Property Flashcards
What is Fee Simple Absolute?
Present Estate. Runs forever and is alienable. Courts presume a fee simple absolute unless language to the contrary
What is Fee Simple Determinable?
Present Estate. Terminates automatically upon the occurrence of some event.
What is Fee Simple Subject to Condition Subsequent?
Present Estate. Doesn’t terminate automatically - requires an action by the grantor.
What is Fee Simple Subject to Executory Limitation?
Present Estate. Property is transferred to one person, and then it will be transferred automatically to a third person upon the occurrence of a specified event.
What is a Life Estate?
Present Estate. Measured by a life and transferred at death. Can be created by express language or implication.
What is a Life Estate Pur Autre Vie?
Present Estate. Life estate to one person for the duration of some third person’s life.
What are the three types of waste?
- Voluntary Waste: active waste, including depletion of natural resources if that isn’t the purpose of the land
- Permissive Waste: passive waste - failure to maintain property, pay taxes, or pay mortgage principal
- Ameliorative Waste: Affirmative act that increases the value of the property.
What is Reversion?
Future Interest. Occurs where grantor gives less than his full interest, and it will revert to the grantor automatically.
What is Possibility of Reverter?
- Future Interest.
- Belongs to Grantor.
- Grantor’s Future Interest that exists alongside a Fee Simple Determinable.
What is Right of Entry?
- Future Interest
- Belongs to Grantor
- Grantor’s Future Interest exists alongside a Fee Simple Subject to Condition Subsequent
What is a Vested Remainder?
- Future Interest
- Belongs to Grantee
- Grantee is guaranteed to property upon the expiration of the prior estate
What is a Vested Remainder Subject to Open?
- Future interest
- Belongs to Grantee
- A class of grantees is guaranteed property upon the expiration of the prior estate
When does a class close?
When any member can demand distribution
What is a Contingent Remainder?
- Future interest
- An event has to occur, or a person has to be born or identified, in order for the future interest to ripen into a present possessory interest
What is a Vested Remainder Subject to Divestment?
- Future interest
- belongs to grantee
- Future interest is subject to a condition subsequent
What is an Executory Interest?
- Future interest
- belongs to grantee
- it divests, or cuts short, the prior interest.
- shifting if between grantees
- springing if from grantor
What estates does RAP apply to?
- Contingent remainders
- Executory interests
- Vested remainders subject to open
What is the Rule Against Perpetuities?
It requires an interest to vest, if at all, no later than 21 years after the end of a life in being at the creation of the interest.
What effect does the RAP have on class gifts?
If any member of the class could take in violation of the RAP, all interests are void. Harsh all or nothing rule.
What are the key features of a Tenancy in Common?
- No right of survivorship
- Freely alienable
- Right to partition
What are the requirements for a Joint Tenancy?
Requires Four Unities: TTIP
Time / Title / Interest / Possession
What are the key features of a Joint Tenancy?
- Right of survivorship
2. Right to partition by agreement or by court order, which will sever the tenancy
Does a sale sever a Joint Tenancy?
Yes, a joint tenant’s mere act of entering into a contract to sell the property severs the tenancy - even prior to the sale closing. “equity regards as done that which ought to be done”
Does a mortgage sever a joint tenancy?
No, under the lien theory of mortgages.
What is a Tenancy by the Entirety?
Rare - reserved for married couples
What are the key features of a Tenancy by the Entirety?
- Right of survivorship
- Cannot unilaterally terminate
- Execution by a joint creditor may terminate the tenancy
How do tenants share contributions and carrying costs?
Co-tenant may demand contribution for repairs, taxes, and mortgage payments. No right of contributions for improvements, but those can be recouped upon partition or sale.
How do tenants share profits? What are the exceptions to general accounting rule?
Equally, but one tenant does not have to account to the others for her share of profits.
Exceptions: ouster, agreement, lease, depletion of natural resources
Does one co-tenant owe the other rent?
No, unless there has been ouster
How does one co-tenant share rental income with another?
Third party rental income is shared pro rata.
