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Property Flashcards

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1
Q

Property Overview of Topics

A 
Present estates and future interests
Adverse possession
Co-ownership
Landlord-tenant law
Servitudes
Conveyancing (purchase and sale)
Recording system
Mortgages and land finance
Zoning
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2
Q

Present Estates - 5 Types of Freeholds

A
  • Fee Simple Absolute
  • Defeasible Fees
    (a) Fee Simple Determinable
    (b) Fee Simple Subject to Condition Subsequent
    (c) Fee Simple Subject to Executory Limitation
  • Life Estate
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3
Q

Present Estates - Characteristics

A
  • Devisable - Capable of passing by devise/will
  • Descendible - Capable of passing by intestacy
  • Alienable - Transferable inter vivos
  • Future interests, if any
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4
Q

Present Estates - What To Know for Each

A
  • Language creating
  • Duration
  • Transferability
  • Future interests
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5
Q

Present Estates - Fee Simple Absolute

A

“To A and his heirs” OR “To A”

  • Duration - Absolute ownership for potentially infinite duration
  • Transferability - Devisable, descendible, alienable
  • Future Interests - None
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6
Q

Present Estates - Defeasible Fees - Fee Simple Determinable

A

“To A so long as/until/while…”

  • Duration - Potentially infinite, if even doesn’t occur
  • Transferability - Devisable, descendible, alienable, SUBJECT TO CONDITION
  • Future Interests - Right of reverter to grantor
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7
Q

Present Estates - Defeasible Fees - Fee Simple Subject to Condition Subsequent

A

“To A, but if X happens, grantor reserves the right to re-enter and retake”

  • Duration - Potentially infinite, so long as the condition is not breached
  • Transferability - Devisable, descendible, alienable, SUBJECT TO CONDITION
  • Future Interests - Right of entry/power of termination by grantor
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8
Q

Present Estates - Defeasible Fees - Fee Simple Subject to Executory Limitation

A

“To A, but if X occurs, then to B”

  • Duration - Potentially infinite, so long as stated contingency doesn’t occur
  • Transferability - Devisable, descendible, alienable, SUBJECT TO CONDITION
  • Future Interest - Executory interest by third party
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9
Q

Present Estates - Life Estate

A

“To A for life” OR “To A for life of B”

  • Duration - Life of transferee or some other life (pur autre vie)
  • Transferability - Devisable, descendible, alienable IF measure life is alive
  • Future Interests - Reversion (by grantor), remainder (by third party)
  • NB: Life tenant must not commit waste
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10
Q

Absolute Restraint on Alienation

A

Absolute ban on power to sell or transfer that is not linked to any reasonable time-limited purpose - VOID

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11
Q

Types of Waste

A
  • Voluntary/affirmative - Actual, overt conduct that causes a drop in value
  • Permissive/neglect - Land allowed to fall into disrepair
    (a) Life tenant must simply maintain premises in reasonably good repair
    (b) Life tenant’s tax obligations - Pay tax on income/profits from reaping land, or otherwise ordinary taxes on fair RENTAL value
  • Ameliorative - Don’t ENHANCE value unless all future interest holders are known and consent
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12
Q

Future Interests - Grantor

A
  • Possibility of reverter - FSD
  • Right of entry/power of termination - FSCS
  • Reversion - Life estate
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13
Q

Future Interests - Transferees

A
  • Contingent remainder - (1) In an unascertained or unknown person, OR (2) subject to an unmet condition PRECEDENT
  • Vested remainder - Known taker not subject to condition precedent
    (a) Indefeasibly vested - Holder will take with no strings/conditions
    (b) Vested subject to complete defeasance - Holder will take WITHOUT condition precedent, but could be cut short by condition SUBSEQUENT
    (c) Vested subject to open - Remainder vested in a group; group closes based on Rule of Convenience (when any member can demand possession)
  • Executory interest - Future interest in transferee which is not a remainder bc it takes effect by cutting short another interest
    (a) Shifting executory - Interest cut short is in another person
    (b) Springing executory - Interest cut short is in grantor/his heir
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14
Q

Rule Against Perpetuities

A

Future interest could be void if any possibility that it could vest more than 21 years after the death of a measuring life

