Property: Terms Flashcards
fee simple absolute
The maximum possible estate or right of ownership of real property, continuing forever.
defeasible fees
fee simple that is not absolute
1. fee simple determinable
2. fee simple subject to condition subsequent
3. fee simple subject to executory interest
fee simple determinable
ownership limited by specific durational language (“so long as,” “while,” “during,” “until”)
associated future interest: possibility of reverter
fee simple subject to condition subsequent
ownership limited by specific conditional language (“but if,” “provided that,” “on the condition that”)
associated future interest: right of entry
fee simple subject to executory interest
interest that will end upon the happening of an event + the future interest will vest in a third party
executory interest
future interest that cuts short (“divests”) an earlier interest and vests in someone other than the grantor
possibility of reverter
future interest held by the grantor following a fee simple determinable; vests automatically
right of entry
future interest held by the grantor following a fee simple subject to condition subsequent; must be reclaimed
grantor
the individual who conveys the ownership rights of real property
life estate
an interest in property that is limited in duration to the lifetime of a designated person
life tenant
the holder of a life estate
reversion
interest of grantor in life estate that returns to grantor on death of life tenant
affirmative waste
waste caused by voluntary conduct that decreases value
permissive waste
waste caused by inaction that decreases value
ameliorative waste
waste that increases the value of the property
remainder
interest in life estate that goes to someone other than grantor (the transferee) on death of life tenant
vested remainder
a future interest following a life estate that is created in an ascertained person and is not subject to any condition precedent
contingent remainder
Future interest following a life estate that either has unascertainable grantees or is subject to a condition precedent
vested remainder subject to open
a remainder that is gifted to a class whose members are not all known and in which at least one member has vested; becomes closed when all class members are identified or, by the Rule of Convenience, when any class member becomes entitled to immediate possession
Rule of Convenience
an interpretative rule; a class-closing mechanism to avoid application of Rule Against Perpetuities to a class gift; if the grant does not have an express closing date, the Rule of Convenience closes the class when any member of the class becomes entitled to immediate possession
Doctrine of Worthier Title
invalidates a remainder in the grantor’s heir and replaces it with a reversion to the grantor
Rule in Shelley’s Case
replaces a remainder in the grantee’s heirs with a fee simple in the grantee
springing executory interest
future interest that cuts short the grantor’s interest (divests the grantor)
shifting executory interest
future interest that cuts short a prior grantee’s interest (divests a prior grantee)
inter vivos transfer
a transfer of property occurring during the life of the property owner
Rule Against Perpetuities
requirement that an interest will either vest or fail within the lifetime + 21 years of the validating life
Three interests RAP applies to
- contingent remainders
- vested remainders subject to open
- executory interests
relevant life
a person who affects vesting
validating life
a person alive at the time of interest creation whose existence proves that the interest is good; if no validating life, then RAP violation
Ask: Will we know 21 years after this person dies if the interest has vested or not?
Class Gift Rule
“all or nothing” rule; if a transfer of a future interest is made to a class and RAP voids a transfer as to any member, the transfer is void as to all members, even a vested member
Two exceptions to Class Gift Rule
- Transfer of a specific dollar amount to each class member
- Transfers to a subclass that vests at a specific time
Two exceptions to RAP
- Transfer of property from charity to charity
- Option for a current tenant to purchase a fee interest in leasehold property; option or ROFR in commercial transaction
cy pres
equitable doctrine that allows a court to reform a transfer to avoid RAP
concurrent ownership
ownership or possession by two or more people simultaneously
tenancy in common
concurrent ownership in which owners share equal and undivided shares in the property with no right to survivorship; each owner has right to possess the whole of the property; the default
survivorship
surviving owner(s) automatically receives ownership of the deceased person’s share; takes precedence over a will
joint tenancy
concurrent ownership in which every joint tenant has the four unities and enjoy rights of survivorship
four unities of joint tenancy
- Possession: equal right to possess the whole
- Interest: equal shares
- Time: at the same time
- Title: same instrument of title
severance of joint tenancy
if one of the four unities is lost; reverts to tenancy in common
Three common ways to sever joint tenancy
- Inter vivos transfer
- Mortgages in a title state
- Leasing one owner’s share
tenancy by the entirety
form of joint tenancy ownership for husband and wife; marriage is a fifth unity; tenant cannot alienate their share without consent of the other
ouster
co-tenant in possession denies other tenant access to the property
partition
equitable remedy for joint tenancy or tenancy in common to divide the property into distinct portions
physical partition (partition in kind)
when property is divided physically into separate shares
partition by sale
when property is sold and proceeds are split among concurrent owners according to their ownership interests; less preferred but will occur if physical partition is not practical or not fair
law of the situs
conflict of laws rule stating that the controlling law is that of where the property is located
tenancy for years
measured by a fixed and ascertainable amount of time
how to create tenancy for years
through agreement of landlord and tenant
how to terminate tenancy for years
- automatically at expiration of the term
- tenant surrenders lease
- tenant or landlord materially breach
periodic tenancy
estate that is repetitive and ongoing for a set period of time (e.g., month-to-month) and renews automatically at the end of each period
how to create periodic tenancy
expressly or impliedly by conduct
how to terminate periodic tenancy
terminating party gives NOTICE before the start of the last term; notice is effective on the last day of the next period
tenancy at will
terminable by landlord or tenant at any time, for any reason
how to create tenancy at will
expressly or impliedly
how to terminate tenancy at will
either party terminates without notice or dies
tenancy at sufferance
temporary tenancy when a tenant holds over after the lease has legally ended
