk of loss if there is damage to or destruction of the property?
- Majority Rule: The buyer holds equitable title during the period between the execution of the contract and the closing and delivery of the deed
- Buyer is responsible for any damage to the property that happens during that period
- As holder of legal title, the holder/buyer has a right to possess the property
- Minority Rule: Places the risk of loss on the seller until the closing and delivery of deed
228
What are the duties of a life tenant?
1) Duty to pay current charges
2) Duty to prevent waste
3) Duty to make ordinary repairs
229
To what extent must a life tenant pay ordinary taxes on real property?
To the extent that the life tenant receives a financial benefit
230
How is the financial benefit to a life tenant calculated?
- Occupying = fair market rental value
- NOT Occupying = income derived from the land
231
How do you acquire title by adverse possession?
- E = Exclusive: physical presence on land not shared with owner
- C = Continuous: presence is continuous & uninterrupted for statutory period
- H = Hostile: possession is would owner's consent
- O = Open, notorious, & actual: possession is apparent or visible to reasonable owner
"ECHO"
232
What is "estoppel by deed"?
A grantor who conveys an interest in land by warranty deed before actually owning it is estopped from later denying the effectiveness of that deed. When the grantor acquires ownership of the land, the after-acquired title is transferred automatically to the prior grantee.
233
What is a vested remainder subject to complete divestment?
The occurrence of a subsequent condition will eliminate the remainder interest in a known entity.
234
What is a fixture?
Tangible personal property (i.e., chattel) that is:
1) attached to real property in such a manner that it is treated as part of the realty; AND
2) used for some larger component or function of the land (e.g., to separate adjoining properties).
235
What happens to a fixture if the land it's on is sold?
Fixtures are considered an integral part of the land to which they are attached. Consequently, a fixture automatically transfers with the land unless the conveying instrument (e.g., deed) provides otherwise.
236
How can private nuisance liability arise?
When a defendant's interference with the plaintiff's use and enjoyment of his/her property is both substantial (offensive, annoying, or intolerable to normal person in community) and unreasonable (severity of plaintiff's harm outweighs utility of defendant's conduct).
237
When may a tenancy at will be seen as unconscionable?
If only one party is expressly given the right to terminate the leasehold, the lease may be deemed unconscionable and both parties will have the ability to terminate it.
238
What is the exoneration-of-liens doctrine?
A common law doctrine stating that the recipient of a specific devise of real property can use the remaining assets in the testator's estate to pay off any encumbrances on that property.
239
What happens to wild, uncultivated crops at the end of a life estate?
Wild, uncultivated crops (i.e., fructus naturales) are considered part of the real property on which they grow, and they pass automatically with the land. The prior owner has no right to reenter the land to remove the crops.
240
What happens to planted, cultivated crops at the end of a life estate?
These are considered personal property, and pass with the land except when:
1) Harvested (severed from land)
2) Ripe (mature; some courts)
3) Planted by tenant with indefinite leasehold
4) Planted by adverse possessor under claim of right
241
T or F: Delivery of a deed is presumed when it is recorded
True
242
How may a real covenant be terminated by abandonment?
When an affirmative act (something more than neglect or non-use) shows a clear intent to relinquish the covenant (i.e., destroying a retaining wall that the real covenant concerned)
243
What type of priority does a purchase-money mortgage have?
It has super-priority over all other liens, including those that arose before the PMM (regardless of whether the PMM or those liens were recorded)
244
What is the order of lien priority on real property?
From highest to lowest priority:
1) Purchase-money mortgages (super-priority over prior liens)
2) First recorded liens (senior priority)
3) All other recorded liens (junior priority)
4) Unrecorded liens (lowest priority)
245
If a jurisdiction treats installment land contracts like mortgages, what right does this give the buyer?
The equitable right of redemption (buyer in default may redeem the property by tendering to the owner the full balance due under the contract prior to foreclosure)
246
If a jurisdiction treats installment land contracts like mortgages, what must the seller do if the buyer misses a payment?
The seller must foreclose to gain title to the property
247
If a first mortgage was made under duress, may a subsequent buyer who assumes the mortgage raise the defense of duress?
