MBEProperty Flashcards
Vested Remainder Subject to Open
- includes kids in womb at time of closing
- rule of convenience closes class when any member able to take
Two circs in which remainder is contigent
- grantee unascertainable
- subject to unfulfilled condition precedent
CL: destroyed if not vested at time preceding estate terminated; modern law: revert to grantor + contingent remainderman has springing executory interest
Joint Tenancy: Creation
- Clear expression of right of survivorship
- 4 unities: possession, interest, time + title
Co-Tenants: Right of Possession
- No rent + no shared profits from use, except each entitled to share of natural resources + rent from 3d ps (minus op expenses)
- Contribution for taxes/mortgage, repairs if nec + notice
- No contribution for improvements, but credit at partition (and vv)
- Ouster = cause of action if rt interfered w/
Fair Housing Act
- for racial, only need disparate impact
- protects familial status, but exempts rsnbl zoning based on max occupancy
- exempt: (i) single-family housing if no broker + (ii) owner-occupied buildings w/ four or less units (boarding house) (but still no discriminatory ads for either)
Duties Landlord to Tenant
- Possession (minority: only legal)
- Repair (except damages caused by res T; commercial, duty can be on T in lease)
- Warranty of habitability: prop must be reasonably suited for res use; cn be waived; T must notify before w/holding rent
- Quiet enjoyment: L responsible for other T’s nuisance-like behavior + control common areas; constructive eviction if SINFUL
Limitations on Tenant’s Right to Assign/Sublet
- Even if lease prohibits, T may still do either, but L can terminate lease + recover damages
- If only upon L permission, L may only w/hold for commercially rsnbl ground; if waives rt to object for one, waives for all
Land Sales Contract + SOF
- writing; 2. signed by party to be charged; 3. contain all essential terms (parties, prop description, price)
Except: 1. part performance (payment, possession, substantial improvements); 2. detrimental reliance; 3. admission
Land Sales Contract: Marketable Title
Implied covenant in all land sales K; means title free from unreasonable risk of litigation (can be waived)
Land Sales Contract: Implied Warranty of Fitness
- Covers latent, material defects not reasonably discoverable thru inspection
- Cn be waived
- Includes warranty of workmanlike construction for new homes
Land Sales Contract: Equitable Conversion
- risk on B unless loss attributable to S
- S’s creditors cn reach property (but yes interest in sale proceeds); if S dies, proceeds to devisee of personal prop b/c prop treated as adeemed, but if anti-ademption statute, then to devisee of real property
- B’s real property interest passes in will + devisee gets specific performance
Acceptance of Deed
Grantee presumed to have accepted any beneficial conveyance; if accepts + changes mind even moment later, cn return/cancel w/out new deed being executed
Contents of Deed
Parties, words of transfer, description of property (must be rsnby definite, but extrinsic evidence admissible to clarify) + grantor’s sig
Equal-Dignities Rule + Exceptions
- When act performed by agent on behalf of principal must be in writing, agent’s authority must also be in writing
- Exceptions: corporate officer w/ authority due to office, person whose only act is to sign deed on behalf of principal, or detrimental reliance
Estoppel by Deed
Grantor who conveys interest to land before actually owning it estopped from later denying effectiveness of deed; transferred automatically to grantee *except* against a BFP
Restraints on Legal Interests in Real Property
- disabling restraint: prohibition on transfer by O; always void
- forfeiture restraint: forfeits property if O attempts to transfer interest; valid on life estates + future interests
- promissory restraint: promise by interest holder not to transfer; valid on life estate
Mortgage v. Deed of Trust
- Mortgage: conveys an interest only; requires ct order prior to foreclosure
- Deed of trust: title held by 3d p trustee, who has power to sell property upon default w/out court judgment
Installment Land Contract
S retains title until B makes final payment; traditionally could keep all payments + retake upon single missed payment
Easement by Implication
- once common ownership
- prior use continuous, apparent, + rsnbly necessary for dominant land’s use + enjoyment
Easement by Estoppel
Good faith, reasonable, detrimental reliance on license by servient estate holder
Ways to terminate easement: Mr. Capends
Merger; Release (SOF!); Condemnation; Abandonment (action + intent, not non-use); Prescription; Necessity ends; Estoppel (consider w/ abandonment); Destruction; Sale to BFP (written easements only)
Requirements for Real Covenants to Run w/ Land: WITHVN
Writing
Intent
Touch + Concern (affects as landowners, not as individuals)
Horizontal Privity (burden only)
Vertical Privity (burden = estate of same duration; benefit = same portion of property)
Notice (burden only + only if purchaser for value)
“Changed Circumstances” Defense to Enforcement of Equitable Servitude
Available if restriction on property no longer makes sense due to drastic changes in surrounding area since restriction first contemplated (often variance in zoning ordinances)
Considerations in determining whether chattel attached to real property = fixture
- importance of chattel to property
- whether specially designed for use on property
- amt of damage that removal would cause
Zoning + Pre-Existing Nonconforming Use
- Zoning ordinance must make provision for property w/ existing NCU
- Prospective projects if prop owner has vested right (permit + substantial progress toward achieving)
- May be time limited thru amortization clause
Zoning + Post-Ordinance Nonconformity–Special Exception
- exception recognized as possible in ordinance itself
- must maintain harmony w/ ordinance’s general purpose + intent
Water Rights: Prior-appropriation Doctrine
- Water rights defined by priority of beneficial use: first in time, first in right
- Rights unconnected to land + can be sold or transferred separately
Surface Water: Common Enemy Doctrine vs. Natural Flow
- Common enemy = landowner may make changes to property to combat flow of surface water
- Natural flow: no alterations (but modified to permit reasonable changes by balancing harm v. utility)
Equitable Mortgage
- Creditor lends O $ and parties understand prop to be collateral, but instead of executing note, O gives C deed
- parol evidence freely admissible
- BFP prevails; O’s only recourse proceed against C for fraud and recover proceeds
Zoning Variance: HUNN
hardship (undue)
unique
not resp for creating hardship
no substantial harm to general welfare