how to create tenancy at sufferance
by the actions of the tenant alone
how to terminate tenancy at sufferance
- tenant leaves
- landlord evicts tenant
- landlord re-rents to tenant
tenant’s two duties
- pay rent
- avoid waste
three situations when tenant’s duty to pay is suspended
- property is destroyed
- landlord completely or partially evicts
- landlord materially breaches the lease
complete eviction
removal of tenant from the entire property
partial eviction
removal of tenant from a portion of the property
constructive eviction
- premises are unusable for intended purpose
- tenant notifies landlord
- landlord doesn’t fix
- after a reasonable amount of time, tenant vacates premises
two main material breaches that allow tenant to withhold rent
- breach of the implied covenant of quiet enjoyment
- breach of the implied warrant of habitability
implied covenant of quiet enjoyment
promise by the landlord or anyone connected with him not to render the premises unsuitable for its intended purpose; control extends to common areas and nuisance-like behavior of other tenants; applies to residential and commercial properties
how to breach implied covenant of quiet enjoyment
landlord takes actions that render premises wholly or substantially unsuitable for their intended purpose and the tenant is constructively evicted
implied warranty of habitability
landlord’s obligation to maintain the property to be suitable for residential use; unwaivable by tenant; applies only to residential leases
how to breach implied warranty of habitability
threaten the tenant’s health and safety; common evidence is violations of housing codes
tenant’s duty to avoid waste
duty not to commit affirmative waste or permissive waste; ameliorative waste requires landlord’s permission
landlord’s duty to mitigate damages (majority rule)
landlord must make reasonable efforts to re-rent property if tenant leaves early or is evicted; if not, tenant is entirely relieved from continuing to pay rent
three common law tort liabilities of landlord to invitees, licensees, and trespassers
- latent defects that landlord didn’t warn tenant of
- faulty repairs negligently completed by landlord or his agent
- injuries in common areas of property
assignment
complete transfer of the tenant’s remaining term; landlord collects from either original (privity of contract) or subsequent tenant (privity of estate)
sublease
transfer for less than the entire duration of the lease; landlord collects from only original tenant (privity of contract and estate)
doctrine of merger
covenants under the contract are merged into the deed and any remedy will flow from the deed
two main land sale exceptions to SOF
- partial performance
- detrimental reliance
three ways of partial performance of a land sale not in writing (an SOF exception)
- payment
- possession
- improvements
marketable title
title that is free from an unreasonable risk of litigation, judged by the reasonable buyer
three examples of unmarketable defects in title
- title acquired by adverse possession that hasn’t been quieted
- private encumbrances (mortgage, covenant, easement)
- violation of zoning ordinances
remedy for unmarketable title
buyer’s recission of the contract
default rule as to delay of land sale
time is not of the essence; delay in closing is breach but not grounds for recission
implied warranty of fitness or suitability
requires no defects in new construction; majority rule allows both initial homeowner and subsequent purchases to recover damages
duty to disclose defects
seller’s duty to disclose to the buyer all known, physical, and material defects
material defect
a defect that substantially affects the desirability of the home, the value of the home, or the health and safety of its occupants
equitable conversion
doctrine under which the buyer is responsible for damage in the period between contract execution and closing; buyer holds equitable title and seller still has right to possess
adverse possession
Actual
Notorious
Open
Continuous (consistent) for statute of limitations period
Hostile (competing title)
Exclusive
open and notorious
use that would put a reasonable true owner on notice of the adverse use; not hidden; use as if being the true owner
deed
legal instrument which allows grantor to transfer real property to grantee
delivery of a deed
happens as soon as grantor has present intent; doesn’t require physical delivery
acceptance of a deed
presumed
recording
public registration of one’s deed to provide notice to the world of your ownership and protect subsequent purchasers
common law recording rule
first in time, first in right
three titles not protected by recording acts
- gifts
- title by intestate succession
- title by devise
actual notice
real, personal knowledge
constructive notice
notice provided by recording the interest
inquiry notice
a reasonable investigation would have disclosed the existence of prior claims
two common situations of inquiry notice
- dude on the land
- mentioned interest (in a deed)
race statute
statute under which the first party to record the deed holds the title
notice statute
statute under which the last good faith or bona fide purchaser holds the title
race-notice statute
the first to record after taking an interest in the land without notice of another’s interest has top priority to the land
general warranty deed
deed in which the grantor warrants the title against any and all defects, regardless of whether grantor caused them
six implied covenants in the general warranty deed
- covenant of seisin
- covenant of the right to convey
- covenant against encumbrances
- covenant of quiet enjoyment
- covenant of warranty
- covenant of further assurances
covenant of seisin
warrants that the deed describes the land in question
covenant of the right to convey
warrants that the grantor has the right to convey the property
covenant against encumbrances
warrants that there are no undisclosed encumbrances on the property that could limit its value
covenant of warranty
grantor promises to defend against future claims of title by a third party
covenant of further assurances
grantor promises to fix future title problems
special warranty deed
deed in which grantor warrants only against defects caused by the grantor; same six implied covenants as general warranty
quitclaim deed
deed in which grantor makes no warranties as to the health of the title
heir
person who takes a will-less decedent’s estate through intestate succession
devisee
person who takes a devise by will
escheat
forfeiture of a decedent’s property to the state if the decedent has no will and no heirs
ademption
a failed devise of property because it is no longer in testator’s estate at his death; results in the intended recipient receiving nothing
lapse
intended recipient pre-deceases the testator; the gift fails and goes into the residuary gift
anti-lapse statute
statute that provides for substitute beneficiaries—the intended recipient’s family—to prevent a lapsed gift.
