Property Flashcards
“To A and his heirs”
Fee simple absolute
“To A and the heirs of his body”
Fee tail
“to A so long as”
“to A until”
“to A while”
Defeasible Fee: Fee Simple Determinable
“to A, but if X event happens, grantor reserves the right to reenter and retake.”
Defeasible Fee: Fee Simple Subject to Condition Subsequent
“to A, but if X event occurs, then to B”
Defeasible Fee: Fee Simple Subject to Executory Limitation
“To A for life”
Life estate
Fee Simple Absolute: Duration, Transferability, Future Interest
Potentially infinite, devisable/descendible/alienable, no future interest
Fee Tail: Duration, Transferability, Future Interest
Lasts only as long as there are lineal blood descendants or grantee. Passes automatically to lineal descendants; reversion held by grantor or third party depending on reversion interest.
Fee Simple Determinable: Duration, Transferability, Future Interest
Potentially infinite so long as event does not occur; alienable/devisable/descendible, subject to condition subsequent, and possibility of reverter held by grantor
Fee Simple Subject to Condition Subsequent: Duration, Transferability, Future Interest
Potentially infinite, so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination. Alienable/devisable/descendible, subject to condition subsequent, right right of entry reserved in grantor.
Fee Simple Subject to Executory Limitation: Duration, Transferability, Future Interest
Potentially infinite, so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination. Alienable/devisable/descendible, subject to condition subsequent, REMAINDER / executory interest in third party.
Fee Simple Determinable in NY
Fee on limitation
“To A with the hope that it will be used as a day care center”
Fee simple
“To A for the purpose of construction a day care center”
Fee simple
Types of waste
Voluntary, permissive, ameliorative
Voluntary Waste
Life Tenant must not consume/exploit natural resources except “PURGE”: Prior Use (may continue to exploit, increase in volume OK); Repairs (may consume natural resources for reasonable repairs/maintenance); Grant (if granted that right in conveyance); Exploitation (land suitable only for exploitation). NOTE: Open Mines Doctrine limits the Prior Use exception, so if a prior use of the land is to mine, the life tenant may continue to mine but only in mines already opened.
Permissive Waste
Must pay ordinary taxes, to the extent of income/profits from the land or fair rental value, and maintain premises in reasonably good repair; no more no less. But no obligation to repair/maintain something she built after becoming a life tenant (as long as not ameliorative waste). If a structure is completely uninhabitable, can tear down.
Ameliorative Waste
Life tenant must not engage in acts that will enhance property’s value, unless all future interest holders are known and consent (but in NY, tenant may make improvements unless remindermen object, and objection must be reasonable).
Reversion
Default, arises when grantor transfers estate less than fee simple determinable or subject to condition subsequent
Possibility of reverter
only accompanies fee simple determinable
Right of Entry (aka power of termination)
only accompanies fee simple subject to condition subsequent
Remainder
future interest in third party
Indefeasibly vested remainder (Example, alienability, RAP application)
“To A for life, then to B” (B is alive). B’s interest is transferable, descendible, and devisable; no RAP application.
“To A for life, then to B” (B is alive)
Indefeasibly Vested Remainder
Vested Remainder Subject to Total Divestment (Example, alienability, RAP application)
“To A for life, and on A’s death, to B, but if B predecease’s A, then to C” (B’s interest): transferable, descendible, and devisable; no RAP application.
“To A for life, and on A’s death, to B, but if B predeceases A, then to C” (B’s interest)
Vested remainder subject to total divestment
Vested Remainder Subject to Open (example, alienability, RAP application)
“To A for life, then to A’s children in equal shares.” A’s children have an interest that is freely transferable, descendible, and devisable, and RAP applies to this type of remainder as long as the class remains open.
“To A for life, then to A’s children in equal shares.”
