Property Flashcards
Executory interest
future interest that cut short a prior vested interest
Vested remainder
interest given to (a) ascertained grantee and (b) not subject to condition precedent.
If a remainder fails (a) or (b), it is a contingent remainder
Fee simple determinable (FSD)
Limited by specific durational language
Possibility of reverter:
future interest held by grantor following FSD. Vests automatically after the durational period ends.
RAP
certain future interests must vest or fail within 21 years after the death of a life in being at the time that the interest is created.
Effect of a RAP violation
strike the violating interest as if the interest was never created in the first place.
2 Exceptions to RAP:
(1) charity-to-charity gifts
(2) options held by a current tenant to purchase a fee interest in the leasehold property.
Interests subject to RAP
contingent remainder, vested remainder subject to open, and executory interest
Vested remainder subject to open
vested remainder in a (a) class gift and (b) full class membership is unknown (but at least one person in the class must be vested).
If class gift + full class membership is unknown with nobody vested → contingent.
In a class gift (vested remainder) class is closed when
all members are identified
Rule of convenience
interpretive rules that can save a class gift from being invalidated under RAP. closes the class when any member of the class becomes entitled to immediate possession
“All or nothing” class gift rule
If the gift to any member of the class is void under RAP, the gift is void as to all members of the class.
2 Exceptions to all-or-nothing class gift rule:
(1) transfers of a specific dollar amount to each class member and (2) transfers to a subclass that vests at a specific time ( to the children of B, and upon the death of each, to that child’s issue”
Three kinds of concurrent estates:
tenancy in common, joint tenancy, tenancy by the entirety
Presumption in deciding which type of concurrent estates:
tenancy in common
Right of survivorship in tenancy at common
Does not exist
Ownership interest in joint tenancy requires ∑: PITT:
(1) equal right to Possess the whole property (2) they have the equal share of the same type of Interest (3) they received the interest at the same Time (4) they received the interest in the same instrument of Title
Creation of joint tenancy requires
(a) clear expression of intent + (b) survivorship language
Right of survivorship in joint tenancy
surviving joint tenant automatically take the deceased tenant’s interest
Joint tenancy can terminate upon
inter vivos transfer
Granting a mortgage interest in the joint tenancy
Majority (lien theory): does not sever.
Ouster occurs when:
co-tenant in possession denies another co-tenant access to the property. The denied co-tenant to manifest intent to access and get denied.
Remedies for ouster:
injunction granting access or damages for the value of the use while unable to access the property
Co-tenant’s right to receive rent
A co-tenant is entitled to a portion of the rent received from a third party’s possession, minus operating expenses, based on ownership interest.
co-tenant is generally not required to pay rent to the other co-tenants for the value of her own use of the property, even when the other co-tenants do not make use of the property.
Co-tenant to right to contribution to operating expenses
Operating expenses are divided based on ownership interest.
A co-tenant can collect contribution from the other co-tenant for payments in excess of her share of the operating expenses © a co-tenant in sole possession can collect only for the amount that exceeds the rental value of the property.
Co-tenant right to reimbursement for repairs
No right to reimbursement for necessary repairs, but repairing co-tenant can get credit in a partition action
Co-tenant duty to contribution for improvement
No duty, but improving co-tenant can get credit in a partition action.
Co-tenant right to partition
Tenants in common or joint tenants have a unilateral right to partition
Partition by sale is ordered when:
When physical partition is (1) not practical or (2) not fair to all parties. Proceeds of partition divided based on ownership interests.
Enforceability of agreement not to partition
Enforceable if (a) agreement is clear and (b) time limit is reasonable.
FHA prohibits
discrimination in sale, rental and financing of dwellings as well as advertising that states a discriminatory preference
3 Exemptions from the FHA:
(1) single-family home sold/rented without a broker;
(2) owner-occupied building with 4 or fewer living units
(3) religious organizations and private clubs
Protected class under FHA:
Race color religion national origin sex disability familial status.
