Property Flashcards
Estate Classification: Present Estates:
-fee simple absolute
divisible, descendible and alienable
fee tail
abolished and turns into a fee simple absolute
life estate
-requirements: life tenant limited by doctrine of waste (see below)
-future interest: reversion in grantor or remainder in 3rd party
-if life estate in 2 persons, contingent remainder in fee simple upon the death of the first
defeasible fees:
-fee simple determinable <–
-fee simple subject to condition subsequent
-fee simple subject to executory limitation
-fee simple determinable: requirements: clear and conditional language, violation of which leads to automatic forfeiture
-characteristics: divisible, descendible, alienable – BUT always subject to durational condition
-future interest: possibility of reverter
fee simple subject to condition subsequent
requirements: clear language that grantor has a right to re-enter
-characteristics: divisible, descendible, alienable, subject to condition.
-if violated, interest may terminate at grantor’s option
-future interest: right of entry
fee simple subject to executory limitation
-characteristics: divisible, descendible, alienable subject to condition
-future interest: shifting executory interest to 3rd party
future interests:
-to grantor
possibility of reverter; right of entry; reversion
Future interests:
-to a 3rd party: shifting executory interest
follows defeasible fee of some sort
-to a 3rd party: springing executory interest
occurrence of condition cuts short Grantor’s interest in property in favor of Grantee
-to a 3rd party: contingent remainder
unascertained person OR subject to condition precedent, or both. If condition precedent, conditional language appears before language creating the remainder.
-if satisfied, becomes an indefeasibly vested remainder
-to a 3rd party: vested remainder
ascertainable person AND NOT subject to condition precedent
-to a 3rd party: indefeasible vested remainder
3rd person certain to acquire future interest without condition
-to a 3rd party: vested remainder subject to complete defeasance / total divestment
3rd party’s future interest could get cut short by satisfaction of a condition subsequent
-to a 3rd party: vested remainder subject to open
remainder vested in group with at least one person qualified to take, but may add more class members
Certain Rules Affecting Future Interests: Rule Against Perpetuities (RAP): definition
voids future interest if there is any possibility that the given interest may vest more than 21 years after the death of a measuring life
RAP: Analysis
(1) last person mentioned by proper name; (2) next subsequent party not mentioned by proper name takes; (3) the rest is struck
RAP: reform
-wait and see / second look: majority of jurisdictions determine RAP at the end of the measuring life
-Uniform Statutory RAP: provides for 90 year vesting period instead of life + 21 years
suvivorship
all future interests are devisable and descendible UNLESS taking of interest is subject to express or implied survivorship contingency
class gifts
-if vested remainder subject to open, future interest of class members is subject to partial divestment from new members.
*the class closes once a member can demand possession
cy pres
if interest violates RAP. Court may amend to make it valid
waste
-life tenant must not do anything to harm future interest holders.
*Holders of vested remainder may sue for waste
The Doctrine of Waste: (Very Athletic Purple Aliens):
-voluntary or affirmative waste
-overt conduct causing a decrease in value or consume/exploit natural resource, except: PURGE
PURGE
Prior Use (if exploitation previously occurred, but limited to open mines doctrine)
-Reasonable repairs; Grant or Exploitation (land only suitable for this purpose)
permissive waste
-life T must pay all ordinary taxes and mortgage interest payments and protect the land from disrepair by conducting reasonable maintenance
ameliorative waste
acts that may enhance prop’s value not allowed unless future interest holders know + give consent
Concurrent Estates / Co-Ownership:
-joint tenancy
-creation: TTIPS: time; title; interest (equal); and possession of the whole. Grantor must clearly express survivorship rights
-characteristics: no devisable or descendible; alienable but this destroys JT
-severance: SPAM: Sale; Partition (voluntary agreement; partition in kind; forced sale); Mortgage (if title theory)
tenancy by the entirety
-material interest between H&W with right to survivorship
-creation: only H&W who take as one. Presumption when a couple takes
-descendible, divisible & alienable; no survivorship rights
rights of co-tenants
-possession
-rent from co-T
-rent from 3rd parties
-adverse possession
-possession: each has right to possess the whole; no ouster
-rent from co-T: none, absent ouster
-rent form 3rd parties: lease of premises must acct to co-T for fair share of income
-adverse possession: co-T can’t adversely posses without ouster
rights of co-Ts
-carrying costs
-repairs
-improvements
-waste
-partition
-carrying costs: each co-T must pay for portion of taxes & mortgage
-repairs: contribution from other co-T if co-Ts advised of reasonable & necessary repairs
-improvements: no contribution from co-Ts. But at partition, improver responsible for increase or decrease in value
-waste: no waste and liability if commits
-partition: any co-T can seek it
Landlord / Tenant:
-tenancy for years/term of years/estate for years
-lease of a fixed, determined period
-termination: no notice required
-requirements: more than 1 year must be in writing (SoF)
periodic tenancy
-definition
-termination
-express or implied
-successive or continuous intervals
-termination: notice required; must be at least equal to length of period with end at natural lease period
-express or implied: implied if: no duration specific but payment required a specific intervals; oral agreement of terms of years with payment at specific intervals, or if L elects to holdover T who wrongfully stays
tenancy at will: definition; termination
-no fixed period of duration.
