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Property Flashcards

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1
Q

What is a fee simple absolute?

A

The least restrictive present possessory interest

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2
Q

Present possessory interests are also known as _______.

A

Freeholds

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3
Q

What is the language of a fee simple absolute?

A

“To A & her heirs” or “to A”

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4
Q

Fee simple absolute grants _____ ownership

A

Absolute

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5
Q

How long is the duration of the rights granted via fee simple absolute?

A

Potentially indefinite

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6
Q

Rights granted by fee simple absolute are freely:

A
  1. Devisable
  2. Descendible
  3. Alienable
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7
Q

What does it mean for ownership to be freely devisable?

A

Owner is free to pass interest via will

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8
Q

What does it mean for ownership to be free descendible?

A

Owner’s interest passes via intestate succession if the owner dies without a will

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9
Q

What does it mean for ownership to be freely alienable?

A

Owner’s interest is transferable inter vivos

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10
Q

Inter vivos means _______.

A

During the owner’s lifetime

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11
Q

Is there future interest when rights are granted via fee simple absolute?

A

No; owner’s have nothing while owner is alive

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12
Q

What is the language of fee tail rights?

A

To A & the heirs of her body

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13
Q

Any attempt to create a fee tail creates _______.

A

A fee simple absolute

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14
Q

Where there are defeasible fees, interest in land has the possibility of ________.

A

Being taken away

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15
Q

What is a fee simple determinable?

A

Fee simple which automatically comes to an end upon a stated event

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16
Q

What language must a grantor use for a fee simple determinable?

A

Clear durational language:
“to A so long as”
“to A until”
“to A during”
“to A provided that”
etc.

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17
Q

Once a named event in a fee simple determinable occurs, then _________.

A

it automatically reverts to grantor

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18
Q

How is a fee simple determinable devisable?

A

Subject to condition

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19
Q

How is a fee simple determinable descendible?

A

Subject to condition

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20
Q

What is the nemo dat rule?

A

A person cannot assign a greater interest than the interest which is possessed

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21
Q

A fee simple determinable is alienable subject to _______

A

Condition

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22
Q

The future interest in fee simple determinable maintains the possibility of _______.

A

Reverter

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23
Q

What is a fee simple subject to condition subsequent?

A

Rather than automatically ending when an event occurs, Grantor must affirmatively exercise the right to take back property

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24
Q

What language is required for a fee simple subject to condition subsequent?

A

Clear durational language that expressly reserves the right to re-enter
“to A, but if X occurs, grantor shall have a right of entry”
“to A upon the condition that X, grantor shall have a right of entry.”

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25
Q

What future interest exists in a fee simple subject to condition subsequent?

A

Right of entry

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26
Q

What is a fee simple subject to executory limitation?

A

Provides for the estate to pass to a third person upon the happening of the state event

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27
Q

What language should be used for a fee simple subject to executory limitation?

A

“To A but if X occurs, then to B”

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28
Q

What is the effect of violating a fee simple subject to executory limitation?

A

Automatically passes to third party

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29
Q

What future interest exists for a fee simple subject to executory limitation?

A

Shifting executory interest (future interest, held by a 3rd person, that cuts off another’s interest)

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30
Q

Generally, defeasible fees are ______ by the court

A

Disfavored

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31
Q

Courts disfavor defeasible fees because courts tend to discourage ________

A

Restraints on alienation

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32
Q

Courts disfavor defeasible fees because there is a presumption against ________.

A

Forfeitures

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33
Q

To have a defeasible fee, _________ language is required

A

Clear durational language

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34
Q

A ________ restraint on alienation of a fee simple estate is void and unenforceable. It results in ________.

A

Absolute

Fee simple absolute to grantee

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35
Q

What is a life estate?

A

Lifetime ownership of land

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36
Q

Ownership of a life estate must be measured in terms of ______, not ______.

A

Lifetime

Years

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37
Q

“To A for life” describes what kind of life estate?

A

Simple life estate

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38
Q

“To A for B’s life” describes what kind of life estate?

A

Pur autre vie

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39
Q

What rights does a life tenant have in a life estate?

A

All ordinary uses and profits of the land

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40
Q

In a life estate, a life tenant has a duty ______________.

A

Not to harm the future interest holders of the land

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41
Q

In terms of a life tenant’s duty not to harm future interest, what is affirmative waste?

A

Any structural change intentionally made to the estate that causes harm to the estate or depletes its resources

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42
Q

Under a life estate, a life tenant has a duty not to consume or exploit natural resources unless:

A
  1. Prior to the grant, land was used for exploitation
  2. Reasonable repairs and maintenance
  3. Expressly authorized by grantor OR
  4. Normal use of the land
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43
Q

What is the open mines doctrine?

A

Permits continued excavation by a life tenant from any mine on the property that is already open, but prohibits opening new mines

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44
Q

In terms of a life tenant’s duty not to harm future interest, what is permissive waste?

A

Failure to maintain the estate, both physically and financially

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45
Q

A life tenant must maintain an estate only to the extent _____________.

A

Of the income or profits derived from the land

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46
Q

If a life tenant is using the land herself with no rent, then the life tenant must maintain the estate only to the extent ___________.

A

Of the reasonable rental value of the land

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47
Q

What is a life tenant’s obligation to repair?

A

Life tenant must keep the property in a reasonable state of repair

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48
Q

A life tenant has an obligation to pay interest on __________.

A

Encumbrances, to the extent of the income or profits derived from the land.

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49
Q

In a life estate, who must pay taxes on the land?

A

Life tenant

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50
Q

A life tenant has no obligation to insure _______.

A

The premises

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51
Q

In terms of a life tenant’s duty not to harm future interest, what is ameliorative waste?

A

Unauthorized improvement to the estate that changes the land’s physical character

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52
Q

In terms of a life estate, ameliorative waste is prohibited unless ____________.

A

All future interest holders consent

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53
Q

What future interest exists for life estates?

A

Reverts to grantor unless assigned to third party remainder.

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54
Q

In a life estate, a third party remainder is responsible for:

A
  1. Principal portion of mortgage payments
  2. Extraordinary repairs
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55
Q

Possibility of reverter correlates to the present interest of _________

A

Fee simple determinable

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56
Q

What is the right of the grantor when there is possibility of reverter?