Does not include sexual orientation
Prohibited activity under FHA:
refusing to rent, sell, or finance; requiring different rents; falsely denying that a unit is available; providing different services to facilities
Causation requirement under FHA
Prohibited behavior must be linked to protected traits © advertisement
Choice of law in a property dispute that involves more than one state: baseline rule
controlling law is based upon where the property is located (law of the situs)
Baseline rule for choice of law is ignored when
(1) Instrument:. instrument designates otherwise or
(2) Marriage: when classifying marital or separate property in a marriage case → domicile of the party may override ; or
(3) Mortgage: mortgage document require repayment to be made in another state
Four types of landlord-tenant tenancies:
(1) tenancy for years (2) periodic tenancy (3) tenancy at will (4) tenancy at sufferance
Tenancy for years:
tenancy measured by a fixed and ascertainable amount of time
Tenancy for years can terminate in 3 situations:
(1) Automatically upon expiration of the term. (2) Tenant surrender the lease or (3) Tenant or LL commits material breach
Periodic tenancy:
estate that is repetitive and ongoing for a set period of time
Periodic tenancy is created when
Parties’ intent to create a periodic tenancy. Intent can be express or by implication (payment of rent).
Oral agreement regarding the payment of monthly rent: creates periodic tenancy.
Periodic tenancy termination–is notice required?
Yes. Proper notice required
Notice to terminate tenancy is proper when
a. timely (given before the start of what will be the last term) and
b. written (in most jx)
Tenancy at will creation
Express agreement or by implication. © In the absence of a specific agreement to create a tenancy at will, regular rent payments will lead to the tenancy being treated as a periodic tenancy
Tenancy at will termination–requirement
can be terminated for any reason at any time by either party. No notice required
If the agreement gives only the LL a right to terminate at will, the tenant also gets the same right. If the agreement gives only the tenant a right to terminate at will, LL is not given the same right.
When LL or tenant dies, does the lease terminate?
Yes for tenancy at will.
No–does not terminate periodic tenancy or tenancy for years.
Tenancy at sufferance:
describes temporary tenancy when a tenant holds over after the lease ended.
Tenancy at sufferance creation:
created by tenant’s actions
Tenancy at sufferance termination
(1) tenant voluntarily leaves
(2) LL evicts or
(3) LL re-rents to holdover
If LL re-rents to a holdover tenant, what is the new tenancy created?
periodic tenancy
Can LL charge a higher rent to holdover tenant?
LL can charge a higher rent if LL had informed tenant of the increase before the expiration of the old lease.
Two basic duties of tenant
- pay rent
2. avoid waste
Tenant duty to pay rent can be suspended in 3 situations:
(1) premises are destroyed and tenant didn’t cause it;
(2) LL completely or partially evicts tenant
(3) LL materially breaches the lease
Landlord basic 4 duties
- duty to deliver possession of property
- implied CN of quiet enjoyment
- implied warranty of habitability
- Duty to maintain/repair
Implied covenant of quiet enjoyment
LL has a duty to allow T a right to quiet enjoyment of the property without interference by the LL
Ways to breach implied covenant of quiet enjoyment (Landlord-tenant)
Actual eviction Partial eviction Construction eviction Common area control Control other tenant's nuisance behavior
Implied Warranty of Habitability
LL has a duty to maintain residential property habitable
Tenant’s right upon breach of implied warranty of habitability
- Withhold rent (to do this, T must notify LL and give opportunity to fix); or
- Remedy the defect and offset cost against rent; or
- Defend against eviction
Constructive eviction occurs when ∑4:
(a) LL breaches a duty that make premises wholly or substantially unsuitable for intended purposes;
(b) T notifies LL of the problem;
(c) LL doesn’t fix the problem;
(d) T vacates the premises after a reasonable amount of time after L fails to fix the problem
LL duty to make repairs
LL is presumed to be responsible for repairs in residential leases.
LL not responsible for repairs caused by T.
LL’s duty to mitigate damages* (Arises when T abandons property early or is evicted)
LL must make reasonable effort to re-rent the property (§M). If LL did not, T doesn’t have to pay rent.
Tenant duty to avoid waste
T has a duty not to commit affirmative (voluntary) or permissive (neglectful) waste.
