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Property Flashcards

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1
Q

Rule Against Perpetuities

A

An interest is void unless it must vest, if at all, not more than 21 years after some life in being at the creation of the interest
Ask- will the future interest vest or fail within 21 years after everyone then alive dies?
If there is any chance that it could happen later – > void
Kill everyone and wait 21 years

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2
Q

L/T An assignment is

A

A transfer of an entire leasehold balance

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3
Q

L/T A sublease is

A

A transfer of less than the entire leasehold balance

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4
Q

Easement appurtenant

A

(requires two parcels of land)

  1. Dominant parcel is benefitted by the easement
  2. Servient parcel is the one burdened by the easement
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5
Q

Merger

A

Unity of ownership (terminates an easement)

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6
Q

Equitable conversion

A

After execution of a real estate contract, buyer is equitable owner of the land and seller is equitable owner of the cash

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7
Q

Bona fide purchaser requirements

A
  1. pays value
  2. good faith
  3. without notice
    Record interests to prevent BFPs
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8
Q

Recording statutes – two main types

A
  1. notice: Last BFP always wins

2. Race-notice: first BFP to record wins (look for the word “first’ in the statute)

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9
Q

Foreclosure has ______ effect on senior interests

A

NO

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10
Q

Easement

A

An interest in land
Nonpossessory interest in the use of another’s land
Grant of an easement for more than 1 year must comply with the SoF

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11
Q

License

A

NOT an interest in land
Revocable personal privilege to enter another’s land without liability for trespass
A license results when the grant of an easement violates the SoF
Personal to the licensee and not alienable

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12
Q

Creation of Easements by Prescriptions

A 
Analogous to adverse possession (but AP requires exclusive possession, here shared use is allowed)
Use must be
-open and notorious
-adverse
-continuous and uninterrupted
-lasting for the statutory period
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13
Q

Foreclosure effect on junior interests

A

Terminates all junior interests that have been joined in the foreclosure action

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14
Q

Joint tenancy definition

A

Two or more own with the right of survivorship

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15
Q

Tenancy by the entirety definition

A

A protected marital interest between spouses with the right of survivorship
“Can’t touch this”

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16
Q

Tenancy in common definition

A

Two or more own without the right of survivorship

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17
Q

Three forms of concurrent ownership

A
  • joint tenancy
  • tenancy by the entirety
  • tenancy in common
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18
Q

Joint tenancy characteristics

A

Right of survivorship (deceased JTs share automatically goes to surviving JT)
Alienable inter vivos
NOT devisable
NOT descendible

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19
Q

How to create a joint tenancy

A 
Four unities T-TIP
T: at the same time
T: by the same title (same deed, will, or other document of title)
I: identical, equal interests AND
P: with right to possess the whole
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20
Q

Ways to sever joint tenancy

A
  1. Sale: JT sells/transfers interest during lifetime, even without others knowledge/consent
    (disrupts the four unities, so the buyer is a TIC, remaining JTs are still JTs)
  2. Partition
    -voluntary or judicial (in kind (physical division) or forced sale (division of proceeds))
  3. Mortgage (in a minority of states)
    -majority: lien theory - no severance
    -minority: title theory - severance
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21
Q

Can creditors of only one spouse come after a TbE for satisfaction of the debt?

A

No

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22
Q

Are unilateral transfers or encumbrances of a TbE valid?

A

No

These are a nullity, unenforceable

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23
Q

Severance of a TbE

A
  • divorce (becomes a TIC)
  • death
  • execution of lien
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24
Q

Tenancy in common characteristics

A

Co-tenant owns individual share and right to possess whole

Devisable, Descendible, Alienable (NO survivorship rights)

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25
Q

Rights and duties of co-tenants

A
  • possession (no ouster)
  • rents and profits
  • -none from co-tenant in exclusive possession (unless there has been an ouster)
  • -fair share if leased to third party
  • no adverse possession unless ouster (hostility element is missing)
  • carrying costs (each pays fair share)
  • repairs (contribution for reasonable, necessary repairs with notice)
  • unilateral improvements (no contribution, but credit at partition (or debit if there is a diminution in value))
  • must not commit waste
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26
Q

Three types of waste

A
  1. voluntary (willful destruction)
  2. permissive (neglect)
  3. ameliorative (unilateral change increasing value)
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27
Q

a joint tenant or tenant in common has a right to bring an action for partition T/F

A

TRUE

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28
Q

Judicial partition- what kind is preferred?

