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Feb 25 Bar Exam > Property > Flashcards

Property Flashcards

1
Q

Fee Simple Absolute
(Present Estate)

A

A fee simple absolute is a:
* conveyance of absolute ownership of real property
* without conditions placed on it
* Property is freely devisable via will
* can be passed to descendants; and
* alienable (can be transferred during grantor’s lifetime)

Note: Fee tail is conveyance to person and their heirs. Most jurisidictions have abolished and treat these conveyance as fee simple absolute.

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2
Q

Fee Simple Defeasible
(Present Estate)

A

A fee simple defeasible is a conveyance of property that has conditions placed on it, created by the grantor using express conditional language to indicate thatthe conveyance will be terminated upon the occurence or non-occurence of an event or condition.

Gives grantee present possessory interest but reserves a future interest in the property in favor of either the grantor or a third-party.

Determinable, Condition Subsequent, and Subject to Executory Limitation

Note: If deed language is ambiguous as to which defeasible fee is meant, courts construe the language in accordance with the grantor’s intentions.

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3
Q

Fee Simple Determinable (Fee Simple Defeasible - Present Estate)

A

A fee simple determinable is a conditional conveyance that allows grantor to retain a possibility of reverter.

Created when grantor uses words of duration (i.e., long as,during, while, etc).

Interest automatically terminates if a specified condition occurs.

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4
Q

Fee Simple on Condition Subsequent
(Simple Defeasible - Present Estate)

A

A fee simple subject to a condition subsequent is a conditional conveyance that allows the grantor to regain a right of re-entry if a specified condition occurs.

Created when conveyance expressly states that the interest being conveyed is subject to the grantor’s right of re-entry if a specified condition occurs.

Grantee’s present interest in the property will be lost ONLY IF the grantor affirmatively exercises their right of re-entry and takes possession of the land.

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5
Q

Fee Simple Subject to Executory Interest
(Simple Defeasible - Present Estate)

A

A fee simple subject to an executory interest is a conditional conveyance of real property, in which a third-party (not the grantor or his heirs) will be entitled to the property upon the occurrence of a specified condition.

Ex: To X, but if Y, then to Z.

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6
Q

Life Estate (Present Estate)

MED

A

Conveyance of real property where a specified life-tenant is entitled to possession of the property during their lifetime, and upon life-tenant’s death, the property trasfers outright to another party (the remainderman).

  • Life Tenant is responsible for ordinary expenses and taxes relating to property during their lifetime and
  • cannot commit waste (causing property to decrease in value).

Note: Life tenant not paying expenses and taxes = waste.

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7
Q

Tennancy in Common
(Creation)

MED

A

Tenancy in common is the default (does not require express language) estate created by a conveyance or bequest of real property to two or more people.

Exceptions:
* (a) express language stating parties have a right of survivorship (creating a joint tenancy) or
* (b) conveyance is to “as husband and wife” creating a tenancy by the entirety

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8
Q

Tenancy in Common
(Rights)

MED

A

Each tenant in common owns an undivided interest in the property and has the right to use and enjoy the entire property.

There are no survivorship rights (i.e. interest does not automatically pass to other tenants in common). Upon death, tenant’s interest passes to their estate.

“Right of survivorship” means that when one joint tenant dies, their interest in the land is automatically transferred to the other joint tenants.

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9
Q

Joint Tenancy
(Formation)

MED

A

Joint tenancy created when conveyance of real property with two or more persons has the four unities present (PITT):

  • Possession - all interests have equal rights of possession
  • Interest - all ownersip interests are equal
  • Time - all interests received at the same time
  • Title - all interests were acquired by the same interest

Clear express intent is required to create a joint tenancy.

Express intent looks like “joint tenants”, “right of survivorship”, “jointly”.