No; A buyer who assumes a mortgage is primarily liable for the debt. And if the assumption of the mortgage was part of the purchase price, then the buyer may not raise defenses that the debtor could have raised against enforcement of the mortgage obligation.
248
May a landowner sue the landowner of an adjacent lot for buildings that block natural light?
No, this is an old rule from England that has been expressly rejected in the US; Absent a negative easement or statute, a landowner has no legal right to prevent neighbors from blocking his/her land from access to natural light.
249
What are the consequences of a "due on sale" clause in a mortgage?
A "due on sale" clause allows a lender to demand full payment of any remaining mortgage debt if the debtor transfers the mortgaged property without the lender's written consent. If this clause is waived, the debtor remains liable on the note—even after transferring the mortgaged property—until the debtor is released by the lender.
250
What does the doctrine of adverse possession allow a person to do?
Acquire good title to a piece of property after unlawful possession
251
What is a person prior to acquiring good title through adverse possession?
A trespasser
252
When does title through adverse possession begin once gained?
It goes back to the date of the person's entry on the property
253
T or F: There is no transfer of title from the former owner to the adverse possessor
True
254
T or F: Property owned by the government may be adversely possessed after 50 years
False; property owned by the government cannot be adversely possessed
255
What are the two basic rationales for adverse possession?
1) Punishing the true owner for sleeping on their rights
2) Rewarding the adverse possessor for earning good title
256
What are the three phases of the "continuous" period in adverse possession?
1) Entry Phase = when the adverse possessor enters the land; requires to trigger the applicable statute of limitations
2) End Phase = When the statute of limitations runs out of time; now, the adverse possessor is the legal owner of the property by operation of law
3) Middle Phase = When the adverse possessor makes use of the property, between the entry and end phases
257
Is the "continuous" requirement of adverse possession literal?
No; seasonal or infrequent use may suffice if the use is consistent with the type of property being possessed (e.g., vacation home, farmland)
258
What is tacking in adverse possession?
Joining multiple AP times together to satisfy the statute of limitations
259
When is tacking available in adverse possession?
When the current adverse possessor is in privity with the prior adverse possessor
260
What is privity?
An exchange of some sort between parties
261
When will the statute of limitations not run against a true owner for adverse possession?
If the owner has a disability at the time the adverse possession begins (when trespasser enters the property)
262
What is a disability in adverse possession?
"The 3 I's":
1) Infancy
2) Insanity
3) Imprisonment
263
How may a true owner interrupt the adverse possession period?
By ejecting the adverse possessor (this will stop the AP clock)
264
What does it mean for use to be "open and notorious"?
1) Use must be such that it would put a reasonable true owner on notice of the adverse use
2) The use cannot be hidden
3) Trespasser must use the property as if she was the true owner
265
What does is mean for use to be "hostile" in adverse possession?
It means that possession of the property must be adverse to the owner's interest because it is a claim of competing title
266
What are the rules regarding state of mind for hostility in adverse possession?
Majority = Ignores the adverse possessor's state of mind
Minority = Inquires into the AP's state of mind
- Good Faith = mistake
- Bad Faith = aggressive trespass
267
What does it mean for use to be "exclusive" in adverse possession?
An adverse possessor cannot share possession with the true owner
268
What is the general scope of adverse possession?
The area actually being possessed
269
What is constructive adverse possession?
When an AP enters under color of title from an invalid instrument and occupies a portion of the property, the AP is in actual possession of the occupied land and constructive possession of the remaining land described in the deed.
270
Does adverse possession include sub-surface rights?
Yes, unless those rights already belong to a third party
271
What is a deed?
A legal instrument that transfers ownership of real property
272
What is needed for a deed to be valid?
1) Delivery
2) Acceptance
273
What is the controlling question for delivery of a deed?
Whether the grantor had the present intent to transfer the property
NOTE: Physical transfer of a deed is not required & can be done through an agent
274
What is the extend of a broker's permissible involvement in land sale contracts?
