Bar--Property Flashcards
Fee Simple Determinable
so long as, to A while, to A until
Clear durational language–> then goes automatically back to G (Possibility of Reverter)
Fee Simple Subject to Condition Subsequent
Clear durational language + carve out right to re-enter
to A but if X happens
Re entry is NOT automatic
Life Estate
- -entitled to all ordinary uses and profits of the land
- but Tenant Must not commit Waste
Voluntary/Affirmative waste
overt conduct that cause a drop in value
Rule” Tenant must not consume or exploit natural resources on the property unless an exception exists (4)
Prior Use
Repair
Grant
Land is Only suited for exploitation
Permissive Waste/Neglect
Defn: letting land fall into disrepair
Rule: life tenant must maintain premises in reasonably good repair
Taxes: life T must pay all ordinary taxes on land-from income or profits. If none,the life tenant is require to pay all ordinary taxes on premises fair rental.
Ameliorative Waste
Life tenant must not engage in acts that will enhance property value unless all future interest holders are known and consent
Vested Remainder
–A future interest created in a grantee capable of becoming possessory upon expiration of prior possessor estate created in same conveyance
- -never follows a defeasible fee
- cannot cut short a prior transfeeree
Contigent Remainder
created in unascertained person or subject to condition precedent or both
Condition Precedent
when it appears before the language creating the remainder or is woven into the grant to remainderment;
e.g.. if B graduates from college, to B
rule in shelley’s case
Where Grantor conveys to A for life, then on A’s death to A’s heirs and heir is alive–present and future interest merge and give A fee simpl
rule of law (not construction–applies even against grantor’s intent)
Doctrine of Worthier Title
When O who is alive creates a future interest in his heirs:
O (alive) to A and then O’s heirs—
no Doctrine: A has life estate, O heir’s have C remainder
Doctrine: remainder void–LIfe estate plus reversion.
(rule of construction, grantor’s intent controls)
Indefeasibly Vested Remainder
Holder is certain to acquire estate no strings attached
Vested Remainder subject to complete defeasance
right to possession may be cut short because of condition subsequent
e.g. A to life remainder to B but if B dies under 25 then to C.
What kind of remainder does B have in the following 2 eg.
- to A for life and then if B has reached age of 25 to B
- to A for life, remainder to B provided however that if B dies under 25 to C
- contingent remainder because conditioned on turning 25
2. vested subject to complete defeasance because she gets it but then it could be taken away
Vested Remainder Subject to Open
remainder is group at least one of whom is qualified to take, but each is subject to partial diminution because additional members can still join.
When does class close?
When any member can demand possession?
Executory Interest
Future interest created in transferee which is not a remainder and which takes effect by either cutting short some interest in another person or in the grantor or his heirs.
Shifting: follows defeasible fee, cuts short someone other than grantor.
Springing: cuts short Grantor.
RAP
Future interest void if there is ANY possibility however remote that the given interest may vest more than 21 years after death of a measuring life
To What interest does the RAP apply
does not APPLY to:
Future interest in Grantor
Indefeasibly vested remainders
vested remainders subject top open
vested remainders subject to complete defeasance.
RAP Special Rule re Open Class
Bad to one bad to all—if gift is bad to anyone in the class than it violates RAP for all of them
Joint Tenancy
2 or more own with right of survivorship
Tenancy by Entireley
Between married partners with right of survivorship
Tenancy in Common
2 or more own with NO right of survivorshop
How to create a Joint Tenancy
T-TIP 4 Unities
Time–must give at same Time
T–must give in same instrument
I–give identical interests
P–both have possessor rights in the whole
grantor must clearly express right of survivorship
Severing a Joint Tenancy
SPAM
- Joint tenant sells or transfers interest during lifetime but sale severs the joint tenancy and it becomes a tenant in common-(if more than 2 orig, remaining 2 are still Joint tenants)
p. s. merely contracting to sell ends joint tenancy - Partition: voluntary agreement, court action, forced sale
- Mortgage: Joint Tenant’s getting a mortgage or lien will sever joint tenancy as to that person’s share under the title theory of mortages–Minority
Majority: Lien Theory–joint tenant’s getting mortgage will not sever tenancy.!
ps if one joint tenant die other takes free of dead one’s encumrbances
Title Theory of mortgages
Minority view–joint tenant getting mortgage stops joint tenancy
Lien Theory
getting mortgage will not sever joint tenancy
Tenancy in Common
Each co tenant owns an individual part and each has right to possess the whole.
Rights of Co-Tenants
Possession of the whole
Not Rent from Co-tenant in exclusive possession
Rent from Third Parties: (each gets fair share in proportion with % owned)
Adverse Possession: cant get it thrue AP
carrying costs: each responsible for fair share of taxes, upkeep mortgages
Repairs: may repair and seek contribution in line with shares
improve: no right
Waste: no waste
Holdover Tenant in Residential Lease
if L elects to hold over a T who has wrongfully stayed on past conclusion of original lease, implied period tenancy arises measured by way rent is paid (often monthly)
Termination of Periodic Tenancy
notice given at last as much as a period itself—unless tenancy is year to year or more, then only 6 months
IN LL-T law, who is liable for third parties injuried on the property?