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10
Q

Joint Tenancy
(Severance)

HIGH

A

A joint tenancy severs when:
* Unilateral Transfer - tenants will hold property as tenants in common
* Conveyance of interest to third party- third party takes property as a tenant in common (if more than two joint tenants, joint tenancy remains among other joint tenants, but not third-party)
* Mortgage - in a lien theory jurisdiction, mortgage does not sever but in title theory jurisdiction, mortgage will sever the joint tenancy
* Lease of Property - Common law rule is that a lease severs the joint tenancy

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11
Q

Rent from Co-Tenant
(Tenants in Common)

MED

A

A co-tenant in a tenants in common cannot collect rent from another co-tentant who is in exclusive possession of the premises, unless:

  • There is an **agreement **stating so OR
  • Co-Tenant seeking rent was wrongfuly ousted
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12
Q

Rent from a Third-Party
(Tenants in Common)

MED

A

An out of possession cotenant is entitled to fair share of rent paid by a third party to in possession cotenant.

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13
Q

Reimbursement for Repairs
(Tenancy in Common)

MED

A

A cotenant is entitled to reimbursement for their share of the costs of necessary repairs, unless there has been a wrongful ouster.

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14
Q

Reimbursement for Improvements
(Tenants in Common)

MED

A

Cotenants do not have to share costs of improvements, unless there is a seperate agreement to do so.

If the property appreciates because of the improvements, only the cotenant that paid for the improvements is entitled to the appreciation.

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15
Q

Types of Leasehold Interests

HIGH

A
  • Tenancy for Years: Fixed period; lease automaticallly terminates after fixed period, typically can’t end early
  • Periodic Tenancy: Lasts for initial period, then automatically continues for additional equal periods (created by express agreement or by implication) (terminated by end of natural lease period AND written notice one period in advance)
  • Tenancy at Will: Continues until either party terminates; termination requires notice and reasonable time to vacate premises
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16
Q

Tenant Duty to Pay Rent

MED

A

If tenant does not pay rent, landlord may initiate eviction proceedings or allow tenant to remain on property and sue for damages.

If tenant abandons property and does not pay rent, landlord may be required to take reasonable steps to mitigate their losses.

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17
Q

Hold-Over Tenant

MED

A

If a tenant holds over (stays after lease expires), landlord may evict tenant or hold the tenant over.

Holding over the tenant implies a month to month tenancy is created with terms identical to the original lease (though landlord can raise rent with advance notice).

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18
Q

Implied Warranty of Habitability

HIGH

A

A warranty of habitatibiliy is implied in every residential lease and requires landlord to provide a **habitable (reasonably suitable for human needs) place to live.
**
If breached, tenant may:
* move out and terminate lease,
* withold or reduce rent,
* repair and deduct, or
* remain on premises and sue for damages.

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19
Q

Implied Covenant of Quiet Enjoyment

HIGH

A

Every lease includes an implied covenant of quiet enjoyment, which prevents landlord from interferingg with tenant’s quiet enjoyment and possession of the property.

Covenant is breached if tenant is constructively evicted.

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20
Q

Constructive Eviction
(Implied Covenant of Quiet Enjoyment)

HIGH

A

Constructive Eviction occurs when:
* landlord breached duty to tenant
* Breach caused loss of substantial use and enjoyment of premises
* Tenant gave landlord notice of condition
* Landlord failed to remedy the condition within a reasonable time
* Tenant vacated the premises

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21
Q

Landlord Duty to Repair

HIGH

A

Residential lease: Landlord has duty ro repair common areas; duty to warn of any latent defects that create a risk of serious harm that landlord knows of (or should know of).
* Ex: Landlord must warn of dangerous dog in common area, if know about it

Commercial lease: Landlords do not have duty to repair, unless specified in lease agreement; public authorities may require landlord to repair in certain instances

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22
Q

Landlord Duty to Mitigate Damages

HIGH

A

Common Law: Landlord has no duty to mitigate damages

Most States: Landlord has duty to take resonable steps to mitigate their losses (e.g., attempting to lease property to another tenant), but mitigation does not have to be successful

If landlord finds another tenant, then landlord only able to sue for difference between original and current rent payments, plus incidental damages.

Note: Some states allow landlord to recover for future payments.

