Real property Flashcards
What is a fee simple absolute?
A conveyance of absolute ownership of real property with no conditions.
What is a fee tail?
A conveyance of real property to a person and their heirs. It is abolished in most jurisdictions.
What is a fee simple defeasible?
A conveyance of real property with conditions. It is created with express conditional language. Ownership may be terminated on the occurrence or non-occurrence of an event or condition.
What is a fee simple determinable?
A conveyance that reserves a future interest in the grantor. It is created with words of duration, such as, so long as, during, while. The conveyance is auto-terminated if the specific condition occurs.
What is a fee simple subject to a condition subsequent?
A conveyance of real property that reserves a future interest in the grantor. It is created when a conveyance is subject to grantor’s right of re-entry if a specific condition occurs. It only terminated with grantor affirmatively exercises his right of re-entry.
What is a fee simple subject to executory interest?
A conveyance of real property that reserves a future interest to a 3rd party.
What is a life estate?
a conveyance of real property where the life tenant is entitled to possession during their lifetime. Upon their death, the interest in transferred to another party.
What is a life tenant responsible for?
They are responsible for ordinary expenses and taxes of the property during their life. They are not allowed to commit waste that causes the property to decrease in value.
What is a possibility of a reverter?
If the condition of a conveyance occurs then the grantee’s interest auto-terminates and vests in the grantor.
What is a right of re-entry?
If a specified condition of a conveyance occurs then the grantor may re-enter & take the property.
What is a vested remainder?
It is a future interest in land given to an identifiable person with no conditions.
What is a contingent remainder?
It is a future interest in land conditioned upon the occurrence or non-occurrence of a specified event.
What is a remainderman?
Upon a life tenant’s death, ownership of the property transfers to a specified person.
What is a tenancy in commons?
It is the default estate created when land is conveyed to 2+ people unless: 1. express language states that the parties have a ROS (joint tenancy) or 2. conveyed as “husband and wife” (tenancy by the entirety). Each owner has an undivided interest in the property and has the right to use and enjoy the entire property. The interest passes either by bequest or intestacy.
How do you create a joint tenancy?
You need the 4 unities. Time, Same Title, Same Interest and Possession. There must be clear & express intent to create a JT with ROS.
HOW DO YOU SEVER A JOINT TENANCY?
One way is if 1 JT unilaterally transfers his ownership interest. If there are more than 2 people in JT then JT remains but only among JT. A second way is if one JT takes out a mortgage in a title theory jx. In a lien theory jx taking out a mortgage doesn’t sever the JT.
What is the co-tenant’s entitlement to rent or reimbursement?
An out of possession co-tenant doesn’t have right to rent unless it is agreed on or if they were wrongfully ousted?
Is a co-tenant entitled to rent from a 3rd party?
Yes. A co-tenant is entitled to a fair share of rent.
Is a co-tenant entitled to reimbursement repair costs?
Yes, for necessary repairs, unless there was a wrongful ouster.
Is a co-tenant entitled to improvement costs?
No, unless otherwise agreed. However, the improving tenant is entitled to the downside risk or upside gain.
WHAT IS A LEASEHOLD INTEREST?
A lease that grants a tenant the present possessory interest in real property for a limited period of time.
WHAT IS A TENANCY FOR YEARS?
A lease that lasts for a fixed period of time and which auto-terminates when the period ends.
WHAT IS A PERIODIC TENANCY?
A lease thats lasts for an initial period then auto continues for additional equal periods (wkly/monthly) until it is terminated by proper notice. Proper notice requires at least full period in advance. (if yrly need 6 month ntc).
HOW IS A PERIODIC TENANCY CREATED?
It is created by express agreement or by implication if rent is paid or by law when a tenant for years remains after termination of the period or lease is invalid.
WHAT IS A TENANCY AT WILL?
It is a lease that continues until either party terminates it. Termination requires notice and rx time to quit the premises. Only in some states in notice not required.
What is the tenant’s duty to pay rent?
It is a duty that runs with the land. If the tenant remains on the land and doesn’t pay then the LL can evict the tenant or allow the tenant to remain and sue for damages.
If the tenant abandons w/o paying rent LL can mitigate damages in some states.
Who is a hold-over tenant?
A tenant that stays after the lease ends. A LL can evict the tenant or hold the tenant over if this happens. An implied month-to-month tenancy is created with identical terms as the prev. lease.
Modern view is that the the lease is month to month. The common law says the lease is for the same period as the original lease.
Does a hold-over tenant have to pay higher rent?
Only if they were informed of the higher rent before the end of their lease.
What is the implied warranty of habitability?
A warranty that states that the LL must provide something that is habitable. In some states this duty is imposed on commercial leases.
