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Property > Big Topics > Flashcards

Big Topics Flashcards

1
Q

Fee simple determinable?

A
  • estate that terminates upon the happening of a stated event and AUTOMATICALLY REVERTS to the grantor (possibility of reverter)
  • language: “for so long as,” “while,” “during,” or “until”
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2
Q

fee simple subject to condition subsequent?

A
  • estate in which the grantor RESERVES THE RIGHT TO TERMINATE the estate upon the happening of a stated event; i.e., grantor must take some action.
  • “upon condition that”, “provided that,” “but if,” “if it happens that”
  • right of reentry
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3
Q

fee simple subject to an executory interest

A

estate that terminated upon the happening of a stated event and then passes to a 3d party rather than reverting to the grantor

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4
Q

a future interest includes:

A

reversionary interests, remainders, and executory interests

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5
Q

reversions?

A

possibilities of reverter and rights of entry – all of these interests are vested and thus not subject ot the RAP

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6
Q

what is a remainder?

A

a future interest in a 3d person that can become possessory on the natural expiration of the prior estate; ex: O conveys “to A for life, then to B and his heirs”

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7
Q

indefeasibly vested remainder?

A

one created in an existing and ascertained person, and N subject to a condition precedent – i.e. the remainderman has a right to immediate possession upon normal termination of th epreceding estate

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8
Q

vested remainder subject to open

A 
a vested remainder in an open class of persons, subjec tto diminution --  birth of addt'l persons who will share in the remainder as a class. 
O conveys "to A for life, then to children of B." A and B are living and B has one child, C. C has a vested remainder subject to open.
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9
Q

vested remainder subject to total divestment

A

vested remainder that is subject to a condition subsequent. O conveys “to A for life, then to B and his heirs; but if B dies unmarried, then to C and his heirs.” B has a vested remainder subject to complete divestment by C’s executory interest.

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10
Q

contingent remainder

A

remainders created in unborn or unascertained persons, or subject to a condition precedent. condition precedent must be satisfied before remainderman can take.
“O conveys to A for life, then to B and his heirs IF B marries C.” B’s remainder is contingnet.

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11
Q

executory interests

A

divest a transferee’s preceeding estate (shifting) or cut short a grantor’s estate (springing interest)

  • “O grants to A and his his heirs when A marries B” – A has a springing executory interest
  • “O grants to A for life, then to B and his heirs; but if B predeceases A, then to C and his heirs.” – C has a shifting executory interest
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12
Q

COME BACK TO THE RULE AGAINST PERPETUITIES

A

…

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13
Q

4 types of tenancies

A
  1. tenancies for years
  2. periodic tenancies
  3. tenancies at will
  4. tenancies at sufferance
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14
Q

tenancies for years?

A

fixed period of time, usu. created by written leases, ends automatically at termination date

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15
Q

periodic tenancy

A

tenancy for successive periods, i.e. month to month, until terminated by proper notice by either party

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16
Q

ways to create a periodic tenancy?

A
  1. express agreement
  2. implication (L leases to T at a rent of $1,000 payable monthly)
  3. operation of law (T remains in possession after the lease expires, and L treats it as a periodic tenancy)
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17
Q

proper notice ot terminate a periodic tenancy?

A

one full period in advance; for a year to year lease, one month notice is the modern trend

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18
Q

tenancy at will

A

terminable at the will of either the landlord or the tenant

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19
Q

creation of tenancy at will:

A

generally, must be created by an express agreement that the lease can be terminated at any time. absent such agreement, periodic rent payments will cause a court to treat it as a periodic tenancy.

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20
Q

termination of a tenancy at will?

A

proper notice or operation of law (death, waste, etc.)

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21
Q

tenancies at sufferance?

A

arises when a tenant wrongfully remains in possession after the expiration of a lawful tenancy. lasts only until L takes steps to evict the tenant, no notice req’d.

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22
Q

assignment?

A

a complete transfer of the entire remaining lease term

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23
Q

sublease

A

if T retains any part of the remaining leaseterm

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24
Q

consequences of assignment?

A

assignee is in privily of estate with land lord, and liable on all covenants that run with the land. original tenant remains liable on the origianl contract obligations, such as to pay rent b/c she is in privity of contract with the landlord.

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25
Q

when does a covenant run with the land IN A LEASE?

