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Bar Exam Courses > Property > Flashcards

Property Flashcards

1
Q

Present Possessory Interests

A
  • indefeasible interest = not subject to early termination (ex: fee simple absolute and life state)
  • defeasible interests = allows a fee simple or life estate to be terminated if a stated event occurs (includes fee simple determinable, subject to condition subsequent, and subject to executory interest)
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2
Q

Future Possessory Interests

A
  • interests retained by the grantor (includes reversion, possibility of reverter, and right of entry)
  • interests created in a transferee (includes executory interests, remainders, and class gifts)
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3
Q

Rule Against Perpetuities

A

May apply to any future interest that is not certain to vest of fail with in a life in being plus 21 years = void

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4
Q

Types of tenancies in landlord and tenant

A
  1. tenancy for years
  2. periodic tenancy
  3. tenancy at will
  4. tenancy at sufferance
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5
Q

tenancy for years

A

for a fixed period of time

  • created expressly and ends automatically on its termination date
  • no notice
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6
Q

periodic tenancy

A

for a fixed period that continues for succeeding periods (ex month to month)
-created expressly or when a lease draws periodic rent payments, terminated on proper notice/appropriate time period

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7
Q

tenancy at will

A

no stated duration, as long as parties desire

-created expressly, terminated on proper notice

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8
Q

tenancy at sufferance

A

hold-over doctrine
tenant remains in possession after tenancy expires
-landlord may evict tenant or create a periodic tenancy by accepting rent

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9
Q

rights and duties of landlord and tenant

A
  • governed by the lease and tort law
  • tenant must pay rent and may not commit waste
  • landlord generally must repair, must deliver habitable premises, and may not interfere with tenant’s possession
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10
Q

Assign interest in landlord and tenant

A

both parties generally may assign their interest (transfer entire term) and tenants may also sublease (part of term)

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11
Q

affirmative easement

A

right to use someone else’s land

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12
Q

negative easement

A

right to prevent something on another’s land

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13
Q

easement appurtenant

A

involves two tracts of land

  1. dominant parcel has the benefit which runs to grantees
  2. servient parcel has the burden, which runs to grantees with notice
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14
Q

easement in gross

A

involves one tract of land

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15
Q

express grant of reservation of easement

A
  • statute of fraud applies

- an oral grants creates a license, which is not an interest in land

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16
Q

implication by operation of law of easement

A
  • by use existing before a tract was divided

- by necessity for a landlocked parcel

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17
Q

prescription of easement

A

acquired through adverse, open and notorious, and continuous use for the statutory period

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18
Q

ways to create easement

A
  1. express
  2. operation of law/implicated
  3. prescription
19
Q

termination of easements

A
  1. end by stated condition
  2. unity of ownership between easement and servient estate
  3. abandonment
  4. estoppel
  5. prescription
  6. necessity
  7. release
  8. condemnation
20
Q

Real Covenants

A
  • written promises to do or refrain from doing something on land with a usual remedy of 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
21
Q

equitable servitudes

A
  • covenants with equitable remedies (ex: injunction, specific performance)
  • implied from a common scheme for development if notice exists
  • requirements for burden to run; intent notice, touch and concern
  • requirements for benefit to run; intent, touch and concern
  • equitable defenses apply (ex: unclean hands, estoppel, acquiescence, change neighborhood conditions)
22
Q

Land sale contracts

A
  • statute of frauds applies. Exception = no writing is required if buyer has partially performed through possession, improvement, or payment
  • time for performance presumed not of essence
  • mareketable title = contracts contain an implied covenant that seller will deliver title free from an unreasonable risk of litigation at losing (when purchase price and deed exchanged)
23
Q