What does habitable mean?
Rx suitable for human needs.
What happens if there is a breach of the implied warranty of habitability?
The tenant may move out and terminate lease or withhold or reduce rent or repair issue and deduct cost or remain and sue.
WHEN DOES A CONSTRUCTIVE EVICTION OCCUR?
1) Landlord breached a duty to tenant;
2) The breach caused a loss of the substantial
use and enjoyment of the premises;
3) Tenant gave landlord notice of the condition;
4) Landlord failed to remedy the condition within
a reasonable time; AND
5) Tenant vacated the premises.
WHAT LL DUTIES EXIST IN A RESIDENTIAL LEASE?
LL has a duty to repair common areas and warn of latent defects that create a risk of serious harm that the LL knows or should have known.
What is the implied covenant of quiet enjoyment?
It prevents a LL from interfering with the tenant’s quiet
enjoyment and possession of the property, which is breached when a tenant is constructively evicted.
WHAT LL DUTIES EXIST IN A COMMERCIAL LEASE?
No duties to repair unless specified in lease.
DOES THE LL HAVE A DUTY TO MITIGATE DAMAGES?
Under the CL the LL does not have a duty to mitigate but in most states there is a duty for a LL to take rx steps to mitigate losses.
WHAT IS AN ASSIGNMENT OF A LEASE?
It is when a tenant transfers their interest to a 3rd party. A lease may freely be assigned unless the lease states otherwise. An assignment cannot last longer than the lease.
WHAT IS AN ASSIGNEE’S LIABILITY FOR RENT OR BREACH?
An assignee is liable to the LL for rent and all covenants that run with the land.
WHAT IS THE ASSIGNOR’S LIABILITY?
Original lessee, aka assignor, is liable to LL for rent.
WHAT IS THE LL’S LIABILITY?
LL has maintenance obligation.
DOES LL HAVE TO CONSENT TO ASSIGNMENT?
If lease requires owner’s consent consent must be obtained. LL waives this right if he accepts rent from Assignee. If lease is silent LL may withhold consent for any reason in most states. In some states LL must have a rx basis for withholding consent.
WHAT IS A SUBLEASE?
A sublease is when a tenant only transfers some of his interest. Tenant may do so unless lease says no but it cannot be for longer than the lease. Sublessee isn’t liable to LL for rent or other covenants.
WHAT IS A SURRENDER OF A LEASE?
It is an agreement to end a lease early. The LL must clearly accept surrender (unless otherwise agreed). If LL accepts then no more rent but if LL rejects and tenant abandons then liable for damages.
What is a real covenant?
A non-possessory interest in land that obligates the holder to do nro not do something. The remedy is damages.
How do you enforce the benefit of a covenant?
It must have:
1) a writing satisfying the statute of frauds,
2) intent that the covenant runs with the land,
3) vertical privity – when a successor holds the
entire interest held by a predecessor, AND
4) the covenant touches & concerns the land
(makes the land more useful or valuable).
How do you enforce the burden of a covenant?
It must have:
1) a writing satisfying the statute of frauds,
2) intent that the covenant runs with the land,
3) vertical privity – when a successor holds the
entire interest held by a predecessor, AND
4) the covenant touches & concerns the land
(makes the land more useful or valuable).
PLUS: 5) horizontal privity between the original parties, AND
2) the new owner must of had notice of the
covenant.
What notice is required for a real covenant?
Actual (knowledge), constructive (covenant is recorded), or Inquiry (inspection would reveal it).
What is an equitable servitude?
a covenant that equity will enforce if the burdened estate had notice of the covenant (regardless of whether it runs with the land). The remedy is injunctive relief.
How do you enforce the benefit of an equitable servitude?
It must have:
1) a writing satisfying the statute of frauds,
2) intent for the servitude to be enforceable, AND
3) the servitude touches and concerns the land
(makes the land more useful or valuable).
How do you enforce the burden of an equitable servitude?
It must have:
1) a writing satisfying the statute of frauds,
2) intent for the servitude to be enforceable, AND
3) the servitude touches and concerns the land
(makes the land more useful or valuable). PLUS
4) the new owner must of had notice of the servitude (actual, constructive, or inquiry).
What is the common scheme or plan doctrine?
Courts will imply reciprocal restrictive covenants on land parcels in a
subdivision sold by a developer ONLY IF:
1) Developer had a common scheme or plan that
ALL parcels would be subject to the restriction at
the time sold; AND
2) Land owner had notice of the restriction.
Reciprocal negative servitudes only apply to negative
covenants and equitable servitudes.
What is a common interest community?
A development of individually owned lots which have an obligation to:
a) pay for maintenance of the property held in common; OR
b) pay dues to an association
that maintains the properties.