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Property Flashcards

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1
Q

Define: Fee simple absolute

A

An estate that runs forever and is freely alienable

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2
Q

Define: alienable

A

Can give, sell, divise in a will

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3
Q

Any attempt to put a LIMITATION on alienation of a fee simple absolute is

A

Void. Just ignore it.

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4
Q

Any attempt to put a CONDITION on the alienation of a fee simple absolute is

A

Allowed.

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5
Q

A right of first refusal is

A

A right by someone to try to buy the land first when the owner tries to sell it.

It’s NOT an invalid restraint on alienation.

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6
Q

Language necessary to create a fee simple absolute

A

Courts will presume a fee simple unless language shows a clear intent otherwise.

“To A” = “To A and his heirs” = Fee simple absolute

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7
Q

“To A”: What does A have?

A

A fee simple absolute.

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8
Q

“To A and his heirs”: What does A have?

A

A fee simple absolute.

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9
Q

Define: Fee simple determinable; language necessary; transfer; future interest

A

A type of defeasible fee estate
Definition: An estate that MIGHT end but only if a CONDITION occurs. The duration is NOT measured in years or lifetimes.

A fee simple determinable ends AUTOMATICALLY when the condition occurs. The GRANTOR holds the future interest and gets the land BACK when the condition occurs

Language: DURATIONAL words: e.g., “so long as,” “during,” “while,” and “until”

Transfer: Devisable, descendible, alienable (ALWAYS subject to the condition)

Future interest: possibility of reverter (“FSDPOR”)

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10
Q

“To A so long as —-“: What does A have?

A

A fee simple determinable

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11
Q

“To A during —-“: What does A have?

A

A fee simple determinable

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12
Q

“To A while —-“: What does A have?

A

A fee simple determinable

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13
Q

“To A until —-“: What does A have?

A

A fee simple determinable

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14
Q

List of defeasible fee estates

A

Fee simple determinable

Fee simple subject to condition subsequent

Fee simple subject to executory limitation

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15
Q

Key difference between fee simple determinable and fee simple subject to condition subsequent

A

The fee simple determinable ends AUTOMATICALLY when the condition occurs.

The fee simple subject to condition subsequent does NOT end automatically. The holder of grantor is the holder of the future interest and must take steps to reclaim the land.

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16
Q

Define fee simple subject to condition subsequent

A

The fee simple subject to condition subsequent does NOT end automatically. The holder of grantor is the holder of the future interest and must take steps to reclaim the land.

Language: CONDITIONAL words: e.g., “but if,” “provided that,” “however,” “upon condition that.”

Transfer: Devisable, descendible, alienable (but ALWAYS subject to the condition + grantor takes reclaims land).

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17
Q

“To A but if”: what does A have?

A

A fee simple subject to condition subsequent

The fee simple subject to condition subsequent does NOT end automatically. The holder of grantor is the holder of the future interest and must take steps to reclaim the land.

Language: CONDITIONAL words: e.g., “but if,” “provided that,” “however,” “upon condition that.”

Transfer: Devisable, descendible, alienable (but ALWAYS subject to the condition + grantor takes reclaims land).

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18
Q

“To A provided that”: what does A have?

A

A fee simple subject to condition subsequent

The fee simple subject to condition subsequent does NOT end automatically. The holder of grantor is the holder of the future interest and must take steps to reclaim the land.

Language: CONDITIONAL words: e.g., “but if,” “provided that,” “however,” “upon condition that.”

Transfer: Devisable, descendible, alienable (but ALWAYS subject to the condition + grantor takes reclaims land).

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19
Q

“To A however”: what does A have?

A

A fee simple subject to condition subsequent

The fee simple subject to condition subsequent does NOT end automatically. The holder of grantor is the holder of the future interest and must take steps to reclaim the land.

Language: CONDITIONAL words: e.g., “but if,” “provided that,” “however,” “upon condition that.”

Transfer: Devisable, descendible, alienable (but ALWAYS subject to the condition + grantor takes reclaims land).

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20
Q

“To A upon condition that”: what does A have?

A

A fee simple subject to condition subsequent

The fee simple subject to condition subsequent does NOT end automatically. The holder of grantor is the holder of the future interest and must take steps to reclaim the land.

Language: CONDITIONAL words: e.g., “but if,” “provided that,” “however,” “upon condition that.”

Transfer: Devisable, descendible, alienable (but ALWAYS subject to the condition + grantor takes reclaims land).

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21
Q

What type is a fee simple subject to condition subsequent?

A

A type of defeasible fee estate

The fee simple subject to condition subsequent does NOT end automatically. The holder of grantor is the holder of the future interest and must take steps to reclaim the land.

Language: CONDITIONAL words: e.g., “but if,” “provided that,” “however,” “upon condition that.”

Transfer: Devisable, descendible, alienable (but ALWAYS subject to the condition + grantor takes reclaims land).

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22
Q

Define “defeasible”

A

Open to future reversion

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23
Q

Define fee simple subject to executory limitation; language; transfer; future interest

A

Ends AUTOMATICALLY and then goes to a DIFFERENT grantee. Does NOT go back to the original grantor; grantor does not have future interest.

Language: No magic words.
Transfer: Devisable, descendible, alienable (but ALWAYS subject to the condition).
Future interest: shifting executory interest held by whoever grantor designates.

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24
Q

What type is fee simple subject to executory limitation?

A

A defeasible fee estate

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25
Q

Similarity and difference between fee simple subject to executory limitation and fee simple determinable?

A

Both end AUTOMATICALLY.

But fee simple determinable = possession goes back to grantor.

Fee simple subject to executory limitation = possession goes to another grantee.

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26
Q

Define life estate

A

Never measured by time, but by life. Only transferable during life, not at death.

The measuring life can be the grantee’s or another’s (life estate pur autre vie).

Language: Can create with express language (“for life” is most common but not necessary) or implication.
Transfer: Devisable, descendible, alienable (as long as measuring life is still alive).
Future interest: if it’s for grantor = a reversion; if it’s for a third party = remainder.

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27
Q

Define life estate pur autre vie

A

A life estate where the measuring life is a different one from the grantee’s.

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28
Q

“To A for life”: What does A have?

A

A life estate for duration of A’s life

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29
Q

A life estate is what type of estate?