A

Partition in kind

Forced sale allowed if fair physical division not possible

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29
Q

Temporary restraints on right to partition are tolerable, as long as they are

A

reasonable in nature and duration

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30
Q

four leasehold/nonfreehold estates

A
  1. tenancy for years
  2. periodic tenancy
  3. tenancy at will
  4. tenancy at sufferance
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31
Q

Tenancy for years characteristics

A
  • known, fixed period of time
  • termination automatic on end date
  • no notice needed to terminate
  • writing typically needed if greater than one year (SoF)
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32
Q

Periodic tenancy characteristics

A

-continues for successive intervals until properly terminated

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33
Q

Creation of a periodic tenancy

A
  1. express (“L to T from month to month”)
  2. by implication
    - no mention of duration, but rent at set intervals
    - oral term of years violating SoF
    - holdover tenant after lease ends
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34
Q

What happens when an attempted oral tenancy for years is more than one year, and thus violates SoF?

A

An implied periodic tenancy is created (period = rent interval)

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35
Q

Termination of a periodic tenancy

A

Notice, usually written
Common law: at least equal to length of period (except for year-to-year: 6 months at common law or 1 month under the restatement) ONE MONTH IS THE PREFERRED APPROACH
-unless otherwise specified in lease

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36
Q

Tenancy at will characteristics

A
  • no fixed duration
  • terminable at will of either party at any time (“to T for as long as L or T desires”)
  • most states require notice and a reasonable time to quit
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37
Q

Tenancy at sufferance characteristics

A
  • T wrongfully holds over past lease expiration’
  • L proceeds to recover rent
  • terminates when L moves to evict or holds T to new tenancy
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38
Q

Tenant’s duty to repair if lease silent includes:

A
  • maintain premises
  • make routine repairs
  • not ordinary wear and tear repairs
  • don’t commit waste
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39
Q

Tenant’s duty to repair when express covenant in lease

A
  • maintain in good/repair condition

- T may terminate lease if premises destroyed w/o T’s fault

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40
Q

Options if tenant breaches, but is still in possession of the premises

A
  • evict or continue relationship and sue for rent

- L must not engage in self-help

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41
Q

Options if tenant breaches, but is out of possession

A

SIR
Surrender: end lease
Ignore: do nothing and hold T liable for rent
Re-let: new lease and hold T liable for deficiency
(under the majority rule, L must at least try R (mitigation))

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42
Q

Landlord’s duties

A
  • duty to place T in actual, physical possession

- implied covenant of quiet enjoyment

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43
Q

Implied covenant of quiet enjoyment definition

A

T has right to quiet use and enjoyment without interference from L
Applies in both residential and commercial leases

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44
Q

Ways to breach implied covenant of quiet enjoyment

A 
Wrongful eviction (exclusion from whole or part of premises without cause)
Constructive eviction (L’s breach renders premises unsuitable for occupancy)
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45
Q

Do both wrongful eviction and partial eviction relieve tenant of duty to pay rent?

A

yes

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46
Q

Elements of constructive eviction

A

SING
Substantial Interference (chronic/permanent problem due to L’s actions or failures)
Notice (T must notify L)
Goodbye (T must vacate)

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47
Q

Landlord’s duties related to other tenants

A
  • abate nuisances on site

- control common areas

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48
Q

Implied warranty of habitability characteristics

A

Residential ONLY
Premises must be fit for basic human habitation
Standard: case law and housing code
Nonwaivable

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49
Q

Tenant’s options for breach of implied warranty of habitability

A 
MR3
Move out/terminate lease (NOT required)
Repair and deduct
Reduce/withhold rent
Remain and seek damages
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50
Q

