Property Flashcards
Estate
Right to possess property
present estate: immediate right to possess property
future estate: confer a right, or potential right, to possess property in future
fee simple absolute
(1) indefinite duration, (2) indefeasible (can’t be cut off by another estate) (3) right to possess
fee simple determinable
AUTOMATICALLY end if condition specified in conveyance occurs
“Possibility of reverter”: interest the potential party holds who will gain control of the estate if the fee simple determinable condition occurs that automatically ends the conveyance
KEY WORDS: words of duration/time: “until”, “while”, “so long as”, “during”
fee simple subject to condition subsequent
DOESN’T end automatically if condition specified in conveyance occurs
“Right of entry”: grantor has option to enter land and retake property, but if they don’t, estate continues as before
KEY WORDS: conditional language: “but if”, “on condition that”, “unless”, “provided that”
fee simple subject to executory limitation
can be cut short by an executory interest
executory interest (1) depends on future condition, (2) may cut prior estate short before its natural end
“to X, but if Y joins military, to Y”
X has fee simple subject to executory limitation
Y has executory interest
life estate
holder possess property until they die
“remainder” interest by person who gets estate once life estate possessor dies
“vested remainder”: held by (1) living identifiable person and (2) no conditions
“contingent remainder” held by (a) unknown person or (b) subject to some future condition
life tenant duties: (1) reasonably avoid permissive waste (pay taxes), (2) voluntary waste (alter property negatively), (3) ameliorative waste (change character even if increase value)
Rule against perpetuities
Property interest void if there’s any possibility that it could VEST more than 21 years after the end of ALL relevant lives when the interest is created.
“vested remainder”: held by (1) living identifiable person and (2) no conditions
NOTE:
- A possibility of reverter vests immediately, and thus an owner conveying a property and retaining a possibility of reverter cannot violate RAP
-BUT:
- “Wait and see rule:” Preserves property interest that would otherwise violate RAP until it vests or until the 21 year period has run, whichever comes first (wait to see if the interest does vest up until the statute of limitation then it goes away)
- “doctrine of cy pres”: If an interest would violate RAP, court rewrites conveyance to comply with rule following grantor’s intent (ex life estate then to grantee’s child who first turns 25, rewritten to say life estate then to grantee’s child who first turns 21)
Concurrent ownership
2 or more people, called cotenants, own property together
tenancy in common: multiple tenants, don’t need to own equal shares, but each hold undivided possession/non-exclusion interest in property, each possessor can grant their share without permission
Joint tenancy with right of survivorship: multiple tenants, EACH hold equal shares, each hold undivided possession/non-exclusion interest in property, EACH has right of survivorship where they own entire property upon other tenant’s death, each can sell their share without consulting others
- (1) time, (2) title, (3) interest, (4) possession
- (interest vests same time)
- (ownership from same title)
- (equal shares interest in property)
- (possession right equally to entire property)
Severance: joint tenant interest drops out and is no longer subject to survivorship
- other joint tenants remain in joint tenancy, but previous joint tenant interest is now tenant in common (most commonly when someone sells their share in joint tenancy)
Partition: court divides up property among tenants based on their interests (in kind = physically divide) (by sale = monetarily divide)
Easement
property interest that gives right to use someone else’s land for a specific purpose
“dominant tenement”: property benefitted by easement
“servient tenement” property burdened by easement
Transfer: Runs with land and binding on all successive owners who take with notice of the easement
Easement formation
Express grant: writing
Express reservation: grantor conveys land and retains easement
Prescriptive easement: easement acquired by adverse possession
Existing prior use: (1) 1 parcel split into 2 from common ownership, (2) at time, (3) apparent continual use of one parcel for benefit of another that may be expected to continue after severance, (4) easement important or necessary to benefited parcel
Easement by necessity: easement absolutely required for use of dominant tenement
ERPPN
Easement termination
(a) easement’s express terms, (b) formal release, (c) abandonment by words/actions demonstrate intent to give up (d) merger (person owns both dominant and servient tenements) (e) gov eminent domain
Restrictive covenant
agreement to use or limit use of one parcel for the benefit of another
Enforceable against successors if: (1) in writing, (2) intended to run with land, (3) covenant touches/concerns land, (4) servient tenement owner had notice at time of purchase
WITN
Licenses
permission to use land for specified purpose
NOTES:
- not interest in land itself
- can be revoked at any time (UNLESS licensee expended money, property, or labor)
- doesn’t have to be in writing
- doesn’t run with land
Adverse Possession
CHOSE: (1) continuous, (2) hostile, (3) open and notorious, (4) statutory period, (5) exclusive
“tacking”: previous adverse possessor’s time is “tacked” onto the new adverse possessor’s time towards statute of limitations IF PRIVITY (new possessor acquired possession by voluntary transfer)
Mortgage
Lien on real property that secures a debt
Mortgagor: borrower
Mortgagee: lender
(majority) Lien theory: Mortgage gives mortgagee security interest in property, no change in title
Title theory: Mortgage gives mortgagee title to property until debt paid
Due-on-sale clause
If mortgagor sells property, mortgagee may declare entire underlying debt immediately due and payable
Sale of mortgaged property
3 scenarios:
(i) seller pays off mortgage,
(ii) buyer takes property but without assuming underlying debt, then if default, bank forecloses on the house but buyer has no personal liability remains with seller,
(iii) buyer takes over the mortgage, seller still liable unless released by bank
Equity of redemption
common-law right to avoid foreclosure by paying remaining mortgage debt before foreclosure
Statutory redemption
entitled mortgagor to purchase foreclosed property back from foreclosure buyer for specified period of time after the auction
Liens
Liens payed by seniority
First-in-time rule: Seniority based on when the lien was filed
Senior lien: lien with priority over another
Junior lien: lien with lower priority
Purchase-money mortgage: mortgage where the seller provides the money to buyer = highest priority lien on a property
Future-advance mortgage: lender makes initial lump-sum payment followed by periodic disbursements
- if future-advance lender required to make periodic disbursements, then future disbursements have same priority as initial distribution
- if future-advance disbursements are optional then priority depends on initial lenders notice of 2nd mortgage (if no notice = future-advance lendors periodic disbursements have priority) (if notice = all future-advance disbursement are junior to the 2nd mortgage)
General payouts: (1) costs of foreclosure/sale costs/court costs, (2) mortgage being foreclosed, (3) all junior mortgages/other liens, (4) mortgagor if any remains (5) all debt remaining (deficiency)
Landlord and tenant: Abandonment remedies
(a) accept and terminate lease, (b) re-lease and recover difference between new rent and previous rent (c) allow vacancy and sue for rent when due
- some jx: duty to mitigate damages
Landlord: Duty to deliver
(1) legal possession, (2) actual possession
Legal possession: no 3rd party has rights sufficient to evict tenant
actual possession: property unoccupied and physically free to be occupied
Landlord: Warranty of quiet enjoyment
(1) landlord nor anyone with superior title will disturb tenant’s possession, (2) landlord won’t constructively evict tenant (substantially deprive tenant of use/enjoyment of property)
Tenant: Constructive Eviction
(1) notify landlord (2) provide opportunity to cure, (3) landlord fails to cure
(a) terminate or (b) stay and stop paying rent until fixed