A

when the original parties to the lease so intend and if the covenant touches and concerns the land, i.e. benefits the LL and burdens the tenant or vice versa with respect to their interests in the property

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26
Q

consequences of sublease

A

sublessee not in privity with landlord – not liable to the LL for rent or for the performance of any covenants int he main lease unless the sublessee EXPRESSLY ASSUMES the covenants

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27
Q

are covenants against assignment or subleasing enforceable?

A

they are strictly enforced against the LL, i.e. if the covenant bars assignments then it DN bar subleases and vice versa. the LL waives this provision if the LL was aware of the assignment and DN object, i.e. knowingly accepting rent from the assignee.

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28
Q

what if a tenant makes an assignemnt or sublease in violation of the lease terms?

A

the transfer is not void. however, the LL usually may terminate or sue for damages.

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29
Q

If a landlord assigns his rights to a new owner, do the covnenats that ouch and concern the land run to the assignee?

A

Yes, and thus the assignee is liable for the performance of those covenants. THE ORIGINAL LANDLORD ALSO REMAINS LIABLE FOR ALL THE COVENANTS HE MADE IN THE LEASE.

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30
Q

Easements, profits, covenants, and servitudes are ______ interests in land:

A

nonpossessory; creating a right to use land possessed by someone else

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31
Q

an easement holder has the right to use and enjoy the land for:

A

a special purpose

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32
Q

easement appurtenant? how does it pass?

A

two tracts, one dominant, one subservient; it passes with the benefited land automatically, regardless of whether it was mentioned in the conveyance. the burden of the easement also passes automatically with the servient estate unless the new owner is a BFP with no actual or constructive notice of the easement

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33
Q

easement in gross?

A

benefits the holder rather another parcel; it’s for the holder’s personal pleasure; right to swim in the pond on Blackarcre. Generally not transferable, unless it serves a commercial interest, right to erect billboards for example, then it’s transferable.

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34
Q

ways to create an easement?

A
  1. express grant
  2. express reservation
  3. implication
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35
Q

creation of easement - express grant?

A

must be memorialized in writing and signed by the holder of the sevient tenement unless its duration is brief enough (commonly one year or less) to be soutside fo the SOF; must comply with all formalities of a deed

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36
Q

creation of an easement – express reservation?

A

when a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose; NOTE: this is only valid for the GRANTOR; an attempt to reserve an easement for anyone else is VOID

37
Q

creation of easement – implication?

A
  1. implied from existing use (quasi easement)
  2. easement implied without any existing use
  3. easement by necessity
38
Q

elements of an implied easement from existing use?

A
  1. prior to the division of a single tract
  2. an apparent and continous use exists on the servient part
  3. that is R and neccessary for the enjoyment of the “dominant” part
  4. the court determines that the parties indened the use to continue after the division of land
39
Q

easement implied w/o any existing use?

A
  1. subdivision plat - when lots are sold in a subdivision w reference to a recorded plat or map that slo shows streets, buyers o fht elots have implied easemenets to use the strees to access their lots
  2. profit a prendre – the holder has an implied easement to pass over the surface of the land to R extract the product
40
Q

easement by necessity?

A

when a landowner sells a protion of his tract and by division deprives one lot of access to a public road or utility line; the owner of the servient parcel has the right to locate the easement

41
Q

easement by prescription?

A

adverse possession (open and notorious, adverse, continuous and uninterrupted, statutory period). CN be acquired in public land

42
Q

what is the generally assumed scope of an easement? when will new owners not succeed to the easement?

A
    • that it was intended to meet both present and future needs of the dominant tenement; easement may widen to accommodate new, wider cars.
    • if the dominant lot was subdivided and to continue to use the easement would overburden the servient parcel
43
Q

what is the remedy for an easement that is being overused or misused?

A

for the servient owner to seek an injunction against the misuse

44
Q

who has the duty to make repairs to the easement?

A

the easement holder

45
Q

an easement may terminate by:

A
  1. stated conditions
  2. unity of ownership (merger)
  3. release
  4. abandonment
  5. estoppel
  6. prescription
  7. necessity
  8. condemnation and destruction
46
Q

termination of easement – unity of ownership (merger)

A

occurs when the same person acquires ownership over both the dominant and servient estate

47
Q

termination of easement – abandonment

    • what is sufficient?
    • what is insufficient?
A

an easement is extinguished when its holder demonstrates by physical action (building a structure that blocks access) an intent to permanently abandon the easement; merely expressing a wish to abandon is NOT sufficient, neither does mere nonuse. oral expressions combined with a long period of nonuse may be sufficient.