Retaliatory eviction

A

L can’t terminate lease/penalize T in retaliation for T’s exercise of legal rights

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51
Q

Civil rights act bars

A

Racial or ethnic discrimination in the sale or rental of all property

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52
Q

Fair housing act

A

Bars housing discrimination on the basis of race, color, religion, sex, disability, familial status, national origin
Must allow for reasonable accommodations for tenants with disabilities (tenant provides at won expense)

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53
Q

FHA exemptions

A
  • owner-occupied buildings with 4 or fewer units

- single family homes if owner has no more than 3

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54
Q

Prohibited actions under FHA

A
  • refusing to negotiate, rent, or sell housing or give mortgage
  • providing different terms for sale/rental
  • falsely representing dwelling unavailable
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55
Q

Assignment of a lease definition

A

Transfer of entire or remaining term of lease

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56
Q

Sublease definition

A

Transfer or part of the remaining term of lease

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57
Q

Assignment of lease – who has privity with who after an assignment?

A

Assignee T in privity of estate w/ L
-liable on covenants that run with land
Original T in privity of contract (NOT estate) w? L
-liable for original lease obligations

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58
Q

Can you have privity of estate if you have no possession? (assignments)

A

No

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59
Q

(assignments) definition of covenants that run with the land for privity of estate

A

A covenant runs with the land if the original parties to the lease so intend and if the covenant “touches and concerns” the land (that is, benefits the landlord and burdens the tenant (or vice versa) with respect to their interests in the property)

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60
Q

If lease between L and T1 is reassigned to T2 and then T2 assigns to T3, and the property is damaged by T3, who can L sue?

A

T1 (privity of contract) and T3 (privity of estate)

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61
Q

Sublease arises when

A

T1 transfers LESS than her entire interest to T2

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62
Q

Sublease characteristics

A

T2 has NO privity of estate or contract with L (T1 and T2 are responsible to each other)
Relationship between L and T1 remains intact

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63
Q

Caveat Lessee definition and exceptions

A

L has no duty to make premises safe, so no tort liability
Exceptions:
CLAPS
Common areas
Latent defects (L must warn of hidden defects, no duty to repair)
Assumption of repairs (L liable if negligent)
Public use rule (short lease, significant defect)
Short-term lease of furnished dwelling

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64
Q

Easement definition

A

Grant of a nonpossessory property interest entitling the holder to use/enjoyment of another’s land

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65
Q

Affirmative easement definition

A

Right to go on to and do something on another’s land

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66
Q

Negative easement definition

A

Right to prevent landowner from doing something
LASS (light, air, support, stream water from an artificial flow)
Minority of states also allow for a scenic view

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67
Q

Negative easements can only be created

A

Expressly, by writing signed by the grantor

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68
Q

Easement appurtenant

A

Benefits holder in use/enjoyment of own land
Two parcels:
-dominant tenement: derives benefit
-servient tenement: bears burden

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69
Q

Easement in gross

A

Only one parcel is needed
An easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land
There is a servient tenement burdened, but no dominant tenement deriving benefit
Ex: right to place a billboard on another’s land, right to swim in another’s pond

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70
Q

Appurtenant easement transfers ___ with transfer of the dominant tenement, whether or not it is mentioned in the conveyance

A

Automatically

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71
Q

An easement in gross is not transferable unless it is for

A

Commercial purposes

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72
Q

Basic methods for creating an affirmative easement

A

PING
Prescription
Implication (pre-existing use/quasi-easement)
Necessity
Grant (signed writing (unless outside SoF))

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73
Q

Requirements for easement implied from pre-existing use

A
  • previous uses on the servient tenement was apparent and continuous
  • parties expected that the use would survive division bc reasonably necessary to dominant tenement’s use and enjoyment
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74
Q

Requirements for creation of easement by prescription

A 
COAH
Continuous
Open and Notorious
Actual
Hostile
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75
Q

Scope of an easement is set by

A

The terms of the grant or the conditions that created it

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76
Q

8 ways to terminate an easement

A

END CRAMP
Estoppel (servient owner materially changes positions in reliance)
Necessity (when need ends unless in writing)
Destruction (of servient land)
Condemnation (of servient land)
Release (by holder to servient owner)
Abandonment (physical action) (NOT mere nonuse)
Merger (easement and servient land held by same person)
Prescription (by servient owner)

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77
Q

License definition

A

Mere privilege to enter another’s and for narrow/delineated purpose

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78
Q

Which is considered an interest in land: a license or an easement?

