MBE--Real Property(Outline) Flashcards
REAL PROPERTY OUTLINE
I) Estates in Land
II) Landlord and Tenant
III) Fixtures
IV) Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes
V) Adverse Possession
VI) Conveyancing
VII) Security Interests in Real Estate
VIII) Rights Incidental to Ownership of Land (Natural Rights)
IX) Cooperatives, Condominiums, and Zoning
REAL PROPERTY OUTLINE
I) Estates in Land A) Present possessory estates B) Future Interests C) Trusts D) Rule against Perpetuities E) Rule against restraint on alienation F) Concurrent Estates
II) Landlord and Tenant
A) Nature of the Leasehold
B) Leases
C) Tenant Duties and landlord Remedies
D) Landlord Duties and Tenant Remedies
E) Assignments and Subleases
F) Condemnation of Leaseholds
G) Tort Liability of Landlord and Tenant
III) Fixtures A) In General B) Chattels Incorporated into Structure C) Common Ownership cases D) Divided Ownership Cases E) Third-Party Cases
IV) Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes
A) In General
B) Easements
C) Profits
D) Covenants Running with the Land at Law (Real covenants)
E) Equitable Servitudes
F) Party Walls and Common Driveways
V) Adverse Possession
A) In General
B) Requirements
C) Disability
D) Adverse Possession and Future Interests
E) Effect on Covenants in True Owner’s Deed
F) Land that Cant be Adversely Possessed
VI) Conveyancing A) Land Sale K's B) Deeds--Form and Content C) Delivery and Acceptance D) Covenants for Title and Estoppel by Deed E) Recording F) Conveyancing by Will G) Crops (Emblements)
VII) Security Interests in Real Estate
A) Types of Security interests
B) Transfers by Mortgagee and Mortgagor
C) Defenses and Discharge of the Mortgage
D) Possession before Foreclosure
E) Foreclosure
F) Installment Land K’s
VIII) Rights Incidental to Ownership of Land (Natural Rights)
A) In General
B) Rights to Lateral and Subjacent Support of Land
C) Water Rights
D) Rights in Airspace
E) Right to Exclude–Remedies of Possessor
IX) Cooperatives, Condominiums, and Zoning
A) Cooperatives
B) Condominiums
C) Zoning
I) Estates in Land
A) Present possessory estates
1) fee simple absolute
largest estate recognized by law. It can be sold, divided, devised, or inherited and has an indefinite or potentially INFINITE duration. Fee simple is presumed in the absence of express contrary intent (words of inheritance are no longer necessary).
I) Estates in Land
A) Present possessory estates
2) defeasible fees:
are fee simple estates (i.e., of uncertain or potentially infinite duration) that can be terminated upon the happening of a stated event.
a) F/S D
b) F/S S/t/C/S
c) F/S S/t/E/I
a) Fee Simple Determinable (and Possibility of Reverter): terminates upon the happening of a stated event and automatically reverts to the grantor (created by durational language, such as “for so long as,” “while,” “during,” or “until.”). Can be conveyed, but grantee takes subject to the estate’s being terminated by the specified event. TIP: statements of motive/purpose do not create a determinable fee. To create a fee simple determinable, words LIMITING the duration of the estate must be used. Grants “for the purpose of” and “to be used for” are merely expressions of motive–NOT limitations.
Correlative future interest–PoR: When a grantor conveys fee simple determinable, he automatically retains a possibility of reverter. A possibility of reverter is transferable, descendible, and devisable.
b) Fee Simple Subject to Condition Subsequent (and Right of Entry): an estate in which the grantor reserves the right to terminate the estate upon happening of a stated event; i.e., the estate does not automatically terminate—the grantor must take some action. The estate is created by use of conditional words, such as “upon condition that,”“provided that,”“but if,” and “if it happens that.”
Correlative future interest–RoE: AKA: The right to terminate, reserved by the grantor, is called a right of entry; MUST be EXPRESSLY reserved [PoR automatic–RoE is NOT automatic]. All states agree RoE are descendible. TIP: A conveyance that contains both durational language AND a power of termination will likely be construed as creating a fee simple subject to a condition subsequent.
c) Fee Simple Subject to Executory Interest: terminates upon the happening of a stated event and then passes to a third party rather than reverting to the grantor or giving the grantor a right to terminate, the third party has an executory interest.
