Prop Mod 1 + 2 Flashcards
Fee Simple - can pass how?
By:
- Will / intestate
- Gift
- Sale
Fee Simple - Created (words)
** Default Presumption **
Also - to his heirs, or O to A
NOT - by hopes, wishes or dreams
Fee Simple Determinable (words)
- Durational*
- So long as, while used as, during, Until no longer used
Fee Simple Subject to Condition Subsequent (words)
- Conditional Language*
- But if, then , provided, on the condition that
- -> Grantor must then Exercises a right to take possession
Possibility of Reverter - what happens
- Its an interest held by the GRANTOR following a Fee Simple Determinable
- -> Vests Automatically at the end of the Duration
Right of Entry / Power of Termination
- Its an interest held by the GRANTOR following a Fee Simple Subj. to Condition Subsequent
- -> NOT Automatic , MUST be Reclaimed
Fee Simple Subj. to Executory Interest
- Ends on the happening of an EVENT
- -> Goes to a 3rd Party / NOT The Grantor
(Anna has a Fee Simple and Ben has an executory interest)
Executory Interest
Cuts short the interest b/c something happened they didn’t want to happen
(used as a liquor store, etc)
Life Estate - Reversion
Goes back to the GRANTOR at death of life est. holder
Life Estate - Remainder
Goes on to a 3rd PARTY at the death of the life est. holder
Waste - 3 kinds
- Affirmative - purposefully caused
- Permissive - Neglect
- Ameliorative - Improvements
Vested Remainder
NEED BOTH (if not then = Contingent) - Grantee = Known / Alive \+ - NOT subj. to a Condition Precedent --> No conditions need to be satisfied prior to vesting
Contingent Remainder
Looks like Vested Remainder but fails one of the 2 elements
- Grantee = MUST fulfill a CONDITION to get it
- If Doesn’t Vest before becomes possessory - then goes BACK to GRANTOR
- Contingent remainder fails to vest
Vested Remainder Subj. to Open
Vested Remainder in a CLASS GIFT \+ Full Class = Unknown - 1 person must be Vested ~ if nobody then = Contingent - Closes when Class = Known
RAP Applies
CEO CPR
C = Contingent Remainder
E = Executory interest
O = Option Contract
C = Class Gifts P - Power of Appointment R - Restraint on alienation 1) Black Acre to A and his heirs so long as …..they never sell the prop (Life + 21 yrs)
Rule of Convenience
Closes Class w/o a closing date when anyone is entitled to immediate possession
Rule Shelly’s Case
Prevents reminder in Grantee’s heirs
- to Shelly for life then to her heirs
Shelly = Fee Simple Absol.
Heirs = Nothing
2 kinds Executory Interests
Executives are jerks bc they cut interests short for themselves
1) Springing = Divests the Grantor (usually 2 Parties)
- Springs off of the Grantor
- Ben to Anna after she is admitted to the Bar
- Ben - Springs off him to –> Anna when she is admitted
2) Shifting = Divests the Prior Grantee
(usually 3 Parties)
Oliver to Anna but if land used for commercial to Ben
Shifts from Anna to Ben
RAP - when not violation
If you find the Validating Life– bc they’re known
– almost always wrong answer
RAP - violation
Strike the violating interest
Oliver to Annas for life , then to Anna’s 1st child who reaches age 22
- strike + now = to Anna for life
RAP - class gifts - Void as to one
Void as to 1 then void as to all - even if vested - if one able to immediate possession then can close class and take it
RAP Exceptions
- Charity to another Charity
- Options to purchase interest in leasehold
- Option of first refusal in commercial
3 kinds of multiple owners of Land
Right to use / possess the whole (can contract out)
- Tenancy in Common
- Joint Tenancy
- Tenancy in the Entirety
Tenancy in Common
** Default**
Equal Rights
No Right of Survivorship
Joint Tenancy
4 Unities
Right of Survivorship
Must be clear intent and LANGAUGE
4 Unities Required: PITT
Possession - equal rights to possess the whole
Interest - Must be Equal Shares of same type
Time - Must receive at the same time
Title - Must receive on the same instrument of title
(if NOT all 4 then = something else ~ TinC)
Joint Tenancy - Severed
Any transfer severs it and becomes TinC
- Any lien terminates upon death so that not encumbered for survivors -
- Mortgage = Lien Theory - majority = Does NOT Destroy the JT
Tenancy by the Entirety
ONLY Married People
- right of survivorship
- Cannot alienate
w/o consent
Ouster
Co-tenant denies entry (puts locks on)
- must ask for entry , then get
Remedies: injunction or Damages
Rent , expenses, repairs, improvements
TinC
Rent, Expenses = divided in % of interest (can collect contribution)
Repairs, Improvement = no right to reimbursement (can get credit at partition)
Partition by Ct
Will divide unless physically impossible or unfair ~ forced sale
Discrimination - when and usually type of property
Sale, rental, financing, advertisement
- Multi - Family Dwelling
FHA 3 Exceptions
- w/o a Broker
- Owner occupied w/ 4 or less units
- Religious or Private Clubs
FHA - Protects from
refusing, requiring different, denying availability, different services - in rents , sale , etc.
