Property Flashcards
1
Q
Joint tenancy
A
each party owns 1/2 with right of survivorship
2
Q
tenancy in common
A
each party owns half with no ROS
3
Q
tenancy by entirety
A
only applies to married couples and SS has a ROS
4
Q
Real estate contract key elements:
A
1) must be in writing
2) include essential terms (parties, price, terms)
3) execution transfers equitable title via equitable conversion doctrine
4) marketable title is implied in the k
5
Q
Key elements of a deed
A
1) seller intent to convey the deed
2) assumption by buyer is presumed
3) legal description of the property
4) identifiable grantees
5) merger of real estate K
6) execution conveys legal title
6
Q
general warranty deed
A
conveys clean title, promising title is ok going back in time
7
Q
special warranty deed
A
conveys clean title promising title is ok while current owner lived there
8
Q
quitclaim deed
A
conveys only what title seller had, no promises
9
Q
mortgage
A
a loan used as collateral on the property
10
Q
purchase money mortgage
A
money borrowed that goes toward buying the house – always has priority!!
11
Q
“Subject to” mortgage
A
DEFAULT RULE! Original owner remains liable on the note
12
Q
“Assumable” mortgage
A
New owner becomes personally liable on the note
13
Q
In a “subject to” mortgage, if the seller does not pay the mortgage…
A
the bank cannot come after the buyer for mortgage payments BUT the bank has the legal right to foreclose on the property
14
Q
In an “assumable” mortgage, who is primarily responsible for mortgage payments?
A
The buyer… but the bank may come after the seller secondarily unless they executed a novation
15
Q
Lien theory state
A
Lender has a lien on the property, buyer has legal title
16
Q
Title theory state
A
Lender has legal title to the property, buyer only has equitable interest until they pay off the mortgage
17
Q
Equitable Redemption
A
Period of time from notice of foreclosure until sale so that resident can pay off the entire debt owed and keep property
18
Q
Statutory redemption
A
additional period of time after the foreclosure sale that provides residents opportunity to pay off foreclosure sale price (may include missed mortgage payments + interests) and keep property
19
Q
Race recording statute
A
first person to courthouse who records the deed wins
20
Q
Notice recording statute
A
last BFP for value without notice wins
21
Q
Race notice recording statute
A
first BFP without notice who records first, wins
22
Q
easements by necessity
A
landlocked area
23
Q
easements by implication
A
implied by law:
- from prior use or
- by necessity
24
Q
prescriptive easements
A
Continuous
Open and Notorious
Actual (but not exclusive!!!)
Hostile
For the statutory period!!
Q needs to give you a statute
25
Easements last...
FOREVER unless they are terminated
26
Covenant
a promise between two owners to do something
27
restrictive covenant
a promise NOT to do something
28
Equitable servitude
Restrictive covenant IN A SUBDIVISION
where one party is trying to get an injunction
29
License
The least amount of a right you can have on another's land
It is permission to enter the land but is revocable at will
30
Profit
You have the right to take something off the land or extract out of it (mineral, copper, soil)
31
fee simple absolute
own 100% forever
32
life estate
own 100% for your life, future interest goes to remainders
33
reversion
the grantor has a reversion in the life estate
34
vested remainder
the remainderman will automatically get the property
35
contingent remainder
the remainderman will only get the property if something happens
36
possibility of reverter is
AUTOMATIC!
37
fee simple determinable
interest in land that will automatically end if something happens ("so long as")
EX: A to B, so long as it is used for residential purposes.
38
fee simple subject to condition subsequent
interest in land but if an event occurs, the grantor and heirs have a right of re-entry
39
"A to B, so long as B uses it for residential purposes." -- If B stops using it for residential purposes and opens up a museum, what happens to the interest in the land?
Automatic reversion to A
40
"A to B, but if B starts selling alcohol then. . ."
what happens
A gets a right of re-entry but it is not automatic
41
Rule Against Perpetuities
If either fee simple determinable or condition subsequent, and it goes to a 3rd grantee (not reversion or reentry) then RAP applies and the 3rd conveyance is void
42
A to B so long as B uses it for residential purposes but if B does not, then to C ...
what type of interest?
VOID. RAP applies. A to B is fee simple determinable but the conveyance to C is void.