Vested Remainder Subject to Open
Contingent Remainder (example, alienability, RAP application)
“To A for life, then to A’s surviving children” or “To A for life, then to B if B marries C.” A’s children, or B, have an interest that is transferable in most states (not at common law); descendible, devisable; subject to RAP
“To A for life, then to A’s surviving children”
Contingent remainder
Shifting Executory Interest
“To A for life, remainder to B and his heirs; but if B predeceases A, then to C and his heirs (C has shifting executory interest)
“To A for life, remainder to B and his heirs; but if B predeceases A, then to C and his heirs (C’s interest)”
Shifting executory interest
Springing Executory Interest (example, alienability, RAP application)
“To A when and if he becomes a doctor,” or “To A for life, then two years after A’s death, to B”. Transferable in most states (not common law); descendible, devisable; Subject to RAP.
“To C, when and if she passes the bar exam”
Springing executory interest
Options to purchase (RAP)
RAP applies except for interests held by current lessor
Rights of first refusal (RAP)
RAP problem
RAP and application to equitable interests
NOT APPLICABLE to equitable interests such as spendthrift clauses.
Tenancy for Years
Tenancy that lasts for some fixed period of time (months, years, etc.); e.g., “to T for 10 years”; “to O for 9 months”. Terminates at end of stated period without notice.
Periodic Tenancy
Tenancy for fixed period that continues for succeeding periods until either party terminates. “To T from month to month.” Notice at least equal to the length of the period; except 6 months’ notice for periods >1 year.
Tenancy at Will
Tenancy of no stated duration that lasts as long as parties desire. (1) “To T for and during the pleasure of L”; (2) “To T for as long as T desires” (1) L or T can give notice at any time; (2) only T can give notice to terminate.
NY: L terminated tenancy must give min. 30 days notice.
Tenancy at Sufferance
Tenant wrongfully holds over after termination of tenancy. T’s lease expires, T continues in premises. Terminates upon eviction or holdover.
NY: acceptance of rent subsequent to end of term –> implied month-to-month periodic tenancy unless otherwise agreed.
Holding Over Doctrine
L can holdover T to a new period tenancy (commercial → new year-to-year if lease one year or more, or else term based on commercial lease payments; residential → month to month regardless of original term; at old rent OR if holdover happened after notice of rent increase, at new rent). Exceptions: no holdover where (1) tenant remains only a few hours or leaves some personal property behind; (2) holdover was not T’s fault e.g., due to illness; or (3) seasonal lease.
Destructibility of Contingent Remainders
Common Law: Contingent remainders are destroyed if not vested at the time of termination of preceding estate. E.g., “To A for life, remainder to A’s children who reach 21” but at A’s death, no children at 21 yet. Property reverts to grantor under rue. This is abolished in most jurisdictions and A’s children having springing executory interest.
Rule in Shelley’s Case
Common law rule: A remainder in a life tenant-grantee’s heirs is deemed to be in the life tenant herself and converts to a fee simple. E.g., “To A for life, then to A’s heirs” converts to a fee simple in A. This is abolished in most jurs, giving A’s heirs a contingent remainder.
Doctrine of Worthier Title
Common law rule where A remainder in the grantor’s heirs in ineffective, so grantor has a reversion. E.g., “To A for life, then to my heirs at law.” Operation of the doctrine gives grantor a reversion. Today this is treated as a rule of construction, so grantor’s heirs have a contingent remainder if the intention to do so was clearly manifested.
Destructibility of Contingent Remainders in NY
Abolished
Rule of Shelly’s Case in NY
Abolished
Doctrine of Worthier Title
Abolished for transfers after 9/67
Contingent remainders and executory interests in New York
No distinction –called remainders subject to condition precedent
Types of interests to which RAP is applicable
contingent remainders, executory interests, and certain vested remainders subject to open.
Types of interests to which RAP is not applicable
any future interest in the grantor, indefeasibly vested remainders, vested subject to complete defeasance.
Charity-to-charity exception
A gift from one charity to another does not violate RAP
NY RAP Reform
Rejects “wait and see” and “cy pres” doctrines (except for charitable trusts and powers of appointment). However, age contingencies are reduced to 21 years; woman over 55 presumably cannot have children.