T, regardless of who is resposnible for making repairs (tho T may seek to indemnify the LL)
Fixtures–Residential
annexed to realty, objectively shows intent to remain permanently and improves the realty
T cannot remove a fixture bc that counts as voluntary waste.
But T may remove something she has installed if removal wont cause harm to premises. Where removal causes harm, that is sufficient toto show “intent to remain…”
Fixtures pass with ownership of land
(special rules for business fixtures)
What happens when tenant breaches lease, moves out and stops paying rent
SIR
S: LL may treat like a surrender. that he accepts.
I: (Minority) LL may ignore move out and hold T liable for rent.
R: LL may re-let the premises and sue T for deficiency only
**most states say that LL has obligation to try and re-let
Elements of Constructive Eviction
SING
Substantial interference
Notice
Goodbye
permanent or chronic interference, that T notified L about and he failed to fix, and T must vacata after LL fails to fix the problem
IWH, and remedies
only RESIDENTIAL LEASES
fit for basic dwelling
where LL breaches: (MRRR)
move out, repair and deduct, reduce rent, remain in possession and later seek damages)
Assignment/Sublease
L can prohbit T from a/s w/o prior written consent/
if L consents to one, he waives right to future unless he reserves the right
Who can sue who when there have been multiple subleases or assignments
LL can always sue orig T bc privity of contract
LL can always sue person who lives their now bc privity of estate.
LL cant sue subletter-no privity at all
When is LL liable for torts that occur on premises?
CLAPS
Common areas
Latent Defects (hidden ones that LL knew or should have known about)
Assumption of repairs (where he said he’d repair
Public use–an L who leases for public use (convention hall) and knows because of the nature of defect (major) and term of lease (short) that T will not repair, is liable
Short term leases of furnished dwellings
Easement–how to create
PING
Prescription (COAH)
Implied–by Prior Use
Necessity
G–signed express by grantor
Negative Easements
LASS
light air support and streamwater
Only be created signed writing by grantor
When do easements pass to successive landowners?
Where the easement is appurtenant (runs with land)–burden of easement runs with land too unless new owner is a bona fide purchaser w/o notice/
Easements in gross may be transferred
Real Covenants–how to create
Writing signed by grantor
Real Covenants–when do they pass to successive owners
Burden runs when WITHN
Writing, Intent, Touch and Concern, Horizontal and Vertical Privity, Notice
Benefit Runs when WITV
Writing, Intent, Touch and concern, Vertical Privity
General Scheme Doctrine
In a subdivision, where each plot has a residential use covenant, that coventant will bind owners whose deeds do not contain the covenant where (1) common scheme (2) unrestricted lot owners had notice (constructive is fine)
easement
The grant of a nonposessory property interest that entitles its holders to some form of use or enjoyment of another’s land called servient tenament
Easement Appurtenant
When easement benefits holder in his physical use or enjoyment of his property (takes 2–dominant gets benefit, servient bears burden)
Easement in Gross
Where it confers upon its holder only some personal or pecuniary advantage that is not related to use or enjoyment—-like right to swim in another’s pond, lay power lines on others land, place a bill board.
Easement implied by prior/existing use
will be implied where previous use was apparent and parties expected it would continue because it was reasonable neccessary to dominant land’s use and enjoyment.
Termination of an Easement
END CRAMP
Estoppel–servient estate materially changes her position on reliance that easement will not be enforced.
Necessity–easements created by necessity stop when need ends unless express.
Destruction–unless by willfull conduct of servient owner
Condemnation–by eminent domain
Release–written release
Abandonment–demonstrated by physical action, intent never to use again NOT mere non use or words
Merger–two lands owned by same person
Prescription–COAH.
Lincence–what, how, how to crate
a mere privilege to enter another’s land for a designated purpose
need not be in writing
freely revokable unless estoppel applies to bar (where lincecess has invested money or labor or both)
e.g. tickets to event, or an oral easement
A profit
entitles a holder to enter the servient land and take from it–shares all easement rules.
Covenant
a contract or promise regardingthe land, and what you promise to do or not do with it
may be negative (restrictive) or affirmative (paint, build)
Difference between a covenant and an equitable servitude?
you know by remedy that plaintiff seeks
if they seek damages–its a covenant
if they seek injunction–it is an equitable servitude
When is there horizontal privity for sake of determining whether burdens run with land?
Between original parties
Succession of esatate–grantor/grantee, mortgagor/ee, LL?tenant
When is there vertical privity for sake of determining whether burden.benefit runs with land?
Any non hostile nexus–blood, contract, devise, descent–just not adverse possession
How do you create an equitable servitudes?
WITN (equitable servitude, Witness)
Writing
Intent
Touch and Concern
Notice
Defenses to Equitable Servitudes
Changed conditions–not enough for there to be change in limited pockets, must be so pervasive that entire area has changed
Adverse Possession
COAH
Tacking of time is permissible where current possessor and old one were in privity (non hostile–no adverse possession)
where you oust previous owner, cannot tack on their time.
What happens when land contract recites more than actual size of land?
