Property Flashcards
4 Ways to Alienate (i.e., transfer) Property
- Sale
- Gift
- Devise
- Intestate Succession
Percatory
Words, such as “I hope” “I wish” in a will; doesn’t actually connote intent
Defeasible Interest
Interest that has been cut short or terminated
Fee Simple Determinable (FSD)
Fee simple language that is limited by specific durational language
Executory Interest
Future interest that will cut short or terminate an earlier interest (i.e., divest prior interest)
Possibility of Reverter
Grantor’s future interest followed by a FSD
Right of Entry
Grantor’s future interest following a FSSCS
Reversion
Grantor’s future interest following a life estate
Waste
Where more than one party has interest in the same property
3 Kinds of Waste
- Affirmative Waste
- Permissive Waste
- Ameliorative Waste
Affirmative Waste
Waste caused by voluntary conduct (i.e., voluntarily decreasing the value of the property)
Permissive Waste
Waste caused by neglect causing a decrease in value
Ameliorative Waste
Changing the property that actually increases the value of the property
Vested Remainder
Interest that is given to an IDENTIFIABLE, living grantee & not subject to a condition precedent
Rule of Convenience
Rule: If the grant does not have an express closing date, this Rule closes the class when any member of the class becomes entitled to immediate possession
Effect: closes a class to avoid the rule against perpetuities; a way to prevent the gift of a subject to open in perpetuity
Rule Against Perpetuities
contingent remainders and vested remainders subject topen are valid only if they must vest/fail by the end of a life in being plus 21 years
Exceptions:
1. Charities: a gift from one charity to another
2. Options: (1) option held by a current tenant to purchase a fee interest in the leasehold property; and (2) option/right of first refusal in a commercial transaction
RAP Class Gift rule
If a gift to any class member is void under RAP, then the gift is void to all members (the “all or nothing rule”)
Exceptions: (1) transfer of a specific $-amt to each class member; and (2) transfer to a subclass that vests at at specific time
How to create Joint Tenancy
- Grantor must make a clear expression of intent; and
- Must be in survivorship language
3 Ways to potentially Sever Joint Tenancy (into Tenancy in Common)
- Inter vivos transfer
- Mortgages: (1) majority jdx–lien theory (mortgage is treated as a lien and doesn’t destroy the joint tenancy); (2) minority jdx–title theory (mortgage severs unity of title)
- Leases: (1) some jdx–lease severs JT; (2) other jdx–lease is a temporary suspension of the joint tenancy
Which 4 Unities require to create and maintain Joint Tenancy?
- Possession (equal right to possess the whole of the property)
- Interest (equal share of the same type of interest)
- Time (receipt of interest at the same time)
- Title (receipt their interests in the same instrument)
Equitable Servitude
Covenants about the land use that are enforced in equity by injunction or specific performance
Can hardship for which zoning variance is sought be created by the owner who seeks it?
No
Can lender circumvent buyer-mortgagor’s equitable right to redeem the mortgaged property
No
Equitable Right of Redemption
refers to a buyer-mortgagor’s ability to buy back their property in full at a foreclosure sale
Can warranty of suitability/habitability/workmanlike construction be disclaimed
No
Warranty of suitability is?/not? subject to reasonable time limit
It is subject to reasonable time limit.
A delay of several years may be unreasonable.
