Property Flashcards
What is a defeasible fee
A grant of fee simple with express conditions
Capable of lasting forever, may terminate on occurrence event
Gives present possessor interest but also creates future interest
3 types of defeasible fees
FS determinable: time language: while, during, until. Reverter (automatic vest)
FS subject to condition subsequent: conditional language: “but if” “on condition” “provided” creates right of reentry, must be exercised to be vested
FS subject to executory interest. When a 3P (fucking executives) gets the right if the condition occurs.
What interest follows a life estate and when/how does it vest?
A remainder follows a life estate. It can be:
Vested: if ascertainable grantee AND subject to condition precedent (other than death)
Contingent: if grantee is not ascertainable (like not born yet) or there is a condition (To a for life, then B, but only if B survives A)
4 unities necessary to create a joint tenancy, plus extra statement necessary
Possession
Interest
Time
Title
MUST indicate:
- right of survivorship
- intent to create JT
What severs a joint tenancy:?
If any of the 3 unities are destroyed, mainly:
- conveayance of interest to 3P
- ataching a mortgage in a title theory state
3 Obligations/duties of co-tenants.
- Operating expenses: divided by ownership interest
- Rent payments from 3P divided by ownership interest
- Repairs and improvements, even if necessary are NOT reimbursable. But person who paid can get credit in partition action
What is ouster and how does it get solved?
When one co-T denies another access to property
REMEDY: injunction and/or damages
When will a court order a partition by sale rather than in kind?
Preference: divide up property in kind
Will order by sale: if not practical to fairly divide property (say a studio apartment)
4 types of leasehold (tenancy)
how is it determined
tenancy for years: fixed and knowable time (6 months, 3 years, etc). Auto terminates at end
Periodic tenancy: repetitive, ongoing until termination notice (see other card)
Tenancy at will: indefinite time, terminated w/o notice
Tenancy at sufferance: after lease expires, tenant stays. Until evict, re-lease, or vacate
generally determined by lease contract, and each must perform according to valid contract
how to terminate a periodic tenancy
month-to-month
must give notice to terminate
notice effective on last day of subsequent term
I give notice Jan 3, effective Feb 28th
how to create a tenancy at will
Must be:
-stated in K OR implied (ongoing payment of rent at will)
IF K gives at will right to terminate to tenant, does not automatically give that right to LL
HOWEVER, K cannot give right only to LL, tenant automatically get it
What is the tenant’s primary duty to LL and when is it suspended?
PAY RENT
suspended:
1. premises destroyed (if tenant didn’t cause it)
2. eviction, complete OR partial
3. LL materials breaches lease (implied warranty of habitability)
What is the applied warranty of habitability, describe it, and what are result of breaking it
All rental dwellings have implied warranty of habitability.
CANNOT be waived
reasonably suitable for basic human needs
IF BREACHED:
-does not have to vacate and terminate the lease, but can
-withhold rent IF gave notice of problem and reas opp to fix it
-fix it and charge LL
-defend against constructive eviction (see quiet enjoyment)
what is the implied covenant of quiet enjoyment and how does it operate?
-implied in ALL leases
-means LL won’t come bug you by
taking action
that renders place unsuitable for intended purpose
BREACH results in resulting in CONSTRUCTIVE EVICTION, which occurs only when above happens AND
- tenant notified LL and LL did not fix in reas time
- tenant vacates after waiting reasonable time
MUST VACATE for constructive eviction, not for habitability.
How does an assignment of a lease work vs a sublease:
- assignment: complete transfer of remaining time on lease. LL can get $ from both tenants
- sublease: transfer for not complete period. LL can only get from original tenant, who can get from subleasee. Basically it’s 2 Ks, and the LL and subleaser don’t owe each other $
What can terminate a lease before its end without legal consequences for anyone?
Surrender. When T returns possession to L and L consents
What is abandonment of a lease?
Tenant returns lease w/o LL consent. Tenant still owes rent until end of rental OR LL finds new tenant.
LL has obligation to take normal, reasonable measures to find new tenant (majority rule–under minority rule he does not, esp commercial leases)
What is the definition of a real covenant?
A real convenient is a promise concerning the use of land that runs with the land, including the successors in interest to the original promisor.
What is the benefit/burden of a covenant?
The benefit of a covenant is the ability to enforce ti, and the burden is the requirement to obey it.
