Essay Rules Flashcards
Valid conveyance of deed
A valid conveyance requires deed formalities, delivery, and acceptance.
FAD = formalities acceptance delivery
joint tenancy
A JT exists when two or more persons own property with the right of survivorship. need express language.
PITT unities
possession
interest
time
title
severance of joint tenancy
SPAM
sale
partition
mortgage (minority theory)
converts into TIC
tenancy for years
express agreement
fixed period of time
automatic expiration
periodic tenancy
repetitive ongoing estate
measured by set periods
automatic renewal
tenancy at will
express agreement
no fixed periods of time
terminated by either party at any time w/ notice
tenancy at sufference
tenant wrongfully holds over past expiration of lease
until eviction or LL accepts rent –> periodic tenancy
tenant duties
Renting FTW, really
rent
fixtures
torts
waste
repairs if commercial tenant
duty to pay rent
has duty to pay rent
if abandons the lease without paying, LL can SIR: surrender, ignore, re-lease
reduce if: habitability breach
leave if: constructive eviction or didn’t repair and habitability breach
fixtures
once movable chattel that, by virtue of its annexation to realty, objectively shows the intent to permanently improve the realty
do not remove, leave with land
can remove if unclear if they are fixtures and wouldn’t create substantial harm to premises
landlord duties
CHPR = q chris at hp really
quiet enjoyment
constructive eviction
habitability:
possession:
repairs, unless tenant caused
constructive eviction
SING: substantial interference with use and enjoyment of property, notice to LL, get out in reasonable time
prohibitions on assignment
violation–> LL can terminate lease
waiver –> LL accepts rent from new tenant
consent–> LL can withhold consent only on commercially reasonable. ground
easements
nonpossessory right to use land of servient estate or prevent servient landowner from doing something
types of easements
PING
prescription
implication
necessity
grant/express
prescriptive easement
continuous
open and notorious
actual
hostile
implication
apparent use before split
intent to survive split
reasonably necessary to enjoyment of land
necessity
one lot split into 2
one lot is landlocked
covenant: burden to run with land
writing (SoF)
intent
touch and concern
horizontal privity
vertical privity (entire interest must be trasnferred)
notice (only if purchaser not if inherited)
WITHVN
covenant: benefit run with lands
writing
intent
touch and concern
vertical privity (partial interest can be trasnferred)
equitable servitude elements
writing
intent
touch and concern
notice
WITNes
durational language, present estate
present estate: fee simple determinable
future interest: automatic ownership to grantor, possibility of reverter
conditional language, present estate
present estate: fee simple subject to condition subsequent
future interest: right of reentry, must be exercised
present estate: 3P interest
fee simple subject to executory limitation / executory interest
life tenant duties
WRITe
waste
repairs
interest on mortgage
taxes
**for mortgages:
If a preexisting mortgage obligation requires the periodic payment of interest only, then the life tenant pays the interest and the future-interest holder pays the later-due principal.
But if periodic payment of interest and principal is required, then both payments must be allocated between the parties based on the present value of each interest.
restraints on alienation
NEVER ok for FSA
otherwise must be reasonable, time limit
unreasonable? strike it
tenants in common
undivided interest in entire property
freely devisable/transferable
tenancy by entirety
must be married
can only mutually agree to break, divorce, execution by joint creditor
no involuntary partition
rights and obligations of coowners
Rights PREP
repairs: can collect in accounting or partition action, but not for improvements. cannot get contributions
possession (ouster/adverse possession as issue)
rent from 3P and profits from removal of natural resources in proportionate share, do not owe rent to other coowners
expenses: can collect unless in physical possession and value of use equals or outweighs possession
partition: in kind or by sale
repairs: contributions. can also sell/lease/mortgage
rule against perpetuities
no interest in property is good unless it must vest if at all within 21 years of a life in being at time of creation of the interest
land sale contract
normal contract req’s
SoF
describe land
implied covenant of marketable title: no encumbrances (zoning, adverse possession, encumbrances)
no false statements of material fact
what is needed for a valid deed
-present intent to transfer
-acceptance
-written to satisfy SOF
-delivered (recording means presumptively delivered)
words in deed:
writing and signed by grantor; ID grantor and grantee, ID land, words of transfer, price
transfer intent for deeds
delivered to grantee
delivered to third party agents: ok unless grantee says I can take back
testamentary transfers
saying it’ll be given in future is not intent
recording means presumptively delivered
adverse possession
OCEAN
open and notorious
continous/tacking
exclusive
actual
not consensual/hostile
**look out for disabilities
general warranty deed
present: seisen, right to convey, against encrumbrances
future: quiet enjoyment, warranty, further assurances
Sale Can’t End, Quick While Fabulous
deed of trust
like mortgage but writing grants interest in property as security for obligation, but deed goes to third party as trustee
covenant of seisen
grantor owns property
covenant of right to convey
grantor has right to make conveyance
covenant against encumbrances
no servitudes on land
covenant for quiet enjoyment in deed
grantor promises that grantee will not be disturbed in possession by a 3rd party’s lawful claim of title.