A

Estate automatically reverts to grantor upon occurrence of stated event

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57
Q

Right of entry is also known as __________.

A

Power of termination

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58
Q

Right of entry correlates to the present interest of ________.

A

Fee simple subject to a condition subsequent

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59
Q

What is the right of the grantor where there is a right of entry?

A

Estate does not automatically revert; the grantor must exercise her right of entry.

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60
Q

Some courts have held that a right of entry is not transferable __________.

A

Inter vivos

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61
Q

What is reversion?

A

The interest that remains after substracting what the grantor has granted from what the grantor originally possessed

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62
Q

Reversion correlates with which present interest?

A

Estate of lesser quantum

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63
Q

What is the right of the grantor under reversion?

A

Automatic reversion

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64
Q

What is remainder?

A

Future interest created in a grantee upon the termination of a prior estate of known fixed duration

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65
Q

A remainder is created only via _______.

A

express grant in same instrument in which preceding possessory estate is created

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66
Q

A remainder must follow a preceding estate that has _________.

A

Known fixed duration

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67
Q

A remainder is capable of becoming possessory upon ________.

A

The natural expiration of the preceding possessory estate

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68
Q

A remainder cannot divest __________.

A

Prior estates

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69
Q

Any future interest in a grantee that divests a prior estate is ___________.

A

An executory interest

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70
Q

Vested remainders are:

A
  1. Created in an ascertained person AND
  2. Are not subject to any condition precedent
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71
Q

A vested remainder becomes possessory automatically upon __________.

A

The termination of the prior estate

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72
Q

If there is a vested remainder subject to complete defeasance, it is either vested subject to being divested by _________ or ________.

A

Operation of a condition subsequent

Inherent limitation of the estate in remainder

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73
Q

A bested remainder subject to open is vested in ________________.

A

Persons, at least one of whom is qualified to take possession. The shares of the class are not fixed because more people can join the a class

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74
Q

What is the class-closing rule?

A

A class closes under the common law rule of convenience when any member of the class can demand possession.

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75
Q

What is the womb rule?

A

An exception to the class-closing rule; children of B in the womb at A’s death are considered members of the class

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76
Q

When is a continent remainder created?

A
  1. In an unascertained person
  2. Subject to a condition precedent - other than natural termination of preceding estate
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77
Q

Under modern law, grantor and grantor’s heirs hold the estate under contingent remainder subject to ___________.

A

B’s springing executory interest

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78
Q

What is the Rule in Shellet’s Case?

A

Converted the contingent remainer in B’s heirs into a vested remainder in B.

After that, doctrine of merger converted them into a single fee simple absolute in B.

Abolished under modern law.

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79
Q

What is the doctrine of worthier title?

A

O can’t grant something to O that would create remainder to O’s own heirs while O is alive.

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80
Q

What is executory interest?

A

A future interest in a grantee that, in order to become possessory, must divest or cut short either the prior estate or spring out of the grantor or her heirs

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81
Q

A _________ never divests the prior estate; a __________ always does.

A

Remainder

Executory interest

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82
Q

What is a shifting executory interest?

A

A future interest in a grantee that divests or cuts short a defeasible fee in another grantee.

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83
Q

Shifting executory interests always follow _________.

A

A defeasible fee

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84
Q

What is a springing executory interest?

A

A future interest in a grantee that vests
and springs out of the grantor at a date subsequent to the granting of the interest

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85
Q

What is the rule against perpetuities?

A

For a future interest to be valid, the interest must vest - if at all - within 21 years after some life in being at the instrument’s effective date

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86
Q

The Rule Against Perpetuities does not apply to:

A
  1. Indefeasibly vested remainders
  2. Vested remainders subject to complete defeasance OR
  3. Future interests retained by the grantor
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87
Q

For a contingent remainder, vesting under the Rule Against Perpetuities requires:

A
  1. Identification of the taker AND
  2. Satisfaction of all conditions precedent
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88
Q

For executory interest, vesting under the Rule Against Perpetuities means __________.

A

Taking of possession

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89
Q

How does the Rule Against Perpetuities apply to Vested Remainders Subject to Open?

A

A gift to an open class that requires the members of the class to survive past 21 years is void

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90
Q

What is the fertile octogenarian rule?

A

Presumes that anyone, even an octogenarian, can parent a child, regardless of gender or health

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91
Q

What is the unborn widow rule?

A

Presumes that a grantor could subsequently marry a person who wasn’t a life in being at the time interest was created

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92
Q

What is the slothful executor rule?

A

Presumes that the executor of the estate might not probate the will for many years after the testators’s death

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93
Q

What is the precocious toddler rule?

A

Presumes that it is possible for a toddler to have a child

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94
Q

What are the charitable exceptions to the Rule Against Perpetuities?

A
  1. A charitable grant can be perpetual
  2. RAP does not apply to conveyances from one charity to another
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95
Q

In order to mitigate the harshness of the Rule Against Perpetuities, some states adopted the ______ doctrine.

A

Wait-and-see

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96
Q

What is the wait-and-see doctrine?

A

A perpetuity violation should occur only if an interest actually fails to vest within the perpetuity period

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97
Q

What is the Uniform Statutory Rule Against Perpetuities?

A
  1. Future interests satisfying the common law RAP are valid
  2. Any future interest that actually vests within 90 years is also valid
  3. Cy Pres doctrine
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98
Q

What is the Cy Pres doctrine?

A

If a future interest fails to vest under common law RAP or within 90 years, the court may reform the interest in a manner that:

  1. Most closely conforms with the grantor’s intent AND
  2. Still complies with the RAP
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99
Q

What is joint tenancy?

A

Each tenant owns undivided share with the right of survivorship

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100
Q

What is a right of survivorship?

A

When one joint tenant dies, her share passes automatically to the surviving joint tenants

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101
Q

How can joint tenancy be given away?

A

Transferable inter vivos

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102
Q

What four unities are required to sever a joint tenancy and create tenancy in common?

A
  1. Interest vests at the same TIME
  2. Each tenant must get TITLE by same instrument
  3. All INTEREST in joint tenancy must be equal shares
  4. Each tenant must have the right to POSSESS the whole
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103
Q

A conveyance lacking express survivorship language will usually create ________.

A

A tenancy in common

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104
Q

What is a straw man conveyance?

