Property Flashcards
Fee simple absolute
Conevyance of property. Divisible, descendable, alienable
Fee simple determinable
Conditional conveyance. Leaves a possiblity of reverter (automatic)
Remember the rapper “DJ D-SUD”
Durational lanugage:
So land as….
Until…
During…
Fee simple subject to condition subsequent
Conditional conveyance. Leaves a right of reentry, but must be expressed.
Remember the rapper “MC C-BOP”
Conditional language:
But if….
On condition that…
Provided that….
Life estate
Conveyance of land for a certain term.
Term measured by life of grantee or autri vie (life of another).
Possible future interests -
Grantor: reversion
3rd party: remainder (vested or contingent)
Shifting executory interest
Future interest of third party following some sort of defeasible fee
Springing executory interest
Future interest of third party that cuts short GRANTOR’s rights in property
Vested Remainder
Future interest after a life estate to an ASCERTAINABLE person and NOT SUBJECT to condition precedent (beforehand)
Contingent Remainder
Future interest after life estate to third party that is unascertainable OR subject to condition precedent (something must happen before they take)
Vested remainder subject to total divestment
3rd party future interest that could be cut short by a condition subsequent (something happening after they take)
Doctrine of Waste
Life tenant cannot do anything to injury future interests of remaindermen.
Types of Waste:
- Voluntary
- Permissive
- Amerliorative
Voluntary waste
Consumption/exploitation of NATURAL RESOURCES
Remember: “Won’t be voluntary waste if you PURGE”
- Prior Use: previously occured, but limited to Open Mines doctrine
- Reasonable repairs
- Grant
- Exploitation: lands only suitable for this option
Permissive waste
When life T allows land to go to shit
Life T has duty to pay all ordinary taxes and mortgage interest payments and protect land from disrepair by making reasonable maintenance
Ameliorative waste
Acts taken on land may enhance property. value. Not allowed UNLESS, future interest holders KNOW and give CONSENT
Rule against Perpetuities
Voids third party future interests if there is any possibility that interest may vest more than 21 years after the death of the measuring life.
Joint tenancy
Each owner owns equal share of the entire property w/ rights of survivorship. Not descendable, devisable or alienable.
Creation: TTIP
- Time (receive conveyance at same time)
- Title
- Interest (equal)
- Possession
Severance: SPaM
- Sale
- Partition
- Mortgage (title theory only)
Tenancy in Common
Each co-T owns individual part with right to possess the whole. No survivorship rights
Tenancy for Years/Term
Lasts for a FIXED PERIOD of time. Automatically terminates after the period.
Periodic Tenancy
Continues for a specific period (ie. week or month) until it is terminated by proper notice from either party. Must end at a natural lease period AND requires notice at least a full period in advance
Tenancy at will
No fixed period of duration. Must be expressly agreed to by both parties.
Termination at any time but must give notice and reasonable time to leave
Tenancy at Sufferance
T wrongfully holds over after expiration of lease. L can either:
- evict OR
- or accept check and T will be periodic tenancy month to month for original lease price ( notice of rent increase prior to expiration, holdover for new price)
Implied Covenant of Quiet Enjoyment
Prevents tenant from using and enjoying land due to actual or constructive eviction (ie. L continues to repair material damages or excludes T from entire or part of premises)
Constructive Eviction
Remember “SING”
- Substantial interference w/ quiet enjoyment of land
- Notice: T notifies L, who fails to respond
- Get out: T must vacate w/in reasonable time
Implied Warranty of Habitability
Implied in every residential lease that premises is reasonably suitable for human needs (IE. must comply with local housing or public safety code)
Tenant’s Remedies when Breach of Warranty of Habitability
- Move out and terminate lease
- withhold or reduce the rent (must put it in escrow though as good faith)
- repair the issue and deduct from rent OR
- stay and sue for damages
Assignment
T transfer entire property to T2.