covenant of warranty
grantor promises to defend grantee should there be any lawful claims of title asserted by others. those claims must be successful for this to be triggered.
covenant of further assurances
grantor promises to do whatever future acts are reasonably necessary to perfect the title if it later turns out to be imperfect.
intent to deliver deed and evidence
presumed if delivered
-oral condition: Evidence that the grantor gave the deed to the grantee subject to an oral condition is inadmissible to rebut this presumption, and the condition is unenforceable.
written condition: admissible to rebut presumption
Uniform Statutory Rule Against Perpetuities
The Uniform Statutory Rule Against Perpetuities takes a “wait and see” with respect to the applicability of the Rule Against Perpetuities. Under this approach, an otherwise invalid interest is valid if it does in fact vest within 90 years of its creation
covenant of quiet enjoyment
do not interrupt tenant’s possession/enjoyment + take action against other tenants nuisance
implied warranty of habitability
reasonably suited for residency. need notice to LL and reasonable opportunity to fix
LL possession
actual
or minority-constructive
can excuse nonpayment of rent
affirmative easement
The grant of a nonposessory property interest that entitles its holder to go onto and do something on another’s land, called the servient tenement.
negative easement
The grant of a nonpossessory property interest that entitles its holder to prevent the servient landowner from doing something that would otherwise be permissiable.
LASS = light, air, support, stream of water from artificial flow
easement appurtenant
when it benefits the holder in his physical use or enjoyment of property.
1. It takes 2 parcels to make an easement appurtenant.
2. It passes automatically with the dominant tenement, regardless of whether it is even mention in the conveyance and with the servient estate
(unless the new owner is a bona fide purchaser without notice of the easement).
easement in gross
confers upon its holder only some personal or pecuniary advantage that is not related to his or her use of enjoyment of his land.
- Not transferable unless it is for commercial purposes.
termination of an easement
END CRAMP
i. Estoppel – If servient owner materially changes her position in reasonable reliance on the easement holder’s assurance that the easement will no longer be enforced – the easement holder is estopped from enforcing the easement.
ii. Necessity: if created by necessity, it expires as soon as the necessity ends (but if created by express grant, no automatic end)
iii. Destruction of the servient land, other than through the willful conduct of the servient owner will terminate the easement.
iv. Condemnation of the servient estate by eminent domain will terminate the easement
v. Release (written) given by the easement holder to the servient owner will terminate.
vi. Abandonment: easement holder must demonstrate by physical action the intent to never use the easement again.
vii. Merger doctrine: the easement is extinguished when title to the easement and title to the servient land become vested in the same person.
viii. Prescription – adverse possession – interference w/ an easement which is COAH
profit
Entitles its holder to enter the servient land and take from it the soil or some substance of the soil
created in same way as easements but not by necessity
A profit may generally be transferred (eg, assigned) unless the profit is personal or transfer would be contrary to the intent of the parties creating the profit.
implied equitable servitude
the general or common scheme doctrine – an implied equitable servidude will hold an unrestricted lot holder to a restrictive covenant if:
i. When the sale began, the subdivider had a general scheme of residential development which included the purchaser’s lot
ii. The lotholder had notice of the promise contained in the prior deeds (actual, inquiry, record)
changed circumstances
defense to equitable servitudes
where the party seeking release from the terms of the equitable servitude must so that changed conditions are so pervasive that the entire areas has changed.e
equitable conversion
once the contract is signed, Buyer is owner of the land, subject of course to the condition that he pay the purchase price at the closing
so Buyer bears risk of loss
implied promises for land sale contracts
-marketable title
-no false statements of material fact
-NO implied warranty of habitability or fitness
false statement of material facts
seller liable for failing to disclose known latent material defects – seller is responsible for his material lies and his material omissions.