A

O conveys to T, who immediately conveys back to O, preserving joint tenancy

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105
Q

How can a joint tenant destroy the right of survivorship?

A

By severing joint tenancy

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106
Q

At common law, severance of joint tenancy occurs automatically when ________.

A

Any of the four unities is severed

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107
Q

If joint tenants cannot agree to specific division of land, what options can the court used?

A
  1. Partition in kind
  2. Partition by forced sale
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108
Q

What is a partition in kind?

A

Division of the property that is in the best interests of all properties

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109
Q

What is a partition by forced sale?

A

Court determines that forced sale is in best interests of all parties; proceeds divided proportionally

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110
Q

Generally, the court is supposed to order a partition by forced sale only if ___________.

A

The land cannot be physically divided

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111
Q

What is an inter vivos conveyance where there is joint tenancy?

A

A joint tenant may sell/transfer her interest in the joint tenancy during her lifetime without the knowledge/consent of the other joint tenants, severing the joint tenancy

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112
Q

What are the two theories on how mortgages affect joint tenancy?

A
  1. Lien theory jurisdiction
  2. Title theory jurisdiction
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113
Q

What are the two theories on how mortgages affect joint tenancy?

A
  1. Lien theory jurisdiction
  2. Title theory jurisdiction
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114
Q

How does the lien theory of mortgages apply to joint tenancy?

A

Because the mortgage only holds a lien on the property, it doesn’t sever joint tenancy

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115
Q

How does the title theory of mortgages apply to joint tenancy?

A

Treats title as passing from mortgagor to mortgagee when the mortgage is signed; this severs joint tenancy

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116
Q

______ sale severs the joint tenancy.

A

Forced sale

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117
Q

Under a judgment lien, when is joint tenancy severed?

A

When the property is sold at a foreclosure sale

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118
Q

How does a lease by a joint tenant affect joint tenancy?

A

At common law, it severs joint tenancy.

At modern law, it does not.

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119
Q

What happens to a joint tenancy if one joint tenant is murdered by another.

A

Severs the joint tenancy; murderer is not entitled to victim’s share by right of survivorship

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120
Q

What is tenancy by the entirety?

A

Two spouses own undivided share with the right of survivorship

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121
Q

In order for a tenancy by _________ to exist, parties must be validly married to each other.

A

the entirety

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122
Q

What effect will divorce have on tenancy by the entirety?

A

Sever it and create a tenancy in common

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123
Q

A _______ _______ agreement between two spouses can sever the right of survivorship

A

Mutual written

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124
Q

What effect does a unilateral conveyance by one spouse have on a tenancy by the entirety?

A

Does not sever it

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125
Q

A majority of states hold that a tenancy by the entirety is immune from the claims of _____________ of either spouse.

A

Separate creditors

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126
Q

What is a tenancy in common?

A

Each tenant has undivided interest in the property with no right of survivorship

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127
Q

Tenancy in common is presumed by modern law for any conveyance to _________.

A

Two or more non-married persons

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128
Q

Under a tenancy in common, each tenant must have an equal right to __________.

A

possess the whole

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129
Q

Is there a right of survivorship in a tenancy in common?

A

No

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130
Q

The rights and duties of co-tenants apply to what concurrent estates?

A
  1. Joint tenancy
  2. Tenancy by the entirety
  3. Tenancy in common
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131
Q

What is the general co-tenant right of possession?

A

Each co-tenant has the right to possess and enjoy the entire property

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132
Q

What is wrongful exclusion?

A

Improper ouster of a co-tenant

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133
Q

Ouster is required if a co-tenant is trying to obtain title through ________.

A

Adverse possession

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134
Q

Can co-tenants receive rent if one co-tenant has exclusive possession?

A

Not unless there has been an ouster

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135
Q

The ouster of a tenant does entitle that tenant to ______.

A

Rent

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136
Q

Each co-tenant is entitled to her share of profits from _______.

A

The estate

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137
Q

Each co-tenant must pay her fair share of payments in:

A
  1. Taxes
  2. Mortgages
  3. Repairs
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138
Q

If there are co-tenants, there is no right to contribution for the cost of _________.

A

Improvements

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139
Q

When partition occurs, the improvind co-tenant is entitled to _________ but will also _________.

A

Any increase in value caused by improvements

Be held liable for any decrease in value

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140
Q

A co-tenant must not commit _______.

A

Waste

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141
Q

Disputes involving real property are governed by what law?

A

State where the property is situated

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142
Q

Law of the state where a property is situated is also known as the law of _____.

A

The situs

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143
Q

What is trespass?

A

Invasion of land by tangible physical object

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144
Q

Trespass to land occurs when:

A
  1. D intentionally enters P’s land without permission
  2. D remains on land without right to be there
  3. D places tangible object on P’s land without permission
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145
Q

Trespass interferes with the interest in ________.

A

Exclusive possession of land

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146
Q

If there is trespass, the owner by take action for ______.

A

Ejectment

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147
Q

What is a private nuisance?

A

A substantial and unreasonable interference with P’s use and enjoyment of her land

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148
Q

What are the elements of private nuisance?

A
  1. P has interest in land
  2. Unreasonable interference with use & enjoyment of land
  3. D’s conduct is negligent, abnormally dangerous, or intentional
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149
Q

D’s use and enjoyment of land is unreasonable if:

A
  1. Harm to P is greater than utility of D’s conduct OR
  2. Harm to P is greater than required to ear without compensation
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150
Q

What is lateral and subjacent support?

A

Describes a landowner’s right to have land physically supported in its natural state by adjoining land and underground structures

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151
Q

D will be strictly liable for damage to buildings on P’s property if the P can show __________.

A

The weight of the buildings didn’t contribute to the collapse of the land

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152
Q

What are riparian rights?

A

All landowners whose property is adjacent to a body of water have the right to make reasonable use of it

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153
Q

A riparian owner will be liable to other riparian owners if _______.

A

Her use of the water unreasonably interferes with other riparian owners’ use of the water

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154
Q

The first person to use water from a water source has the right to ___________.

A

Continue to use that quantity of water for that purpose

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155
Q

What is percolating water?

A

Water that seeps or filters through the ground without any definite channel; not part of the flow of any waterway

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156
Q

The owner of the property on the surface of percolating water is entitled to _________.

