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Bar Prep Summer 2014 > Property > Flashcards

Property Flashcards

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1
Q

Adverse Possession

A
  1. Open and notorious (consider actual/inquiry/constructive notice)
  2. Actual and exclusive
  3. Hostile
  4. Continuous for the statutory period (tacking permitted)

Cannot adversely possess as against a concurrent owner or a co-tenant, unless an ouster occurs.

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2
Q

Fee Simple Absolute

A

Gives away all of the land; complete and full ownership. A FSA must be fully alienable, and will never be followed by a remainder.

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3
Q

Life Estate

A

A life estate is measured by a life; if measured by the life of another, than a life estate per autre vie.

  • Followed by either a vested or contingent remainder. Vested remainder: when the life estaet ends, the person gets it back as an FSA.
  • Contingent remainder: occurs when there is a condition that the party must satisfy before their interest becomes possessory. If this fails, it goes back to the grantor by way of reversion.
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4
Q

Fee Simple Determinable

A

“So long as…”

FSD automatically terminates upon happening of a stated event; the moment the event occurs, there is a possibility of reverter in the grantor.

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5
Q

Fee Simple Subject to Condition Subsequent

A

“If not this way, then this happens…”

Grantor retains the power to terminate the estate upon happening of a condition, and also retains a right of re-entry. The right of re-entry must be exercised, or else grantor loses it.

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6
Q

Merger of Estates

A

If an individual holds the life estate and the remainder, the interests merge and become an FSA.

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7
Q

Class Gifts

A

Rule of Convenience: absent a contrary intention in the instrument, the class closes when some member of the class can call for distribution of their share. Members of the class who predecease the testator are eliminated, and their gift lapses unless anti-lapse is applicable.

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8
Q

Fertile Octogenarian Rule

A

So long as a woman is alive, she is presumed to have the ability to have more children (and thus potentially implicate RAP), despite all medical evidence to the contrary.

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9
Q

Rule Against Perpetuities (RAP)

A

No interest will be valid unless it must vest, if it s going to vest at all, within 21 years of some life in being who was alive when the conveyance was made.

Applies to: contingent remainders, executory interests, class gifts, options, and powers of appointment.

Life in being: linked to the vesting of the beneficiaries; identify who the beneficiaries are, and then their parents.

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10
Q

Tenancy by the Entirety

A

Marital estate akin to a joint tenancy between husband and wife; carries with it a right of survivorship. Not recognized in CP states, such as CP.

A TBE can be terminated by: death of either spouse, divorce, mutual agreement, or execution by a joint creditor

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11
Q

Joint Tenancy

A

A joint tenancy is an estate in land held concurrently by two or more co-tenants, and is created by a clear expression of content. It carries with it a right of survivorship, and requires the following four unities be present:

  1. Time: interests created at the same time
  2. Title: interests acquired by the same instrument
  3. Interest: are of the same type and duration
  4. Possession: both have equal rights to possess the whole
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12
Q

Severance of a JT

A

A JT can be severed by severing any one of the unities, including if one JT sells his interest, in which case the person to whom the interest is sold becomes a TIC with the remaining JTs.

A mortgage does not sever a JT in a lien theory state; however, does in a title theory state.

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13
Q

Right of Partition (JT)

A

If any JT wants to be relieved of the burdens of joint or common ownership, he can do so by asking that the property be partitioned in kind (physically) or in sale.

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14
Q

Tenancy in Common

A

Title in co-owners is presumed to be a TIC, unless explicitly stated otherwise in the deed. There is no right of survivorship.

Each co-tenant is entitled to possess the whole of the property, and the estate is wholly alienable at the will of any co-tenant. Each co-tenant may sell or mortgage their portion.

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15
Q

Rights of Non-Possessing Co-Tenants

A

Each co-tenant has the right to possess all of the property; one cannot AP against the other, unless there has been an ouster (wrongful exclusion from the property, in which case entitled to fair rental value while deprived of possession).

Also:

  • The co-tenant who is out of possession cannot make the possessing co-tenant pay rent, unless ouster has occurred
  • Out of possession co-tenant has no right to profits of businesses conducted, unless waste
  • Mortgages and taxes: a co-tenant in sole possession is entitled to reimbursement by the non-possessing co-tenant, to the extent that his portion exceeds the fair rental value of the property.
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16
Q

Remedy for Ouster (TIC)

A

In the event that an ouster occurs, the remedy is typically a partition, either in kind or by sale and division of the proceeds.