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23
Q

Assignments of Leases

High

A

A lease may be freely assigned, unless lease restricts.
An assignment cannot be for a longer period than time of remaining lease.
Assignee is liable to landord for rent and all other covenants that run with the land.
Assignor also remains liable to landord for any rent not paid by assignee
Landlord’s maintanence obligation is enforceable by the assignee

Note: In most states, landlord does not have to consent to assignment. Some states require landlord to habev a reasonable basis for withholding.

Note: If landlord accepts rent from assignee, then waives right to not consent to assignment.

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24
Q

Assignment vs. Sublease

MED

A

An assignment occurs when tenant transfers ENTIRE interest in leasehold.

A sublet/sublease occurs when a tenant transfers only some of their remaining interest in a lease to a third party.

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25
Q

Sublets of Leases

MED

A
  • A lease may be freely subletted, unless lease states otherwise.
  • A sublease cannot be longer than the lease term.
  • A sublettor is not liable to landlord for rent.
  • If landlord accepts rent from sublettor, foreits right to object to sublease.
  • Sublessee cannot enforce covenants made by the landlord under lease, but can enforce covenants made by sublettor.
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26
Q

Surrending a Lease

High

A

A “surrender” is an agreement between the landlord and a tenant to end a lease early.

If landlord accepts the surrender, the tenant’s duty to pay rent after the acceptance ends.

If the landlord does not accept the surrender, the tenant is deemd to have abandoned the lease, and the landlord can sue for damages. A landlord’s acceptance must be clear.

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27
Q

Abandoning a Lease

MED

A

Abandonment occurs when the tenant
* vacates the lease without justification
* lacks the present intent to return AND
* defaults in paying rent

If abandoned, landlord can:
* terminate the lease
* relet the premises
* leave premises vacant and sue tenant for accrued rent

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28
Q

Real Covenant

MED

A

A covenant is a non-possessory interest in land that obligates holder to either do something or refain from donig something to the land.

To enforce benefit of covenant:
* A writing (satisfying SOF)
* Intent that covenant runs with land
* vertical privity (when successor holds entire interest held by predecessor); AND
* covenant must touch and concern the land

To enforce burden of a covenant:
* All required to enforce a benefit
* Plus horizontal privity (exists when two parties share some interest in the land independent of the covenant); AND
* new owner must have notice of the covenant (notice may be actual, constructive or inquiry)

Remedy for Breach: Damages

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29
Q

Equitable Servitudes

MED

A

Equitable servitudes are covenants that equity will enforce if the burdened estate had notice of the covenants (regardless of whether run with the land).

To enforce benefit of an equitable servitude, must be:
* A writing (satisfying SOF)
* Intent for servitude to be enforceablel AND
* servitude must touch and concern the land

To enforce burden of an equitable servitude:
* All requirements of enforcing benefit
* plus new owner must have notice of the servitude (actual, constructive or inquiry)

Remedy for Breach: Injunction

30
Q

Common Scheme or Plan Doctrine
(Reciprocal Negatie Servitude)

MED

A

A court will imply a reciprocal restrictive covenant on parcels of land in a subdivision sold by a developer if:
* developer had a common scheme or plan that all parcels of land would be subject to the restriction at the time the parcel in the subdivision was sold
* defendant landowner had actual, inquiry or record notice of the restriction

31
Q

Common Interest Ownership Communities
(Restrictive Covenants)

MED

A

A Common Interest Community is a neighborhood where individually owned units are burdened by a servitude that obligates current and future owners to:
* pay for maintantanence of the common property OR
* pay dues to an association that provides services to common or individually owned property OR that enforces other servitudes burdening the property

Note: Co-ops are treated as Common Interest Communities

32
Q

Easement
(In gross or appurtenant)

HIGH

A

An easement is a non-possessory interest in the use of someone else’s land.

In Gross: benefits a specific owner’s enjoyment and use of the land; does not attach to the land (unless the easement is for commercial activity). Does not pass to subsequent land owners.

Appurtenant: Benefit’s any owner’s enjoyment/use of land and does attach to the land. Passses to subsewquent landowners as long as new owner has notice.