A

Make reasonable use of the percolating water but can’t commit waste

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157
Q

What is the common enemy doctrine?

A

Surface water is a common enemy that damages property at random, so landowners require everyone to act reasonably to protect their own property

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158
Q

What is a leasehold estate?

A

An interest in land whereby the landholder grants another person exclusive use of land for a limited time, subject to certain terms set forth in the lease

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159
Q

In a leasehold, the tenant has ______ interest and the landlord has _______ interest.

A

Present possessory

Future

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160
Q

What is a tenancy for years?

A

Tenancy that terminates at a fixed date.

161
Q

In a tenancy for years, what dates must be specified?

A

Beginning and ending dates

162
Q

If a tenancy for years is based on a lease that exceeds one year, it must be ________.

A

In writing

163
Q

Under a tenancy for years, no _____ is required for termination.

A

Notice

164
Q

What is a periodic tenancy?

A

A lease agreement which continues for successive periods until either party gives proper notice of termination

165
Q

How can a periodic tenancy be created?

A
  1. Expressly
  2. By written agreement
  3. By implication
  4. By operation of law
166
Q

A periodic tenancy is created by implication where __________.

A

There is no mention of duration but payment is required at specific intervals

167
Q

How can an oral agreement create a period tenancy?

A

When there is an oral agreement for a leasehold that is longer than one year and a rental payment is made by the tenant and accepted by the landlord.

168
Q

How does a holdover lead to a period tenancy?

A

When a tenant remains on the land after the expiration of the lease and submits a rental payment that is accepted by the landlord

169
Q

Period tenancy automatically renews for an additional period until _________.

A

Proper notice of termination is given by either party

170
Q

To terminate a period tenancy, the tenant must ________.

A

Provide a reasonable period, at least one period in advance, of notice

171
Q

If a period tenancy ends, it must end on ________.

A

The last day of the period

172
Q

What is a tenancy at will?

A

A leasehold with no stated duration that will endure only so long as both landlord and tenant desire

173
Q

How is a tenancy at will created?

A
  1. By express agreement
  2. By implication
174
Q

How is a tenancy at will created by implication?

A

When a tenant takes possession under an invalid oral lease, even if no express tenancy at will agreement exists

175
Q

A tenancy at sufferance exists only when ________.

A

The tenant “holds over” at the end of a valid lease

176
Q

A tenancy at sufferance is also known as __________.

A

A holdover tenancy

177
Q

How is a tenancy at sufferance terminated?

A

Landlord either:
1. Evicts the tenant OR
2. Elects to hold tenant to a new tenancy

178
Q

What are a tenant’s duties?

A
  1. Pay rent
  2. Repair
  3. Invited third parties
  4. Tort liability
179
Q

If a tenant breaches the duty to pay rent while in possession of the land, the landlord may:

A
  1. Evict the tenant OR
  2. Continue the tenancy and sue the tenant for back rent
180
Q

Even if a tenant fails to pay rent, a landlord may not engage in _______.

A

Self-help (physically forcing out tenant)

181
Q

When a tenant breaches the duty to pay rent while out of possession of the land, the landlord can:

A
  1. Accept breach as surrender
  2. Leave the premises vacant OR
  3. Sue for back rent or re-let the premises and sue the tenant for the deficiency
182
Q

What does a security deposit do?

A

Serves to protect the landlord if the tenant breaks or violates the terms of the lease

183
Q

If a lease is silent regarding repairs, the tenant must __________.

A

Keep the premises in reasonably good repair by making ordinary repairs and must not commit waste

184
Q

Whenever a tenant removes a fixture, the tenant has committed voluntary waste even if ________________.

A

The fixture was originally installed by the tenant

185
Q

What is a fixture?

A

Personal property that is attached to land or a building that is objectively regarded as an irremovable part of the real property

186
Q

If the lease expressly covenants that the tenant must maintain the premises in good condition, then _____________.

A

The tenant will be held responsible for any loss or destruction

187
Q

In modern law, what happens if the premises are destroyed and a tenant is not at fault?

A

Tenant may terminate the lease

188
Q

What happens if third parties trash a property?

A

Tenant is still responsible for repairs

189
Q

What are the duties of landlord?

A
  1. Deliver possession
  2. Implied covenant of quiet enjoyment
  3. Warrant of habitability
  4. Landlord’s tort liability
190
Q

What is the English Rule?

A

Landlord must put the tenant in actual, physical possession at the beginning of the lease (and evict prior tenants)

191
Q

What is the implied covenant of quiet enjoyment?

A

Implied warranty that the landlord will not unreasonably interfere with the tenant’s use and enjoyment of the premises

192
Q

The implied covenant of quiet enjoyment applies to both ______ and ______ leases.

A

Commercial

Residential

193
Q

To make a claim for a constructive eviction, there must be:

A
  1. Substantial interference by landlord
  2. Tenant provided notice to landlord AND
  3. Tenant must vacate within reasonable time
194
Q

The implied warranty of ______ cannot be cannot be waived by a tenant

A

Habitability

195
Q

What is required under the implied warranty of habitability?

A

Premises must be fit for basic human habitation

196
Q

What are a tenant’s remedies for breach of the implied warranty of habitability?

A
  1. Move out and terminate the lease
  2. Reduce/withhold rent
  3. Repair and deduct OR
  4. Remain in possession and sue for damages
197
Q

What is retaliatory eviction?

A

The requirement that a tenant vacate a unit in response to a complaint from the tenant concerning the condition of the building.

It’s also super illegal.

198
Q

A landlord is only liable for the acts of other tenants if:

A
  1. Landlord must not permit nuisance on the premises AND
  2. Landlord must control all common areas
199
Q

Under common law, the landlord has no duty to protect the tenant/tenant’s licensees/invitees, except:

A
  1. Landlord must disclose latent defects
  2. Injuries resulting from negligent voluntary repairs
  3. Reasonable precaution in common areas
  4. Land is leased for public use
  5. Short term lease of a furnished dwelling
200
Q

The Federal Fair Housing Act prohibits discrimination on the basis of:

A
  1. Race
  2. Color
  3. Religion
  4. National origin
  5. Sex
  6. Disability
  7. Familial status
201
Q

Even under the Fair Housing Act, discrimination is allowed for:

A
  1. Single-family homes
  2. “1-to-4” owner-occupied units
202
Q

Distinguish between assignment and a sublease.

