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Real Property > Ownership > Flashcards

Ownership Flashcards

1
Q

429 - Fee simple estate

A

is a present possessory estate in land of infinite duration which is freely inhertiable and alienable (i.e., transferable). Tip: There is a presumption that an estate is given in fee simple unless there is a more limited estate.

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2
Q

430 - Fee simple determiniable / Defeasible fee

A

is a property interest which MAY LAST FOREVER or until a specified future event stated in the grant/devise which it creates occurs (e.g., an estate granted to a widow until she remarries). If the event occurs, the property automatically reverts back to the grantor. Tip: look for the words WHILE DURIng or UNTIL (durational language)

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3
Q

431 - possibility of reverter

A

is a future interest created in the grantor when they convey a lesser estate and do not dispose of the remaining interest. Tip: follows a FSD.

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4
Q

432 - Fee simple subject to a condition subsequent

A

is an estate in land with a condition which, after occuring, gives the grantor the right to retake the property if the grantor chooses to. The grantor’s right of reentry must be expressly carved out and must be exercised to take effect. Tip: look for words such as “UPON CONDITION THAT” or “PROVIDED THAT”

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5
Q

433 - Right of reentry / Power of Termination

A

is the Grantor’s reversionary interest that accompanies a FSS2CS.

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6
Q

434 - Fee tail

A

is an estate of land, through conveyance or will; which will only pass to lineal descendants identified in the grant. Tip: Most jxs have enacted statutes that convert fee tails into fee simples.

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7
Q

435 - Life Estate

A

is an ownership interest in property granted to a person for as long as the person lives. The estate reverts back to the grantor at the end of the measuring life unless otherwise stated. Tip: A life estate for the life of another is called a life estate pur autre vie.

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8
Q

436 - 3 types of waste is a life tenant responsible for?

A

PERMISSIVE: Mere neglect/omission to do what is necessary to prevent injury; VOLUNTARY: doing some act which causes the damages; AMELIORATIVE: making unauthorized, unnecessary improvements. Tip: Waste is conduct by the life tenant that permanetly impairs the value of the land or the future interst.

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9
Q

437 - VOLUNTARY WASTE

A

is any kind of changemade to the estate intentionally or negligently causes harm to the estate or depletes its resources. Tip: If the land can only be used for resource extraction, consuming those resources is NOT affirmative waste.

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10
Q

438 - PERMISSIVE/INVOLUNTARY WASTE

A

occurs when the land is allowed to fall into disrepair or the life tenant fails to take reasonable measures to protect the land. Tip: a LT is required to maintain the land and structures in reasonably good repair, pay taxes, and pay interest on mortgages.

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11
Q

439 - AMELIORATIVE WASTE

A

is the LT performing acts or making improvements that enhave the value of the property. Tip: although these are improvements to the property, they still constitute waste.

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12
Q

440 - what is the effect of the renunciation of a life estate

A

If a grantee renounces their life estate, the grantor or future interest holder has a possessory right of the estate.

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13
Q

441 - Reversion

A

is the remaining eestate that returns to the grantor/grantor’s heirs upon the termination of the estate tht had been gratned. Tip: look for words of conveyance lke “to A for life” because this would create a reversion in the grantor’s heirs after the LE ended.

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14
Q

442 - Remainder

A

is the interest/estate in land that will take effect when the immediately preceding estate terminates. Tip: For example - D gives Blackacre to A for life, and then to B and her heirs” - A receives a LE in Blackacre and B holds a remainder, which can become possessory when the prior estate naturally terminates.

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15
Q

443 - vested remainder

A

is a remainder to a person in existence who is certain to take immediate possession of the estate when the immediately preceding estate terminates. Tip: Even vested remainders can be defeasible, which means they can be passed down, sold, or given away.

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16
Q

444 - vested remainder subject to open

A

is a future interest (remainder) that is certain to vest BUT COULD BE devalued by new members of the class also taking their share, thereby reducing the share each individual class member receives. Tip: Class gifts can also be vested remainders that are not subejct to open.