Specific performance, reduced by reasonable reduction of price.
Implied Promise to Provide Marketable Title
IN EVERY LAND CONTRACT
title free from reasonable doubt–free from law suit or threat of litigation
unmarketable if: adverse possession, encumbrances (like a fee simple determinable) zoning violations.
**seller has right to satisfy an outstanding mortgage lien at closing with the proceeds f the sale
normally an easement is an encumbrance unless it benefits or is visible/known
Two promises in every land contract
provide marketable title
not make false statements of material fact
Seller’s promise not to make any false statement of material fact
- -and also disclose major latent defects
- -may be disclaimed through general disclaimer (as is, with all faults)
When is a deed delivered
Physical Transfer, mail messenger, agent–
or present intent to be bound immediately whether or not deed was handed over.
rejection of deed: express rejection OK
oral conditions on deeds are void.
may deliver by escrow–grantor gives escrow agent instructions to deliver once certain conditions are met.
Types of Deed
Quitclaim–no covenants
Warranty deed–best
Quit Claim deed
grantor promises nothing, not even that he has title
General Warranty Deed
contains 6 covenants.
present (breached at delivery)
Sisen: grantor owns estate
Right to convey: grantor has power to transfer (no restraints or disabilities)
Against encumbrances: no servitudes, mortgages
future: quiet enjoyment (no distrurb by claims of possession by 3rd parties) warranty Grantor will defend grantee against lawful title claims further assurances: grantor will do whatever is needed in future to protect title.
Special Warranty Deed
Grantor promises he has not conveyed title to anyone other than grantee
property is free from encumbrances made by grantor
Bona Fide Pruchaser
Purchaser for value, and w/o notice that someone else got their firtst.
When does a purchaser have notice that a previous buyer got there firsdt?
AIR
actual–
inquiry–someone else has possession! reasonably exam of land would show.
or if recorded instrument makes reference to an unrecorded transaction, whatever reasonable follow up would show
record: deed was recorded.
Shelter Rule
one who takes from a BFP will prevail against any entity that the transferor BFP would have prevailed against (even if that person would no be a BFP)
Wild Deed
where O–A (no record) then A-B recorded.
A-B is not connected to other chains because O-A is missing; cannot give notice to future parites.
Estoppel by Deed
if you convey land to someone that you do not own, but then you later own it, you cant claim that they dont own it bc you did not own it at time of transfer
Equitable Mortgage
When you give the deed to the mortagee instead of a note
Parol E is OK to show that it was not a transfer
Can creditor-mortgagee transfer their interest?
Yes
by endorsing note and delivering to transferee—or executing separate document of assignment
BUT: if note is endorsed and devliered transferee is elegible to become a holder in due course===he can take note free of any personal defences that could have been available against original mortgager. (like lack of consideration, fraud, unsconsc, waiver, esopptel)
is still subject to REAL defencnses.
MAD FIFI-4 matierial alteration duress fraud in fact incapcity ilegality infancy insolvency
What are the Real defenses to mortgager?
MAD FIFI-4 matierial alteration duress fraud in fact incapcity ilegality infancy insolvency
How does one become a holder in due course?
note is negotiable
original is endorsed and signed by mortagee
original delivered to transferee
transferee accepts in good faith w/o illegality
transfere pays value for note more than nominal
Who is personally liable on the debt if the debtor mortager sells his property?
If buyer assumes mortgage: Both original debtor, and land purchaser
if buyer takes subject to mortgage: Buyer has no personal liability–but if he doesn’t pay bank may foreclose
What happens with surplus?
first goes to attorneyees fees and foreclusre expenses plus accrued interest on first bank’s lien–then to superior lenders then junionr
What effect does foreclosure have on junior and senior interests?
Terminates junion interest holders interest:
but must join them and the debtor bcause they are neccessary parties–failure means their interest will remain on land.
Who has priority?
Purchase Money Mortagee–who lends money to buy land, and interest is in that land
they will have priority over even prior acquired After Acquired Collateral Clauses holders *like secured transactions)
where an interest holder changes term to make them more budensome a junior interest holder will take priority over the modification if properly joined.
Right to equitable redemtion
until foreclosure, debtor can try to redeem land–right ends once forclosed.
done by paying off mispayment and interest.
or in case of acceleration clause–pay in full and interest.
cannot be waived
Statutory right of redemption
some states—gives debtor right to redeem after foreclsure for period of time. by paying foreclosure sale price.
debtor typically may possess during that time.
Riparian Doctrine of Water Rights
water belongs to oner of land bodering water, they share right of reasonable use–cant interfere with others
Prior Appropriation Doctrine of water
anyone can aquire rights to water, first in time first in right, any productive or beneficial use even agricultural
Rights to Groundwater
reasonable use and not wasteful.
Surface Water
common enemy rule: everyone do waht they want to get surface water away
some dont allow unneccessary harm to others
Zoning Variance
to acheive flexibility in zoning”
show undue hardship. wont harm neigbors value if yu grant a variance.
Present Warranties *3
do not run with the land and cannot be enforced by remote grantees!
some states allow remote grantee to sue on covenant against encumbrance unless he had notice of it.