A

Tenant has remaining rights to the property for a sublease - not for an assignment.

203
Q

Assignment is a transfer of _________.

A

Entire interest

204
Q

When a tenant assigns her interest, tenant is no longer in privity of ______, but she is still in privity of ______.

A

Estate with the landlord

Contract

205
Q

Sublease is transfer of __________.

A

part of the interest for a portion of the lease term

206
Q

What is an easement?

A

A grant of a non-possessory interest in land that entitles a person to use the land possessed by another

207
Q

What are the two types of easements?

A
  1. Affirmative easement
  2. Negative easement
208
Q

What is an affirmative easement?

A

A right to go onto the land of another and do some act

209
Q

Most easements are what type?

A

Affirmative

210
Q

What are the requirements to create affirmative easements?

A
  1. Signed by grantor
  2. Manifest intent to create easement
  3. Describe the land
  4. Identify the parties
211
Q

When will existing use lead to an affirmative easement?

A
  1. Ues existed before tract was split in parts
  2. The part’s use was reasonably necessary for the use/enjoyment of the “dominant part” AND
  3. The parties intended the use to continue after the division
212
Q

Affirmative easement by necessity is implied when:

A
  1. An owner sells a portion of her estate AND
  2. The result of the sale is a landlocked parcel of land
213
Q

Affirmative easements created by necessity require:

A
  1. Previous united ownership
  2. Absolute necessity AND
  3. Necessity existed at time of severance of property
214
Q

Affirmative easements created by prescription require:

A
  1. Actual use
  2. Open and notorious
  3. Adverse (hostile) AND
  4. Continuous and uninterrupted use for statutory period
215
Q

What is an affirmative easement by prescription?

A

Easement acquired by an adverse use for the requisite period

216
Q

What is a negative easement?

A

Gives easement holder the right to prevent servient owner from using her land in some way that would otherwise be permitted

217
Q

At common law, negative easements fall into which categories:

A
  1. Light
  2. Air
  3. Subjacent or later support
  4. Stream water from an artificial flow
218
Q

A minority of jurisdictions recognize negative easements for _________.

A

Scenic view

219
Q

A negative easement can only be created expressly by ________.

A

A writing signed by the grantor

220
Q

Negative easements are always appurtenant because _____.

A

It protects the easement’s owner in enjoyment of the land

221
Q

An easement is appurtenant to land if ________.

A

The easement benefits the owner in the use and enjoyment of her land

This is what we have.

222
Q

An appurtenant easement requires two pieces of land: the land benefited, called _______, and the land burdened, called ________.

A

Dominant tenement

Servient tenemant

223
Q

An easement is in gross if ______

A

The easement doesn’t benefit its owner in using her land, but merely gives her the right to use the servient land

224
Q

How does a dominant tenement pass?

A

Automatically

225
Q

How does a servient tenement pass?

A

Automatically unless bona fide purchaser doesn’t have notice of the easement

226
Q

Easements in gross are not transferable unless _________.

A

The easement is for a commercial purpose

227
Q

An easement will terminate by the stated conditions in ________.

A

The express grant

228
Q

An easement will terminate by merger when __________.

A

One owner obtains title to the servient estate and dominant estate

229
Q

An easement is terminated by release when _______.

A

An easement’s owner executes a deed of release to the owner of the servient estate

230
Q

An easement is terminated by abandonment through non-use when __________.

A

Its owner demonstrates an intention via physical act to not use the easement again

231
Q

An easement is terminated by estoppel when ___________.

A

The servient landowner materially changes her position by reasonably relying on the holder’s assurance that the easement will no longer be enforced

232
Q

An easement created by necessity expires when ________.

A

There is no longer an absolute necessity unless the easement was accompanied by an express grant by the owner

233
Q

An easement is terminated is destroyed by _________.

A

Something other than a wilful act by the servient owner

234
Q

What is a license in terms of property?

A

The mere privilege to use another’s land for a specified purpose

235
Q

How can a license be created?

A

Orally or by writing

236
Q

Oral grant to enter land is a ______, NOT an easement by express grant.

A

License

237
Q

A license is revocable at any time at the will of ________.

A

The licensor

238
Q

A license is NOT revocable if:

A
  1. Estoppel
  2. License coupled with interest
239
Q

A license coupled with an interest is one that ___________.

A

Gives the licensee the right to remove the licensee’s chattels which are on the licensor’s land

240
Q

What is a profit?

A

The right to enter the servient estate to remove minerals, timber, oil, etc.

241
Q

Profits are governed by the same rules of __________.

A

Easements

242
Q

What is a covenant?

A

A contractual limitation related to land

243
Q

How is a covenant distinguished from an easement?

A

An easement is a grant of a property interest, while a covenant stems from an action for damages

244
Q

_______ is required to make a covenant.

A

Writing

245
Q

What is a negative or restrictive covenant?

A

A promise not to do something related to land

246
Q

A negative covenant is also known as a ________ covenant.

A

Restrictive

247
Q

What is a positive or affirmative covenant?

A

A promise to do something related. toland

248
Q

A positive covenant is also known as a _______ covenant.

A

Affirmative

249
Q

A covenant runs with the land when _______.

A

It is capable of binding successors

250
Q

In order for the burden of the covenant to run with the land, the following elements must be satisfied:

A
  1. Writing
  2. Intent of original parties
  3. Touch & concern the land
  4. Horizontal and vertical privity
  5. Notice
251
Q

What is horizontal privity?

A

A nexus between the original parties, who are successors in interest.

252
Q

What is vertical privity?

A

A nexus between the original party and the successor. Requires a non-hostile connection between the original party and the successor

253
Q

What forms of notice can exist for a covenant?

A
  1. Actual notice
  2. Imputed notice
  3. Record
  4. Inquiry
254
Q

Actual notice for a covenant is _________.

A

Direct notice of the covenant

255
Q

Imputed notice for a covenant occurs when ______.

A

Agent of successor had actual notice

256
Q

Record for a covenant occurs when __________.

A

Constructive notice of an instrument that has been properly recorded

257
Q

Inquiry for a covenant occurs when ______.

