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Property: Terms Flashcards

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1
Q

fee simple absolute

A

The maximum possible estate or right of ownership of real property, continuing forever.

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2
Q

defeasible fees

A

fee simple that is not absolute
1. fee simple determinable
2. fee simple subject to condition subsequent
3. fee simple subject to executory interest

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3
Q

fee simple determinable

A

ownership limited by specific durational language (“so long as,” “while,” “during,” “until”)
associated future interest: possibility of reverter

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4
Q

fee simple subject to condition subsequent

A

ownership limited by specific conditional language (“but if,” “provided that,” “on the condition that”)
associated future interest: right of entry

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5
Q

fee simple subject to executory interest

A

interest that will end upon the happening of an event + the future interest will vest in a third party

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6
Q

executory interest

A

future interest that cuts short (“divests”) an earlier interest and vests in someone other than the grantor

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7
Q

possibility of reverter

A

future interest held by the grantor following a fee simple determinable; vests automatically

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8
Q

right of entry

A

future interest held by the grantor following a fee simple subject to condition subsequent; must be reclaimed

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9
Q

grantor

A

the individual who conveys the ownership rights of real property

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10
Q

life estate

A

an interest in property that is limited in duration to the lifetime of a designated person

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11
Q

life tenant

A

the holder of a life estate

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12
Q

reversion

A

interest of grantor in life estate that returns to grantor on death of life tenant

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13
Q

affirmative waste

A

waste caused by voluntary conduct that decreases value

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14
Q

permissive waste

A

waste caused by inaction that decreases value

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15
Q

ameliorative waste

A

waste that increases the value of the property

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16
Q

remainder

A

interest in life estate that goes to someone other than grantor (the transferee) on death of life tenant

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17
Q

vested remainder

A

a future interest following a life estate that is created in an ascertained person and is not subject to any condition precedent

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18
Q

contingent remainder

A

Future interest following a life estate that either has unascertainable grantees or is subject to a condition precedent

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19
Q

vested remainder subject to open

A

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

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20
Q

Rule of Convenience

A

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

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21
Q

Doctrine of Worthier Title

A

invalidates a remainder in the grantor’s heir and replaces it with a reversion to the grantor

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22
Q

Rule in Shelley’s Case

A

replaces a remainder in the grantee’s heirs with a fee simple in the grantee

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23
Q

springing executory interest

A

future interest that cuts short the grantor’s interest (divests the grantor)

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24
Q

shifting executory interest

A

future interest that cuts short a prior grantee’s interest (divests a prior grantee)

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25
Q

inter vivos transfer

A

a transfer of property occurring during the life of the property owner

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26
Q

Rule Against Perpetuities

A

requirement that an interest will either vest or fail within the lifetime + 21 years of the validating life

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27
Q

Three interests RAP applies to

A
  1. contingent remainders
  2. vested remainders subject to open
  3. executory interests
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28
Q

relevant life

A

a person who affects vesting

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29
Q

validating life

A

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?

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30
Q

Class Gift Rule

A

“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

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31
Q

Two exceptions to Class Gift Rule

A
  1. Transfer of a specific dollar amount to each class member
  2. Transfers to a subclass that vests at a specific time
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32
Q

Two exceptions to RAP

A
  1. Transfer of property from charity to charity
  2. Option for a current tenant to purchase a fee interest in leasehold property; option or ROFR in commercial transaction
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33
Q

cy pres

A

equitable doctrine that allows a court to reform a transfer to avoid RAP

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34
Q

concurrent ownership

A

ownership or possession by two or more people simultaneously

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35
Q

tenancy in common

A

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

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36
Q

survivorship

A

surviving owner(s) automatically receives ownership of the deceased person’s share; takes precedence over a will

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37
Q

joint tenancy

A

concurrent ownership in which every joint tenant has the four unities and enjoy rights of survivorship

