MBE - Real Property Flashcards
What are the three forms of concurrent ownership?
(1) Joint Tenancy
(2) Tenancy by the Entirety
(3) Tenancy in Common
What is a joint tenancy?
2 or more own with the right of survivorship.
When the JT dies, his share passes immediately to surviving JT.
JT’s interest is alienable (can transfer while alive) but not devisable or descendible bc of right of survivorship.
What is a tenancy by the entirety?
Protected marital interest between married partners with right of survivorship.
What is a tenancy in common?
2 or more owners with no right of survivorship.
What are the distinguishing characteristics of a joint tenancy?
(1) Right of survivorship
(2) Joint tenant’s interest is alienable, not devisable or descendible
What are the four unities?
Requirements for forming joint tenancy (T-TIP). Joint tenants must take same:
Time
Title
Instrument with Identical Interests
Right to Posess the whole
True or false? Joint tenancies are disfavored.
TRUE. Grantor must clearly express the right of survivorship.
What is the role of a strawman in the creation of a joint tenancy and what is the rule in NY?
On MBE, grantor must use a strawman to ensure both joint tenants obtain the conveyance with the same title and at the same time.
In NY, there is no need for strawman by statute.
Generally, what are the rules regarding the SEVERANCE of a joint tenancy?
SPAM!
Sale, Partition And Mortgage.
What does SPAM stand for/mean?
Sale, Partition and Mortgage = possible methods to sever a joint tenancy (mortgage = minority view and not NY)
JT can sell or transfer interest; use break up plan via partition; or in minority of states mortgage will sever joint tenancy - but not NY (that follows lien theory).
True or False: A joint tenant can not sell or transfer her interest secretly.
False. JT can transfer his interest secretly, even w/o the other’s knowledge or consent.
When a Joint Tenant sells their interest in a joint tenancy, what result?
Buyer = tenant in common.
Joint tenancy remains entact if there are two or more remaining joint tenants.
What are the three variations of partition?
(1) By voluntary agreement
(2) Partition in kind
(3) Forced sale
What is a partition in kind?
Court action, if in best interests of all, that physically divides the property into equal parts.
Works best if blackacre –> sprawling acreage.
What is partition by forced sale?
Court action, if in best interest of all, where blackacre is sold and proceeds divided proportionately.
Works best if blackacre –> single building
What is the majority rule regarding the severance of joint tenancy and mortgages?
The majority of states follow “lien theory” whereby a joint tenant’s execution of a mortgage on his interest WILL not sever the joint tenancy.
True or False: NY recognizes tenancy by the entirety.
True.
Tenancy by the entirety is created between married partners with a right of survivorship.
How protected is the co-ownership in a tenancy by the entirety?
VERY - Can’t touch this!
Creditors of only 1 spouse can’t touch this tenancy.
In NY, one spouse may mortgage his interest and creditors may enforce against that interested, BUT ONLY as to the debtor spouse’s share. The non-debtor spouse’s rights must not be compromised.
What are the features of a tenancy in common?
(1) Each co-T owns an individual part AND a right to possess the whole.
(2) Each interest is devisable, descendible and alienable. There are no survivorship rights between tenants in common.
(3) The presumption favors tenancy in common.
If one co-T wrongfully excludes another co-T from possession, what result?
He has committed a wrongful ouster.
Each co-T is entitled to possess and enjoy the whole.
True or False. a Co-T in exclusive possession is liable to other co-T for rent.
FALSE.
However, if Co-T leases to 3P must account to co-T for their fair share of rent.
What is a co-T’s responsibility for carrying costs?
Each co-T is responsible for their FAIR SHARE of carrying costs (taxes and mortgage interest) based on his undivided share.
Also, repairing co-T enjoys right to contribution for reasonable, necessary repairs, but must provided NOTIFICATION.
True or False: Co-T has right to contribution for “improvements.”
False.
What are the three species of waste?
(1) Voluntary - willful destruction
(2) Permissive - neglect
(3) Ameliorative - changes that increase value
“To A and his heirs.”
“To A.” –> this language creates what type of freehold estate?
Fee Simple Absolute.
What is the duration of a Fee Simple Absolute?
Absolute ownership, of potentially infinite duration.
Transferability –> devisable, descendible, alienable.
Future Interest –> None.
“To A and the heirs of his body.”
Fee Tail.
What is the duration of a Fee Tail?
Lasts only as long as their are lineal blood descendants of grantee.
Transferability –> Passes automatically to grantee’s lineal descendants.
Future Interests –> Reversion (if held by grantor); Remainder (if held by 3P)
What are the defeasible fee freehold estates?
(a) Fee Simple Determinable
(b) Fee Simple Subject to a Condition Subsequent
(c) Fee Simple Subject to an Executory Limitation
“To A for life.”