43
Landlord duties
1) duty to deliver physical possession
2) duty of warranty of habitability
3) implied covenant of quiet enjoyment
44
tenant duties
1) duty to pay rent
2) duty to not commit waste
3) duty to repair (routine repairs only)
45
who is liable for payment in a sublease?
original tenant is primarily liable
46
who is liable for payment in a lease assignment?
new tenant is primarily liable but the landlord can come after the original tenant unless they executed a novation
47
fixtures
chattel that, by removing, would damage the property
48
4 type of leasehold estates
1) tenancy for years = known, fixed period of time (end date)
2) periodic tenancy = continuous, successive intervals
3) tenancy at will = created by express agreement
4) tenancy at sufferance = tenant won't leave
49
periodic tenancy is implied by law in 3 ways
1) lease with no mention of duration but rent is set at intervals
2) oral term of years that violate SOF
3) residential lease where L chooses to hold over T who has wrongfully stayed past the end date of the original lease
50
Implied covenant of quiet enjoyment
arises by implication in every residential and commercial lease
T has a right to quiet use and enjoyment of the premises without interference from L
51
how does a Landlord breach the implied covenant of quiet enjoyment
Wrongful Eviction:
1) actual eviction - L excludes T from the entire leased premises
2) partial eviction - L excludes T physically from part of the leased premises
**both relieve T of obligation to pay rent***
OR
Constructive Eviction
When the Landlord's breach makes the premises unsuitable for occupancy
SING
Substantial Interference
Notice
Get out
[T NEEDS TO MOVE OUT IN ORDER TO PLEAD CONSTRUCTIVE EVICTION]
52
T's entitlement when Implied Warranty of Habitability if breached
MR3
Move [out and terminate the lease]
Repair [and deduct]
Reduce [rent or withhold all rent]
Remain [in possession]
53
retaliatory eviction
when L terminates a lease to penalize T for exercising their legal rights
NOT ALLOWED!
54
Anti discrimination legislation in leases
Civil rights act - bars racial or ethnic discrimination in sale or rental of property
Fair housing act - protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, and family status
***EXEMPTION to fair housing act: if (1) owner occupied building with 4 or less units and (2) single family homes sold or rented by an owner who owns no more than 3 single family homes
55
Reasonable accommodations by L
under the fair housing act, L must make reasonable accommodations under existing premises to accommodate disabled T (accommodations are paid by T)
56
privity of estate
the parties who have possession of the property (in an assignment, the new T and the landlord)
57
common law of caveat lessee
Let the Tenant beware! Landlord has no duty to make the premises safe.
EXCEPTION: CLAPS
C- common areas (L has duty of reasonable care in maintaining common areas)
L- latent defects (L must warn T of hidden defects L knows or should know about)
A- assumption of repairs (L has no duty to make repairs, but if L does, must complete them with reasonable care)
P- public use rule (if L leases public space and knows or should know of a defect, T will not be liable for defects on the property that cause injury to members of the public)
S- short term lease of furnished dwelling (L has stricter duty and is responsible for any defective condition which injures T)
58
how are negative easements created
negative easements can only be created expressly, by a writing signed by the grantor (there is no natural or automatic right to a negative easement)
59
Methods of creating an easement
PING
Prescription
Implication
Necessity
Grant
60
8 ways to terminate an easement
END CRAMP
E- estoppel (oral expression of intent to abandon + servient estate reasonably relies on it)
N- necessity (expires when the necessity ends)
D- destruction (of the servient land)
C- condemnation
R- release (written agreement to end)
A- abandonment (intent + non-use)
M- merger (1 buyer buys both properties)
P- prescription (servient owner extinguishes it by meeting adverse possession (COAH) elements
61
Requirements for burden of restrictive covenant to run with the land
WITHN
Writing
Intent
Touch and concern
Horizontal and vertical privity
Notice
62
Horizontal privity
the original parties that CREATED the covenant both had an interest in the land, independent from the covenant
EX: neighbors, dont have horizontal privity
63
vertical privity
When the person who has the land sells it to someone else
the only time there will not be vertical privity is if the successor got the land through adverse possession
64
Requirements for benefit to run
WITV
Writing
Intent
Touch and concern
Vertical privity
65
What does touch and concern the land mean?
