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Property Flashcards

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1
Q

The three concurrent estates are

A

Joint Tenancy
Tenancy by entirety
Tenancy in common

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2
Q

Joint tenancy features

A

A right of survivorship
Transferable inter vivos
Not descendible or devisable

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3
Q

Joint Tenancy is only possible if you have

A

The four unities:
Time - interest acquired at the same time
Title - acquired in the same conveyance
Interest - equal shares
Possession - right to use of whole property

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4
Q

To be a Joint Tenancy, the language must include

A

Express right of survivorship

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5
Q

A Joint Tenancy is severed if

A

A party independently transfers part or all of their interest
(not severed if the joint tenants make a conveyance together)

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6
Q

Severance and partition can occur

A

-Voluntarily
-Judicial partition (where possible)
-Judicial sale (where partition impossible)

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7
Q

The two theories on the effect of mortgages on Joint tenancy are

A

Lien theory (majority view) - one party’s interest is mortgaged does not sever a joint tenancy

Title theory (minority view) - a mortgage on an interest does sever the JT

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8
Q

Tenancy by the entirety is

A

A concurrent estate that can only be held between married people and includes a right of survivorship

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9
Q

A tenancy by the entirety is created

A

presumptively in any conveyance to married language unless clearly indicated otherwise

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10
Q

Two important features of the tenancy by the entirety are

A

The property is not subject to creditors of one spouse AND it is not severable by unilateral action

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11
Q

Severance of the Tenancy by the Entirety

A

only occurs by death, divorce, mutual agreement, or execution by a joint creditor of both spouses

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12
Q

Divorce of a couple in a Tenancy by the Entirety results in which estate

A

Tenancy in common

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13
Q

Tenancy in common is

A

A concurrent estate with no right of survivorship that is freely alienable

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14
Q

The rights, entitlements, and duties of each co-tenant in a tenancy in common are

A

The right to posses and use the whole, even if the interest quantities are not equal

The right to rents and profits from third parties based on a their interest

The right to contribution for reasonably necessary repairs

Duty not to commit waste

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15
Q

There is no right to rent for a Tenant in Common who

A

Voluntarily vacates leaving another TiC in sole possession

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16
Q

Four leasehold estates are

A

-Tenancy for years
-Periodic tenancy
-Tenancy at will
-Tenancy at sufferance

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17
Q

Tenant’s duties are

A

-To repair
-To pay rent

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18
Q

The tenant’s duty to repair includes

A

the duty to maintain the premises, not to take of routine wear and tear

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19
Q

If a tenant breaches but is out possession, the landlord has the option to

A

Surrender - treat the abandonment as the end of the lease
Ignore - do nothing, hold T liable for rent
Re-let - hold T liable for any deficiency

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20
Q

In a residential context, a tenant’s express covenant to repair is ____ whereas in a commercial context it is ____

A

unenforceable (bc of implied warranty of habitability)

enforceable

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21
Q

Landlord’s duties are

A

-Deliver possession
-Implied covenant of quiet enjoyment
-Implied warranty of habitability

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22
Q

Tenant’s entitlements if implied warranty of habitability is breached

A

-Move
-Repair
-Reduce
-Remain

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23
Q

An assignment of a lease is

A

An individual’s entire remaining lease interest

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24
Q

Under an assignment, the people who are liable is ______

A

Both the assignee and the assignor are liable

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25
Q

A sublease is

A

The conveyance of some, but not all, of the remaining interest in lease

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26
Q

Under a sublease only the ____ is liable

A

original lessee (not the sublessee)

The sublessee and sublessor are in privity of estate
The sublessee and the landlord are in privity of contract

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27
Q

In terms of tort liability, the general rule for tenants is ________, but the exceptions are _______

A

Caveat Lessee

CLAPS
-Common areas
-Latent Defects (dang con tenant couldn’t discover with reasonable inspection)
-Assumption of Repairs
-Public Use Rule
-Short term lease of furnished dwellings

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28
Q

Easements are

A

A grant of nonpossessory property interest in use or enjoyment of another’s land

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29
Q

The presumed length of an easement is

A

perpetual duration

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30
Q

Negative easements are typically granted for four categories

A

LASS
Light
Air
Support
Stream water

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31
Q

Easement appurtenant passes ______

A

Dominant Estate: passes automatically, regardless of whether it was mentioned

Burdened Estate: passes automatically, unless new owner is a BFP

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32
Q

Easement in gross is only transferable if

A

For commercial purposes

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33
Q

An easement can be created by four methods:

A

PING
Prescription
Implication
Necessity
Grant

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34
Q

For an easement by grant to be valid it must be

A

In writing or brief enough not to be subject to the SoL

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35
Q

An easement by implication through prior use is created by

A

operation of law, through:
Preexisting use prior to time of severance

It must be apparent and continuous
AND
expected to survive because it is reasonably necessary to dominant tenement’s use and enjoyment

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36
Q

An easement by necessity is created by

A

a conveyance of land with no right of egress, the grantee can choose where it goes

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37
Q

An easement by prescription is created through

A

Essentially adverse possession, without the requirement that it be exclusive use. It must be continuous, open, actual, and hostile.

