Property

Question 1

Present Estates

Answer 1

1. Free Simple Absolute
2. Fee Tail
3. Defeasible Fees
   
   1. Fee Simple Determinable
   2. Fee Simple Subject to a Condition Subsequent
   3. Fee Simple Subject to Executory Limitation
4. Life Estate

Question 2

Devisable, Descendible, and Alienable

Answer 2

• Devisable = passable by will
• Descendible = passable by intestacy
• Alienable = passable inter vivos

Question 3

Fee Simple Absolute

Answer 3

• “To A” or to “A and his heirs”
• Absolute ownership; freely devisable, descendible, and alienable
• No accompanying future interest

Question 4

Fee Tail

Answer 4

• “To A and the heirs of his body”
• Historically, limited abosolute to literal blood descendents
• Accompanying Future Interest:
  
  • If in Grantor, reversion
  • If in 3rd Party, remainder
• Today, Fee Tail abolished and attempt to create creates a Fee Simple Absolute

Question 5

Fee Simple Determinable

Answer 5

• “To A [durational language, e.g., so long as, during, until] [condition]”
  
  • clear durational language
• If condition is violated, automatic forfeiture
• Devisable, descendible, and alienable subject to the condition
• Accompanying Future Interest = Possibility of Reverter in the Grantor

Question 6

Fee Simple Subject to Condition Subsequent

Answer 6

• “To A [durational language] [condition] grantor reserves the right to re-enter and retake”
  
  • Clear durational language and state right to re-enter
• If condition occurs, estate not automatically ended, but can be cut short at the grantor’s option
• Devisable, Descendible, and alienable subject to condition
• Accompanying future interest = right of re-entry, aka power of termination, in the grantor

Question 7

Fee Simple Subject to Executory Limitation

Answer 7

• “To A [durational language] [condition] then to B”
• Upon condition, estate automatically passes to someone other than the grantor
• Devisable, descendible, and alienable subject to condition
• Accompanying Future Interest = Sprining Executory Interest (in 3rd party)

Question 8

Life Estate

Answer 8

• “To A for Life”
  
  • ​Measured in terms of an explicit lifetime (not a number of years)
  • A is the Life Tenant - Entitled to all ordinary uses and profits from the land, but Cannot Commit Waste
  • Future Accompanying Interest: Reversion in Grantor; Remainder in 3rd Party
• Life Estate pur autrie vie - measued by life of another
  
  • “To A for the life of B”
  • A has life estate pur autrie vi

Question 9

Waste

Answer 9

1. Voluntary/Affirmative Waste
   
   • overt destruction
   • Natural Resources: life tenant must not consume or exploit natural resources unless
     
     • prior use (land previously used for this purpose)
     • for repairs or maintanence
     • granted the right
     • exploitation (land only suitable for this use)
2. Permissive Waste or Neglect
   
   • Must maintain property in reasonably good repair
3. Ameliorative Waste
   
   • Must not engage in acts that enhance property value unless all future interest holders are known and consent

Question 10

Future Interests in Grantor

Answer 10

• Possibility of Reverter - accompanies fee simple determinable
• Right of Re-entry (aka power of termination) - accompanies fee simple subject to condition subsequent
• Reversion - accompanies everything else where Grantor transfers less than his full estate (e.g., life estate)

Question 11

Future Interests in Transferees

Answer 11

• Remainder - patiently wait for preceding estate to end
  
  • Vested
    
    • indefeasibly vested remainder
    • vested remainder subject to complete defeasance
    • vested remainder subject to open
  • Conditional - created in an unascertained person or subject to a condition precedent
• Exectory Interest - cut short a preceding estate
  
  • shifting executory interest
  • springing executory interest

Question 12

Contingent Remainders

Answer 12

Remainder is conditional if it is created in an unascertained person or subject to a condition precedent

• subject to a condition precedent: condition that must be satisfied before remainderman takes
  
  • To A for life, then, if B graduates college, to B

Question 13

Rule of Destructibility

Answer 13

Historically, contingent remainder destroyed if still contingent at the time the preceding estate ended

Today, rule abolished, B or B’s heirs take subject to B’s springing executory interest

Question 14

The Rule in Shelley’s Case

Answer 14

Historically, “to A for A’s life, then, on A’s death, to A’s heir’s” would merger into a FSA for A under the rule in Shelley’s Case

Today, the rule is abolished

• A has a life estate,
• A’s heirs have a contingent remainder
• O has a reversions, since A could die without heirs

Question 15

The Doctrine of Worthier Title

Answer 15

Rule applies when O, who is alive, triest to create a future interest in O’s heirs

• To A for life, then to O’s heirs
• under the Doctrine of Worthier Title, O’s heirs’ contingent remainder is void; A has a life estate, and O has a reversion