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17
Q

445 - contigent remainder

A

is a future interest in land created in an unascertained person or one that is subject to a condition precedent (e.g., a remaineder to the children of D” when D has no childeren at the time of the grant.) When the coniditon occurs, the remainder will vest.

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18
Q

446 - Executory interest

A

is a future interest that will only vest after the happening of a specified condition. Tip: look for words like BUT IF, IF AND WHEN, AS LONG AS, THEN TO to identify a future interest.

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19
Q

447 - Are future intersts alienable

A

only future interests that are guaranteed to vest are alienable. Tip: contingent remainders are NOT alienable . They are devisable and descendible.

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20
Q

448 - class gift

A

is a gift to a group of persons described as a class eg “children of A” “brothers and sisters of A” “heirs of A” Tip: a class is either OPEN or CLOSED

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21
Q

449 - What is the effect of the RULE OF CONVENIENCE on a class gift?

A

Holds that a class closes based on the perspective that only people in existence at the time of the death of the testator are inteded to take under the will. Tip: A call for distribution of the class gift will usually close the class for rule of convenience purposes.

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22
Q

450 - Trust

A

is a property that is held by one person as a trustee for the benefit of another. The trustee holds legal title of the trust property and the beneficiary hold EQUITABLE title of the property. Tip: trusts may be oral or written.

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23
Q

451 - Charitable trust

A

is a trust created for the beneficiary of a charity with an indefinite number of beneficiaries or for the benefit of one identified third party. Tip: charitble trusts may be set up inter vivos or in a will.

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24
Q

452 - Doctrine of Cypres

A

allows the court to carry out a will or trust that, for some reason, is impossible to carry out as directed. *The court will follow the general intention of the testator as nearly as possible.

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25
Q

453 - RAP

A

states that no future or contigent interest is valid if it might not vest within 21 yesrs after a life in being at the time of its creation. (Prevents people from using deeds or wills to exert control over the ownership of property for time beyond the lives of peropl eliving at this time the instrument is created. Tip: A RAP analysis has multiple steps, including identifying whether the FI was created falls under the RAP.

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26
Q

454 - 4 interesss whre RAP does NOT apply

A

(1) vested remainders held in ine grantor (reversions, possibilities of reverter, amd right of reentry); (2) interests held in the grantor (reversions, possibilities of reverters, rigts of reentry); (3) charity-to-charity dispositions AND (4) options to purchase for current tenents. Tip: does apply to CLASS GIFTS

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27
Q

455 - measuring life

A

The measuring life is the remaining life of a person who is in existence at the time when the gift or conveyance vests. Tip: the measuring life must be a human life and there can be more than one measuring life.

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28
Q

456 - restraint on alienation

A

is any restriction written into a conveyance agreement, in which the grantee is barred from conveying their intrest in the real property. Tip: restrictions are often unenforceable.

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29
Q

457 - Forfeiture Restraint

A

is a clause in a conveyance agreement that states that the grantee will forfeit the property if they attempt to transfer their interest in it. Tip: FR is permissible for LE and FI

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30
Q

458 - promissory restraint

A

causes any attempt to transfer an interest to be a breach of covenant and will generally not be enforceable. Tip: permissible for LE.

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31
Q

459 - Concurrent estates/co-tenancy

A

interests in property that are owned by more than one person at a time

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32
Q

460 - Joint Tenancy

A

a concurrent estate created under a single deed or instrument, where two or more people have an undivided interest in the entire property, an equal right to shrae in the use and benefits of the property, and the right to survivorship. Tip: FOUR UNITIES are required to create a valid joint tenancy: unity of INTEREST; unity of POSSESSION; unity of TITLE; and unity of TIME.

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33
Q

461 - TIC

A

a concurrent estate created when two or more people have undivided ownership in real property, have the same right to the use and possession of the property, as well as the right to transfer the interest during lifetime or at death. Tip: Unlike a JT, a TIC does NOT have the right of surivorship.

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34
Q

462 - Tenancy by the entirety

A

a concurrent estate where two married individuals own property together, creating a right of suvivorship, so each spouse wil take full and complete ownership of the entire property upon the death of the other. Tip: its similar to JT but the JT do not need to be married for the right of survivorship to attach.