A

A type of present estate

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30
Q

A life estate pur autre vie is what type of estate?

A

A type of present estate

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31
Q

“To A for the life of B”: What does A have?

A

A life estate pur autre vie

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32
Q

“To A for life”: What does A have?

A

A life estate

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33
Q

“To A for the life of B”: What does A have? What happens if A dies before B?

A

A has a life estate pur autre vie.

If A dies first, the possession goes to A’s estate.

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34
Q

“To A for life”: later, A sold her life estate to B. What does B have?

If B dies before A, who possesses the land?

A

B has a life estate pur autre vie for duration of A’s life.

B’s life estate passes to B’s estate for duration of A’s life.

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35
Q

Three types of waste

A

Voluntary waste, permissive waste, ameliorative waste

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36
Q

Define voluntary waste

A

Any AFFIRMATIVE ACT that causes harm to the premises, EXCEPT

ORGE: open mines doctrine, repairs, grant, exploitation.

Open mines doctrine: the mine was already there.
Repairs: can consume natural resources for repairs.
Grant: written grant of permission.
Exploitation: if normal use of land included exploitation (e.g., farming) it’s okay to do the same.

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37
Q

Define open mines doctrine

A

If the land already had a mine, it’s okay to mine.

If the land wasn’t already used for depletion of natural resources, then doing that is waste.

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38
Q

Duty of a life tenant

A

To maintain the estate, which means continuing normal use of the land in its present condition, which means no waste.

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39
Q

Define permissive waste

A

Where tenant has failed to maintain the estate through inaction.

Triggered in 3 ways:
Fails to repair
Fails to pay taxes
Fails to pay interest on mortgage of the property

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40
Q

Three scenarios that trigger permissive waste

A

Failure to repair
Failure to pay taxes
Failure to pay interest on mortgage of property

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41
Q

What happens to the holder of the future interest if the taxes don’t get paid?

A

The property is subject to a tax sale, which terminates the future interest. The purchaser at a tax sale gets a fee simple.

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42
Q

If there’s a life tenant and also a mortgage on the fee simple, then

A

The life tenant is liable to pay the interest on the mortgage.

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43
Q

Does a life tenant have to insure a property?

A

No.

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44
Q

Define ameliorative waste

A

A type of voluntary waste (i.e., affirmative act) that actually increases the value of the property

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45
Q

Modern exceptions to ameliorative waste liability

A

A tenant can commit ameliorative waste if any one is true:
(1) market value of the future interest is not diminished
or
(2) remainderman don’t object
or
(3) if conditions changed and made the property useless in its current form.

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46
Q

Define future interest; list the six types

A

A present interest in the land with a future right of possession

Two possibilities of who owns the future interest: the grantor or transferee.

Grantor: (1) possibility of reverter; (2) right of entry; (3) reversion.
Transferee: (1) vested remainder; (2) contingent remainder; (3) executory interest.

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47
Q

Possibilities of who can own a future interest:

A

The grantor or some transferee

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48
Q

Types of future interests available to a grantor:

A

(1) reversion
(2) possibility of reverter
(3) right of entry

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49
Q

Types of future interests available to a grantee:

A

(1) vested remainder
(2) contingent remainder
(3) executory interest

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50
Q

Define reversion:

A

A future interest kept by the grantor when the grantor gives a grantee LESS than the durational estate the grantor had.

Pairs mostly with life estates and terms of years.

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51
Q

“O to A for life”: A has what? O has what?

A

A has a life estate

O has a reversion in fee simple.

*Does not matter how old A might be.

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52
Q

“O to A for life; A gives B a 50-year lease”: A has what? O has what? B has what?

A

A has a reversion in a life estate.
B has a term for years.
O has a reversion in fee simple.

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53
Q

“O to A for life, then to B if B survives A”: A has what? B has what? O has what?

A

A has a life estate

B has a contingent remainder

O has a reversion in fee simple (that is speculative)

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54
Q

What is never subject to the rule against perpetuities?

A

Future interests in grantor: (1) A reversion, (2) a fee simple determinable, (3) a right of entry.

Vested remainder (EXCEPT the vested remainder subject to partial divestment (i.e., the one to a class)).

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55
Q

If the grantor has given away a full interest then the grantor does NOT have

A

A reversion

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56
Q

Define fee simple determinable with possibility of reverter

A

A type of future interest in the grantor.
ONLY paired with Fee Simple Determinable (“FSDPOR”)

When the grantor gives something away and keeps a possibility of reverter.

The fee simple determinable ends AUTOMATICALLY when the condition happens.

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57
Q

“Right of entry” versus “power of termination”

A

Mean the same thing. Both are a future interest in the grantor.

When a grantor gives a fee simple subject to a condition subsequent, the grantor keeps the right of entry.

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58
Q

When a grantor gives a fee simple subject to condition subsequent, what does the grantor keep?

A

A right of entry, but grantor MUST EXPRESSLY reserve the right to re-enter if the condition occurs. (Without that, it’s a mere expression of hope and does not matter.)

ONLY pairs with fee simple subject to condition subsequent.

The right does NOT go back automatically, the grantor must take action to retake.

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59
Q

“A to B for so long as no alcohol is consumed on the premises”: What does A have? What does B have?

versus

“A to B, provided that no alcohol is consumed on the premises”: What does A have? What does B have?

A

B has a fee simple determinable (type of present interest)
A has a possibility of reverter in fee simple (type of future interest)

versus

A has nothing and B has fee simple absolute. The language is a mere hope/intention, not a condition.

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60
Q

“O to A for life, then to B”: What does A have? B? O?

A

A has a life estate

B has a vested remainder in fee simple (no contingencies here)

O has nothing (gave away everything!)

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61
Q

“O to A; provided that if alcohol ever consumed on premises, O may reenter and retake premises”

A

A has fee simple subject to condition subsequent

O has right of entry in fee simple

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62
Q

Define vested remainder

A

There’s nothing (no condition) in the way of someone taking possession, it just happens after the earlier expiration.

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63
Q

“A to B for life, then to C”: What does A have? B? C?

A

A has nothing (gave away everything!)

B has a life estate

C has a vested remainder in fee simple (no contingency)

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64
Q

Define vested remainder subject to open

A

Vested remainder = no condition for the possessory interest, it just happens after the earlier expiration.