  • 4-Step Test:
    1. Look at type of future interest - RAP applies ONLY to contingent remainders, executory interests, and certain vested remainders subject to open
    2. Determine what has to happen for future taker to take
    3. Look for ppl alive at date of conveyance whose lives are relevant = measuring life
    4. Determine if we’ll know for sure within 21 years of death of measuring life if future interest holder can take
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15
Q

RAP Reform

A
  • Majority - “Wait and See/Second Look” - Wait until measuring life ends
  • USRAP - Codifies common law OR as an alternative provides 90-year vesting period
  • Cy Pres Doctrine - Court can rewrite disposition to match intent while complying with RAP; both of the above do this
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16
Q

Adverse Possession

A
  • Elements: (1) Continuous, (2) Open and notorious, (3) Actual, and (4) Hostile
  • Possessor’s subjective state of mind irrelevant
  • Can tack if privity bw possessors (any non-hostile nexus)
  • SoL won’t run against true owner w a disability (insanity, infancy, imprisonment) at the inception of adverse possession
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17
Q

Concurrent Estates/Co-Ownership - Types

A

Joint Tenancy
Tenancy by the Entirety
Tenancy in Common

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18
Q

Concurrent Estates - Joint Tenancy

A

Two or more ppl own with the right of survivorship

  • Right of survivorship - Person’s share goes automatically to other tenant upon death
  • Alienability - Alienable inter vivos
  • Devisable/descendible - NO
  • How To Create - 4 Unities + clear expression of right of survivorship
    1. Time (same)
    2. Title (same)
    3. Identical shares
    4. Possess (each has right to the whole)
  • Sale - Inter vivos sales allowed, but severs joint tenancy of seller’s interest; buyer is TIC
  • Partition:
    (a) By voluntary agreement
    (b) Partition in kind - Physical division
    (c) Forced sale
19
Q

Concurrent Estates - Tenancy by the Entirety

A

Between married partners who take as a fictitious “one person” w right of survivorship

  • How to Create - Arises presumptively in any conveyance to married partners unless language indicates otherwise

“CAN’T TOUCH THIS”

20
Q

Concurrent Estates - Tenancy in Common

A

(1) Each co-tenant owns an individual part, and each has a right to possess the whole, and (2) Each interest is devisable, descendible, and alienable

21
Q

Landlord-Tenant Law - Types of Leasehold/Nonfreehold Estates

A

Tenancy for years
Periodic tenancy
Tenancy at will
Tenancy at sufferance

22
Q

Landlord-Tenant - Tenancy for Years

A

Lease for a fixed, determined period of time

23
Q

Landlord-Tenant - Periodic Tenancy

A

Lease which continues for successive intervals until L or T gives notice of termination

  • Creation:
    (a) Expressly - E.g. “month to month”
    (b) Impliedly - No mention of duration, but rent is paid at set intervals
    • Oral term of years violating SoF creates implied periodic tenancy
    • Holding over a tenant who wrongfully stayed creates implied periodic tenancy
  • Termination - Absent statute or K language, written notice at least one interval beforehand
24
Q

Landlord-Tenant - Tenancy at Will

A

Tenancy of no fixed period or duration

  • Termination - In theory, at any time by either party; in practice, reasonable demand to quit
25
Q

Landlord-Tenant - Tenancy at Sufferance

A

T wrongfully holds over, past expiration of the lease

  • Termination - Lasts until L either evicts T or elects to hold T to a new tenancy
26
Q

Landlord-Tenant - Tenant’s Duties

A
  • Duty to repair
    (a) Need only maintain the premises (routine repairs other than those due to wear and tear)
    (b) Don’t commit waste
    (c) Don’t remove fixtures - If no express agreement, fixtures are things whose removal causes substantial harm to the premises
    (d) Covenants to maintain property in good condition - Used to be that T was liable for forces of nature, not now
  • Duty to pay rent
    (a) If doesn’t, L can evict through courts OR continue and sue
    (b) If T vacates before end of lease, L can: (1) treat it as surrender, (2) ignore and hold T responsible for unpaid rent [minority], (3) re-let and hold T liable for deficiency [majority rule]
27
Q

