Property Flashcards
What is a fee simple defeasible?
A fee simple defeasible is a conveyance of property with conditions placed on it, allowing the grantor to retain a future interest if a specified condition occurs.
What are the 3 types of fee simple defeasibles?
The 3 types of fee simple defeasibles are:
- Fee Simple Determinable: Automatically terminates and transfers back to the grantor if a specified condition occurs.
- Fee Simple Subject to Condition Subsequent: Terminates only if the grantor exercises the right of re-entry after a specified condition occurs.
- Fee Simple Subject to Executory Interest: A third party receives the property upon the occurrence of a specified condition.
What is a possibility of reverter?
A possibility of reverter is the future interest a grantor retains upon conveying a fee simple determinable.
If a certain condition occurs, a grantee’s present possessory interest is automatically terminated, reverting back to the grantor.
What is a right of re-entry?
A right of re-entry is the future interest a grantor retains upon conveying a fee simple subject to condition subsequent.
It allows the grantor to re-enter and take the property if a specified condition occurs.
The grantee’s present interest is lost only if the grantor exercises that right.
Are reverter and right of re-entry interests subject to the Rule Against Perpetuities?
No, reverter and right of re-entry are not subject to the Rule Against Perpetuities because they immediately vest upon creation.
What is a restraint on alienation?
A restraint on alienation occurs when a grantor restricts the alienability or transferability of the land.
What are the 3 types of restraints on alienation and what is their effect on transfers?
The 3 types of restraints on alienation and their effects on transfers are:
- Disabling Restraints: All transfers are void.
- Forfeiture Restraints: Land is forfeited if a transfer is attempted.
- Promissory Restraints: An attempted transfer breaches a covenant.
What is waste in property law?
Waste refers to damage or harm to property by those with a present possessory interest, which can be affirmative, permissive, or ameliorative.
What are the four unities required for joint tenancy?
- Unity of time: All interests received at the same time.
- Unity of title: All interests acquired by the same instrument.
- Unity of interest: All ownership interests are equal.
- Unity of possession: All interests have equal rights of possession.
What happens when one joint tenant unilaterally transfers their interest?
The joint tenancy is severed, and the tenants will hold the property as tenants in common.
What is the effect of a mortgage on a joint tenancy?
In a lien theory jurisdiction, the mortgage does not sever the joint tenancy. In a title theory jurisdiction, it does sever the joint tenancy.
What entitlements does a co-tenant have regarding rent?
An out-of-possession co-tenant does not have the right to receive rent from the in-possession co-tenant unless wrongfully ousted. If the in-possession co-tenant rents to a third party, the out-of-possession co-tenant is entitled to their fair share.
What is an ouster of a co-tenant?
An ouster occurs when a co-tenant excludes another co-tenant from possessing the property, allowing the excluded party to seek recovery of possession and damages.
What are the three types of leasehold interests?
- Tenancy for years: Fixed period with specified start and end dates.
- Periodic tenancy: Automatically continues for equal periods until terminated.
- Tenancy at will: Continues until either party terminates.
What is the landlord’s duty to deliver possession?
In most states, the landlord must deliver both legal and actual possession of the leased premises at the start of the lease term.
What is the implied warranty of habitability?
The implied warranty of habitability requires landlords to provide habitable living conditions, suitable for human needs.
What constitutes constructive eviction?
Constructive eviction occurs when the landlord breaches a duty, causing a loss of substantial use and enjoyment of the premises, and the tenant vacates after giving notice.
What is the landlord’s duty to mitigate damages?
Most states impose a duty on landlords to take reasonable steps to mitigate losses, such as attempting to lease the property to another tenant.
What is the landlord’s duty to mitigate damages?
At common law, a landlord had NO duty to mitigate his damages. However, most states now impose a duty on a landlord to take reasonable steps to mitigate his losses. If a landlord fails to mitigate, some jurisdictions hold that the tenant is not liable for any rent or damages after the date of abandonment.
What happens if a landlord leases the property to another tenant?