Subject to open = the remainder is being conveyed to a CLASS of people, but we don’t know exact number. Typical classes are children, heirs, and issue/descendants.

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65
Q

Define classes for vested remainder subject to open:
“Children”
“Heirs”
“Issue” or “descendants”

A

Children = someone’s children from all marriages, children born outside marriage, and adopted children.

Heirs = presumptively who would take if person died intestate

Isse or descendants = lineal offspring of the designated person

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66
Q

Open class versus closed class

A

Open class = possible for more members to join

Closed class = not possible for more members to join

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67
Q

When does a class close?

A

Rule of convenience: A class is closed when any member can demand possession.

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68
Q

Rule of convenience

A

A class is closed when any member can demand possession

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69
Q

“To A for life, then to B’s children”: A has what? B’s children have what? When does the class close?

A

A has a life estate. B’s children have vested remainder subject to open.

Class closes upon A’s death.

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70
Q

Womb rule

A

A class that closes upon someone’s death WILL include a child in the womb at the time of the death.

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71
Q

“To A’s children upon my death”: at time of death, this includes B and C. D is born after the death. Does D get anything?

A

No.

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72
Q

Define contingent remainder

A

Something has to happen before the remainder becomes possessory (UNLIKE the vested remainder, which needed nothing to become possessory).

This includes a grantee who’s not in existence at the time of the grant: the CONTINGENT part is that the grantee has to eventually exist.

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73
Q

“A to B for life, then to C if C survives B”: A has what? B has what? C has what?

A

A has a reversion in fee simple

C has a contingent remainder in fee simple (the CONTINGENT part is C surviving B)

B has a life estate

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74
Q

Define vested remainder subject to divestment

A

The taker identified, but there is a condition subsequent.

Note: The condition will be in the clause RIGHT AFTER the clause that creates a future interest in the grantee.

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75
Q

“A to B for life, then to C; but if C does not marry D, then to E”

A? B? C? E?

A

A has nothing (gave it all away!)

B has a life estate

C has a vested remainder subject to divestment

E has a shifting executory interest in fee simple

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76
Q

“A to B for life, then to C; but if C dies before B, then on B’s death to D”:

A? B? C? D?

A

A has nothing

B has a life estate

C has a vested remainder subject to divestment

D has a shifting executory interest in fee simple

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77
Q

Define executory interest

A

It divests or cuts short the interest before it.

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78
Q

If a future interest in a grantee is not a remainder, then

A

it MUST be an executory interest (which means it divests or cuts short the interest before it).

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79
Q

If a future interest in a grantee cuts short an earlier estate, then

A

it MUST be an executory interest (which means it divests or cuts short the interest before it).

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80
Q

Can an executory interest sue a life tenant for waste?

A

No.

(Makes sense because it’s not certain that the executory interest will EVER get the property, so why should he be able to sue on it?)

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81
Q

“A to B for life, then C; but if C does X, then to D”:

A? B? C? D?

Can C sue B for waste? Can D sue B for waste?

A

A has nothing

B has a life estate

C has a vested remainder subject to divestment

D has a shifting executory interest in fee simple

C can sue B; D cannot (because executory interests can’t sue previous life tenant for waste).

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82
Q

Define shifting executory interest

A

Operates by taking title from one grantee and giving it another grantee

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83
Q

Define springing executory interest

A

Operates by taking title from grantor and giving it to a grantee

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84
Q

Shifting executory interest versus springing executory interest

A

shifting executory interest = operates by taking title from one grantee and giving it another grantee

springing executory interest = operates by taking title from grantor and giving it to a grantee

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85
Q

“A to B for life, then if C does X, to C”: What is C’s interest, springing executory interest or shifting executory interest?

A

Springing executory interest because it goes right from grantor to him.

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86
Q

Rule against perpetuities applies to what type of future interests?

A

(1) contingent remainders
(2) executory interests
(3) vested remainders subject to partial divestment

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87
Q

Define rule against perpetuities

A

An interest that is to vest, if at all, later than 21 years after the death of a life in being is VOID.

If there is any chance the interest will vest later than 21 years after death of life in being, then the interest is void.

Critical question: ask “is there any chance that the interest will vest later than 21 years after everyone alive in this scenario dies?” If yes, then VOID.

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88
Q

“A to B so long as no alcohol is consumed on the premises; and if liquor is consumed, title passes to C”: What’s the intention for A and B, and who has what after applying RAP?

A

Intention: A has nothing, B has fee simple subject to executory limitation.

After RAP: A has possibility of reverter, B has fee simple determinable.

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89
Q

“A to B; provided, however, that if alcohol ever consumed on premises, then to C”: Apply RAP, who has what?

A

Apply RAP: strike the language creating the executory interest. What’s left is: “A to B.” So A has nothing and B has fee simple absolute.

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90
Q

General rule re: class gifts and RAP

A

If it is possible that a member of the class could vest outside the LIB+21 years time period, then ALL interests are void.

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91
Q

Applying RAP to wills versus deeds: when do we look at the transfer as the time to apply RAP?

A

Will = time of testator’s death

Deed = time of the deed

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92
Q

Charity-to-charity exception to RAP

A

The RAP is NEVER violated if the gift is from one charity to another.

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93
Q

List and define the three forms of co-ownership

A

Tenancy in common

  • default form of co-ownership
  • each tenant is entitled to possess the whole
  • freely alienable
  • no right of survivorship
  • right to partition

Joint tenancy

  • must be created by express language
  • must have “four unities”: time, title, interest, possession (meaning the joint tenants are co-owners who obtained same interest, at same time, by the same instrument)
  • allows right of survivorship: when one tenant dies, her interests pass by law to the surviving joint tenants

Tenancy by the entirety (just for married couples)

  • right of survivorship
  • cannot unilaterally terminate, only terminate by death or divorce
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94
Q

Define tenancy in common

A

One of the three forms of co-ownership

Tenancy in common

  • default form of co-ownership
  • each tenant is entitled to possess the whole
  • freely alienable
  • no right of survivorship
  • right to partition
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95
Q

Define joint tenancy: requirements to create and features

A

One of the three forms of co-ownership

Requirements to create:

(1) must be created by express language “joint tenants” and “right of survivorship”
(2) must have “four unities”: time, title, interest, possession (meaning the joint tenants are co-owners who obtained same interest, at same time, by the same instrument)

Features:

(1) allows right of survivorship: when one tenant dies, her interests pass by law to the surviving joint tenants
(2) may be partitioned: by agreement, by court order of partition in kind (favored), court order by partition by sale (disfavored)
(3) an interest can be mortgaged, and majority rule says this does not sever the joint tenancy (“lien theory”).