A

Notice attributed to a person when the information would lead an ordinarily prudent person to investigate the matter further

258
Q

In order for the benefit of the covenant to run with the land, the following elements must be satisfied:

A
  1. Writing required
  2. Intent of original parties
  3. Touch and concern the land
  4. Vertical privity
259
Q

What is an equitable servitude?

A

A promise concerning the land that binds the original parties and their successors.

260
Q

What is the difference between an equitable servitude and a covenant?

A

The basis for relief; P enforcing an equitable servitude will seek an injunction not damages

261
Q

In order for the burden of an equitable servitude to run, what requirements must be satisfied?

A
  1. Writing
  2. Intent of original parties
  3. Touch and concern the land
  4. Notice
262
Q

In order for the benefit of an equitable servitude to run, what requirements must be satisfied?

A
  1. Writing
  2. Intent of original parties
  3. Touch and concern the land
263
Q

A reciprocal negative servitude can be implied from __________.

A

A developer’s actions when a developer develops lots of land with a common scheme apparent from the development but one lot is sold without the equitable servitude in the deed

264
Q

What are the elements of implied equitable servitude?

A
  1. Common scheme existed before 1st sale AND
  2. D had notice of common scheme
265
Q

What is the defense of changed conditions?

A

Change in surrounding area warrants alterations to the property. Change must affect the entire area.

266
Q

What is adverse possession?

A

Allows a person to obtain title of a land she has taken possession of for the statutorily prescribed period of time

267
Q

What are the elements of adverse possession?

A
  1. Actual
  2. Exclusive
  3. Continuous
  4. Open and Notorious
  5. Running of the statute

…possession

268
Q

When is there actual possession for adverse possession?

A

Claimant literally entered and used the property as the true owner of the property would

269
Q

When is there exclusive possession for adverse possession?

A

Claimant doesn’t share the property with either the true owner or anyone else except as would be natural for the normal use of the land

270
Q

When is there continuous possession for adverse possession?

A

Clamaint’s possession is uninterrupted for the required statute of limitations

271
Q

What is tacking?

A

Permits a claimant to “tack” on her time in adverse possession with a predecessor adverse possessor’s time if there is privity between the two adverse possessor

272
Q

When is there open and notorious possession for adverse possession?

A

Requires that the claimant use the land in a manner this would be sufficient to put the true owner on notice of the trespass

273
Q

When is there hostile possession for adverse possession?

A

Claimant enters the land without the true owner’s permission

274
Q

What is running of the statute?

A

Claimant must be in adverse possession for the statutory period required by the state

275
Q

The SOL will not run against the owner for adverse possession if, at the time, a cause of action for ejectment arose based on one of the following disabilities:

A
  1. Incapacity
  2. Infancy
  3. Imprisonment
276
Q

Once the elements of adverse possession have been met for statutory period, how does property transfer?

A

Adverse possessor automatically owns the property; not necessary to file any document with the court

277
Q

Title acquired by adverse possession cannot be defeated by a _______ conveyance from the prior title owner.

A

Subsequent

278
Q

A typical real estate transaction involves what three phases:

A
  1. The Land Contract
  2. A period of time for any agreed inspections during which the contract is executory (not yet performed) AND
  3. The Closing
279
Q

What are the formalities of a land contract?

A
  1. Writing required
  2. Describe the land
  3. Identify the parties
  4. Specify price (or state some other consideration) AND
  5. Signed by the party to be bound
280
Q

What is the exception to the writing requirement for land contracts?

A

Part performance by the buyer

281
Q

When is there part performance by the buyer?

A

2/3 required
1. Buyer takes possession
2. Buyer pays all/part of purchase price
3. Buyer makes substantial improvements to land

282
Q

At closing, even if the contract is silent as to the quality of title, there is an implied promise by the seller that ____________________.

A

At the closing, the title is free from reasonable doubt, lawsuits, or the threat of lawsuits

283
Q

Title is unmarketable if _____________.

A

Any part of the land is subject to:
1. Adverse possession
2. Encumberances
3. Are there are current zoning violations

284
Q

What are the two most common types of encumbrances?

A
  1. Servitudes
  2. Mortgages
285
Q

What are the implied promises of a seller in a land contract?

A
  1. Marketable title at the closing
  2. No false statements of material fact AND
  3. No failure to disclose latent material defects
286
Q

Failure to disclose latent material defects is not annulled by ____________ disclaimers.

A

General

287
Q

Implied warranties of fitness and habitability are also known as ________.

A

Caveat emptor

288
Q

A land contract generally contains no implied warranties of ______ or _______.

A

Fitness

Habitability

289
Q

A seller is not liable for the condition of any ________ on a property.

A

Buildings

290
Q

What is the New Home Exception?

A

Implied warranty of fitness and workmanlike construction will apply to the sale of a new home by a vendor who also built the home

291
Q

What is the doctrine of equitable conversion?

A

Once the land contract is signed, the property interests of the buyer and seller have already switched

292
Q

Upon equitable conversion, a buyer has ________ interest.

A

Real property interest

293
Q

Upon equitable conversion, a seller has ________ interest.

A

Personal property interest

294
Q

In jurisdictions that recognize the doctrine of equitable conversion, the switch in interests takes place upon _______.

A

Execution of the contract

295
Q

Who bears the risk of loss under equitable conversion?

A

Majority view: risk in buyer

Minority view: risk on seller

296
Q

What happens in jurisdictions where equitable conversion is not recognized?

A

Both title and the risk of loss remain with the seller until the closing

297
Q

Upon closing, a deed becomes ________.

A

The operative contract

298
Q

What is required for a closing to cause a deed to become the operative contract?

A
  1. Lawful execution of the deed
  2. Delivery of the deed
  3. Acceptance by grantee
299
Q

When is a deed lawfully executed?

A
  1. Writing required
  2. Identify the parties
  3. Describe the property AND
  4. Signed by grantor
300
Q

Delivery of a deed requires _________.

A

Words or conduct evidencing a grantor’s intention that the deed has some present operative effect.

301
Q

For delivery to be effective, the grantor must relinquish _______________.

A

Absolute and unconditional control over the property

302
Q

Acceptance of a deed is presumed unless __________.

A

The grantee has specifically indicated intent not to accept the conveyance

303
Q

When is a deed void?

