property Flashcards
what is an affirmative easement
A right to do something on someone else’s land
what is an easement
right held by one person to make use of another’s land
requirements for easement by necessity
1.both estates were commonly owned then severed and one became useless w/o the easement
2. 2nd property is completely landlocked with no road access
what can the holder of an easement do to end the easement
Expressly release it in writing (to comply with SOF) Or abandonment - but that requires more than non use- need non use plus an act to abandon. Must show clear intent to relinquish the easement
What does the burden of the covenant refer to
the party subject to the covenant
what is horizontal privity for a covenant
If the original parties made a transfer of property and created the covenant at the same time
Need horizontal privity for the burden of the covenant to run
what is vertical privity
relation b/ original party to agreement and successor. For Burden to run, need strict vertical privity- must give your entire fee simple estate
what is the remedy for the breach of a real covenant
money damages
What is a profit
Going on land of another to remove natural resource: timber, oil, minerals
what is a license
Revocable permission to use another’s land. Ie plumber in your house
What is a vested remainder subject to open
A class gift where at least one member is known
What is a contingent remainder
the remainder is created in an unknown person OR it is subject to a condition that must happen before the grantee takes possession
what is the future interest for FSD
possibility of reversion or executory interest
What is the future interest for Fee Simple subject to condition subsequent
right of re-entry (not automatic)
What is future interest for Fee Simple subject to executory condition
executory interest
when can a tenant not pay rent
- destruction of premises Not caused by tenant or
- material breach of lease by LL- by breach of covenant of quiet enjoyment or breach of implied w of habitability
2 types of executory interests
- springing- divests grantor. O–> C
- shifting, divests grantee when one condition happens. B–> C
If tenant stays past end of lease what are LL’s options
- eviction
- bind holdover tenant to new periodic tenancy
What language is used to create Fee simple determinable
DURATIONAL- so long as, while, during
what is ouster
When one co tenant refuses to let other co tenants onto the property
What type of leases have the implied covenant of quiet enjoyment
All leases
Tenant remedies of LL breaches Warranty of Habitability
Refuse to pay rent
Fix the problem and subtract cost from rent
Defend against eviction action
What is constructive eviction
LL breaches a duty to tenant that prevents tenant’s use of the home- i.e no water or heat
What is a wild deed
Deed that wasn’t recorded properly so not within chain of title
What is an option contract
One party acquires the right to purchase property for set period of time in exchange for $ consideration
What is the remedy for a breach of equitable servitude
injunction
What is a novation
Agreement by landlord to release original tenant from liability after assignment or sublease
Landlord’s breach of housing codes is a breach of what warranty
implied warranty of habitability (only applies to residential)
what is an easement appurtanent
An easement concerning the land- i.e giving right of pathway across your land to the beach.
Benefit will be transferred automatically
What is an easement in gross
A personal easement (people are gross)
Ex. right to use your neighbor’s pool.
What can sever JT
If one JT sells their interest in the land/house
Or in a title jurisdiction, if one JT grants a mortgage
what is the doctrine of equitable conversion
after the buyer enters the contract for RE, they have equitable title so if the property is then destroyed, the buyer can not back out of the sale.
what is estoppel by deed
if you sell property that you don’t own but THEN YOU LATER ACQUIRE it, then the buyer gets the property
what is a restraint on alienation
A clause saying you can never sell the land- court will strike this language and resort to FSA
In a lien jurisdiction, what is the effect of a mortgage on JT
NO effect.
Lien jurisdiction is Majority rule
if mortgagor transfers property by sale, will or intestate succession, who is responsible for mortgage
mortgagor unless bank releases him or modifies obligation
what does it mean to ASSUME the mortgage
New buyer is then liable ALONG WITH ORIGINAL MORTGAGOR upon default of the loan.
What happens if the new buyer takes the property subject to the mortgage
New buyer is NOT personally liable on default
If deed is silent= subject to
In a lien theory state, when can a lender take possession on default?
after foreclosure
In a title theory state, when can a lender take possession on default
anytime b/c lender holds title
what is implied easement by ESTOPPEL
Starts with permissive use then continues. Neighbor makes improvements to easement then 1st neighbor withdraws permission.
