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BARPREP > Real Property > Flashcards

Real Property Flashcards

1
Q

Valid Deed Requirements

A

(1) In writing;
(2) Sufficiently describe the land;
(3) Identify the grantor and grantee;
(4) Evidence an intention to convey the land; and
(5) Be signed by the grantor.

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2
Q

Adverse Possession

A

Possession must be:

(1) actual and exclusive;
(2) open and notorious;
(3) adverse; and
(4) continuous throughout statutory period.

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3
Q

Exclusive

A

Means not sharing possession with the true owner or the general public

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4
Q

Open and Notorious

A

When it is such as the usual owner would make of the land and is sufficient to put the true owner on notice of the possession

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5
Q

Hostile

A

When it is without the owner’s consent; it does not matter whether the possessor believe s he is on his own land or knows he is trespassing.

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6
Q

Continuous Possession

A

Possession that the average owner would make of the property.

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7
Q

“No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded.”

A

Notice Statute

Subsequent bona fide purchaser prevails.

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8
Q

“No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded.”

A

Race Statute

Grantee who records first prevails.

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9
Q

“No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.

A

Race-Notice Statute

Subsequent bona fide purchaser who records first prevails.

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10
Q

Bona Fide Purchaser (BFP)

A

A purchaser who takes for valuable consideration and without notice of a prior claim at the time of the conveyance.

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11
Q

Actual Notice

A

What the purchaser actually knows.

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12
Q

Record Notice

A

Notice that the law imputes to the purchaser if a prior deed was properly recorded in the grantee’s chain of title.

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13
Q

Inquiry Notice

A

Notice of what the purchaser would have discovered by inquiring into the property.

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14
Q

Order of Priority (Foreclosure Sale Proceeds)

A
  1. Expenses of sale, including attorney’s fees and court costs
  2. The principal and accrued interest on the foreclosing party’s loan
  3. Any junior lienors in the order of their priority
  4. The mortgagor

Senior lienors receive none of the proceeds

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15
Q

Tenancy for Years

A

Interest in land that lasts for a fixed and ascertainable amount of time.

Ex: L leases Greenacre to T for 6 months.

If lease > 1 year, SoF applies.

Automatically terminates at expiration of lease.

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16
Q

Periodic Tenancy

A

A repetitive and ongoing interest that continues for a set period of time until it is terminated by proper notice.

Can be express or implied.

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17
Q

Tenancy at Will

A

This tenancy continues until it is terminated by either party, at any time and for any reason, with or without notice.

Must have expressly or impliedly intended to create this tenancy.

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18
Q

Tenancy at Sufferance

A

This tenancy is created when the tenant refuses to vacate the premises after his lease has terminated.

Prior lease terms control until:

1) proper eviction,
2) re-leases to tenant, or
3) T voluntary vacates

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19
Q

Assignment

A

A complete transfer of a T’s remaining term under the lease.

L can collect rent from:

1) assignee (privity of estate), or
2) original tenant (privity of contract)

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20
Q

Sublease

A

A transfer of less than the T1’s entire remaining term under the lease.

L can collect rent only from T1 (privity of estate and contract).

T2 only has rent obligations to T1.

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21
Q

Surrender

A

This terminates the lease agreement and ends the L-T relationship — releasing both parties from their duties and obligations under the lease.

L must consent.

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22
Q

Abandonment

A

Occurs when T unilaterally returns possession of the leased premises before the lease expires without L’s consent.

T must continue to pay rent until replacement is found.

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23
Q

Covenant of Quiet Enjoyment (Landlord-Tenant Context)

A

Landlord breaches this covenant if the landlord’s actions or inactions render the property unusable by the tenant and the tenant is evicted (either actual, partial, or constructive eviction).

Available for commercial and residential leases.

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24
Q

Constructive Eviction

A

(1) Landlord breached a duty to the tenant;
(2) The breach substantially and materially deprived tenant of her use and enjoyment of the premises;
(3) The tenant gave the landlord notice and a reasonable time to repair; and
(4) After such reasonable time, then tenant vacated the premises.

