Property Flashcards
Language to create Fee Simple Determinable v. Fee Simple Subject to Executory Interest
Determinable: words of duration (so long as, during, while)
Executory Interest: to X so long as (or “but if”)… to Y
Obligations and Prohibitions on Life-Tenant
Responsible for ordinary expenses and taxes during their lifetime.
Prohibited from committing waste (decreasing property value).
How does interest in Tenancy in Common, Joint Tenancy, or Tenancy by Entirety pass?
By bequest or intestacy.
Severance of Joint Tenancy
- Severed if one JT unilaterally transfers ownership interest; then hold as tenants in common.
- Where more than two JT and one unilaterally transfers, joint tenancy remains among other JTs and transferee is tenant in common.
- Severed in Title Theory Jurisdiction where one JT mortgages interest; but not in Lien Theory Jurisdiction.
- Severed in most states if JT leases property.
Co-tenants and Rent or Repairs
Entitled to fair share of rent from third party.
Entitled to reimbursement for cost of necessary repairs, unless wrongful ouster.
Creation and Termination of Periodic Tenancy
Created by
- express agreement
- implication (rent paid at specific periods)
or
- law (tenant-for-years remains after termination or lease is invalid)
Termination requires written notice at least a full period in advance (six months if year-to-year lease).
Termination of Tenancy at Will
Notice plus reasonable time to quit the premises. (Some states do not require notice.)
Rights of tenant who is constructively evicted
Terminate the lease
Seek damages
Avoid rent during period of CE
LL duties: residential v. commercial lease
Residential lease:
- repair common areas
- warn of latent defects that create risk of serious harm that LL knows or should know of
Commercial lease:
- no duty to repair unless in lease agreement
LL’s Consent for Assignment
Must obtain consent if required by lease.
But if LL accepts rent from assignee, LL waives right to enforce provision prohibiting assignment.
Types of Notice re: Real Property
- Actual - knowledge
- Constructive - discoverable in property records
- Inquiry - would be revealed by reasonable inspection of property
What is the Trade Fixture Exception?
An item attached to property for a tenant’s trade or business is NOT a fixture UNLESS removal causes substantial damage to the property.
It may become a fixture if not removed before end of the lease term.
What is Aggregation/Tacking?
Allows adverse possessors in privity to aggregate years spent possessing property to meet statutory period.
Also applies to statutory period’s limitation on suit by landowner.
Privity exists when land is transferred voluntarily (deed or bequest).
Breaches and Damages: Warranty of Marketable Title
- If seller cannot convey marketable title at closing, buyer may withdraw without penalty.
- Buyer may waive defect; seller cannot cancel contract if so.
- Damages measured by reduced value of land. Courts are divided on whether can recover if encumbrance is known or obvious (whether there is notice).
Risk of Loss - Sale of Land
Most states: transfers to buyer upon signing contract.
Minority: seller bears, unless buyer has possession of or title to property at time.
Breach of Home Builder’s Implied Warrant
Buyer can recover damages discovered within reasonable time for
- defective construction
or
- construction not performed in workmanlike manner (within accepted industry norms)
Grantor’s Intent to Convey Land
Will be found if any words indicate intent to immediately convey (grant, convey, give, transfer).
Will NOT be found if grantor
- expressly reserves right to revoke deed
or
- gives instruction to only deliver deed upon own death.
Effect of Oral Conditions on Deed
If deed is unconditional in its face and is given to grantee, any additional conditions are invalid.
If same deed given to third party (held in escrow), additional conditions create a conditional delivery.
Remote Grantee Enforcement of Present Covenants of General Warranty Deed
Common law: not enforceable by remote grantee
Some states: enforceable if remote grantee did not have notice of encumbrance.
What is Chain of Title?
It shows all transfers of a piece of land. There are two indexes: one organized by name of grantor, and one by name of grantee.
Two Types of Payments under Future-Advance Mortgage
Obligatory: lender has duty to advance (no discretion); all payments are part of original loan and take priority over later liens
Optional: made at lender’s discretion; do not have priority over liens recorded before payment is made
Liability under Transfer Subject to Mortgage
Buyer is not personally liable on mortgage, BUT mortgage remains on the land and lender may foreclose.
Foreclosure Impact on Other Mortgages and Debt
Extinguishes all JUNIOR mortgages; no impact on SENIOR (prior) mortgages.
Debts paid by foreclosure sale in order:
1. Attorney fees and expenses re: sale.
2. Debts owed to lender.
3. Any remaining amount to borrower.
If funds insufficient to pay debts to lender, lender may seek deficiency judgment against borrower for remaining amount.
Previous Non-Conforming Use
Allows landowner to continue using land (in previously legal way) in violation of subsequently enacted zoning law.
Non-conforming use MUST be continuous.
Allowed to make insubstantial changes and reasonable alterations to repair property.
Not allowed to make substantial changes that alter, enlarge, or extend non-conforming use.
What is the Fair Housing Act?
Prohibits discrimination in housing activities based on:
- familial status (except 55+ communities)
- national origin
- race/color
- religion
- disability
and/or
- sex
Exemptions from Fair Housing Act
- religious organizations
- private clubs that restrict occupancy to members
- owner-occupied buildings with no more than 4 units with persons living independently of each other
- single family home sold/rented by owner, without agent, and owner has no more than three homes at time
Discriminatory Advertising under FHA
Prohibited and enforced against person who runs ad and its creator.
Violates FHA even if the property advertised is exempt from FHA.
Tenant Abandons Premises: what is it and what can LL do?
Abandonment: tenant vacates leased premises without justification, lacks present intent to return, and defaults on rent.
LL may
- terminate the lease
- relet to new tenant and sue abandoning tenant for unpaid rent
or
- leave premises vacant and sue tenant for accrued rent (subject to duty to mitigate damages)
When does Constructive Adverse Possession apply?
- Possessor enters land under color of title (invalid deed or bequest)
- additional land portion is reasonable in size
- additional land portion is adjacent to portion actually possessed
and - portions owned by same person
Tolling and Adverse Possession
Time for the landowner to sue the occupier may toll for reasons in statute, but only if landowner had cause of action against occupier when occupier first entered (i.e. was landowner at time).
Adverse Possessor v. Bona Fide Purchaser
BFP cannot defeat title of adverse possessor, even if land unoccupied at time. Once AP acquires title, the previous record title owner has no title to convey.
What is LL’s duty re: possession of property?
Majority/English view:
- LL must deliver legal right to possession AND actual possession.
- Failure to do so is breach and tenant may terminate lease.
Minority/American view:
- LL must only deliver legal right to possession unless lease provides otherwise.
How is scope of easement determined?
By how it was created.
- Express easement by grant is limited to what agreed to by parties.
- Easement implied by prior use limited to scope of prior use.
- Easement by prescription limited to actual usage during statutory period.
- Easement by necessity limited to remedying necessity at issue.
What is estoppel by deed?
If grantor conveys title to real property by deed before he owns the property, title will automatically vest in grantee as soon as grantor acquires title.
What is a zoning ordinance?
Land-use regulation that adversely affects real property interests. It is allowed where reasonably protects health, safety, morals, or general welfare of community.
What does “under color of title” mean?
Pursuant to invalid deed or bequest