A

Easement

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79
Q

Creation of a license

A

No writing required (not subject to SoF)

Freely revocable at will of licensor

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80
Q

A failed attempt to create an easement results in a

A

License

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81
Q

When does estoppel bar revocation of a license?

A

Only when the licensee has invested substantial money or labor in reasonable reliance on the license’s continuation (becomes an easement by estoppel)

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82
Q

Profit definition

A

Entitles holder to enter servient land and take some resource
All easement rules apply to profits
Can also be extinguished by surcharge (misuse that overly and wrongfully burdens the servient estate)

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83
Q

Negative/restrictive covenant definition

A

Refrain from doing something (“I promise not to build for commercial purposes)

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84
Q

Affirmative covenant definition

A

do something related to land (“I promise to maintain our shared fence”)

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85
Q

Covenant v. equitable servitude – how to tell?

A

Money damages: covenant

Injunction: equitable servitude

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86
Q

Covenants: one tract is ___ by the promise and the other is ____

A

Burdened, benefitted

87
Q

Requirements for the burden of a covenant to run with the land

A 
WITHN
Writing
Intent
Touch and concern
Horizontal and vertical privity
Notice
88
Q

Horizontal privity

A

Nexus between original promising parties (succession of estate)
(often not found)

89
Q

Vertical privity

A

Nexus between successor and original covenanting party (non-hostile)

90
Q

Requirements for the benefit of a covenant to run with the land

A 
WITV
Writing
Intent
Touch and Concern
Vertical privity
91
Q

Equitable servitude

A

Promise that equity will enforce against successors of burdened land (regardless whether it runs with the land at law)
Remedy: injunctive relief

92
Q

Requirements for creation of an equitable servitude

A 
WITNES
Writing
Intent
Touch and concern
Notice
=Equitable Servitude
Does NOT require privity
93
Q

Implied equitable servitude

A

Exception to the general requirement that the original promise be in writing
AKA reciprocal negative servitude

94
Q

Elements of common scheme doctrine for court to imply equitable servitude

A
  • scheme of development (including D’s lot) when sales began

- D had notice of promise when they took

95
Q

Forms of notice for equitable servitude

A
  • actual (literal knowledge)
  • inquiry (lay of the land)
  • record (public docs)
96
Q

Equitable defenses to enforcement of equitable servitude

A
  • neighborhood conditions have changed
  • unclean hands
  • acquiesced
  • estoppel
  • laches
97
Q

Elements of adverse possession

A 
COAH
Continuous
Open and notorious
Actual and exclusive
Hostile 
(all for a statutorily prescribed time)
98
Q

(adverse possession) Hostility is defeated by

A

Permission

99
Q

One adverse possessor my tack onto their time with the land their predecessor’s time if there is _____ between the possessors

A

Privity

broad construction, any non-hostile nexus

100
Q

Adverse possession: ___ defeats privity so that tacking is not allowed

A

Ouster

101
Q

Adverse possession: SoL won’t run against a true owner afflicted by a disability ____ of the adverse possession

A

At the inception

102
Q

Conveyancing: two-step process

A
  1. contract (conveys equitable title) (risk of loss)

2. closing (deed passes legal title) (right to possess)

103
Q

Escrow period definition

A

The space between signing the land contract and the closing

104
Q

Land sale contract characteristics

A
  • contract must be in writing (SoF)
  • signed by party against whom enforcement sought (D)
  • must also identify parties, describe property, state consideration
105
Q

SoF and land contracts: writing must

A
  • identify parties
  • describe the property AND
  • include the price or means of determining price
106
Q

Land contracts: If the land described is actually smaller than in the writing, the remedy is