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38
Q

There are eight ways to terminate an easement

A

ENDCRAMP
Estoppel - oral assertion (otherwise not suff) + reliance
Necessity - when necessity ends
Destruction - servient land destroyed ends
Condemnation - gov condemnation ends
Release - express in writing
Abandonment - unequivocal declaration of abandonment
Merger - both parcels owned by same person
Prescription - servient owner can end through continuous, open, actual, and hostile use

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39
Q

A license is different than an easement because

A

It is freely revocable at any time and only a privilege, not a property interest

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40
Q

An unenforceable easement created orally defaults to

A

A license

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41
Q

A profit grants the holder the right to

A

enter the servient land to take resources. They are subject to the same rule as easements. They may be extinguished through surcharge (overuse creating undue burden)

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42
Q

Restrictive covenants are

A

A binding agreement to do or not do something that is enforceable through money damages

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43
Q

For a restrictive covenant to run with the burdened land there must be

A

WITHN
-Writing
-Intent
-Touch and concern
-Horizontal AND vertical Privity
-Notice

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44
Q

For a restrictive covenant to run with the benefitted land there must be

A

WITV
-Writing
-Intent
-Touch and concern
-Vertical privity

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45
Q

Horizontal privity exists if

A

the original grantors have some relationship other than the real covenant (grantee/grantor, landlord/tenant, etc)

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46
Q

Vertical privity exists if

A

there is non-hostile nexus between two parties (contract, devise, descent, etc) Only absent where an interest is acquired by adverse possession

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47
Q

An equitable servitude is

A

A promise to do or not do something related to use of your land that is only enforceable through injunction

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48
Q

For the burden of an equitable servitude to run, there must be

A

-Writing
-Intent
-Touch and concern
-Notice

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49
Q

For the benefit of an equitable servitude to run, there must be

A

-Writing
-Intent
-Touch and concern

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50
Q

An equitable servitude will be implied under

A

A common scheme - where there is a general plan for residential development which the purchasers were on notice of

51
Q

A common scheme equitable servitude may be terminated if

A

the conditions of every lot have changed so significantly that the enforcement would be inequitable (if only some lots have changed, that is insuff)

52
Q

Termination of nonpossessory estates (easements, covenants, servitudes, profit) occurs through

A

-Written release from benefit holder
-Merger
-Condemnation of burdened property

53
Q

Adverse possession requires

A

Open, Continuous, Actual, Exclusive, and Non-permissive (hostile) use of another’s land

54
Q

Tacking of time necessary to establish Adverse Possession is allowed if

A

there is privity between the possesors (any non-hostile nexus)

55
Q

Two titles are passed during the purchase of real estate:

A

Equitable title - at contract signing (risk of loss to buyer)

Legal title - at closing

56
Q

To meet the SoF, a land sale contract must

A

-ID the parties
-Describe the parties
-Include the price or means of determining the price (like FMV)

(as long as the court can tell what is being conveyed, to whom, and for what, it will be satisfied)

57
Q

A minor discrepancy in the description of land or an obvious error ______ to terminate the sale

A

insufficient

58
Q

Part performance of a land sale K excuses SoF if

A

The oral K is certain and clear and 2 of the following 3:
-Possession
-Payment
-Improvement

59
Q

The doctrine of equitable conversion holds that

A

Once the K is signed, the buyer owns the real property through equitable title, but the seller retains possession until legal title is passed at closing

60
Q

The effect of death of a contracting party to a land sale is

A

the estate takes on the responsibility and the contract is still enforceable

61
Q

The two promises implied in every land sale are

A

-Promise to provide marketable title
-Promise not to make false statements of material fact

62
Q

To be a marketable title, it must be

A

Reasonably free from doubt and threat of litigation

63
Q

Ways that title may be unmarketable:

A

-Defects in record title (often from adv poss)
-Encumbrances (mortgages, liens, easements, restrictive covenants)
-Zoning violations - no matter how small
-Future interest in unascertained person

64
Q

Title must be marketable on

A

the day of closing

65
Q

The remedy for failure to provide marketable title is

A

The buyer must notify seller of issue and give reasonable time to cure. If not cured, rescission, damages, specific performance with abatement, or quiet title suit are options.