The landlord would be able to sue for the difference between the original rent payments and the rent payments under the new lease, as well as any incidental damages.
Can a lease be assigned freely?
A lease may be freely assigned UNLESS a provision in the lease states otherwise. An assignment can never be for a longer period of time than the lessor’s remaining lease term.
What is an assignment in the context of a lease?
An assignment occurs when a tenant (the assignor) transfers ALL of his remaining interest in a lease to a third-party (the assignee). The assignee is liable to the landlord for rent and all other covenants that run with the land.
What happens if a landlord accepts rent from the assignee?
A landlord may be deemed to waive his right to enforce a provision prohibiting assignments if he accepts rent from the assignee.
What is a sublease?
A sublease occurs when a tenant (the sublessor) transfers only some of his remaining interest in a lease to a third-party (the sublessee). A lease may be freely sublet UNLESS a provision in the lease states otherwise.
Is the sublessee liable to the landlord?
The sublessee is NOT liable to the landlord for rent or other covenants that run with the land because there is no privity of estate with the landlord.
What is surrender in the context of leases?
Surrender is an agreement between the landlord and tenant to end a lease early. If the landlord accepts the surrender, the tenant’s duty to pay rent after the acceptance ends.
What are the requirements to enforce a real covenant?
To enforce the benefit of a covenant, there must be: (1) a writing that satisfies the statute of frauds; (2) intent that the covenant runs with the land; (3) vertical privity between succeeding parties; AND (4) the covenant must touch and concern the land.
What distinguishes equitable servitudes from real covenants?
Equitable servitudes are covenants that equity will enforce if the burdened estate had notice of the covenants, and the remedy is injunctive relief rather than damages.
What is the Common Scheme or Plan Doctrine?
Under the Common Scheme or Plan Doctrine, a court will imply reciprocal restrictive covenants on parcels of land in a subdivision sold by a developer if the developer had a common scheme or plan and the defendant land owner had notice of the restriction.
What is an easement?
An easement is a non-possessory interest in the use of someone else’s land. Easements are either in gross or appurtenant.
What is the difference between an easement in gross and an easement appurtenant?
An easement in gross benefits a specific owner’s enjoyment and does NOT attach to the land, while an easement appurtenant benefits any owner’s enjoyment and DOES attach to the land.
What are the methods to create an easement?
An easement may be created by: (1) an express grant; (2) prescription; (3) implication; OR (4) necessity.
What is the scope of an easement?
The scope of an easement depends on how it was created and the intent of the original parties. An easement holder CANNOT exceed the scope of the easement.
How can an easement be terminated?
An easement may be terminated by: (1) estoppel; (2) termination of necessity; (3) involuntary destruction; (4) condemnation; (5) written release; (6) abandonment; (7) merger; OR (8) prescription.
What is a license in property law?
A license is NOT an interest in land, but merely a privilege to use another’s land in a particular way. A license DOES NOT need to be in writing.
What are the characteristics of a fixture?
A fixture is personal property that is attached to land or a building and regarded as an irremovable part of the real property. Whether an item is a fixture is determined by the objective intent of the party who attached the item.
What are the elements of adverse possession?
Adverse possession requires: (1) continuous possession for the statutory period; (2) open and notorious use; (3) exclusive possession; (4) actual possession; AND (5) hostile and under a claim of right.
What are the requirements for a valid land sale contract?
A valid contract for the sale of land must satisfy the statute of frauds: (1) be in writing; (2) describe the property; (3) identify the parties; (4) contain the purchase price; AND (5) be signed by the grantor/grantee.
What is marketable title?
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.
What are zoning violations and restrictions?
Zoning violations make title unmarketable, but zoning restrictions do not.
What happens if the seller cannot convey marketable title at closing?
The buyer may withdraw from the contract without penalty.
Who benefits from the requirement to deliver marketable title?
The requirement benefits the purchaser, not the seller.
Can a seller cancel a real estate contract for failure to deliver marketable title?
No, a seller cannot cancel if the buyer chooses to waive the requirement.