“To A for the life of B.” –> What freehold estate results from this language?
Life Estate.
“To A so long as… until… while…” (or any other language that providing on the happening of a event, the land is to revert to the grantor) –> what estate results from this language?
Fee Simple DETERMINABLE.
Duration –> potentially infinite, so long as event does not occur.
Transferability –> alienable, devisable, descendible, subject to condition.
Future Interest –> possibility of reverter (held by grantor)
“To A, but if X event happens, grantor reserves the right to reenter and retake.” What estate?
Fee Simple Subject to a Condition Precedent.
*Grantor must carve out a right reentry.
Duration –> potentially infinite, so long as condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination.
Transferability –> alienable, devisable, descendible, subject to condition.
Future Interest –> Right of Entry/Power of Termination (held by grantor).
To A, but if X event occurs, then to B.” What estate?
Fee Simple Subject to AN EXECUTORY LIMITATION.
Duration –> potentially infinite, so long as stated contingency does not occur.
Transferability –> alienable, devisable, descendible, subject to condition.
Future Interest –> executory interest (held by third party).
What is the duration, transferability and future interest of a life estate?
Duration –> measured by life of transferee or by some other life (pur autre vie).
Transferability –> alienable, devisable, and descendible if pur autre vie AND measuring life is still alive.
Future Interest –> Reversion (if held by grantor; Remainder (if held by 3P)
What does it mean when an estate is devisable?
It can pass by will.
What does it mean when an estate is descendible?
It will pass by statutes of intestacy if the holder dies intestate (w/o a will).
What is a fee simple determinable called in NY?
Fee on limitation.
Mick Jagger rule regarding conveyances.
YOU CAN’T ALWAYS GET WHAT YOU WANT.
You may convey less than what you started with, but you can’t convey more.
What is the future interest associated with fee simple determinable?
FSDPOR
Possibility of reverter.
What is a fee simple subject to a condition subsequent called in NY?
Fee on condition.
True or False: To create a fee simple subject to a condition precedent - the grantor must (1) use clear durational language and (2) carve out the right to reenter.
True.
What are two key rules of construction regarding defeasible fees?
(a) Words of mere desire, hope or intention are insufficient to create a defeasible fee.
(b) Absolute restraints on alienation are void.
What are the future interests capable of creation in the grantor?
(1) The possibility of reverter
(2) The right of entry (aka power of termination)
(3) The reversion
What are the future interests capable of creation in transferees?
(1) Vested remainder
(2) contingent remainder
(3) Executory interest
What are the different species of a vested remainder?
Three species:
(i) indefeasibly vested remainder
(ii) the vested remainder subject to complete defeasance, and
(iii) vested remainder subject to open
What are the different species in an executory interest?
(i) the shifting executory interest
(ii) the springing executory interest
What is a vested remainder?
Remainder created in an ascertained person and is not subject to any condition precedent
What is a contingent remainder?
Remainder created in an UNASCERTAINED person or is subject to condition precedent, or both.
What is the rule of destructibility of contingent remainder
CL –> contingent remainder was destroyed if it is still contingent at the time the proceeding estate ended.
TODAY –> rule abolished. Abolished in NY.
What are the key elements of an indefeasibly vested remainder?
Holder of remainder is certain to acquire estate in future, WITH NO STRINGS ATTACHED.
What are the key elements of a vested remainder subject to total divestment?
In NY = “remainder vested subject to complete defeasance”
Here, remainderman exists but his taking could be cut short bc of condition subsequent
What are the key elements of a vested remainder subject to open?
Remainder vested in a group of takers, where at least one of whom is qualified to take.
Each class members share is subject to dimunition bc more member’s can join class.
If more can join -- class is open If no others can join -- class is closed
How will you know when a given class has closed?
Whenever any member demands possession.
How is a remainder different from an executory interest?
Future interest is created in a transferee, which is not a remainder and which takes effect by either cutting short some interest in another person (shifting) or in the grantor or his heirs (springing).
What is a shifting executory interest?
It always follows a defeasible fee and cust short someone other than the grantor.
“To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs” – this is an example of?
Shifting executory interest
“To A, if and when he marries.” This is an example of?
Springing Executory Interest
What are executory interests AND contingent remainders called in NY’;
Remainders subject to a condition precedent
What is RAP?
Rule against perpetuities.
Certain kinds of future interest are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.
What is the 4-step technique for assessing potential RAP problems?
(1) Determine which future interests created.
(2) Identify the conditions precedent to the vesting of the suspect future interest
(3) Find measuring life.
(4) Ask if we will know with certainty w/in 21 years of the death of our measuring life, if our future holders can take or not.
What are the 2 bright line rules of CL RAP?