A
  1. Forged
  2. Deed never delivered
  3. Fraud in factum
304
Q

A void deed will be set aside even if _________.

A

The property has passed to a bone fide purchaser

305
Q

When is a deed voidable?

A
  1. Lack of capacity
  2. Infancy
  3. Duress
  4. Breach of fiduciary duty
  5. Undue influence
  6. Mistake
  7. Fraud in inducement
306
Q

What happens if there is a fraudulent conveyance?

A

Can be set aside by the creditors of the grantor

307
Q

Fraudulent conveyance is found when:

A
  1. Actual intent to hinder, delay, or defraud any creditor of grantor OR
  2. Without receiving a reasonably equivalent value in exchange
308
Q

Quitclaim deeds are distinguished by _______.

A

No covenants or promises by the grantor

309
Q

What is the one promise that can exist where there is a quitclaim deed?

A

Marketable title at closing

310
Q

A general warranty deed contains:

A

3 present and 3 future covenants

311
Q

What are the three present covenants found in a general warranty deed?

A
  1. Covenant of seisin
  2. Covenant of right to convey
  3. Covenant against encumbrances
312
Q

The three present contracts in a general warranty deed are breached at the time of ________.

A

Delivery

313
Q

What is a covenant of seisin?

A

Grantor warrants that she owns the property/interest she is now conveying

314
Q

Where there is a covenant of seisin, the measure of damages for breach is ________.

A

The return of all/portion of purchase price

315
Q

What is a covenant of right to convey?

A

Grantor warrants that she has a right to convey the property

316
Q

What is a covenant against encumbrances?

A

Grantor warrants that there are no encumbrances on property

317
Q

The future covenants of a general warranty deed are breached if __________.

A

Grantee was disturbed while in possession

318
Q

What are the three types of future covenants within a general warranty?

A
  1. Covenant for quiet enjoyment
  2. Covenant of warranty
  3. Covenant for further assurances
319
Q

What is a covenant for quiet enjoyment?

A

Grantor warrants that grantee will not be disturbed in possession and enjoyment of the property by third party’s lawful assertion of superior title

320
Q

What is a covenant of warranty?

A

Grantor warrants that she will defend against lawful claims and that grantor will compensate grantee for any loss that grantee may sustain by assertion of superior title

321
Q

What is a covenant for further assurances?

A

Grantor promises that she will execute any other documents required and do anything else reasonably necessary to perfect title

322
Q

A special warranty deed only contains two promises by the grantor. They are:

A
  1. Grantor has not conveyed to another AND
  2. Free from encumbrances created by grantor
323
Q

What are the types of recording jurisdictions?

A
  1. Race
  2. Notice
  3. Race-notice
324
Q

What is the rule for “race” recording jurisdictions?

A

The first person to record prevails

325
Q

What is the least common recording statute type?

A

Race; only exists in two states

326
Q

What is the rule for “notice” recording jurisdiction?

A

A subsequent purchaser for value without notice of the prior interest will prevail regardless of who recorded first

327
Q

What is the rule for “race-notice” recording jurisdiction?

A

A subsequent purchaser for value without notice who records first will prevail

328
Q

Who is a bona fide purchaser?

A
  1. Subsequent purchaser
  2. For valuable consideration
  3. W/o notice at time of conveyance
329
Q

What is constructive notice at time of conveyance?

A
  1. Inquiry: facts that a reasonable investigation of the land would reveal OR
  2. Record: facts that a reasonable search of public records would reveal
330
Q

A BFP is:

A

Bona fide purchaser

331
Q

What is the shelter rule?

A

Any person who takes from a BFP will prevail over any interest over which the BFP would have prevailed.

332
Q

What is a wild deed?

A

A recorded deed that is not in the chain of title because of a previously unrecorded deed

333
Q

A wild deed does not provide ________.

A

Record notice to later purchasers of the property

334
Q

What is estoppel by deed?

A

A first party, who purports to sell property she doesn’t own, must actually convey that property to the 2nd party if the 1st party later acquires title to that property

335
Q

What is title insurance?

A

An agreement to indemnify against loss arising from a defect in title to real property that is normally issued to the buyer of the property by the title company that conducts the title search.

336
Q

A will is ________.

A

Legal instrument that usually directs the disposition of a person’s property at her death

337
Q

Ademption by extinction occurs when _______.

A

The testator has devised a specifically described piece of real property but the piece of property is no longer owned by the testator at her death

338
Q

Under modern law, the beneficiary of a will takes subject to ____.

A

The liens

339
Q

If beneficiary dies before the testator dies, then the gift of real property to the predeceased beneficiary _______

A

Lapses

340
Q

If there is an applicable anti-lapse statute, then:

A
  1. The gift of real property will not lapse AND
  2. The lineal descendants of the beneficiary take the gift
341
Q

Any part of a decedent’s estate not effectively disposed of by will passes by ______.

A

intestate succession to the decedent’s heirs

342
Q

The majority of real property sales are negotiated by ________.

A

Real estate brokers

343
Q

Who can hire a real estate broker?

A

Both sellers and buyers

344
Q

As agents, real estate brokers have a duty to disclose ________.

A

Material information they have actual knowledge of

345
Q

The ______ broker is the seller’s agent.

A

Listing

346
Q

Both listing and selling brokers earn a commission upon ___________.

A

Sale of property

347
Q

The ________ broker is the buyer’s agent.

A

Selling

348
Q

Both listing and selling brokers have a fiduciary duty to _________.

A

The seller

349
Q

What does a mortgage do?

A

Conveys a security interest in the land intended by the parties to serve as collateral for repayment of a debt

350
Q

The creditor of a mortgage is the _______.

A

Mortgagee

351
Q

What is a lien?

A

If a debtor fails to pay, the creditor can foreclose the lien and force sale of the collateral to pay for the debts

352
Q

The debtor of a mortgage is the _______.

A

Mortgagor

353
Q

How is a legal mortgage created?

A
  1. Writing required
  2. Material information included
354
Q

What material information must be included in a legal mortgage?

A
  1. Parties
  2. Description of land
355
Q

How can a mortgagee transfer a mortgage?

A
  1. Endorsement of note and delivery to transferee OR
  2. Execution of separate document of assignment
356
Q

Do recording statutes apply to mortgages?

