Property MBE Flashcards
Fee Simple Absolute
absolute ownership of infinite duration: To A, To A and his heirs
Defeasible Fee
potentially infinite duration, subject to termination by occurrence of event;
FS determinable: For so long as, while, during, until
FS subject to condition subsequent: upon the condition that, but if, if it happens that
FS subject to executory interest: To A, but if X event occurs, then to B
Life Estate
fully transferable during measuring life: to A for life; to B after the life of A; to B for the life of C
Life tenant’s rights and duties
Right to possess
Right to collect rents/profits, lease/sell/mortgage
Duty not to commit waste
Waste
Limits any estate except fee simple
Affirmative: overt conduct causing decrease in property value, can’t consume/exploit natural resources unless prior use; must make reasonable repairs
Permissive: Land falls into disrepair or LT fails to reasonable protect/preserve land; must maintain premises in reasonably good repair and pay all ordinary taxes/profits/FRV
Ameliorative: must no enhance property’s value unless all the FI holder are known and consent
Tenancy in Common
Two or more grantees w/ unity of possession
No right of survivorship
undivided interest w/ unrestricted right to possess whole
interest freely devisable/transferrable
Joint Tenancy
Express language creating JT
2 or more tenants own with ROS
interest is alienable, but not devisable/descendible
Four unities: TTIP: time, title, possession (equal), interests (equal)
Severance:
Sale (don’t need consents, severs JT)
Partition: voluntary agreement, judicial action, forced sale
Mortgage: severs JT, under title theory, not lien theory
Tenancy by the entirety
JT w/ ROS
must be married
protected from creditors of only one spouse
neither can unilaterally defeat ROS by conveyance to 3rd party
Rights and Obligations of Co-tenants
Co-T in exclusive possession not liable for rent/profits unless ouster
Can collect for operating expenses
no contribution of reasonable repairs/improvements (unless accounting/partition)
Liable for 3rd party rent
Future Interests
gives holder a present, legally protected right or possibility of future possession of state
Reversion (FI)
Arises in grantor who transfers estate less than he owns other than FSD or FSSCS (usually LE or estate for years), not subject to RAP
Possibility of Reverter (FI)
Automatically reverts to grantor upon occurrence of stated event when FSD conveyed
Right of Reentry (FI)
Held by grantor after FSSCS granted
Vested (not subject to any conditions precedent and created by ascertainable grantee)
Subject to Open: a least one member in class qualified to take possession, so each class member’s share subject to partial diminution b/c additional takers not yet ascertained can still vest, rule of convenience closes class when any member entitled to immediate possession
Subject to complete: occurrence of condition subsequent completely divests remainder
Contingent
Unascertainable grantee or if subject to express condition precedent to grantee’s taking (b/c of unknown beneficiary or known beneficiary subject to condition precedent not yet occurred
Executory interest
FI in 3rd party, not a remainder and cuts prior estate short upon occurrence of specified condition, transferable and subject to RAP
Shifting - cuts short prior to estate created in same conveyance, so estate shifts from one grantee to another upon happening of the condition
Springing - divests interest of grantor of fills gap in possession so estate reverts to grantor
Transferability (FI)
Remainders/executory interests transferrable inter vivos and devisable/descendible
Rule against Perpetuities
At the creation of interest, FI must vest or fail by the end of a life in being, plus 21 years
Tenancy for Years
Fixed period of time
created by express agreement
term >1 year must be in writing to satisfy SOF
no notice b/c termination fixed
Periodic tenancy
Repetitive, ongoing estate by set periods of time
automatically renews @ end of each period unless valid termination notice
SOF not required
created by express agreement, implication (no mention of duration) or operation of law (hold-over tenant)
Tenancy at Will
No fixed period of time
parties must expressly agree or regular rent payment will imply periodic tenancy
may be terminated by either party at any time, but reasonable demand to vacate usually required
Tenancy at sufferance
T wrongfully holds over past expiration of lease
Wrongdoer is given tenancy to permit L to recover rent
Tenancy lasts until L evicts T or elects to hold T to periodic tenancy
Tenant duties
Duty to pay rent (unless premises destroyed or material breach by landlord)
Avoid waste: ameliorative waste OK if reasonably necessary for T to use property in reasonable manner, but must avoid permissive waste by repair except for normal wear/tear