Detrimental reliance by 2nd neighbor –> estoppel
requirements for covenant to run with the land
- writing
- intent
- notice
4.touch and concern - for burden- horizontal and vertical privity
for benefit- just vertical privity
how is an equitable servitude different from a covenant
Equitable servitude doesn’t require privity and breach is injunctive relief
what is implied reciprocal servitude
the “common plan” but not in writing- i.e all units in development painted white but nothing in your deed says that.
Need
1. intent
2. notice
3. negative restriction
4. common plan
how do you terminate an equitable servitude
merger, release, drastically changed circumstances
what is ademption
something in your will that you don’t own at the time of death
Ademption - give Away
what can a tenant do if the LL breaches the COVENANT OF QUIET ENJOYMENT (in all leases- commercial and residential)
- LL substantially interferes w/ T’s use and enjoyment of land- usually thru constructive eviction
- T gives notice, time to fix but LL doesn’t
- T MUST vacate
What types of tenants can unilaterally partition property
Tenants in Common or Joint Tenants. Not T in Entirety
what effect does a conveyance by will of a joint tenant have
none, it is invalid.
What are the 4 unities required for joint tenancy
Possession, time, title, interest
4 types of landlord tenant estates
Tenancy of Years- known end date
Periodic tenancy
Tenancy at will
Tenancy at sufferane
what is attornment
tenant’s acknowledgement of new landlord, in writing or by paying rent to new person- “torn” by a new landlord
3 requirements in land sale contract to satisfy statute of frauds
in writing
signed by person to be charged
all essential terms- name of grantee, price, description
requirements for adverse possession
OCEAN: open and notorious, continuous, exclusive, actual, non-permissive (hostile)
with right of re-entry, what happens if the grantor NEVER asserts the right to re enter the property
Whoever the grantor gave it to, keeps the property even if the condition ends
If while you are alive, you devise your house to someone in your will… and then you sell your house to someone else, who gets it?
The person you sold it to.
The part of your will where you devised it is extinguished
can you have a time limiting the right to redeem before foreclosure
No
Can one party unilaterally change the location of an easement
NO
If you sell a property as is, will that get rid of problems with the warranty of suitability- ie. construction issues?
NO
to be “hostile” for AP, can you mistakenly think it is your land
Yes. Just objectively intend to claim land as your own
what is spot zoning
Changing the zoning of just one house in an area. Generally impermissible.
Will an intervivos transfer of a joint tenant’s property interest sever a joint tenancy?
YES
will a conveyance by will by a joint tenant sever the joint tenant’s property interest
NO
Can a co- tenant get the timber/minerals/ oil of the land they share?
Yes, in proportion to ownership share
what is affirmative waste
Voluntary waste
what is permissive waste
failure to prevent, repair damage
What is ameliorative waste
Alterations to the property that may increase the property value
if there is no mention of a recording act, what principle covers
First in time, first in right
what type of statute is this an example of
“No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law”
Notice statute
What is this “No conveyance or mortgage of real property shall be good against subsequent purchasers for value unless the same be first recorded according to law”
Race statute
What is this “No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice who shall first record”
Race notice statute
Who is NOT protected under a recording act
grantees who got the property thru devise/will, intestacy, or gift
what is the doctrine of cy pres
If a charitable trust can no longer serve the purpose for which was created, the court can redirect the trust to a similar charity or purpose
what does this create:
“ to a but if a is ever arrested, then to B”
Fee subject to executory interest
What does this create?
“To a for so long as he practices law”
Fee simple determinable
What does this create
“To A but if A gets married, then to B”
Fee simple subject to executory interest
What does this create
To a but if he wins the lottery, grantor reserves the right to reenter and retake
Fee simple subject to condition subsequent
What is the future interest in this
“To A for life”
Grantor has reversion when A dies
What type of remainder is created
“to a for life then to B”
Indefeasibly vested remainder
What type of remainder is created
“ to a for life, remainder to children of B and their heirs” B has one child
Vested remainder subject to open
What type of remainder does this create
“to A for life, remainder to B but if B marries, then to C
Vested remainder subject to total divestment
what type of remainder is this
““to A for life, then to B and his heirs when B gets married”
Contingent remainder. Grantor has reversion in case B is not married when A dies. If B gets married, he would have vested remainder
To A for life then to A’s heirs
–> a has fee simple absolute (called Shelley’s Rule)
O grants to A for life then to O’s heirs, what happens to remainder in O’s heirs
It is void under Doctrine of worthier title. A instead has life estate and O has reversion
To A so long as the property is used for storage but if used for anything else then to B. What does B have
Shifting executory interest.