They may be involved so long as they don't practice law. Most states permit real estate agents and brokers to prepare a contract of sale, but not draft a legal document like a deed or mortgage. Look for the exercise of legal discretion and whether the broker or non-lawyer is giving legal advice.
275
What must be contained in a valid deed?
1) Identify the parties (i.e., grantor and grantee)
2) Signed by the grantor (per the Statute of Frauds)
3) Include words of transfer (evidence of present intent to transfer)
4) Sufficient description of the property (can be based on physical attributes; extrinsic evidence permissible to clarify)
276
Is the grantee required to sign the deed?
No, just the grantor's signature is required for execution to be effective
277
What is the Equal Dignities Rule?
If the agent is required to sign (e.g., execute a deed), then the agency relationship must be created in writing
278
What does it mean to record?
Publicly register your deed
279
What is the purpose of recording?
Notice
280
Does recording affect the validity of a deed?
No; a deed is valid at delivery
281
What is the common-law recording rule?
"First in time, first in right"
282
How may a junior mortgage interest be eliminated after a foreclosure if the mortgage is not paid off?
Under a judicially supervised sale, the foreclosing mortgagee must give notice to the holders of any junior interests in the property so that they can participate or send a representative - otherwise, the junior interest holder's interest will remain after the sale.
283
What are some common exceptions to the enforceability of a Due-on-Sale clause affecting residential property?
1) Devise, descent, or transfer to joint tenant upon death
2) Transfer to spouse or child
3) Transfer to ex-spouse in divorce
4) Transfer to borrower's living trust
5) Creation of subordinate lien without occupancy rights
6) Granting leasehold interest of less than 3 years without option to purchase
284
When may an easement holder exceed the scope of the easement's use?
An easement holder may increase the manner, frequency, or intensity of an easement's use so long as that increase does not unreasonably damage or interfere with the use or enjoyment of the servient estate.
285
What interests do a foreclosure sale eliminate?
1) Mortgagor's property interest
2) Mortgage interest being foreclosed upon
3) Any junior interests attached to the property
286
What is a "wild deed"?
A recorded deed that falls outside the chain of title is a "wild deed" that fails to give constructive notice to subsequent purchasers.
287
What is a "due-on-encumbrance" clause?
A due-on-encumbrance clause gives the mortgagee the right to accelerate a mortgage obligation—i.e., to demand immediate payment of the full amount of the outstanding loan obligation, including interest—when the mortgagor obtains a second mortgage or otherwise encumbers the property.
288
What happens to judgements obtained against a seller after the execution of the land-sale contract?
Under the doctrine of equitable conversion, the judgement is not enforceable against the real property (even if the claim arose before the contract was executed) because the seller only retained legal title, while the buyer obtained equitable title at the time the contract was signed.
289
What happens if a seller cannot convey marketable title?
The buyer can rescind the land-sale contract
290
What if the buyer accepts the land with the defect that makes it unmarketable and the seller refuses to perform?
The buyer can:
1) rescind the contract and seek restitution;
2) seek specific performance with an abatement of the purchase price; OR
3) sue for damages.
291
What is the doctrine of subrogation?
Under the doctrine of subrogation, a third party (subrogee) who pays another's mortgage loan in full becomes the owner of the loan and the mortgage. The subrogee may therefore seek reimbursement from the debtor or enforce the mortgage.
292
What types of interests are covered by recording acts?
1) Deeds
2) Mortgages
3) Leases
4) Options
5) Judgements affecting title
6) Other instruments creating an interest in land, such as easements or covenants
293
What type of interest is NOT covered by recording acts?
Adverse possession
294
Who is covered by recording acts?
Subsequent purchasers (someone who acquired interest in the land, even if they didn't pay money)
295
Who is NOT covered by recording acts?
Grantees who acquire title by gift, intestacy, or devise
Policy = protect those who make economic investments by acquiring property
296
What are the types of notice?
1) Actual
2) Constructive
3) Inquiry
297
What is actual notice?
When the subsequent grantee has real, personal knowledge of a prior interest
298
What is constructive notice?
When a prior interest is recorded
299
What is inquiry notice?
