Real Property Flashcards
Fee simple absolute
to A and his heirs
to A
Life estate
to A for life
to A for the life of B
Determinable
for so long as
until
while
during
Subject to condition subsequent
but if
upon condition that
provided that
Subject to an executory interest
to A for so long as… and if not… to B
to A, but if… to B
Reversion
grantor transfers a shorter estate than she owns (grantor with a fee simple transfers a life estate)
Possibility of reverter
grantor transfers a determinable estate
becomes possessory automatically upon termination of the prior determinable estate
Right of entry (power of termination)
reserved on the grant of an estate subject to a condition subsequent
executory interests
cut short the prior estate
remainders
possessory only until on the natural termination of the prior estate
remainders are vested if
made in an ascertained person and with no conditions precedent, otherwise are contingent
class gifts
remainders in a class are contingent if no member of the class yet exists, vested if all possible members exist, and vested subject to open if more members might come to exist
rule of convenience
an open class closes when any member can demand possession
rule against perpetuities
any future interest that is not certain to vest or fail within a life in being plus 21 years is void
application of RAP
only the interest that violates RAP is stricken
affirmative easement
right to use someone else’s land
negative easement
right to prevent something on another’s land
easement appurtenant
involves two tracts of land
dominant parcel has the benefit, which runs to grantees
servient parcel has the burden, which runs to grantees with notice
easement in gross
involves one tract of land
creation of easements
can happen by express grant or reservation (SOF applies), by implication, or by prescription
Creation of easement by express grant or reservation
SOF applies
an oral grant creates a license, which is not an interest in land
Creation of easement by implication
a) by use existing before a tract was divided
b) by necessity for a landlocked parcel
Creation of easement by prescription
acquired through adverse, open and notorious, and continuous use for the statutory period
Termination of easements
can end by stated condition, unity of ownership between easement and servient estate, abandonment, estoppel, prescription, necessity, release, or condemnation
profits
right to enter another’s land to remove products of the soil
real covenants
run with the land
written promises to do or refrain from doing something on land, with a usual remedy of money damages
real covenants: requirements for burden to run to later grantees
intent, notice, horizontal privity, vertical privity, touch and concern
real covenants: requirements for benefit to run with the land
intent, vertical privity, touch and concern
equitable servitudes
covenants with equitable remedies (injunction, specific performance)
implied from a common scheme for development if notice exists
equitable defenses apply: unclean hands, estoppel, acquiescence, changed neighborhood conditions
equitable servitudes: requirements for burden to run to later grantees
intent, notice, touch and concern
equitable servitudes: requirements for benefit to run to later grantees
intent, touch and concern
land sale contracts SOF exception
no writing is required if buyer has partially performed through possession, improvement, or payment
land sale contracts time for performance is
presumed to be not of the essence
marketable title
contracts contain an implied covenant that seller will deliver title free from an unreasonable risk of litigation at closing
deeds
deeds must 1) be in writing 2) sufficiently describe the land 3) identify the grantee and grantor 4) evidence an intention to convey the land and 5) be signed by the grantor
the parties may be identified by name or by describing them in some other way (to my eldest daughter)
if the deed is left with the identity of the grantee left blank, some courts presume the person taking delivery can fill in the name of the grantee making the deed valid
are effective on delivery and acceptance
delivery of a deed occurs when
words or conduct show the grantor’s intent to immediately pass title
deeds are accepted when
acceptance is presumed
general warranty deed
covenants against any title defects created by the grantor or prior titleholders
best deed!
special warranty deed
covenants against title defects created by the grantor
quitclaim deed
no covenants; transfers whatever interest grantor has
worst deed! horrible for buyer!