purchase money mortgage
- money used to purchase the property
- always gets priority
redemption
paying off debt to prevent foreclosure
equitable right of redemption
def.) period of time from NOTICE of foreclosure to foreclosure SALE, the mortgagor can redeem the property
This right may NEVER waived (even if mortgage doc suggests otherwise)
Statutory Redemption
additional period time AFTER foreclosure sale mortgagor might have to redeem the property under statute
lien theory
Bank only has a LIEN (i.e., bank has no legal rights)
Owner holds TITLE
Owner can sell the mortgaged property
title theory
Bank holds TITLE
Owner only has equitable interest
Owner cannot sell the mortgaged property
Joint Tenancy in Lien and Title Jdx
Lien Jdx: mortgage does not sever the JT
Title jdx: mortgage SEVERS into TIC
Assuming the Mortgage
New buyer takes over payment
Original owner secondarily liable UNLESS novation
Subject to the Mortgage
Original owner is liable for the payment
BUT bank CAN foreclose the property on the new owner
Deed in Lieu of Foreclosure
Sign deed to bank and skip foreclosure proceedings
Any mortgage taken AFTER the foreclosure sale (i.e., junior) the mortgage being foreclosed will be
Wiped out as long as
1. notice is given to other junior interests
2. junior interests join the suit
Any mortgage taken BEFORE the foreclosure sale
Buyer takes SUBJECT TO
Deficiency Judgment
Collect the remaining money not recovered by foreclosure sale
installment land K
- Mortgagor does not gain title until ALL payments are made
- Seller can take back if buyer defaults
Seller does not need to give title or marketable title until all payments are met
For an express equitable servitude to run with the land
When I Not, There’s No Problem
Writing
Intent to run
Touch & Concern
NOTICE (e.g., was it recorded)
(no) Privity
For an implied equitable servitude to run with the land
Intent to create common scheme
Restrictive Servitude
Notice
For burden to run with the land
When I Touch His Very Pretty Nuts
Writing
Intent to run
Touch & Concern
Horizontal & Vertical Privity
Notice
For benefit to run with the land
When I Try Vaginal Penetration
Writing
Intent to run
Touch & Concern
Vertical Privity
If equitable servitude is to be enforced against the purchaser, then
the purchaser must have notice (actual, record, or inquiry) of the servitude
When is seller required to deliver marketable title
Not until closing
i.e.) buyer may not repudiate after signing that title is not marketable if deal has not closed yet
Forged instrument (e.g., deed, release form mortgage) is
VOID & has not effect on property rights even if relied on BFP
estoppel by deed doctrine
Grantor who conveys an interest in land by warranty deed before actually owning it is estopped from later denying the effectiveness of his deed.
Consequently, when the grantor does acquire ownership of the land, the after-acquired title is transferred automatically to the prior grantee
Upon death of a joint tenant,
the joint tenant’s interest disappears and the remaining joint tenants’ interest automatically absorbs it (i.e., right of survivorship)
devise
property passes upon death
If surface & miner estates are owned by the same party, then the adverse possessor will acquire
title to both estates even if only one estate is actually possessed
Is signing a lease of the mineral rights enough for adverse possession
No, requires something more, like drilling
quitclaim deed
without any warranties
Judicially supervised foreclosure sale
Foreclosing mortgagee:
- must give notice to the holders of any junior interests in the property (otherwise, the junior-interest holder’s interest will remain after the sale)
- may join others who have an interest in the property OR who are liable on the debt
Does a mortgagee need to give notice to holders of any senior interests?
No
If a senior mortgage holder agrees to subordinate their interest, does that control over race-notice jdx laws?
Yes
doctrine of equitable redeemption
allows a debtor to reclaim mortgaged prop. at any time BEFORE a foreclosure sale
by paying the full amt of outstanding debt + accrued interest
implied covenant of quiet enjoyment
promise by the landlord not to interfere with the tenant’s possession of the leased premises
nonconforming use
Property
when property was used in a lawful manner BEFORE a zoning law was enacted/amended and that use continues even tho it is now prohibited by zoning law
owner of nonconforming use has “grandfathered right” to continue unless
- the use is enlarged, changed, or abandoned OR
- if provided in the zoning law, the amortization period has passed or the nonconforming use has not been registered
Race-notice priority:
Subsequent BFP who lacks notice of earlier interest and records first will prevail
If a deed transfers ownership to a group of grantees that is not ascertainable w/reasonable certainty
The deed will be deemed void
valid deed 4 reqs
- writing and signed by the grantor;
- unambiguously identify the grantor and grantee;
- unambiguously describe the land; AND
- include words of transfer
A cotenancy’s right to natural resources is limited to
the size of the cotenant’s interest
e.g.) if a co-tenant has 75% interest in the land, they are entitled to harvest 75% of the share of natural resource even if the other tenant does not consent to altering the parcel from its natural state
intermediate theory
mortgagor is considered the owner of the mortgaged property until default
lender obtains legal title upon default
Tacking in adverse possession only when
Successive parties in interest are in privity (i.e., mutual/successive interest)
A waiver in claim of a land (from adverse possession, for e.g.) must be in
writing bc SOF
Periodic tenancy may be terminated w/o cause. T/F
True
UNLESS periodic tenancy of federally subsidized RESIDENTIAL housing (some cts)
Does mortgagor’s duty not to commit waste extend to damages not caused by the mortgagor
Yes, because even if not caused by the mortgagor, it devalues mortgagee’s interest
Shelter Rule
One who takes from BFP will prevail against anyone the transferor-BFP would have prevailed against
Ways easements can be terminated:
- Abandonment (but not mere nonuse)
- Merger (of the two parcels, e.g.)
How do you abandon an easement?