NY also has Rule Against Suspension of Alienation.
severance and sale of JT
A JT can sell or transfer his interest during his lifetime, even secretly. This severs the JT, unless JTs together agree to transfer part of their interest. In most states, including NY, the execution of a mortgage will not sever a JT (lien theory); title theory states, a mortgage will sever (minority).
Equitable conversion
“Equity regards as done that which ought to be done” –> when contract for sale of land is entered into, contracted buyer treated as owner of property in equity. A JT is severed at time of contracting and buyer bears all ROL
Tenancy by Entirety in NY
Recognized by NY. The majority rule is that creditors of one spouse cannot touch the tenancy, but in NY one spouse may mortgage his interest and his creditors may enforce, but only as to debtor spouse’s share, and the non-debtor spouse’s rights, including right of survivorship, must not be compromised.
Co-tenants in NY: adverse possession
statutory period is 20 years absent ouster
Co-tenants: Rights and Duties
(1) Right to possession of the whole
(3) No right to rent from co-tenant in exclusive possession, absent outster
(4) Right to share in rent from third-parties where co-tenant leases premises
(5) Common law cannot acquire title by adverse possession b/c no hostility (diff rule in NY)
(6) Right to contribution for carrying cost (duty to pay share of carrying costs, such as mortgages, tax payments, based on undivided share).
(7) Repairs (right of contribution for necessary repairs provided she told the others of the need)
(8) No right to contribution for improvements (but at partition, improving co-tenant entitled to, or liable for, any increase or decrease in value due to such improvements).
Special Hold-over tenant rules in NY
Always an implied month-to-month periodic tenancy unless otherwise agreed. If you have a lease of indefinite duration, notify landlord of intention to quit, and then fail to quit, you must pay landlord a DOUBLE THE RENT otherwise owed for as long as continued in possession.
Tenant’s Liability to third parties
(1) T must keep premises in good repair
(2) T liable for injuries sustained by third parties T invited, even where L covenanted to repair
Tenant’s Duty to Repair (when lease is silent)
Maintain premises and make ordinary repairs; must not commit waste. Law of fixtures walks with waste doctrine – no removal if substantial damage to premises; must be removed (if no subst damage) prior to leaving the lease.
Tenant’s Duty to Repair (covenanted for)
At common law, liable for any loss including complete destruction. Now, absent express undertaking to repair in event of destruction, if premises are destroyed through no fault of T, can quit premises, surrender possession, no duty to pay rent.
Commercial Fixtures
commercial, we follow trade fixtures doctrine. Prior to expiration of commercial lease, a commercial tenant can remove all trade fixtures. Exception: an accession, a structural addition to real property, cannot be removed by any tenant.
L’s rights if T fails to pay rent while in possession
(1) Eviction
(2) Continue and sue for rent
(3) NO SELF HELP (criminal, civil penalties; treble damages in NY)
L’s rights if T fails to pay rent and surrenders possession
(1) Surrender
(2) Ignore (minority)
(3) Re-let premises (majority rule - must at least try; NY does not require mitigation).
Landlord’s duties to T
(1) Deliver possession (English rule: actual)
(2) Implied covenant of quiet enjoyment
(3) Implied warranty of habitability
Implied Covenant of Quiet Enjoyment
Implied in all residential and commercial leases, that L covenants not to interfere with T’s enjoyment of the lease. Constructive eviction: “SING”. If there is:
Substantial Interference,
Notice to L (L fails to act)
Goodbye (tenant vacates premises)
Then T can show constructive eviction on lease.
L not liable for acts of other Ts but must control common areas and cannot permit a nuisance.
Implied Warranty of Habitability
Residential only Non-waivable Fit to live Breach -- MR3 Options are to: (1) Move out / end lease (2) Repair and deduct from rent (3) Reduce rent (4) Remain in possession, pay rent, and seek money damages.
Assignment / Sublease Right
L can prohibit T (in lease) from assigning or subleasing without L’s prior approval, but once L consents to 1 transfers, others deemed consented unless L expressly reserves.