48
Q

termination of easement – prescription

A

to terminate an easement by prescription, there must be an adverse, continuous interruption of the use for the prescriptive period.

49
Q

termination of easement – necessity

A

easements created by necessity expire as soon as the necessity ends

50
Q

termination of easement – condemantion and destruction

A

condemnation of the servient estate extinguishes all easements.

51
Q

what is the difference between an easement and a license?

A

licenses privilege the owner to go onto the land of another. unlike an easement, a license is N an interest in land; it is merely a privilege; REVOCABLE at the will of the licensor. also, it’s personal to the licenssee, thus , inalienable.

52
Q

when does a license become irrevocable?

A
  1. estoppel
  2. license coupled w/ an interest - ex: the vendee of a chattel may enter the seller’s land to remove the chattel, and a future interest holder may enter and inspect the land for waste
53
Q

what is a real covenant?

A

a written promise to do or not do something on the land (maintain a fence, N build a multi-family dwelling)

54
Q

do real covenants run with the land?

A

yes, subsequent owners may enforce or be burdened by the covenants

55
Q

what are the requirements for a real covenant to run with the land?

A
  1. intent - the covenanting parties must have INTENDED that successors be bound by the terms of the covenant
  2. notice
  3. horizontal privity - at the time of the arrangement, the two must have shared SOME INTEREST in the land independent of the covenant (grantor-grantee, landlord-tenant, mortgagee-mortgagor) ***only concerns original parties
  4. vertical privity – to be bound, the successor in interest must hold the ENTIRE DURATIONAL INTEREST
  5. touch and concern –
    negative covenants: restrict the holder of the servient estate in his use of tha tparcel of land
    affirmative covneants if they require the holder of the servient estate to do something
56
Q

what is req’d for the benefit to run with the land?

A
  1. intent
  2. vertical privity (NOT horizontal)
  3. touch and concern
57
Q

what is an equitable servitude?

A

very similar to real covenant, except that REGARDLESS of whether it runs with the land, equity will enforce agsint the assignees of the burdened land who have NOTICE of the covenant; usual remedy is an injunction

58
Q

how do you create an equitable servitude?

A

evidenced by covenants contained in a writing. one exception: negative servitudes may be implied from a common scheme for development of a residential subdivision.

  • – common scheme: reciprocal negative servitudes will be implied only if, at the time that sales in the subdivision began, the developer had a plan that all parcels would be subject to the restriction. the scheme may be evidenced by 1. a recorded plat, 2. a general pattern, or 3. oral representations to early buyers
  • – note: if the scheme arises after some lots are sold, no implied servitude can arise w/ respect to the lots already sold
  • — note 2: to be bound by a covenant not in her deed, a grantee must have had notice of the coventans in the deeds of others in the subdivision
59
Q

what are the requirements for burden to run?

A

a successor of the promisor is bound if:

  1. the covenanting parties intended that the servitude be enforceable by and against assignees,
  2. actual, inquiry or record notice of the servitude
  3. the covenant touches and concerns the land
60
Q

requirements for benefit to run? re: servitude

A
  1. if the original parties so intended and 2. the servitude touches and concerns the benefited party
61
Q

what form must a land sale contract be in?

A

written, satisfies SOF

62
Q

once a land contract is signed, who is the owner of the real property?

A

the buyer is the owner of the real property under the doctrine of equitable conversion

63
Q

once a land contract is signed, what does the seller hold?

A

the seller has the right to the proceeds of the sale, i.e. personal property. in addition, they have bare legal title, which entitles them to possession before closing. the bare legal title is held in trust until it transfers to the buyer upon closing.

64
Q

who has the risk of loss before closing?

A

the buyer (however the seller must credit any insurance proceeds against the purchase price the buyer is req’d to pay)

65
Q

what happens if a party to a land sale contract dies before the contract is completed?

A

the seller’s interest passes as personal property (the right to the proceeds) and the buyer’s interest passes as real property

66
Q

every land sale contract contains an implied covenant that the seller will provide

A

marketable title

67
Q

is title acquired by adverse possession OK?