disclaimers will not excuse, but can disclaim if no false statement or hiding of the defect and in K
shelter rule
one who takes from a BFP will prevail against any entity that the transferor BFP would have prevailed against.
wild deed
if a deed, entered on the record (A to B), has a grantor unconnected to the chain of title (O to A), the deed is a wild deed. It is incapable of giving record notice of its existence.
estoppel by deed
one who conveys realty in which he has no interest, is estopped from denying the validity of that conveyance if subsequently acquires the interest that he previously transferred.
executory interest: springing and shifting
future interest in grantee
springing: owner
shifting: third party
rule of convenience
absent express contrary intent, a class closes (i.e. no one born after that time may share in the gift) when some member of the class can call for distribution of her share of the class gift
exception to general rule: (“bad as to one, bad as to all”)—if RAP voids a transfer to any class member, then the transfer is void as to all class members, even those whose interests have already vested
shelley’s case
a remainder in a life tenant-grantee’s heirs is deemed to be in a life tenant herself.
doctrine of worthier title
A remainder in the grantor’s heirs is ineffective, so grantor has a reversion.
destruction of contingent remainders
Contingent remainders are destroyed if not vested at time of termination of preceding estate
reversion
when grantor grants estate less than his own
assignment
LL can sue T1 or T2. granting of entire remainder of lease.
T1 has privity of contract
T2 has privity of estate
sublease
LL can only sue T1. granting of just one part of the remaining time on lease.
landlort tort liability
generally no liability unless CLAPS
common areas: make safe
latent/hidden defects: must warn but not duty to repair
assumption of repairs
public use: leasing spaces for public use
short term furnished rentals
mortgage
conveyance of a security interest in land, intended by the parties to be collateral, for the repayment of a monetary obligation.
equitable mortgage
a promise to pay back the money, and if they don’t, the lender can take the property
mortgagee transfer
The creditor-mortgagee can transfer his interest by
(1) endorsing the note and delivering it to the transferee OR
(2) Executing a separate document of assignment.
the transferee is eligible to become a holder in due course. This means that he takes the note free of any personal defenses that could have been raised against the original mortgagee and can foreclose
mortgagor transfer: assumes vs subject to mortgage
If buyer has assumed the mortgage: both grantor and buyer are personally liable. Buyer is primarily liable, while grantor is secondarily liable.
If buyer takes subject to the mortgage: buyer assumes no personal liability, only the grantor is liable. But, if recorded, the mortgage remains on the land. Thus if grantor doesn’t pay the mortgage, the property may be foreclosed.
effect of foreclosure on interests
Foreclosure will terminate interests junior to the mortgage being foreclosed, but will not affect senior interests
junior interests must receive notice of mortgage proceedings for them to be extinguished
purchase money mortgage
a mortgage given to secure a loan that enable the debtor to acquire the land is superior to previous interests
As between two PMMs, a seller’s PMM will take priority over a third-party PMM.
redemption (equitable vs statutory)
equitable: at any time prior to the foreclosure of the sale the debtor has the right to redeem the land and free it of the mortgage. pay outstanding payments and interest.
statutory: gives the debtor a statutory right to redeem for some fixed period after the foreclosure sale has occurred (typically 6 mo. - a year). pay foreclosure sale price.
lateral support
If land is improved by buildings and an adjacent landowner’s excavation causes that improved land to cave in, the excavator will be liable only if he acted negligently.
Strict liability does not attach to the excavator’s actions unless plaintiffs shows that, b/c of defendant’s actions, plaintiffs improved land would have collapsed even in its natural state.
riparian doctrine
- The water belongs to those who own the land bordering the water course
- These people are known as riparians who share the right of reasonable use of the water (natural use trumps unnatural use).
- Thus, one riparian will be liable if his or her use unreasonably interferes with others’ use.
prior appropriation doctrine
- The water belongs initially to the state, but the right to divert it and use it can be acquired by an individual regardless of whether or not she happens to be a riprarian owner.