Examples:
1) “To A and his heirs for so long as liquor is not sold on the premises; in that event, to B.” B has an executory interest.
2) “Blackacre to XYZ Church, but if it is used for anything other than church purposes, then to B.” B has an executory interest.
I) Estates in Land
A) Present possessory estates
3) Fee Tail
The fee tail is an estate where inheritability is limited to lineal heirs. It is created by the words “to A and the heirs of his body.” Most jurisdictions have abolished the fee tail, and an attempt to create one results in a fee simple.
I) Estates in Land
A) Present possessory estates
4) Life Estate:
A life estate is one measured by the life or lives of one or more persons. It may be created by operation of law (e.g., dower) or by conveyance.
a) Conventional Life Estates b) Rights and duties of Life Tenant--Doctrine of Waste
a) Conventional Life Estates
1) For Life of Grantee: The usual life estate is measured by the life of the grantee (e.g., “to A for life”). This type of life estate may be implied from language such as “to B after the life of A.”
2) Life Estate Pur Autre Vie (Life of Another): A life estate “pur autre vie” is measured by a life other than the grantee’s (e.g., “to A for the life of B”). A life estate pur autre vie also results when the life tenant conveys his life estate to another (e.g., if A, the holder of a life estate, conveys his interest to B, B has a life estate for the life of A).
TIP: Although a life estate is usually indefeasible (i.e., it ends only when the life tenant dies), it is possible to create life estates that are defeasible in the same ways that fee estates can be defeasible.
A life estate can be determinable, subject to a condition subsequent, and subject to an executory interest (e.g., “to A for life so long as alcohol is not used on the premises” or “to A for life, but if A is divorced, to B”).
b) Rights and Duties of Life Tenant—Doctrine of Waste: A life tenant is entitled to any ordinary uses and profits of the land but CANNOT do anything that injures the interests of a remainderman or reversioner. A future interest holder may sue for damages or to enjoin such acts, and if she spends money to perform the life tenant’s obligations (see 2), infra), she is entitled to reimbursement.
1) Affirmative (Voluntary) Waste: Exploitation of natural resources (e.g., minerals) by a life tenant is generally limited to situations when: (i) necessary for repair or maintenance of the land; (ii) the land is suitable only for such use; or (iii) it is expressly or impliedly permitted by the grantor. 2) Permissive Waste: A life tenant is obligated to: (i) preserve the land and structures in a reasonable state of repair: (ii) pay interest on mortgages (not principal); (iii) pay ordinary taxes on the land; and (iv) pay special assessments for public improvements of short duration (improvements of long duration are apportioned between the life tenant and future interest holder). OTHERWISE, it is PERMISSIVE WASTE 3) Ameliorative Waste: is a change that benefits the property economically. A life tenant may alter or even demolish existing buildings if: (i) The market value of the future interests is not diminished; and either (ii) The remaindermen do not object; or (iii) A substantial and permanent change in the neighborhood conditions (e.g., change from residential to 90% industrial) has deprived the property in its current form of reasonable productivity or usefulness.
I) Estates in Land
B) Future Interests
A future interest gives its holder the right or possibility of future possession of an estate. It is a present, legally protected right in property.
1) Reversionary Interests–Future Interests in Transferor
- PoR VS. RoE
- Reversions
2) Remainders
- Indefeasibly Vested Remainder
- Vested Remainder Subject to Open
- Vested Remainder Subject to Total Divestment
- Contingent Remainder
a) subject to condition precedent
b) unborn/unascertained persons
c) destructibility of contingent remainders
3) Executory Interests
4) Transferability of Remainders and Executory Interests
5) Class Gifts
- When class closes–rule of convenience
- Survival
I) Estates in Land
B) Future Interests
1) Reversionary Interests–Future Interests in Transferor
- PoR VS. RoE
- Reversions
a. Possibilities of Reverter VS. Rights of Entry: These interests are discussed supra in connection with defeasible fees.