If an interest is sold, it destroys joint tenancy as to that interest; the remaining interests retain their joint tenant rights as to each other and they own the same percentage interest as before. The buyer of that interest (the new guy) = tenant in common.

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96
Q

Define tenancy by the entirety

A

Tenancy by the entirety (just for married couples)

  • right of survivorship
  • cannot unilaterally terminate, only terminate by death or divorce`
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97
Q

In a joint tenancy among A, B, and C: what happens if C mortgages his interest? What happens if C sells his interest?

A

Mortgage: majority rule, lien theory of mortgages, the joint tenancy is preserved

Selling: destroys the joint tenancy for C’s interest, A and B still have theirs, and the new guy is a tenant in common.

98
Q

Define “right of survivorship” re: joint tenancy and tenancy in common

A

Right of survivorship means that a joint tenant A gets joint tenant B’s share when B dies

This does not happen with a tenancy in common. The share goes to the heirs, as normal.

99
Q

If O owns an estate and wants to enter into a joint tenancy with A, how can he do it?

A

Just directly adding A will not fulfill the “four unities” so do it with a straw man.

Convey the estate to the straw man, who then conveys it to O and A with the four unities.

100
Q

Co-tenants rights and duties to each other

A

Generally concern possession, money, condition, and partition.

Possession: Each co-tenant has a right to possess the whole of the property, consistent with right of every other co-tenant. A co-tenant cannot bring a possessory action until after he/she is “ousted,” i.e., another co-tenant claims right to exclusive possession.

Money: one co-tenant can get contribution from others for necessary repairs, taxes, a mortgage on whole property. But NOT for improvements to the land.

101
Q

A, B, and C possess a property as JOINT TENANCY: Effect on B’s and C’s interests when there’s a mortgage and foreclosure on A’s interest:

A, B, and C possess a property as TENANTS IN COMMON: Effect on B’s and C’s interests when there’s a mortgage and foreclosure on A’s interest:

A

If joint tenancy: the mortgage lien on A’s interest does NOT sever the joint tenancy with B and C, but the foreclosure sale DOES.

If tenancy in common: the mortgage lien on A’s interest and eventual foreclosure will not affect the rights of B and C.

102
Q

Define lease

A

For the tenant, a lease is a present possessory interest. For the landlord, it is a future interest (reversion).

103
Q

How to create and terminate a lease

A

If will last more than 1 year, must be written per Statute of Frauds.

Termination: when the period ends, failure to pay rent, or surrender.

104
Q

Define periodic tenancy; how created; how terminated?

A

A tenancy that continues for successive periods (e.g., month to month).

Created by: (1) express agreement, or (2) implication, or (3) operation of law.

Automatically renews until terminated by either party on proper notice. Proper notice is usually one full period in advance. Year-to-year leases: common law rule = 6 months, modern rule = 1 month.

It terminates at the end of the period.

105
Q

In co-tenant situation, right of rental income from —-?

A

All co-tenants have a right to rental income from THIRD PARTIES renting on premises of one interest.

106
Q

Define tenancy at will; how created; how terminated?

A

A tenancy that is terminable at the will of either party.

Created by: express agreement

Terminates upon notice of either party (courts sometimes require “reasonable notice”); may also terminate by operation of law (i.e., death of a party).

107
Q

The hold-over doctrine:

(1) residential tenant
(2) commercial tenant

A

If tenant’s lease ends and tenant stays there, the landlord can evict or start a new periodic tenancy.

If residential tenant: converts to month to month. If landlord notifies tenant before expiration that rent will increase, then tenant acquiesces to new higher rent by staying.

If commercial tenant + one year or more lease: new year-to-year lease.

If commercial tenant + less than one year lease: new periodic term based on frequency of rent payments (e.g., month-to-month).

108
Q

Tenant’s duties re: landlord-tenant relationship

A

Duty to pay rent, no illegal purposes, to repair

109
Q

Landlord duties re: landlord tenant relationship

A

Duty to deliver actual premises (i.e., the landlord will put the tenant in actual possession), quiet enjoyment, implied warranty of habitability, no retaliatory eviction, no discrimination

110
Q

Quiet enjoyment: define and how can it be breached

A

Implied in every lease. Landlord nor ultimate title holder will interfere with tenant’s quiet enjoyment.

Can be breached by:
(1) Actual eviction: tenant is excluded from ENTIRE premises.

(2) Partial eviction: tenant is excluded from PART of premises. If by landlord, tenant is relieved from whole rent payment; if by ultimate title holder, tenant is relieved from apportionment of rent.
(3) Constructive Eviction: (i) landlord breached, (ii) substantially and materially deprived tenant of her use, (iii) landlord had notice and reasonable opportunity to repair, and (iv) tenant vacated.

111
Q

Does the implied warranty of habitability apply to commercial tenants?

A

No.

112
Q

Sublease versus assignment

A

Assignment transfers lease for whole rest of term. The original tenant retains privity of contract with landlord from the original contractual obligation; the new assignee has privity of estate with landlord. Assignee pays rent directly to landlord.

Sublease transfers lease temporarily and it comes back to tenant. The sublessee has no privity with landlord. The sublessee pays to the lessee.

113
Q

Define covenant that runs with the land

A

A covenant runs with the land if (1) parties intended and (2) it touches and concerns the land. Example: a covenant to pay rent runs with the land.

114
Q

Common law versus modern law rule re: landlord duty to make premises safe

A

Common law: generally no duty, except (1) to warn of concealed dangerous conditions that the tenant would not discover by reasonable inspection, (2) common areas, (3) negligent repairs.

Modern law rule: Landlord owes general duty of reasonable care and will be liable for injuries resulting from ordinary negligence if landlord had notice and opportunity to repair.

115
Q

Define fixture

A

A chattel that is so affixed to the land that it is no longer personal property and is part of the realty.

Includes:

(1) items that lose their identity when incorporated into the structure (e.g., bricks), and
(2) items that would cause considerable damage to remove.