A

Specific performance with pro rata reduction in price

107
Q

SoF exception for land contracts: elements of part performance
Allows buyer to enforce oral contract by specific performance if:

A

-contract is certain and clear and
-acts prove existence of contract
Acts usually satisfied by 2/3 of the following:
-buyer took possession
-buyer paid purchase price or significant portion
-buyer made substantial improvements

108
Q

Doctrine of equitable conversion

A

once the contract is signed, equity regards the buyer as the owner of the real property. The contract conveys equitable title to the buyer. By contrast, at the closing, the deed conveys legal title to the buyer. The right to possession rests with the party who holds legal title. Thus, seller is entitled to possession until closing

109
Q

In a land sales contract, in the escrow period between contract and closing, the ____ bears risk of loss unless contract says otherwise

A

Buyer

if Blackacre is destroyed through no fault of either party

110
Q

Two promises implied in every land sale contract

A
  1. marketable title: seller’s implied promise to provide title reasonably free from doubt/threat of litigation on closing
  2. seller will not make false statements of material fact
111
Q

If even part of the title rests on adverse possession, it is

A

Unmarketable

112
Q

Defects on record chain of title

A
  • adverse possession: unless a suit has been brought to quiet title, title acquired by adverse possession does not appear in the record
  • encumbrances: Generally, mortgages, liens, restrictive covenants, easements, options to purchase, and significant encroachments render title unmarketable UNLESS the buyer has waived them
  • zoning violations: zoning restrictions do not affect marketability, but existing violations of a zoning ordinance render title unmarketable
  • future interests held by unborn/unascertained parties: makes it impossible to convey marketable title
113
Q

Implied promises in land sale contracts: seller liable for failure to disclose

A

Latent material defects

114
Q

Sellers ____ include a general disclaimer of liability in land sale contracts

A

CANNOT
Will likely be upheld if the seller disclaims SPECIFIC defects, such as “seller is not liable for any defects in the roof”

115
Q

There are no implied warranties of ___ or ____ in land sale contracts

A

Fitness or habitability

Buyer beware! Except for sale of new home by builder (warranty of fitness or quality)

116
Q

To pass legal title from grantor to grantee the deed must be LEAD:

A

Lawfully Executed And Delivered

117
Q

Executing a valid deed requires:

A
  • writing signed by grantor
  • unambiguous description of land
  • identification of the parties by name or description
  • words of intent to transfer, such as “grant”
  • NO consideration needed
118
Q

Is outside/parol evidence admissible to clear up ambiguity in land description of deed?

A

yes

119
Q

Delivery requirement for deeds

A

LEGAL standard testing grantor’s present intent (did they have present intent to be bound?)
(physical delivery is not required)

120
Q

If a grantee expressly rejects the deed,

A

The deed is ineffective to pass title

121
Q

If a deed, absolute on its face, is transferred to the grantee with an oral condition, what happens?

A

The oral condition drops out, delivery is completed

122
Q

Transfer to a third party with conditions (escrow transaction)

A

Grantor may deliver an executed deed to a third party, known as an escrow agent, with instructions that the deed be delivered to the grantee once certain conditions are met. This typically is related to the purchase of property and the condition typically is the payment of the purchase price

123
Q

3 types of deeds

A
  1. quitclaim
  2. general warranty
  3. special warranty
124
Q

Quitclaim deed characteristics

A
  • Grantor isn’t even promising that he has title to convey
  • Worst deed
  • It conveys only what the grantor has at the time of the conveyance.
  • contains no covenants for titles
125
Q

General warranty deed

A
  • the best deed

- warrants against all defects in title, including those attributable to the grantor’s predecessors

126
Q

General warranty deed contains 6 covenants

A

Present covenants (breached at delivery)
-seisin: grantor owns
-right to convey: grantor can transfer
-against encumbrances: no servitudes/liens
Future covenants (breached if grantee disturbed in possession)
-quiet enjoyment: no third party lawful claims
-warranty: grantor will defend
-further assurances: grantor will perfect