- protects Disparate Treatment AND Impact
- MUST be Linked –
Leases - 4 types
- Tenancy for Years
- Periodic Tenancy
- Tenancy at Will
- Tenancy at Sufferance
- Tenancy for Years
- Created - by agreement for any ascertainable period of time (month, 6 months, year, 5 yrs)
- Longer than 1 Year = in writing + signed
- Terminates - Automatically ! Tennant can surrender or commit a material breach (not pay)
- Periodic Tenancy
- Repetitive and ongoing for time (month to month)
- Renews Automatically until NOTICE of termination
- 1 PERIODS NOTICE
- NOTICE = effective on last day of period ..next if in middle
- Created ~ Express or Implied
- Tenancy at Will
- Terminated at ANY TIME by either
- created: Express or Implication
- -> implication - if only Landlord given right to Terminate ~ Tenant can too
- -> BUT if only Tenant given right ..then NOT LL too
- Tenancy at Sufferance
Hold over tenant
- LL can either evict or re-rent to Tenant
- Created by actions of the tenant
- Terminates when Tenant leaves , eviction, re-rent
- -» If re-rent ~ then rent is same unless Prior to old expiration notified tenant
Duty to Pay Rent is suspended - 3 situations
- Premises are destroyed - not by tenant
- LL Evicts - full or part
- LL Materially Breached lease
- Implied Covenant of Quiet Enjoyment
- Implied Warranty of Habitability
Implied Covenant of Quiet Enjoyment (4 elements)
Substantially unsuitable for the intended purpose
+ Constructively Evicted
1) Unusable for intended purpose
2) Tenant notifies the LL
3) LL doesn’t correct
4) Tenant (MUST) vacate after reasonable amount of time
Implied Warranty of Habitability
Health + Safety
- can NOT be Waived
- Housing Code failure = Breach
- Residential ONLY
- When not habitable*
~ Refuse to Pay (Notify + give time to fix)
~ Remedy Defect and offset costs
~ Defend against Eviction
LL - Duty after Tenant leaves early
Duty to mitigate – attempt to re-rent to offset costs
LL Duty to deliver premises
Maj = Deliver physical possession (comes up in holdover tenant situations )
LL has to control and make safe the …
common areas + Nuisance tenants
Assignment vs. Sublease
Assignment = the whole remaining term Sublease = part of remaining term
Assignment - Rent collection from who?
EITHER
tenant or new tenant
Sublease - Rent collection from who?
ONLY the Tenant
Sublet or Sale - permission to do so
LL - does NOT need permission
Tenant - only needs permission if required in lease
- LL can only deny for commercially reasonable reason - Can deny for Financial Inability to pay or Criminal Record
> > After assignment by the LL to new LL - permission to change terms of lease
required b/c lease not up
Contingent remainders = die ….
w/ the holder
Who Pays (life tenants):
- Interest on a Mortgage
- Mortgage Principal
- Insurance on the Property
- Who is entitled to rent
- The Life Tenant
- The Remainder Man
- The Remainder Man
- Life Tenant
In Lien Theory state, does a mortgage by one joint tenant destroy the tenancy ?
NO - does NOT destroy the tenancy
Uniform Vendor and Purchaser’s Risk Act
vs.
Equitable conversion
- Uniform Purchaser = risk of loss of property between contract and sale is on SELLER
- Equitable Conversion = risk is on BUYER
Exoneration - assuming mortgage
- C gives mortgage to A / A sells prop to B / B “assumed the mortgage” by promising to repay it
- A became secondarily liable as surety.
- C must first proceed against either the property or B (who is primarily liable) before asserting its rights against A
Future Advance Mortgage
Line of Credit
- Optional future-advance mortgage - does NOT have duty to advance funds (banks discretion when + how)
- Obligatory future-advance mortgage. - Does have a duty to adv funds
Future Advances Mortgage - Priority
* Optional Mort and if the mortgagee has notice
that a subsequent lienor has acquired an interest
then the advance loses its priority
** Requires Actual Notice (majority) **
Nonconforming Use - Rules
- Use permitted by zoning statutes or ordinances to
continue, notwithstanding the fact that similar uses are not generally permitted
a. justified to promote fairness and to protect the investment-backed expectations of owners
2. May not be expanded or rebuilt after substantial destruction, but insubstantial changes are permitted
3. Owners may make reasonable alterations to repair their facilities
Mortgage modification - priority
Priority is UNAFFECTED by the modification agreement.
Constructive Adverse Possession
when a possessor takes possession of a portion of a disputed tract of land, his adverse possession is sufficient to give him title to the ENTIRE tract of land, so long as there is a significant relationship between the portion of the tract actually possessed and the entire tract.
- “tacking” = if the subsequent possessor is in privity of estate (intentional transfer of poss.) with the prior possessor