What elements must be present for a BENEFIT of a covenant to run to successors in the land?
WRIT: Writing, relaxed vert privity, Intent, Touch and Concern
- Writing. In the original conveyance, must satisfy SoF
- Intent –original parties intend that covenant runs with land
- Touch and Concern. Must do SOMETHING to land, even if just help property values of both parties
- Privity–RELAXED vertical. must be successor in interest, can only take previous interest or a carve-out (like a life estate cannot give a fee simple and keep the benefit of a covenant)
What elements must be present for a BURDEN to run with the land?
Harder than benefit. First 3 the same:
Writing
Intent
Touch and Concern
THEN ALSO:
Privity:
Strict vertical privity: successor must take ENTIRE interest of original promisor
Horizontal: original document of conveyance between promisors must contain the covenant
Notice: new owner must have it. Can be
Actual: someone told him, it’s obvious in K, etc.
Constructive: lie record notice, it’s in the deed records in the County, etc.
What kind of damages can one get for a breach of covenant versus a breach of an equitable servitude?
covenant: $ damages or injunction
equitable servitude: injunction
wtf is horizontal privity
The instrument used to convey the property when the covenant was formed must contain both the estate and the covenant.
BASICALLY: the deed itself in the original conveyance must contain the covenant
What 4 things are required for an equitable servitude to exist?
TWIN: because twins are equal and serve each other! Like when they make weird languages and stuff! Touch and Concern Writing Intent Notice
what are the elements of an implied reciprocal servitude
- common scheme for multiple lots–intent to create it, like in planned community
- must be negative–prohibited from doing something, not forced to do it
- party against whom enforced must have notice: actually, inquiry, or constructive (record)
- writing NOT required–can be implied from common scheme
What is an easement?
A limited right to use land one does not possess.
Ways to create an easement
Express: grant or reservation upon sale
Implied:
By implication: when land is divided, owner used it as though there was an easement and that continues
By necessity: after land divide, need to use adjoining property creates easement
By prescription: Hostile, Open/Notorious, Continuous for stat period (no exclusive)
Elements to create easement by implication
- Owner of a property used whole property in certain way
- Owner divides property and sells part
- sold part of property contains part that owner used in certain way
- owner’s use after sale must be continuous and apparent
- must be reasonably necessary for owner’s continued use and enjoyment.
How to terminate an easement
RMAPSEE:
Release. Express in writing
Merger. easement holder acquires title to land
Abandonment. affirmative demonstrate intent to never use again (not just non-use or a statement)
Prescription. If holder fails to protect against trespassers for statutory period
Sale (to bona fide purchaser). MAY be terminated in landowner sells property
Estoppel. Easement holder promises landowner he won’t use it and landowner reasonably relies to detriment
End of Necessity. If based on necessity but county builds new road.
What makes chattel into a fixture on real property? 4 factors
- owner show intent by attaching it to real property
- importance of chattel to RP
- whether chattel was specially designed for use on RP
- amount of damage to RP that removing it would cause
Land sale K requirements and 2 exceptions
Must satisfy SoF:
1. writing, signed by pty to be charged AND
2. contain all essential terms (parties, price, payments, description of property)
EXCPETIONS:
1. Partial performance says K exited. Any 2 of: possession, payment of all/part, AND/OR improvements to land
2. promissory estoppel: reasonable reliance, foreseeable too promisor, on K. Hardship if not enforced.
Can covenants in the land sale K be enforced after the sale and transfer are complete?
Not unless the covenants in the K are also in the deed. The land sale K merges into the deed.
Two stages of merger of land sale K and deed:
- Contract stage. Before closing (when ownership transferred) liability based on land sale K
- Deed stage. After closing, liability must be based on deed warranty
What is in the implied covenant of marketable title? Examples?
Every land sale K has duty to convey marketable title, meaning free from unreasonable risk of litigation.
Examples: squatters, future interest holders who didn’t agree, mortgage/covenant/optionK/easement, zoning violation, OR significant physical defect that is not curable.
If title is unmarketable at time of land sale K, what happens?
- seller can cure it BEFORE closing
- if not cured before closing, BUYER can rescind
- purchaser may waive marketable title requirement
what is the implied warranty of fitness or suitability?
warrants that is safe and fit for human habitation
applies to:
-new construction
-latent defects (not discoverable from reasonable inspection)
WHO CAN SUE: some states only first buyer, other states later buyers also
What defects must a seller disclose to a buyer?