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38
Q

four unities of joint tenancy

A
  1. Possession: equal right to possess the whole
  2. Interest: equal shares
  3. Time: at the same time
  4. Title: same instrument of title
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39
Q

severance of joint tenancy

A

if one of the four unities is lost; reverts to tenancy in common

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40
Q

Three common ways to sever joint tenancy

A
  1. Inter vivos transfer
  2. Mortgages in a title state
  3. Leasing one owner’s share
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41
Q

tenancy by the entirety

A

form of joint tenancy ownership for husband and wife; marriage is a fifth unity; tenant cannot alienate their share without consent of the other

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42
Q

ouster

A

co-tenant in possession denies other tenant access to the property

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43
Q

partition

A

equitable remedy for joint tenancy or tenancy in common to divide the property into distinct portions

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44
Q

physical partition (partition in kind)

A

when property is divided physically into separate shares

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45
Q

partition by sale

A

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

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46
Q

law of the situs

A

conflict of laws rule stating that the controlling law is that of where the property is located

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47
Q

tenancy for years

A

measured by a fixed and ascertainable amount of time

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48
Q

how to create tenancy for years

A

through agreement of landlord and tenant

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49
Q

how to terminate tenancy for years

A
  1. automatically at expiration of the term
  2. tenant surrenders lease
  3. tenant or landlord materially breach
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50
Q

periodic tenancy

A

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

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51
Q

how to create periodic tenancy

A

expressly or impliedly by conduct

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52
Q

how to terminate periodic tenancy

A

terminating party gives NOTICE before the start of the last term; notice is effective on the last day of the next period

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53
Q

tenancy at will

A

terminable by landlord or tenant at any time, for any reason

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54
Q

how to create tenancy at will

A

expressly or impliedly

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55
Q

how to terminate tenancy at will

A

either party terminates without notice or dies

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56
Q

tenancy at sufferance

A

temporary tenancy when a tenant holds over after the lease has legally ended

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57
Q

how to create tenancy at sufferance

A

by the actions of the tenant alone

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58
Q

how to terminate tenancy at sufferance

A
  1. tenant leaves
  2. landlord evicts tenant
  3. landlord re-rents to tenant
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59
Q

tenant’s two duties

A
  1. pay rent
  2. avoid waste
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60
Q

three situations when tenant’s duty to pay is suspended

A
  1. property is destroyed
  2. landlord completely or partially evicts
  3. landlord materially breaches the lease
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61
Q

complete eviction

A

removal of tenant from the entire property

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62
Q

partial eviction

A

removal of tenant from a portion of the property

63
Q

constructive eviction

A
  1. premises are unusable for intended purpose
  2. tenant notifies landlord
  3. landlord doesn’t fix
  4. after a reasonable amount of time, tenant vacates premises
64
Q

two main material breaches that allow tenant to withhold rent

A
  1. breach of the implied covenant of quiet enjoyment
  2. breach of the implied warrant of habitability
65
Q

implied covenant of quiet enjoyment

A

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

66
Q

how to breach implied covenant of quiet enjoyment

A

landlord takes actions that render premises wholly or substantially unsuitable for their intended purpose and the tenant is constructively evicted

67
Q

implied warranty of habitability

A

landlord’s obligation to maintain the property to be suitable for residential use; unwaivable by tenant; applies only to residential leases

68
Q

how to breach implied warranty of habitability

A

threaten the tenant’s health and safety; common evidence is violations of housing codes

69
Q

tenant’s duty to avoid waste

A

duty not to commit affirmative waste or permissive waste; ameliorative waste requires landlord’s permission

70
Q

landlord’s duty to mitigate damages (majority rule)

A

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

71
Q

three common law tort liabilities of landlord to invitees, licensees, and trespassers

A
  1. latent defects that landlord didn’t warn tenant of
  2. faulty repairs negligently completed by landlord or his agent
  3. injuries in common areas of property
72
Q

assignment

A

complete transfer of the tenant’s remaining term; landlord collects from either original (privity of contract) or subsequent tenant (privity of estate)

73
Q

sublease

A

transfer for less than the entire duration of the lease; landlord collects from only original tenant (privity of contract and estate)

74
Q

doctrine of merger

A

covenants under the contract are merged into the deed and any remedy will flow from the deed