127
Q

Special warranty deed

A

-contains the same covenants as the general warranty deed, but here the grantor makes those promises on behalf of himself only (NO representations on behalf of predecessors)

128
Q

Statutory special warranty deed

A

Implies type of special warranty deed when it is not specified
Usually creates two limited assurances against acts of grantor (NOT predecessors)
1. that the grantor has not conveyed the same estate or any interest therein to anyone other than the grantee AND
2. that the estate is free from encumbrances made by the grantor

129
Q

Race jurisdiction

A

Whoever records properly first wins

130
Q

Notice jurisdiction

A

The last BFP to take wins

131
Q

Race-notice jurisdiction

A

Last BFP to properly record wins

132
Q

To be a BFP, a grantee must

A
  • be a purchaser, not one who received the property by gift, will, or inheritance
  • pay valuable consideration
  • take without notice (actual, constructive, or inquiry) of the prior conveyance
133
Q

Types of notice

A

AIR
Actual (B learns of A (literal knowledge))
Inquiry (B charged with what inspection would have revealed)
Record (B on notice of deeds properly recorded in chain of title)
[I and R are both forms of constructive notice]

134
Q

“A conveyance of an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded” suggests

A

Race statute

135
Q

“A conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded” suggests

A

Notice statute

136
Q

“Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded” suggests

A

Race-notice statute

137
Q

Chain of title definition

A

Sequence of recorded documents capable of giving record notice to later takers

138
Q

Shelter rule

A

Anyone who takes from a BFP will prevail against any interest the BFP would’ve prevailed against

139
Q

Wild deed

A

Recorded deed that isn’t connected to chain of title (incapable of giving constructive notice)

140
Q

Recording a wild deed is the same as

A

Never recording at all

141
Q

Estoppel by deed

A
  • grantor purports to convey to grantee realty they don’t then own
  • grantor later acquires title to the property
  • title automatically vests in grantee
  • grantor is estopped from denying validity of preacquisition conveyance
  • but watch out for BFP: early recording is outside chain of title
142
Q

Mortgagor definition

A

Debtor (person who owes money to lender)
Mortgagee definition
Creditor (lender)

143
Q

Purchase-money mortgage definition

A

Lender’s security interest in real estate that their loan enables debtor to acquire
(mortgage for the purchase price to get property)

144
Q

Mortgage creation

A

Union of two elements

debt (note) + lien in land to secure debt (mortgage)

145
Q

legal mortgage/mortgage deed/deed of trust/sale leaseback/security interest in land

A

mortgage typically must be in writing to satisfy SoF

146
Q

how does the creditor-mortgagee transfer its interest?

A
  • indorsing the note and delivering it to the transferee OR

- executing a separate document of assignment

147
Q

Transfers by mortgagor

A
  • recording statutes protect mortgagees

- if recorded, mortgage sticks with the land

148
Q

Recording statutes apply to ____ and ____

A

Mortgages, deeds

149
Q

Personal liability for mortgages, if B assumes mortgage

A

Both O and B are personally liable

150
Q

Personal liability for mortgages, if B takes subject to the mortgage

A

Only O is personally liable, but if recorded, Blackacre can be foreclosed

151
Q

Each claimant is entitled to satisfaction ____ before a junior lienholder may take

A

in full

152
Q

Effect of foreclosure on interests

A
  • junior interests terminated (paid in descending order from sale proceeds)
  • necessary parties: all junior lienholders + debtor
  • senior interests unaffected (buyer takes subject to them)
153
Q

Failure to include a necessary party in a foreclosure action results in

A

The preservation of that party’s claim (their mortgage will remain on the land)

154
Q

Foreclosure ___ affect any interest senior to the mortgage being foreclosed

A

DOES NOT

155
Q

Priority of creditors

A
  • creditors must record
  • first in time, first in right
  • purchase-money mortgage: first priority in parcel financed
156
Q

Floating lien

A

Interest in currently and future owned real estate

usu when loan is under collateralized on the front end

157
Q

Subordination agreement

A

By private agreement, a senior creditor may agree to subordinate its priority to a junior creditor

