Property Flashcards
Adverse Possession
- Open and notorious (consider actual/inquiry/constructive notice)
- Actual and exclusive
- Hostile
- Continuous for the statutory period (tacking permitted)
Cannot adversely possess as against a concurrent owner or a co-tenant, unless an ouster occurs.
Fee Simple Absolute
Gives away all of the land; complete and full ownership. A FSA must be fully alienable, and will never be followed by a remainder.
Life Estate
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.
Fee Simple Determinable
“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.
Fee Simple Subject to Condition Subsequent
“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.
Merger of Estates
If an individual holds the life estate and the remainder, the interests merge and become an FSA.
Class Gifts
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.
Fertile Octogenarian Rule
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.
Rule Against Perpetuities (RAP)
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.
Tenancy by the Entirety
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
Joint Tenancy
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:
- Time: interests created at the same time
- Title: interests acquired by the same instrument
- Interest: are of the same type and duration
- Possession: both have equal rights to possess the whole
Severance of a JT
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.
Right of Partition (JT)
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.
Tenancy in Common
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.
Rights of Non-Possessing Co-Tenants
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.
Remedy for Ouster (TIC)
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.
Co-Tenant in Possession
- 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
Tenancy for Years
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.
Periodic Tenancy
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
Holdover Tenant (Periodic Tenancy)
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.
Tenancy at Will
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.
Assignment
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
Sublease
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.
Landlord’s Rights
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.
Landlord’s Implied Covenants
- Deliver timely possession
- Covenant of quiet enjoyment
- 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.
Tenant’s Implied Covenants
- Covenant to pay rent (watch for a sublease where this may not have been assumed)
- Repair damages caused
- Not to commit waste (voluntary: deliberate destructive acts; permissive: omission or neglect; ameliorative: improves the property)