Real Property Flashcards
1
Q
Fee Simple Absolute
A
To A and his heirs
2
Q
Fee Simple Determinable
A
So long as…
Until..
Future Interest: Possibility of Reverter
Created in Whom: O
Automatic
3
Q
Fee Simple on Condition Subsequent
A
Condition or re-enter
Future Interest: Right of re(Entry)
Created in whom: O
REQUIRES ACTION ON BEHALF OF O
4
Q
Fee Simple Subject to Executory Interest
A
So long as… or until… & then to B
Future Interest: Executory Interest
Created in B
Automatic
5
Q
What happens if there is no time limit within which an executory interest must vest or fail?
A
Void
6
Q
To A, but if liquor is ever sold on the property, then to B.
What does A have?
Valid Under RAP?
A
A has a FSA because it is not valid under RAP because there is no time limit within the exectory interest must vest or fail.
7
Q
To A so long as no liquor is ever sold on the property, and if it is then to B.
What does A have?
What does B have?
Valid under RAP?
A
A has a Fee Simple Determinable.
B’s interest is void because of RAP.
So, O has a possibility of reverter
8
Q
To A, but if A personally sells liquor on the property, then to B.
A?
B?
RAP?
A
Valid under RAP, lifetime of A is time period.
A has Fee SImple subject to Executory Interest
B has Executory Interest automatically
9
Q
To A, but if liquor is sold on the property within the next 20 years, then to B.
A?
B?
RAP?
A
A has a fess simple subject to EI
B has an AUTOMATIC EI
Valid under RAP
10
Q
To A, but if liquor is sold on the property during A’s lifetime or within 20 years after A’s death, then to B.
A?
B?
RAP?
A
A has fee simple subject to EI
B has AUTOMATIC EI
Valid. Can combine a life + years as long as it is within 21 years of life in being.
11
Q
Fee Tail
A
To A and the heirs of his body.
12
Q
Life Estate
A
To A for life. (A is the measuring life, and A owns the life estate.)
To A for the life of B. (B is the measuring life. A has an estate for the life of another.)
To A for life. Later, by a new deed, A conveys her interest to B. What does B have? (Life Estate, but A is measuring life)
13
Q
Law of Waste
A
Plaintiff mayt be holder of a future interest (usually following a life estate) or a mortgage.
Usual remedies are damages and an injunction.
14
Q
What type of waste is committed by A, a life tenant?
1) A chops holes in the walls of the house.
2) A allows leakes in the roof to rot the roof timbers.
3) A fails to pay the property taxes or the interest on a mortgage.
A
1) Voluntary Waste
2) Permissive Waste
3) Financial Waste
15
Q
Taxes and Waste
A
Life tenant must pay, up to property’s rental.
16
Q
Mortgages and Waste
A
Life tenant must pay interest; future interest holder must pay principal.
17
Q
A removes a house which has become obsolete because of neighborhood changes, and replaces it with a warehouse which is of greater value. What type of Waste?
A
Ameliorative Waste
18
Q
Requirements for Ameliorative Waste
A
Surroundings/Neighborhood must have changed, making present use infeasible, AND
Building must be replaced with one having equal or greater value.
19
Q
Future Interests created in the grantor.
A
Possibility of Reverter
Right of Reentry
Reversion
20
Q
Possibility of Reverter
A
Follows a FSD
21
Q
Right of Reentry
A
Follows a FSSCS
22
Q
Reversion
A
Follows any interest given by the grantor which is of lesser duration than he or she owns.
Ex. To A for Life, or To A for ten years.
23
Q
Future Interests not for the grantor.
A
Remainder
Executory Interest
24
Q
Remainder
A
Can only exist if certain rules are met.
Four Rules of Remainders
1) Created at same time and by same instrument as prior estate
2) Prior estate must be life estate
3) Doesn’t “cut short” the prior estate
4) There may not be a “built-in” time gap between the prior estate and the future interest
25
Executory Interest
The "catch-all" it's any future interest, created in one other than the frantor, which does not meet the rules for remainders.
26
Types of Executory Interests
To A until (so long as, but if) .... and then to B (SHIFTING EXECUTORY INTEREST)
To A, to take possession (on A's 21st birthday, when A graduates, etc (SPRINGING EXECUTORY INTEREST)
27
Types of Remainders
Vested and Contingent
O conveys "To A for life, then to B's heirs." The taker is unascertainable so B's heirs remainder is contingent.