adverse possession
(1) actual entry giving rise to exclusive possession that (2) open and notorious (3) adverse/ hostile (no permission) (4) continuous throughout the statutory period
exclusive- not sharing possession with the true owner or the general public
open and notorious- such as the usual would make of the land and sufficient to put true owner on notice of fact of possession
hostile- without consent (even if entered with an invalid deed, that is hostile because they are claiming their right is superior) (also subjective intent is irrelevant)
continous- possession that the average owner would make of the property under the circumstances
adverse possession tolling
statute does not begin to run if the owner is under a disability to sue THE DAY the possession begins
joint tenants
two or more continents with rights of survivorship
tenants by the entirety
two spouses with rights of survivorship
tenants in common
two or more covenants with NO right of survivorship
created by the severance of a joint tenancy or tenancy by the entirety
default when nothing else was specified
notice
actual notice- grantee actually knew
inquiry notice- a reasonably inquiry would have revealed
record notice- what a search of the real property records would have revealed
notice statutes
later BFP wins if earlier grant was not recorded
race-notice statute
later BFP wins only if she records before the earlier grantee records
race statute
first to record wins, actual notice is not relevant
foreclosure terminates which interests
junior interests only, senior interests remain
fixtures
items to affixed to land that they become a part of the realty
constructive annexation
items not physically attached to land are fixtures if they are so uniquely adapted to the real estate that it makes no sense to separate them
ex: keys to doors
existing zoning violations
render title to land unmarketable
variance
permission to depart from zoning restriction
four unities
time (interests vested at the same time) title (interests acquired by same instrument) interest (interests of the same type and duration) and possession (interests give identical rights of enjoyment)
acts that sever a joint tenancy
suit for partition, inter vivos conveyance by one joint tenant, execution of a mortgage by one joint tenant in a title theory state
co-tenant’s rights in joint tenancy or tenancy in common
mortgage her interest, share in rents by third parties, possess the entire state, compel contribution for necessary repairs, taxes, and payments due on mortgages
no right to compel contribution for improvements
Lien theory vs title theory
Lien theory means no severance (majority rule on the MBE)
Title theory means severance
Quiet enjoyment
Every lease contains an implied covenant that neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises
this covenant is breached by the tenant’s total or partial actual eviction from the leased premises
runs with the land- so if L assigns his right to L1, both L and L1 are liable if X tries to eject T
total actual eviction
occurs when the landlord or a paramount title holder excludes the tenant from the entire leased premises
this terminates the tenant’s obligation to pay rent
partial actual eviction
occurs when the tenant is excluded from only part of the leased premises
partial eviction by landlord
relieves tenant of paying rent for the entire premises even though the tenant continues in possession of the remainder of the premises
partial eviction by a paramount title holder
results in an apportionment of rent, the tenant is liable for the reasonable rental value for the portion he continues to possess
implied warranty of habitability for residential tenancies
landlord covenants that the premises are suitable for human residence
standard applied is local housing code
CANNOT be waived by T
constructive eviction
when the landlords breach of duty renders the premises unsuitable for occupancy
tenant may vacate premises, terminate the lease, and sue for damages
conditions
1) the breach must be by the LL or persons acting for him
2) the breach must substantially and materially deprive the tenant of her use and enjoyment of the premises
3) T must give L reasonable notice and a reasonable time to repair
4) T must vacate premises within a reasonable time
Latent defect
If, at the time the lease is entered into, the LL knows of a dangerous condition that T could not discover upon reasonable inspection, the L has a duty to disclose the dangerous condition.
If L breached warranty of habitability, T can
(1) terminate the lease
(2) make repairs and offset their cost against future rent
(3) abate rent
(4) seek damages
L assigns interest to L2, who is liable to T
A landlord may assign the rents and reversion interest that he owns. The assignee is liable to the tenants for performance of all covenants made by the landlord in the lease, provided that those covenants RUN WITH THE LAND (touches and concerns the land). The original landlord is also liable to all of the covenants he made in the lease.
Rule in Dumpor’s Case
If a landlord consents to one transfer that violates a covenant against assignment or sublease, he waives his right to avoid future transfers.
If a T transfers her interest via assignment or sublease against a covenant against doing so
The transfer is NOT void. However, the landlord usually may terminate the lease under the lease terms or a statute or sue for damages.
requirements for a prescriptive easement
- open and notorious
- adverse
- continuous and uninterrupted for the statutory period
surcharged
the easement’s legal scope was exceeded
the easement does not terminate by operation of law nor does such use give the servant owner a power of termination. the servient owner may sue to enjoin the use.
terminating an easement by prescription
one must interfere with the easement through long continued possession and enjoyment of the servient estate in a way that would indicate to the public that no easement right existed
abandonment of an easement
if the holder manifests an intent to never use the easement again, evidenced by either physical acts or oral expressions of a desire to abandon accompanied by a long period of nonuse
easement implied by operation of law (quasi-easement)
An easement may be implied if, prior to the time the tract is divided, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part,” and a court determines that the parties intended the use to continue after division of the property. To give rise to an easement, a use must be apparent and continuous at the time the tract is divided.