116
Q

Fixtures: Common ownership versus divided ownership cases

A

Common ownership: the person owns both the land and the annexed chattel (e.g., someone installs a hot water heater in their home). To see if it becomes a fixture, look at “objective intent,” i.e., the article, how it’s attached, damage to remove, etc.

Divided ownership: the chattel is owned by someone other than who owns the land (e.g., during a lease, a tenant installs a particular shower head). An agreement on this will control, but default rule: the tenant lacks intent to permanently improve the property. Must be removed by end of lease term.

117
Q

Define affirmative easement (generally)

A

The right to use another’s tract of land for a special purpose, presumed perpetual in duration.

Includes a burden and benefit. Can be positive or negative, personal or commercial.

118
Q

Define negative easement (generally)

A

The holder of the easement can control something “elemental” on someone else’s land something (e.g., prevent possessor from building a third story to their house)

119
Q

Define easement appurtenant

A

Requires two tracts of land: the dominant (the estate benefiting from the easement) and the servient (the estate subject to the easement right).

Passes automatically with the BENEFITTED estate. Passes automatically with the burdened estate UNLESS the new owner is a bona fide purchaser and has no actual or constructive knowledge of the easement.

120
Q

Define easement in gross

A

An easement that benefits a particular person independent of the possession of the person’s land.

If for personal pleasure (e.g., swim in another person’s lake) = NOT transferable

If for economic interest = transferable.

121
Q

How to create an easement by express grant

A

(1) Must comply with Statute of Frauds

(2) Must comply with all formal requirements of a deed

122
Q

Define easement by express reservation

A

Grantor conveys title to the land but expressly reserves the right to continue to use a tract of land for a special purpose

123
Q

Types of easements by implication

A

Implied from existing use:
(1) PRIOR to a division of a single tract (2) An APPARENT and CONTINUOUS use exists on the servient part (3) That is REASONABLY NECESSARY for the enjoyment of the dominant part (4) The parties INTENDED the use to continue even after dividing the land.

Easement by necessity: allowed for some strictly necessary purpose (e.g., access to a public road).

124
Q

How to create an easement implied from existing use

A

Implied from existing use:
(1) PRIOR to a division of a single tract (2) An APPARENT and CONTINUOUS use exists on the servient part (3) That is REASONABLY NECESSARY for the enjoyment of the dominant part (4) The parties INTENDED the use to continue even after dividing the land.

125
Q

Define easement by prescription; how to acquire?

A

The elements of adverse possession (CHAO):
Continuous and uninterrupted use for statutory period
Hostile (i.e., without permission)
Actual use
Open and notorious

126
Q

Appropriate remedy for misuse of an easement

A

NOT a termination of the easement; an injunction against the particular misuse

127
Q

If parties try to create an easement but don’t do it properly

A

The result is a license. But is REVOCABLE at will of licensor. Exception: estoppel (the licensee invests substantial money or labor in reliance on the license). Then the license is an “easement by estoppel.”

Example: they don’t observe the Statute of Frauds for an easement lasting longer than a year. The result is a license, not an easement.

128
Q

Define easement by estoppel

A

License normally revocable at will of licensor. But if licensee has invested substantial money or labor in reliance on the license, it can become an easement by estoppel.

129
Q

Easement and profit

A

A “profit” is the ability to take a natural resource from another’s estate; this includes an easement to enter and remove the natural resource.

130
Q

Real covenant definition (generally)

A

Aka a covenant running with the land AT LAW.

A written promise to do something (or not do something) on the land. Because they run with the land at law, future owners may enforce or be burdened by the covenant.

131
Q

Requirements for (1) burden to run and (2) benefit to run re: real covenant

A

6 requirements for burden to run: “WITH-VN”

(1) Writing that satisfies SOF
(2) Intent that successors be bound
(3) Touch and concern the land
(4) Horizontal privity
(5) Vertical privity
(6) Notice (actual, implied, record)

4 requirements for benefit to run: “WIT-V”

(1) Writing that satisfies SOF
(2) Intent that successors be bound
(3) Touch and concern the land
(4) Vertical privity

REMEDY is money damages

132
Q

Define equitable servitude (generally)

A

Covenant that, regardless of whether it properly runs with land at law, will be enforced against burdened land.

133
Q

Remedies for real covenants versus equitable servitude

A

Money damages = real covenant

Injunction = equitable servitude

134
Q

How to create an equitable servitude; requirements for burden and benefit to run

A

4 requirements for burden to run: “WIT-N”

(1) Writing that satisfies SOF
(2) Intent that successors be bound
(3) Touch and concern the land
(4) Notice (actual, implied, record)

3 requirements for benefit to run: “WIT”

(1) Writing that satisfies SOF
(2) Intent that successors be bound
(3) Touch and concern the land

135
Q

General scheme doctrine

A

Can enforce a negative equitable servitude even when WIT elements are missing, because they can be fulfilled by a general scheme of development.

136
Q

How to enforce a real covenant or equitable servitude where (1) one of the original parties has sold the land versus (2) where both of the original parties have sold their land

A

(1) The enforcing party must show the other party’s elements are satisfied (usually the party seeking to show that the BURDENED party has a burden that runs with the land).
(2) The enforcing party must show that BOTH his and the other party’s elements are satisfied

137
Q

How to terminate a real covenant or equitable servitude

A

Mr. Capace:

Merger: the two lands now owned by one

Release: party IN WRITING releases the other

Condemnation: government takes land

Abandonment: beneficiary takes action inconsistent with covenant.

Prescription: non-use for the statutory period.

Agreement: Parties can agree to end.

Changed conditions:

Estoppel: beneficiary gives assurances no longer use + burdened party substantially relies on that.

138
Q

How to terminate an easement

A

Mr. Capend

Merger

Release

Condemnation

Abandonment

Prescription

Estoppel

Necessity

Destruction

139
Q

“Mortgagee” versus “mortgagor”

A

Mortgagee = the lender

Mortgagor = the debtor

140
Q

Define “note”

A

Note = promissory note, the promise to pay back money related to a mortgage

141
Q

Define “mortgage”

A

The promise to give up land if you cannot pay money back to a lender

142
Q

Title theory states versus lien theory states

A

Both states: Borrower possesses the property (“equitable title”).