- Rights are determined by priority of beneficial use.
The norm for allocation is first in time, first in right.
Any productive or beneficial use of the water, including use for agriculture, is sufficient to create the appropriate right.
groundwater
surface owner is entitled to make reasonable use of groundwater.
surface water
i. The common enemy rule: a landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water.
ii. Many courts have modified the rule to prohibit unnecessary harm to others land
when can an easement holder expand use
so long as that increase does not unreasonably damage or interfere with the use or enjoyment of the servient estate.
prescription: nature and extent of adverse use
implication: existing quasi-easement
necessity: extent of necessity
express: written terms
mortgagee in possession
The mortgagee can take possession of the mortgaged property if the mortgagor abandons it. Once in possession, the mortgagee incurs liability as if he/she were the owner.
Types of listing agreements
Open
Seller may use other brokers to sell listed property & commission goes to whichever broker finds buyer during listing period
Exclusive agency contract
Seller can find buyer &, if seller does so without broker’s assistance, broker receives no commission
Exclusive right to sell
Commission goes to broker if property is sold during listing period, no matter who finds buyer
time is of the essence
A real estate contract must be performed on the closing date when time is of the essence—ie, (1) the contract states that “time is of the essence,” (2) circumstances indicate that the parties intended to strictly adhere to the closing date, or (3) one party notifies the other within a reasonable time before closing.
doctrine of exoneration
The common-law doctrine of exoneration applies when a testator makes a specific devise of real property subject to an encumbrance (eg, mortgage). It allows the devisee to have the property “exonerated” by payment of the encumbrance from the remaining assets in the testator’s estate.
most states have abolished
assignment of note
A promissory note can be assigned to another independent of the mortgage. And unless the parties agree otherwise, the mortgage automatically transfers with the note once the note has been properly assigned.
when can a property owner properly proceed with plans for a nonconforming use after a zoning change
A property owner may proceed with plans for nonconforming use after a zoning change if he/she has a vested right in that use. A vested right exists if, at the time a zoning change takes effect, the property owner has (1) secured any necessary permits in good faith and (2) made substantial progress toward achieving the use.
deed in lieu transaction
A mortgagor can avoid foreclosure by conveying title to the mortgaged property to the mortgagee (“deed in lieu of foreclosure”). Deed-in-lieu transactions are generally valid so long as they are fair to the grantor-mortgagor and not simply a means of continuing the original mortgage (ie, equitable or “disguised” mortgage).
new house warranty
A builder or other commercial seller of a newly constructed residence gives a warranty of fitness or suitability to the buyer.
The courts have implied such a warranty. The warranty covers material defects that could not have been uncovered by the buyer through a reasonable inspection prior to purchase
must be brought within reasonable time
mortgagor duty
A mortgagor has a duty not to commit waste with respect to the mortgaged property when such waste impairs the mortgagee’s security interest in that property.
what interests do RAP apply to
contingent remainders
executory interests
class gifts subject to open
**doesn’t apply to vested remainders unless subject to open
and powers of appointment
rights of first refusal and options may be unless commercial
RAP does not apply to FIs that revert to the grantor (reversion, possibility of reverter, right of reentry)
executory interest
Future interest that will divest, or terminate, an earlier interest.
foreclosure proceeds priority
first to the costs associated with the sale,
second to the balance and interest of the mortgage obligation being foreclosed, and
third to the mortgage obligations owed to junior interest holders in the order of the priority of their interests.
Any remainder is paid to the debtor-mortgagor, while senior interests remain unaffected.
color of title
If a person enters property under color of title (a facially valid will or deed) and actually possesses only a portion of the property, then constructive adverse possession can give title to the whole.
holder of future interest has a license to do what
The holder of a future interest, such as a remainder interest, has a license to inspect the property for waste
seller’s duty to disclose
Majority: Must disclose known material defects that buyer could not reasonably discover for residential property
Exception: “as is” clause or specific disclaimersa without seller’s fraud
minority: caveat emptor no duty
are mortgages encumbrances for implied covenant of marketable title
while an outstanding mortgage does constitute an encumbrance, if the amount of the mortgage is less than the selling price, at closing the seller can apply the proceeds from the sale of the property to pay off the balance of the mortgage and remove the encumbrance.
