Property Law Flashcards
How can property be transferred?
Property can be transferred through (1) Sale; (2) Gift; (3) Devise; and (4) Intestate Succession.
What is fee simple?
Fee simple is the largest possessory estate and is capable of lasting forever.
What is the presumption about fee simple?
The presumption about fee simple is that it is fee simple absolute.
What are defeasible fees?
Determinable fees may be terminated by the occurrence of an event, can be terminated early, and a condition can cut short the fee simple.
What is fee simple determinable?
Fee simple determinable is limited by specific durational language.
What is fee simple subject to condition subsequent?
Fee simple subject to condition subsequent is limited by specific conditional language.
What is the possibility of reverter?
The possibility of reverter is the future interstate’s held by the grantor following a fee simple determinable.
What is the right of entry?
The right of entry is the future interest of the grantor following a fee simple subject to condition subsequent.
What is a fee simple subject to an executory interest?
A fee simple subject to an executory interest is when after an event, the future interest will vest in a third party.
What is an executory interest?
An executory interest will cut short an earlier interest.
What is a life estate?
A life estate is limited by a life.
What is a reversion (possibility of reverter)?
A reversion is when the grantor takes back possession after a life estate ends.
What is a remainder?
A remainder is when a third party takes possession after a life estate ends.
What does a vested remainder require?
A vested remainder requires (1) an ascertained grantee; and (2) no condition precedent
What is a contingent remainder?
A contingent remainder is when there is either (1) no ascertained grantee; or (2) a condition precedent
When are class gifts vested subject to open?
Class gifts are vested subject to open when the full class membership is unknown.
What is the presumption about birth in property law? (I can tote it rule)
The presumption about birth in property law is that a person can have children until their death.
What is the rule of convenience?
The rule of convenience closes the class to avoid application of the Rule against perpetuities.
What is the doctrine of worthier title?
The doctrine of worthier title creates a presumption of reversion to the grantor’s heirs.
What is the Rule in the Shelley case?
The rule in the Shelley case prevents against remainders int he grantees heirs –> Creates a fee simple absolute in the grantee. MERGES.
What is a springing executory interest?
A springing executory interest divests the grantor.
What is a shifting executory interest?
A shifting executory interest divests a grantee.
What is the time limit for RAP?
The time limit for RAP is one life + 21 years.
When are interests created under RAP?
Interests under RAP can be created either (1) Inter vivid: during the life of the grantor; or (2) upon death.
What does RAP apply to?
RAP applies to (1) contingent remainders; (2) executory interests; and (3) class gifts - subject to open.
Who is the validating life under RAP?
The validating life under RAP is the person who tells us whether or not the interest vests.
What happens when there is a RAP violation?
When there is a RAP violation, the violating interest is stricken.
What happens under RAP when a member of the class is void.
Under RAP, if a member of a class gift is void, all of the class gift is void. Would use the Rule of convenience.
Does RAP apply to charities?
RAP does not apply to charities.
Does RAP apply to options?
RAP does not apply to options held by a current tenant to purchase a fee interest in the leasehold property. or an option in a commercial transaction
What are concurrent estates?
Concurrent estates is the ownership or possession of real property by two or more persons simultaneously.
What are the three kinds of concurrent ownership?
The three kinds of concurrent ownership are (1) tenancy in common; (2) joint tenancy; and (3) tenancy by the entirety.
What is tenancy in common?
Tenancy in common is the default concurrent interest, and owners have separate but undivided interests in the property. There is no right to survivorship
What is joint tenancy?
Joint tenancy is defined by right to survivorship.
What are the four unities of joint tenancy? (PITT)
The four unities of joint tenancy are (1) possession; (2) interest; (3) time; and (4) title.
What happens with severance in joint tenancy?
When there is severance in joint tenancy, it is destroyed and becomes a tenancy in common.
Do mortgages to a joint tenancy sever the joint tenancy?
Majority: a mortgage is treated as a lien and does not destroy the joint tenancy; Minority: mortgage severs title and therefore the joint tenancy which then becomes a tenancy in common.
What is tenancy in the entirety?
Tenancy in the entirety is joint tenancy between married people. Has a right of survivorship.
What is the general rule for use for concurrent owners?
The general rule for use for concurrent owners is that each co-tenant has right to possess all of the property.
What is ouster?
Ouster is when another co-tenant denies another co-tenant access to the property.
What can be done about ouster?
When ouster occurs a co-tenant can (1) get an injunction; or (2) recover damages for the value of use lost while the co-tenant was ousted.
How are rents distributed to concurrent owners?