If A stops using the property for storage, A’s interest (not the grantor’s) is cut short
To a, if and when he gets married- what does A have
A has executory interest. Grantor has fee simple subject to executory interest
Do co-tenants have to contribute for improvements
No
Is notice required to terminate a tenancy for years
NO, it automatically ends at the end of the fixed period
Is notice required to terminate a tenancy at will
No, either party can terminate at any time w/o notice
How much notice is required for a periodic tenancy
if it is month to month, you must give one full period in advance
For year to year, must give 6 mo notice
for the implied covenant of quiet enjoyment how can the LL breach?
Landlord can breach by actual or constructive eviction
Actual- LL wrongfully evicts or excludes T from property
Constructive- landlords actions or inactions render property uninhabitable- i.e major damage to property that T gave notice on and L failed to fix.
REQUIRES TENANT TO VACATE AFTER LL fails to repair
For which implied covenant is the tenant required to LEAVE
Implied covenant of quiet enjoyment
What types of properties have an implied warranty of habitability
Residential only
elements to create an easement by prescription
similar to Adverse possession
1) continuous for statutory period
2) open and notorious
3) actual
4) hostile- w/o owner’s permission
ways easements can be ended
1) estoppel- easement holder’s conduct to abandon plus non use
2) necessity ends
3) destruction of servient property
4) release
5) abandonment- but mere words or non use is not enough
6) merger
7) expiration of a set term for easement
What is taking land under color of title
adversely possessing a part of the property under color of title can be sufficient to acquire title to the whole property
Can adverse possessors lease a portion of the land to a third party and still possess the property
Yes
Is title taken by AP marketable?
NO
Does RAP apply to conveyances from one charity to another
No
does rap apply to contingent interests in property and RIGHTS OF FIRST REFUSAL
YES- RAP applies to contingent interests, executory interest and rights of first refusal
What does it take for a class gift to satisfy RAP
Class must be closed with all conditions precedent satisfied for every member
For land in its natural state- when excavation causes damages what std do you apply
STrict liability
For land with buildings on it what must you show
Land would have collapsed absent buildings on the land due to D’s excavations for strict liability
For negligence- can be liable to damage to adjacent land or buildings even if it would not have collapsed in natural state
implied warranty of fitness or suitability
for the purchase of newly constructed homes. Under this warranty, the seller asserts that he used adequate materials and workmanship for the residence.
covers latent construction defects, including any problems that do not manifest themselves until after the sale.
-a suit for breach of the implied warranty may be brought against builders, developers, and contractors within a reasonable time after discovery of the defect. -
initial homeowner-purchaser and subsequent purchasers who do not contract directly with the commercial developer to recover damages.
in a mortgage essay what must you address
Personal liability of each party
Does a deed require 2 witnesses
NO
does a grantor’s signature on a deed need to be witnessed
No
Is consideration required for a deed/ land transfer
no
if land is owned by co tenants and it is foreclosed on, then it is purchased by one of the covenants, do the other covenants have the right to reacquire their original interests
Yes, by paying their share of the cost
Define the three types of notice- actual, constructive & inquiry
actual= personal knowledge of prior interest
Construction= record notice
inquiry= going to property and seeing someone on the property. When reasonable inspection on property would disclose existence of prior claims
For private nuisance, even if you aren’t bothered by the lights, noise or smell, can you still prevail if a reasonable person would be annoyed, find it offensive or inconvenient?
Yes
Under the attractive nuisance doctrine, what duty do landowners have to protect kid trespassers from artificial conditions on their land
Duty to exercise reasonable care to protect child trespassers from dangerous artificial conditions
Does a right of way easement render a title unmarketable
Yes
Does a quit claim deed require marketable title
Yes
Under a notice statute, who prevails and why
A purchaser for value only has to purchase w/o notice of prior interest to prevail over that prior interest
Distribution of proceeds from foreclosure sale
- costs of foreclosure sale
- mortgage being foreclosed
- junior mortgages or liens
- debtor
Does modification of a senior mortgage forfeit that mortgage’s priority
Not usually but if the modification materially prejudices a junior mortgage then the senior mortgage subordinates its interest just to the modification but the original mortgage remains superior
Can an easement appurtenant be used for the benefit of a property OTHER THAN that of the dominant estate?