trade fixtures
A tenant can remove trade fixtures—items the tenant attached to real property for use in his/her trade or business—without the landlord’s consent if:
the removal will not substantially harm the property (eg, will not degrade the building’s structural integrity) and
the items are removed before, or within a reasonable time after, the lease terminates.
ascessions
Accessions are items that are so attached to other property that they cannot be removed without causing substantial damage.
intermediate title theory
Under the intermediate theory of mortgages, a mortgagor is entitled to possession until default, at which time the lender acquires legal title (ie, the right to own and possess) to the mortgaged property.
merger doctrine mortgages
A minority of jurisdictions apply the doctrine of merger when the same person acquires the mortgagee’s interest in real property and the mortgagor’s interest in that same property. When this occurs, the mortgage merges into the fee estate and is thereby extinguished. As a result, the mortgagee has no lien on which to foreclose and any junior liens are promoted in status.
However, most jurisdictions have adopted the Restatement’s position that the merger doctrine does not apply to mortgages (default rule on the MBE). Instead, a mortgagee that receives a deed in lieu of foreclosure is treated as having impliedly retained the right to foreclose on its mortgage—unless it had actual knowledge of a junior lien. If so, then the mortgagee cannot foreclose on its mortgage to eliminate that junior lien
defeasible life estate
cut short by specified event
waste
o Permissive—occurs when LT permits the premises to deteriorate through neglect, failure to preserve, or a failure to reasonably protect the property; LT must make reasonable repairs (up to amount of income produced by property or, if LT is in actual possession, the fair rental value)
o Voluntary— occurs when the condition of the property is substantially changed due to LT’s affirmative action
Decrease in property value—not permitted
No decrease in property value—ameliorative waste; permitted when the change results in a reasonable use of the property unless future interest holders have reasonable objection
Holder of any future interest—may bring suit against LT for an injunction
charity to charity exception RAP
RAP does not apply
coowners fiduciary duties
Co-T owes a duty of fair dealing to other co-Ts, but generally does not owe fiduciary duties to other co-Ts; exception: a co-T buys the property at a tax or foreclosure sale (the other co-Ts can buy back their interests within a reasonable time)
FHA
federal Fair Housing Act (FHA) prohibits discrimination in the sale, rental, and financing of homes and in other housing-related transactions (such as advertising, homeowner’s insurance, and zoning)
Exemptions—owner-occupied buildings with no more than four units (including the owner’s unit) and single-family homes sold or rented without a broker are generally not subject to FHA (but are subject to advertising rules)
Protected classes—prohibition applies to discrimination based on race, color, religion, national origin, sex, disability, and familial status
Racial discrimination—plaintiff need only show a disparate racial impact, not a racial intent or purpose
LL assignments
o Generally, L may assign lease rights and obligations to a third party (e.g., as part of a transfer of ownership) but L remains liable to T for all covenants in the lease
o T must pay rent to assignee-L and obey lease covenants; assignee-L must perform any burden imposed by lease covenant
o Attornment (T’s acknowledgment of a new L)—usually arises automatically upon payment of rent to assignee-L or notice to T but formal acknowledgment of an assignee-L’s ownership may be required in commercial leases
deposit as liquidated damages
buyer’s deposit as liquidated damages—generally, deposits of no more than 10% of the purchase price have been found to be reasonable liquidated damages,
title insurance
protects policy holder (owner or lender) against defects that could have been uncovered by careful title search or forged/undeliverable/unenforceable deeds
types of restraints on alienability
o Disabling restraint—total prohibition on the transfer of the property interest by its owner; always void
o Forfeiture restraint—property is forfeited if the interest owner attempts to transfer his interest; restraint on a future interest or a life estate can be valid
o Promissory restraint—a promise by the property interest holder not to transfer the property interest; enforceable by an injunction or a suit seeking damages; restraint on a life estate can be valid
absolute deed (mortgage alt)
transfers unrestricted title to RP (may actually be a disguised mortgage if an obligation is created contemporaneously with the transfer)
conditional sale and repurchase (mortgage alt)
RP sold and then leased back to the seller; if the lease is for a long time with option to repurchase, may be a disguised mortgage