Assignment in NY
Unless the lease provides otherwise, prohibition on T’s assignment without L’s consent, and L can unreasonably withhold. However, in a residential building with 4+ units, right to SUBLEASE cannot be unreasonably withheld.
Privity of estate & contract for L-T liability
T1 is in privity of contract with L
A subsequent assignee is in privity of estate with L as long as she retains the assignment interest. If T2 assigns to T3, T3 is in privity of estate and T2 is nothing; T1 remains in privity of contract, so T1 and T3 can be liable on lease.
If T2 merely subleases, T2 and T1 are liable on lease because a sublease is not privity of estate or contract.
Landlord’s Tort Liability
Caveat lessee -- no duty to make premises safe, EXCEPT: "CLAPS" C ommon areas L atent defects known (duty to warn) A ssumption of duty to repair P ublic use S hort term rental fully furnished
Creating Affirmative Easement
P rescription
I mplication (implied from prior use before severance)
N ecessity
G rant MUST BE A WRITING
NEGATIVE EASEMENTS
Can only be created in: "LASS" Light Air Structural support Stream flow (minority states: scenic view)
Easement Transferability
Benefit of easement appurentant passes automatically; and burden passes as long as BFP has notice.
Easement in gross is not transferable unless for a commercial purpose.
Termination of Easement
END CRAMP Estoppel Necessity Destruction Condemnation Release Abandonment Merger (same type of title) Prescription
Burden of Covenant Runs With Land When:
\$\$\$\$$ Sought WITHN writing intent touch and concern horizontal + vertical privity notice
Benefit of Covenant Runs With Land When:
WITV Writing Intent Touch and Concern Vertical Privity
Equitable Servitude
WITNES Writing Intent Touch and concern Notice (es = equitable servitude) (privity not required to bind successors)
Defenses to Enforcement
Always Use Every Last Coin
Acquiescence Unclean Hands Estoppel Laches Change
Dedication of Land
An offer of dedication to a municipality may be made by an oral or written statement, submission of a map or plat showing dedication, or opening the land to public use. The public agency must accept, accomplished by the assumption of maintenance or construction of improvements by the agency or APPROVAL OF A MAP OR PLAT. DEDICATION GIVES MUNICIPALITY RIGHTS IN THE LAND.
NY: Adverse Possession
statutory period is 10 years (20 to adversely possess a co-tenant). Must have a good faith, albeit mistaken, believe that the land occupied is his.
Unmarketable Title
Must be unmarketable at CLOSING, not contracting.
(1) Adverse possession (seller cannot purport to sell property he is adversely possessing)
(2) Encumbrances (servitudes and mortgages unless waived)
(3) Zoning violations
Conveyance of Property In Will and Later Sale to BFP
CONVEYANCE OF PRESENTLY OWNED PROPERTY IN ONE’S WILL DOES NOT COUNT AS A CLOUD ON TITLE B/C THE BEQUEST WILL “ADEEM” UPON THE SELLER’S DEATH, IF THE TESTATOR SOLD THE PROPERTY WHILE ALIVE. NO CLOUD ON TITLE TO THE PURCHASER.
Seller’s Promise not to make false statements of material fact
Liable for material lies AND material omissions; general disclaimers of liability ineffective but very specific ones probably enforced.
Implied Warranties of Fitness and Habitability in land sale contract
only if the seller is the new construction of the building-vendor; otherwise caveat emptor.
Quitclaim Deed
Marketable title at closing; no promises for post-closing problems.
General Warranty Deeds: Covenants
S R E; Q E W FA
Sir Richard Envies (the) Queen’s Emerald Watch (and) Fancy Attire.
