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Bar Prep > Real Property > Flashcards

Real Property Flashcards

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1
Q

Transfers of Ownership (4)

A
  1. Sale
  2. Gift
  3. Devise (Wil)
  4. Intestate (Succession)
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2
Q

Timing of Possessory Interests (2)

A

Present vs Future Interests

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3
Q

Fee Simple

A

Largest possessory estate

May last forever

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4
Q

Fee Simple Language (4)

A

“Forever”

“O to A”

“O to A and their heirs”

Ambiguous grants

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5
Q

Defeasible Fees (2)

A

Fees which may be terminated

Capable of lasting forever, may be cut short with conditions

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6
Q

Fee Simple Determinable

A

May be terminated by specific durational language

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7
Q

Fee Simple Determinable Language (3)

A

While

During

Until no longer used as

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8
Q

Fee Simple Subject to Condition Subsequent

A

Limited by specific conditional language

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9
Q

Fee Simple Subject to Condition Subsequent Language

A

Provided that . . .

On the condition that . . .

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10
Q

Future Interests Associated with Defeasible Fees - Possibility of Reverter

A

Associated with Fee Simple Determinable

Interest vests automatically after the durational period ends

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11
Q

Future Interests Associated with Defeasible Fees - Right of Entry

A

Associated with Fee Simple Subject to Condition Subsequent

Interest must be reclaimed / exercised

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12
Q

Fee Simple Subject to Executory Interest

A

When a future interest vests in a third party `

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13
Q

Executory Interest

A

Future interest that will cut short or terminate an earlier interest

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14
Q

Life Estate

A

Present estate that is limited by a life

“O conveys Blackacre to A for life”

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15
Q

Life Estate Pur Outre Vie

A

Life Estate measured against the life of another, not the recipient

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16
Q

Life Estate Language

A

“For life”

If ambiguous, look for intention to end a life estate at the end of someone’s life

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17
Q

Life Estate Termination

A

Life Estate ends when the measuring life ends, even if the interest is transferred

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18
Q

Future Interests Following Life Estate - Reversion

A

If the life estate goes back to the grantor after the life estate ends

Will take as Fee Simple Absolute

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19
Q

Future Interests Following Life Estate - Remainder

A

If the life estate goes to a third party after the life estate ends

Third party will take Fee Simple Absolute

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20
Q

Waste (3)

A

When more than one party has an interest in the same piece of real property

`1. Affirmative Waste

  1. Permissive
  2. Ameliorative
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21
Q

Affirmative Waste

A

Waste caused by voluntary conduct, causing decrease in value

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22
Q

Permissive Waste

A

Waste caused by neglect, causing decrease in value

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23
Q

Ameliorative Waste

A

When a life tenant or other person in possession changes the use of the property and increases value

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24
Q

Doctrine of Waste - Applicable Situations

A
  1. Landlord Tenant
  2. Co-tenant out of possession vs Tenant in possession
  3. Lender vs Borrower
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25
Q

Future Interests - Remainders (2)

A

Only follows ending Life Estate, cannot follow vested Fee Simple - must wait for prior interest to end

Vested or Contingent

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26
Q

Vested Remainder

A
  1. Given to an ascertained grantee; and

2. Not subject to a condition precedent

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27
Q

Contingent Remainder

A

If a condition is present in order to vest the Remainder

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28
Q

Class Gifts - Vested Subject to Open (2)

A
  1. Vested remainder in a class gift; and
  2. Full class membership is unknown
  3. At least one person in the class must be vested; nobody vested = remainder is contingent
29
Q

Class Gifts - Vested Subject to Open - Closed Class

A

When all members of a class are known

30
Q

Class Gifts - Vested Subject to Open - RAP Application - Rule of Convenience

A

Rule of Convenience - Class closing mechanism

If the grant does not have express closing date, class closes when any member of the class becomes entitled to immediate possession

31
Q

Doctrine of Worthier Title

A

Prevents against remainders in heirs - creates presumption of reversion to the grantor

Property will not descend to grantee’s heirs

32
Q

Shelley’s Case Rule

A

Prevents against remainders in grantee’s heirs

Doctrine of Merger creates Fee Simple

33
Q

Executory Interests Types (2)

A

Subject to RAP

1) Springing
2) Shifting

34
Q

Springing Executory Interest

A

Divests to grantor

35
Q

Shifting Executory Interest

A

Divests to grantee

Can divest to other grantees

36
Q

Rule Against Perpetuities - Application (3)

A

Applies to:

  1. Contingent Remainders
  2. Executory Interests
  3. Class gifts if not closed
37
Q

RAP - Relevant Life

A

Person who affects vesting

38
Q

RAP - Validating Life

A

Person who tells us whether or not the interest vests within the perpetuities period (life + 21)

  1. Must have been alive when the interests were created
  2. Can validate their own interest
  3. If no validating life, then the interest is struck from grant
39
Q

RAP - Violations

A

Violations are struck - if you can vest beyond 21 years of the death of the validating life, interest is invalid