33
Q

Easement by Grant

HIGH

A

Requires:
* Writing signed by the grantor (must satisfy SOF if for more than one year)
* Writing identifies land and parties involved
* Writing indicates the grantor’s intent to convey easement

34
Q

Easement by Prescription

HIGH

A

Created when the possessor’s use of the land is:
* Open and notorious
* continuous
* hostile (without permission) AND
* for the statutory period

Note: Differs from adverse possession because don’t take title to property, instead get a non-possesary interest.

35
Q

Easement by Implication

HIGH

A

Established when:
* A single tract of land is divided by a common owner
* a pre-existing use by the grantor that benefits the land is established prior to the division of the land
* the use is continuous
* the use is apparent (clearly visible) indicating that the use was meant to be permanent
* such use is reasonably necessary for the owner’s use and enjoyment of the land conveyed

Note: Intermitten use is sufficient.

36
Q

Easement by Necessity

HIGH

A

Created if:
* Original piece of land owned by one owner is subdivided AND
* the access the easement provides is essential to the use of the property because there is no other ingress or egress available (ex: no other viable road access)

37
Q

Termination of an Easement

HIGH

A

An easement may be terminated by:
* Estoppel (when servient estate owner reasonably relies on, or matererially changes their position, due to the easement holder’s assurance that the easement will no longer be enforced)
* Termination of the necessity that created the easement
* involuntary distruction of the servient estate
* condemnation of the servient estate
* written release
* abandonment
* merger
* prescription

38
Q

Licenses

MED

A

A license is a privilege to use another’s land in a particular way.

A license:
* Doens’t need to be in writing
* may be revoked at any time
* can be estopped from revoking a license if licensee has invested substantia lamount of money/labor in reasonable reliance on the continuation of the license.

Note: Licensee must act within scope of the license.

39
Q

Fixtures

HIGH

A

A fixture is:
* personal property
* attached to land or a building AND
* regarded as an irremovable part of the real property

A fixture is treated as real property and passes with the ownership of the land (unless otherwise agreed)

Whether an item is a fixture is determined by the objective intent of the party who attached the item.

Courts consider:
* Nature of the itme
* manner in which it is attached
* damage if itme were removed
* the extent to which the item is adapted to the property

40
Q

Trade Fixture Exception

High

A

An item that is attached to the property for use in the tenant’s trade or business is NOT a fixture unless removal would cause substantial damage to the property.

An item that is not a fixture may becoe one if it’s not removed before the end of the lease term.

41
Q

Adverse Possession

HIGH

A

Allows someone in possession of and owned by another to acquire title to that land when possession of the property is:
* continuous for statutory period (usually 10 yrs)
* open and notorious
* exclusive
* actual
* hostile

42
Q

Tacking
(Adverse Possession)

HIGH

A

Adverse possessors in privity may aggregate their years spent possessing the property to meet the statutory period.

Privity exists when the land is voluntaritly transferred to another.

43
Q

Land Sale Contract Requirements

MED

A

Contract for land must:
* Be in a writing
* describe the property
* identiy the parties involved
* contain the purchase price AND
* be signed by grantor/grantee (whoever contract is being forced against)

Note: Merger Doctrine - Once a deed is delivered and accepted, the land sale contract merges with the deed; any rights to sue under contract are extinguished, but buyer may sue upon the deed.

44
Q

Warranty of Marketable Title

MED

A

A seller has a duty to convey marketable title to a buyer.
Marketable title is title that is free from any cloud or subject to any adverse claim.

Title is unmarketable when it contains a substantial defect:
* defects in the record chain of title
* encumbrances such as motgages, liens, restrictive covenants, easements etc.

If a seller cannot convey marketable title, the buyer can withdraw from the contract without penalty. The buyer may choose to waive marketable title (if waived, seller cannot cancel contract).

Note: Zoning violations make title unmarketable; zoning restrictions do not.

45
Q

Damages for Breach of Warranty of Title

MED

A

Damages for a breach of a Warranty of Title is measured by the reduced value of the land.

46
Q

Doctrine of Equitable Conversion
(Risk of Loss)

MED

A

Once contract for sale of land is signed, doctrine of equitable conversion splits ownership between the buyer and the seller.
* Seller - has legal title; holds property in trust for the buyer
* Buyer - has equitable title

Risk of loss transfers to buyer upon signing of contract.