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25
Q

Voluntary Waste

A

An affirmative act that serves to somehow damage the land. Damage does not have to be an act that reduces the value of the land.

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26
Q

Permissive Waste

A

A failure to keep the property in repair, pay taxes on the property, or pay interest on any mortgage on the property.

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27
Q

Equitable Servitude

A

Only enforceable where a party can establish: (1) Intent for the restriction to be enforceable by subsequent grantees; (2) That the subsequent grantee had notice of the servitude; and (3) That the restriction touches and concerns the land.

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28
Q

Lapse

A

Occurs when the beneficiary or the devisee under the will predeceases the testator, invalidating a gift. The gift instead reverts to the residuary estate or be granted under law of intestate succession.

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29
Q

Doctrine of No Residue of a Residue

A

If the deceased beneficiary was intended to inherit part or all of the residuary estate, then that portion of the estate would pass by intestate succession, as though the testator had left no will.

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30
Q

“O to A”

A

Fee simple

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31
Q

“O to A and his heirs”

A

Fee simple

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32
Q

“O to A forever”

A

Fee simple

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33
Q

“O to A while the property is used for farming”

A

Fee Simple Determinable

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34
Q

“O to A during the property’s use as a farm”

A

Fee Simple Determinable

35
Q

“O to A until the property is no longer used as a farm”

A

Fee Simple Determinable

36
Q

O to A provided that the property is used for farming”

A

Fee Simple Subject to Condition Subsequent

37
Q

“O to A on the condition that the property is used as a farm”

A

Fee Simple Subject to Condition Subsequent

38
Q

“O conveys Greenacre to A and his heirs, but if Greenacre is no longer used as a farm, then to B and her heirs.”

A

A has a fee simple subject to an executory interest.

B has an executory interest.

39
Q

“O to A for A’s life”

A

Life estate

A is the measuring life, life estate terminates when A dies

40
Q

“O to A for B’s life”

A

Life estate

B is the measuring life, life estate terminates when B dies

41
Q

“O conveys Greenacre to A for life, then to A’s firstborn child. At the time of conveyance, A has no children.”

A

A’s firstborn child has a contingent remainder, because the firstborn child is not an ascertainable grantee.

42
Q

Tenancy in Common

A

Default estate created by a conveyance of real property to two or more people.

Each tenant in common has:

(1) a separate but undivided interest in the property;
(2) the right to possess and enjoy the entire property; and
(3) the right to transfer their interest in property freely during their lifetime or at death

43
Q

Joint Tenancy (Common Law)

A

A conveyance of real property to two or more people that is distinguished by a right of survivorship, whereby the surviving joint tenants automatically take the deceased tenant’s property interest.

Joint tenants cannot pass their property by will/intestate.

“Four Unities” must be present:

(1) Possession (equal right);
(2) Interest (equal interest);
(3) Time (receive at same time); and
(4) Title (same instrument of title)

44
Q

Severance of Joint Tenancy

A

If any of the “Four Unities” are severed, then the joint tenancy is terminated and the cotenants hold the property as tenants in common.

45
Q

Rights/Obligations of Cotenants

A

(1) Operating expenses based on ownership interest of each cotenant; and
(2) Rent payments received from third party’s possession

NOT DIVIDED:

(1) Repair costs; and
(2) Improvement costs

46
Q

Ouster

A

Each cotenant has the right to possess ALL of the property, regardless of ownership share. An ouster occurs if a cotenant denies another cotenant access to the property. If this occurs, the ousted tenant can:

(1) get an injunction granting access to property; AND/OR
(2) recover damages for the value of the use while ousted.

47
Q

Partition

A

Equitable remedy that is available unilaterally to joint tenants and tenants in common.

48
Q

Partition in Kind

A

Physically divides that property into distinct portions. Courts have a preference for physical divisions of property over forced sales.

49
Q

Partition by Sale

A

Selling the property and dividing the proceeds from the sale among each cotenant based on their ownership interests. Courts will order a partition by sale if a partition in kind is:

(1) not practicable; or
(2) not fair to all the parties.