trust
device to manage property with bifurcated ownership, in which the trustee owns legal title and manages the property and the beneficiary owns equitable title and receives the benefits from the trust without any obligations
res
property subject to the trust
mortgage
a security device used to secure payment of a debt
note
borrower’s promise to repay the debt in a mortgage
mortgagor
borrower
mortgagee
lender
lien state vs. title state: mortgage and tenancy
LIEN STATE (majority rule): treats a mortgage as a lien that doesn’t sever a joint tenancy
TITLE STATE (minority rule): mortgage severs joint tenancy and converts it to a tenancy in common
future advances mortgage
mortgage in exchange for right to future payment from lender; if obligatory, has priority over any subsequent mortgage; if optional, has priority as to payments made prior to notice of subsequent mortgage; majority rule: notice must be actual
installment land contract
a mortgage alternative in which the seller retains title to the property until the buyer makes the final payment on an installment plan
absolute deed
a mortgage alternative in which the mortgagor transfers the deed to the property instead of conveying a security interest in exchange for the loan
liability after transfer of a mortgage
mortgagor is still personally liable for debt
subsequent transferee “assumes” mortgage
subsequent transferee is personally liable for the mortgage (in addition to mortgagor)
subsequent transferee takes “subject to” the mortgage
subsequent transferee is not personally liable upon default
foreclosure
forced sale of an asset to pay off a debt; requires notice to the mortgagor; eliminates mortgagor’s interest in property
lien state vs. title state: pre-foreclosure rights
LIEN STATE: mortgagee cannot take possession after default prior to foreclosure because mortgagor has lien until foreclosure is complete
TITLE STATE: mortgagee has right to possess property at any time
INTERMEDIATE TITLE THEORY STATE (minority): mortgagor retains title until default, at whihc point the mortgagee can take possession
equity of redemption
common law mortgagor right to reclaim title and prevent foreclosure upon full payment of the debt BEFORE foreclosure sale
statutory redemption
statute that allows mortgagor to redeem the property and nullify the foreclosure even after foreclosure sale
senior interest
interest acquired before the interest that is being foreclosed; survives foreclosure
junior interest
interest acquired after the interest that is being foreclosed; extinguished by foreclosure
first in time rule
debts surviving foreclosure are satisfied chronologically
purchase-money mortgage exception
exception to first in time rule that permits the interest in the loan to buy real property be paid off first
recording act exception
exception to first in time rule that permits recorded junior interests to trump non-recorded senior interests
affirmative easement
allows the holder to perform an act on the servient estate
negative easement
allows the holder to prevent the servient owner from performing an act on the servient estate; must be express
easement appurtenant
easement tied to the use of the land
easement in gross
easement that benefits the holder personally
implied easement by necessity
easement created when property is virtually useless without it; requires common ownership of both estates and then the estates are severed so one becomes landlocked
implied easement by implication
easement created by existing use on a property; requires (1) common ownership; (2) use before severance; (3) continuous and apparent use after severance; (4) reasonably necessary use
implied easement by prescription
easement by adverse possession
implied easement by estoppel
easement created by a license; requires (1) a permissive use (2) upon which the user relies and (3) the permission is then withdrawn
seven ways to terminate an easement
- release in writing
- merger into title to land
- abandonment by easement owner
- prescription (interference with use for statutory period)
- sale to a purchaser
- estoppel (reliance on abandonment)
- end of necessity
profit
right to enter someone’s land and remove a specific natural resource
license
revocable permission to use another’s land
five requirements for a burden to run with the land
- in writing
- intent
- touch and concern
- notice
- horizontal privity and strict vertical privity
four requirements for a benefit to run with the land
- in writing
- intent
- touch and concern
- relaxed vertical privity
horizontal privity
privity of estate between the original parties to the promise; estate and covenant contained in the same instrument (e.g., deed)
strict vertical privity
successor takes original party’s entire interest
relaxed vertical privity
successor takes a carve-out of the original party’s interest
equitable servitude
alternative to covenant; requires writing, intent, touch and concern, and notice, but NOT privity; generally offers injunctive relief
fixture
personal property that
- is attached to real property with the intent that it remain attached AND
- used for some larger component or function