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35
Q

463 - Right of survivorship

A

is the right to property or sme other interest that a person possesses because they have outlived another. Tip: accompanies a JT and TIE

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36
Q

464 - 2 rights of TIC

A

(1) possession of entire estate; and (2) partition of the of the entire estate. Tip: If one tenant partitions out the other co-tenent, then the tenant who committed the ouster must pay the fair market rental value for the property for the duration of the ouster.

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37
Q

465 - 2 duties of TIC

A

(1) maintain the property through the payment of taxes or necessary repairs; AND (2) share any profits from the proprety equally

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38
Q

466 - 4 leasehold estates

A

(i) TENANCY FOR YEARS; (2) PERIODIC TENANCY; (3) TENANCY AT WILL; and (4) TENANCY AT SUFFERANCE

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39
Q

467 - TENANCY FOR YEARS

A

binds the parties to each other for a specified period of time, such as a month or a year. Tip: A tenancy for years, also known as a fixed-term lease, may be less than a year.

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40
Q

468 - PERIOD TENANCY

A

tenancy for a period of some fixed duration that continues for succeeding periods until either the LL or T gives notice of termination. Tip: Either the T or the LL may end a periodic tenancy.

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41
Q

469 - TENANCY AT WILL

A

tenancy of no stated duration that endures only so long as both landlord and tenant desire or until one or other dies. Either can terminate it any time.

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42
Q

470 - TENANT AT SUFFERANCE

A

is a tenant who was rightfully in possession, but wrongfully remains in possession after termination of the tenancy. Tip: Remaining in possession after a lease ends is called “holding over”

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43
Q

471 - lease

A

agreement between two parties whereby the lessor yields their right to possession of the property for a specified period of time to a lessee in return for consideration. Tip: lease is a type of K, so the SoF applies to tenancies or leases longer than one year.

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44
Q

472 - 3 duties of a T?

A

(1) pay rent; (2) refrain from committing waste; AND (3) possess and use the property lawfully.

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45
Q

473 - 2 options a LL may exercise if a T holds over?

A

(i) may evict the T; or (ii) continue to lease and sue the T for the rent that is due.

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46
Q

474 - 3 duties LL owes to RESIDENTIAL Ts

A

(1) deliver possession of the leased property to the T; (2) provide a habitable condition of the property; and (3) avoid unreasonably interefering with the T’s use of the property (quiet enjoyment).Tip: maj of jxs require LL to deliver actual possession of the property to T.

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47
Q

475 - quiet enjoyment

A

is the implied convenant that gives a T the right of quiet enjoyment of the premises, without interference by the LL. Tip: will be implied even if it is not expressly stated in the lease.

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48
Q

476 - implied warranty of habitability

A

requires LLs to keep their property habitable; even if the lease does not specifically require them to make repairs. Generally may not be waived.

49
Q

477 - Effect of a T’s assignment of lease

A

the T has transferred their entire interest in the leased property. Tip: a transfer of even one day less than the entire remaining lease will result in a sublease, not an assinment.

50
Q

478 - Sublease

A

partial transfer of an interest in a leasehold. Tip: the sublesee is NOT in privity of estate with the LL.

51
Q

479 - 5 exceptions to the general rule that a LL is not liable for physical injuries sustained on the leased property?

A

LL is liable for physical injuries sustained on leased property with regard to: (i) common areas [duty of reasonable care to MAINTAIN AND REPAIR COMMON AREAS]; (ii) latent defects [duty to disclose hidden defects of which the LL should reasonably know); (iii) assumption of repairs [LL liable for negligent repairs]; (iv) Public Use [if LL knows of defects in a space for public use and knows T will not repair, LL is liable for defects); and (iv) Short term leases in a furnished dwelling. tip; CLAPS

52
Q

480 - When will a T be liable for physical injuries sustained on the leased premises?

A

T is treated like a owner for purposes of tort liability during their time in possession of the premises.