Both states: Lender holds a lien.

Title theory states: Lender ALSO holds legal title (“deed”) to a property.

Lien theory states: Borrower holds legal title (“deed”).

143
Q

Deed of trust

A

A third-party (“trusee”) holds title/deed, NOT the borrow and NOT the lender.

144
Q

Foreclosure

A

The mortgagee (lender) initiates sale of property to receive money to pay off the mortgagor’s debt

145
Q

Equitable redemption and statutory

A

Up until the foreclosure sale, the mortgagor (borrower) may pay back the remaining debt + interest.

Some states, by statute, extend this period beyond the foreclosure sale.

146
Q

After foreclosure, order of who gets paid; what if someone is left out?

A

(1) Attorneys
(2) costs of foreclosure process
(3) mortgagee(s)
(4) debtor

Mortgagees layer:
TOP: “Purchase money mortgagee” always on top, otherwise the mortgagee who initiated the foreclosure process (but USUALLY these are the same person/entity).
MIDDLE: chronological order of RECORDED mortgagees.
BOTTOM: chronological order of UNRECORDED mortgagees.

A senior mortgagee who is left out has a preserved interest, and can foreclose again against a subsequent purchaser.

Any junior mortgagee who is left out, their interest survives.

147
Q

In a foreclosure sale, what happens if money runs out before each mortgagee down the chain gets paid back in full?

A

They get no money from the foreclosure sale (obviously) but they can still institute civil actions against the mortgagor/debtor to get their money.

148
Q

How can Buyer 1 or Buyer 2 win under a race statute?

A

Buyer who records first (regardless of whether a buyer is a bona fide purchaser)

149
Q

Define bona fide purchaser

A

A buyer who has NO NOTICE (actual, inquiry, or record) about a previous sale to a different buyer + pays a fair price

150
Q

How can Buyer 1 or Buyer 2 win under a notice statute?

A

Buyer 1: by recording BEFORE Buyer 2’s purchase (thus making him “on notice,” and thus preventing him from being a bona fide purchaser)

Buyer 2: by being a bona fide purchaser

151
Q

How can Buyer 1 or Buyer 2 win under a notice statute

A

Buyer 2 wins only if: a bona fide purchaser + records first

Buyer 1 wins in all other cases

152
Q

Wild deed

A

A deed improperly recorded because it does not connect to the chain of title

153
Q

Estoppel by deed

A

A VERY specific scenario:

Someone (O) who doesn’t own the property “sells” it to another (A) and then later comes to actually own the property, will be estopped from preventing A later selling to another buyer (B).

154
Q

Donees, devisees, heirs, and judgment creditors are NOT bona fide purchasers of land because

A

They did not purchase the land in the first place.

155
Q

To effectively TRANSFER an interest in realty, a deed must be:

A

(1) DELIVERED by the grantor and (2) ACCEPTED by the grantee.

“Delivery” will be satisfied with words or conduct that show INTENT that the title was to pass immediately and irrevocably.

156
Q

Must a bona fide purchaser record?

A

No. A bona fide purchaser will still be protected from competing claims for title even if they don’t record at all.

157
Q

If a prior grantee records after a BFP purchases the property…what’s the effect on the BFP?

A

None. The BFP does not have to record.

158
Q

In a race-notice jurisdiction, a subsequent purchaser will win only if:

A

(1) he’s a BFP AND (2) he records first. He will lose in all other cases.

159
Q

Must a deed be “acknowledged” to be valid?

A

No.

160
Q

What does it mean for a deed to be “acknowledged” and when is acknowledgment necessary?

A

Signed before a notary public. Usually required for it to be recorded.

161
Q

Grantor versus grantee: which signature(s) are necessary for a deed to be effective?

A

The grantor’s signature is necessary, but NOT the grantee’s.

162
Q

Define “reformation” re: deeds

A

An equitable action where court rewrites a deed to conform to parties’ intention. Available for any of the following reasons:

(1) the deed reflects parties’ mutual mistake
(2) the deed contains a drafting error
(3) the deed contains one party’s mistake that was induced by fraud

163
Q

Can a deed to a property be reformed it has been relied upon by a bona fide purchaser?

A

No.

164
Q

Grantor’s possession of a deed will raise presumption that

A

the deed has NOT been delivered. Can be rebutted by showing grantor INTENDED to pass title without physical delivery of the deed.

165
Q

Grantee’s possession of a deed will raise presumption that

A

The deed was delivered and accepted.

166
Q

A deed that benefits a grantee will be presumed to

A

Be accepted by the grantee, even if the grantee doesn’t know of the deed.

167
Q

Must a grantee know of a deed to “accept” it?

A

No. Courts will presume a grantee accepts a deed IF the deed benefits the grantee.

168
Q

What kinds of grantees will a court presume to accept a deed?

A

Minor, infant, incompetent grantee

169
Q

Must a deed be recorded to be valid? What is the effect of a recorded deed?

A

No. Deed does NOT need to be recorded to be valid.

A recorded deed will raise a presumption that the deed has been delivered.

170
Q

Requirements of VALID deed versus requirements of EFFECTIVE deed

A

Valid: Writing signed by grantor, identifies land and parties.

Effective: Must be DELIVERED by grantor and ACCEPTED by grantee.

171
Q

Can parol evidence be used to show an oral condition attaches to a deed that is unconditional on its face?

A

No, not to the deed itself. Courts will ignore that.

But, if deposited in escrow, parol evidence can be used to show oral conditions re: the escrow.

172
Q

When will parol evidence always be allowed?

A

To show that no delivery of deed was intended, and to show the deed was intended as security for a debt obligation.

173
Q

Types of parol evidence that can show an “equitable mortgage”

A

(1) the grantor’s debt
(2) the grantee’s promise to return when debt paid
(3) the fact that grantor’s debt is much lower than the property value
(4) the degree of grantor’s financial distress
(5) the parties’ prior negotiations

174
Q

Define special warranty deed

A

a deed where grantor covenants against only title defects he himself might have created.

175
Q

If a grantor of a deed is in debt to creditors and he transfers the deed to a grantee, the transfer may be “set aside” by grantor’s creditors if:

A

The transfer was made with actual intent to hinder, delay, or defraud the creditors.

The transfer is NOT considered void, it will just be set aside.