Landlord-Tenant - Landlord’s Duties

A
  • Duty to deliver possession
  • Implied covenant of quiet enjoyment
    (a) Breach by wrongful eviction - L wrongfully evicts/excludes from premises T
    (b) Breach by constructive eviction - 3 elements: (1) Substantial interference w use/enjoyment, (2) Notice given to, and ignored by, L, (3) Goodbye/vacate after L fails to correct problem
    (c) Acts of other Ts? - (1) Don’t allow nuisances, (2) Control common areas
  • Implied warranty of habitability - Premises must be fit for basic human dwelling
    (a) Applies ONLY to residential, not commercial, leases
    (b) NOT waivable
    (c) If breach, T can: (1) move, (2) repair+deduct, (3) reduce/withhold (put funds in escrow), or (4) remain+sue
28
Q

Landlord-Tenant - Assignment vs. Sublease

A
  • Assignment - Transfer of T’s interest in whole
  • Sublease - Transfer of T’s interest in part
  • Restrictions:
    (a) L can prohibit both without L’s prior written approval
    (b) If L consents to one transfer, waives right to object to future transfers, unless reserves this right
  • Note privity of estate vs. privity of contract and what that means for liability
29
Q

Landlord-Tenant - L’s Tort Liability

A
  • Common law - Caveat lessee
  • Exceptions - CLAPS
    (a) Common areas
    (b) Latent defects (duty to warn, NOT repair)
    (c) Assumption of repairs (must complete undertaken repairs w reasonable care)
    (d) Public use rule (L leases public space and should know that T can’t repair bc of significant nature of defect and short length of lease)
    (e) Short-term lease of furnished dwelling
30
Q

Servitudes - Overview/Types

A 
Affirmative easements
Negative easements
Real covenants
Equitable servitudes
Reciprocal negative servitudes
31
Q

Servitudes - Affirmative Easements

A

Right to go onto and do something on servient land

  • Creation (“PING”):
    (a) Prescription - Use that is continuous, open and notorious, actual [NOT exclusive] and hostile for the statutory eriod
    (b) Implication - Implied from prior use
    (c) Necessity - Division of a tract deprives one lot of means or access out
    (d) Grant - Writing signed by grantor
  • Parties bound
    (a) Easement appurtenant (benefits holder in physical use of HIS property; have a dominant and servient tenements) - Transferred automatically with dominant tenement
    (b) Easement in gross (some personal/pecuniary advantage not related to land) - Can be assignable if for commercial purposes
  • Remedy - Injunction or damages
32
Q

Servitudes - Negative Easements

A

Prevent someone else from doing something with their property (LASS - light, air, support, stream water)

  • Creation - Writing signed by grantor
  • Parties Bound - B/A
  • Remedy - Injunction or damages
33
Q

Servitudes - Easements Generally - Termination

A

“END CRAMP”:

  • Estoppel - Servient owner materially changes position in reliance on holder’s assurance that easement not enforced anymore
  • Necessity - If created by necessity, end when necessity ends, UNLESS there’s express grant
  • Destruction - Of servient land, other than through willful conduct of servient owner
  • Condemnation - Gov’t eminent domain
  • Release - Written release from holder
  • Abandonment - PHYSICAL action by holder showing intent to never use the easement again
  • Merger - Title to easement and title to servient land vest in same person
  • Prescription - Servient owner interferes through adverse possession
34
Q

Servitudes - Licenses and Profits

A

License - Privilege to enter land for some purpose

  • No writing necessary
  • Freely revocable, unless estoppel

Profit - Privilege to enter land and take things from it
* Creation and termination - Same as for easements

35
Q

Servitudes - Real Covenants

A

Promise to do or not do something related to land; can be negative or affirmative.

  • Creation - Writing signed by grantor
  • Parties bound
    (a) Burden of promise runs to successor if WITHN: Writing, Intent, Touch+Concern, Horizontal (grantor/grantee, landlord/tenant, etc)+Vertical Privity (non-hostile nexus, like contract, devise, or descent), Notice (on part of successor when took)
    (b) Benefit of promise (standing to sue) runs to successor if WITV: Writing, Intent, Touch+Concern, Vertical Privity
  • Remedy - Damages (distinction from equitable servitude, whose remedy is injunction)
36
Q