Easement vs license
easements must be in writing - SOF
easement by necessity
An easement by necessity arises when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line. The owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient.
A covenant touches and concerns the land when
it makes the land itself more useful or valuable to the benefited party.
mutual right of endorsement
When a subdivision is created with similar covenants in all deeds, there is a mutual right of endorsement (each lot owner can enforce against every other lot owner) if two things are satisfied: (i) a common scheme for development existed at the time that sales of parcels in the subdivision began; and (ii) there was notice of the existence of the covenant to the party sued.
reciprocal negative servitudes
When a developer subdivides land into several parcels and some of the deeds contain negative covenants but some do not, negative covenants or equitable servitudes binding all the parcels in the subdivision may be implied under the doctrine of “reciprocal negative servitudes.” Two requirements must be met before reciprocal negative servitudes will be implied: (i) a common scheme for development, and (ii) notice of the covenants. The second requirement may be satisfied by actual notice, record notice, or inquiry notice.
encroachment, marketability of title
Regardless of whether an adjacent landowner is encroaching on the seller’s land or vice versa, an encroachment will not render title unmarketable if: 1. It is very slight (only a few inches) and does not inconvenience the owner on whose land it encroaches; 2. The owner encroached upon has indicated that he will not sue on it; or 3. It has existed for so long (many decades) that it has become legal by adverse possession (if the state recognizes adverse possession title as marketable). In contrast, a significant encroachment constitutes a title defect that renders title unmarketable.
if buyer finds out title is unmarketable, buyer must
notify the seller and give a reasonable time to cure the defects.even if this requires extending the closing date, and even if time is of the essence. If the seller fails to cure the defects, then the buyer may rescind the contract, sue for damages for breach, get specific performance with abatement of the purchase price, or (in some jurisdictions) require the seller to quiet title.
easements are encumbrances unless
the easement is provided for in the contract.
Exception: A majority of courts have held that a beneficial easement that was visible or known to the buyer does not constitute an encumbrance.
adverse possession tacking
For purposes of determining title by adverse possession, tacking is not available when one adverse claimant ousts the other or the first claimant abandons and the next claimant goes into possession.
Periods of adverse possession between two successive claimants may be tacked together to make up the full statutory period if there is privity of possession between the claimants. Privity is satisfied if the first adverse claimant purports to transfer the land to the next; i.e., the subsequent possessor takes by descent, by devise, or by deed purporting to convey title.
adverse possession- future interests
If a landowner does not commence an action to eject a would-be adverse possessor before the statute of limitations expires, she is barred from suing for ejectment, and title vests in the possessor. However, the statute of limitations DOES NOT RUN against the holder of a future interest (e.g., remainder, reversion) until her interest becomes possessory. The future interest holder has no right to possession until the prior present estate terminates, and thus no cause of action for ejectment accrues until that time.
If an adverse possessor uses land in violation of a recorded real covenant for the limitations period, she takes
title free of the real covenant
Adverse possession when claimant only possessed a portion of a unitary tract
Actual possession of a portion of a unitary tract of land is sufficient adverse possession as to give title to the whole of the tract of land after the statutory period, as long as there is a reasonable proportion between the portion actually possessed and the whole of the unitary tract, and the possessor has color of title to the whole tract. Color of title is a document that purports to give title, but for reasons not apparent from its face does not. Usually, the proportion will be held reasonable if possession of the portion was sufficient to put the owner or community on notice of the fact of possession.
color of title
possession of a document purporting to convey title
statutory redemption
the right of a mortgagor to recover the land after the foreclosure sale has occurred, usually by paying the foreclosure dale price
equitable redemption
right of a mortgagor to recover the land by paying the amount overdue on the mortgage, plus interest, at any time before the foreclosure sale. If the mortgagor has defaulted and the mortgage or note contained an acceleration clause, then the full balance of the mortgage must be paid in order to redeem in equity.
What happens when a tenant is under a lease for land that is partially condemned?
In partial condemnation cases, the landlord-tenant relationship continues, as does the tenant’s obligation to pay the entire rent for the remaining period of the lease. The tenant is, however, entitled to share in the condemnation award to the extent that the condemnation affected the tenant’s rights under the lease.