A more definitive conduct than mere nonuse of the easement
Equitable conversion places the risk of loss on the
Buyer during the period bw signing and closing
[UNLESS state follows Uniform Vendor & Purchaser Risk Act (UVPRA)]
Uniform Vendor & Purchaser Risk Act (UVPRA)
If seller is on the premise, during the period bw signing and closing, seller bears the risk of loss
subrogation (mortgage)
when a person pays another’s ENTIRE, REMAINING mortgage obligation and then becomes the owner of the obligation
subrogation generally
Paying off someone’s ENTIRE, REMAINING obligation and becoming the owner of that obligation
SOF exceptions (prop.)
2 of the below: (i.e., doctrine of partial performance)
- move in
- pay value
- make improvements on the land
When you ASSUME the mortgage
You are responsible for the payments and foreclosing party can go after you for payment and foreclose on the property
adverse possession always possesses a fee simple absolute. T/F
False. only pertains to the property owner’s current property interest (e.g., a life estate)
Is judgment creditor a BFP?
Not unless they bought the property in a foreclosure sale
Can landlords recover rent from an assignee (tenant)?
Yes, because there is privity
Can landlords recover rent from a subtenant?
No there is no privity between the landlord and the subtenant
Can a landlord reject an assignment after it has consented to a previous assignment?
No, in most jurisdictions
Can a landlord reject a sublease after it has consented to a previous sublease?
Yes
net income by TIC must be shared. T/F
False
necessary repairs must be shared by TIC. T/F
True
Absolute duty to repair the premises via K is
void (for residential leases) UNLESS corporate lease
deed
transfers legal title from seller to buyer on the day of closing
3 present warranties
breached on the day of closing
1. seisin - promising that seller owns the property
2. right to convey - promising that seller has legal title
3. covenant against encumbrances - warranty that there are no encumbrances
3 future warranties
last forever
1. quiet enjoyment - grantee will not be bothered by any future claims
2. warranty - seller will defend any claims that arise in the future
3. further assurance - seller will fix any defects in title
general warranty deed
deed has been okay since forever
special warranty deed
deed has been okay since seller has owned the property
delivery of deed
seller must INTEND to give up control even if it physically doesn’t pass hands
acceptance of deed
PRESUMED unless facts suggest otherwise
liens on the property and the estate
estate will pay off liens so that grantee will get the property free and clear
tacking
INTENTIONAL transfer from one person to another
Adverse Possession elements
Adverse
Hostile
Open & Notorious
Exclusive
Continuous
*must have every element
Equal Dignity Rule
Agent may sign deed on behalf of the grantor
BUT the writing granting permission by the grantor to the agent must be in writing (SOF req.)
Exceptions to the Equal Dignity Rule
- Officer of Corp. w/authority
- Signing Agent
- No writing required IF grantor induced reliance from the grantee by making them think grantor had the writing (estoppel arg.)
Recording statute only actually relevant for Qs with
If single grantor is giving same property to multiple parties
(otherwise, it’s red herring)
Notice statute
LAST BFP prevails
BFP
- pays for the property
- takes property WITHOUT notice
Race-Notice Statute
FIRST BFP to record wins
wild deed
grantee that didn’t get the property from original grantor nor had notice of it loses
O –> A –> B (w/o notice)
O –> C
A –> B is the wild deed
shifting executory interest
estate shifts FROM the grantee to (3P) executory-interest holder
springing executory interest
estate springs FROM grantor to the executory interest
fee tail
lasts until the original grantee’s lineage dies out
typically abolished in every jurisdiction
Suretyship
If the transferee defaults on an ASSUMED mortgage and the mortgagor then pays that debt, the mortgagor can seek reimbursement from the transferee under the law of suretyship
If the purchaser expressly ASSUMED the man’s mortgage’s debt,
the purchaser becomes primarily liable for the debt and the man becomes secondarily liable as a surety
contingent remainder
- subject to a condition precedent OR
- held by an unknown/unborn person
evidence of oral condition is admissible to rebut presumption of deed delivery (deed is delivered when grantor hands deed to grantee). T/F
F
It is inadmissible bc ORAL
red flags for marketable title
- covenants
- easements
- leases
- liens
- gaps in chain of title
- BOUNDARY DISPUTES
- existing zoning violations
- adverse possession
life tenant is prohibited from engaging in acts that change the property’s value (e.g., transfer) UNLESS
all future interest holders were known and all consented (majority)
Does the rule of convenience apply when the grantor specifies that the class should remain open even tho a member of the class is entitled to immediate possession of a share of the class gift?
e.g.) “regardless of when they are born”
No
Life tenant is responsible for
interest on a mortgage to the extent property can produce income
life tenant is NOT responsible for:
mortgage principle
When does termination occur for a tenancy in years?