Duty to disclose known material defects to buyer. Material means it substantial impacts:
-property value
-proper desirability
-OR health and safety of occupants
“As is” clause is not enough to get rid of duty to disclose
Who bears the risk of loss during the period between K executions and deef transfer?
Majority: purchaser holds equitable title if not real title.
SO:
purchaser has risk of loss to property, But seller has right of possession (has legal title)
Minority: UVPRA, places risk on seller until deed delivered
Definition of mortgage
Security device use to secure promise to pay a loan. Allows lender to foreclose on property on default of debt.
2 types of mortgage
Purchase money: Loan for purchase of property
Future advance: second mortgage used for various things
Alternatives to a mortgage, still security devices
- Deed of trust. When 3 parties, including a 3P trustee who holds title until loan paid.
- Installment land K. Seller retains title until final payment
- Absolute deed. transfer deed itself instead of security interest
What can release a mortgaged borrower from liability font the mortgage AFTER a transfer?
Generally, a borrower may transfer a mortgage property by deed(sale), will, or intestate. However, borrower is still liable on the mortgage unless”:
-lender releases OR modifies new buyer’s obligation
Difference between assuming a mortgage on property transfer vs taking title subject to the mortgage
Neither removes liability for original borrower unless lender agrees!!
If transferee assumes mortgage: liable first, then borrower second
If transferee takes subject to (DEFAULT), NOT personally liable on default but borrower is!
What are two types of acceleration clause?
Due on sale: lender can demand full pmt on transfer
Due on encumbrance: allows demand of accelerated payment if buyer gets 2nd mortgage or other encumbrance
Mortgage priority: who gets paid on foreclosure?
Interests before the one foreclosed survive foreclosure, ones afterwards are extinguished
First. person foreclosing.
THEN: satisfies first in time UNLESS: (skips priority)
PMSI. Purchase $ mortgage has priority over all others arising prior to borrower’s acquisition
Recording. junior may skip senior if there is a recording act
Subordination agreements.
Mortgage modifications: senior lender and borrower may agree to modify, but this does not change the original priority of the mortgage. If it puts more burden on borrower, then only the changed part becomes subordinate to other parts.
Adverse posession: elements
ECHO
Exclusive of owner
Continuous for statute period (tacking w/ privity agreement)
Hostile–no consent, adverse to owner’s interest
Open and Notorious- must use as true owner, no concealment
Elements for a valid deed and deed transfer
Valid deed must:
1. satisfy SoF
2. ID both parties
3. describe property enough to know what it is
4. BE delivered and Accepted
Delivery: not actual delivered: just need demonstration of grantor’s present intent to transfer for reals. Counts if gives to agent with clear instructions to deliver.
Acceptance: presumed if transfer is for value. Must show is not
3 types of deed
General Warranty: guarantee against defects of title (not the physical property), even if grantor didn’t cause them
Special warranty: against title defects caused by grantor
Quitclaim: no guarantees re: title health
6 covenants in general and special deed
Present (extinguished at transfer)
1. Right to convey (no option Ks)
2. Seisin. Deed describes of which grantor is rightful owner
3. Encumabnrances. no undisclosed stuff that could affect value: easements, mortgages, etc.
Future convenants:
4. quiet enjoyments. Will defend against future challenges to title
5. warranty: future development that extend into property boundary (like a new easement claim?)
6. further assurances: promise to do what reasonably necessary to cure future title problems
Recording status: common law and 3 statutes
CL: Recording not relevant. first in time.
Race statute: First to record wins. notice does not matter.
Notice statutes: subsequent PFV gets title if bought WITHOUT NOTICE of prior conveyance. So if prior unrecorded and no notice deed (wild deed!!) they are screwed
Race-notice: purchaser gets title IF they had no notice of prior conveyance AND they record first.
What is “notice” for recording act states?
Actual. Personal knowledge of previous purchase of land you want to buy from same dude
Constructive notice: prior interest is recorded
Inquiry notice: when a reasonable investigation would have told them there’s another claim to ownership (like it’s sold as vacant land but someone has moved in trailer and planted a garden)
What is the Shelter Rule?
If I buy property from a bona fide purchaser (pays $, not gift), then I get the shelter of the same status re: property ownership that they had.