A co-tenant has a right to demand a partition by judicial sale at any time.

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17
Q

Co-Tenant in Possession

A
  • Mortgages and Taxes: right to reimbursement from the out of possession co-tenant, to the extent that the mortgages/taxes exceed the fair rental value
  • Repairs: right to reimbursement for necessary repairs, but not for improvements
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18
Q

Tenancy for Years

A

Generally a long-term lease for a period of years, such as lease of a shopping center for 5 years. It terminates automatically on the termination date contained in the written lease.

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19
Q

Periodic Tenancy

A

Created by express agreement, implication, or by operation of law (LL’s acceptance of a rent check on an oral lease that may violate the S/F).

-Notice is required to terminate a PT

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20
Q

Holdover Tenant (Periodic Tenancy)

A

A holdover tenant is one who was legitimately on the property under a valid lease, but remains on the property once the lease is expired. If the LL accepts a check from the holdover tenant, this creates a periodic tenancy by operation of law.

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21
Q

Tenancy at Will

A

Can be terminated by either party at any time, so long as they give notice and reasonable time to vacate. Can also be terminated by death of either party, waste, or assignment by either tenant or the LL.

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22
Q

Assignment

A

An assignment transfers the ENTIRE interest in the estate, and is permitted unless it is expressly prohibited.

Prohibitions on assignment are strictly construed; if a lease bars assignment it does not also bar a sub-lease, and vice versa.

-Assignor remains in privity of contract with the landlord, but is no longer in privity of estate

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23
Q

Sublease

A

A sublease only transfers part of an interest, and the transferor retains the other part.

A subleasee may expressly assume the covenants in the main lease, such as paying rent; however, if they do not, they are not liable.

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24
Q

Landlord’s Rights

A

Right to receive rents for the term

Remedies for breach: action for money damages, terminating the lease, action for unlawful detainer, repossess and re-rent the property.

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25
Q

Landlord’s Implied Covenants

A
  1. Deliver timely possession
  2. Covenant of quiet enjoyment
  3. Implied warranty of habitability, for residential leases

Remedy for breach of quiet enjoyment: constructive eviction. A tenant can claim C.E. only if the LL caused the injury, the breach substantially and materially deprived the tenant of her use and enjoyment of the premises, and the tenant gave the landlord notice and a reasonable time to repair, and then vacated within a reasonable time.

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26
Q

Tenant’s Implied Covenants

A
  1. Covenant to pay rent (watch for a sublease where this may not have been assumed)
  2. Repair damages caused
  3. Not to commit waste (voluntary: deliberate destructive acts; permissive: omission or neglect; ameliorative: improves the property)
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27
Q

Covenants Running With the Land (Lease)

A
  1. Intent that it run: look for language binding successor and assignees
  2. Touches and concerns the land: effects the value of the lease to either party in some way
28
Q

Tort Liability of LL

A

Generally, there is no duty imposed on a LL for injuries sustained, unless he knew of defects and did not disclose to the tenant, it is a short term lease of a furnished dwelling, common areas that are under the LL’s control, or negligent repairs were undertaken by LL.

29
Q

Tort Liability of Tenant

A

Tenant is always liable to a third-party invitee for failure to correct or discover a dangerous condition, regardless of whether the LL is also liable.

30
Q

Fixtures

A

A fixture is a chattel that has been so affixed to the land that it has ceased being personal property and has become a part of the realty.

Common ownership: person brings the chattel onto the land, and owns both the land and the chattel

Divided ownership: the person who owns the fixture does not also own the land

31
Q

Common Ownership (Fixtures)

A

If a chattel has been categorized as a fixture, it becomes part of the real estate and is included in any conveyance, absent a specific agreement to the contrary. To the extent that the owner of real estate mortgages the realty, in the absence of an agreement to the contrary, also constitutes a mortgage on the fixture.

32
Q

Divided Ownership (Fixtures)

A

Accession describes the intent of the annexor to make the chattel a permanent part of the real estate; consider factors such as:

  • nature of the article and how essential it is to normal use of the premises
  • manner in which attached to the realty
  • amount of damage caused by its removal

An agreement between LL and tenant is controlling on the determination of whether the chattel was intended to be a fixture.