Correlative Present Interest:
PoR=F/S D
RoE= F/S S/t/C/S
Example:
PoR: “To A so long as alcohol not used on premises.”
RoE: “To A on condition that if alcohol used on premises, O shall have right to reenter and retake the premises.”
Rights of Grantor:
PoR: estate AUTOMATICALLY reverts to grantor upon occurrence of event.
RoE: estate doesnt revert automatically; GRANTOR MUST EXERCISE RIGHT of entry
Alienability:
PoR: Transferable, descendible, and devisable
RoE: Descendible and devisable
b. Reversions
A reversion is the estate left in a grantor who conveys less than she owns (e.g., 0 conveys “to A for life”; 0 has a reversion). It arises by operation of law; it does not have to be expressly reserved. A reversion is alienable, devisable, and inheritable. Its holder can sue for waste and for tortious damage to the reversionary interest.
Exam Tip: All reversionary interests are vested and, thus, not subject to the Rule Against Perpetuities.
I) Estates in Land
B) Future Interests
2) Remainders
- Indefeasibly Vested Remainder
- Vested Remainder Subject to Open
- Vested Remainder Subject to Total Divestment
- Contingent Remainder
a) subject to condition precedent
b) unborn/unascertained persons
c) destructibility of contingent remainders
2) Remainders: a future interest in a third person that can become possessory on the natural expiration of the preceding estate. It cannot divest a prior estate, and it cannot follow a time gap after the preceding estate. A remainder must be expressly created in the instrument creating the preceding possessory estate.
Examples:
1) 0 conveys “to A for life, then to B and his heirs”; B has a remainder.
2) 0 conveys “to A for life, then to B and his heirs one day after A’s death”; B does not have a remainder (because there is a gap).
Exam Tip: Because a remainder cannot “cut short” a preceding estate, it can never follow a fee simple estate, which is of potentially infinite duration Executory interests are the future interests that cut short preceding estates or follow a gap after them.
- Indefeasibly Vested Remainder: created in an existing and ascertained person, and not subject to a condition precedent. The remainderman has a right to immediate possession upon normal termination of the preceding estate. An indefeasibly vested remainder is a vested remainder that is not subject to divestment or diminution. - Vested Remainder Subject to Open: vested remainder created in a class of persons (e.g., “children”) that is certain to become possessory, but is subject to diminution—e.g., by the birth of additional persons who will share in the remainder as a class.
Example: 0 conveys “to A for life, then to the children of B.” A and B are living and B has one child, C. C has a vested remainder subject to open.
-Vested Remainder Subject to Total Divestment: vested remainder that is subject to a condition subsequent.
Example: 0 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.
- Contingent Remainder: Contingent remainders are those created in unborn or unascertained persons, or subject to a condition precedent.
a) subject to condition precedent: A condition is precedent if it must be satisfied before the remainderman has a right to possession.
Examples:
1) 0 conveys “to A for life, then to B and his heirs if B marries C.” B’s remainder is contingent because he must marry C before he can take possession.
2) 0 conveys “to A for life, then to B and his heirs if B marries C, otherwise to D and his heirs.” B and D have alternative contingent remainders.
b) unborn/unascertained persons: A remainder created in unborn or unascertained persons is contingent because until the remainderman is ascertained, no one is ready to take possession if the preceding estate ends.
Example: 0 conveys “to A for life, then to the children of B.” If B is childless at the time, the remainder is contingent.
c) destructibility of contingent remainders: At common law, a contingent remainder was destroyed if it failed to vest before or upon the termination of the preceding freehold estate.
Example: 0 conveys “to A for life, then to B if she reaches age 21.” If A dies before B reaches age 21, B’s remainder is destroyed.
I) Estates in Land
B) Future Interests
3) Executory Interests
Executory interests are future interests in third parties that either divest a transferee’s preceding freehold estate (“shifting interests”), or follow a gap in possession or cut short a grantor’s estate (“springing interests”).
Examples:
1) In a grant from 0 “to A and his heirs when A marries B,” A has a springing executory interest because it divests the grantor’s estate.
2) In a grant from 0 “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 because it divests a transferee’s preceding estate.