Deeds

A
  • statute of fraud applies
  • must evidence an intent to transfer land an adequately describe the land and parties
  • effective on delivery (words or conduct showing the grantor’s intent to immediately pass title) and acceptance
24
Q

types of deeds

A
  1. general warranty deed
  2. special warranty deed
  3. quitclaim deed
25
Q

general warranty deed

A

covenants against any title defects created by the grantor or prior titleholders

26
Q

special warranty deed

A

covenants against title defects created by the grantor

27
Q

quitclaim deed

A

no covenants - transfers whatever interest grantor has

28
Q

Wills

A
  • effective on testator’s death
  • if, at testator’s death, she no longer owns property that was specifically devised, that gift fails (adeems)
  • if, at the testator’s death, the beneficiary has already died, his gift fails (lapses) or might pass to the beneficiary’s descendants under an anti-lapse statute if he and the testator were related
29
Q

Adverse Possession

A
  • possessor must show
    1. actual entry giving rise to exclusive possession
    2. open and notorious
    3. adverse/hostile (lacking owner’s permission)
    4. continuous throughout the statutory period
  • the statute does not begin to run if the owner is under a disability to sue when the possession begins (ex: incapacity)
30
Q

Types of concurrent interests

A
  1. joint tenants
  2. tenants by the entirety
  3. tenants in common
31
Q

joint tenants

A

two or more co-tenants with rights of survivorship

  • right up survivorship = dead tenants share passes to remaining co tenants
  • created expressly, severed by a tenant’s sale or suit for partition
32
Q

tenants by the entirety

A

two spouses with rights of survivorship

-created expressly or presumed in some states by a grant to spouses, severed by divorce

33
Q

tenants in common

A

two or more co-tenants with no right of survivorship

  • created by the severance of the other tenancies
  • default co-tenancy created if nothing else was specified
34
Q

Who does recording act protect

A
  • bona fide purchaser for value without actual, inquiry or record notice of the prior conveyance
    1. actual notice = what the grantee actually knows
    2. inquiry notice = what a reasonable inquiry would have revealed
    3. record notice = what a search of the real property records would have revealed
35
Q

types of recording acts

A
  1. notice statute = later BFP wins if earlier grant was not recorded
  2. race notice statute = later BFP wins only if she records before the earlier grantee records
  3. race statute = first to record wins; actual notice is irrelevant
36
Q

what is a mortgage

A

land is collateral for a debt

37
Q

mortgage theories of title

A
  1. lien theory = mortgagee holds a security interest only
  2. title theory = mortgagee holds title until mortgage is satisfied
  3. intermediate theory = mortgagee holds title only after default
38
Q

if mortgagor transfers mortgaged land

A
  • grantee may agree to assume the mortgage and become primarily liable to pay the mortgage loan
  • grantee who does not assume the mortgage is not personally liable the loan but may lose the land if the transferor defaults
39
Q

foreclosure

A

-after default, property may be sold to satisfy the debt
-does not effect senior interests
-terminates junior interests
-jr interests are entitled to any surplus remaining after
the foreclosure mortgage is satisfied
-the mortgagor may redeem the land by paying the amount due

40
Q

Other security interests

A
  1. deed of trust = similar to mortgage, but a third party trustee forecloses
  2. installment land contract = seller retains the deed until buyer pays in full
  3. absolute deed = treated as an equitable mortgage when given for a debt
  4. sale-leaseback = court may determine this was a disguised mortgage
41
Q

fixtures

A
  1. fixtures are items so affixed that they become part of the realty (if item not physically attached can be a fixture if so uniquely adapted to the real estate that it makes no sense to separate (ex. keys to doors)
  2. common ownership cases - landowner brings chattel onto land - annexor’s objective intent determines whether items are fixtures
  3. divided ownership cases - landowner does not bring chattel onto land - items owner can remove it only if this would not leave unrepaired damage to premises.
42
Q

water

A
  1. rules vary state by state and source of water (rivers, streams, lakes)
  2. ground water = percolating water from wells
  3. surface waters = rainfall, melting snow, seepage
43
Q

Zoning

A
  1. governmental regulations that restrict use of land
    -existing zoning violations render title to land
    unmarketable
  2. variance = permission to depart from zoning restriction

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