Real Property Flashcards
Fee Simple
is divisible, descendible, and alienable
Fee tail
abolished as a matter of public policy AND turns into a fee simple
life estate
Limited by the doctrine of waste (ameliorative waste does not count if property was condemnable)
FUTURE INTEREST= reversion of grantor OR remainder in 3rd party
If life estate in 2 people, contingent remainder in fee simple upon death of first.
fee simple determinable
REQUIRES= clear conditional language, violation of which leads to automatic forfeiture
CHARACTERISTICS: divisible, descendible, and alienable BUT always subject to durational condition
FUTURE INTERESTS: Possibility of Revertor
Fee Simple Subject to Condition Subsequent
REQUIRES = clear language that grantor has right to re-enter
CHARACTERISTICS = divisible, descendible, alienable, subject to condition. If violated –> interest may terminate at grantor’s option
FUTURE INTEREST= Right of entry
Fee Simple Subject to Executory Limitation
CHARACTERISTICS= divisible, descendible, alienable but subject to limitation
FUTURE INTEREST= Shifting Executory interest to3rd Party
Future Interests to Grantor
1) Possibility of Revertor
2) Right of Entry
3) Reversion
Shifting Executory Interest (Future Interests to 3rd Party)
Follows defensible fee of some sort
Contingent Interest
Future interest of third party
Unascertained person OR subject to condition precedent, or both
If condition precedent, conditional language appears before language creating remainder
If satisfied, becomes an indefeasibly vested remainder
Vested Remainder
future Interest of third party
Ascertainable AND NOT subject to condition precedent
Indefeasibly Vested Remainder
Future Interest of Third Party
Third person certain to acquire future interest without condition
Vested remainder Subject to Complete Defeasance/Total Divestment
Third Party’s future interest could get short by satisfaction of a condition subsequent
Doctrine of waste
(Very Athletic Purple Aliens)
Voluntary OR Affirmative waste
Permissive Waste
Ameliorative Waste
Voluntary or Affirmative Waste
Overt conduct causing a decrease in value or consumption/exploitation of natural resource
Exceptions = PURGE
Prior Use (if exploitation previously occurred, but limited to Open Mines Doctrine)
Reasonable repairs
Grant; or
Exploitation (land only suitable for this purpose ).
Permissive Waste
Life Tenant must pay all ordinary taxes and mortgage interest payments, and protect land from disrepair by conducting reasonable maintenance.
Ameliorative Waste
acts that may enhance property’s value not allowed UNLESS future interest holders know + give consent
Rule Against Perpetuities
Voids Future interests if any the possibility that is given in interest may vest >21 after death of measuring life
RAP Analysis
1) Last person mentioned by proper name
2) Next subsequent party not mentioned by proper name takes
3) the rest is truck
RAP Reform
Wait and See/Maj. J. = determine RAP at end of measuring life
Uniform Statutory RAP: provides for 90 year vesting period instead of life + 21 years
Joint Tenancy
Four Unities = TTIP (time; title; interest (equal) AND possession of the whole)
Grantor must clearly express survivorship rights
CHARACTERISTICS= not devisable or descendable; alienable BUT destroys joint tenancy
How to sever a joint tenancy?