Servitudes - Equitable Servitudes

A

Promise that equity will enforce against successors

  • Creation - Writing signed by grantor
    (a) UNLESS implied by General Scheme doctrine: (1) There was a general scheme of development when sales began, and (2) Defendant had notice of the promise contained in other deeds
  • *Notice can be: Actual, Inquiry (“Lay of the Land”), Record
  • Parties bound
    (a) Successors bound if WITNes: Writing, Intent, Touch+Concern, Notice (NO PRIVITY)
  • Remedy - Injunction
  • Defenses to Enforcement - Changed circumstances that are so pervasive that the entire area has changed (not just mere pockets of limited change)
37
Q

Conveyancing - Overview

A

Every conveyance is a two-step process:

  1. Land contract conveys equitable title
  2. Closing, where the deed passes legal title
38
Q

Conveyancing - Land Contract

A
  • SoF applies
    (a) Unless part performance exception applies
  • Risk of loss - Once contract is signed, buyer bears (equitable conversion), unless K language
  • Two implied promises in every K:
    (1) Marketable title (free from reasonable doubt/lawsuits/threat of lawsuits)
    (a) Unmarketable: adverse possession, encumbrances (servitudes and mortgages) unless waived, zoning violations
    (2) No false statements of material fact (including failing to disclose latent material defects)
  • NO implied warranties of fitness or habitability (caveat emptor)
    (a) Exception - Implied warranty of fitness and workmanlike construction for sale of new home by builder-vendor
39
Q

Conveyancing - Deed/Closing

A
  • Deed must be “LEAD”, Lawfully Executed and Delivered
    (a) Must be in writing
    (b) Description of land must be unambiguous and provide a good lead as to what’s been transferred
    (c) Delivery does not necessarily require actual physical transfer of instrument itself; just a legal test of present intent
  • Types of deed+covenants:
    (a) Quitclaim - NO covenants
    (b) General Warranty Deed - Warrants against all defects in title, including those attributable to grantor’s predecessors. Contains 3 present covenants: Seisin (grantor owns land), Right to Convey (grantor has power to transfer), Against Encumbrances (no servitudes/liens). Contains 3 future covenants: Quiet Enjoyment (no third-party claim to title), Warranty (defend grantee if any superior claims of title), Further Assurances (perfect title if later turns out to be imperfect)
    (c) Special Warranty Deed - Same covenants as General Warranty Deed, but grantor makes them only on behalf of its, not predecessors
40
Q

Recording System - Recording Statutes

A
  • Always dealing with a dirty double dealer smdh (O conveys to A, then also to B)
  • 2 brightline rules:
    (1) If B is a BFP and we’re in NOTICE jx, B wins, regardless of whether she records before A
    (2) If B is a BFP and we’re in RACE-NOTICE jx, B wins IF she records properly before A
  • BFP - (1) Buys for value, (2) without notice someone else was first
41
Q

Recording System - 3 Chain of Title Problems

A

(1) Shelter Rule - One who takes from BFP prevails against any other entity that the transferor-BFP would’ve prevailed against
(2) Wild Deed - If a deed entered on the record has a grantor unconnected to the chain of title, it’s incapable of giving record notice of its existence.
(3) Estoppel by Deed - One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he subsequently acquires title

42
Q

Mortgages

A

Mortgage = Conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a monetary obligation. Union of: (1) Debt, represented by merger instrument/note, and (2) Lien in debtor’s land to collateralize the debt

  • Mortgages follow recording statutes like above
43
Q

Foreclosure

A
  • Done through a proper judicial proceeding
  • Foreclosure terminates interests junior, but NOT senior, to the mortgage
  • Creditor priorities
    (a) Creditors must record
    (b) Once recorded, first-in-time, first-in-right
    (c) Exception - purchase-money mortgages
  • Redemption in equity - Up to date of sale, debtor can redeem land by freeing it of the mortgage
    (a) If no acceleration clause (permits mortgagee to declare full balance due in event of default) - Debtor pays missed payments plus interest+costs
    (b) If no acceleration clause - Debtor pays full balance plus interest+costs
    (c) Debtor/mortgagor CANNOT waive right to redeem (“clogging the equity”)
44
Q

Zoning

A
  • Variance - Permission to depart
    (a) Owner seeking must show (1) Undue hardship, and (2) that variance won’t diminish neighboring property values
  • Nonconforming use - Once lawful uses can’t be eliminated w/o just compensation
  • Types of zoning ordinances:
    (a) Cumulative - Hierarchies of use; land zoned for one use can be used for that and higher uses
    (b) Noncumulative - Land can be used only for zoned purpose

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