-termination: at any time
tenancy at sufferance
-T wrongfully holds over expiration of lease
Tenant Duties:
-duty to 3rd parties
-keep premises in good repaid; liability for injuries sustained by invitees, even if L promised to repair
Tenant Duties:
-duty to repair: waste; fixtures; loss (CL and Modern)
-maintain premises and make ordinary repairs
-no waste
-fixtures: fixtures pass with ownership of land unless: private agreement OR T can remove without causing substantial harm to the premises
-loss: CL: T liable for any loss, including force of nature; Modern: if loss is without fault of T, then T may terminate the lease
Tenant Duties:
-duty to pay rent: CL; Mod; Breach with T in possession;
-CL: duty independent of Landlord’s obligations; Modern: duty is dependent on L’s covenants under the lease
-breach when T is on property: Commercial Ts may be held for new year-to-year lease if the original was more than 1 year
-Residential Ts held to nee month-to-month regardless of original term
-rent = new rent if Landlord advised T before the term of old lease OR old rent if L advised T after term
Tenant Duties: duty to pay rent:
Breach with T out of possession
-breach when T is out of possession: SIR:
-Surrender (L treats as ending the leasehold, but if more than 1 year left, writing may be required);
-Ignore: (hold T responsible for rent unpaid)
-Re-let: (hold T liable for deficiency but L must diligently try to re-let)
Landlord Duties:
-duty to deliver possession (majority and minority rule)
-majority (English Rule): put T in physical possession; if former T is on premises, L is liable for damages
-minority (American Rule): put T in possession; if former T is on premises, that is T’s issue
Landlord”s Duties:
-Implied Covenant of Quiet Enjoyment: total/partial, actual and constructive eviction
-breached by total/partial actual or constructive eviction
-total eviction: L excludes T from the entire premises; or actual or continual refusal to repair material damages that prevent habitability (which therefore terminates T’s obligation to pay rent)
-partial eviction: 3rd party retakes and physically excludes T from portion of leased premises (rent is proportionally reduced)
constructive eviction
-SING:
-Substantial Interference (chronic problem fundamentally incompatible with quiet enjoyment);
-Notice (T notifies L, who fails to respond);
-Get out (T must vacate within a reasonable time)
Other Ts
-L is not responsible for actions of other Ts, EXCEPT cannot permit nuisances and must control/police common areas
tort
-CLAPS:
-Common areas (must maintain);
-Latent Defect (warn of those be should be aware of);
-Assumption of Repairs (if you say you’ll fix, fix with reasonable care);
-Public Use Rule (defects if leasing public space);
-Short term lease of furnished apt (liable for any defects causing harm)
implied warranty of habitability (residential ONLY)
-requirements
-requirements: fit for basic human habitation as determined by housing code or independent judicial conclusion
implied warranty of habitability: breach
-breach: M + 3Rs:
-Move out (and terminate);
-Repair & deduct;
-Reduce rent (or withhold until Court determines fair market value – but put $ in escrow);
-Remain and sue (pay rent and get damages)
tenant power
-T only have the ability to assign or sublease the interest (time) he has
-if extended, then sublease for that extra time would be invalid and the subletter/assignee could be ejected
assignments
-transfer in entirety
-L and T2 are in privity of estate but not privity of contract
-L and T1 are not in privity of estate but are in privity of contract
-T2 is primarily responsible and T1 is only secondarily responsible
assignments: sublease
-sublease: only a portion of interest is transferred
-L and T2 are not in privity of estate or contract
-T1 and T2 are responsible to each other
security deposit
-L is not permitted to keep T’s security deposit beyond actual amount of damages
servitudes:
-easements: definition; terms (affirmative; negative; appurtenant; in gross)
-def: non-possessory property interest