But it will NOT be set aside if the grantee acted in good faith and paid reasonable value for it.

176
Q

Define covenant of warranties

A

A type of future covenant for title where grantor promises that grantee’s title will not be interfered with by anyone with a superior title.

177
Q

Define covenant of seisin

A

A type of present covenant for title where grantor warrants that he has title and possession in the first place.

178
Q

Define covenant against encumbrances

A

A type of present covenant for title that there are no “encumbrances,” like easements, profits, or mortgages against the property.

179
Q

A grantee of a deed cannot be dead because

A

then the deed cannot be delivered.

180
Q

Does a deed require consideration?

A

No.

181
Q

A forged deed will be set aside as void even against a

A

Bona fide purchaser.

182
Q

Define accretion

A

the slow and imperceptible deposit of soil on a watercourse that causes the legal boundary to change.

183
Q

Define avulsion

A

a sudden, perceptible change in a watercourse boundary that DOES NOT cause the legal boundary to change.

184
Q

Will the enlargement of a body of water change the boundary lines of a property? (E.g., a lake enlarges)

A

No.

185
Q

What is the effect of an inter vivos conveyance of an interest in a joint tenancy on (1) the joint tenant grantor, (2) the other joint tenants, and (3) the grantee?

A

The joint tenant who conveys will destroy his own interest in the joint tenancy. The grantee will share a tenancy in common with the other joint tenants.

The joint tenancy will still exists as between the remaining joint tenants.

186
Q

If A and B are joint tenants and later marry, what happens to their joint tenancy?

A

It still exists. It does not turn into a tenancy by the entirety.

187
Q

In a landlord-tenant scenario, if the landlord constructively evicts the tenant, what can the tenant do?

A

Tenant can vacate, terminate lease, and sue for damages if:

(1) landlord (or his agent) BREACH
(2) MATERIALLY and SUBSTANTIALLY effect USE and ENJOYMENT
(3) tenant gave NOTICE and TIME to repair
(4) and tenant vacated within REASONABLE time.

188
Q

Can a tenant in a residential lease waive warranty of habitability?

A

No.

189
Q

What is a “novation” in the context of mortgages?

A

Where the original mortgagor (debtor) sells the property before the mortgage is paid off, and the mortgagee (the bank) approves the new buyer to assume the mortgage, and releases the old mortgagor (debtor) and substitutes the new buyer as the debtor.

190
Q

What is a sale “subject to” a mortgage?

A

The seller remains personally liable for the mortgage debt after the sale, but the buyer (the new property owner) does not become personally liable for the seller’s mortgage.

This means the bank CAN foreclose on the property after the sale but the bank CANNOT sue the new owner personally.

191
Q

Without a novation in a sale of a mortgaged property, what happens to the seller’s liability for the mortgage?

A

The seller remains personally liable to the bank even after it is sold (and resold and resold and resold, etc.).

192
Q

If a grantor conveys a property to grantee in fee simple absolute and says “if grantee ever tries to sell it, the property goes to X”–what result?

A

It’s considered a restraint on being freely alienable and is ignored.

193
Q

What limits are there on the alienability of a possessor of a life estate?

A

None! Freely alienable, devisable, inheritable, but will end when the measuring life is over.

194
Q

If a life tenant creates an encumbrance on the land, what happens to the encumbrance when the life tenant dies?

A

The encumbrance ends when the life tenant dies?

195
Q

Who must pay property taxes on a property and is ultimately liable?

A

The holder of the present possessory interest (NOT the original grantor, and NOT anyone holding a future interest).

196
Q

How does a life estate end?

A

By death of the life tenant

If the life tenant commits waste

197
Q

How can a life estate end before the death of the life tenant?

A

If the life tenant commits waste

198
Q

What future interest pairs with fee simple subject to condition subsequent?

What future interest pairs with fee simple determinable?

A

Right of entry = fee simple subject to condition subsequent

Possibility of reverter = fee simple determinable

199
Q

If a grantor grants either (1) a fee simple subject to condition subsequent or (2) a fee simple determinable, can grantor convey those future interests?

A

Yes!

Grantor’s future interests are freely alienable and can convey these future interests in ANY way they want.

200
Q

If a testator creates a will that creates a future class (a future remainder subject to partial divestment/open), what happens if a member of that class dies before the testator dies?

A

That class member drops out of the class and so any interest he/she had goes away, which means that anyone named in THAT class member’s will does not have any claim to the class’s possession.

201
Q

In a joint tenancy, what happens when (1) all joint tenants convey an interest to someone else, versus (2) one joint tenant unilaterally conveys an interest in someone else

A

If all joint tenants do it, the joint tenancy between the members survives and the new grantee shares a tenancy in common with the new member.

If one joint tenant unilaterally does it, this destroys that joint tenant’s membership in the joint tenancy. That guy becomes a tenant in common with everyone else. All other joint tenants retain their membership in the joint tenancy. The new guy is a tenant in common with everyone else.

202
Q

Are landlords liable for latent defects in the property?

A

Generally NO, unless they knew or should have known of the latent defect.

EXCEPTION: in a short-term lease of a furnished premises the landlord is strictly liable for latent defects, regardless if didn’t know.

203
Q

How is an express easement created

A

In writing to comply with SOF and formalities of a deed

204
Q

Must an express easement be written? Implied easement? Easement by necessity? Easement by prescription?

A

Express easement must be in writing to satisfy SOF.

Not needed in writing: implied, necessity, prescription

205
Q

Does non-use of an easement constitute abandonment and render the easement non-enforceable?

A

No! Mere non-use is not sufficient for abandonment.

Abandonment requires an INTENT to abandoned manifested by some PHYSICAL ACT that shows intent to abandon.

206
Q

How to properly abandon an easement?

A

Abandonment requires an INTENT to abandoned manifested by some PHYSICAL ACT that shows intent to abandon.

207
Q

When does the period for adverse possession begin?

A

When the adverse possessor STARTS using the property, regardless of whether the owner knew or not.

208
Q

Requirements of Adverse Posession

A

HELUVA

Hostile
Exclusive (no one else also adversely possessing)
Lasting for statutory period
Uninterrupted for statutory period
Visible (“open and notorious”)
Actual (must actually possess the land (except constructive adverse possession and leasing of land not owned)).