158
Q

Equitable redemption

A
  • debtor can redeem land PRIOR to foreclosure sale by paying

- cut off by foreclosure sale

159
Q

Acceleration clause in a mortgage permits

A

The mortgagee to declare the full balance due in the event of a default

160
Q

No clogging equity of redemption

A

Debtor cannot waive right to redeem in mortgage itself

161
Q

Variance

A
  • permission to depart from zoning restriction

- show undue hardship + no diminution to neighboring property values

162
Q

Nonconforming use

A

Previously allowed use cannot be eliminated all at once unless just compensation paid

163
Q

Cumulative zoning

A

Land ranked and categorized to create hierarchy of uses (single-family home is highest use)

164
Q

Under cumulative zoning, land that is zoned for a particular use may be used for

A

That use and any use higher in the hierarchy

165
Q

Noncumulative zoning

A

Land may be used only for the purpose for which it is zoned

166
Q

Special use permit

A

Must be obtained even though zoning proper for intended use (ex hospitals, drive-ins)

167
Q

In a condominium, each owner owns

A

The interior of their unit and an undivided interest in the common elements

168
Q

Homeowners’ Associations

A
  • each condo owner is a member
  • oversee common elements
  • board enforces covenants, conditions, & restrictions
  • special assessment = one-time fee if dues don’t cover an expense
169
Q

Lateral support

A

right to have land supported in natural state
if landowner causes adjacent land to subside:
-land in natural state: strict liability
-land improved: liability if negligent

170
Q

Riparian doctrine

A
  • water belongs to those who own land bordering watercourse

- riparians share right of reasonable use

171
Q

Prior appropriation doctrine

A
  • water belongs to state

- right to divert/use can be acquired through actual use

172
Q

Common enemy rule

A

Owner can take any protective measure to get rid of surface water/combat its flow

173
Q

Types of present possessory estates

A

Fee simple absolute
Defeasible fee
-fee simple determinable
-fee simple subject to condition subsequent
-fee simple subject to executory interest
Life estate

174
Q

Devisable definition

A

Capable of passing by will

175
Q

Descendible definition

A

Capable of passing by intestacy

176
Q

Alienable definition

A

Capable of transfer inter vivos

177
Q

Fee simple absolute characteristics

A

“To A” or “to A and his heirs”
Potentially limitless duration
Devisable, descendible, alienable

178
Q

A living person has ___ heirs

A

NO

Only prospective heirs apparent

179
Q

Defeasible fee definition

A

Fee simples with a condition attached

defeasance = forfeiture

180
Q

Fee simple determinable characteristics

A
  • terminates automatically on happening of stated event
  • created by clear durational language: “so long as” “while” “during” “until”
  • devisable, descendible, alienable
  • if the condition happens, forfeiture is automatic
181
Q

Fee simple determinable is accompanied by only one future interest:

A

Possibility of reverter in grantor
FSDPOR
(Frank Sinatra Didn’t Prefer Orville Redenbacher)

182
Q

Fee simple subject to condition subsequent

A

-use of conditional language + explicit right of grantor to re-enter
Ex “To Selena, but if Selena ever serves alcohol on site, Britney reserves the right to re-enter and retake.”
Britney has the right of entry synonymous with the power of termination
-NO automatic termination (grantor’s prerogative)
–because of this, courts go with this if it is a close call between this or FSD

183
Q

Fee simple subject to executory interest

A
  • To A, but if X event occurs, then to B
  • third party, not grantor, takes if the condition is betrayed
  • B has a shifting executory interest
  • forfeiture automatic
184
Q

Rules of construction for defeasible fees

A
  • words of mere desire, hope, intention do not create defeasible fee
  • absolute restraints on alienation are void (can be linked to reasonable time-limited purpose)
185
Q

What happens if a defeasible fee attempts to absolutely restrain alienation?