When its affecting the parties as landowners
- aka, the covenant is restricting an owner of land from doing something or requiring owner of land to do something
66
General remedy for restrictive covenant breach
money damages
67
General remedy for equitable servitude breach
injunction
68
Implied Equitable Servitude (General or Common Scheme Doctrine)
exception to the requirement that the covenant be in writing:
Court will imply a negative servitude if there is a common scheme when the sale began and the Defendant lot holder had notice of the covenant (AIR)
69
A court will not enforce an equitable servitude if:
- changed conditions (so significant that the entire area has changed)
70
Adverse Possession
Possessor must show COAH to establish title:
C- continuous
O- open and notorious
A- actual and exclusive
H- hostile
71
Tacking
Adverse possessor can tack on to their time with the land, their predecessor's time, so long as there is privity between the possessors
*** NO PRIVITY IF adverse possessor got the land by OUTSTING their predecessor
72
SOL for adverse possession and disabilities
SOL will not run against a true owner who has a disability AT THE INCEPTION of the adverse possession (aka, when the cause of action first accrued)
73
Land sale K must satisfy the SOF by being:
- in writing
- signed by the party to be charged
- identify parties, land, and price
74
Exception to SOF requirement of Land Sale K
If a land sale K is not in writing, the only exception is part performance where 2/3 need to be shown:
1) possession
2) full or partial payment
3) substantial improvements
75
Under the doctrine of equitable conversion, who bears the risk of loss?
the buyer (because they are considered the owner of the property for all purposes once a K is in place)
76
time between the signing of the K and the closing is called
the escrow period
77
two promises implied in every land sale K
1) implied promise of marketable title
2) implied promise that seller will not make false statements of a material fact
78
remedies for breach of land sale Ks
damages (difference between the K price and the market value on the date of breach) + incidental damages
OR
Specific performance because land is unique
79
requirements of a valid deed
- writing signed by grantor
- unambiguous description of the land
- identification of the parties
- words of intent
80
description of the property in a deed
doesn't need to be perfect--just needs to be specific enough that we can identify the land easily and unambiguously
81
delivery requirement of a deed
can be met even if actual delivery doesn't occur, so long as there is PRESENT INTENT
rejection of delivery by grantee = there was no delivery
82
Transfer of property to third party with conditions (escrow transaction)
once the conditions are met, title will automatically pass from the escrow agent to the grantee
83
bona fide purchaser
purchaser of property that pays value and takes without notice of prior interests in the land
84
inquiry notice of BFP
BFP has a duty to inspect the premises
85
Shelter Rule
Anyone who takes from a BFP will prevail against another BFP
Ex: O to A, A does not record. Later, O conveys the same property to B, a BFP who records. B then conveys to C. Between A and C, C prevails because they "Step into" the status of the BFP... C is protected by shelter rule
86
Wild deed
If a deed, entered on the records, has a grantor unconnected to the chain of title, the deed is wild and INCAPABLE OF GIVING RECORD NOTICE OF ITS EXISTENCE
EX: O sells to A, A does not record. A then sells to B. B records the A-to-B deed. B's deed is a wild deed because we are missing the O-to-A link.
87
Estoppel by deed
Where grantor sells to grantee but grantor does not really own, and then grantor gets title to property, title automatically vests in grantee
EX: O owns Blackacre. X does not. X sells it anyway to A, who records. Later, O sells Blackacre to X, X records. Title automatically vests in A. X then sells Blackacre to B. Between X and A, A wins. But between A and B, B wins because A's deed is technically "wild" and could never have given notice to B.
88
Mortgagor
the person who borrowed the money
89
Mortgagee
the person who loaned the money
90
Mortgagee may transfer their interest by:
- indorsing the note and delivering it to the transferee OR
- executing a separate document of assignment
91
If a necessary party is not joined in a foreclosure
Their mortgage will remain on the land
92
The variance
Landowner gets permission to depart from zoning ordinance if they can show:
1) undue hardship +
2) no diminution to neighboring property values
93
A once lawful use is now deemed nonconforming by a new zoning ordinance. Can the once lawful use be eliminated all at once?