209
Q

When can changed conditions void a restrictive covenant/equitable servitude with respect to a common scheme development?

A

Only when the conditions changed to make the property UNUSABLE TO ALL PARCELS on the property.

210
Q

Does money left on a seller’s prior mortgage count as an “encumbrance” on the land to make the title to the buyer unmarketable?

A

No. Seller of a property has implied right to use proceeds of sale to pay off the mortgage and clear any encumbrances.

211
Q

Right to remove fixtures re: residential lease versus commercial lease

A

If residential: look to how much damage to remove to see if it’s a fixture. If it is a fixture, cannot remove.

If commercial: “trade fixtures doctrine” allows the tenant to remove all trade fixtures. Exception: “accessions” which become part of the property itself, e.g., a deck or balcony, etc.

212
Q

Define “accession” re: fixtures

A

“accessions” which become part of the property itself, e.g., a deck or balcony, etc.

Cannot be removed from the premises at end of lease term

213
Q

If A acquires land via adverse possession, can A convey it?

A

Not necessarily, because A does not have marketable title. A can convey via a quitclaim deed. Otherwise, A must file in court of equity seeking a quiet title action to make the title marketable.

214
Q

Define quiet title action

A

If A acquires land via adverse possession, A must file in court of equity seeking a quiet title action to make the title marketable.

215
Q

By what time must the seller of a property provide marketable title, i.e., when must the seller actually have marketable title?

A

By the day of closing.

216
Q

Can a seller enter into a contract to sell a property with marketable title even though he did NOT have marketable title at the time of the contract?

A

Yes, but he MUST provide marketable title by the day of closing.

217
Q

How to win an action based on lateral or subjacent support?

A

P must prove either

(1) that D was negligent in the activity, or
(2) that the ground would have given way EVEN WITHOUT any of P’s own stuff on it.

218
Q

When landlord 1 assigns his interest to landlord 2, who is liable for what re: any tenants?

A

Landlord 1:

  • If no novation, still liable for all covenants in lease.
  • If novation, then not liable for covenants in lease.

Landlord 2:

  • if no novation, only liable for covenants that run with land
  • if novation, liable for covenants that run with land + all other covenants in the lease
219
Q

Ways to terminate a tenancy at will

A
  1. either party dies
  2. tenant commits waste
  3. tenant attempts assignment
  4. landlord transfers interest
  5. landlord leases to another
220
Q

When a tenant assigns lease to an assignee, what is the tenant (assignor) liable for, and what is the assignee liable for?

A

Tenant (assignor): liable for all covenants in lease because he retains privity of contract with landlord.

Assignee: liable for all covenants that run with land because he is in privity of estate with landlord.

221
Q

If a landlord conditions assent to a sublease, and the condition is not fulfilled, then

A

Then the landlord has not assented to the sublease.

222
Q

Writing or oral: how can a landlord consent to an assignment or sublease?

A

Either writing or oral okay.

223
Q

What is a “surcharge” re: easements?

A

When the legal scope of the easement was exceeded.

224
Q

Requirements for implied easement

A
  1. the lands were united when the easement started
  2. reasonable necessity
  3. intent to continue
  4. apparent and continuous
225
Q

Must an easement be in writing? What if it’s not?

A

Yes, because SOF (transfer of an interest in land).

If not, then it’s a failed attempt at an easement and becomes a license.

226
Q

Does the benefit of easement appurtenant need to be mentioned in the deed to be valid?

A

No, it runs with the land

227
Q

Will an easement by adverse possession be valid even if the “adverse possessor” is mistaken about the easement?

A

Yes.

228
Q

Landlord-tenant, when there’s PARTIAL condemnation, what is tenant liable for?

A

Still liable for rent, but can seek a reduction in line with the partial condemnation.

229
Q

If a seller cannot provide marketable title before closing even after reasonable time to cure, then buyer may

A

(1) rescind the contract
(2) sue for damages of breach of contract
(3) sue for specific performance re: abatement of purchase price

230
Q

An easement is generally an encumbrance that renders title unmarketable EXCEPT where

A

Except where the easement is both KNOWN to the buyer and BENEFICIAL to the property.

231
Q

Will a TINY violation of a zoning ordinance render title unmarketable?

A

Yes! Even if unlikely that an action will commence. There is still a chance that an action could be brought by the city.

232
Q

A remainder only follows a

A

Life estate

233
Q

What is life “life” in RAP’s “life in being” ?

A

“Life” refers to “life in being at the time the interest is created”

234
Q

Does RAP apply to rights of re-entry?

A

No

235
Q

Default results for holdover tenants

A

Commercial tenants: year-to-year

Residential tenants: month-to-month

236
Q

If a tenant fails to pay rent: landlord’s options at common law versus modern law

A

Common law: can only sue for damages

Modern law: can sue or evict

237
Q

Tenants remedies when partial eviction by landlord versus paramount title holder

A

Partial eviction by landlord: tenant can stop paying all rent

Partial eviction by paramount title holder: tenant must pay rent, but can be reduced in accordingly

238
Q

If a trespasser annexed chattel to land, what can trespasser recover?

A

Generally nothing. Exception:
If trespasser acted in good faith AND the chattel increased the value to the land, the trespasser can get the value of the increase to the land.

239
Q

What is covered by a general warranty deed?

A

Six covenants: three present and three future:

Present covenants:

  • Seisin: seller owns the land
  • Right to convey
  • No encumbrances

Future covenants:

  • Quiet Enjoyment: buyer won’t be disturbed by a different title holder
  • Further Assurances: seller will take necessary acts to protect buyer’s title
  • General warrant: seller will defend buyer’s title

SCE-QE-FA-GW

240
Q

Quitclaim deed and marketable title

A

A grantor has a duty to provide marketable title, even with quitclaim deed.

Marketable title means no encumbrances (e.g., easement)

Thus, a buyer may refuse to proceed with conveyance even of quitclaim deed if there is any encumbrance because of failure to provide marketable title

241
Q

One member of a joint tenancy CAN convey his interest by what method? But NOT by what other method?

A

Can convey by contract, but cannot by will (because right of survivorship means it automatically would transfer to other joint tenant upon death).

242
Q

Under the trade fixtures doctrine, when must the trade fixtures be removed?

A

By the end of the lease and not after.

Bar Study (13 decks)

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