SPAM – Sale, Partition (voluntary agreement; partition in kind; forced sale), Mortage (IF title theory, not client title theory)
Tenancy by the Entirety
Martial interest between H & W with right of survivorship
CREATION = only H&W who takes as one. Presumption when couple takes
CHARACTERISTICS = creditors can’t touch and no unilateral conveyance to 3rd party
Tenancy in Common
CHARACTERISTICS = each co-tenant owns individual part with right to enjoy/possess the whole
Descendible, divisible, and alienable. NO survivorship rights
Rights of Co-Tenants
POSSESSION = each has the right to posses the whole ; no ouster
RENT FROM CO-T = none; absent ouster
RENT FROM 3rd PARTIES = lease of premises must account to co-T for fair share of income
ADVERSE POSSESSION = co-T can’t adversely possess unless valid ouster
CARRYNG COSTS = each co-T must pay for portion of taxes and mortgage
REPAIRS = contribution from other co-Ts if co-Ts advised reasonable & necessary repairs
IMPROVEMENTS= no contribution from Co-Ts. But at partition, improver responsible for increase or decrease in value
WASTE =no waste and liability if co-T commits
PARTITITION = an co-T can seek it
Tenancy of Years
lease of fixed/determinable period
TERMINATION = no notice required
Term > 1 yr MUST be in writing (SoF)
Periodic Tenancy
Successive or Continuous Intervals
TERMINATION = notice required; must be at least equal to length of period with end at natural lease tenancy
EXPRESS or IMPLIED
Implied Periodic tenancy
1) no duration specified but payment required at specific intervals;
2) oral agreement of terms of years with payment at specific intervals OR
3) if landlord elects to holdover tenant who wrongfully stays
Tenancy at will
no fixed period of duration
Termination at ANY time
Tenancy at Sufferance
T wrongfully holds over expiration of lease
Tenant Duties: Duty to 3d Parties
Must keep premises in good receipt
Liability for injuries sustained by invitees, even if L promised to repair
Duty To Repair (tenant duties)
must maintain premises and make ordinary repairs; no waste
FIXTURESL pass with ownership of land unless private OR T can remove without causing substantial harm to premises
LOSS: CL – T liable for any loss, including force of nature. Modification: if loss w/o fault of T, T may terminate lease.
Duty to pay rent (tenant duties)
CL: Duty independent of L’s obligation
Modern Modification: duty dependent on L’s covenants under lease
Breach of Duty to Pay rent when Tenant in Possession of Property (tenant duties)
Commercial Ts: may be held for new yr-to-ry lease if original was > 1 yr
Residential Ts: held to new month-to-month lease, regardless of original term
Rent = new rent if L advised T before term of old lease OR old rent if L advised T after term.
If Tenant Fails to Pay Rent when Out of Posession
Acronym = SIR
1) Surrender (L treats as ending of leasehold, but if > 1 yr left, writing may be required ):
2) Ignore (hold T responsible for rent unpaid);
3) Re-let (hold T liable for deficiency but L must diligently try to re-let)
Duty to deliver Possession (landlord duties)
Majority (English rule): put T in physical possession. IF former T on premises, L is liable for damages
Minority (American rule): Put T in legal possession, IF former T on premisses, that is T’s issue
Implied Covenant of Quiet Enjoyment (landlord duties)
Breached by Total/Partial Actual or Constructive Eviction
TOTAL EVICTION: L excludes T from entire premises; or actual or continual refusal to repair material damages that prevent habitability (terminates T’s obligation to pay rent)
PARTIAL EVICTION: 3rd party retakes and physically excludes T form portion of leased premises (rent proportionality reduced)
Constructive Eviction
SING
S I = Substantial Interference (chronic problem fundamentally imcompatible with quiet enjoyment);
N = Notice (T notifies L, who fails to respond);
G = Get out (T must vacate within reasonable time)
Actions of other tenants (landlord duties)
L not responsible for actions of other Ts, except cannot permit nuisances and must control/police common areas
Tort (landlord duties)
CLAPS:
C = Common Areas (must maintain) L = latent defect (warn of those latent defects landlord should be aware of); A = Assumption of Repairs (if you say you'll fix, fix with reasonable care); P = Public use Rule (defects if leasing public space); S = Short term lease of furnished apt (liable for any defects causing harm)
Implied Warranty of Habitability (Residential Only, landlord duties)
REQ’T: fit for basic human habitation as determined by housing code or individual judicial conclusion.
Breach: M + 3 Rs
M = Move out (and terminate); R= Repair and deduct R = Reduce rent (or withhold until court determines fair market value -- but put $ in escrow); R = remain and sue (pay rent and get damages)
Tenant Power
T only has ability to assign or sublease the interest (time) he has
If extended, then sublease for that extra time would be invalid and the submitter/assignee could be ejected
Assignments (landlord tenant)
Transfer in entirety. L and T2 are in privity of estate but not in privity of K.
L and T1 not in privity of estate but in privity of K.
T2 is primarily responsible and T1 is secondarily responsible
SUBLEASE: only portion of interest transferred. L and T2 are not in privity of estate or K. T1 and T2 are responsible to each other.
Affirmative Easements
Right to do something on serviant land
Negative easements
Requires holder to compel serviant owner to refrain.