O conveys "To A for life, then to B if and when B passes the bar exam." There is an expressed condition precedent. B's remainder is contingent until he passes the bar exam. Once he passes the bar the remainder becomes vested.
28
To A for life, then to A's firstborn child.
What type of remainder does A's firstborn child have?
Contingent until A's child is born, vested afterwards.
29
To A for life, then to A's children.
What types of remainders?
Contingent until A has a child, then becomes vested to open because it is a class gift.
30
To A for life, then to B's children
Remainders?
When A dies, if B has any children we close the class and give possession to the children born so far. Any later born children get nada!
31
What does RAP apply to?
Only applies to:
Contingent Remainders
Executory Interests
Class Gifts
Options to Buy Land\*
Rights of First Refusal to Buy Land\*
\*unless held by lessee under a lease AND not separated fromt he leasehold interest.
32
What doesn't RAP apply to?
Vested Remainders (UNLESS TO A CLASS)
Any future interests created in a grantor.
33
Definition of RAP
A future interest covered by the RAP is void unless it is certain to vest or fail within 21 years after some life in being.
34
To A for life, then to B for life if and when B ever passes the bar exam, then to C.
Define all interests.
B has a contigent remainder. And it will either fail or vest within B's life so it is valid under RAP.
C has a vested remainder, and its not to a class. NOT APPLICABLE UNDER RAP.
35
To A for life, then to A's eldest surviving duaghter for her life, then to the Red Cross if and when it ever affiliates with the United Way.
Define Interests.
Daughter has a contigent remainder, since she is presently unascertainable. Remainder is certain to vest or fail AT A'S DEATH so it is valid under RAP.
Red Cross has a contigent remainder. Not certain their remainder will vest or fail within A or Daughter's lifetime + 21 years. Invalid under RAP.
36
To the Cancer Society, but if it ever ceases to support cancer research, then to the Heart Fund.
Define Interests
This is an example of the two charities rule which says RAP does not apply. Both interests are valid.
37
Restraints on Alienation
Forfeiture Restraint
Promissory Restraint
Disabling Restraint
38
To A, but if A ever transfers this land without my consent, I may reenter and terminate the estate.
What type of restraint on alienation.
Forfeiture Restraint
39
To A, but A agrees and covenants never to transfer this land without my consent.
What type of restraint on alienation?
Promissory Restraint
40
To A, but if A ever attempts to transfer this land without my consent, the transfer shall be null and void.
What type of restraint on alienation?
Disabling Restraint
ALWAYS VOID, EXCEPT IN A SPENDTHRIFT TRUST!!!!
41
Enforcement of Forfeiture and Promissory Restraints on Alienation.
More likely to be upheld if;
1) The interest is less than a FS (life estate or leasehold)
2) The restraint is limited in time OR scope (Cant sell to Joe)
3) The restraint has a reasonable, not illegally or discriminatory purpose (Approval from condo directors of condo assoc.)
4) The land was conveyed for a charitable use.
42
Trust
Typically involves three parties:
1) The trustor (creates the trust and transfers property into it)
2) The trustee (holds title to the trust property and administers the trust)
3) The beneficiaries receive distributions of profits and property from the trust
43
A trust may create a trust by:
Deed the corpus to the trustee
Declare himself to be a trustee
Leaving property by will to the trustee
Establishing the trust during life and then pour over additional corpus into the will
44
Private Trust vs Charitable Trust
Naming of Beneficiaries
Private trust must have beneficiaries who are identifiable by the time their beneficial interest can be enjoyed.
Chartiable Trusts must have a group of beneficiaries who are reasonably numerous (several hundred at least) and not individually identified.
45
Can a trust include both real and personal property?
Can the beneficial interests by both present or future interests?
Yes.
Yes.
RAP applies to private trust but NOT charitable trusts.
46
May a beneficiary transfer their beneficial interest in the trust?
May trusts contain a "spendthrift" clause prohibiting transfer?
Yes.
Yes, even though they are disabling restraints on alienation.
47
Types of concurrent ownership.