47
Q

Time is of the Essence

MED

A

If contract for real estate contains a “time is of the essence” clause then buyer must perform on the closing date, unless otherwise agreed.

If buyer fails to perform, it will be deemed a material breach and seller may keep buyer’s down payment as liquidated damages.

48
Q

Specific Performance of Real Property

MED

A

Real property is always considered unique, and specific performance is an appropriate remedy, unless the property has since been sold to a bonafide purchaser without notice.

49
Q

Home Builder’s Implied Warranty

HIGH

A

The home builder’s implied warranty protects a purchaser of a newly constructed home against latent defects AND warrants that the building is safe and fit for human habitation at the time of sale.

Breach allows buyer to recover damages for defects discovered within a reasonable amount of time due to defective construction or construction not performed in accordance with accepted industry norms.

Note: A latent defect is one that could not have been discovered by reasonable inspection.

Note: States differ on whether warranty will be applied to subsequent owners of the property.

50
Q

Deed Requirements

HIGH

A

A valid deed must:
* be in writing
* be signed by grantor
* identify grantor and grantee
* describe the property
* indicate grantor’s pressent intent to convey the land (must convey immediate intent)

Note: delivery of a deed is established by a proven intent to pass title, even if the title document was never physically given to the grantee.

51
Q

General Warranty Deed

HIGH

A

A general warranty deed contains six covenants of title:

Present Covenants
* Seisin (grantor is the rightful owner)
* Grantor has right to convey
* There are no encubrances against the title

Future Covenants
* Warranty - grantor will defend grantee against any third party claims to title
* quiet enjoyment - grantee will not be bothre by a third party’s lawful claim to title
* Further assurances - grantor will take reasonable steps to perfect title if problems arise

52
Q

Special Warranty Deed

HIGH

A

A special warranty deed only warrants that the seller has not breached the covenants of title during their period of ownership.
* seller has not previously conveyed the property AND
* there are no encumbrances against title made by the seller

53
Q

Quitclaim Deed

HIGH

A

A quitclaim deed does not contain any covenants or promises to the buyer. It is an “as is” deed, leaving the buyer with no rights to sue the seller/grantor for any encumbrances or defects in title.

54
Q

Estoppel by Deed

MED

A

If a grantor conveys title to real property by deed before grantor own the property, the title will automatically vest in the grantee as soon as the grantor acquires title to the property.

Estoppel by deed applies to validate a deed, and in particular a warranty deed, that was executed and delivered by a grantor who had no title to the land at that time, but who reprsented that the or she had such title and who thereafter acquired such title.

Note: Also known as “after acquired title”.

55
Q

Chain of Title and Wild Land Records

HIGH

A

If a land transfer is not recorded properly, it is considered “wild”.

A wild deed, mortgage or easement is effective between the parties, but will not put subsequent purchasers on constructive notice because the deed is outside of the chain of title.

56
Q

Types of Recording Statutes

MED

A
  • Notice Statute - A subsequent bona fide purchaser will prevail over a prior grantee that failed to record
  • Race Statute - Whomever records first prevails (notice is irrelevant)
  • Race-Notice - a subsequent bona fide purchaser is protected only if he records before the prior grantee
57
Q

Bona Fide Purchaser

HIGH

A

A bonafide purchaser is a person who:
* takes real proeprty without notice of a prior conveyance AND
* pays valuable consideration

Reciving land by bequest does not make you a bonafide purchaser

58
Q

Types of Notice

HIGH

A

Actual - a person has received information directly
Constructive - when information could have been obtained from an inspection of public land records
Inquiry - Information woudl have been revealed upon a resonable inspection of the land

Note: Under the shelter rule, a person who purchases from a bonafide purchaser receives the same status and rights as the Bona fide purchaser.

59
Q

Subsequent BFP and Adverse Possession

MED

A

A subsequent bonafide purchaser cannot defeat title acquired under adverse possession, even if land was not occupied at the time of conveyance.