53
Q

968 - Security desposit

A

a payment from the T to the LL held until the end of the lease term to cover any actual losses, such as unpaid rent, phsyical damage, or cleaning.

54
Q

969 - LL’s 2 duties regarding security desposits

A

(1) hold the deposit in escrow; AND (2) at the end of the lease, retain only the funds necessary to repair actual damage to the premises. Tip: In some Jxs, the tenant must be paid any interest accrued on a security deposit.

55
Q

970 - 2 reasons a LL may spend a security desposit

A

(1) as a remedy for a T’s failure to pay rent; and/or (2) to repair damage to the premises beyond normal wear and tear.

56
Q

971 - Situs

A

Situs refers to the state where the real property is located

57
Q

972 - In disputes over land, which law typically governs?

A

the state where the land is located (situs)

58
Q

973 - how does a ct determine which law to apply to adjudicate a dispute over land during divorce proceedings?

A

CP or other marital rights in land are determined by reference to the law of the situs of the land.

59
Q

974 - in a divorce procceding, which law applies to a dispute over land acquired by the spouse during the marriage?

A

the marital property rights in such land are usually determined by referencing the law of the spouses’ domicile at the time the property was purchased. Tip: this applies even when land was acquired in a community property state.

60
Q

975 - Which laws apply to mortgage and foreclosure proceedigngs?

A

are deemed to be so closely connected to the land that they are construed according to the law of the situs. Tip: this applies even though mortgages and foreclosures involve elements of K-law.

61
Q

1189 - When doesa life estate terminate?

A

upon the death of the grantee or upon the death of another if the life estate is given for the life of anohter.

62
Q

1190 - life estate given pur autre vie

A

is an estate measured by the life of someone other than the owner of the life estate. Tip: expires at the end of the life specified by the devise.

63
Q

1191 - May a life estate be created in more than one person?

A

Yes, a life estate may be created in several persons, known as a class gift.

64
Q

1192 - May a life estate be defeasible?

A

Yes - a life estate may be created so as to be determinable, subject to condition subsequent, or subject to an executory limitation. Tip: this is similar to an estate given in fee simple.

65
Q

1193 - are life estates freely alienable?

A

ordinarily free to transfer, lease, encumber, or ortherwise alienate the life estate. Tip: the transferee gets no more than the life tenant had - an estate that ends at the expiration of the measuring life.

66
Q

1194 - Heir

A

is a person who inherits the RP of an intestate decedent under a state’s statute of intestate succession. Tip: intestacy is dyring without a will.

67
Q

1195 - Issue in the context of property interests

A

means descendants of a certain person.

68
Q

1196 - Escheating effect

A

If a fee simple owner dies without a will and without heirs, the fee simple escheats (ie is auto granted ) to the state

69
Q

1197 - Devisee

A

If a decedent leaves a will, the people who are to receive land are called devisees.

70
Q

1198 - Defeasible fee

A

is a fee simple conveyed such that, upon the happening of an event, the owner in possession may lose the property. Tip: Defeasible fees are most commonly encountered in deeds restricting the use of land.

71
Q

1199 - what is the key difference between a FSS2CP and FSS2CS

A

P > creates an interest that will not take effect UNTIL a certain condition occurs; S > terminates IF the grantor choooses it to terminate when the condition occurs. Tip: Compare with a fee simple DETERMINABLE which creates an interest that lasts only until a certain event happens, and automatically terminates after the event.

72
Q

1202 - 3 duties of a LT

A

(1) not committing waste; (2) payment of all current operating expenses of the property; (3) payment of the mortgage.

73
Q

1203 - Rule in Shelley’s Case

A

provides that a conveyance that attempts to give a person a LE, with a remainder to that person’s heirs, will instead give both the LE and the remainder to the person, thus giving that person the land in FSA (full ownership without restriction).

74
Q

1204 - Doctrine of Worthier Title

A

provides a presumption that when a grantor conveys a future interest to the grantor’s own heirs, the grantor actually intended to keep the interest in himself.

75
Q

1205 - Will a restraint on the usage off the property be upheld?