40
Q

RAP - Class Gifts

A

If the gift to any member of the class is void under RAP, the gift is void to all members of the class

All or Noting Rule

41
Q

Rule of Convenience

A

Can save a class from being invalidated

closes class as soon as a member of the class is entitled to immediate possession

42
Q

RAP - Class Gifts - Exceptions (2)

A
  1. Transfers of a specific dollar amount to each class member; and
  2. Transfers to a sub-class that vests at a specific time
43
Q

RAP - Exceptions - Charities

A

RAP does not apply to a gift from charity to another charity

44
Q

RAP - Exceptions - Options (2)

A

Does not apply to:

  1. An option held by a current tenant to purchase a fee interest in the leasehold property
  2. Option in a commercial transaction
45
Q

RAP - Wait and See Approach

A

Modern Rule

Wait and see if an interest vests within perpetuities period

46
Q

Cy Pres

A

Allows a court to reform a transfer to avoid RAP

47
Q

Concurrent Estates

A

Ownership or possession of real property by two or more persons simultaneously

48
Q

Concurrent Estates - Basic Rule

A

Concurrent owners each have right to use or possess the whole of the property

49
Q

Concurrent Estates - Types (3)

A
  1. Tenancy in Common
  2. Joint Tenancy
  3. Tenancy by Entirety
50
Q

Tenancy in Common

A

Any conveyance to more than one person is presumed a tenancy in common

Concurrent owners have separate but undivided interest in the property

No right of survivorship

51
Q

Joint Tenancy

A

Has right of survivorship - surviving joint tenants automatically take deceased tenant’s interest

52
Q

Joint Tenancy - 4 Unities

A
  1. Possession - Every joint tenant has an equal right to possess the whole property

2 .Interest - Joint tenants must have an equal share of the same type of interest

  1. Time - Joint tenants must receive their interests at the same time
  2. Title - Joint tenants must receive their interests in the same instrument of title
53
Q

Joint Tenancy - Severance

A

If any of the four unities is destroyed, the joint tenancy converts to tenancy in common

54
Q

Joint Tenancy - Severance - Inter Vivos Transfer

A

Transfer during life will destroy / sever right of survivorship

55
Q

Joint Tenancy - Mortgages (2)

A

Joint tenant grants a mortgage interest in the joint tenancy to a creditor

Majority Rule - Mortgage is treated as lien and does not destroy joint tenancy

Minority Rule - Mortgage severs title; convert to tenancy in common

56
Q

Joint Tenancy - Leases (2)

A

Split

  1. Hold lease to sever joint tenancy
  2. Temporary suspension of joint tenancy
57
Q

Tenancy by Entirety

A

Joint tenancy between spouses

Marriage is fifth unity

Has right of survivorship

Cannot alienate or encumber shares without consent of spouse

58
Q

Concurrent Owners - Possession and Use - General Rule

A

Each co-tenant has the right to possess all of the property, regardless that the co-tenant’s share and regardless of co-tenancy type

59
Q

Concurrent Owners - Possession and Use - Exception

A

Co-tenants have entered into agreement to the contrary

60
Q

Concurrent Owners - Possession and Use - Ouster

A

Co-tenant in possession denies another co-tenant access to the property

61
Q

Concurrent Owners - Possession and Use - Ouster - Remedies

A
  1. Get an injunction granting access to the property; and / or
  2. Recover damages for the value of the use while the co-tenant was unable to access the property
62
Q

Concurrent Owners - Third Party Rents / Operating Expenses - Rent

A

Rent is received from a third party’s possession of the property less operating expenses

Divided based on ownership interests of each co-tenant

63
Q

Concurrent Owners - Third Party Rents / Operating Expenses - Operating Expenses

A

Necessary charges, such as taxes or mortgage payments

Divided based on ownership interests of each co-tenant

Co-tenant may collect contribution from other co-tenants for payments in excess of their share of operating costs

64
Q

Concurrent Owners - Third Party Rents / Operating Expenses - Repair

A

There is no right of reimbursement from co-tenants for credit repairs

Co-tenants who make repairs may get credit in a partition action

65
Q

Concurrent Owners - Third Party Rents / Operating Expenses - Improvements

A

There is no right to reimburse for improvement

Co-tenants who make improvements may get credit in a partition action

66
Q

Concurrent Owners - Third Party Rents / Operating Expenses - Partition

A

Equitable remedy - available to all holders of a tenancy in common or joint tenancy

Unilateral right

Court will divide property into separate portions

67
Q

Concurrent Owners - Third Party Rents / Operating Expenses - Partition Division (2)

A

Courts have preference for physical division

Partition by sale if:

  1. Impractical to physically partition; or
  2. Physical partition is unfair to all parties
68
Q

Concurrent Owners - Third Party Rents / Operating Expenses - Proceeds

A

Proceeds from a partition by sale are divided among the co-tenants based on their ownership interests

69
Q

Concurrent Owners - Third Party Rents / Operating Expenses - Agreements

A

Co-tenants can agree not to partition; enforceable if:

  1. Agreement is clear; and
  2. Time limitation is reasonable

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