What is a co-tenant’s obligation re: waste?
Must not commit waste
What is a tenancy for years?
Measured by time - whether days or years
What is a periodic tenancy?
A tenant that can be terminated until valid notice is given by the applicable party.
What are the three ways you can create a periodic tenancy?
- Express Agreement
- Implication, where lease is silent on duration but tenancy can be derived by the period of time covered by the rent check
- Operation of Law: (i) oral lease that fails SOF and (ii) holdover lease (default month to month for residential, and year to year for commercial)
How do you give proper notice of termination?
- REQUIRED NOTICE for a year to year tenancy is six months. For shorter leases, requires the length of the period, up to six months.
- TERMINATION DATE must be the last day of the period
What is a tenancy at will?
Any party can terminate the lease without notice. Also terminates upon death, waste, assignment, transfer of title by landlord, and lease to someone else
What is tenancy at sufferance? What are landlord’s rights?
- Not a legal tenancy - just bare possession by a holdover tenant.
- Landlord has the right to hold tenant as a wrongdoing trespasser or impose a new periodic tenancy
What are tenant’s duties and landlord’s remedies?
- Pay rent, or landlord can evict
2. Don’t commit waste, or landlord can charge tenant for damages
What are landlord’s two principal duties?
- Implied covenant of quiet enjoyment
2. Implied warrant of habitability - residential property must be fit for human habitation
How can landlord breach implied covenant of quiet enjoyment?
- Actual eviction, which terminates the lease and T’s duty to pay rent
- Partial actual eviction, which doesn’t terminate the lease but lets T stop paying rent
- Constructive eviction, which is where L caused an injury, and it substantially and materially deprived the T of his use and enjoyment, T gave reasonable notice and opportunity for L to cure, and T vacated after a reasonable time.
What are tenant’s remedies where landlord breaches implied warranty of habitability?
- move out and terminate
- make repairs and offset future rent
- reduce or abate rent to reflect new FMV
- remain in possession, pay full rent, seek damages
What kind of eviction is prohibited?
Retaliatory eviction - presumed if evicted within 90-180 days of a whisteblower
What is an assignment?
Transfer of all of a tenant’s interest in a lease.
What are the rights of a landlord re: rent following assignment?
- Assignor remains liable for rent because he has privity of contract with L
- Assignee remains liable for rent because he is in privity of estate with L
What are the rights of a landlord re: other covenants following assignment?
An assignee will be required to comply with any covenant that runs with the land, which is a covenant that touches and concerns the land. The landlord will also have to comply with any covenant that runs with the land.
What is a sublease?
The transfer of part of a tenant’s interest in a lease.
What are landlord’s limitations and obligations re: a security deposit?
- L cannot deduct charges for normal wear and tear.
- L must account for any money deducted
What is a fixture? Who owns it?
- A chattel that becomes so identified with the land that it ceases to be personal property
- Courts will analyze intent.
- Note that tenants are permitted to remove anything they have a right to before the end of the lease or before closing of a sale.
What is an easement appurtenant, and what does it require?
Easement that benefits a specific piece of land. Requires two pieces of land (dominant and servient estates)
What is an easement in gross?
Easement with only a dominant estate - e.g., power lines or railroad tracks
What are the three ways to create an easement?
- Express
- Implied
- Prescription (i.e., like adverse possession)
What are two types of implied easements?
- Implied easement by prior use
2. Implied easement by necessity
What are the elements of implied easement by prior use?
- Commonly owned land is severed
- Before severing, the common owner had used the land in an apparent and continuous manner
- Such use is reasonably necessary for the continued enjoyment of the now dominant estate
What are the elements of implied easement by necessity?
- Commonly owned land is severed
2. Severed property is landlocked
What are the elements of easement by prescription?
- Open and notorious use
- Adverse
- Continuous and uninterrupted**
- For Statutory Period
* *NOTE: seasonal use can satisfy
What happens to an easement appurtenant when the dominant estate is transferred?
The benefit automatically runs with the dominant estate. Note that the easement cannot be transferred separately from the dominant estate.
