BAR FLASHCARDS - P Overview
Freeholds—
Freeholds—Present and Future Possessory Interests
Freeholds—Present Possessory Interests: two types
- Present Possessory Interests
a. Indefeasible interests—not subject to early termination (includes fee simple absolute and life estate)
b. Defeasible interests—allows a fee simple or life estate to be terminated if a stated event occurs (includes fee simple determinable, subject to condition subsequent, and subject to an executory interest)
Freeholds—Future Possessory Interests
- Future Possessory Interests
a. Interests retained by the grantor (includes reversion, possibility of reverter, and right of entry)
b. Interests created in a transferee (includes executory interests, remainders, and class gifts)
c. Rule Against Perpetuities may apply (any future interest that is not certain to vest or fail within a life in being plus 21 years is void)
Types of tenancies
a. Tenancy for years—for a fixed period of time (e.g., 10 days, 10 years)
1) Created expressly, ends automatically on its termination date (no notice)
b. Periodic tenancy—for a fixed period that continues for succeeding periods (e.g., month to month)
1) Created expressly or when a lease draws periodic rent payments, termi- nated on proper notice (appropriate time period)
c. Tenancy at will—no stated duration, as long as parties desire
1) Created expressly, terminated on proper notice
d. Tenancy at sufferance (hold-over doctrine)—tenant remains in possession after tenancy expires
1) Landlord may evict tenant or create a periodic tenancy by accepting rent
Rights and duties of landlord and tenant
a. Governed largely by the lease and tort law
b. Tenant must pay rent and may not commit waste
c. Landlord generally must repair, must deliver habitable premises, and may not interfere with tenant’s possession
Landlord and tenant: Assigning interests?
Both parties generally may assign their interests (transferring the entire term), and tenants may also sublease (retaining part of the term)
Nonpossessory Interests (TYPES)
- Easements
- Profits
- Real Covenants
- Equitable Servitudes
- Easements
a. Affirmative easement—right to use someone else’s land
b. Negative easement—right to prevent something on another’s land
c. Easement appurtenant—involves two tracts of land
1) Dominant parcel has the benefit, which runs to grantees.
2) Servient parcel has the burden, which runs to grantees with notice.
d. Easement in gross—involves one tract of land
e. Creation of easements
1) Express grant or reservation (Statute of Frauds applies)
a) An oral grant creates a license, which is not an interest in land
2) Implication—by operation of law
a) By use existing before a tract was divided
b) By necessity for a landlocked parcel
3) Prescription—acquired through adverse, open and notorious, and contin- uous use for the statutory period
f. Termination of easements—can end by stated condition, unity of ownership between easement and servient estate, abandonment, estoppel, prescription, necessity, release, or condemnation
Easements - Affirmative vs Negative
a. Affirmative easement—right to use someone else’s land
b. Negative easement—right to prevent something on another’s land
Easements - CREATION
e. Creation of easements
1) Express grant or reservation (Statute of Frauds applies)
a) An oral grant creates a license, which is not an interest in land
2) Implication—by operation of law
a) By use existing before a tract was divided
b) By necessity for a landlocked parcel
3) Prescription—acquired through adverse, open and notorious, and contin- uous use for the statutory period
Easements - TERMINATION
f. Termination of easements—can end by stated condition, unity of ownership between easement and servient estate, abandonment, estoppel, prescription, necessity, release, or condemnation
- Profits
a. Right to enter another’s land to remove products of the soil
- Real Covenants
(run with the land at law)
a. Written promises to do or refrain from doing something on land, with a usual remedy of money damages
b. Requirements for burden to run to later grantees: intent, notice, horizontal privity, vertical privity, touch and concern
c. Requirements for benefit to run: intent, vertical privity, touch and concern
- Equitable Servitudes
Equitable servitudes
a. Covenants with equitable remedies (i.e., injunction, specific performance)
b. Implied from a common scheme for development if notice exists
c. Requirements for burden to run: intent, notice, touch and concern
d. Requirements for benefit to run: intent, touch and concern
e. Equitable defenses apply (i.e., unclean hands, estoppel, acquiescence, changed neighborhood conditions)
HOW CAN THE INTEREST BE ACQUIRED?