A

no, it is unmarketable

68
Q

what are the two defects that can affect whether a title is marketable?

A
  1. adverse possesion in the chain – makes it unmarketable

2. future interests held by unborn or unascertained parties

69
Q

what besides defects in record chain of title can make title unmarketable?

A
  1. encumberances such as mortgages, liens, restrictive covenants, easements, options to purchase and significant enrochaments – however, (1) easements that are beneficial, visible or known ot the buyer do not render title unmarketable AND (2) the seller has a right to satisfy a mortgage at or lien at closing with the proceeds of the sale
  2. an existing violation of a zoning restriction
70
Q

what is the remedy if title is not marketable?

A
    • buyer must notify seller and give seller R time to cure the defects
    • if seller CN cure, then remedies include recission, damages, specific performance w/ abatement, and a quiet title suit
71
Q

is it true that you do NOT have to provide marketable title with a quitclaim deed?

A

NO, you ARE REQ’D to provide marketable title as an implied covenant even with a quitclaim deed

72
Q

generally, is “time of the essence” in a land sale contract?

A

no, closing dates are not absolutely binding, and a party late in tendering her own performance can stille nforce the k if she tenders w/i a R time

73
Q

when is time of the essence in a land sale contract?

A

if:

  1. the contract so states
  2. that was the parties’ intent; or
  3. one party gives the other NOTICE that time is of the essence
74
Q

what is the rule at CL re: recording?

A

first in time prevails

75
Q

who do recording acts generally protect?

A

generally protect BFPs from SECRET interests

76
Q

who wins in a notice statute?

A

subsequent BFP WHO HAD NO NOTICE OF PRIOR INTEREST AT TIME OF CONVEYANCE (***note: subsequent BFP protected regardless of whether she records at all)

77
Q

who wins under a race-notice statute?

A

a subsequent BFP IF she takes (1) without notice and (2) records before the prior grantee
Example:
O conveys to A on Jan 1. A DN record. O conveys to B on Jan 2. B had no notice of A. A records on Jan 3. B records on Jan 27th. A prevails over B b/c B failed to record

78
Q

who is protected under a race statute?

A

first to record wins, notice is irrelevant

79
Q

what is the shelter rule?

A

a person who takes from a BFP will prevail against interest the transferor-BFP would have prevailed against.

80
Q

are donees, heris, or devisees protected under recording acts?

A

no, b/c they DN give value; however, a purchaser from such a party is protected against prior unrecorded conveyances

81
Q

in order to transfer a mortgage, what must be transferred?

A

the mortgage and the note must pass to the same person

82
Q

transfer of mortgage w/o note?

A

some states hold that the transfer of the mortgage automatically transfers the note as well, unless the mortgagee-transferor expressly reserves the rights to the note

83
Q

can a note be transferred w/o the mortgage?

A

yes, but the mortgage will automatically follow a properly transferred note, unless mortgagee-transferor expressly reserves the right to mortgage

84
Q

re: a mortgage, what is redemption? (2 types)

A
  1. redemption in equity: when the mortgagor pays the amount due at any time prior to the foreclosure sale
  2. statutory redemption: when the mortgagor redeems the property after the foreclosure stale has occurred
85
Q

how is a mortage’s priortiy usually determined?

A

the time it was placed on the property

86
Q

what is a foreclosure’s effect on other interests, generally?

A

it does not destroy senior interests but does destroy junion interests, therfore failure to include a junior interest in a foreclosure action results in preservation of htat party’s interest

87
Q

how can you modify priority?

A
  1. operation of the recording statute if a PRIOR mortgagee fails to record;
  2. subordination agreement b/t a senior and junior mortagee
  3. PMM
  4. modification of a senior mortgage (junior mortgage takes priority)
  5. granting of optional future advances
  6. subrogation - senior mortgage modified by new mortgage
88
Q

what is a purchase money mortgage?

A

a PMM is a mortgage given in exchange for duns used to purchase the property

  • PMMs have priority over other encumberances
  • PMMs may NOT have priority over subsequent mortgages due to recording aacts
89
Q

how are the proceeds of a foreclosure sale distributed?

A

the foreclosed loan; next any junior intersts in their order of priority, and finally to the mortgagor

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