When a reasonable investigation would have disclosed the existence of prior claims
300
What are two common situations where a subsequent grantee will be put on inquiry notice?
1) Dude on the land: When there is someone else living on or using the land
2) Mentioned Interest: When there is an interest mentioned in the deed to some other transaction
301
What are the types of recording statutes?
1) Race
2) Notice
3) Race-Notice
302
What is the rule for race statutes?
First to record wins, even if the subsequent purchaser had notice of a prior, unrecorded conveyance
303
What is the key language for race statutes?
"First recorded" or "First to record"
304
What is the rule for notice statutes?
A subsequent purchaser wins if she acquires without notice of a prior unrecorded conveyance
305
What is the key language for notice statutes?
"In good faith" or "Without notice"
306
What is the rule for race-notice statutes?
A subsequent purchaser wins if:
1) Acquired without notice of a prior unrecorded conveyance; AND
2) Records first
307
What is the key language for race-notice statutes?
"In good faith" or "Without notice" PLUS "First duly recorded" or "First recorded"
308
What is the shelter rule?
A person who takes from a bona fide purchaser protected by the recording act has the same right as her grantor
309
What is estoppel by deed?
If a grantor subsequently acquires title to the land, the grantor is estopped from trying to repossess on grounds that he didn't have title when he made the original conveyance. This arises when a grantor conveys land the grantor does not own.
310
After closing, where must liability arise from?
Our of the deed, not the contract (because the contract merged into the deed)
311
What are the types of deeds?
1) General warranty deed
2) Special warranty deed
3) Quitclaim deed
312
What does a general warranty deed provide?
1) The greatest amount of title protection
2) The grantor warrants title against ALL defects, even if the grantor did not cause the defects
313
What are the implied covenants in the general warranty deed?
1) Covenant of seisin
2) Covenant of the right to convey
3) Covenant against encumbrances
4) Covenant of quiet enjoyment
5) Covenant of warranty
6) Covenant of further assurances
314
What are the present covenants of the general warranty deed?
1) Covenant of seisin
2) Covenant of the right to convey
3) Covenant against encumbrances
315
What are the future covenants of the general warranty deed?
1) Covenant of quiet enjoyment
2) Covenant of warranty
3) Covenant of further assurances
316
What is the covenant of seisin?
Warrants that the deed describes the land in question
317
What type of covenant is the covenant of seisin?
Present covenant
318
What is the covenant of the right to convey?
Warrants that the grantor (i.e., the seller) has the right to convey the property
319
What type of covenant is the covenant of the right to convey?
Present covenant
320
What is the covenant against encumbrances?
Warrants that there are no undisclosed encumbrances on the property that could limit its value
321
What type of covenant is the covenant against encumbrances?
Present covenant
322
What is the covenant of quiet enjoyment?
Grantor promises that the grantee's possession will not be disturbed by a third-party claim
323
What type of covenant is the covenant of quiet enjoyment?
Future covenant
324
What is the covenant of warranty?
Grantor promises to defend against future claims of title by a third party
325
What type of covenant is the covenant of warranty?
Future covenant
326
What is the covenant of further assurances?
Grantor promises to fix future title problems
327
What type of covenant is the covenant of further assurances?
Future covenant
328
What is the difference between a general warranty deed and a special warranty deed?
In a special warranty deed, the grantor warrants against defects only caused by the grantor (but has the same 6 covenants)
329
What is a quitclaim deed?
The grantor makes no warranties as to the health of the title & provides the least amount of title protection
330
When is a quitclaim deed most often used?
1) Tax sales
2) Intra-family disputes (i.e., divorce)
331
When may breaches of covenants occur?
- Present Covenant = at the conveyance
- Future Covenant = after the conveyance, once there is interference with possession
332
What is the remedy for breach of a covenant?
Damages
333
What is escheat?
If a decedent dies without a will and without heirs, the decedent's property goes to the state
334
What is ademption?
A devise of property that fails (or "adeems") because it is not in the testator's estate at death
335
What is the basic rule of ademption?
The gift fails and the intended recipient gets nothing
336
What is satisfaction of ademption?
