Property Flashcards
absolute ownership of potentially infinite duration
Freely alienable, deviseable, and descendable, no accompanying future interest
Defeasible Fees
potentially infinite duration, subject to termination by occurence of an event
alienable, deviseable, and descendable
Fee simple determinable (FSD)
limited by specific durational language
automatically terminates upon event
future interest: grantor retains possibility of reverter or third party has executory interest
Fee simple subject to condition subsquent (FSSCS)
present fee simple limited with specific conditional language
terminates only if grantor exercises right of reentry
Future interest: right of reentry
Fee simple subject to executory interest
limited by specific conditional lanugage
title automatically passes to third party
Future interest: executory interest held by third party
Life Estate
possessory estate fully transferable during measuring life
life tenant has right to possess, right to collect rents,
Duties of Life tenant
Life tenant cannot commit waste, or any future interest holder can bring suit
LT must pay property taxes to extent that that the life tenant receives a benefit from the land
preexisting mortgage and assessments are allocated between LT and future interest holders
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Waste
permissive: allows premises to deteriorate through neglect, must make reasonable repairs
Voluntary: affirmative action decreases value, never allowed
**Ameliorative **: affirmative action increases value, permitted if reasonable use of property unless future owners have objection
Reversion
held by grantor who transfers life estate or term of years without conveying future interests to a third party
not subject to RAP
alienable, devisable, descendable
Possibility of Reverter
future interest retained when a fee simple deterinable is granted, alienable devisable, descendable
Right of reentry
future interest retained by grantor after a fee simple subject to condition subsequent is granted
Remainder
future interest that becomes possessory upon natural expiration of a prior estate that is created in teh same conveyance in which the remainder is created
Vested remainder
not subject to any conditions precedent, ascertainable grantee
Vested remainder subject to open
if at least one class member is qualified to take possession at time of conveyance, each class member;s share is subject to partial diminution
rule of convenience: closes class when any member is entitled to possess
Vested remainder subject to complete divestment
the occurence of a condition subsequent will completly divest the remainder
Contingent remainder
remainder that has an unascertainable grantee or is subject to an express condition precedent
Executory Interest
future interest in a third party that cuts the prior estate short upon the occurence of a specifed condition.
shifting: transfers from one grantee to another
springing: transfers from grantor to grantee
Rule against perpetuities
Specific future interests are valid only if they must vest or fail by the end of a life in being plus 21 years
applies to contingent remainders, vested remianders subject to open, executory interests, or rights of first refusal unless commercial
does not apply to future interests that revert to the grantor or charity to charity transfers
Tenants In Common
two or more grantees with unityof possession
each tenant has unrestricted rights to possess the whole
Joint Tenancy with right of survivorship
two or more people with right of survivorship
4 unities:
unity of possession, unity of title, unity of time, and unity of interest
severance converts to a TIC
don’t need consent to sell
mortgage: severs a JT under title theory but not lien theory
Tenancy by the entirety
for married couples
same as JT but includes marriage
neither party can alienate or encumber property without consent of the other
Rights of cotenants
possession and use: equal right to possess all property, don’t ned to pay rent
Third party rent: right to pro rate share of net rent from third party (can deduct expenses)
necessary property expenses: equal obligation to pay taxes or mortgage, can get reimbursed
improvments and repairs: no right to reimbursement but can seek credit during partition
partition: partition in kind (physical partition) or partition by sale if not possible to physically divide
easements unilateral easement only enforceable against co-T who made it
Fair housing and discrimination
prohibits discrimination in sale, rental, financing, advertising of homes and other housing related transactoins
exemptions: owner occupied buildings with no more than 4 units and single samily homes sold without a broker (but still applies to advertising)
protected classes: race, color, religion, national origin, sex, disability, family status
racial discrimination: only need to show disparate racial impact, not intent
Tenancy for years
any fixed period of time
automatically terminates
if longer than one year, SOF applies and requires praties, premises, duration, rent
Periodic tenancy
repetitive, ongoing estate set by periods of time wth no predetermined termination date
automatically renews unelss valid termnation notice
SOF doesn’t apply unless initial term longer than one year
created by express agreement, implication, or operation of law (holdover tenant)
Notice: must be given before last period, or for yearly, 6 months before
Tenancy at will
does not have a specific term, continues as long as L and T want
created by express agreement or implicaton
may be terminated by either party, with no notice (at common law)
Tenancy at sufference (holdover tenant)
T wrongfully remains in possession after expiration of lease
T bound by terms of prior lease
Lasts until T vacates, is evicted, or L elects for a periodic tenancy
Tenant duties
pay rent
avoid waste
repair: for non residential leases
Landlord remedies
failure to pay rent: can sue for damages and evict/terminate lease
entitled to late rent but most jdx bar future rent (unless agreement otherwise)
Abandonment: if L accepts, the lease terminates and liability for future rent ends, if L rejects, T remains liable for rent but L has duty tomitigate damages
Duties of Landlord
Deliver possession: physical and legal
Repair
Warranty of habitability
Covenant of Quiet enjoyment
Warranty of Habitability
residential only
premises must be fit for basic human habitation
if breached, T must notify of defect and give reasonable time to repair, then T must remain in possession and can refuse to pay rent, repair themselves and deduct from rent, or remain in possession, pay rent, and seek damages
Covenant of Quiet Enjoyment
