Property Flashcards
Present Possessory Interests
- 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)
Future Possessory Interests
- 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)
Rule Against Perpetuities
May apply to any future interest that is not certain to vest of fail with in a life in being plus 21 years = void
Types of tenancies in landlord and tenant
- tenancy for years
- periodic tenancy
- tenancy at will
- tenancy at sufferance
tenancy for years
for a fixed period of time
- created expressly and ends automatically on its termination date
- no notice
periodic tenancy
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
tenancy at will
no stated duration, as long as parties desire
-created expressly, terminated on proper notice
tenancy at sufferance
hold-over doctrine
tenant remains in possession after tenancy expires
-landlord may evict tenant or create a periodic tenancy by accepting rent
rights and duties of landlord and tenant
- 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
Assign interest in landlord and tenant
both parties generally may assign their interest (transfer entire term) and tenants may also sublease (part of term)
affirmative easement
right to use someone else’s land
negative easement
right to prevent something on another’s land
easement appurtenant
involves two tracts of land
- dominant parcel has the benefit which runs to grantees
- servient parcel has the burden, which runs to grantees with notice
easement in gross
involves one tract of land
express grant of reservation of easement
- statute of fraud applies
- an oral grants creates a license, which is not an interest in land
implication by operation of law of easement
- by use existing before a tract was divided
- by necessity for a landlocked parcel
prescription of easement
acquired through adverse, open and notorious, and continuous use for the statutory period
ways to create easement
- express
- operation of law/implicated
- prescription
termination of easements
- end by stated condition
- unity of ownership between easement and servient estate
- abandonment
- estoppel
- prescription
- necessity
- release
- condemnation
Real Covenants
- 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
equitable servitudes
- 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)
Land sale contracts
- 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)
Deeds
- 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
types of deeds
- general warranty deed
- special warranty deed
- quitclaim deed
general warranty deed
covenants against any title defects created by the grantor or prior titleholders
special warranty deed
covenants against title defects created by the grantor
quitclaim deed
no covenants - transfers whatever interest grantor has
Wills
- 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
Adverse Possession
- possessor must show
- actual entry giving rise to exclusive possession
- open and notorious
- adverse/hostile (lacking owner’s permission)
- 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)
Types of concurrent interests
- joint tenants
- tenants by the entirety
- tenants in common
joint tenants
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
tenants by the entirety
two spouses with rights of survivorship
-created expressly or presumed in some states by a grant to spouses, severed by divorce
tenants in common
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
Who does recording act protect
- 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
types of recording acts
- notice statute = later BFP wins if earlier grant was not recorded
- race notice statute = later BFP wins only if she records before the earlier grantee records
- race statute = first to record wins; actual notice is irrelevant
what is a mortgage
land is collateral for a debt
mortgage theories of title
- lien theory = mortgagee holds a security interest only
- title theory = mortgagee holds title until mortgage is satisfied
- intermediate theory = mortgagee holds title only after default
if mortgagor transfers mortgaged land
- 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
foreclosure
-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
Other security interests
- deed of trust = similar to mortgage, but a third party trustee forecloses
- installment land contract = seller retains the deed until buyer pays in full
- absolute deed = treated as an equitable mortgage when given for a debt
- sale-leaseback = court may determine this was a disguised mortgage
fixtures
- 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)
- common ownership cases - landowner brings chattel onto land - annexor’s objective intent determines whether items are fixtures
- 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.
water
- rules vary state by state and source of water (rivers, streams, lakes)
- ground water = percolating water from wells
- surface waters = rainfall, melting snow, seepage
Zoning
- governmental regulations that restrict use of land
-existing zoning violations render title to land
unmarketable - variance = permission to depart from zoning restriction