A

Yes, IF the usage restraint arises when transferring the property. Tip: However, restraints on alientation are usually void.

76
Q

1206 - 3 types of concurrent ownership

A

JT; TIC; and TIE

77
Q

1207 - severance in the context of JT

A

Severance is the process by which a JT is destroyed, usualy creating a TIC as result.

78
Q

1208 - May TIC have unequal shares in the property they own together?

A

Yes - unlike JT. However, there is a rebuttable presumption that equal shares were intended to be given.

79
Q

1209 - constructive eviction

A

occurs when a LL does not physically or legally evict a T, but takes actions that interfere with the T’s use and enjoyment of the premises so signficantly that the premise is untenantable. Tip: Constructive eviction may occur as the result of the violation of quiet enjoyment.

80
Q

1210 - effect of a sublesse on privity between the sub’ee and LL?

A

A sublese will NOT establish privity of K between the sublessee and the LL, so the LL may sue the original lessee for unpaid rent.

81
Q

1211 - Why is privity important?

A

Privity of contract exists when two parties are in a contract together, which can serve as the basis for a future lawsuit (i.e., a LL suing a lessee for unpaid rent).

82
Q

1212 - after assigning a lease to another person, may a lessee be sued for unpaid rent by the LL?

A

Yes - may still be sued by the LL for unpaid rent because the original lessee is still in privity of K with the LL. Tip: In order to not be sued, the original lessee must obtain a release and novation from the LL from privity of K liability.

83
Q

1257 - Reversionary interest

A

is the interest a person has in a property when a preceding estate ceases to exist. It means property will revert back to the original owner upon the happening of a certain event.

84
Q

1906 - effect of a unilateral transfer of ownership by one JT?

A

SEVERS the JT. After severance, the tenants will hold the property as TIC.

85
Q

1907 - May a JT be devised by will?

A

No because the interest automatically passes at death to the surviving T through the right of survivorship.

86
Q

1908 - Does a lease sever a JT?

A

cts are split. Under CL, when one JT leases teir interest it severs. Other jxs, hold that a lease does not sever.

87
Q

1900 - Does a mortgage sever a JT?

A

Depends on whehter jx is a lien or title theory state - Under the majority lien theory view, the mortgage is treated as a lien and does not terminate the JT. In minority title theory, the mortgagee is granted title to the property until the mortgage is paid, so this severs one of the four unities and creates a TIC.

88
Q

1910 - Under the statutory presumption, a conveyance to two or more persons creates what type of tenancy?

A

TIC - Under modern law, JT are disfavored and there must be a clear expression of intent to create a right of survivorship to create a joint tenancy.

89
Q

1911 - How may a Tenancy by the entirety be severed?

A

severed by death, divorce, mutual agreement, or execution by a joint creditor.

90
Q

1912 - JT creation

A

requires the four unities of time, title, interest, and possession. Modernly, to create a JT there must be intent and a clear expression of survivorship language.

91
Q

1913 - difference between an assignment and a sublease?

A

an assignment is the transfer of the entire interest remaining on the term. sublease is a transfer of anything less than the entire interest.

92
Q

1914 - elements of constructive eviction

A

T must prove: (1) LL breached a duty; (2) breach substantially and materially deprived the T of the use and enjoyment of the premises; (3) the T gave the LL adequate NOTICE and reasomable opportunity to REPAIR; AND (4) aftre such reasonable time, the T VACATED the premises.

93
Q

1915 - to what extent does a LL have a duty to make repairs in residential leases and commercial leases?

A

Res: there is an implied duty under the warranty of habitability to make repairs if the premise would be uninhabitable otherwise; Comm: LL is only obliged to make repairs to common areas, fix structural defects, or make repairs mandated by publi authorities.

94
Q

1916 - Constructive eviction is a defense to what type of action brought by a LL against a T?

A

defense to an action brought by a LL against a T for unpaid rent.

95
Q

1917 - When does SURRENDER occur?

A

when the T gives up their interest in the leasehold estate in writing (where the unexpired term is more than one year), with no intent to return, and defaults on rent. Tip: Retention of keys by a LL alone does not constitue acceptance of surrender. Such act must be coupled with other evidence showing that the LL accepted the surrender.