What happens to an easement in gross when the dominant estate is transferred?
Commercial benefits transfer, but personal benefits do not.
What happens to the servient estate when the dominant estate is transferred?
The burden is binding on the subsequent holder, as long as the transferee had notice of the easement. Note that the notice does NOT have to be in the conveyance agreement.
How long does an easement last?
- In writing - as specified
2. No writing - presumed to be perpetual and reasonable
What are the rules of repair with an easement?
Dominant estate must keep it in good repair. No similar rule for servient estate.
What are the six ways an easement can be terminated?
- Merger (severed pieces of land are merged)
- Express Release (must satisfy SOF)
- Abandonment (shown by physical intent)
- Estoppel (holder relinquishes right and servient acts to take it back)
- Prescription (opposite of adverse possession - owner takes back)
- Necessity Ends
What covenants run with the land?
- Covenant touches and concerns the land
- There is notice of the covenant at the time of acquisition
- Intent for covenant to run with the land
What is required to bind a successor promisor?
- Covenant runs with the land
- Original parties had horizontal privity
- Successor has VERTICAL privity AND acquired the predecessor’s entire interest
What is required for the benefit to run to a successor?
- Runs with the land
2. Vertical privity
What is an equitable servitude?
Interest in land, and remedy is an injunction.
What are the four elements to create an equitable servitude?
- writing
- intent
- touches and concerns the land
- notice
What are the three requirements for an equitable servitude to be enforceable against a successor?
- Runs with the land
- Intent for it to run with the land
- Notice at the time the interest was acquired
What are the elements of a restriction on use within a subdivision?
- Intent to create a servitude on ALL land in the subdivision
- Defendant-owner must have notice – actual, record, or inquiry
When can a subdivision owner claim a defense of changed circumstances?
If ALL owners are affected by the changed circumstance (e.g., pollution)
What are the elements of adverse possession?
HELUVA
Hostile / Exclusive / Lasts for prd / Uninterrupted / Visible / Actual
What is constructive adverse possession?
Occurs where someone occupies land under the color of title (i.e., imperfect title) and possesses only part of a larger tract
What are the tacking rules in adverse possession?
- tack any period that passes directly from one AP to another
- also tack periods of successive rightful owners
What effect on adverse possession if rightful owner has a disability?
- Statutory period is tolled if disability began BEFORE AP
- Ignored if disability began AFTER AP started
What is required to deliver marketable title?
- Proof of Title
- Free of Encumbrance
- Valid Legal Title at Closing
What are problems that make title unmarketable?
- zoning violations
- variation in property description
- improperly executed deed
What are remedies if seller cannot deliver marketable title?
- Buyer must notify seller of defect and provide reasonable time to cure
- if not cured, buyer can (1) rescind, (2) sue for damages, or (3) sue for specific performance
Is time of the essence in a sale of real property?
No, performance must only be tendered within a reasonable time (up to two months is fine)
What are the implied warranties in new construction?
- Good workmanship
2. Habitability
What is seller’s responsibility when selling property on resale?
- Must disclose serious defects it knows about
- Cannot conceal defects
What are the five requirements of a deed?
- Writing
- Identify the parties
- Describe the property
- Include conveyancing language
- Signed by grantor
Must a deed be delivered? How?
- yes
- recorded deed creates presumption of delivery
What is a quitclaim deed?
Grantor doesn’t make any promises
What is a general warranty deed?
Grantor traditionally makes six covenants:
- Owns the estate
- Has right to Convey
- No encumberance
- Quiet Enjoyment
- Warranty
- Further Assurances
Who wins in a notice jurisdiction?
BFP, regardless of who records first
Who wins in a race-notice jurisdiction?
BFP, if she records properly first
In a foreclosure sale, how long does the mortgagor have to pay the amount due?
Right up until the sale.
What is the general rule of priority of mortgages?
First in time, first in right.
What is the consequence when a senior mortgagor increases its loan?
Lose their priority with respect to the amount of the increase