Rent is distributed to concurrent owners minus the operating the expenses and divided by ownership interest.
How are operating expenses divided?
Operating expenses are divided based on ownership interest, and a co-tenant can collect contribution.
Can a co-tenant receive contribution for necessary repairs or improvements?
A co-tenant cannot receive contribution for necessary repairs or improvements.
What is partition?
Partition is an equitable remedy available to all tenant in common or joint tenants, that divides the property into separate portions, or sells and distributes profits if portion is unfair or impractical.
What is the Fair Housing Act (FHA)?
The FHA prohibits discrimination in the sale, rental, and financing of dwellings. And also prohibits discriminatory preference advertising.
Who is covered under the FHA?
The FHA is primarily concerned with primary residential housing.
Who is not covered under the FHA?
The FHA does not cover (1) Single family homes that are sold without a broker; (2) Owner-occupied buildings with four or less living units; and (3) Religious organizations and private clubs.
Who is protected by the FHA?
The FHA protects (1) race; (2) color; (3) religion; (4) national origin; (5) sex; (6) disability; and (7) familial status.
Are there special exemptions under the FHA?
Under the FHA, there is a special exemption for senior living.
What is prohibited under the FHA?
Under the FHA it is prohibited to (1) refuse to rent, sell or finance a dwelling; (2) require difference rents; (3) falsely denying a unit is available; (4) providing different services to facilities; and (5) falsely denying a unit is available.
What does a lease create?
A lease creates both a contract interest and a property interest.
What are the four types of tenancies?
The four types of tenancies are (1) tenancy for years; (2) periodic tenancy; (3) tenancy at will; and (4) tenancy at sufferance.
What is a tenancy for years?
A tenancy for years is measured by a fixed and ascertainable amount of time.
How is a tenancy for years created?
A tenancy for years is created through an agreement by the landlord and the tenant.
How is a tenancy for years terminated?
A tenancy for years is terminated automatically upon the expiration of the term, and no notice is required unless the lease requires it.
Can a tenancy for years be terminated before the term is over?
A tenancy for years can be terminated before the term is over if (1) the tenant surrenders the lease; or (2) the tenant or the landlord commits a material breach of the lease.
What is a periodic tenancy?
A periodic tenancy is an estate that is repetitive and ongoing for a set period of time.
How is a periodic tenancy created?
A periodic tenancy is created through intent that can be explicit or implied.
How is a periodic tenancy terminated?
A periodic tenancy automatically renews until you give notice that is at least 6 months (old approach) or 1 month (new approach).
What is a tenancy at will?
A tenancy at will may be a by either landlord or tenant at any time, for any reason.
How may tenancy at will be created?
A tenancy at will can be created by express agreement or by implication.
How can a tenancy at will be terminated?
A tenancy at will may be terminated by either landlord or tenant at any time, for any reason.
What is a tenancy at sufferance?
A tenancy at sufferance is created when a tenant holds over after the lease has ended.
How may a tenancy at sufferance be terminated.
A tenancy at sufferance may be terminated three ways; (1) tenant voluntarily leaves; (2) landlord evicts the tenant; or (3) landlord re-rents to the tenant.
What are a tenants basic duties?
A tenant’s basic duties are (1) pay rent; and (2) avoid waste.
What are the three situations when duty to pay rent is suspended?
The duty to pay rent is suspended when the (1) premises are destroyed and the tenant didn’t cause the damage; (2) landlord partially or completely evicts the tenant; or (3) landlord materially breaches the lease.
What is the implied covenant of quiet enjoyment?
The implied covenant of quiet enjoyment is when the landlord takes action that (1) makes the premises wholly or substantially unsuitable for their (2) intended purposes, and (3) the tenant is constructively evicted.
What can the tenant do when the landlord breaches the implied covenant of quiet enjoyment?
If the landlord breaches the implied covenant of quiet enjoyment the tenant can withhold rent.
What are the four elements of constructive eviction?
The four elements of constructive eviction are (1) premises were unusable for their intended purposes; (2) the tenant notifies the landlord of the problem; (3) the landlord doesn’t correct the problem; and (4) the tenant vacates the premises after a reasonable amount of time has passed..
What is the implied warranty of habitability?
The implied warranty of habitability is the landlord’s obligation to maintain property such that it is suitable for residential use - Tenant’s health and safety. DOESN’T NEED TO MOVE OUT.
What may the tenant do if the implied warranty of habitability is breached?
If the implied warranty of habitability is breached the tenant may (1) refuse to pay rent but he must notify the landlord and give him time to remedy; (2) remedy the defect and offset costs against the rent; or (3) defend against eviction.
what is the duty to repair?