NO
Under a race recording statute, does it matter if the purchaser who recorded first knew of the prior interest
NO- the first to record prevails over prior interest regardless of whether they knew of the interest
Is a cotenant generally required to pay rent to other cotenants
No
Can a cotenant seek contributions for taxes, operating expenses from other co-tenants
Yes but the amt is limited to the property’s rental value when sought by the co-tenant in sole possession
If tenant breaches duty to pay rent, what rent is landlord entitled to?
Only the rent that tenant failed to pay at time they vacated- NOT future rents.
Can adverse possessors own land as tenants in common and pass their interest down to their heirs when they die
YES
if tenants are using property for illegal purpose, what can a landlord do
Terminate lease or seek injunction and monetary relief
If a building is used as commercial and the area gets rezoned as residential, can the owners continue the non conforming use
Yes, it doesn’t terminate the ability immediately to use the property as commercial. Heirs can even continue non conforming use
which takes precedence- conveyance in deed or will
Deed> will
what is constructive adverse possession
Adverse possessor enters property under color of title, looks like facially valid dead that describes entire property - but actually only possesses a portion for statutory period–> ct awards entire property b/c deed looked fine
if deed is NOT delivered to grantee during grantor’s lifetime, what happens
It is void and conveys NO interest
When is delivery of a deed done?
When recorded, in grantee’s possession, or physically handed to 3rd party acting on behalf of grantee.
LOOK AT INTENT
ways to sever joint tneancy
- giving interest away
- signing a contract for sale
granting a mortgage in a title theory state
Is a joint tenancy devisable by WILL
NOOOOOOO. You can give your interest away but you can’t devise it in a will.
Does a violation of the housing/ building code render title unmarketable?
No.
Violation of zoning laws yes though
does a violation of the zoning code render title unmarketable
Yes
Can a lease be assigned if it doesn’t say anything about the assignment in the lease. or if it says no assignment, when can a landlord withhold permission on assignment
if there is no language in lease against assignment, a lease can be freely assigned.
If the lease says no assignment w/o permission of landlord, then the landlord can only withhold permission on REASONABLE grounds and not on a WHIM OR PERSONAL PREJUDICE>. Thus irefusal to rent to a tenant in good financial standing is unreasonable and evidence of lack of good faith
Abandonment of a lease vs surrender
Abandonment = acts as anticipatory repudiation by tenant, and tenant would have duty to pay rent.
Surrender- tenant transfers lease back to landlord and landlord accepts the return (i.e landlord accepts the keys and acknowledges need to find new tenant)- –> tenant is not responsible for future rent
If co-tenant pays more than his share of the MORTGAGE PAYMENTS OR TAXES can they compel other covenants to pay their fair share
YES
if your non conforming use of xyzzy has been grandfathered in, can you then expand your store
No, - you can’t then increase the non conforming use but you can do upgrades.
Easements are generally terminated by merger but what is the exception
if there are any future interests in either estate
The owner of a ranch devised the ranch as follows: “to my wife for life, and then to my grandchildren.” The owner devised the remainder of his property to his only child. The owner was survived by his wife and only child. At the time of the wife’s death, the owner’s child did not have any children.
The child owns it as fee simple subject to executory interest
if you own property as Joint tenants with several other people and one of those others gives you their share,
Then the share you got becomes 1/x as tenants in common but the share you had originally stays as a share in joint tenancy
if there are two mortgages on a property and only one is paid off in the foreclosure sale, then a buyer buys the property, does he assume the other junior mortgage?
e purchaser of property at a foreclosure sale takes the property free and clear of any junior mortgage.
Does a negative easement- i.e saying you won’t build a two story house to block your neighbor’s sunlight- have to be in writing
Yes
in installment land contracts where you agree to pay $0000 over a zillion years for the land, when is marketable title due?