What is the Merger Doctrine?
Once a deed is delivered and accepted, the land sale contract merges with the deed, extinguishing rights to sue under the contract.
Can a seller revoke a land sale contract once signed?
No, the seller may not revoke once the contract is signed.
What are the requirements for a valid deed?
A valid deed must be in writing, signed by the grantor, identify the grantor and grantee, describe the property, and indicate the grantor’s present intent to convey the land.
What indicates the grantor’s intent to convey property?
Any words indicating intent to immediately convey the property are sufficient (e.g., grant, convey, give, transfer).
When is intent to convey not found?
Intent will not be found if the grantor reserves the right to revoke the deed or instructs delivery only upon death.
What is required for a valid conveyance?
A valid conveyance requires the grantee’s acceptance, which is presumed unless indicated otherwise.
Are additional oral conditions valid on an unconditional deed?
No, additional oral conditions are not valid on an unconditional deed given to a grantee.
What is constructive conveyance?
Constructive conveyance occurs when the grantor gives the deed to a third-party who is an agent of the grantee.
What types of deeds can a seller execute upon the transfer of land?
A seller may execute a general warranty deed, a special warranty deed, or a quitclaim deed.
What does a general warranty deed contain?
It contains six covenants of title: three present (seisin, right to convey, against encumbrances) and three future (warranty, quiet enjoyment, further assurances).
What are the present covenants in a general warranty deed?
The present covenants are seisin, right to convey, and against encumbrances.
What are the future covenants in a general warranty deed?
The future covenants are warranty, quiet enjoyment, and further assurances.
What does a special warranty deed warrant?
It warrants that the seller has not breached the covenants of title during his period of ownership.
What is a quitclaim deed?
A quitclaim deed does not contain any covenants or promises to the buyer; it is an ‘as is’ deed.
What are recording statutes?
Recording statutes protect those who record their interests in land, altering the common law rule of title transfer.
What are the three types of recording statutes?
The three types are notice statute, race statute, and race-notice statute.
What defines a bona fide purchaser (BFP)?
A BFP takes real property without notice of a prior conveyance and pays valuable consideration.
What is the shelter rule?
Under the shelter rule, a person who purchases from a BFP receives the same status and rights as the BFP.
What is a purchase money mortgage?
A purchase money mortgage is used by the buyer to purchase real property, with the seller as the lender.
What priority does a purchase money mortgage holder have?
The holder has priority over all claims and mortgages against the mortgagor prior to the purchase.
What is a deed of trust?
A deed of trust involves three parties: the borrower, the lender, and a third-party trustee holding title until the loan is paid off.
What happens during foreclosure?
Foreclosure destroys junior mortgages, extinguishing any mortgage recorded after the one being foreclosed.
What is the order of preference for proceeds from a foreclosure sale?
Proceeds are used to pay attorney fees, debts owed to the mortgagee, and any amount left to the mortgagor.
What is lateral support?
A landowner has the right to have her land supported by adjoining land; strict liability applies for loss of support in its natural state.
What defines a public nuisance?
A public nuisance is an unreasonable interference with the health, safety, or property rights of the community.
What defines a private nuisance?
A private nuisance is a substantial and unreasonable interference with a person’s use or enjoyment of her property.
What is a variance in zoning ordinances?
A variance is an exception to a zoning ordinance, which may be granted if hardship is shown and public welfare is not harmed.
What is the doctrine of previous non-conforming use?
It allows a landowner to continue using land in violation of a later enacted zoning law if the prior use was legal.
What does the Fair Housing Act protect against?
The FHA protects against discrimination in housing-related activities based on race, religion, sex, national origin, disability, and familial status.
What are FHA exemptions?
The FHA does not apply to religious organizations, private clubs, owner-occupied buildings with up to four units, or single-family houses sold by owners without agents.
What does the FHA prohibit regarding advertisements?
The FHA prohibits discriminatory advertisements indicating a preference or limitation based on race, color, religion, sex, disability, familial status, or national origin.