96
Q

1918 - what MAY a LL do if T unjustifiably abadons the property?

A

(1) do nothing and sue for damages; OR (2) repossess the property.

97
Q

1919 - is a lease freely assignable?

A

absent an express prohibition in the lease, a T may transfer their interest.

98
Q

1920 - effect of the LL accepting surrender of the property

A

the abandoning T is free from rent liability accuring after abadonment

99
Q

1921 - can LL withhold consent to assignment?

A

Yes unless it violates public policy. There is a minority trend that a LL may not unreasonably withhold consent solely based on a capricious reason such as personal taste, convenience or sensibilities.

100
Q

1922 - After a sublease, is the sublessee in privity of estate with the LL?

A

No - not presonally liable to the LL for rent.

101
Q

1923 - LL if they refust to accept a T’s surrender?

A

may sue the T for damages consisting of unpaid rent as well as the difference between future rent and the fair market or re-let rental value.

102
Q

1924 - after sublease, is the sublessee or subor liable to the LL for rent on the lease?

A

Sublessor remains in privity of contract with the LL and is liable to the LL for rent.

103
Q

1925 - LL’s duty to mitigate damages

A

Maj view: a LL has a duty to make reasonable efforts to mitigate damages. Trad: the LL had no duty to but the LL was limited to sue only for recovery of rent due at the time of the suit, not rent in the future.

104
Q

1926 - When does a T4Y terminate?

A

T4Y is a for a fixed term, and auto terminates on the specified end date.

105
Q

1927 - what warranty is implied in every lease?

A

Quiet enjoyment. This covenant warrants that neither the LL nor someone with superior title will interfere with the T’s possession and quiet enjoyment of the premise.

106
Q

1928 - when does a periodic tenancy terminate?

A

autom continues from one period to the next. Written notice equal to one full period in advance, is required to terminate the lease, except if lease is one year or longer, then only 6 months is required.

107
Q

1929 - what type of leases does the implied warranty of habitability only apply to?

A

ONLY to RESIDENTIAL LEASES

108
Q

1930 - when does a tenancy-at will terminate?

A

Until either party terminates it

109
Q

1931 - What are the five categories of future interests?

A

(1) possibility of reverter; (2) right of reentry; (3) reversion; (4) vested and contingent remainders; AND (5) shifting and sprinign executory interests.

110
Q

1932 - what do cts favor finding where it is unclear whether a FSD or FSS2CS was intended?

A

FSS2CS - because the right of reentry gives the holder options; whereas a FSD and its possibility of reverter create an automatic forfeiture of possession and title.

111
Q

1933 - what type of present interest is coupled with a possibility of reverter future interest?

A

FSD

112
Q

1934 - what type of present interest is coupled with the right of reentry

A

FSS2CD

113
Q

1935 - Does each co-tenant have the right to seek partition of the property?

A

JT and TIC may seek partition

114
Q

1936 - what is FSS to an executory interest

A

an estate in land that is created in favor of a third person on the happening of a named future event. Tip: look for words like “BUT IF” “IF and WHEN” “AS LONG AS” “THEN TO” to id the future interest

115
Q

1937 - “Wait and see” or “Second look doctrine” for the RAP

A

Under the reform effort, the validity of any suspect future interest is determined on the basis of the facts existing at the end of the life estate rather than at the creation of the interest.

116
Q

1938 - when is the interest devised in a will created?

A

from the date of the testator’s death

117
Q

1939 - when faced with a RAP question, what steps

A

1) classify the future interest to see if RAP applies; 2) identify the measuring life; 3) identify when the interest must vest or fail; AND 4) analyze whether the interest will vest or fail within 21 years of the life in being.

118
Q

1940 - RAP only applies to what types of interests?

A

CONTINGENT REMAINDERs, EXECUTORY INTERESTS, CLASS GIFTS (even if vested remainder); OPTIONS AND ROFOS; and POWERS OF APPOINTMENT

Real Property (1 decks)

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