Question 16

Three Types of Vested Remainders

Answer 16

1. Indefeasibly Vested Remainder
   
   • no strings attached; guaranteed
2. Vested Remainder Subject to Complete Defeasance/Total Divestment
   
   • right to possession could be cut short by a condition subsequent - condition that ends an estate;
   • “To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C
     
     • A has life estate
     • B has vested remainder subjet to complete defeasance
     • C has a shifting executory interest
     • O has reversion
3. Vested Remainder Subject to Open
   
   • Remainder is vested in a group of takers, at least one is qualified to take, but each class members share is subject to parital diminution because additional members can still join

Question 17

Executory Interests

Answer 17

1. Shifting Executory Interest
   
   • divests a transferee’s preceding estate
2. Springing Executory Interest
   
   • cut’s short the grantor’s estate

Question 18

Rule Against Perpetuities

Answer 18

No interest is good unless it must vest, if at all, not later than 21 years after the death of some life in being at the creation of the interest.

OR (stated differently)

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

Effect: Cross out the violative language.

Question 19

Rule Against Perpetuities Bright Line Rules

Answer 19

1. A gift to an open class that is conditioned on members surviving beyond 21 violates the RAP
2. An executory interest with no time limit within which it must vest violates the RAP

Question 20

Joint Tenancy

Answer 20

• Right of Survivorship (generally, must be express)
• Requires four unities:
  
  • Time
  • Title
  • Indentical Interest
  • Possession (right to possess the whole)
• Severance
  
  • Sale (by either joint tenant, become tenants in common)
  • Partiation (by voluntary agreement, can partition in kind or forced sale)
  • Mortgage
    
    • Title Theory (minority): One joint tenant’s execution of mortgage or lien severs joint tenancy
    • Lein Theory (majority): does not sever

Question 21

Tenancy by the Entirety

Answer 21

Between married partners with right of survivorship; generally created presumptively on transfer to married partner, but some statutes require express right of survivorship

Question 22

Tenancy in Common

Answer 22

• Each cotenant owns an undivided part and has a right to possess the whole
• No survivorship rights

Question 23

Rights and Duties of Co-Tenants

Answer 23

1. Possession (to the whole)
   
   • If ouster, owed rent from co-tenant in possession
2. Rent from 3rd Parties
   
   • must account to co-tenants, give their fair share
3. No adverse possession unless ouster
4. Carrying Costs (taxes/mortgage insurance) - based on undivided share owned
5. Repairs
   
   • Repaiging co-tenant has a right to contribution for reasonably necessary repairs provided she informed other co-tenants of the need
6. Improvements
   
   • No right to contribution for improvements
7. Waste - must not waste
8. Partition - to dissolve relationship (in kind or forced sale)

Question 24

Leasehold Estates

Answer 24

1. Tenancy for Years: Lease for any fixed period; no notice required to terminate
2. Periodic Tenancy: Lease that continues for successive intervals
   
   • created expressly, by implication, or by holdover
     
     • Implication: no mention of duration but payment made at set intervals
     • Implication: Oral term of years in violation of SoF, measured by way rent is tendered
   • Require notice (usually equal to a period) to terminate
   • Must end at conclusion of a natural lease period
3. Tenancy at Will: no fixed duration, terminate at any time
4. Tenancy at Sufferance: Wrongful holdover, allows L to recover rent

Question 25

Tenant’s Duties

Answer 25

1. Liability to Third Parties (Tort)
   
   • Must keep property in good repair
   • T liable to all invited third parties, even if L promised to repair
2. Duty to Repair
   
   • Tenant must maintain and make routine repairs, other than those due to odrinary wear and tear
   • Tenant must not commit waste
     
     • Law of Fixtures: T must not remove a fixture, even if she installed (voluntary waste)
3. Duty to Pay Rent
   
   • If T breaches and is in possession, landlord’s only options are to
     
     • evict throught the court or
     • sue for rent due
   • If T breaches but is not in possession, L can
     
     • treat as T’s surrender of lease,
     • Ignore abandonment, and hold liable for unpaid rent (in a minority of states), or
     • relet the property and hold T liable for deficiency
       *

Question 26

Landlord’s Duties

Answer 26

1. Duty to Deliver Possession
2. Implied Covenant of Quiet Enjoyment
   
   • applies to residential and commercial
   • breached by wronful eviction/exclusion
   • breached by constructive eviction
     
     • substantial interference
     • notice by T
     • T must vacate
3. Implied Warranty of Habitability
   
   • Must be fit for basic human dwelling, bare living requirements must be met; often set by statute, building code
   • T’s remedies for breach:
     
     • Move out, end lease
     • Repair and deduct (where allowed)
     • Reduce rent (place in escrow, good faith)
     • Remain, pay rent, and seek money damages