(1) A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the CL RAP.
(2) Many shifting executory interests violate the RAP. An executory interest with no limit on the time within which it must vest violates the RAP.
On the MBE, what are some forms of RAP reform?
(1) “Wait and See” or “Second Look”
(2) Uniform Statutory Rule Against Perpetuities
What is the “wait and see” doctrine?
Reform to RAP.
The validity of any suspect future interest is determined on the basis of the facts as they NOW EXIST, at the end of the measuring life.
What is USRAP?
Uniformat Statutory Rule Against Perpetuities - codifies the common law RAP and provides for an alternative 90 year vesting period.
What is the cy pres doctrine?
“As near as possible”
Doctrine that allows the court to reform a given disposition if it violates RAP.
What is stipulated in the NY RAP Reform statute?
NY has rejected “wait and see” AND “cy pres” doctrines except for charitable trusts and powers of appointment.
A tenancy for a fixed period of time (say 12 months) and termination date is known from start, what leasehold exists?
The Tenancy of Years.
Since termination is known at start, no notice is needed to terminate.
Remember SOF! A term of years greater than one year MUST be in writing to be enforceable.
What is the leasehold that continues for successive intervals (until proper notice given)?
Periodic Tenancy.
Can arise expressly or impliedly.
How can a periodic tenancy arise impliedly?
(1) Payment at set intervals –> lease is silent as to duration, but provides for payment of rent at set intervals.
(2) Oral term of years (in violation of SOF)
(3) Holdover –>If L elects to holder a T who has wrongfully stayed past the conclusion of the original lease.
NY Dist –> L who elects to holdover T creates an implied month to month periodic tenancy, unless otherwise agreed.
“To T as long as T or L desire” – creates what type of leasehold?
Tenancy at will.
(Tenancy for no fixed duration.)
Payment of rent generally causes court to create an implied periodic tenancy.
Generally, the tenancy can be terminated at any time, by either party but must be reasonable.
NY Dist –> L must give min 30 days notice.
What is a tenancy at sufferance?
T was wrongfully held over past the expiration of the lease. We give this wrongdoer a leasehold estate to permit L to recover rent.
What are T’s duties generally?
(1) Liable to 3P
(2) Repairs
(3) Rent
What is T’s duties to 3P?
(a) Repair –> responsible for keeping premises in good repair
(b) Injuries to 3P invitees
What is encompassed in T’s duty to repair?
Maintain premises and make ordinary repairs, even when lease is silent.
No waste (voluntary, permissive or ameliorative). Removal of fixture = voluntary waste, even if T installed it.
**Fixtures pass with ownership of the land.
How to tell when a T installation qualifies as a fixture?
(a) express agreement or (b) if no agreement T can remove chattel unless removal would cause SUBSTANTIAL HARM TO PREMISES (Regardless of T’s subjective expectations).
What are T’s duties to repair if the event of natural disaster?
At common law, T is responsible for any loss.
Today, majority review is T is off hook since natural disaster is not T’s fault. Similarly in NY, T may quit the premises or surrender w/ no duty to pay rent in case of natural disaster.
What are L’s options if T breaches duty to pay rent and remains in possession of premises?
(1) eviction through courts
(2) continue relationship and sue for rent due
L must not ___ if T fails to pay rent.
Engage in self-help.
such as, changing locks forcibly removing T’s stuff or T himself.
True or False: In NY, self-help is flatly prohibited and entitles T to treble damages.
True.
What result if T vacates with time left on term of years lease - not paying rent?
SIR.
Surrender
Ignore Abandonment and hold T responsible (minority option)
Re-let premises on the wrongdoer T’s behalf.
On the MBE, what is the majority rule regarding Ls duty to mitigate in light of T’s breach of duty to pay rent without possession? (T basically vacates early). What rule in NY?
Majority rule –> L must try to re-let.
NY –> not requirement to mitigate damages when T abandons premises.
What are Landlord’s duties?
(1) Duty to deliver possession.
(2) Implied covenant of quiet enjoyment
(3) Implied warranty of habitability
What is the difference between the english rule and the american rule with regard to the delivery of possession?
English rule –> L must deliver physical possession
American rule –> L only needs to deliver legal possession
T’s right to quiet use and enjoyment of premises applies to which type of leases?
Residential and commercial.
What are the elements of a constructive eviction?
SING.
Substantial
Interference –> due to L’s actions or failures.
Notice –> L must respond meaningfully
Get Out –> T must vacate w/in a reasonable time after L fails to remediate
True or False: The implied warranty of habitability applies to commercial leases AND is waivable.
False on both accounts.
IMH applies only to residential leases and is non-waivable.
What are T’s entitlements when the implied warranty of habitability is breached?