Tenancy in common
Joint Tenenact with right of survivorship
48
What type of concurrent ownership do we presume is being created?
Tenancy in common is hte preseumption unless the grantor states it's a Joint Tenancy with right of survivorship.
49
A, B, and C are Joint tenants with right of survivorship.
A dies with a will leaving all her land to her Law School.
B dies with a will leaving all of his land to his Church.
C dies with a will leaving all her land to the Art Museum.
Who owns the land?
The Art Museum.
When A dies, her interest went to B and C
When B dies, the whole interest goes to C in a FSA.
50
A, B, and C are Tenants in Common
A dies with a will leaving all her land to her Law School.
B dies with a will leaving all of his land to his Church.
C dies with a will leaving all her land to the Art Museum.
Who owns the land?
Law School = 1/3
Church = 1/3
Art Museum = 1/3
51
What are the Four Unities
Unity of Time = Necessary for JTWROS
Unity of Title = Necesssary for JTWROS
Unity of Interest = Necessary for JTWROS
Unity of Posession = Applies to both JTWROS and TiC
52
O deeds "To A, one half interest as a JTWROS"
One week later O deeds "To B, one half interest as a JTWROS"
A & B have?
Tenancy in Common
Dont have the unity of time or title.
53
O Deeds "To A and B as JTWROS, A to have 75% interest and B to have 25% interest.
What do A and B have?
Tenancy in common. No unity of interest.
54
A owns land in FSA. She deeds "To A and B as JTWROS"
What does A and B have?
Tenancy in Common. Since A deeded it to themself, they do not have unity of title or time. Need to have a strawman to deed to, who deeds back to A and B.
Frequent with Marriage.
55
A and B are tenants in common or JT doesnt matter. A puts a fence down the middle of the land and tells B to stay off A's side. Violates the unity of.....
Possession.
With an agreeemnt of this set-up it would not violate possession.
56
Severing a JTWROS.
When conveyed to an outsider, turns into a TiC.
57
A and B are JTWROS. A deeds to X. What do X and B have?
TiC.
If A wanted to turn JTWROS into a TiC. Use a strawman to deed it back to A.
58
A, B, and C are JTWROS. A deeds to X. B dies. What are the interests of the party.
X = 1/3 TiC with C
C = 2/3 TiC with X
B's heirs or devisees = NADA
When A deeds to X, it only severs A's interest.
59
Title vs Lien Theory of Mortgages
Title - Mortgage = Deed
Lien - Mortgage does not equal Deed
Will say which theory to follow on test
60
A and B are JTWROS. Plaintiff sues A and gets a judgment. Then A dies. Does P have a judgment lien on the property?
No, because a judgment lien does not sever JTWROS, REGARDLESS OF THEORY!
61
A and B are JTWROS. A leases the land to T, but B does not sign the lease. A dies. B tries to evict T. In order for T to remain in possession, T will argue that entering into the lease caused a severance. Does T win?
No, No severance.
62
Rights between cotenants
Either TiC or JTWROS
Do not owe each other rent for living in shared property
Equal division of fruits. Rent - expenses
If one half of cotenant OUSTS other, then must pay the ousted party half of fair rental value. Once and ouster occurs, SoL on adverse possession runs, and if ousted party is ousted for 10 yrs, then their interest can be dissolved.
Share costs for repair, taxes, mtg payments, or to preserve/protect expenses.
Do not share unilateral improvement costs. NOTE: Improvement does not equal a repair.
63
Types of Partition
Partititon in Kind
Partition in Sale
Both are available to either TiC or JTWROS
64
Partition in Kind
Court places a boundary separating the cotenants.
65
Partition by sale
Court orders sheriff to sell the property and divide the proceeds among the cotenants.
66
A adds a 20k room onto house, house later sells for 100k as a part of a partition sale, 20k is attributable to the new room. How are proceeds divided?
2x + 20k = 100k
A = 60k
B = 40K
67
A and B are cotenants, and A buys the entire property at a forced sale for a bargain price. (Tax sale, NOT A PARTITION) B pays A half the cost withint a reasonable time. Must A place B back on title?
YES!! Fiduciary Duty!
68
Slayer Statutes. A kills B. A and B were JTWROS.
Marjoity = A is now a TiC with B's heirs, since the killing caused a severance.