After you have made all the payments. So, if there is a zoning violation or easement when you start to make payments, it is fine b/c they have a zillion years to get rid of it before turning over the deed
4 things that sever joint tenancy
1- giving away interest during their life
2- selling interest
3- if a creditor forecloses on the interest. MUST BE FORECLOSURE not a just the presence of a lien
4- granting a mortgage in a title theory state (remember lien theory states are lenient)
if a creditor does not foreclose on the interest of a joint tenant while they JT was alive
Then they take NOTHING
what is the warranty that protects property owners against shitty construction
warranty of fitness or suitability is implied in a contract for the sale of a newly constructed residence. Under this type of warranty, the seller warrants that he used adequate materials and good workmanship in working on the residence. The implied warranty generally covers latent construction
if mortgage is assumed by a man, and that man defaults, so that the original owner has to pay the mortgage so it won’t get foreclosed on, can the original owner sue the man for reimbursement
YES b/c original owner is a secondarily liable as a surety and can try to get his $ back
if debtor defaults on junior loan, does junior loan have to join senior loan as necessary party to foreclosure action?-
NO b/c the senior loan is unaffected by a foreclosure of junior loan.
If someone writes a deed to give their property to kid but then puts deed in their desk, is it valid for conveyance of property to kid?
NO b/c there was no delivery of deed.
if tenant in common takes out mortgage- and they own 30% of property, does the mortgage bind the other co tenant
NO- the mortgage only bind the 30% of the property the T in common owns
to deliver a deed thru valid death escrow (ie after the deed giver dies)- the deed giver needs to
give the deed to an agent with instructions for delivery upon his death
AND
relinquish control over the deed (i.e no clause saying I can take it back) - place “deed beyond his control”
if a lease does not allow assignment of the lease but is silent as to subletting, can you sublet?
YES.
constructive eviction requires what
TENANT MUST MOVE OUT
process for foreclosure- who gets paid first
Attorney fees, then purchase money mortgage bank then junior mortgage
for when/if a buyer takes subject to the easement- check for
inquiry notice= would the buyer see the easement if he was on the property
requirements for implied easement
(1) both the dominant and servient estates must have been owned by the same person at the time of the prior use;
(2) the prior use of one parcel must have benefited the other portion of the land;
(3) the prior use must have been apparent;
(4) the prior use must have been continuous; and
(5) the prior use must have been reasonably necessary for the use and enjoyment of the benefited property.
does a deed in lieu of foreclosure eliminate junior mortgages
No
what is the exoneration of liens doctrine
permits the devisee of real property that is subject to a lien (bank) to demand that the lien be paid off (i.e., “exonerated”) using other assets in the decedent’s estate
which right of redemption comes before foreclosure and which after?
equitable right of redemption comes BEFORE foreclosure, statutory right of redemption comes AFTER foreclosure
For recording act questions, how to start answer
Start w first in time, first in right then say modified by recording act to protect bonafide purchaser for value.
Under the fair housing act can cities have zoning provisions that deny access to disabled people
No
How can tenancy of entirety be severed
Onlu by consent of BOTH parties. One spouse can NOT give away their interest
If grantor gives deed to 3rd party, is delivery complete
Yes delivery is complete when grantoe gives deed to 3rd p unless grantor reserves right to take back deed
What is a death escrow
Delivery of deed is conditioned on grantor’s death. Title passes automatically to next person when G dies.
If two developers get permits to put up skyscrapers and one accidentally blocks sunlight from reaching the other will the ct grant injunction?
No..unless blockage of sunlight was done intentionally-with malice
What is a future advances mortgage
Where you get installment payments from the bank for a loan. I.e you borrow $1million and in one year you get 250k, next year you get 500k, 3rd yr you get 250k.
If the payments of a future advances mortgage are mandatory, how does that affect default
then ALL payments loaned- both before and after any junior lien - have priority
If the payments of a future advances mortgage are optional, how does that affect priority in default
If optional, then a junior lien has priority over funds given out AFTER the junior lien.
What is required to establish an implied easement from prior use (and when might you see this)
Look for this after an easement was extinguished from merger but then the land was reseparated.
Easement by implied prior use requires:
1) 2 parcels in common ownership and one given to grantee
2) the parcel conveyed used to have an easement over the other parcel
3) the usage of the easement is reasonably necessary or convenient
4) the usage of the easement is apparent
A CONTRACT for sale will sever what type of tenancy
JOINT TENANCY
if there is prior existing use and continuation of the use is just reasonably necessary- is that enough to maintain an easement or profit
Yes- it would an implied profit or easement- just needs to be reasonably necessary for use and enjoyment of land