A

Yes

357
Q

When there is a transfer of a mortgage, what personal liability does the buyer bear?

A

Only for foreclosure

358
Q

In some jurisdictions, a buyer who didn’t expressly assume a mortgage may be deemed to have impliedly assumed it where _______.

A

The purchase price reflects the value of the house MINUS the mortgage balance

359
Q

The purchase price of a mortgage is typically ____________.

A

Approximate value minus outstanding mortgage

360
Q

Under which theory can a mortgagee have a right to take possession of the collateral property before foreclosure?

A

Title theory

361
Q

What is a foreclosure?

A

A legal proceeding to terminate a mortgagor’s interest in property, instituted by the mortgagee either to gain title to the property or to foce sale in order to satisfy the unpaid debt secured by the mortgage

362
Q

The mortgagor is personally liable if the proceeds of the sale do not ________.

A

Satisfy the debt

363
Q

if the foreclosure sale results in surplus, the surplus is distributed in the following order:

A
  1. Expenses of sale, attorneys’ fees, & court costs
  2. Accrued interest on foreclosed mortgage
  3. Junior lienholders
  4. Mortgagor (debtor)
364
Q

Foreclosure only terminates the property interests of _______ lienholders.

A

Junior

365
Q

Which creditor has priority over all subsequently recorded mortgages after foreclosure?

A

The secured creditor who is first to record the mortgage has priority over all subsequently-recorded mortgages

366
Q

What is a subordination agreement?

A

A legal document used to make the claim of one party junior to a claim in favor of another

367
Q

Subordination agreements are generally used to _________.

A

Grant first lien status to a lienholder who would otherwise be secondary to another party, with the approval of the party that would otherwise have first lien

368
Q

What is equitable subrogation?

A

A doctrine whereby one who pays off the mortgage obligation of another is treated as the beneficial owner of that original obligation.

369
Q

What is the common law right of redemption?

A

While the foreclosure is in progress, the mortgage debtor has the right to redeem the property from the mortgagee by paying the full amount past due under the mortgage (including interest and attorney fees)

370
Q

What is a mortgage acceleration clause?

A

A common provision of a mortgage or note providing the holder with the right to demand that the full outstanding balance is immediately due in the event of default

371
Q

What is a clog on equity of redemption?

A

Provision in a mortgage agreement to prevent redemption by payment of debt or performance of the obligation for which the security was given.

Such a provision is void.

372
Q

In a minority of states, the debtor also has a ______ right to redeem the collateral from the buyer after the foreclosure sale.

A

Statutory

373
Q

What is a deed of trust?

A

Deed conveying a title to real property to a trustee as security until the grantor repays the loan

374
Q

What is an installment land contract?

A

The buyer will only obtain legal title to the property after all installment payments are paid

375
Q

An equitable mortgage is also known as an _________ deed.

A

Absolute

376
Q

What is an equitable mortgage?

A

The deposit of title deeds:
1. By the estate’s owner
2. With a person from whom he has borrowed money
3. With an accompanying agreement to execute a regular mortgage
4. Without even any verbal agreement resepcting a regular security

377
Q

_____ evidence is admissible to demonstrate the intent of parties in an equitable mortgage.

A

parol

378
Q

What is a sale-leaseback?

A

Owner sells property for cash and then leases it back from the buyer

379
Q

The doctrine of Eminent Domain is also known as _________.

A

the Takings Clause

380
Q

What is the doctrine of eminent domain?

A

The government may take private property for public use if it provides just compensation

381
Q

A possessory taking occurs when __________.

A

The government confiscates or physically occupies a person’s property

382
Q

What is a regulatory taking?

A

A land use restriction so severe as to require compensation, either as a total taking or under the Penn Central balancing test

383
Q

A regulation or zoning ordinance that merely __________ is not a regulatory taking

A

Decreases the value of land

384
Q

A regulatory taking is considered a per se taking if ___________.

A

It deprives the owner of 100% of all economic viable use of the owner’s property

385
Q

Government restrictions on development must be justified by __________.

A

A benefit that is roughly proportionate to the burden imposed or there will be a taking

386
Q

A property owner may still bring a takings challenge even if the regulations existed when ________.

A

The property was acquired

387
Q

Temporary denial of development of property is not a taking if:

A
  1. The government’s action is done in good faith AND
  2. Meets standards of fairness and justice
388
Q

A regulatory taking that is not a per se taking will also be considered a taking under the 5th Amendment if ___________.

A

Burden on the property owner exceeds the benefit of the regulation under the Penn Central test

389
Q

What is the Penn Central balancing test?

A

Balance the following factors?
1. Nature of government action
2. Level of diminution in value of the owner’s property
3. Property owner’s reasonable investment-backed expectations

390
Q

For either a possessory or regulatory taking to be held constitutional, it must be for _______ use.

A

Public

391
Q

The public use requirement is satisfied if _______.

A

The government acts under reasonable belief that taking will benefit the public

392
Q

Just compensation at the time of a constitutional taking must be measured by __________.

A

Loss to the owner (fair market value)

393
Q

What is the remedy for invalid taking?

A

Terminate the government regulation and pay owner for damages that accrued while the regulation was in effect

394
Q

What is an exaction?

A

A concession requiring the developer or landowner to either:
1. Surrender a property interest OR
2. Pay for/provide public facilities/amenities as a condition to a municipality’s approval of a development permit

395
Q

Exactions are unconstitutional under the 5th and 14th Amendments unless _______.

A

They meet the Nollan/Dolan tests of essential nexus and rough proportionality

396
Q

What are the Nollan/Dolan tests?

A
  1. A municipality must prove that an exaction’s purpose has an essential nexus to the type of harm the development will cause AND
  2. There must be a rough proportionality between the amount of the exaction and the extent of the harm the development is projected to cause
397
Q

What are zoning ordinances?

A

Laws restricting the use of land or the physical dimensions of buildings on land

398
Q

What happens if a zoning law is created and land within that zoning has nonconforming use?

A

The nonconforming use need not cease immediately, but it may not expand, and abandonment terminates the nonconforming use.

399
Q

A variance from a zoning ordinance will be granted if the proponent demonstrates:

A
  1. Undue hardship without the variance AND
  2. Public won’t suffer substantial detriment from the variance

Bar Exam (15 decks)

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