MRRR: Move, Repair, Reduce, Remain.
(a) Move out and end the lease (but T doesnt have to)
(b) Repair and deduct
(c) Reduce rent and/or withold all rent until the court determines fair rental value.
(d) Remain in possession, pay rent and affirmatively seek money damages
What is the difference between an assignment and sublease?
Assignment = T freely transfers his interest in WHOLE.
Sublease = T freely transfers his interest in part
In NY, What is the rule regarding the L’s consent to assignment AND sublease?
Assignment –> L can unreasonably withhold consent.
Sublease –> consent to sublease CANNOT be unreasonably withheld.
What is the difference between privity in contract and privity in estate?
Privity in Estate –> L and T2 are liable to each other for all the covenants of the original lease that run with the land (occurs with assignment).
Privity in contract –> L and T1 are secondarily liable to each other
What is the common law rule with regard to L’s tort liability?
Common law of caveat lessee = LET T BEWARE.
In tort, L is under no duty to make premises safe.
What are the 5 most important exceptions to common law of caveat lessee?
CLAP!
(a) Common areas – L must repair hallways/stairways
(b) Latent defect rule – Lmust warn of hidden defects
(c) Assumption of repairs – for voluntary repairs
(d) Public use rule
(e) Short term lease of furnished dwelling
What are the relevant forms of servitudes?
(a) Affirmative easements
(b) Negative Easements
(c) Real Covenants
(d) Equitable Servitures
What is the method of creation for an affirmative easements?
PING.
PRESCRIPTION –> use is continuous, open snd notorious
IMPLICATION –> implied from prior use
NECESSITY –> division of a tract deprives one lot of means out
GRANT –> writing signed by grantor)
What is the method of creation for an affirmation easements?
Can be created only by writing signed by grantor.
Negative easements for LASS –> light, air, support and streamwater.
The following is a general definition of ____? “The grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land called servient tenament.”
Easement.
Common example includes; privilege to lay utility lines, right of access across tract of land.
What is a negative easement?
Entitles the holder to prevent the servient landowner from doing something that would otherwise be permissible.
True or False: Negative easements can only be created expressly, by writing signed by the grantor.
True.
There is no natural or automatic right to negative easement.
What is an easement appurtenant?
IT TAKES TWO.
Easement is appurtenant benefits its holder in his physical use or enjoyment of his property.
Two parcels must be involved. Dominant tenament gets the benefit, servient bears the burden.
What is an easement in gross?
ONLY ONE.
The easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land.
Ex - billboards, right to fish or swim in another’s pond
When are easements transferable?
Appurtenant –> passes automatically with the dominant tenement.
In Gross –> not transferable unless it is for commercial purposes.
How are easements created?
PING: Prescription, implication, necessity or grant
True or False: An easement may be acquired by satisfying the elements of adverse possession, thus resulting in an affirmative easement (by prescription)?
TRUE.
Elements of adverse possession = COAH
What is COAH?
The elements of adverse possession.
Continuous use for statutory period,
Open and notorious use,
Actual use,
Hostile use.
What is the appropriate statutory period of continuous use required for adverse possession in NY?
10 years.
How can an easement be terminated?
END CRAMP
Estoppel
Necessity
Destruction of the servient land
Condemnation Release Abandonment Merger Doctrine Prescription
How is an easement terminated by prescription?
Servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession.
How is an easement terminated by abandonment?
The easement holder must demonstrate by physical action the intent to never use the easement again.
Abandonment requires physical action by the easement holder.
What is the definition of a license?
A mere privilege to enter another’s land for a delineated purpose.
Licenses are not subject to SOF and are freely revocable unless estoppel applies.
What are classic examples of license cases??
Ticket cases (tickets are freely revocable).
Neighbors talking by fence (this is an oral easement which is freely revocable).
True or False: The profit entitles its holder to enter the servient land and take it from the soil or some substance of the soil?
True.
How is a covenant different from an easement?
Covenant is a PROMISE to do or not do something related to land. However, different from an easement bc it is not the grant fo a property interest, but rather a CONTRACTUAL LIMITATION or promise regarding land.
How do you know whether to construe the given promise as a covenant or as an equitable servitude?
On basis of remedy?
When P seeks $$ damages construe at law as a covenant.
When P seeks injunction construe in equity as an equitable servitude.
What is the procedure for determining when a covenant will run with the land?
FIRST, does the burden of A’s promise to B run from A to A1?
SECOND, does the benefit of A’s promise to B run from B to B1?
What are the elements necessary for the burden to run?
WITHN
Writing Intent Touch and concern the land Horizontal and vertical privity Notice
What is necessary for the benefit of A’s promise to B to run from B to B1?
WITV
Writing
Intent
Touch and Concern
Vertical Privity