Rule Against Purpertuities
Valid interests
Valid Interests
“To A for life, then to A’s children for their lives; and upon the death of the last survivor, to B.” (B’s interest is vested.)
“To B for life, remainder to those of B’s siblings who reach age 21.” (B’s parents can be used as measuring lives.)
“To XYZ Orphanage for so long as it is used to house orphans; if it ceases to be so used, then to the American Red Cross.” (This falls within the charity-to-charity exception.)
“To A for life, and on his death to his wife, W, for life; upon W’s death, to A’s children then living.” (No unborn widow problem because the gift is to W, a life in being.)
“To A for life, then to B; but if at her death B is not survived by children, then to C.” (B is the measuring life.)
“To A, but if alcohol is served on the premises during Z’s lifetime or within 21 years of Z’s death, to B.” (B’s interest will vest, if at all, within a life in being plus 21 years.)
“Trust income to Polo Club. At the death of the survivor of A, B, C, D, and E (all babies born on this date at Obie Hospital), the trust will terminate and the corpus will be distributed to Z, his heirs, successors, or assigns.” (This is a “perpetuities saving clause.”)
“To A for life, then to A’s children for their lives, then to B if B is then living, and if B is not then living, to C’ (B is the measuring life. B’s and C’s interests will vest or fail within B’s lifetime.)
Rule Against Purpertuities
Void interests
Void Interests
“To A for life, then to A’s children for their lives; and upon the death of the last survivor, to A’s grandchildren.” (A may have a child after this interest is created, so she could have grandchildren beyond the perpetuities period.)
“To A for life, then to such of A’s children who attain age 25.” (Age contingency beyond age 21 in an open class.)
‘To Amnesty International for so long as the premises are used for Amnesty International purposes; when they cease to be so used, then to Jane Webb.” (This gift passes from a charity to a private person and so does not tall within the charity-to-charity exception.)
“To A for life, then to his widow for life, then to A’s surviving descendants.” (Unborn widow problem.)
“To A for life, then to A’s children for their lives, then to A’s grandchildren in fee.” A is 80 years old and has had a complete hysterectomy. (Fertile octogenarian problem.)
“To A, but if alcohol is ever served on the premises, then to B.” (Future interest following a defeasible fee.)
“The residue of my estate to my descendants who are living when my estate is distributed.” (Administrative contingency problem.)
“To B for life, then to such of B’s children who become lawyers.” (B may have a child born after the disposition who becomes a lawyer more than 21 years after B’s death.)
I) Estates in Land
F) Concurrent Estates
JOINT TENANCY
Def; Creation; Termination?
Joint Tenancy:
Definition:
Each tenant has an undivided interest in the whole estate, and the surviving co-tenant has a right to the whole estate (right of survivor- ship).
Creation:
“ToA and Bas joint tenants with the right of survivorship.” (Without survivorship language, it may be construed as a tenancy in common.)
Joint tenants must take:
(I) identical interests;
(ii) from the same instrument;
(iii) at the same time;
(iv) with an equal right to possess (the four unities).
Termination:
The right of survivorship may be severed, and the estate converted to a tenancy in common, by: a conveyance by one joint tenant, agreement of joint tenants, murder of one co-tenant by another, or simultaneous deaths of co-tenants. A joint tenancy can be terminated by partition (voluntary or involuntary).
I) Estates in Land
F) Concurrent Estates
TENANCY BY THE ENTIRETY
Def; Creation; Termination?
Tenancy by the Entirety:
Definition:
Husband and wife each has an undivided interest in the whole estate and a right of survivorship.
Creation:
“To H and W.” Some states presume a tenancy by the entirety in any joint conveyance to husband and wife where the four unities (above) are present.
Termination:
The right of survivorship may be severed by death, divorce, mutual agreement, or execution by a joint creditor. Tenancy by the entirety cannot be terminated by involuntary partition.
I) Estates in Land
F) Concurrent Estates
TENANCY IN COMMON
Def; Creation; Termination?
Tenancy in Common:
Definition:
Each tenant has a distinct, proportionate, undivided interest in the property. There is no right of survivorship.
Creation:
“To A and B” or, sometimes, “To A and B as joint tenants.” Only unity required is possession.
Termination:
May be terminated by partition.