© T may make ameliorative waste, usually with LL’s prior consent
Adverse possession ∑4:
A person can acquire valid title to a real property if his possession is (a) continuous (b) open and notorious (c) hostile and (d) exclusive
Tacking in adverse possession: allowed if
an adverse possessor may tack on his predecessor’s time to satisfy the statutory time if there is privity between successive possessors.
Privity exists if the possessor takes by any non-hostile means (e.g. descent, devise, contract, deed)
Statute of limitations begins to run in an AP when:
when the adverse possessor enters the land.
© does not run when the true owner has a disability at the time the trespassor enters the land
Constructive adverse possession:
Adverse possessor enter under color of title from an invalid instrument and occupied a portion of the property. Adverse possessor may acquire title to the entire property if amount possessed is reasonable
Tacking in adverse possession: new owner
New owner: When the property being AP’ed is transferred to a new owner, the APer’s time continues to run as against the new owner as if property hasn’t been transferred.
Fixture:
Tenant can remove a fixture he installed on leased property if:
∑ (a) leased property can be restored; and
(b) property is restored within reasonable time.
Reasonable time for removal generally does not extend beyond the termination of the lease, unless ∑ (a) termination isn’t because of tenant’s breach and (b) date of termination wasn’t sufficiently foreseeable to remove fixture before termination.
Fixture:
Trespassers can remove a fixture he installed (or at least recover value)?
Yes, if they acted in good faith in installing such fixture
Acquiring a vested right in the nonconforming use:
property owner can acquire a vested right in the nonconforming use if he secures a proper building permit by the time the zoning ordinance takes effect.
Property owner can expand a grandfathered nonconforming use?
False. Not permitted
Property owner cannot switch a grandfathered nonconforming use to another nonconforming use?
True. Cannot switch
Property owner can transfer a grandfathered nonconforming use?
True. Can transfer.
To apply for a variance, one must show ∑5:
(a) compliance would create unnecessary hardship
(b) that hardship arises from circumstances unique to the property
(c) property owner did not cause the hardship
(d) variance would be consistent with the purpose of the ordinance
(e) granting variance would not cause substantial harm to the general welfare.
Private nuisance elements:
a substantial and unreasonable interference with another individual’s use and enjoyment of his property
substantial interference for private nuisance means:
offensive, inconvenient or anoying to an average person
unreasonable interference for private nuisance means:
injury outweighs the usefulness of the defendant’s action
public nuisance definition:
unreasonable interference with health, safety, or property rights of the community
A private party bringing public nuisance suit must show:
that she suffered a distinct kind of harm than the rest of the community
Doctrine of Riparian rights: who has rights to water?
Landowners who border a waterway own the water.
Doctrine of prior appropriation: who has rights to water?
The first person to use water has rights to water.
Any beneficial use of the water creates appropriation rights.
Lateral support rights:
Strict liability
Negligent liability
Property owner can’t excavate to cause subsidence in the neighbor’s land.
Strict liability if: the improvements on land {i.e. the shrubs, the fountain, the structures}, did not contribute to land’s collapse
If improvement contributed, neighbor may recover only if excavator was negligent.
Subjacent support strict liability
Arises when surface rights owner vs. underground rights owner.
Owner of mineral rights have strict liability for both land and buildings. However, if a building is erected after the date of conveyance, then it is a negligent standard
Easement definition:
nonpossessory right to make a specific use of another’s land.
License definition:
nonpossessory right to use another’s land for a specific purpose.
License is freely revocable unless
(1) coupled with an interest or
(2) detrimentally relied upon
Easement vs. License: creation transferability binding successors revocability
(1) License can be created w/o a writing.
(2) License generally not transferable.
(3) License generally binds only licensors.
(4) License is generally freely revocable.
Express EM is created when
affirmatively created in a writing that satisfies the Statute of Frauds.
Can one create negative EM impliedly?
No. Negative EM must be express
EM by necessity is created when ∑2:
(a) common ownership in the past
(b) necessity arose at the time the property was severed
EM by prior use is created when ∑4:
(a) common ownership
(b) owner used one parcel to benefit another prior to severance
(c) use was continuous and apparent at the time of severance
(d) use is reasonably necessary to the dominant land’s use and enjoyment
EM by prescription is created when ∑3:
the use must be
(a) continuous
(b) open and notorious (c) hostile
for a specified period.
