property -1 Flashcards
List future possessory Interests / limitation
Retained by Grantor (reversion, possibility of reverter, right of entry)
Interests created in transferee (executory interests, remainders, class gifts)
Rule against perpetuities may apply
List present possessory interests in land
Indefeasible (fee simple absolute and life estate)
Defeasible (fee simple determinable, subject to condition subsequent and subject to executory interest)
Types of Tenancies
For years
Periodic
At will
At sufferance
Tenancy for Years
for fixed period of time
created expressly
ends automatically (no notice)
Periodic Tenancy
for a fixed period that continues for succeeding periods (e.g. month to month)
created expressly or when lease draws periodic rent payments
terminated on proper notice
Tenancy at will
no stated duration
terminated on proper notice
created expressly
Tenant at sufferance
holdover tenant remains in possession after tenancy expires
landlord may evict or create a periodic tenancy by accepting rent
Rights and Duties of Landlord and Tenant
Governed by lease and tort law
Tenant: pay rent, not commit waste
Landlord: repair, deliver habitable premises, not interfere w/ tenant’s possession
Generally both can assign interests and tenants may also sublease
Nonpossessory Interests in Land
Easement, Profit, Equitable Convent, Real Servitude
Easement
Affirmative - right to use someone else’s land
Negative - rich to prevent something on another’s land
Appurtenant - involved two tracts of land
In gross- one tract of land
Easement Appurtenant benefits / burdens / transfer
dominant parcel has benefit which runs to grantees
serviant parcel has burden which runs to grantees with notice
Creation of Easements (3 ways)
Express - SOF applies, oral grant creates a license, which is not an interest in land
Implied - by operation of law
-by use existing before land was divided
-by necessity for landlocked parcel
Prescription - acquired through adverse, open and notorious, and continuous use for statutory period
Termination of Easements
when easement and servant estate come under same owner
stated condition, release
abandon, estoppel, prescription, necessity, condemnation
Profits (land)
Right to enter another’s land to remove products of the soil
Real Covenants (property)
Run with the land
written promise to do or refrain from doing something on the land (usual remedy is money damages)
Requirements for burden to run to later grantees: intent, notice, horizontal privity, vertical privity, touch and concern
Requirements for benefit to run: intent, vertical privity, touch and concern
Equitable Servitudes
Covenants with equitable remedies (injunction, SP)
Implied from common scheme for development if notice exists
Requirement for burden to run: intent, notice, touch and concern
Requirement for benefit to run: intent, touch and concern
Equitable defenses apply (unclean hands, estoppel, acquiescence, changed neighborhood conditions)
Ways to Convey Land
deeds, wills, adverse possession, land sale contracts
Land Sale K
- Sof Exceptions
-timing
-warranty
SoF exception of buyer has partially performed through possession, payment or improvement
timing presumed not of essence
implied convent that seller will deliver free and clear title at closing
Deeds
Must evidence intent to transfer land
AND
adequately describe land
AND
parties
Effective on delivery (words/conduct showing Gor’s intent to immediately pass title) AND acceptance (often presumed)
Types of Deeds
General warranty deed - covenants against any title defects created by Gor or prior title holders
Special warranty deed - defects created by grantor
Quitclaim Deed - no convents, transfers whatever interest grantor has
Wills
Effective at testator’s death
If at T’s death, T no longer owns property, gift fails (adeemed)
If B dead at T’s death, gift fails (lapses) UNLESS anti lapse statute and B and T were related (then might bass to B’s descendants)
Adverse Possession
P must show (1) ACTUAL ENTRY giving rise to exclusive possession; that is (2) OPEN AND NOTORIOUS; (3) ADVERSE/HOSTILE (w/o owner permission); AND (4) CONTINUOUS throughout statutory period
SoL starts to run when only when owner not under disability (if under disability at time occupation begins)
Concurrent Property Interests
Tenants in Common - default co-tenancy created if nothing else specified; created if other type of concurrent interest is severed -NO RIGHT OF SURVIVORSHIP
Joint Tenants - expressly created, severed by tenant’s sale or suit for partition; RIGHT OF SURVIVORSHIP
Tenants by the entirety - Two SPOUSES with RIGHTS OF SURVIVORSHIP; created expressly or presumed in some states; severed by divorce
Competing Property Interests
Recording Acts protect BFP for value unless they have notice of prior conveyance
-actual notice
-inquiry notice -would know with reasonable inquiry
-record notice -search of real property records would have revealed
Types of recording acts
Notice Statutes (late BFP wins if earlier grant not recorded)
Race-Notice statutes (later BFP wins IFF she records before earlier BFP records)
Race Statutes (first to record wins, actual notice irrelevant)
Mortgage
Land is collateral for a debt
Mortgage - theories of title
Lien Theory - Mortgagee holds security interest only
Title Theory - Mortgagee holds title until mortgage satisfied
Intermediate Theory - Mortgagee holds title only after default
If Mortgagor transfers land
- Grantee may assume mortgage –> personally liable for loan
- Grantee who does not assume mortgage not personally liable for loan, but may lose land if original mortgagor defaults
Foreclosure
After default, property sold to satisfy debt
-if doesn’t sell for enough, Mee can sue Mor for balance
-Mor can redeem by paying amount due
- does not affect senior interests (junior interests terminated, but entitled to surplus after foreclosing mortgage satisfied)
Security Interests in Land
Mortgage, foreclosure, Deed of trust, Installment land K, Absolute Deed, Sale-leaseback
Deed of Trust
like mortgage, but 3d party trustee forecloses
Installment land contract
seller retains deed until buyer pays in full
Absolute deed
treated as equitable mortgage when given for a debt
sale-leaseback
court may determine this was a disguised mortgage
Fixtures of land
Define
Common vs. Divided ownership
Items so affixed to land they become part of the realty (constructive annexation = not attached physically but are still fixtures if so uniquely adapted to the real estate it makes no sense to separate them like keys to doors)
Common ownership: l/o bring chattel onto land, annexor’s objective intent determines if they are fixtures
Divided ownership: l/o does not bring chattel onto land, item’s owner can remove iff doesn’t leave unrepaired damage to premises
Zoning Violations - effect on title
existing zoning violations render title to land unmarketable
variance - permission to depart from zoning restriction