Repair: Non-residential leases, contractually liable for all damage to property unless caused by L
Remedies: sue for damages, and eviction for failure to pay rent; retake premises if T abandons but duty to mitigate damages by re-renting premises; can accept holdover tenant as periodic tenant/tenant at sufferance OR sue after notice to vacate
Landlord Duties
Must deliver actual possession or no obligation for T to pay rent
Except for T damages, L must repair for residential, but not commercial leases
Landlord Duties
Warranty of Habitability
Warranty of Habitability; premises must be fit for basic human habitation and if breached: T can refuse to pay rent, make reasonable repairs and deduct cost from future rent, or remain in possession, pay rent and seek damages
Landlord Duties
Covenant of quiet enjoyment
Covenant of quiet enjoyment: T has the right to quiet use and enjoyment of the premises w/o interference from L
L has duty to control other tenants’ nuisance in common areas
No retaliatory eviction for reporting housing code violations
Landlord Duties
Eviction
Actual: L wrongfully evicts/excludes T from premises
Partial: T excused from paying rent for L’s partial eviction, but must pay reasonable rental value if partial eviction by 3rd party w/ superior claim, not excused for adverse possessor/trespasser
Constructive: substantial interference caused by L’s actions or failure to act, T must give notice of problem, L fails to respond, and T must vacate premises w/in reasonable time after L fails to fix problem
Tenant tort liabilities
Duty to care to invitees, licensees, foreseeable trespassers and may be liable for dangerous conditions/activities
Landlord tort liabilities
Liable for injuries in common/public spaces under L’s control, or from hidden defect/faulty repair, or general duty of reasonable care
Assignment
complete transfer of T’s remaining lease term
Sublease
any transfer for less than entire duration of lease
Parties - Assignee Tenant
Assignee: T liable to L for rent/covenants running with lease b/c in privity of estate with L
If assignee: T reassigns lease, his privity of estate with L ends and subsequent T not in privity of estate with L
Parties: Sublease tenant
Not liable for rent/covenants in lease to L b/c not P/E or privity of contract with L, but still liable to original lessee
If sub-T expressly assumes covenants, then personally liable to L
Sub-T can enforce all covenants of original lessee in sublease, but not any made by L
Parties: original tenant
Liable for lease covenants unless novation by L b/c still in P/C w/L
P/E with L ends upon assignment
Adverse Possession
Continuous/uninterrupted (through statutory period - 20 yrs at CL; seasonal use OK if consistent w/ type of property; tacking OK, but no gaps and via nonhostile connections only) Actual possession Hostile possession (w/o owners permission) Exclusive (not shared w/ true owner)
Statue of Frauds (Land Sale K)
Formalities: Land K must be in writing, signed by party to be charged, and contain all essential elements (parties, property description, terms of price/payment)
Part Performance (exception): buyer takes possession of land, buyer remits all or part of purchase price, and/or buyer makes substantial improvements
Detrimental reliance: specific performance (SP) permitted if party seeking enforcement reasonably relied on K & would suffer hardship
Marketable Title
Title free from defects or unreasonable risk of litigation
Buyer can rescind/recover payments, sue for breach, or sue for SP w/ abatement of purchase price
Time of essence
not enforced unless part of K (express/implied), but party failing to perform on closing date is in breach
Implied warrant of fitness
only for new homes, and disclosure duty of known material physical defects not readily observable/known to buyer for all homes
Tender of performance
concurrent conditions, so if one party repudiates then non-repudiating party excused, but B must give S sufficient time to cure title defect
Merger
Land sale K obligations merge into deed upon delivery unless obligations collateral to/independent of conveyance
Breach Remedies
Damages: difference between K price and market value (limited to B’s out of pocket expenses if S breached in good faith)
Specific performance
Equitable Conversion
S’s interest converted by K into interest in proceeds of sale not RP, one K signed, B is owner of land subject to the condition he pay the purchase price at closing, but in interim b/t K and closing, B bear risk of loss if destroyed
Security interest
mortgage must be in writing
debtor/mortgagor has title and right to possess until foreclosure & creditor/mortgagee has lien and right to land if there is a default
lien stays on land if mortgage interest is properly recorded