Minority = A has nothing. Because they are deemed to have died first.
69
Three Estates can be owned by Tenants
Fixed Term - Ends Automatically
Periodic - Give Notice to Terminate
At Will - No definitie Term
70
Landlord Interests
Rents
Reversion
71
If L lets T live in L's spare bedroom for $100/month. What type of estate does T have?
Periodic, because of monthly rent. At will only when there is not regular rent.
72
Termination of periodic estate
Notice must be given one full period in advance of termination date (except for year-to-year or longer, 6 months notice is enough)
Notice must cause a termination at the end of a regular lease period. (e.g. month)
73
Landlord's Liabilities for Personal Injury
General Rule is caveat emptor (no landlord liability)
6 Exceptions
Latent Defects - Not visible to the naked eye and L knows or has reason to know of the defect
Common Area Defect - know or should know
Short-term, furnished, residential tenancies
Public Use - OTHER THAN THE TENANT
Covenant to Repair
Negligent attempt to repair
74
Can a landloard be liable for his own negligence without one of the 6 excepetions?
Yes. Look to terms of lease. (ex. failure to maintain security features represented when lease began)
FAILURE TO MEET HOUSING CODES - Neg per se
75
Implied Covenant of Quiet Enjoyment
Direct interference with T's possession
Removal of previous Tenants
76
Constructive Evicition
Conditions are very bad
Must result from an act or omission of the L
T must move out within a reasonable time
77
Implied wattanty of habitability
Applies only to residential properties. Standard of performance is local housing codes.
78
Remedies available to T
Terminate the lease and move out
Abatement of the rent. - Reduction in light of conditions
Damages for breach of warranty
Repair and deduct from next month's rent.
T cannot generally get specific performance.
Before claiming any remedy, T must give L notice and reaonable time to cure.
79
Termination of Lease
T buy's L's interest. - RELEASE - T has a FSA
L accepts T's offer to convey leasehold to T - Surrender - L has a FSA
T abandones - T's lease was $500/month, and L could with reasonable effort obtain a new tenant who would pay $400/month. Measure is K rent - FMV rent. If L attempts to relet, L can recover from T (up to their full rent) for:
reletting expenses
Full rent while seeking a new tenant
Option after fire or other disaster that destroys
80
Assignments vs Subleases
Assignment = Transferring the remainder of a lease
Subleases = Specific amount of time
81
Assignment
New Tenant is liable for rent payments.
82
Sublease
Original Tenant liable for rent not paid. New tenant generally not liable for anything unless expressly stated.
83
Elements of a Grant of an Easement
Easement or possessory estate
Location of the easement (Where it is)
Scope of the easement (what use)
Duration of the easement (how long it will last)
84
Appurtenant and "in gross" easements
The dominant land is benefited by the easement (the land it goes to).
The servient land is burdened by the easement (the land it goes across).
85
Ways to gain notice of easements
Recorded in public records (constructive)
Visible easement (should have known)
Actual knowledge
86
Creation of Easements
Prescriptive
Implied
Necessity
Express
87
Express grant and reservation
SoF applies
The owner of the servient land "grants" the easement to the owner of the dominant land.
88
Implied grant and reservation
Four elements must be proved
1) Common ownership before the lots were split
2) A continuous quasi-easement before the lots were split
3) The use is reasonable necessary (Very convenient)
4) The easement is visible
89
Easement of Necessity
Common ownership
The land is land-locked
Purposes of an easement of necessity: Access and Utility Lines
90
Easement by Presecription
Continuous or regular for Adverse Possession period
Open and Notorious
Non-permissive
Need not be exclusive
Need not be necessary
91
How to block a presecriptive easement.
1) Physically block the easement (before the AP period has run)
2) Bring an action for an injunction (Before the AP period has run)
3) Give the trespaser permission AND have her acknowledge it (before the AP period has run)
92
Termination of easements
Merging dominant and servient properties
Release - no longer needs easement
Estoppel
Abadonment
Adverse Possession
No more necessity
93
Licenses
Permission from the owner to occupy the land
May be created orally
Remedies for interference is damages (only if revoking the license breaches a K)
REVOKABLE
94
Covenants
Should be written
Be given for consideration
Notarized
Bind and Benefit future owners
95
To have a successful action on a covenant we must have
A plaintiff with?