33
Q

Easement Appurtenant

A

A right to use the land for a particular purpose, where the holder of one parcel (dominant tenement) holds the easement in a different parcel (servient tenement).

-Runs with the land, unless the purchaser of the servient tenement has no notice of the easement

34
Q

Easement in Gross

A

Only involves one parcel of land, and the easement is granted to enter onto or to do something on the land

35
Q

Scope of Easements

A

Typically includes that of reasonable development; however, the owner of the servient parcel may have claim that development is unreasonable if it drastically and unforeseeably expanded (remedy would be an injunction, not termination).

-The holder of the benefit is responsible for making necessary repairs.

36
Q

Creation of Easements

A
  1. Express: created by deed, needs to be in writing per S/F
  2. By reservation: grantor reserves an easement as part of a conveyance of the property to another party
  3. By implication: typically arises when permitted conduct covers a period of time sufficient to infer intent
  4. By necessity: when the party asserting the easement owns landlocked property, and the parcels were originally under common ownership
  5. By prescription: adverse possession of an easement.
37
Q

Termination of Easements

A
  1. Unity of ownership: ownership of the dominant and servient estates comes together in the same person
  2. Deed of release: in writing and complies with S/F
  3. Abandonment: physical action accompanied by intent to permanently abandon
  4. By estoppel: representation of relinquishment, and the holder of the servient estate changes her position in reliance
  5. When necessity no longer exists
38
Q

License

A

A contract right involving a limited privilege to use land in possession of the licensor (ex: a ticket to a sporting event). A license is personal to the licensee, and is not alienable

39
Q

Revocation of a License

A

A license can be revoked at any time by manifestation of the licensor’s intent to revoke

40
Q

Profits

A

Non-possessory interests in land, that entitle the holder of the profit to enter the servient tenement and take the soil or a substance, such as timber or minerals. Can be assigned or transferred

41
Q

Restrictive Covenants (Burden)

A

In order to enforce the burden of a restrictive covenant, must show:

  1. Intent to create the interest
  2. Notice: of the covenant or interest (actual, constructive, or inquiry)
  3. Horizontal privity: between original parties
  4. Vertical privity: successor holds entire estate held by original covenanter
  5. Touches and concerns
42
Q

Restrictive Covenants (Benefit)

A

In order to enforce the benefit of a restrictive covenant, must show:

  1. Intent
  2. Vertical privity
  3. Touches and concerns
43
Q

Equitable Servitude (Burden)

A

An equitable servitude is typically created by a covenant contained in a writing that satisfies the S/F; however, may also be implied from a common development scheme. In order to enforce:

  1. Notice: common development scheme/reciprocal negative covenants
  2. Intent
  3. Touches and concerns
44
Q

Equitable Servitude (Benefit)

A

In order to enforce the benefit of an equitable servitude:

  1. Intent
  2. Touches and concerns

Potential defenses to enforcement: circumstances have changed, such that it is not necessary anymore

45
Q

Contracts for Sale of Property

A

Must be in writing and signed by the party against whom enforcement is sought, and include a description of the property, names of the parties, and the price

46
Q

Marketable Title

A

Every land sale contract contains an implied covenant that the seller will deliver marketable title at the close of escrow; however, not required to have marketable title at the date of sale.

Marketable title is that which a reasonably prudent buyer would accept, including minor defects.

47
Q

Defects on Title

A

Common law rule was caveat emptor (buyer beware); however, the modern trend is to impose on the seller a duty to disclose to the prospective buyer serious defects that the seller knows of and that are not obvious to the buyer.

48
Q

Deed Formalities

A

Deed must be executed and delivered.

Executed: deed subject to the S/F; must describe the land with sufficient accuracy, in order to pass title. Contains words of intent, such as “I grant” or “I convey”

Delivered: did the grantor have the necessary intent to pass title? Delivery must be accepted (presumed, if recorded), but no physical transfer required

49
Q

Quitclaim Deed

A

Only gives what the seller has, and makes no representations as to the validity of title. However, a quitclaim deed conveys an implied warranty of marketable title, regardless of the type of deed

50
Q

Warranty Deed (Grant Deed)

A

3 present covenants (breached at the time of conveyance, if at all)

  1. Seisin: title and possession
  2. Right to convey
  3. Against encumbrances

3 future covenants (breached at time of claim against title)

  1. Quiet enjoyment
  2. Warranty: defend against legitimate title attacks
  3. Further assurances; does not arise unless the party claiming breach gives the covenanting party notice
51
Q

Recording Statutes

A

Race: whoever records first wins

Notice: a subsequent BFP with no actual, constructive, or inquiry notice of the previous grant prevails over a prior grantee who failed to record

Race-Notice: a subsequent BFP who also records before the prior grantee prevails over a prior grantee who fails to record

52
Q

Title Search

A

Entails constructing a chain of title using a grantee and grantor index; done with legal blinders, because the title searcher only examines the actions taken by the grantor during the window of time known as the period of record ownership.