Limited to LASSS: Light, Air, Support, Stream, Scenic View
Easement Appurtenant
Physical use/enjoyment of property
Passes automatically with dominant tenement and with servient tenement unless BFP without notice
IN GROSS: only personal or commercial advantage.
Non-transferrable unless for commercial purpose
Creation of an Easement
PING:
P = Prescription (continuous, open, adverse, hostile) I = Implication (if division, implied from existing use if apparent and reasonably necessary to dominant land's use/enjoyment) N = Necessity (if division creates land lock) G = grant (>1yr must be in writing)
Termination of an Easement
END CRAMP:
E = estoppel (servient landowner materially changes position in reasonable reliance that easement won’t be enforced);
N = Necessity:
D = Destruction of servient land
C = Condemnation of servient land by imminent domain;
R =elease (in writing)
A = Abandonment (physical action by holder expressing intent never to use again);
M= Merger (if separated later, doesn’t auto revive)
P = Prescription (servient owner interferes)
License
Privilege to enter land for specific purpose
Informal and freely and revocable, unless estoppel (licensee invested substantial money/labor in reasonable reliance on continuation)
Profit
Permission to enter land to take soil. Same rules as easements.
Covenant ($ damages)
Contractual promise to do or not to do something on the land
Covenant ($ damages): Burden Runs
WITHVN:
W = writing (by original parties)
I = Intent (by original parties to run)
T = Touch/Concerns (provides some value to benefited party);
H + V = horitzontal and vertical privity (H: succession of estate between original parties, e.g., grantor/ee, L/T, debtor/creditor. V = non-hostile nexus)
N = Notice (AIR (actual, record, or inquiry)
Covenant ($ damages): Benefit Runs
WITV
W = Writing I = Intent T = Touch and Concern V = Vertical Privity
Equitable Servitude
Operates like covenant, but injunction required to enforce burden
Creation of Equitable Servitude
WITNES:
W= Writing I= Intent T=Touch and Concern N= Notice E= equitable S= servitude
Implied Equitable Servitude
Majority Rule:
Req’s: (1) General scheme by subdivider began when sale began; and (2) Notice (AIR)
Defense: changed condition is SO pervasive it affects entire area
Adverse Possession
Possession for statutory period of time can ripen into title if its COAH:
C: continuous
O: Open and Notorious
A: Actual
H: Hostile
Possessor’s state of mind is irrelevant. NO adverse possession if owner disable at inception.
Tacking OK IF privity between adverse possessors
Requirements for a Land Contract (land conveyances)
SoF require writing unless (2 or 3):
1) Posession
2) Payment
3) Substantial Improvements
Risk of Loss in Land Contract (Land Conveyances)
B owns land when K is signed so buyer bears risk
Implied Promised in Land Contract
MARKETABLE TITLE at closing free from adverse possessions, encumbrances, zoning violations
NO FALSE STATEMENT OF MATERIAL FACT, including failure to disclose latent, material defects
NO IMPLIED PROMISE OF FITNESS OR HABITABILITY unless new home builder (promise of workmanlike construction)
Effect of untimely performance
Time not of the essence UNLESS stated in K
Performance rendered within reasonable time after closing date is OK
Deed requirements
Deed replaces K as controlling doc.
Req’s: LEAD – Lawfully Executed And Delivered
Lawful execution = writing, signed by grantor (“G”), comports with stat req’s (no consideration req’d and description only requires “good lead”)
Delivery: G must have present intent to be immediately bound. Recipient’s express rejection defeats delivery
Quitclaim Deed
No covenants. Only gives what grantor has.
General Warranty Deed
Sad Crying Elvis Wants Queen Anne
Seisin: G owns estate he's conveying Rt. to Convey -- has power to convey w/o temp. restraints; Against encumbrances (no servitudes or mortages0 Warranty (promise to defend against lawful claims by others) Quiet enjoyment (no disturbance by 3rd party's lawful claim of title) Further Assurances (do whatever necessary to perfect title)
Statutory Special Warranty Deed
Promises G makes on behalf of himself that he won’t convey to anyone else and property is free from encumbrances made by G
Why is protected?
BFP: purchaser for value and without notice of someone else buying first (actual, inquiry or record notice).
Doomed Donner: no protection for heir, devisee, or donee except shelter rule.