Present:
Seisin - owns estate
Right to Convey - no restraints on O’s power to transfer
Encumbrances - no servitudes or mortgages on Blackacre
_____
Future:
Quiet Enjoyment (won’t be disturbed in possession by third party’s lawful claim)
Warranty (defend against claims of title by others)
Further Assurances (do what’s needed to be done to perfect)
Notice Statute
Key word is “UNLESS”: “a conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded”
Race-Notice Statute
NY. Key words = “Whose conveyance is first recorded.” “any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded”
Recording Statutes and Judgment Lienors
j. THE MAJORITY OF COURTS HOLD THAT RECORDING STATUTES DO NOT PROTECT JUDGMENT LIENORS. So, although a judgment lien can properly attach to land and have priority, it is not protected by a notice statute if it records subsequent to another BFP b/c it the judgment creditor is not considered a BFP. E.g., if judgment is executed which by statute becomes a lien on real property, and a mortgage is then executed, but first recorded, in a notice statute the mortgage takes precedence even over the later-recorded judgment lien because the judgment lienholder is not protected by the notice statute.
Rule of the Wild Deed
Applies to deeds or mortgages. If a deed, entered on the records (A to B) has a grantor unconnected to the chain of title (O to A), the deed is a wild deed. It is incapable of giving record notice of its existence.
Estoppel by Deed
Enforceable only as against grantor
Transfer of Mortgagee’s Interest: Defenses Raisable by Creditor
If a mortgage note is transferred, the transferee takes the note free of any personal defenses that could have been raised against the original mortgagee (lack of consideration; fraud in the inducement; unconscionability; waiver; estoppel). However, the mortgage is still subject to real defenses including: MADFIFI4 - Material alteration - Duress - Fraud in the factum - Incapacity - Illegality - Infancy - Insolvency
Modification of Mortgage
A modification of a mortgage by Bank will be junior to any prior lienholders who were subsequent to Bank’s mortgage. Furthermore, if the modification was made by a transferee of the mortgagor who assumed the mortgage, then the original mortgagor is no longer secondarily liable on the debt.
Purchase Money Mortgages
Superpriority even over floating liens.
Statutory Redemption in NY
None
Statute of Frauds and Doctrine of Part Performance
If payments to Owner are consistent with rental payments, then the doctrine of part possession will not apply in the absence of a writing indicating the payments were part of an agreement for sale of the property.
Right of first refusal Q
The trial court will do nothing with the valet’s deed, but the son may have a cause of action against the father’s estate. If a “right of first purchase” is found to be valid, the agreement is merely a promissory restraint, the breach of which may give the son a cause of action against his father’s estate, but will not affect the valet’s interest unless he had knowledge of the agreement at the time he acquired her deed from the owner. Thus, alternatives (A), (B), and (D) are incorrect.
lateral support
If land is improved by buildings and an adjacent landowner’s excavation causes that improved land to cave in, the excavator will be liable only if he acted negligently.
Adjacent landowner strictly liable for damage done to unimproved land or where P can show that the land would have collapsed even if unimproved.
Riparian doctrine
- The water belongs to those who own the land bordering the watercourse
- These people are known as riparians, who share right of reasonable use of the water.
- Thus, one riparian will be liable if his or her use unreasonably interferes with other’s use
Prior Appropriation Doctrine
- The water belongs initially to the state, but the right to divert it and use it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner
- Rights are determined by priority of beneficial use. The norm for allocation is first in time, first in right. Thus, a person can acquire the right to divert and use water from a watercourse merely by being the first to do so. Any productive or beneficial use of the water, including the use for AGRICULTURE, is sufficient to create the appropriation right.
Home uses > commercial uses.
natural flow theory
landowner cannot interfere with natural flow of surface water
common enemy theory
A landowner may change drainage or make other changes/improvements on his land to combat the flow of surface water. Many courts have modified the common enemy rule to prohibit unnecessary harm to other’s land
ground water
surface owner entitled to make reasonable use (not wasteful).
void deeds
WILL BE SET ASIDE EVEN IF PASSED TO BFP: Forged, deeds never delivered, or obtained by fraud in the factum.
voidable deeds
(WILL BE SET ASIDE ONLY IF NOT PASSED TO BFP: executed by minors; incapacitated persons; obtained through fraud in the inducement, duress, undue influence, mistake, breach of fiduciary.