If the testator gives the intended beneficiary the promised gift during life, then the beneficiary keeps the gift
337
What is lapse?
The intended beneficiary predeceases the testator. Traditionally, the first fails and would fall to the residuary gift.
338
What is Anti-Lapse?
Every state has an anti-lapse statute to prevent a gift from failing because an intended recipient predeceased the testator.
In most states, to qualify under an anti-lapse statute, the predeceasing beneficiary must be a relative of the testator who dies leaving issue.
339
When may a new owner use a mortgagor's defense against the mortgagee?
When mortgaged property is transferred to a donee
340
When may a new owner NOT use a mortgagor's defense against the mortgagee?
When a purchases assumes an existing mortgage obligation as part of the purchase price
341
What is required to tack on time for adverse possession?
Privity between the adverse possessors
342
What does the Uniform Vendor and Purchaser Risk Act do?
Rather than shifting the risk of loss to the buyer following contract signing, the UVPRA keeps the risk of loss with the seller until the buyer takes possession of or receives legal title to the property
343
How is an equitable mortgage created?
When an absolute deed (i.e., a deed that is free of encumbrances and transfers unrestricted title to property) is given with the intent to secure a debt or loan
344
When may a deed be void and unenforceable, even by a bona fide purchaser?
1) If the grantor's signature is forced
2) If the deed itself is forged
3) If the grantor is deceived about the nature of the executed document
345
What is a future-advances mortgage?
A mortgage given by a debtor in exchange for the right to receive money from the lender in the future
346
What priority does a future-advance mortgage have if the advances are optional?
Priority with respect to amounts loaned before notice of a subsequent mortgage
347
What priority does a future-advance mortgage have if the advances are obligatory?
Priority with respect to amounts loaned before AND after notice of a subsequent mortgage
348
When an easement is shared, who may the owner who maintains or repairs the easement seek contribution from?
1) The other owners
2) The servient-estate owner IF the owner uses the easement
349
What is a tenant's obligation if there is partial condemnation?
Tenant must continue to pay rent, but is entitled to compensation for the portion of the leased property that was taken.
350
T or F: A seller of a residential property must disclose any known material defects that cannot be reasonably discovered by the buyer
True
351
When is a defect material?
If it:
1) Substantially affects the value of the residence;
2) Impacts the health or safety of a resident; OR
3) Affects the desirability of the residence to the buyer
352
What is a liquidated damages clause?
It allows the seller to retain the buyer's deposit if the buyer breaches the real-estate contract
353
When is a liquidated damages clause enforceable?
So long as the amount is reasonable, which is usually no more than 10% of the purchase price
354
When may a liquidated damages clause be unenforceable?
If the seller didn't suffer any actual loss
355
What is a trust?
A device for managing property with bifurcated ownership between trustee and beneficiary
356
What is a trustee?
The party in a trust who owns property (legal title) for the benefit of the beneficiary and manages the trust
357
What is a beneficiary?
The party in a trust who holds equitable title and benefits from the trust. The beneficiary has standing to enforce the trust.
358
What is a charitable trust?
A trust designed to benefit the public and is charitable in nature
359
What is a private trust?
A trust designed to satisfy some legal purpose by giving property to a person or group for the benefit of another person or group
360
What is a settlor?
The person who creates the trust
361
What is res?
Property that is subject to the trust. Generally, a trust must contain property.
362
What is a restraint on alienation?
A restriction on transferring property
363
Where do you most often see restrictions on alienation?
1) Inter vivos grant or an estate smaller than a fee simple
2) Devise of an estate smaller than a fee simple
3) Co-tenant agreement
4) Covenants that run with the land
5) Easements
364
What are the rules about restraint on alienation?
1) An absolute restraint on alienation is void
2) A partial restraint is valid if it is for a limited time and a reasonable purpose
3) A restriction on the use of property is generally permissible (e.g., covenants)
365
What is the effect of the restraint on alienation?
- If the restraint is VALID = any attempt to alienate the property will be null and void
- If the restraint is INVALID = the restraint is rejected and the property can be alienated in violation of the restraint