75
Q

two main land sale exceptions to SOF

A
  1. partial performance
  2. detrimental reliance
76
Q

three ways of partial performance of a land sale not in writing (an SOF exception)

A
  1. payment
  2. possession
  3. improvements
77
Q

marketable title

A

title that is free from an unreasonable risk of litigation, judged by the reasonable buyer

78
Q

three examples of unmarketable defects in title

A
  1. title acquired by adverse possession that hasn’t been quieted
  2. private encumbrances (mortgage, covenant, easement)
  3. violation of zoning ordinances
79
Q

remedy for unmarketable title

A

buyer’s recission of the contract

80
Q

default rule as to delay of land sale

A

time is not of the essence; delay in closing is breach but not grounds for recission

81
Q

implied warranty of fitness or suitability

A

requires no defects in new construction; majority rule allows both initial homeowner and subsequent purchases to recover damages

82
Q

duty to disclose defects

A

seller’s duty to disclose to the buyer all known, physical, and material defects

83
Q

material defect

A

a defect that substantially affects the desirability of the home, the value of the home, or the health and safety of its occupants

84
Q

equitable conversion

A

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

85
Q

adverse possession

A

Actual
Notorious
Open
Continuous (consistent) for statute of limitations period
Hostile (competing title)
Exclusive

86
Q

open and notorious

A

use that would put a reasonable true owner on notice of the adverse use; not hidden; use as if being the true owner

87
Q

deed

A

legal instrument which allows grantor to transfer real property to grantee

88
Q

delivery of a deed

A

happens as soon as grantor has present intent; doesn’t require physical delivery

89
Q

acceptance of a deed

A

presumed

90
Q

recording

A

public registration of one’s deed to provide notice to the world of your ownership and protect subsequent purchasers

91
Q

common law recording rule

A

first in time, first in right

92
Q

three titles not protected by recording acts

A
  1. gifts
  2. title by intestate succession
  3. title by devise
93
Q

actual notice

A

real, personal knowledge

94
Q

constructive notice

A

notice provided by recording the interest

95
Q

inquiry notice

A

a reasonable investigation would have disclosed the existence of prior claims

96
Q

two common situations of inquiry notice

A
  1. dude on the land
  2. mentioned interest (in a deed)
97
Q

race statute

A

statute under which the first party to record the deed holds the title

98
Q

notice statute

A

statute under which the last good faith or bona fide purchaser holds the title

99
Q

race-notice statute

A

the first to record after taking an interest in the land without notice of another’s interest has top priority to the land

100
Q

general warranty deed

A

deed in which the grantor warrants the title against any and all defects, regardless of whether grantor caused them

101
Q

six implied covenants in the general warranty deed

A
  1. covenant of seisin
  2. covenant of the right to convey
  3. covenant against encumbrances
  4. covenant of quiet enjoyment
  5. covenant of warranty
  6. covenant of further assurances
102
Q

covenant of seisin

A

warrants that the deed describes the land in question

103
Q

covenant of the right to convey

A

warrants that the grantor has the right to convey the property

104
Q

covenant against encumbrances

A

warrants that there are no undisclosed encumbrances on the property that could limit its value

105
Q

covenant of warranty

A

grantor promises to defend against future claims of title by a third party

106
Q

covenant of further assurances

A

grantor promises to fix future title problems

107
Q

special warranty deed

A

deed in which grantor warrants only against defects caused by the grantor; same six implied covenants as general warranty

108
Q

quitclaim deed

A

deed in which grantor makes no warranties as to the health of the title

109
Q

heir

A

person who takes a will-less decedent’s estate through intestate succession

110
Q

devisee

A

person who takes a devise by will

111
Q

escheat

A

forfeiture of a decedent’s property to the state if the decedent has no will and no heirs

112
Q

ademption

A

a failed devise of property because it is no longer in testator’s estate at his death; results in the intended recipient receiving nothing

113
Q

lapse

A

intended recipient pre-deceases the testator; the gift fails and goes into the residuary gift

114
Q

anti-lapse statute

A

statute that provides for substitute beneficiaries—the intended recipient’s family—to prevent a lapsed gift.