The duty to repair states that the landlord is responsible for repairs and the tenant must notify of any needed repairs.
What is the majority rule for the duty to mitigate damages?
The majority rule for the duty to mitigate damages states the landlord must make reasonable efforts to re-rent a room, otherwise tenant is relieved of obligations to pay.
What is the minority rule for the duty to mitigate damages?
The minority for for the duty to mitigate damages states the landlord does not have to mitigate damages - Commercial leases.
What is the duty to deliver?
The duty to deliver - Majority: landlord must deliver actual possession. Minority: landlord must deliver legal possession.
What is the landlord’s duty of care?
The landlord’s duty of care is for (1) latent defects that the tenant hasn’t been warned about; (2) faulty repairs completed by the landlord; and (3) negligence that caused injury in common areas.
What does a land sale contract require?
A land sale contracts require (1) writing; (2) signed by the party to be charged; and (3) include essential terms.
What is marketable title?
Marketable title is title that is free from unreasonable risk of litigation.
What is a remedy for unmarketable title?
The remedy for unmarketable title is recession of the contract by the buyer.
What is the majority rule for risk of loss?
The majority rule for risk of loss is that the buyer holds equitable title during the period between the execution of the contract and the delivery of the deed - bears all risk of loss.
What are the four elements of adverse possession?
The four elements of adverse possession are (1) continuous; (2) open and notorious; (3) hostile; and (4) exclusive.
What is open and notorious?
Open and notorious requires the true owner be put on notice of the adverse use.
What is hostile?
Hostile is competing claims of title.Majority rule ignores the adverse possessor’s state of mind.
What is a deed?
A deed is a legal instrument that transfers ownership of real property.
What makes a deed valid?
A deed is valid when it is delivered and accepted.
What are the required contents of a deed?
A deed must contain (1) identify the parties; (2) include words of transfer; and (3) include sufficient description of property. Only the grantor is required to sign.
What are covered under recording acts?
Recording acts cover (1) deeds; (2) mortgages; (3) leases; (4) options; (5) judgments affecting title; and (6) easements/covenants.
What are not covered by recording acts?
Recording acts do not cover gifts, intestacy, or devise.
What is a race statute?
A race statute states that the first to record wins, even if the subsequent purchaser had notice of a prior unrecorded conveyance.
What is a notice statute?
A notice statute states that a subsequent purchaser wins if she acquires without notice of a prior unrecorded conveyance.
What is a race-notice statute?
A race-notice statute states that a subsequent purchaser wins if (1) acquired without notice of a prior unrecorded conveyance; and (1) records first.
What are the three kinds of deeds?
The three kinds of deeds are (1) general warranty deeds; (2) special warranty deeds; and (3) quitclaim deeds.
What is a general warranty deed?
A general warranty deed states the grantor warrants title against all defects, even if the grantor did not cause the defects.
What is a special warranty deed?
A special warranty deed states the grantor warrants against defects only caused by the grantor.
What is a quitclaim deed?
A quitclaim deed states the grantor makes no warranties as to the health of the title.
What is a mortgage?
A mortgage is a security device used to secure payment of a debt.
What is a purchase money mortgage?
A purchase money mortgage is when a person takes out a loan for the purpose of purchasing property.
What is a future advance mortgage?
A future advance mortgage is a line of credit.
What is a deed of trust?
A deed of trust operates like a mortgage but uses a trustee to hold title for the benefit of the lender.
What is an installment land contract?
An installment land contract is when the seller finances the purchase and retains title until the buyer makes the final payment on an installment plan.
What is an absolute deed?
An absolute deed is when the borrower transfers the deed to the property instead of conveying a security interest in exchange for the loan. Need clear and convincing evidence to prove.
May a mortgagor (borrower) transfer property?
A mortgagor may transfer property but remains personally liable after the transfer.
What is an acceleration clause?
An acceleration clause allows a lender to speed up payment of a mortgage when the property is transferred.
What happens when a subsequent transferee assumes a mortgage?
When a subsequent transferee assumes a mortgage he and the mortgagor are both personally liable.
What happens when a subsequent transferee takes “subject to” a mortgage?
When a subsequent transferee takes “subject to” a mortgage he is not personally liable.
What is a lien theory state?
A lien theory state prohibits the lender from taking possession prior to foreclosure because the lender has a lien until foreclosure is complete.
What is a title theory state?
A title theory state allows the lender, as the holder of title, to possess the property at any time.
What is an intermediate title theory state
An intermediate title theory state allows the borrower to retain title until default, at which point the lender can take possession.