T has a righ tot queit use and enjoyment of premises without interference from L
L has duty to control other tenants
Breach may be evicton:
actual: if L excludes T, lease is termnted and T’s obligation ends
Partial: T excused from paying rent, but not excused if eviction is by adverse posessor and tresspasser
Constructive: substantial interference by L’s actions/inaction T must give notice, and T must vacate within reasonable time
Retaliatory: L may not evict T for complainting about housing code or breach of warranty of habitability
Tort liability
tenant: duty of care to invitees/licensee/foreseeable trespassors and dangerous conditions/activites:
landlord:
injuries in common areas, non common areas under L’s control, or hidden defect, modern trend is general duty of reasonable care
Assignment
complete transfer of T’s remainnd lease term, creates privity of estate with landlord and privity of contract with tenant
both tenant and assignee liable to landlord
Sublease
any transfer for less than entire remaining duration of lease
privity of contract and estate with landlord
sublessee not liable to landlord
Prohibitions on sublease and assignments
valid to prohibit assignments and subleases
L can only withdhold permission to grant assignment or sublease on reasonable grounds in relationship to the property being leased
SOF and exceptions
A land sale contract must be in writing and signed by the party it is to be enforced against.
Exceptions: full performance, detrimental reliance part performance (at least two of payment, possession, improvments)
Present covenants
covenant of seisin
covenant of right to convey
covenant against encumbrances
only breached at the time of contract
Marketable title
title is free from defects or unreasonable risk of litigation
marketable title is required at closing, not before
Future covenants
covenatn of warrranty
covenant of quiet enjoyment
covenant of future assurances
Time of the essence clause
not enforced unless part of the contract, if valid a party failing to performn on closing date is in breach
Implied warranty of fitness
new homes only, warrants use of adequate materials and workmanship includes latent defects
Duty to disclose defects
Seller must disclose all known material physical defects not readily observable
Damages for breach of land sale contract
difference between the market value and the contract price
deposit can be liquidated damages as long as it isn’t more than 10%
Equitable conversion
Buyer gets legal title once contract is signed, bears the risk of damage in between signing and closing
Adverse Possession
Open and Notorious
Continuous
Exclusive
Adverse
Actual
usually 10 years
Delivery of Deed
Grantor must have intent to make present transfer
-intent presumed from delivery of deed
-execution and recording is rebuttable presumption that deed is operative
-transfer to grantor’s agent is not delivery but transfer to** grantee’s agent** is
-transfer to third party with conditon is not deliver if grantor keeps absolute right to recover
Valid deed
identified parties,
grantor’s signature,
words of transfer,
property description
no consideration or recording necessary
Recording acts
protect bonafide purchasers: subsequent purchaser for value who takes without notice
Notice statute
a BFP prevails over a prior grantee if they did not have notice (actual, record, inquiry)
“in good faith”, “without notice”
Race statute
first to record prevails, regardless of knowledge
“first recorded”
Race-Notice
Subsequent BFP is only protected if they take wihtout notice (inquiry, actual, record) AND they are first to record
“first to record” AND “without notice”
Inquiry notice
if a reasonable investigation would disclose prior claims, there is inquiry notice
General warranty deeds
Present covenants (seisin, right to convey, against encumbrances)
Future covenants (quiet enjoyment, warranty, further assurances)
Special warranty deeds
same covenants as general warranty deed, but only warrants against defects arising from the time grantor has title
Quitclaim deed
No warranties
Restraints on Alienation
Void as against public policy unless the restraint is limited in time and purpose
Mortgage
interest in real property taht serves as a security for an obligation
must satisfy the SOF
Lien theory: debtor has title and right to possession until foreclosure
Mortgage alternatives
Deed of trust (beneficiary lender can purchase property at a non-judicial foreclosure sale)
Installment Land contrac
Absolute Deed
Conditional sale and repurchase
Assuming the mortgage
if transferee assumes the mortgage, the borrower is secondarily liable
borrow may be relieved if lender releases transferee of liability
Subject to Mortgage
A transferee that takes a property subject to the mortgage can lose the property to foreclosure but is not personally liable for it
Seniority of mortgages
First in time, first in right
Purchase Money Mortgages: between two PMMs, the seller of the property has prioirty
Equity of Redemption
after default but before foreclosure sale, the mortgagor may regain title by paying the amount due plus interest (full amount if acceleration clause)
Priority
If more than one mortgage, a foreclosure terminates junior interest but not senior ones, but junior interests must have notice. Senior interest cannot join the foreclosure
First in time, first in right
Purchase money mortgage has priority over all others created to prior to the PMM
**recording acts: **recorded mortgage may take priority to an unrecorded one
Easement
non possessory interest in land that allows use of a servient estate for benefit of a dominant estate (appurtenant) or the benefit of a person (in gross)
Express easement
affirmatively created by parties in writing that satisfies requirements for a deed
Prescriptive Easement
continuous, actual, open, and hostile for statutory period (adverse possession without exclusivity)
Easement by Implication
dominant/servient estates were under common ownership
quasi-easement existed at severence
prior use was continuous, apparent, or known
easement reasonably necessary to dominant estates use
Easement by necessity
dominant/servient estates were under common ownership
necessity arises when property is sevred
property is virtually useless wtihout benefit of easement across adjacent property
Easement by estoppel
good faith, reasonable, detrimental reliance on permission by servient estate holder
Transfer of easements
Appurtenant: transfered with land
In gross: burden transfered with transfer of servient estate, benefit transferable if the benefit was commercial or the parties intended it
Scope
changes in scope are not allowed if unforeseeable change in use or unreasonable expansion or misuse.