-terms: affirmative: right to do something on servient land
-negative: requires holder to compel servient owner to refrain (limited to LASS: light, air, support, stream, scenic view)
-appurtenant: physical use/enjoyment of property. Passes auto with dominant tenement and with servient tenement UNLESS BFP without notice
-in gross: only personal or commercial advantage
servitudes:
-easements: creation
-creation: PING:
-Prescription (COAH);
-Implication (if division, implied from existing use if apparent and reasonably necessary to dominant land’s use/enjoyment
-Necessity: if division creates land lock;
-Grant: more than 1 year must be in writing
servitudes:
-easements: termination
-termination: END CRAMP:
-Estoppel: servient landowner materially changes position in reasonable reliance that easement won’t be enforced
-Necessity;
-Destruction of servient land;
-Condemnation of servient land by eminent domain;
-Release (in writing);
-Abandonment (physical action by holder expressing intent never to use again)
-Merger (if separated again later, doesn’t automatically revive;
-Prescription: servient owner interferes
servitudes:
-easements: transfer (appurtenant; in gross)
-appurtenant: both dominant and servient land owners may transfer easement to another UNLESS BFP without notice
-in gross: non-transferrable UNLESS commercial purpose
license
-privilege to enter land for specific purpose
-informal and freely revocable, unless estoppel: licensee invested substantial $/labor in reasonable reliance on continuation
license: transfer
-non transferrable
-attempt to transfer revokes license
profit
-permission to enter land to take natural resources
-same rules as easements
-transfer: owner may transfer
covenant ($ Damages)
-a contractual promise to do or not do something on land
the burden runs
WITHVN:
-Writing (by original parties);
-Intent (by original parties to run);
-Touch/Concern (provides some value to benefited party); -Horizontal and Vertical Privity (H: succession of estate between original parties, eg. grantor/ee; L/T; debtor/creditor. V non-hostile nexus);
-Notice (Actual, Record, or Inquiry
the benefit runs
WITV:
-Writing; Intent; Touch/Concern; Vertical Privity
equitable servitude (an injunction to enforce the burden):
-creation; implied servitude
-creation: WITNES: Writing; Intent; Touch/Concern; Notice; Equitable Servitude
-implied equitable servitude: majority rule requirements: a general scheme by a subdivider when sale began and Notice
—defenses: changed condition is so pervasive it affects the entire area
adverse possession
-possession for a statutory period of time can ripen into title IF it’s COAH: Continuous; Open/Notorious; Actual and exclusive; Hostile
-Possessor’s state of mind is IRRELEVANT
*NO adverse possession if owner is disabled at inception
*taking ok if privity between adverse possessors
Property Owners’ Associations & Common Interest Ownership Communities
-condos: definition and voting
-Condos: Individually owned units, but must adhere to certain community-wide restrictions. Owners’ use and maintenance of property and facilities are governed by a vote of other owners.
Property Owners’ Associations & Common Interest Ownership Communities
-condos: creation
-creation: generally created by a condominium declaration: which includes provisions, descriptions of units and common areas, and restrictions on occupancy and/or use of units
Property Owners’ Associations & Common Interest Ownership Communities
-condos: management; restrictions in declaration
-management: managed by condo association made up of owners of individual units. Makes/enforces the rules; manages common areas; sets/collects dues and maintenance fees
-restrictions in declaration: restrictions are covenants and run with the land. When challenged, restrictions typically upheld by courts.
Property Owners’ Associations & Common Interest Ownership Communities
-cooperatives: definition; creation
-definition: owned by and operated for the residents living there. Part ownership of the whole, NOT a specific unit.