Estoppel: person conveying land w/o any interest in it is estopped from denying validity of conveyance if he late acquires.
Shelter Rule (Recording System)
One who takes from BFP is protected just like BFP
Wild Deed
Out of order deed doesn’t give record notice
Notice Statute Jurisdiction
2nd buyer wins if neither BFP nor buyer A record
Race Notice Jurisdiction
1st Buyer wins if records before 2nd buyer
Legal Mortage
Encumbrance in writing
Equitable Mortgage
Deed absolute on face given as collateral
Transfer of a Mortage
1) Note must be negotiable and made payable to named mortgage
2) original note must be endorsed and signed by mortagee
3) original must be delivered
4) Transferee must take note in good faith without notice of illegality
5) Transferee must pay value for note.
Transferee is holder in due course. T takes free of personal defenses but subject to real defenses.
Real Defenses - MAD FIFI 4
MAD FIFI 4
Material Alteration Duress Fraud in Factum Incapacity Illegality Infancy Insolvency
Selling Property with a Mortage
Assumption of mortgage: Debtor and buyer are personally liable. Buyer is primarily and Devtor is secondarily liable
Subject to no mortgage: Buyer has no personal liability; only owner is personally liable, but home can still be foreclosed
Joinder
All junior lien holders must be joined or mortgage will remain on land
D must be joined if seeking deficiency judgement
Redemption
IN equity: up to date of sale, debtor may pay missed payments + interest + cost
Statutory redemption: 1/2 states allow redemption within fixed period (e.g. 6 months). Mortagor has right to possess during that time.
Priority
First to record, first in right
BUT, purchase money mortgage has “super-priority”
Senior Interest
If sale < debt, mortgage brings deficiency action
If sale > debt, junior liens paid in full by order of priority, surplus to debtor
Amount
If sale > debt, mortgage (*****
Groundwater
Surface owner has right to make reasonable use of water beneath surface, but can’t be wasteful
Prior Appropriation Doctrine
Water initially belongs to the sate
Right to divert and make beneficent use can be acquired by indiviudal
Rights determined by priority of beneficial use (e.g., agriculture). First in time, first in right generally
Riparian Doctrine
Water belongs to landowners (riparians) bordering water course
Liable only for unreasonable interference with other’s use
Lateral Support
Strict liability if excavation causes adjacent land in natural state to cave or if land with building can show the land would have collapsed in natural state
Surface Water
Common enemy rule: landowner can change drainage, but can’t unnecessarily harm land of another
Variance (zoning)
Creates flexibility
Requirements: 1) undue hardship; 2) variance won’t decrease neighboring prop value
Determined by admin action before zoning board
Non-conforming use
Once lawful but no longer because of new zoning ordinance
Can’t be eliminated all at once unless just compensation paid
Unqualified Exception
Amenities government seeks in exchange for granting permission to build.
Inherently suspect – must be reasonably related in nature and scope to impact of proposed development
Institutionalizeed Persons Act (RIULPA)
No zoning restrictions that impose substantial burden on religious exercises of a person/institution unless compelling government interest
Cumulative zoning
Zones ranked in hierarchy. Residential zones = higher business zones = lower
Uses allowed in higher zones also allowed in all lower zones. But, no uses allowed in higher zone than the zone for which it was originally listed. (e.g., may build residential home in business district, but no businesses in residential district).
Non-cumulative (exclusive) zoning
Allowed uses are exclusive to individual district (e.g., no residential building in business district)
Grandfather clauses
Exempt businesses/ class of persons from new zoning rules/regulatinos
Validity of grandfather clausesT
Typically valid IF lawful non-conforming uses
BUT there is expectation that non-conforming use will come to an end (e.g., factory in residential zone may be prohibited from upgrading facilities since owl indicate no intent to eventually conform)
Re: Disposition of property
disposition (by decent, deed, or any other method) governed by laws of place where property located
BUT: if property only incidental to K and K is personal in nature, traditional conflicts of law rules for Ks apply
Re: validity of land contract
If no choice of law by parties, validity of K determined by local law of state where property located. UNLESS another state has more significant relationship under choice of law principles to transaction or parties.
Re; Executory K for sale of land
Typically governed by law of jurisdiction where property located. BUT in some jurisdictions, validity and effect of executory K for land sale governed by place where K is made and to be performed