Automatically at the expiration of the term–no notice is required from either party
If the landlord assigns his property, does the new landlord-assignee have right to enforce a pre-existing covenant?
Yes if:
1. original parties intended to bind successors in interest,
2. covenant touches + concerns the land AND
3. transfer brings the assignee-landlord into privity of estate with the tenant
Otherwise, landlord-ASSIGNOR still has the right to enforce the covenant
privity of estate
mutual or successive rel’ship in the same property interest
warranty deed** *Remember!
promises TITLE is free from defects but makes no promises about the physical quality
seller can disclaim material defects of property with an
“as is” clause
delivering a deed through death escrow
grantor must:
- give the deed to an escrow agent (e.g., attney) w/instructions to transfer it to the grantee upon grantor’s death AND
- relinquish the right to take back the deed (i.e., if the man has explicitly retained the right to have the deed when returned to him, then no relinquishment)
All co-tenants may freely encumber their separate interests w/o the consent of the other. T/F
Yes, all co-tenants except tenancy by the entirety
partition in kind
physical div. of prop. into distinct lots that are proportionate to each co-tenant’s ownership interest
interest remains on debtor’s PROPERTY interest
the preferred type of partition
partition by sale
court-ordered sale of property where proceeds are divided in accordance w/each co-tenant’s ownership interest
interest attaches to debtor’s PROCEEDS from the sale
foreclosure sale is distributed in the order of
- expenses (incl. attney’s fees, court costs)
- mortgage being foreclosed,
- junior liens,
- debtor (if any surplus)
can tenants acquire a prescriptive easement over leased premises or other lands owned by the landlord?
No, not even other lots owned by the landlord
Life estate are permitted to commit waste. T/F
False. The only thing a life estate cannot do
If life estate conveys Greenacre to grantee, then grantee has ownership of the property
until Life Estate owner dies
reversion
interest goes back to the (original) grantor
life tenant must pay
- interest (on a mortgage) and
- taxes
2 types of remainders
- vested remainder (automatic transfer)
- contingent remainder (subject to an event)
vested remainder
automatic transfer
vested remainder SUBJECT TO OPEN/subject to partial divestment)
- refers to a class of people
- one from the class must be alive
vested remainder subject to total divestment
if a person’s interest can be wiped out
e.g. C) J to you for your life, then to C, but if C has no kids then to D
“so long as” or “as long as”
fee simple determinable
possibility of reverter
AUTOMATICALLY reverts to grantor if cond’n is not met
FSD
“but if”
Fee Simple Subject to Cond’n Subsequent
right of reentry
Grantor must act to get the land back
FSSCS
RAP
interest must vest w/in 21 years of the life in being
FSD/FSSCS –> executory interest (3P)
e.g.) ….as long as… but if…
violates RAP
only the 3P interest is stricken out
may a joint tenant convey their interest to a 3P
YES (always)
but it severs a JT to TIC
right of survivorship trumps everything. T/F
True, a will, a conveyance, anything
divorce and tenancy by the entirety
tenancy by the entirety is severed into TIC
If a joint tenant dies with debt,
property subsumed by right of survivorship-tenant
personal debt doesn’t affect the JT property
each tenant has the right for
the whole property UNLESS ouster
partition
- Ct divides property in 2
- granted unless not practical
cotenant pays taxes and mortgage then…
- cotenant may seek contribution
- If sole (physically living there) possessor may only recover the amt that exceeds market value
cotenants & rent
- out of possession cotenants (i.e., doesn’t live on the property) may share rents & profits
- BUT not from a tenant in possession UNLESS they’re damaging the property
NO contribution for REPAIRS UNLESS
they were necessary & requested
NO contribution for IMPROVEMENTS UNLESS
it increases rents/profits
in month-to-month (periodic) tenancy, prior notice is required
in a month
in a year-to-year (periodic) tenancy, prior notice is required
in a year
landlord duties
- actual possession
- duty for basic repairs
- warranty of habitability
- warranty of quiet enjoyment (=stopping other tenants’ nuisances–not small inconveniences)
tenant dutie
- duty to pay rent
- cannot commit waste
tenants assigns
- new tenant primarily liable
- original tenant SECONDARILY liable UNLESS novation
sublease–who is liable
original tenant liable unless novation
covenants against assignment or sublease is
STRICTLY CONSTRUED
e.g.) If covenant merely restricts assignments, tenant may still sublease
if new landlord, in order to receive rent, new landlord must
provide notice
Fair Housing Act
prohibits discrimination in sale/rental based on:
race
color
religion
sex
disability
family status
pregnancy
fixture
chattel so affixed to the property that removal would cause damage
(e.g., so central to the property like a beam supporting the structure)