A

The restraint is void, drops off

186
Q

Conditions and limitations on defeasible fees violating public policy are

A

Void

discrimination, penalize marriage or encourage divorce

187
Q

Life Estate

A
  • measured in lifetime terms (NOT in term of years)

- “To A for life” makes A a life tenant

188
Q

Life estate pur autre vie

A

A life estate measured by a life other than the grantee’s
“to A for the life of B”
O has a reversion

189
Q

Life tenant’s rights and duties

A
  • all ordinary uses and profits from land
  • don’t commit waste
  • preserve land and structures in a reasonable state of repair
  • pay ordinary taxes on the land (limited to the extent of income or fair rental value)
  • pay interest on mortgage
  • pay special assessments for improvements of short duration
  • not responsible to insure for benefit of remaindermen
190
Q

Open mines doctrine

A

If mining was done on site before life tenancy, life tenant can continue with those mines, but cannot open new ones

191
Q

Future interests in grantor

A
  • possibility of reverter (accompanies FSD)
  • right of entry/power of termination (accompanies FSSCS)
  • reversion (accompanies when grantor conveys estate of lesser duration (other than above) (ex: life estate, to O for 99 years))
192
Q

Possibility of reverter accompanies

A

FSD

193
Q

Right of entry/power of termination accompanies

A

FSSCS

194
Q

Reversion accompanies

A

Estate of lesser duration that is not FSD or FSSCS

195
Q

Future interests in third parties: remainders

A

-possession or natural expiration (NOT defeasance/forfeiture) of preceding estate (ex life estate)

196
Q

Contingent remainder

A

-taker as yet unascertainable (unborn or unascertained persons) or subject to condition precedent

197
Q

Rule in Shelley’s Case

A

At common law, if the same instrument created a life estate in A and gave the remainder only to A’s heirs, the remainder was not recognized, and A took the life estate and the remainder.
ABOLISHED IN MOST JURISDICTIONS, SO LIKELY A WRONG ANSER CHOICE

198
Q

Indefeasibly vested remainder

A

Certain to acquire an estate in the future, no strings

199
Q

vested remainder subject to complete defeasance/total divestment

A

subject to condition subsequent

200
Q

How to determine whether condition subsequent or precedent for remainderman?

A

condition precedent: appears before language introducing you to remainderman
condition subsequent: appears after language that, alone and set off by commas, creates remainder

201
Q

Vested remainder subject to open

A

Class of takers, at least one already qualified to take

202
Q

Class closing: rule of convenience

A

When any member can demand possession

203
Q

Womb rule

A

persons in gestation at the time the class closes are included in the class

204
Q

executory interests

A

-cut short prior taker

205
Q

Shifting executory interest

A

Always follows defeasible fee, cuts short someone other than grantor

206
Q

Springing executory interest

A

cuts short the interest of O, the grantor

207
Q

Rule against perpetuities

A

Certain future interests are void if there is ANY possibility they might vest more than 21 years after a person alive at the time of the grant has died

208
Q

4-step technique for RAP problems

A
  1. Determine the future interest
  2. What has to happen for future interest holder to take?
  3. Find measuring life
  4. When will we know if future interest holder can take?
209
Q

RAP potentially applies only to

A

Contingent remainders, executory interests, and certain vested remainders subject to open

210
Q

An executory interest with no time limit violates

A

RAP

Ex “to A for so long as no liquor is consumed on the premises, then to B”

211
Q

Does RAP apply to O, the grantor?

A

Nope

212
Q

Reform of RAP

A
  • wait and see: validity determined per facts as they come to be
  • USRAP: provides alternative 90-year vesting period
  • Cy pres: court can redraft “as near as possible” to grantor’s intent
213
Q

Types of restraints on alienation

A
  • disabling restraint: absolute ban on transfer (VOID)
  • forfeiture: attempted transfer forfeits interest (valid if reasonable/time limited)
  • promissory: attempted transfer breaches covenant (valid if reasonable/time limited)
  • discriminatory: based on race, religion, ethnicity (VOID)
214
Q

To be valid, a deed must

A
  1. be in writing
  2. sufficiently describe the land
  3. identify the grantor and grantee (if grantee is blank, some courts presume that the person taking delivery has authority to fill in the name)
  4. evidence an intention to convey the land
  5. be signed by the grantor

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