Termination of easement
Release by writing
Merger of both estates
Severance (attempt to transfer the easement without the land terminates it
Abandonment: affirmatively acts to show clear intent to abandon
Destruction, prescription, end of necessity
Unrecorded easments
Not enforceable agaisnt a BFP of the servient estate
License
privilege to enter anothers land
freely revocable unless coupled with an interest
does not need to satisfy SOF
invalid oral easment may create a license
Real covenant
When damages sought
Writing
Intent for parties for covenant to run with land
Touch and concern
Notice (burden only)
Privity:
Horizontal (burden only): original parties must have privity of estate at time the covenant is made
Vertical: successor must hold estate of same duration as original party
Equitable servitudes
for Injunctive relief
Writing
Intent
Touch and concern
Notice (if servitude is to be enforced against a purchaser)
Implied reciprocal servitude
implied from common plan
remedy is injunction
requires intent, negative servitude, notice
Defenses to equitable servitudes
changed circumstances
laches
unclean hands
acquiesence
estoppel
Termination of covenants
release, merger, abandonment, waiver, estoppel, condemnation, sale to BFP
Fixture
chattel attached to real property such that it is treated as part of the real property when determining ownership
Attachment and removal
once attached, fixtures become part of realty but can be removed if the seller reserves the right to remove fixtures in a sale contract, or leased property can be restored to former condition without damage in a reasonable time, or otherwise by contract
Ultra Vires Zoning
zoning laws that are unauthorized or exceed the authority of the local government are void
Challenges to zoning
- arbitrary or irrational (normal test is rational basis)
- not usually a taking
- strict scrutiny under due process if right of family members to live together is violated
- strict scrutiny under equal protection if suspect class involved (must show intent)
- free speech: adult entertainment can be restricted in location but not banned
Existing non-conforming property
may be grandfathered in
may be subject to amortization
non-conformity cannot be expanded, but can increase frequency so long as nature and character are not a substantial change
can be transfered
repair of existing structure usually permitted
can be involuntarily terminated by natural forces
Post ordinance non-conforming property
can request a variance for unusual circumstances: must show variance is not contrary to public interest, that compliance with ordinance would result in** unnecessary hardship**, and the owner did not create the need
area variance: allow building/physical structure
use variance: allows a use
PRocedural due process re: zoning
an owner who is denied a permit or variance may appeal and has the right to an impartial decision maker, to present evidence, and to receive an explanation
Spot zoning
arbitrary and not permitted
Private Nuisance
a non-trespassory, unreasonable intentional and substantial interference with another’s use and enjoyment of property
[NUIS]
public nuisance
an unreasonable interference with the health, safety, or property rights of the community.
for a private action the plaintiff must show that they suffered a different harm than that suffered by the rest of the community
Water rights
reasonable use: bordering land owner has right to reasonable use
prior appropriation: first in time, first in right
Lateral Support rights
Undeveloped: landowner who excavates on their land is strictly liable for damage on undeveloped adjacent land
Improvements: landowner who excavates on his land is strictly liable only if ajoining land would have collapsed in its undeveloped state
Improvements contribute to collapse: landowner who excavates is only liable if he is negligent
Subjacent support
owner of mineral rights is strictly liable for any failure to support the land and any buildings that existed at the time the rights were conveyed
Air rights
land owner has limited right to reasonable use and enjoyment of the airspace as long as it doesn’t interfere with another’s enjoyment of land