Question 27

Assignments and Subleases

Answer 27

• Assignment:
  
  • L and T1: privity of contract (secondarily liable to each other)
  • L and T2: privity of estate
    
    • liable for covenants that run with the land
• Sublease
  
  • L and T2 are without privity
  • L and T1 relationship fully intact

Question 28

Landlord’s Tort Liability

Answer 28

Under common law, the Landlord was under no duty to make the premises safe (caveat lessee), however, there are a number of common exception:

• Must maintain common areas
• Must warn of hidden defects that are known (or should have been known) to landlord
• Must complete any assumed repairs reasonalby
• Public use rule: liable in short term leases of public space
• Short term lease of furnished dwelling: liable for any defect which proximately harmed T

Question 29

Easement

Answer 29

Grant of a non-possessory property interest taht entitles its holder to some form of use or enjoyment of another’s land (called the servient tenement)

• Appurtenant
  
  • benefits another’s land (the dominant tenement)
  • benefit passes automatically with dominant land (even without notice)
  • burden passes with servient land, exception to a bona fide purchaser without notice
• In Gross
  
  • provides a personal or pecuniary benefit (no dominant tenement)
  • not transferrable unless for comercial purposes

Question 30

Creation of an Affirmative Easement

Answer 30

1. By grant
   
   • an easement to endure for more than 1 year must be in writing satisfying requirements of a deed (bc SoF)
2. By implication
   
   • Implied from existing use
   1. previous use was apparent
   2. parties expected it would continue because reasonably necessary to use of the property
3. By necessity
4. By Prescription (Adverse Possession)
   
   1. Continuous for statutory period
   2. Open and Notorious
   3. Actual (need not be exclusive)
   4. Hostile (without consent)

Question 31

Termination of an Easement

Answer 31

1. Estoppel - servient owner materially changes positon in reasonable reliance on easement holder’s assurance it will not be enforced
2. Necessity ends
3. Destruction of Servient Land
4. Condemenation of Servient Land (eminent domain)
5. Written Release
6. Abandonment - easement holder must demonstrate by phsyical action intent to never use the easement again
7. Merger - servient and dominant lands merge to common onwer
8. Prescription - extinguish an easement by prescription by interfereing with elements of adverse possession

Question 32

License

Answer 32

A mere privilege to enter the land of another for a designated purpose

not subject to SoF

Freely revocable, unless estoppel applies

Question 33

Covenant

Answer 33

A contractual limitation or promise regarding land (generally restrictive, but can be affirmative)

For a covenant - plaintiff seeks legal damages (money)

For a burden to run with the land:

1. Writing
2. Intended to Run
3. Touch and Concern the Land
4. Horizontal (Original Parties in succession of estate) and Vertical Privity

For a benefit to run with the land:

1. Writing
2. Intended to Run
3. Touch and Concern the Land
4. Vertical Privity

Question 34

Equitable Servitudes

Answer 34

A promise related to land that equity will enforce. It is accompanied by injunctive releif.

Requirements to bind successors:

1. Writing
2. Intent to bind successors
3. Touch and Concern the Land
4. Notice (successors had notice of equitable servitude)

Implied Equitable Servitude

• If subdivider had a general and common scheme of residual development that included lot in question
• And buyer of lot in question had notice (any type) of the promise the prior deeds
• Then the courts will impose the negative restrictive covenant

Equitable Defenses to Enforcement of Equitable Servitude = changed conditions so pervasive that the entire area has changed

Question 35

Adverse Possession

Answer 35

Possession can ripen into title

1. Continuous (for the statutory period)
2. Open and Notorious
3. Actual Entry, giving exclusive possession
4. Hostile (wihtout consent)

Taking

• Tacking of two adverse possessors claims together is permitted if they are in privity

Question 36

Conveyance of Real Estate

Answer 36

1. Land Contract - Transfers Equitable Title
   
   • Contract endures until step 2
2. Closing - Transfers Legal Title
   
   • Deed becomes operative document

Question 37

Land Contract

Answer 37

Must satsify SoF (in writing, signed by party to be bound, describe the property, and state some consideration)

• Exception: Doctrine of Part Performance
  
  • No need for writing if any two of the following three:
    
    • possession
    • improvements (substantial)
    • payment (all or part)

Buyer now bears the risk of loss

Implied promises in land contract:

1. seller promises to provide marketable title at closing
   
   • free from reasoanble doubt and threat of litigation
2. seller promises not to make any false statements of material fact
   
   • generally now liable for failing to disclose latent material defects

Otherwise, Caveat Emptor

• Except an implied warranty of fitness and workmanlike construction applies to the sale of a new home by a builder-vendor

Question 38

Closing

Answer 38

Deed passes legal title from S to B.