creditor can foreclose by judicial proceedings which terminate junior interests (subordinate interest must be joined or remain on land and B takes subject to senior interest)
Deeds
Grantor must INTEND to make present trx of property interest (PHYSICAL TRANSFER - not required by creates presumption of grantor’s intent; RECORDING)
Intent may be implied by words/conduct of grantor
Parol evidence admissible to est. intent
transfer to grantee’s agent not delivery
transfer to 3rd party w/ a condition is not delivery if grantor keeps absolute right to recover deed, but if not, treated like future property interest
Valid deed requirements
Identified parties
grantor’s signature
words of transfer
reasonable definite property description
Recording Acts: Notice
BFP of prior interest prevails over prior grantee who failed to record
Must record against subsequent purchaser
Recording Acts: Race
First to record prevails, regardless of knowledge of prior conflicting interest
Recording Acts: Race-Notice
Subsequent BFP protected only if he takes w/o notice and is 1st to record
Notice
Actual: actual, personal knowledge of prior interest that cannot prevail under notice or race-notice statute
Inquiry: If reasonable investigation would disclose prior claims, grantee cannot prevail against them
Constructive: properly recorded and appears in chain of title
General warranty deed
Present covenants:
Seisin: grantor owns land as described in the deed
Right to convey: grantor has right to sell
Against encumbrances: no undeclared encumbrances against land
Future covenants:
Quiet enjoyment: not disturbed in possession by 3rd party claim
Warranty: grantor will defend grantee against lawful claims
Further assurances: grantor will do whatever future acts reasonably necessary to pass title if later determined title is imperfect
Special Warranty Deed
same covenants of title but only warrants against during time grantor has title
quitclaim deed
no covenants of title
Fixtures
Structures built on RP and items incorporated into structure become part of realty, but can be removed if
seller reserves rights to remove fixture upon sale K
leased property can be restored to former condition w/o damage in reasonable time
Easements - Express
Express: Affirmatively created by parties in writing - satisfies SOF
Easements - Implied - necessity
Implied: Necessity - created when property is useless w/o benefit of easement across adjacent property, dominant/servient estates must be under common ownership and necessity arise when estate served
Easements - Implied - implication
If easement previously used on servient estate, court implies intent for easement to continue if prior use was continuous, apparent, and reasonably necessary to dominant estate’s use/enjoyment
Easements - Prescription
continuous, actual, open and hostile for statutory period (20 yrs. at CL)
Easements - Estoppel
Good faith, reasonable, detrimental reliance thru permission by servient estate holder, issued to prevent unjust enrichment
Easements - Negative
Prevents owner from using land in specific ways, must be expressly created by writing signed by grantor, and usually only recognized for LIGHT/AIR/SUPPORT/STREAM WATER from artificial flow
Easement Appurtenant
benefit transferred automatically w/ servient estate
Easement in gross
benefits individual/legal entity, not RP, and usually commercial easements freely transferrable by 3rd party
Easement - Termination
Release - by writing
Merger- merges into title when owner of easement acquires underlying estate
Severance- severed by attempt to convey appurtenant easement separate from land in benefits
Abandonment- owner affirmatively acts to show clear intent to abandon right
Destruction/condemnation- prescription, estoppel and written easement - not recorded against servient estate against BFP
Profits
Entitles holder to enter servient land and take from it the soil or some substance of the soil such as mineral, timber or oil
Licenses
privilege to enter another’s land
freely revocable unless estoppel
does not need to satisfy SOF
invalid oral easements create revocable license
Covenants
Writing- comply with SOF
Intent - rights & duties to run with land thru explicit language or implied from totality of circumstances
Touch & Concern - benefit/burden must affect promisee/promisor as owners of land
Notice (burden only) - constructive or actual
Privity: Horizontal; (burden only) - when estate & covenant in same instrument,
vertical privity- covenant based on mutual successive interest in land burdened/benefited by covenant
Equitable Servitudes
Intent for restriction to be enforceable by successors-in-interest fro benefit/burden to run
Notice
Touch and concern
No privity required
Implied reciprocal servitute
Intent to create servitude on all plots (common scheme)
Negative servitude
notice