What is equity of redemption
Equity of redemption is a common law right held by the borrower to reclaim title and prevent foreclosure upon the full payment of the debt.
What is clogging?
Clogging is creating terms that make it harder for a borrower to exercise her right of redemption.
What is foreclosure?
Foreclosure is the forced sale of an asset to pay off a debt.
What are the two foreclosure methods?
The two foreclosure methods are (1) judicial sale; and (2) power of sale.
What is a deficiency judgment?
A deficiency judgment requires the borrower to pay the difference in price of the sale from the remaining balance.
What are senior interests?
Senior interests are acquired before the interest that is being foreclosed. They survive the foreclosure.
What are junior interests?
Junior interests are acquired after the interest that is being foreclosed. They are extinguished by the foreclosure.
What is the first in time rule?
The first int time rule states that surviving debts are satisfied chronologically.
What is the purchase-money mortgage exception?
The purchase-money mortgage exception has priority over mortgages and liens created by or against the purchaser prior to the purchaser’s acquisition of the property.
What is the recording act exception?
The recording act exception allows a junior mortgage that satisfies the requirements of the state recording act to take priority over the unrecorded senior mortgage.
What is a subordination agreement?
A subordination agreement allows a senior mortgagee to agree to subordinate its interest to a junior interest.
How do mortgage modifications work?
A mortgage modification becomes subordinate to the original superior mortgage.
What is statutory redemption?
Statutory redemption allows the borrower to redeem the property even after the foreclosure sale.
What is an easement?
An easement is a right held by one person to make use of another person’s land.
What is a servient estate?
A Servient estate is the land burdened by the easement.
What is a dominant estate?
A dominant estate is the land benefited by the easement.
What is an affirmative easement?
An affirmative easement states the holder has the right to do something on someone else’s property.
What is a negative easement?
A negative easement states the holder has the right to prevent someone from doing something on her land.
What is an easement appurtenant?
An easement appurtenant is an easement that is tied to the use of the land.
What is an easement in gross?
An easement in gross benefits the holder personally.
What is an express easement?
An express easement is subject to the statute of frauds and must be in writing.
What is an implied easement?
An implied easement is informal and not subject to the statute of frauds.
What are the four kinds of implied easements?
The four kinds of implied easements are (1) by necessity; (2) by implication; (3) by prescription; and (4) by estoppel.
What is an easement by necessity?
An easement by necessity if when the property is virtually useless.
What is an easement by implication (Prior use)?
An easement by implication is created by an existing use on a property.
What are the conditions of an easement by implication?
The conditions of an easement by implication are (1) common ownership; (2) before severance; (3) continuous after severance; and (4) necessity.
What is an easement by prescription?
An easement by prescription is like an easement by adverse possession.
What is an easement by estoppel?
An easement by estoppel starts with a permissive use that is reed upon by the second neighbor.
What happens when ambiguous terms are in an express easement?
When ambiguous terms are in an express easement, the court considers the intent of the original parties.
How is the scope of implied easements determined?
The scope of implied easements are determined by the scope of the prior use or necessity.
How may an easement be terminated?
An easement may be terminated expressly and in writing.
What is a real covenant?
A real covenant is a promise concerning the use oof the land that runs to successors to the promise.
What are the five requirements for a real covenant to run?
The five requirements for a real covenant to run are (1) writing; (2) intent; (3) touch and concern; (4) notice; and (5) privity.
What is required for a benefit to run?
The requirements for a benefit to run are (1) writing; (2) intent; (3) touch and concern; (4) notice; and (5) vertical privity.
What is required for a burden to run?
The requirements for a burden to run are (1) writing; (2) intent; (3) touch and concern; (4) notice; and (5) vertical and horizontal privity.
What are the remedies for the breach of a real covenant?
The remedies for a breach of a real covenant are damages.
What are the requirements for an equitable servitude?
The requirements for an equitable servitude are (1) writing; (2) intent; (3) touch and concern; and (4) notice.
What is an implied reciprocal servitude?
An implied reciprocal servitude is an equitable servitude that doesn’t need to be in writing.
What are the requirements of an implied reciprocal servitude?
The requirements of an implied reciprocal servitude are (1) developer’s intonation to create a covenant; (2) reciprocity; (3) negative rather than positive; (4) notice; and (5) common plan or scheme.
How may equitable servitudes be changed?
Equitable servitudes may be changed where the restriction no longer makes sense due to drastic changes.
What is allowed in every zone under cumulative zoning?
Under cumulative zoning residential uses are permitted everywhere.