Requirements

1. Lawful Execution of a Deed
   
   1. Be in writing (need not cite consideration)
   2. Description (unambiguous and provide a good lead)
2. Delivery
   
   • physical delivery or Grantor’s present intent to be bound
   • Express rejection defeats delivery
   • Delivery by Escrow
     *

Question 39

Types of Deeds (and covenants therein)

Answer 39

1. Quitclaim
   
   • no covenants
2. General Warranty Deed
   
   • warrants against all defects in title on behalf of grantor and all grantor’s predecessors
     
     • Present covenants
       
       • seisin (promise that grantor owns)
       • right to convey
       • against encumberances
     • Future covenants
       
       • covenant of quiet enjoyment
       • covenant of warranty (promise to defend)
       • covenant for further assurances
3. Statutory Special Warranty Deed
   
   • Provided by statute in many states; grantor warrants only that he
     
     1. has not conveyed to anyone else and
     2. property is free from encumberances made by grantor

Question 40

Recording System and Statutes

Answer 40

Recording statutes provide protection to bona fide purchasers (buys for consideration without notice of another buyer) and mortgagees

1. Notice Statute: Last BFP to take wins (regardless of whether he records)
2. Race-Notice: to prevail, BFP must record first

Question 41

Forms of Notice

Answer 41

1. Actual
2. Inquiry
   
   • on notice of whater an exam of the land would show
3. Record

Question 42

Shelter Rule

Answer 42

One who takes from a BFP will prevail against any entity the transferor-BFP would have prevailed against

• even if he had notice

Question 43

Problem of the Wild Deed

Answer 43

A deed unconnected to the chain of title is wild and incapable of giving record notice

Question 44

Estoppel by Deed

Answer 44

One who conveys realty in which he has no interest is later estopped from denying the validity of that conveyance if he later acquires the previously transferred interest

Question 45

Mortgage

Answer 45

The conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a debt

• debtor = mortgagor
• creditor = mortgagee
• Purchase Money Mortgage vs. Non-PMM
• Equitable Mortgage (parties intended mortgage)
  
  • Can be enforceable between Creditor and O
    
    • parol evidence can be used to show intent

Question 46

Transferring Mortgage Interests

Answer 46

All parties can transfer their interests. Mortgage automatically follows a properly transferred note.

The creditor-mortgagee can transfer his interest by:

• endorsing the note and delivery to transferee, OR
• executing a second document of assignment

If transferee receives an endorsed and assigned note, he can become a holder in due course, free from any personal defenses that could have been raised against the creditor-mortgagee

Holder in due course still subject to real defenses

• material alteration
• duress
• fraud in facturm
• incapacity
• illegality
• infancy
• insolvency

To be a holder in due course:

• note must be negotiable, made payable to named mortgagee
• endored by named mortgagee
• original note must be delivered to the transferee (no photocopy)
• transferee must take in good faith
• transferee must pay value for the note

Question 47

Foreclosure

Answer 47

Judicial action for a forced sale

If sale proceeds deficient, can bring a deficiency action against debtor

If surplus, proceed as follows:

1. pay forclosure expenses
2. mortgages in order of priority (each paied in full)
   
   1. Purchase Money Mortgages have super priority in land they financed
3. surplus to debtor

Question 48

Redemption

Answer 48

1. Redemption in Equity - at any time up to date of sale
   
   • by paying missed payments and costs
   • right to redemption is not waivable
2. Statutory redemption
   
   • recognized in about 1/2 the states
   • can redeem for a period after foreclosure

Question 49

Lateral Support

Answer 49

If improved land caves in due to exavation on neighboring land, exavator liable if negligent

Strict liability attaches only if plantiff’s improved land would have collapsed in unimproved state

Question 50

Water Rights

Answer 50

1. Riparian
   
   1. water belongs to property that borders water,
   2. may use as long as you do not unreasonably interfere with others use
2. Prior Appropriation
   
   1. rights by priority (first to use beneficially)

Groundwater - surface owner entitled to reasonable use that is not wasteful

Surface Water - Common enemy rule - may combat flow of surface water, but can’t cause unnecessary harm to other’s land

Question 51

Zoning

Answer 51

Pursuant to its police powers, the government may enact statutes to reasonably control land use

• Variance: must show undue hardship and grant of variance will not work dimimution to neighboring property
• Nonconforming Use: grandfather in; previously lawful use cannot be eliminated all at once unless just compensation paid, otherwise it would be an unconstitutional taking
• Cumulative Zoning vs Non-Cumulative
  
  • in cumulative, zones are prioritized, land can be put to any use of it’s zone or higher priority zones
• Unconstitutional Exactions:
  
  • exaction must be reasonably related in nature and scope ot the impact of the proposal