60
Q

Deed Mechanics

(LOW)

A
  • Grantor must sign the deed (or grantor’s authorized person(s)).
  • Generally, grantor hires attorney to prepare the deed.
  • Notarization of deed is generally not required, but may be by local law to record the deed.
61
Q

Requirements for Valid Mortgage

MED

A

Mortgage is a security interest in real property intended to be colateral for repayment of a loan.

A mortgage must be:
* In writing
* Signed by the party to be charged AND
* Resonably identify the parties and the land.

Note: The debtor and the mortgagor can be be different people.

62
Q

Purchase Money Mortgage
(Seller Financing)

MED

A

Used to purchase real property. Seller is the lender who secures a mortgage on the property.

Holder of a purchase money mortgage has priority over:
* all claims and mortgages against the mortgagor prior to the purchase of the property AND
* all subsequent claims and mortgages, unless defeated by a recording statute.

63
Q

Deed of Trust

MED

A

A deed of trust involves three parties:
* borrower (purchaser of property)
* the lender AND
* a third-party trustee who holds title of property until loan is paid off

64
Q

Assumption of Mortgage

MED

A

Express: occurs if express agreement for the grantee to take the real propery AND continue making mortgage payments to the lender

Implied: no express agreement exists; grantee pays the seller only the equity in the home AND grantee continues to make payments to the lender on balance of the mortgage (only a few states allow)

Note: Buyer is primarly and personally liable on the mortgage, seller remains secondarily liable.

65
Q

Property Transfer Subject to Mortgage

MED

A

If buyer takes real property subject to seller’s mortgage, butyer is not personally liable on the mortgage.

Note: Buyer is not personally liable on the mortgage. Mortgagee may foreclose on the mortgage and sell burdened property in a foreclosure sale.

66
Q

Foreclosure and Order of Preference

MED

A

Foreclosure destroys junior mortgages (mortgage recorded after in foreclosure).

Proceeds from sale are used to pay off debts in following order:
* attonrey fees and expenses associated with sale
* debts owed to mortgageee
* any amount left to mortgagor

A mortgagee (lender) may seek a deficiency judgment against a mortgagor (debtor/property owner) if the proceeds of the foreclosure sale are insufficient to satisfy the mortgage.

67
Q

Variance (Zoning)

MED

A

A variance is an exception to a zoning ordinance. Two types exist:
* use variance
* area variance

An application for a variance may be granted if:
* Property owner shows they will suffer hardship because of ordinance
* variance will no damage or harm the public welfare

68
Q

Previous Non-Conforming Use

MED

A

Allows landowner to continue to use land in violation of a later enacted zoning law if prior use of land was originally legal, i.e. be grandfathered in if it remains in use.

Insubstantial changes and reasonable alterations to repair the property are permitted, but substantial changes are not.

69
Q

Choice of Law: Real Property
(Situs Rule)

MED

A

In cases involving title to real property or a contract for sale of real property, the laws of the state where the real property is located govern.

If real property is only incidental to a contract (ex: mortgage agreements), the nconflict of laws rules apply for contracts are applicable.

70
Q

FHA Discrimination Categories and Exemptions

MED

A

FHA prohibits discrimination based on a person’s: Race or Color; religion; sec; national origin; Disability; and/or familial status (w/ children).

The FHA does not apply to: relgious organizations; private clubs that limit occupancy to members; owner-occupied buildings with no more than four units; or single family houses sold or rented without use of an agent.

FHA prohibits making/publishing of discrimanotry advertisements indicating FHA prohibited preferences and applies to both publishers ad entities placing real estate advertisements.

71
Q

Equitable Mortgage

MBE

A

Equitable mortgages re relationships that do not meet a jurisdiction’s legal mortgage requirements.

In such cases, courts will usually look for basic elements of a mortgage:

  • debt from one paryt to another for na amount significnatly less than the land is worth AND
  • some sort of promise to return the land upon payment.

If court finds these elements, the arrangement will then be treated as a mortgage under law.

72
Q

Surety

MBE

A

A surety is the guarantee of a debt of one party by another.

Feb 25 Bar Exam (10 decks)

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