A. Conveyance (Statute of Frauds Applies—Requires Writing Signed by Grantor)
B. Adverse Possession
Conveyancing (Statute of Frauds Applies—Requires Writing Signed by Grantor) [3 ways]
a. Land Sale Contracts
b. Deeds
c. Wills
Land sale contracts
a. Statute of Frauds exception—no writing is required if buyer has partially performed through possession, improvement, or payment
b. Time for performance presumed not of the essence
c. Marketable title—contracts contain an implied covenant that seller will deliver title free from an unreasonable risk of litigation at closing (i.e., when purchase price and deed exchanged)
Deeds
a. Must evidence an intent to transfer land and adequately describe the land and parties
b. Effective on delivery (i.e., words or conduct showing the grantor’s intent to immediately pass title) and acceptance (often presumed)
Types of deeds
1) General warranty deed—covenants against any title defects created by the grantor or prior titleholders
2) Special warranty deed—covenants against title defects created by the grantor
3) Quitclaim deed—no covenants; transfers whatever interest grantor has
Wills
a. Effective on the testator’s death
b. If, at the testator’s death, she no longer owns property that was specifically devised, that gift fails (i.e., is adeemed)
c. If, at the testator’s death, the beneficiary has already died, his gift fails (i.e., lapses) or might pass to the beneficiary’s descendants under an anti-lapse statute if he and the testator were related
Adverse Possession
- Possessor must show:
(1) actual entry giving rise to exclusive possession that is
(2) open and notorious,
(3) adverse/hostile (i.e., lacking the owner’s permission), and
(4) continuous throughout the statutory period for an ejectment action (e.g., 20 years) - The statute does not begin to run if the owner is under a disability to sue (e.g., incapacity) when the possession begins
Adverse Possession - What must the Possessor show?
- Possessor must show:
(1) actual entry giving rise to exclusive possession that is
(2) open and notorious,
(3) adverse/hostile (i.e., lacking the owner’s permission), and
(4) continuous throughout the statutory period for an ejectment action (e.g., 20 years)
Who will hold the interest
Concurrent INterest
Competing interests - Grantor Transfers Same Land More than Once
Concurrent Interests
- All co-tenants share the right to possession and enjoyment of the property
- Joint tenants—two or more co-tenants with rights of survivorship (i.e., the dead co-tenant’s share passes to the remaining co-tenants)
a. Created expressly, severed by a tenant’s sale or suit for partition - Tenants by the entirety—two spouses with rights of survivorship
a. Created expressly or presumed in some states by a grant to spouses, severed
by divorce - Tenants in common—two or more co-tenants, no right of survivorship
a. Created by the severance of the above tenancies
b. Default co-tenancy created if nothing else was specified
Competing Interests - Grantor transfers same land more than once
- Recording acts protect a bona fide purchaser for value without actual, inquiry, or record notice of the prior conveyance (“BFP”)
a. Actual notice—what the grantee actually knows
b. Inquiry notice—what a reasonable inquiry would have revealed
c. Record notice—what a search of the real property records would have revealed
Competing Interests - Types of recording acts
a. Notice statutes—later BFP wins if earlier grant was not recorded
b. Race-notice statutes—later BFP wins only if she records before the earlier grantee records
c. Race statutes—first to record wins; actual notice is irrelevant
LAND SUBJECT TO A SECURITY INTEREST
A. Mortgages (Land is collateral for a debt)
B. Other Security Interests
Deed of trust—similar to a mortgage, but a third-party trustee forecloses
Installment land contract—seller retains the deed until buyer pays in full
Absolute deed—treated as an equitable mortgage when given for a debt
Sale-leaseback—court may determine this was a disguised mortgage
Mortgages: Theories of title
a. Lien theory—mortgagee holds a security interest only
b. Title theory—mortgagee holds title until mortgage is satisfied
c. Intermediate theory—mortgagee holds title only after default
Mortgages: If mortgagor transfers mortgaged land
a. Grantee may agree to assume the mortgage and become primarily liable to pay the mortgage loan
b. Grantee who does not assume the mortgage is not personally liable for the loan but may lose the land if the transferor defaults
Mortgages: Foreclosure
Foreclosure—after default, property may be sold to satisfy the debt
a. Does not affect senior interests
b. Terminates junior interests
1) Junior interests are entitled to any surplus remaining after the foreclosing mortgage is satisfied
c. The mortgagor may redeem the land by paying the amount due
Mortgage - Deficiency after sale
If there is a deficiency—mortgagee can sue mortgagor if foreclosure sale proceeds do not satisfy mortgage debt
Fixtures
- Fixtures are items so affixed to land that they become part of the realty
a. Constructive annexation—items not physically attached to land are fixtures if they are so uniquely adapted to the real estate that it makes no sense to
separate them (e.g., keys to doors) - Common ownership cases—landowner brings chattel onto land
a. Annexor’s objective intent determines whether items are fixtures - Divided ownership cases—landowner does not bring chattel onto land
a. Item’s owner can remove it only if this would not leave unrepaired damage to the premises
Water
- Rules vary by state and by source of water
a. Watercourses—rivers, streams, lakes
b. Groundwater—percolating water from wells
c. Surface waters—rainfall, melting snow, seepage
Zoning
- Governmental regulations that restrict the use of land
a. Existing zoning violations render title to land unmarketable - Variance—permission to depart from zoning restriction