No not unless just compensation is paid for the taking
94
Cumulative zoning
Land may be used for the purpose for which it is zoned AND ANY HIGHER USE
95
Noncumulative zoning
Land may only be used for the purpose for which it is zoned
96
Special use permit
The zoning is proper for the intended use but because their operation could impose a safety issue, they need this permit to comport with a standardized checklist
think: funeral homes, hospitals, drive in businesses
97
Lateral support
landowners have a right to have their land supported in its natural state by adjoining land
98
If a landowner excavates and causes adjacent land to subside
landowner is strictly liable
99
If land is improved by building and an adjacent landowner's excavation causes the improved land to cave in...
excavator will be liable ONLY IF NEGLIGENT
but
if landowner can prove that their land would have caved in even if in its natural state (aka without the buildings) then excavator will be strictly liable
100
Riparian doctrine
Water belongs to those who own the land bordering the watercourse (lake, river, stream, etc)
101
Natural flow theory of riparian doctrine
a riparian owner's use can be enjoined if it results in substantial or material diminution of the water's quantity, quality, or velocity
102
Reasonable use theory of riparian doctrine
MOST COMMON THEORY
All riparian's share the right of reasonable use of the water (so you are not enjoined unless it substantially interferes with the use of OTHER riparian owners)
103
Prior Appropriation Doctrine
The water initially belongs to the state, but the right to divert it and use it can be acquired by an individual through their actual use, regardless of whether or not they happen to be a Riparian owner
(aka- someone can acquire the right to divert and use water from a watercourse merely because they are the first to do so)
104
Surface waters
water without a channel that passes over land (aka- rain water, melted snow,) -- water that has not yet reached a natural watercourse or basin
105
Common enemy rule
An owner can take any productive measure to get rid of the surface water BUT an owner must not unreasonable harm or interfere with others use of their parcels
THINK: our common enemy is the surface water, we all want to get rid of it
106
Fee simple subject to an executory interest
Fee simple that goes to a 3rd party rather than to grantor or giving grantor a right of re-entry
107
To Perry so long as he remains a lawyer, and if he leaves the legal profession, then to Tina. What does Perry have? What does Tina have?
Perry has a fee simple subject to an executory interest and Tina has a shifting executory interest
108
Difference b/w fee simple determinable and fee simple subject to executory interest
Fee simple determinable: if the event happens, the property automatically goes back to the grantor
Fee simple subject to executory interest: if the event happens, the property automatically goes to someone other than the grantor
109
Rule against alienation
An absolute ban on the power to sell or transfer ones interest is not allowed if it is not linked to any reasonable time-limited purpose.
Example: to A so long as she never attempts to sell. (Void. The condition is stricken)
110
Conditions or limitations of future interests that violate public policy
If the purpose of the condition is to penalize marriage or encourage divorce it will likely be struck down. But if it give support until marriage or in the event of divorce, it will likely be upheld
111
Life estate pur autre vie
Life estate that is measured by a life other than the grantees.
Ex: "To A for the life of B."
Also applies if a life tenant conveys their life estate to another.
(If A holds a life estate and conveys their interest to B, B has a life estate for the life of A.)
112
Indefeasible vested remainder
There are no conditions.
Ex: "to A for life, remainder to B."
113
Vested remainder subject to total divestment
Vested remainder subject to a condition subsequent. The remaindermans right to possess can be cut short if the subsequent condition occurs.
Ex: "to A for life then to B and his heirs, but if B dies unmarried, then to C and his heirs.”
114
Vested remainder subject to Open
Created in a class of persons. The interest is certain to become possessory but is subject to diminution.
Ex: “To A for life then to Bs children” A is alive and B has two children. Bs children have a vested remainder subject to open because more children can be born.
115
Shifting executory interest
Always follows a defeasible fee and cuts short someone other than the grantor.
Ex: To A for life, but if B returns from Canada, to B and his heirs.
B has a shifting executory interest because it cuts short A (someone other than the grantor) and A has a fee simple subject to Bs shifting executory interest.
116
Springing executory interest
Cuts short the interest of the grantor
Ex: O conveys to A, if and when she becomes a lawyer.
A is in high school
A cuts off the grantors interest once she becomes a lawyer
A has a springing executory interest
O has a fee simple subject to As springing executory interest
117
Executory interest with no time limit
Violates RAP!
Ex: To A for so long as no liquor is consumed on the premises, then to B
