Kaplan Real Property Foundation Slides Flashcards
Ownership and Rights in Land - Coverage Areas
Ownership
- Future Interest
- FSD
- FSCS
- Joint Tenancy
- Partition Proceedings
Rights in Land
- Licenses
- Easements - creation and destruction
- Covenants
Checkpoint items
Co-Tenancies - Joint Tenancies Licenses Easements Issues concerning equitable prinicpals
Future Interests - Future Interests in Grantor
- Possibility of Reverter (Automatic reversion)
- Right of Reversion (Duty to act- No Automatic reversion)
- Reversion
Future Interests - Present Possessory Interest
- Fee Simple Absolute
- Fee Simple Determinable
- Fee Simple Subject to Condition Subsequent
- Fee Simple Subject to Executory Limitation
- Life Estate
Future Interest in Third Party
- Executory Interest
- Remainder
Rule Against Perpetuities applies to situations where there are:
- Contingent Remainders / Class Gifts
- Options to Purchase (Fee Options)
- Powers of Appointment
- Executory Interests
- Rights of First Refusal
Restraints on Alienation
- A restriction prohibiting the recipient from selling or otherwise transferring his interest in the property.
- Such restraints are void as against public policy of allowing landowners to freely dispose of their property
Certain restrains on Alienation are valid, including:
- A prohibition against partition of property for a limited time
- The right of first refusal
Concurrent Estates are
- Joint Tenancy
- Tenants by the Entireties
- Tenants in Common
Joint Tenancy Requirements
- 4 units
- Time; Title; Interest; Possession
- Survivorship - estate passes to the survivor
Tenants by the Entireties
- Reserved for Husband and Wife
- Requires the marriage as a 5th unit
Severance of a joint tenancy becomes a
an estate of Tenancy in Common
How can a joint tenancy be severed
1- Conveyance Inter Vivos
2- Death of one of the two remaining Joint Tenants
3- Mortgage under title theory
4- Final partition action
Tenancy in Common is
1- Unity of Possession only
- Both parties own an undivided interest in the property
- the land passes through a Will or Intestacy
License is a
a Revocable personal privilege to enter the servient tenement of the licensor without liability for trespass
Easements are
A non possessory interest in the USE of land of another
1- Easements in Gross
2- Easement Appurtenant
What is an Easement in Gross
- No dominent Tenement
2. Do not run with the land
What is an Easement Appurtenant
- 2 Parcels
- Benefitted for dominant land
- Burdened on the servient land
- The easement runs with the land
Easements are created by
Creation
- Expressly in writing - grantor to grantee
- Necessity - landlocked, but allow judge to decide
- Implication - reflected the practices and customs of the property
- Prescription - adversely possessed (no exclusivity)
Easements are terminated by
- Written release
- End of necessity
- Abandonment - Requires intent & Physical act
- Merger - unity of ownership
Covenant is a
A contract in which the covenantor makes a promise to a covenantee to do or not to do some action tied to the use of land. A covenant running with the land, imposes duties or restrictions upon the use of that land regardless of the owner
Landowner Tenant and Titles - Coverage Areas
Landlord Tenant
- Subleases
- Assignments
- Evictions
- Right and Duties
Titles
- Adverse Possession
- Lateral and Subjacent Support
- Growing Crops
- Water Rights
- Conveyances
Checkpoint Items
Landlord Tenant - Common Law - Lots of Statutes Crossover with Torts and Contracts Assignments and Subleases Adverse Possession - Watch for Statutes Conveyancing
Constructive Eviction
Premises are “uninhabitable” AND Tenant moves out
Four Types of Tenancy (Landlord - Tenant)
1- Tenancy for Years - Fixed Term
2- Periodic Tenancy - no ending date
3- Tenancy at Will - indefinite
4- Tenancy at Sufferance - Holdover Tenant
Delivery of Possession to Tenant- English Rule
Landlord has a duty to deliver possession at the lease inception
Delivery of Possession to Tenant- American Rule
Landlord DOES NOT have a duty to deliver possession at the lease inception, and the tenant has to bring an ejectment action against the holdover tenant
Subjacent and Lateral Support
Landowner is strictly liable if his excavation causes “unimproved” adjacent land to subside
Adverse Possession Requirements - MBE
Adverse Possession
- Physical Element
- Actual and exclusive (cannot be shared)
- Open and notorious
- Mental Element - adverse and hostile
- For the statutory period
Property Contracts and Mortgages
Real Property Contracts:
- Requirements
- Statute of Frauds
- Risk of Loss
- Equitable Conversion
Mortgages
- Subject to and assuming grantees
- Purchase money mortgages
- Transfer of mortgage
- Subrogation
- Recording Statutes
Checkpoint Items
Real Property Contracts
- Risk of Loss
- Equitable Conversion
- Contingencies
Mortgages
- Purchase Money Mortgages
- Technical Requirements
- Recording Statutes
Deeds - Valid Delivery occurs when
1- Proper execution
2- Intent to deliver
Equitable Conversion (Common Law) Majority on the MBE
Risk of loss for casualty is place on the buyer during the executory period. The buyer is the equitable owner of the land, whereas the seller, who holds legal title, is the equitable owner of the right to the full purchase price.
The burden and the benefits of the land is shifted to the purchase once the contracts are signed
Uniform Vendor and Purchaser’s Risk Act
Risk of loss is on the buyer ONLY IF the buyer has legal title or “possession” of the property
Marketable title
is a title that is free from Encumbrances
Every contract to sale of land contains
an implied warranty of marketable title
Encumbrances on a title are
- Mortgage
- Lien
- Easement
- Equitable Servitude
- Zoning violation
- Future Interest
Bona Fide Purchasers (BFP) are
- Pays value (purchaser, mortgagee, judgment creditor)
- Takes in “good faith” and
- Takes without notice (key MBE element) that someone else has title to the property
What are the three different Recording Statutes
1- Race - 1st to record wins
2- Notice - Last BFP wins
3- Race Notice - 1st BFP to record wins
Notice Statute states that
An unrecorded conveyance or other instrument is invalid as against a subsequent bona fide purchaser (credit or mortgagee) for value and without notice
Mortgage
an interest in land created in writing providing security for the performance of a duty or the payment of a debt
Foreclosure
the method by which the security is applied to satisfy the debt
Deficiency Judgment
allowed where the proceeds of the foreclosure sale are insufficient to satisfy the debt
Mortgagee can bring 2 causes of action
1) “in personam” on the debt
2) “in rem” on the security
Rights of a grantee
A grantee who “assumes” a mortgage is personally liable. A grantee who takes “subject to” the mortgage is not personally liable
Subject to the Mortgage where the deed makes no reference to the mortgage
it is presumed the grantee takes “subject to” and is not personally liable
Purchase money mortgage is
a purchase money mortgage takes priority over the other prior mortgages, regardless of recording statutes. The purchase money mortgage itself, however, must be recorded
Exoneration is
the right of a surety to compel the mortgagee to proceed against the person or property primarily liable