66
Q

The promise not to make false statements of material fact provides that a seller will be liable

A

-the seller knows or has reason to know of the defect
-the seller must realize the buyer is unlikely to discover it
-the defect is sufficient to make the buyer reconsider

67
Q

Disclaimers of liability for failure to disclose a defect in land are enforceable if _____ and unenforceable if _____

A

limited in scope to specific defects

they are general

68
Q

Generally there is no implied ______ in a land contract, except for _____

A

warranties of fitness or habitability, the rule is caveat emptor

New construction

69
Q

For legal title to pass from grantor to grantee the deed must be

A

LEAD
Lawfully Executed And Delivered

70
Q

Lawful execution of a deed requires

A

A writing signed by grantor
Unambiguous description of land
ID of parties by name or description
Words of intent to transfer such as grant

(consideration not required)

71
Q

The three types of deed to convey property interests other than leasholds are:

A

-Quitclaim Deed
-General Warranty Deed
-Special Warranty Deed

72
Q

A quitclaim deed is

A

The worst kind of deed providing no assurances, only conveying what the grantor has at the time of the conveyance

73
Q

A general warranty deed provides these covenants

A

Savannah Colors Even While Quietly Farting

Present:
Seisin - right to possess
Convey - right to convey
Encumbrances - against encumbrances

Future:
Warranty - defend against claims of title by 3P
Quiet enjoyment - grantee’s possession won’t be disturbed by 3P’s lawful claim of title
Future assurances - anything necessary to perfect grantee’s title

74
Q

Special warrant deed promises

A

The same warranties as a general warranty, but only on behalf of the grantor (not defects attributable to predecessors)

75
Q

Bona fide purchaser is

A

A purchaser for valuable consideration without notice

(obtaining by gift, will, or inheritance does not qualify)

76
Q

A race statute is one where

A

The first to record owns the property

conveyance is not good… unless first recorded

77
Q

A notice statute is one where

A

the latest in time BFP prevails

conveyance is not good… against a future BFP… unless recorded

78
Q

A race notice statute is one where

A

the first BFP to record wins

A conveyance is not good… against a future BFP… unless recorded first.

79
Q

A wild deed is

A

A nullity because, although it is recorded, it is not in the chain of title so it cannot provide notice.

80
Q

Estoppel by deed prevents an owner who conveyed from

A

Denying the validity of that conveyance if they subsequently acquired title they previously (but falsely) purported to have

81
Q

For a mortgage, a senior interest foreclosing has the following effect

A

Terminates interests of junior mortgagees, allowing recovery only from the person not from the land

Does nothing to the senior interests, meaning the new owner takes subject to the mortgage

82
Q

The morgagee (lender) that always has the senior interest is

A

the purchase money mortgage (money lent for the purchase of the land in question)

83
Q

Redemption in equity allows

A

the debtor to pay off the amount owed on the mortgage up to the date of the sale

Unless there is an acceleration clause which requires payment of the entire balance

84
Q

The present possessory estates are

A

Fee simple absolute
Defeasible fees (Fee simple defeasible, Fee simple subject to a Fee simple subject to an executory interest)
Life estate

85
Q

Fee Simple language of creation is

A

O to A and heirs

86
Q

Fee simple defeasible language of creation is

A

O to A and heirs unless/so long us/until, etc

Must be more than mere expressions of motive like “for the purpose of”

87
Q

Future interest that an FSD creates in the grantor is a

A

Possibility of reverter (automatically reverts the title back upon occurrence of stated event)

88
Q

Fee simple subject to a condition subsequent language of creation is

A

O to A and heirs, upon condition that/provided that… then the grantor reserves the right to reenter

89
Q

Future interest created by FSS2CS in the grantor

A

Right of entry (doesn’t automatically take effect, it must be exercised)

90
Q

Fee simple subject to an executory interest creation of language

A

O to A, but if X, then to B

B has shifting if they take from grantee
B has springing if they take from the grantor

91
Q

Absolute restraints on alienation are ____

A

void

92
Q

The future interests are

A

Indefeasibly Vested Remainder, Vested Remainder Subject to Total Divestment, Contingent remainders, Executory Interests

93
Q

A contingent remainder is

A

A future interest in:
-An unborn or unascertained persons
-Subject to a precondition

94
Q

A vested remainder is

A

A future interested in an existing and ascertained person and not subject to a condition precedent.

