Property Flashcards
1
Q
The three concurrent estates are
A
Joint Tenancy
Tenancy by entirety
Tenancy in common
2
Q
Joint tenancy features
A
A right of survivorship
Transferable inter vivos
Not descendible or devisable
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
4
Q
To be a Joint Tenancy, the language must include
A
Express right of survivorship
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)
6
Q
Severance and partition can occur
A
-Voluntarily
-Judicial partition (where possible)
-Judicial sale (where partition impossible)
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
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
9
Q
A tenancy by the entirety is created
A
presumptively in any conveyance to married language unless clearly indicated otherwise
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
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
12
Q
Divorce of a couple in a Tenancy by the Entirety results in which estate
A
Tenancy in common
13
Q
Tenancy in common is
A
A concurrent estate with no right of survivorship that is freely alienable
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
15
Q
There is no right to rent for a Tenant in Common who
A
Voluntarily vacates leaving another TiC in sole possession
16
Q
Four leasehold estates are
A
-Tenancy for years
-Periodic tenancy
-Tenancy at will
-Tenancy at sufferance
17
Q
Tenant’s duties are
A
-To repair
-To pay rent
18
Q
The tenant’s duty to repair includes
A
the duty to maintain the premises, not to take of routine wear and tear
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
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
21
Q
Landlord’s duties are
A
-Deliver possession
-Implied covenant of quiet enjoyment
-Implied warranty of habitability
22
Q
Tenant’s entitlements if implied warranty of habitability is breached
A
-Move
-Repair
-Reduce
-Remain
23
Q
An assignment of a lease is
A
An individual’s entire remaining lease interest
24
Q
Under an assignment, the people who are liable is ______
A
Both the assignee and the assignor are liable
25
A sublease is
The conveyance of some, but not all, of the remaining interest in lease
26
Under a sublease only the ____ is liable
original lessee (not the sublessee)
The sublessee and sublessor are in privity of estate
The sublessee and the landlord are in privity of contract
27
In terms of tort liability, the general rule for tenants is ________, but the exceptions are _______
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
28
Easements are
A grant of nonpossessory property interest in use or enjoyment of another's land
29
The presumed length of an easement is
perpetual duration
30
Negative easements are typically granted for four categories
LASS
Light
Air
Support
Stream water
31
Easement appurtenant passes ______
Dominant Estate: passes automatically, regardless of whether it was mentioned
Burdened Estate: passes automatically, unless new owner is a BFP
32
Easement in gross is only transferable if
For commercial purposes
33
An easement can be created by four methods:
PING
Prescription
Implication
Necessity
Grant
34
For an easement by grant to be valid it must be
In writing or brief enough not to be subject to the SoL
35
An easement by implication through prior use is created by
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
36
An easement by necessity is created by
a conveyance of land with no right of egress, the grantee can choose where it goes
37
An easement by prescription is created through
Essentially adverse possession, without the requirement that it be exclusive use. It must be continuous, open, actual, and hostile.
38
There are eight ways to terminate an easement
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
39
A license is different than an easement because
It is freely revocable at any time and only a privilege, not a property interest
40
An unenforceable easement created orally defaults to
A license
41
A profit grants the holder the right to
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)
42
Restrictive covenants are
A binding agreement to do or not do something that is enforceable through money damages
43
For a restrictive covenant to run with the burdened land there must be
WITHN
-Writing
-Intent
-Touch and concern
-Horizontal AND vertical Privity
-Notice
44
For a restrictive covenant to run with the benefitted land there must be
WITV
-Writing
-Intent
-Touch and concern
-Vertical privity
45
Horizontal privity exists if
the original grantors have some relationship other than the real covenant (grantee/grantor, landlord/tenant, etc)
46
Vertical privity exists if
there is non-hostile nexus between two parties (contract, devise, descent, etc) Only absent where an interest is acquired by adverse possession
47
An equitable servitude is
A promise to do or not do something related to use of your land that is only enforceable through injunction
48
For the burden of an equitable servitude to run, there must be
-Writing
-Intent
-Touch and concern
-Notice
49
For the benefit of an equitable servitude to run, there must be
-Writing
-Intent
-Touch and concern
50
An equitable servitude will be implied under
A common scheme - where there is a general plan for residential development which the purchasers were on notice of
51
A common scheme equitable servitude may be terminated if
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
Termination of nonpossessory estates (easements, covenants, servitudes, profit) occurs through
-Written release from benefit holder
-Merger
-Condemnation of burdened property
53
Adverse possession requires
Open, Continuous, Actual, Exclusive, and Non-permissive (hostile) use of another's land
54
Tacking of time necessary to establish Adverse Possession is allowed if
there is privity between the possesors (any non-hostile nexus)
55
Two titles are passed during the purchase of real estate:
Equitable title - at contract signing (risk of loss to buyer)
Legal title - at closing
56
To meet the SoF, a land sale contract must
-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
A minor discrepancy in the description of land or an obvious error ______ to terminate the sale
insufficient
58
Part performance of a land sale K excuses SoF if
The oral K is certain and clear and 2 of the following 3:
-Possession
-Payment
-Improvement
59
The doctrine of equitable conversion holds that
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
The effect of death of a contracting party to a land sale is
the estate takes on the responsibility and the contract is still enforceable
61
The two promises implied in every land sale are
-Promise to provide marketable title
-Promise not to make false statements of material fact
62
To be a marketable title, it must be
Reasonably free from doubt and threat of litigation
63
Ways that title may be unmarketable:
-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
Title must be marketable on
the day of closing
65
The remedy for failure to provide marketable title is
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
The promise not to make false statements of material fact provides that a seller will be liable
-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
Disclaimers of liability for failure to disclose a defect in land are enforceable if _____ and unenforceable if _____
limited in scope to specific defects
they are general
68
Generally there is no implied ______ in a land contract, except for _____
warranties of fitness or habitability, the rule is caveat emptor
New construction
69
For legal title to pass from grantor to grantee the deed must be
LEAD
Lawfully Executed And Delivered
70
Lawful execution of a deed requires
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
The three types of deed to convey property interests other than leasholds are:
-Quitclaim Deed
-General Warranty Deed
-Special Warranty Deed
72
A quitclaim deed is
The worst kind of deed providing no assurances, only conveying what the grantor has at the time of the conveyance
73
A general warranty deed provides these covenants
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
Special warrant deed promises
The same warranties as a general warranty, but only on behalf of the grantor (not defects attributable to predecessors)
75
Bona fide purchaser is
A purchaser for valuable consideration without notice
(obtaining by gift, will, or inheritance does not qualify)
76
A race statute is one where
The first to record owns the property
conveyance is not good... unless first recorded
77
A notice statute is one where
the latest in time BFP prevails
conveyance is not good... against a future BFP... unless recorded
78
A race notice statute is one where
the first BFP to record wins
A conveyance is not good... against a future BFP... unless recorded first.