L and T2 in privity of estate but not contract. L and T1 no privity of estate, but in contract.
T2 primarily responsible, T1 secondarily liable
Sublease
T assigns portion of their interest to T2
L and T2 not in privity of estate or contract.
T1 and T2 are responsible to each other.
What is a covenant?
Non-possessory interest in land that obligates holder to either do something or refrain from doing something
How to enforce benefit of a covenant
“WITV”
- writing
- intent
- touch and concern the land
- vertical privity
How to enforce burden of a covenant
“WITHVN”
- writing
- intent
- touch and concern the land
- horizontal privity
- vertical privity
- notice
Equitable servitude
Covenant that will be enforced if burdened estate had notice of covenant. "WITNES" -Writing -Intent -Touch and concern the land -Notice = Equitable Servitude
How to tell between Covenant or Equitable Servitude Analysis
Look at what person bring suit is claiming: damages or injunction?
Damages - convenant
Injunction - equitable servitude
Implied Equitable Servitude/Common Scheme
General Scheme by subdivider when sale began and Notice
Defense: changed condition so pervasive it affects entire area
Adverse Possession
Possession for a statutory period of time can turn into ownership if:
- Open and Notorious
- Continuous
- Hostile
- Actual and Exclusive
Easement
Non possessory property interest on land (umbrella - covenants and equi. serv. fit under: only do these analyses if easement by grant**look for an agreement!!)
Types:
- affirmative: right to do something on servient land (limit to LASSS: Light, Air, Support, Stream, Scenic View)
- negative: prevents servient owner from doing something on (limit to LASSS)
- Appurtenant: re physical use/enjoyment of land
How easements are created
“PING”
Prescription - same reqts as adverse possession
Implication - if division, implied from existing use if apparent and reasonably necessary to dominant land’s use/enjoym.
Necessity - if division creates land lock
Grant - if more than a year, must be in writing
Termination of easement
“END CRAMP”
- Estoppel: servient changes position in reliance that easement won’t be enforced
- Necessity
- Destruction of servient land
- Condemnation of servient land
- Release: in writing
- Abandonment: phys action by holder expressing intent to not use again
- Merger
- Prescription: servient owner interferes
Requirements for valid land sale contract
- writing
- description of land
- identification of parties
- purchase, AND
- signed by grantor/grantee
Warranty of marketable title
Seller has duty at time of closing that title is free from any adverse possession, encumbrances or zoning violations.
If SUBSTANTIAL defect at time of closing, buyer can withdraw from contract with no penalty
Doctrine of Equitable Conversion & Risk of Loss
Once contract for land sale signed, splits ownership between buyer and seller. Buyer has equitable ownership, seller has legal ownership and holds property in trust for buyer until closing date.
Majority: risk of loss transfers to buyer at signing
Minority: seller continues to bear the risk of loss
Timing of performance
Even though closing date put in contract, can be changed UNLESS clause that states “time is of the essence”
Home builder’s implied warranty
Protects from latent defect (one that could not have been discovered by reasonable inspection)
Warrants that building is safe and fit for human habitation at time of sale.
Deed requirement and effect
Needs to be lawfully executed and delivered.
Replaces the land sale contract as the controlling document
Types of deeds
General Warranty - Basically the most inclusive (free from most things); Grantor says free from ALL encumbrances
Special warranty - Promises Grantor makes on behalf of himself that he won’t convey to anyone else and property is free from encumbrances by Grantor only
Quitclaim - no warranties; grantor not liable fro any encumbrances or defects in title
Recording statute and Notice
Determines who gets land if multiple conveyances
Race statute - first to record wins; notice irrelevant
Notice statute - subsequent purchaser wins if BFP and 1st person didn’t record
Race Notice - 1st buyer wins if records before 2nd buyer
Mortgage issues (*Look at at chart for specifics)
Priority of Creditors on Default (Foreclosures)
Transfer
Selling With Mortgage