95
Q

The three types of vested remainder are

A

Indefeasibly vested remainder
Indefeasibly vested remainder subject to total divestment
Vested remainder subject to open

96
Q

An indefeasibly vested remainder

A

guarantees that a future property interest will be acquired by the holder

97
Q

A vested remainder subject to total divestment

A

subject to a condition subsequent, meaning the holder’s interest could be cut short if a condition or event occurs

98
Q

Vested remainder subject total divestment creation language:

A

O to A for life, then to B unless B has no children, and then to C

A = LE
B = VRS2TD
C = SEI

99
Q

A vested remainder subject to open is

A

a future interested created in a class of person that is certain to become possessory but is subject to diminution (by enlargement of the class)

O to A for life, then to B’s children (B has one child, but could have more)

100
Q

A shifting executory interest always follows a

A

Defeasible fee

101
Q

Example of shifting executory interest

A

O to A, then to B, unless B becomes a lawyer, then to C

A = LE
B = VRS2CD
C = Shifting EI

102
Q

RAP applies to the following future interests:

A

Contingent remainders, Executory interests, and VRS2O if the class is not closed

103
Q

A conveyance violates RAP if

A

It is not certain to vest within 21 years of the death of a party who was material to the creation of the interest and alive at the time it was made.

104
Q

If a conveyance violates RAP, then

A

It is struck from the conveyance

105
Q

An easement by implication with no prior use is created by

A

Subdivision plat OR Profit (extraction of resources)

106
Q

If a life estate holder burdens their own interest through a mortgage, the remainders take _____

A

free of that interest so long as they did not consent to the mortgage

107
Q

A life estate holder is free to encumber

A

their own interest, not those of the remainders without consent

108
Q

The rule against perpetuities invalidates any language in a conveyance that

A

is not guaranteed to VEST within a life in being plus 21 years

Vesting does not mean become possessory. A conveyance of an interest to a person’s unascertained children vests at the time of their death because the class is now certain. It does not violate RAP even if it won’t become possessory within the LIB+21

109
Q

Delivery of a deed is a question of

A

the grantor’s intent - they must have a present intent to make an irrevocable conveyance

To make delivery, the grantor must relinquish absolute and unconditional control

Including language on a future conveyance like “unless x” renders it void for failure of delivery

110
Q

Provision of a quitclaim deed does not affect the implied covenant to

A

provide marketable title

existence of encumbrances will warrant refusal to close BUT there is no breach until close

111
Q

A government’s taking of private property under the public use allowance is still valid even if the purpose is to convey to

A

a private party

112
Q

A deed given as a security on land will be treated as an

A

equitable mortgage, requiring formal foreclosure before sale

113
Q

To determine if an absolute deed is actually an equitable mortgage, the court looks at

A

(i) the existence of a debt or promise of payment by the deed’s grantor;
(ii) the grantee’s promise to return the land if the debt is paid;
(iii) the fact that the amount advanced to the grantor/debtor was much lower than the value of the property;
(iv) the degree of the grantor’s financial distress; and
(v) the parties’ prior negotiations.

114
Q

The difference between a tenants duties where a landlord breaches the warranty of habitability vs constructively evicts is

A

For constructive eviction, the tenant must vacate before bringing an action

For an implied warranty of habitability, they do not have to vacate before bringing an action

115
Q

Ways a landlord can breach the implied covenant of quiet enjoyment

A

Actual eviction - T no longer has to pay
Partial eviction - T no longer has to pay
Constructive eviction - reqs SING
-substantial interference
-notice
-goodbye

116
Q

The implied warranty of habitability only applies to what kind of lease

A

Residential leases

NOT commercial leases

117
Q

An easement passes with the dominant estate _____

A

Automatically

118
Q

The benefit of an easement appurtenant cannot be conveyed apart from

A

the dominant tenement UNLESS it is conveyed to the owner of the servient tenement in order to extinguish

119
Q

An easement can generally only be reserved for

A

the grantor, not a third party

If to a third party, the majority view holds it as void

120
Q

After closing, the seller is no longer liable for _____ they are only liable for _____

A

implied covenant to provide marketable title

promises in the deed

121
Q

If a conveyance could be both an FSD and an FSS2CS, the courts will likely construe it as

A

A FSS2CS since the forfeiture is optional, not automatic

122
Q

Where language is ambiguous, the preference between VRS2D and CR and EIs are:

A

VRS2D

123
Q

For present encumbrances, they are breached if at all, at the time of

A

Conveyance

After conveyance they are not subject to breach because they do not run with the land (under maj view)

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