79
A wild deed is
A nullity because, although it is recorded, it is not in the chain of title so it cannot provide notice.
80
Estoppel by deed prevents an owner who conveyed from
Denying the validity of that conveyance if they subsequently acquired title they previously (but falsely) purported to have
81
For a mortgage, a senior interest foreclosing has the following effect
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
The morgagee (lender) that always has the senior interest is
the purchase money mortgage (money lent for the purchase of the land in question)
83
Redemption in equity allows
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
The present possessory estates are
Fee simple absolute
Defeasible fees (Fee simple defeasible, Fee simple subject to a Fee simple subject to an executory interest)
Life estate
85
Fee Simple language of creation is
O to A and heirs
86
Fee simple defeasible language of creation is
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
Future interest that an FSD creates in the grantor is a
Possibility of reverter (automatically reverts the title back upon occurrence of stated event)
88
Fee simple subject to a condition subsequent language of creation is
O to A and heirs, upon condition that/provided that... then the grantor reserves the right to reenter
89
Future interest created by FSS2CS in the grantor
Right of entry (doesn't automatically take effect, it must be exercised)
90
Fee simple subject to an executory interest creation of language
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
Absolute restraints on alienation are ____
void
92
The future interests are
Indefeasibly Vested Remainder, Vested Remainder Subject to Total Divestment, Contingent remainders, Executory Interests
93
A contingent remainder is
A future interest in:
-An unborn or unascertained persons
-Subject to a precondition
94
A vested remainder is
A future interested in an existing and ascertained person and not subject to a condition precedent.
95
The three types of vested remainder are
Indefeasibly vested remainder
Indefeasibly vested remainder subject to total divestment
Vested remainder subject to open
96
An indefeasibly vested remainder
guarantees that a future property interest will be acquired by the holder
97
A vested remainder subject to total divestment
subject to a condition subsequent, meaning the holder's interest could be cut short if a condition or event occurs
98
Vested remainder subject total divestment creation language:
O to A for life, then to B unless B has no children, and then to C
A = LE
B = VRS2TD
C = SEI
99
A vested remainder subject to open is
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
A shifting executory interest always follows a
Defeasible fee
101
Example of shifting executory interest
O to A, then to B, unless B becomes a lawyer, then to C
A = LE
B = VRS2CD
C = Shifting EI
102
RAP applies to the following future interests:
Contingent remainders, Executory interests, and VRS2O if the class is not closed
103
A conveyance violates RAP if
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
If a conveyance violates RAP, then
It is struck from the conveyance
105
An easement by implication with no prior use is created by
Subdivision plat OR Profit (extraction of resources)
106
If a life estate holder burdens their own interest through a mortgage, the remainders take _____
free of that interest so long as they did not consent to the mortgage
107
A life estate holder is free to encumber
their own interest, not those of the remainders without consent
108
The rule against perpetuities invalidates any language in a conveyance that
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
Delivery of a deed is a question of
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
Provision of a quitclaim deed does not affect the implied covenant to
provide marketable title
existence of encumbrances will warrant refusal to close BUT there is no breach until close
111
A government's taking of private property under the public use allowance is still valid even if the purpose is to convey to
a private party
112
A deed given as a security on land will be treated as an
equitable mortgage, requiring formal foreclosure before sale
113
To determine if an absolute deed is actually an equitable mortgage, the court looks at
(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
The difference between a tenants duties where a landlord breaches the warranty of habitability vs constructively evicts is
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
Ways a landlord can breach the implied covenant of quiet enjoyment
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
The implied warranty of habitability only applies to what kind of lease
Residential leases
NOT commercial leases
117
An easement passes with the dominant estate _____
Automatically
118
The benefit of an easement appurtenant cannot be conveyed apart from
the dominant tenement UNLESS it is conveyed to the owner of the servient tenement in order to extinguish
119
An easement can generally only be reserved for
the grantor, not a third party
If to a third party, the majority view holds it as void
120
After closing, the seller is no longer liable for _____ they are only liable for _____
implied covenant to provide marketable title
promises in the deed
121
If a conveyance could be both an FSD and an FSS2CS, the courts will likely construe it as
A FSS2CS since the forfeiture is optional, not automatic
122
Where language is ambiguous, the preference between VRS2D and CR and EIs are:
VRS2D
123
For present encumbrances, they are breached if at all, at the time of
Conveyance
After conveyance they are not subject to breach because they do not run with the land (under maj view)