The use not be exclusive!
EM by estoppel is created when ∑3:
(a) permission from servient owner
(b) reasonable and detrimental reliance
(c) permission revoked
Transfer of EM appurtenant
transfers automatically with real property inteest
Transfer of benefit in EM in gross
cannot be transferred unless commercial or specifically intended to be transferred.
Transfer of burden in EM in gross
transfers automatically with real property inteest
Scope of express EM is defined by:
Intent.
Look at terms → then post-creation conduct + what’s reasonable in light of the EM’s purpose.
Change in scope of EM?
Allowed if reasonable in light of the purpose of the EM.
New use of an EM permitted if it was reasonably foreseeable at the time of EM creation.
Who has the duty to maintain the property subject to an easement?
Easement holder unless contract
Termination of EM: Seven ways to terminate EM
- Release by EM holder
- Abandonment by EM holder (by affirmative conduct),
- Estoppel
- Prescription
- Merger
- End of necessity
- Sale to BFP
EM holder can terminate EM by release when
Release must be express
Must be in writing since it is subject to SoF.
EM holder can terminate EM by abandonment if
if he acts in an affirmative way that shows clear intent to relinquish
EM can terminate by estoppel if
servient owner changes position to his detrimnet in reliance of the EM holder’s statement/act that the EM is abandoned.
EM can terminate by prescription if
EM holder fails to protect EM against trespassers (including servient owner) for a statutory period
EM can terminate when purpose of defeated, including
when necessity ends
destruction of servient land
condemnation of servient land
A covenant is said to “run with the land” if
it is enforceable against or by successive owners
Real covenants:
a contractual obligation that relates to the ownership or use of the real property.
Benefit running with the land means
successive owners can enforce
For a real covenant to run with the land (bind the successors), it must meet ∑5 conditions:
(a) writing
(b) original parties intended for the covenant to run with the land
(c) covenant must touch and concern the land
(d) privity exists—both horizontal* and vertical
(e) notice (burden only)
How to establish that original parties intended for a covenant to run with the land?
“successors heirs and assigns”
A covenant touches and concerns the land if:
if it restricts or affects the owner’s use and enjoyment of the land.
e.g. CN not to use property for vacation rentals, CN to maintain a fence, agreement to pay HOA fees,
Privity analysis 2-step process:
- Are we running benefit or the burden? 2.
If its benefit, successor only needs portion of estate for vertical privity.
If burden, successor must have strict vertical privity (entire estate) AND horizontal privity
Horizontal privity is required for benefit to run–true or false
False.
Horizontal privity exists when
When the original parties shared some ownership interest OR contractual relationship in the servient land at the time the covenant was made.
(e.g. horizontal privity exists if covenant is contained in the original deed)
Vertical privity exists when
Original owner of the servient land voluntarily transferred land to the successor
Equitable servitudes:
agreements about land use that are enforced at equity by injunction
To enforce an equitable servitude, ∑4
(a) must be in writing
(b) original parties’ intent to bind successors
(c) touch and concern land
(d) notice for BFP
Notice requirement for real covenant
Notice can be either actual or constructive.
Inquiry notice is insufficient.
Required for burden to run
NOT required for non-BFP (people who didn’t pay value)
Notice requirement for equitable servitude
Notice can be actual, constructive, or inquiry notice.
NOT required for non-BFP(people who didn’t pay value)
To enforce an implied reciprocal servitude, there must be ∑3:
(a) intent to create a covenant on all plots (“common scheme”)
(b) negative covenant
(c) notice
Note: writing not required.
Intent to create an implied reciprocal servitude on all plots can be established if
If there is a common scheme.
Common scheme can be established if theres a map of the community showing such scheme, marketing/advertising of the community, or oral/written mention that the lots are burdened by a common restriction
How to establish notice of an implied reciprocal servitude
can be implied from the common scheme
Remedies for breach of real covenants:
usually money damages
Changed circumstances doctrine
It is a defense to either covenant or ES if a restriction longer makes sense due to drastic changes in the surrounding area.