50
Q

Implied Warranty of Habitability

A

Implied in every RESIDENTIAL lease. Requires landlords to maintain their property such that it is reasonably suitable for basic human needs. Tenant cannot waive this protection.

If landlord breaches this, tenant may:

(1) Vacate the premises (not required to);
(2) Withhold or reduce the rent;
(3) Remedy the defect and offset the costs against the rent; OR
(4) Defend against eviction.

51
Q

Duty to Mitigate (Majority Rule)

A

Landlord has a duty to mitigate damages if the tenant abandons the property early or is evicted by making reasonable efforts to re-rent the property to another tenant. Landlord is entitled to damages for (original rent - rent received from replacement tenant).

52
Q

Duty to Mitigate (Minority Rule)

A

The landlord does not have to mitigate damages.

53
Q

Real Covenant (Requirements for Benefit to Run)

A

Remedy is MONEY

(1) Writing - the covenant must be included in writing in the original conveyance;
(2) Intent - the original parties must have intended for the covenant to run with the land;
(3) Touch and Concern - the covenant must touch and concern the land;
(4) Relaxed Vertical Privity - successor need only take part of original party’s estate.

54
Q

Real Covenant (Requirement for Burden to Run)

A

Remedy is MONEY

(1) Writing - the covenant must be included in writing the original conveyance;
(2) Intent - the original parties must have intended for the covenant to run with the land;
(3) Touch and Concern - the covenant must touch and concern the land
(4) Strict Vertical Privity - successor must take the original party’s entire interest
(5) Horizontal Privity - instrument used in conveyance of the property between the original parties must contain the estate and the covenant.
(6) Notice - new owner must have notice (actual or constructive) of the covenant

55
Q

Equitable Servitudes

A

Remedy is INJUNCTIVE RELIEF

(1) Writing - servitude must be included in writing in the original conveyance;
(2) Intent - original parties must have intended for the servitude to run with the land;
(3) Touch and Concern - servitude must touch and concern the land;
(4) Notice - new owner must have notice (actual, constructive or inquiry)

56
Q

Express Easement

A

Right held by one person to use another’s land. Express easement can be created by grant or reservation.

57
Q

Implied Easement by Implication

A

Created when:

(1) A single tract of land is divided by a common owner and a piece of the land is conveyed to another;
(2) Before the division, the common owner used the single tract of land as if there was an easement on it;
(3) After the division, the common owner’s use of the conveyed land must be continuous and apparent; and
(4) Such use must be reasonably necessary for the owner’s use and enjoyment.

58
Q

Reasonableness of Assignment (Majority View)

A

In most states, a landlord may deny consent of an assignment for any reason, even an unreasonable one.

59
Q

Reasonableness of Assignment (Minority View)

A

A minority of states hold that the landlord may not unreasonable withhold consent to transfer by the tenant. In those states, withholding consent is reasonable if it relates to the proposed assignee’s financial position or questions as to his character.

60
Q

Landlord’s Duty to Mitigate (Majority View)

A

Majority view requires the L to make reasonable efforts to mitigate damages by reletting to a new T. An attempt to mitigate need not be successful. If the L made reasonable efforts but was not successful, he would be entitled to damages measured by (T’s Rent - Fair Market Price) from time T stopped paying rent

61
Q

Landlord’s Duty to Mitigate (Minority View/Common Law)

A

L has no duty to mitigate damages and can let the premises lie idle if the abandoning T does not tender an acceptable substituting T.

62
Q

Joint Tenancy (Modern Law)

A

A conveyance to two or more persons presumptively creates a tenancy in common; a joint tenancy results only when a right of survivorship is clearly expressed.

63
Q

Lien Theory (Mortgages)

A

One joint tenant’s execution of a mortgage on her interest does not by itself cause a severance; however the mortgagee risks losing its interest if the mortgagor dies prior to foreclosure.