115
Q

trust

A

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

116
Q

res

A

property subject to the trust

117
Q

mortgage

A

a security device used to secure payment of a debt

118
Q

note

A

borrower’s promise to repay the debt in a mortgage

119
Q

mortgagor

A

borrower

120
Q

mortgagee

A

lender

121
Q

lien state vs. title state: mortgage and tenancy

A

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

122
Q

future advances mortgage

A

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

123
Q

installment land contract

A

a mortgage alternative in which the seller retains title to the property until the buyer makes the final payment on an installment plan

124
Q

absolute deed

A

a mortgage alternative in which the mortgagor transfers the deed to the property instead of conveying a security interest in exchange for the loan

125
Q

liability after transfer of a mortgage

A

mortgagor is still personally liable for debt

126
Q

subsequent transferee “assumes” mortgage

A

subsequent transferee is personally liable for the mortgage (in addition to mortgagor)

127
Q

subsequent transferee takes “subject to” the mortgage

A

subsequent transferee is not personally liable upon default

128
Q

foreclosure

A

forced sale of an asset to pay off a debt; requires notice to the mortgagor; eliminates mortgagor’s interest in property

129
Q

lien state vs. title state: pre-foreclosure rights

A

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

130
Q

equity of redemption

A

common law mortgagor right to reclaim title and prevent foreclosure upon full payment of the debt BEFORE foreclosure sale

131
Q

statutory redemption

A

statute that allows mortgagor to redeem the property and nullify the foreclosure even after foreclosure sale

132
Q

senior interest

A

interest acquired before the interest that is being foreclosed; survives foreclosure

133
Q

junior interest

A

interest acquired after the interest that is being foreclosed; extinguished by foreclosure

134
Q

first in time rule

A

debts surviving foreclosure are satisfied chronologically

135
Q

purchase-money mortgage exception

A

exception to first in time rule that permits the interest in the loan to buy real property be paid off first

136
Q

recording act exception

A

exception to first in time rule that permits recorded junior interests to trump non-recorded senior interests

137
Q

affirmative easement

A

allows the holder to perform an act on the servient estate

138
Q

negative easement

A

allows the holder to prevent the servient owner from performing an act on the servient estate; must be express

139
Q

easement appurtenant

A

easement tied to the use of the land

140
Q

easement in gross

A

easement that benefits the holder personally

141
Q

implied easement by necessity

A

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

142
Q

implied easement by implication

A

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

143
Q

implied easement by prescription

A

easement by adverse possession

144
Q

implied easement by estoppel

A

easement created by a license; requires (1) a permissive use (2) upon which the user relies and (3) the permission is then withdrawn

145
Q

seven ways to terminate an easement

A
  1. release in writing
  2. merger into title to land
  3. abandonment by easement owner
  4. prescription (interference with use for statutory period)
  5. sale to a purchaser
  6. estoppel (reliance on abandonment)
  7. end of necessity
146
Q

profit

A

right to enter someone’s land and remove a specific natural resource

147
Q

license

A

revocable permission to use another’s land

148
Q

five requirements for a burden to run with the land

A
  1. in writing
  2. intent
  3. touch and concern
  4. notice
  5. horizontal privity and strict vertical privity
149
Q

four requirements for a benefit to run with the land

A
  1. in writing
  2. intent
  3. touch and concern
  4. relaxed vertical privity
150
Q

horizontal privity

A

privity of estate between the original parties to the promise; estate and covenant contained in the same instrument (e.g., deed)

151
Q

strict vertical privity

A

successor takes original party’s entire interest

152
Q

relaxed vertical privity

A

successor takes a carve-out of the original party’s interest

153
Q

equitable servitude

A

alternative to covenant; requires writing, intent, touch and concern, and notice, but NOT privity; generally offers injunctive relief

154
Q

fixture

A

personal property that
- is attached to real property with the intent that it remain attached AND
- used for some larger component or function

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