A defendant with?
Plaintiff with benefitted land
Defendant with burdened land
96
For covenants to run with the land when seeking damages
They must touch and concern the land
Be intended to run (presumed)
Horizontal Privity - Only required for Burden to run
97
For covenants to run with the land when seeking an injunction
Touch and concern the land
intended to run with the land (preseumed)
Notice to burdened party
98
Horizontal Privity
1) The original covenent is in a deed that transfers one fo the parcels of land, or
2) The original covenant relates to an easement that one of the parties has on the other's land.
99
Common Plan Covenants in a Subdivision
Lots are all created together
About the same size
Most or all of the lots have similar covenants
100
Termination of Covenants
Merging properties
Waived/released
Abandonment
101
In a suit involvin covenant, if the plaintiff(s) have themselves violated:
They have UNCLEAN HANDS. Suit will fail
102
Adverse Possession
Common Law SoL = 20 Yrs
New Trend = 10 Yrs
Elements:
Open and Notorious (possession is visible)
Continous (no long gaps, in light of the nature of the land)
Exclusive (no competing AP'ers but two working together are okay)
Actual Possession (House? live in it. Farm? Farm it)
Non-permissive
103
Constructive Adverse Possession
Entire tract is one parcel in the public records
The A.P has color of title to the entire tract (looks like a conveyance)
The A.P actually possesses part of the tract
104
People who dont lose their land to A.P.
Infancy
Insanity
Imprisonment
WHEN THE AP STARTED!!
105
Recording Acts
In a notice state B must be a BFP (PAY VALUE and take WITHOUT notice of A's claim)
In a race state B must record first
In a norice-race state B must record first AND be a BFP
106
Real Estate Sale K's
Identification of Parties
Identification of Property
Words indicating that a sale is intended
Signature of party to be charged (i.e. person who will get sued to enforce K)
The price and the terms of payment (if not a cash sale)
107
Part Performance in Real Estate K's
Need two of three to be a valid K
Takes possession
Pays part of price
Makes improvements
108
Time of the Essence
A statement to the effect in the K
A notice that makes time of the essence from one party to the other, given a reasonable time before the closing date.
The time of closing is highly important to one party, and the other party knows it.
109
Deed must be in writing and contain
Identification of Parties
Identification of Property
Works indicating title is passing
Signature of the grantor
110
When is a Deed effective?
WHEN IT IS DELIVERED:
Some act done by the grantor, signifying
any intent that the deed operate to pass title immediately.
111
Convenants of Title
No CoT = Quit Claim
All six CoT = Full Warranty or general warranty
Present CoT
Seisin (I OWN)
Right to convey (I have the right to transfer)
Against encumbrances (Land is not encumbered)
Future CoT
Warranty (I own with no encumcrances
Quiet Enjoyment
Further Assurances ( I will give you further documents you need to perfect the title.)
112
Present Covenants of Deeds vs Future
Present do not run with the land.
Future do.
113
Three Ways to Execute a Will
1) Standard written will (requires testator's signature, 2 or 3 witnesses, who must sign in the presence of the tertator and each other)
2) Holographic will (entirely in testator's handwriting, no witnesses required)
3) Nuncupative will (may be oral; the testator must be dying and know it. 2-3 witnesses required)
114
2 Documents in a standard Mortgage
Promissory Note
Mortgage
115
Basic Rules of foreclosure and redemption
Every mortgagee can redeem up, paying off and acquiring any mortgages of higher priority (if they're in default)
Every mortgagee can forclose DOWN, thereby wiping out mortgages and other interests of lower priority.
116
Zoning Classifies land by 3 critieria
1) Use
2) Height
3) BUlk
117
Three basic procedure that owners of land may need to follow, in order to use their land as they desire.
Rezoning
Variance
Conditional Use Permit
118
Three Ways of showing a taking
1) Loretto Taking - A permanent physical occupation of the land
2) Lucas Taking - A regulation so severe that there's no remaining economic value (But even if this degree of regulation wont be a taking if the owner's activity woudl have been considered a common law nuisance)
3) Penn Central Taking - 3 part test
a) Economic impact of the regulation on the property
b) Landowner's reasonable expectations when they bought the property
c) Importance of the regulation to the public