-creation: created by incorporation. MUST create bylaws, membership application, obtain business licenses and permits. Resident members buy shares
Land Conveyances:
-Land Contract: writing requirements; if contract greater than size; risk of loss
-SoF requires writing UNLESS (2 of the 3): possession; payment; substantial improvements
-if the contract is greater than the actual size: specific performance with a pro rata reduction in price
-risk of loss: B owns the land when the contract is signed so buyer bears the risk
Land Conveyances:
-Land Contract: implied promises
-implied promises:
-marketable title: at closing free from adverse possession, encumbrances, and zoning violations
-no false statements of material fact: including failure to disclose latent, material defects
-no implied warranty of fitness or habitability: unless new home builder (promise of workmanlike construction)
Land Conveyances:
-Land Contract: Untimely Performance
-time is not of the essence unless stated in the contract
-performance rendered within a reasonable time after the closing date is ok
Land Conveyances:
-Deed: contract; requirements; definition of requirements
-replaces the contract as the controlling doc
-requirements: LEAD: Lawfully Executed And Delivered
-lawful execution: writing, signed by grantor, comports with statutory requirements (no considerations required and description only requires “good lead”)
-delivery: grantor must have present intent to be immediately bound
*recipients express rejection defeats delivery
types of deed:
-quitclaim
no covenants; gives what grantor has
types of deed:
-general warranty deed
Sad Crying Elvis Wants Queen Anne:
-Seisin: grantor owns the estate he’s conveying;
-right to Convey: has the power to convey without temporary restraints;
-Against Encumbrances: no servitudes or mortgages;
-Warranty: promise to defend against lawful claims by others;
-Quiet Enjoyment: no disturbance by 3rd party’s lawful claim of title;
-Further Assurances: do whatever necessary to protect title
types of deed:
-special warranty deed
-promises grantor makes on behalf of himself that he wont convey to anyone else and property is free from encumbrances made by grantor
Closing Documents:
-definition
-documents required at the close of escrow in real estate sale, including deed, closing statement, seller affidavit, transfer tax declarations, loan documents, title insurance commitment, etc.
Closing Documents:
-drafting; owner/seller affidavit
-usually drafted by broker, title co or attorney
-owner/seller affidavit: sworn statement that seller is unaware of issues with the title OR discloses known issues
Closing Documents:
-review
documents should be reviewed for accurancy and completeness. Attorney should review title insurance commitment to make sure title is clean or as promised
Closing Documents:
-correction statement and agreement form
-agreement to execute corrected docs in teh event of certain errors
-also used to provide replacement docs if any are lost / misplaced
Closing Documents:
-negotiation
-price and conditions may be negotiated further at closing to account for any issues with property discovered
Closing Documents:
-authorization to Execute Real Estate Docs
-principals (sellers and buyers). May authorize an agent to sign on their behalf (Licensed Real Estate Agent; Licensed Broker; Attorney)
Recording System:
-who is protected
-BFP: purchaser for VALUE and WITHOUT notice of someone else buying first (actual, inquiry or record notice)
-Doomed Donee: no protection for heir, devisee, or donee except Shelter Rule
-Shelter Rule: one who takes from BFP is protected just like a BFP
wild deed; estoppel
-wild deed: out of order deed which doesn’t give record notice
-estoppel: person conveying land without any interest in it is estopped from denying the validity of conveyance if he later acquires
Notice Statute
-the 2nd buyer wins if BFP and A not recorded
race notice
-1st buyer wins if he records before the 2nd buyer
Mortgages: Types
-legal mortgage
-encumbrance in writing
equitable mortgage
deed absolute on face given as collateral
transfer
-the note must be negotiable and made payable to named mortgagee;
-original note must be endorsed and signed by mortgagee;
-original must be delivered;
-transferee must take note in food faith without notice illegality;
-transferee must pay value for not
-transferee is holder in due course
trasnfer: defenses
T takes free of personal defenses but subject to real defenses (MAD FIFI4: material alteration, duress, fraud in factum, incapacity, illegality, infancy, insolvency)
selling with mortgage: assumption of mortgage; subject to mortgage
-assumption of mortgage: debtor and buyer are personally liable
-buyer primarily liable; debtor secondarily
-subject to mortgage: buyer has no personal liability; only owner is personally liable but home can still be foreclosed
Foreclosure (Judicial Action):
-joinder
-joinder: all junior lien holders must be joined or mortgage will remain on the land
-D must be joined if seeking deficiency judgement
Foreclosure (Judicial Action):
-amount
-if the sale is less than the debt: the mortgagee brings a deficiency action
-if the sale is more than the debt: junior liens are paid in full by order or priority, surplus to the debtor
Foreclosure (Judicial Action):
-senior interest
-not affected by foreclosure
-Buyer at sale takes subject to senior interest, which can still foreclose on if not paid
Foreclosure (Judicial Action):
-priority
-first to record, first in right
-BUT purchase money mortgagee has “super-priority”
Foreclosure (Judicial Action):
-redemption
-in equity: up to the date of sale, the debtor may pay missed payments + interest + costs
-statutory redemption: half of the states allow to redeem within a fixed period, eg. 6 months. The mortgagor has the right to possess during that time.