Defenses to equitable servitudes
Changed circumstances
Laches
Acquiescence
Unclean hands
Termination of covenants/ES: ways to terminate
- Release
- Abandonment by EM holder
- Estoppel
- Prescription
- Merger
- End of necessity
- Sale to BFP
Does a joint tenant have the right to unilaterally partition the property.
Yes
Transferee’s right to raise transferor’s defenses against the mortgagee
A donee who takes mortgaged property is entitled to assert donor’s defenses
A transferee who purchases property and agrees to assume an existing mortgage obligation cannot raise defenses that the mortgagor-transferor could have raised against mortgage obligations.
Ending adverse possession
once the homeowner’s right to this property arose because of adverse possession, the homeowner cannot return ownership of this property orally or by simply removing the trespassing structure. The homeowner must transfer ownership of the adversely possessed property by deed.
Does EM terminate upon sale to BFP
Yes BFP had no notice + protected under recording act
Tenancy at will: special rule regarding mutuality of the right to terminate lease
-If the agreement gives only the LL a right to terminate at will, the tenant also gets the same right. If the agreement gives only the tenant a right to terminate at will, LL is not given the same right.
Offer and acceptance of surrender of lease
If a tenant unjustifiably abandons the leasehold, T is treated as having made an offer to surrender his rights.
If accepted, lease is terminated.
If rejected, LL retains right to enforce
Right of first refusal is valid if
If it complies with the Statute of Frauds and the terms are reasonable.
Right of first refusal is not an encumbrance that makes title unmarketable. True or False
False. It is a title defect
Does RAP apply to a right of first refusal?
yes, with exceptions
When RAP does not apply to option/right of first refusal:
- option/right of first refusal granted in a lease to a current leasehold tenant.
- option/right of first refusal when property right is created in a commercial transaction
Tenant duty to pay rent upon condemnation
The right of a tenant upon condemnation depends upon whether the condemnation is partial or complete. If the condemnation is partial, meaning only a portion of the leased property is taken, the tenant must continue to pay rent.
Right to contribution for repairs for easement
If the easement is shared, the owner who maintains or repairs the easement may seek contribution from the other owners of the easement after adequate notice and an opportunity to participate in repair decisions.
Doctrine of marshaling of assets
order of foreclosure
Upon foreclosure, junior interests may petition the court for protection of their interests under the doctrine of marshaling of assets.
Then the senior interest holder must first proceed against the property that has no junior security interests, and then against the property on which the junior interest was more recently created, before proceeding against property on which the junior interest was more remotely created
An oral lease that fails SoF may become enforceable if
Enforceable if the tenant takes possession and the landlord accepts rent from the tenant.
If the tenant takes possession and the landlord accepts rent, then a periodic tenancy or tenancy at will is created because there has been partial performance
doctrine of equitable conversion
Under the doctrine of equitable conversion, equitable title to real property passes to the buyer upon entering the contract, even though the seller retains legal title.
The seller effectively holds the property in trust for the buyer, and he has a duty to keep up the property.
Doctrine of exoneration of liens
The devisee of real property is entitled to have any outstanding balance of a mortgage or other encumbrance on the property to be paid from the remaining assets of the testator’s estate.
Abolished in most jurisdictions –today, property passes subject to any encumbrance.
Doctrine of attornment
the tenant is bound to honor any covenant in his lease that has been assigned by the landlord to a third party, if the covenant touches and concerns the land. (assuming tenant accepted the attornment by paying rent)
Doctrine of Worthier Title:
a grantor cannot create a remainder interest in his own heirs.
Shelley’s Case rule:
a remainder interest cannot be created in the heirs of the holder of the present interest
Waiver of clause prohibiting assignment/sublease
An assignment or sublease may be waived if the landlord knows of either the assignment or sublease and does not object. When a landlord consents to an assignment or waives her right to object, she cannot then object to a subsequent assignment.
Right of entry:
future interest held by grantor following FSCS. Grantor must exercise right of entry to take possession.
A right of reentry does not automatically terminate the fee simple defeasible estate upon the happening of the condition
Right of entry transferability
A right of reentry may not be transferred during the holder’s lifetime. Can be transferred by will