64
Q

Title Theory (Mortgages)

A

A mortgage is regarded as a transfer of title, which destroys the unity of title and severs the joint tenancy.

65
Q

Present Covenants

A

(1) Covenant of Seisin
(2) Covenant of Right to Convey
(3) Covenant Against Encumbrances

66
Q

Covenant of Seisin

A

Warrants that the grantor owns the estate or interest that he purports to convey

67
Q

Covenant of Right to Convey

A

Covenant that grantor has the power and authority to make the grant

68
Q

Covenant Against Encumbrances

A

Covenant assuring that there are neither physical encumbrances against title or interest conveyed.

69
Q

Merger Doctrine

A

Once closing occurs, the contract merges with the deed and any promises in the contract concerning title that are not also in the deed are extinguished.

70
Q

Implied Warranty of Fitness or Quality (Sale of Home by Builder)

A

Common law rule is that contracts for sale and deeds of real property carry no implied warranties of quality or fitness. However, a contract for sale of residential building under construction may contain this warranty. Warranty implied is that new house is designed and constructed in a reasonably workmanlike manner and is suitable for human habitation.

Allows buyer to recover compensatory damages.

71
Q

Nonconforming Use

A

When an owner is permitted to continue a nonconforming use, he may not unreasonably expand or make substantial changes to the nonconforming uses.

72
Q

Future Advances Mortgage

A

If the future advances are obligatory and scheduled, the lender who makes such advance payments will take priority over any other subsequent lien or mortgage, even if the advances are made after the junior lien or mortgage comes into existence.

BUT if advance payments are subject to discretion of mortgagee, such payments will only take priority if payments were made pursuant to an agreement that was entered into without notice of the competing lien or mortgage and the payments themselves are made without notice.

73
Q

Equal Dignities Rule

A

When the act performed by an agent is required by law to be in writing, the agent’s authority must also be in writing.

EX: A deed must be in writing, so agent signing deed on behalf of principal must have his authority in writing.

74
Q

Partial Condemnation

A

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 entitled to share in the condemnation award to the extent the condemnation affected their rights under the lease.

75
Q

What may a landlord do when the tenant fails to vacate after the termination of his right to possession?

A

(1) Treat the holdover tenant as a trespasser and evict him; or
(2) Bind the tenant to a new periodic tenancy (the terms and conditions of the expired tenancy apply to the new tenancy).

76
Q

Dedication of Land for Public Use

A

(1) Dedication; and

(2) Acceptance

77
Q

Offer of Dedication

A

Under common law, may be made by:

(1) A written or oral statement;
(2) The submission of a map or plat showing the dedication; or
(3) the opening of the land to public use

78
Q

Acceptance of Dedication

A

May be made by:

(1) A formal resolution;
(2) The approval of the map or plat; or
(3) The actual assumption of maintenance or construction of improvements

79
Q

What kind of action may a common-interest community board take?

A

A board may:

(1) Impose fines, penalties, and late fees;
(2) Withdraw privileges to use common recreational or social facilities;
(3) Require prior submission of plans for projects to ensure compliance with existing restrictions;
(4) Conduct reasonable inspections of property for violations, with a reasonable belief that such violation exists; and
(5) Deny voting privileges or board positions.

80
Q

What is the interest of the daughter’s children?

“to my daughter for her life, and on my daughter’s death to her children; provided, however, that if my daughter stops painting, to my brother.”

A

Vested remainder subject to open and subject to complete divestment

81
Q

Remainder

A

A future interest created in a transferee that is capable of taking in possession on the natural termination of the preceding estate.

82
Q

Vested Remainder

A

Where the beneficiaries are ascertainable and they’re taking in possession is not subject to a condition precedent.

83
Q

Contingent Remainder

A

A remainder will be classified as contingent if its taking is subject to a condition precedent, or it is created in favor or unborn or unascertained persons.

84
Q

A landowner included in his will a provision giving “all of my property, both real and personal, wherever situated, to my widow for life, and after her death to any of our children who may survive her.”

What is the gift to the children?

A

Contingent Remainder

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