Foreclosure (Judicial Action):
-acceleration clause: definition
-requires the borrower to pay off loan immediately if certain conditions are met (eg. missed multiple payments, sale of property that impairs lender interest)
-must pay the principal balance & interest accumulated before the clause is invoked
-often used by lender before foreclosing on property
Foreclosure (Judicial Action):
-acceleration clause: invocation and waiver
-invocation: not usually automatic; lender has the choice once the clause is triggered; may lose the right to invoke if borrower corrects the default first
-waiver: parties may waive by express agreement OR if induces detrimental reliance of others based on their actions
Zoning:
-variance
-creates flexibility
-requirements: (1) undue hardship; (2) variance won’t decrease neighboring property value
-determined by admin action before the zoning board
Zoning:
-non-conforming use
-once lawful but no longer bc of new zoning ordinance
-can’t be eliminated all at once unless just compensation is paid
Zoning:
-unique exactions
-amenities the government seeks in exchange for granting permission to build
-inherently suspect: must be reasonably related in nature and scope to the impact of the proposed development
Zoning:
-religious land use (RIULPA)
-Institutionalized Persons Act (RIULPA): no zoning restrictions that impose a substantial burden on religious exercise of a person/institution unless a compelling governmental interest
Zoning:
-cumulative zoning
-zones are ranked in hierarchy
-residential zones = higher; business zones = lower
-uses allowed in higher zones also allowed in all lower zones BUT no use is allowed in higher zone than the zone it was originally listed (eg. may build residential home in business district, bit no business in residential district)
Zoning:
-non-cumulative (exclusive) zoning
-allowed uses are exclusive to individual district (eg. no residential building in business district)
Zoning:
-grandfather clauses
-exempts a business / class of persons from new zoning rules/regulations
-validity: typically valid if lawful non-conforming use. But there is an expectation that non-conforming use will come to an end (eg. factory in a residential zone may be prohibited from upgrading facilities since would indicate no intent to eventually conform)
Misc.: lateral support
-strict liability if excavation causes adjacent land in natural state to cave or if land with building can show that the land would have collapsed in natural state
*otherwise, negligence
Water Rights: riparian doctrine
-water belongs to landowners (riparians) bordering water course. Liable only for unreasonable interference with other’s use
prior appropriation doctrine
-water initially belongs to the state
-the right to divert and make beneficial use can be acquired by individual
-rights determined by priority of beneficial use (eg. agriculture) first in time, first in right generally
groundwater
-surface owner has the right to make reasonable use of the water beneath the surface, but can’t be wasteful
surface water
-common enemy rule: landowner can change the drainage, but can’t unnecessarily harm the land of another
Conflicts of Law:
-disposition of property
-disposition (be decent, deed or any other method) is governed by the laws of the place where the property is located
-BUT: if the property is only INCIDENTAL to the contract and the contract is personal in nature, then traditional conflicts of law rules for contracts apply
validity of contract
-if no choice of law by parties, the validity of contract is determined by local law of the state where the property is located UNLESS another state has a more significant relationship under choice of law principles to the transaction or parties
executory contract for the sale of law
-typically governed by the law of the jurisdiction where the property is located BUT in some jurisdictions, the validity and effect of the executory contract for land sale is governed by the place where the contract is made and to be performed