53
Q

Mortgages

A

Given by the debtor (mortgagor) to the grantor (mortgagee). If the loan is not paid in full, the sheriff can foreclose on the property.

At any time up until the moment of foreclosure, the debtor can redeem the property by paying the amount due and payable, unless the mortgage contains an acceleration clause.

54
Q

Priority of Mortages

A

Typically, allocated on the basis of first in time, unless altered by a recording statute. Can also be altered by voluntary subordination.

Foreclosure eliminates all junior interests.

55
Q

Purchase Money Mortgage

A

One taken out to buy the property; a PMM receives priority over any other mortgages that were executed prior, even if the facts show that they were executed first

56
Q

Transfer of Mortgage Without Note

A

Some states hold that transfer of the mortgage automatically transfers the note, unless otherwise stated (others hold the opposite; that a transfer of the mortgage without the note is void)

57
Q

Transfer of Note Without Mortgage

A

Mortgage will automatically follow the properly transferred note, unless rights are expressly reserved.

58
Q

Transfer of Mortgage by the Mortgagor

A

Grantee takes the property subject to a mortgage, which remains on the land, and will not be liable for payments unless he expressly assumes the mortgage.

59
Q

Deed of Trust

A

Security interest in the property; given by the debtor to a third party trustee, who holds the Deed of Trust until the loan is paid in full.

Trustor conveys bare legal title, and agrees that in the event of a default, the trustee can foreclose on the equitable title and give the purchaser at a foreclosure sale full legal title.

Notice of foreclosure proceedings must be given to all parties with an interest.

60
Q

Non-Judicial Foreclosure

A
  1. Trustee posts and records a Notice of Default and Election to Sell
  2. Trustor has 90 days to bring defaulted amount current
  3. After 90 days, may post Notice of Trustee’s Sale
  4. For 21 days, beneficiary/lender can demand payment in full on the note
  5. After 21 days, the trustee can sell the note to the highest bidder
61
Q

Judicial Foreclosure

A
  1. File a lawsuit
  2. Deficiency judgment
  3. Amount owed exceeds the value of the property
  4. Cannot get a deficiency judgment on a single family residence, or up to 4 single family residences

Upon completion of foreclosure sale, beneficiary gets the title that existed as of recording of the D/F

62
Q

Purchase Money Resulting Trust

A

A court may impose a purchase money resulting trust after the sale of property, in which one person takes legal title and the other supplies consideration at the same time (or before) the other takes title.

The person who obtained title is deemed the trustee, whose sole responsibility is to convey title to the beneficiary. Pro-rata if only paid a portion of the consideration.

63
Q

Lateral Support

A

Support from the sides. A landowner has a right to have her land supported by adjoining landowners, and strict liability results if the land is not supported.

If there are improvements on the land, the landowner will be strictly liable if the land would have collapsed anyways, without weight of improvements.

64
Q

Subjacent Support

A

Support of the surface from the bottom; problems typically arise where mineral rights have been legally severed from the surface rights.

Surface owners have the right to have their land supported from the bottom, and strict liability results if the land was not supported; extends to improvements existing when the mineral rights were severed from the fee simple

65
Q

Riparian Doctrine (Water Rights)

A

Water belongs to those who own land bordering the watercourse, not the government or the public.

Majority: all lots owned by a single owner are riparian, if contiguous, and any of them border on a waterway.

Minority: rights limited to the smallest tract of land owned that abuts the water.

66
Q

Prior Appropriation (Water Rights)

A

Water belongs to the state, but the right to divert and use water can be acquired by an individual, upon application to the state.

Rights are determined by priority of beneficial use; if there is a decrease in water flow, those with junior rights lose them first.

Bar Prep Summer 2014 (11 decks)

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