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Real Property Flashcards

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1
Q

What is a Fee Simple Absolute?

A

A conveyance of absolute ownership of real property. The property is freely devisable, descendible, and alienable.

Priority: Medium

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2
Q

What is a Fee Tail?

A

A conveyance of real property to a person AND their heirs.

*Most states have abolished fee tail ownership.

Priority: Medium

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3
Q

What is a Fee Simple Defeasible, and when is it created?

A

A conveyance of property that has conditions placed on it.

It is created when the grantor uses express conditional language to indicate that it will be terminated upon the occurrence/non-occurrence of an event or condition.

Priority: Medium

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4
Q

What are the three types of Fee Simple Defeasibles?

A

Fee Simple Subject to a Condition Subsequent – reserves a future interest in the grantor.

Fee Simple Determinable – reserves a future interest in the grantor.

Fee Simple Subject to Executory Interest – reserves a future interest in a third-party.

Priority: Medium

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5
Q

What is a Life Estate?

A

A conveyance of real property where a specified life-tenant is entitled to possession of the property during their lifetime.

Upon the life tenant’s death, the property transfers outright to another party (the remainderman).

Priority: Medium

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6
Q

Possibility of Reverter vs. Right of Re-entry

A

Possibility of Reverter: Creates a future interest of possession in the grantor if a specified condition occurs (property automatically vests to the grantor upon occurrence of the condition).

Right of Re-entry: Creates a future interest in the grantor, wherein the grantor has the right to re-enter and take the property if a specified condition occurs.

Priority: Medium

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7
Q

Vested Remainder vs. Contingent Remainder

A

Vested remainder: A future interest in land that is given to an identifiable person with NO conditions.

Contingent remainder: A future interest in land that is conditioned upon the occurrence (or non- occurrence) of a specific event.

*In most jurisdictions, a future remainder interest is devisable and passes to that person’s heirs.

Priority: Medium

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8
Q

What is Tenancy in Common?

A

The default estate created by a conveyance/bequest of real property to two or more people, unless:

  • There is express language stating that the parties have survivorship rights (joint tenancy); OR
  • If the conveyance stated “as husband and wife” (creating a tenancy by the entirety).

*Each tenant has an undivided interest and the right to use and enjoy the property.

Priority: Medium

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9
Q

What Four Unities must be present for a Joint Tenancy to be created?

A
  1. The unity of time;
  2. The unity of title;
  3. The unity of interest; AND
  4. The unity of possession.

There must be clear and express intent to create a joint tenancy.

Priority: Medium

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10
Q

Under what circumstances can an out-of-possession co-tenant collect rent from an in-possession co- tenant (who is in exclusive possession of the property)?

A

When:

  • There is an agreement stating as such; OR
  • The co-tenant seeking rent was wrongfully ousted.

Priority: Medium

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11
Q

When is a co-tenant entitled to reimbursement from other co-tenants for improvements made to the property?

A

ONLY IF there is a separate agreement stating as such.

BUT, if the property appreciated due to the improvements, only the improving co-tenant is entitled to the increase in value.

Priority: Medium

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12
Q

A lease provides the tenant with a present possessory interest in the property, and gives the landlord a future interest.

What are the three types of Leaseholds?

A
  1. Tenancy for Years – fixed period of time, automatically terminates;
  2. Periodic Tenancy – initial period of time, then automatically continues for additional equal periods until terminated by proper notice.

Created by: express agreement, implication, or by law.

  1. Tenancy at Will – continues until either party terminates it, usually created by express agreement.

Priority: HIGH

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13
Q

What may a Landlord do if a Tenant remains on the property and does not pay rent?

A
  • Initiate eviction proceedings; OR
  • Allow the tenant to remain on the property, and sue for damages.

Priority: Medium

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14
Q

What are the Landlord’s two options if a tenant holds over?

A

He may:

  • Evict the tenant; OR
  • Hold the tenant over (by holding the tenant over, an implied month-to-month tenancy is created).

Priority: Medium

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15
Q

What is the Warranty of Habitability?

What can the Tenant do upon breach?

A

It’s implied in EVERY residential lease, and requires the Landlord to provide a place to live that is habitable (reasonably suitable for human needs).

If breached, the Tenant may:

  • Move out and terminate the lease;
  • Withhold or reduce the rent;
  • Repair the issue and deduct the cost from the rent; OR
  • Remain on the premises and sue for damages.

Priority: Medium

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16
Q

When does Constructive Eviction occur?

A

When:

  1. The landlord breached a duty to the tenant;
  2. The landlord’s breach caused a loss of the substantial use and enjoyment of the premises;
  3. The tenant gave the landlord notice of the condition;
  4. The landlord failed to remedy it in a reasonable time after notice was given; AND
  5. The tenant vacated the premises.

Priority: HIGH

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17
Q

Does a Landlord have a duty to mitigate his damages?

A

At common law, a landlord DID NOT have a duty to mitigate.

BUT, now most states DO impose a duty to take reasonable steps to mitigate losses (i.e. attempting to lease to another tenant).

*Mitigation doesn’t need to be successful to recover damages, and a landlord is entitled to sue for the difference in rent between the new and original tenant.

Priority: HIGH

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18
Q

Assignment of a Lease

When does an Assignment occur, and who is liable to the Landlord for rent thereafter?

A

It occurs when the assignor transfers ALL of his remaining interest in a lease to a third-party (the assignee).

Assignee → liable to the landlord for rent and all other covenants that run with the land (privity of estate).

Assignor (Original Tenant) → also remains liable for rent (privity of contract).

Priority: HIGH

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19
Q

Assignment of a Lease

When a lease has a Silent Consent Clause, what two approaches have been adopted by state courts to determine how consent is given?

A

Most States, allow the landlord to withhold consent for any reason (even if unreasonable).

Some States, require the landlord to have a reasonable basis for withholding consent.

For example: Inability to fulfill lease terms, financial irresponsibility, instability, etc.

Priority: Medium

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20
Q

What is a Sublease?

Is a Sublessee liable to the Landlord for rent?

A

A sublease occurs when a sublessor transfers only SOME of his remaining interest in a lease to a third-party.

Sublessee → is NOT liable to the landlord for rent or other covenants (there is no privity of estate).

  • Sublessor (original tenant) → remains liable to landlord for rent (privity of contract).

Priority: Medium

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21
Q

Termination of Leases

What is a Surrender?

A

An agreement between the landlord and the tenant to end a lease early.

If accepted, the tenant’s duty to pay rent ends. If not accepted and the tenant leaves anyway, they are deemed to have abandoned the lease and are liable for damages.

Priority: HIGH

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22
Q

What is a Real Covenant?

A

A non-possessory interest in land that obligates the holder to either do something or refrain from doing something to the land.

(The remedy is damages, unlike equitable servitudes)

Priority: Medium

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23
Q

What must be present to enforce the benefit of a Real Covenant?

A

There must be:

  1. A writing that satisfies the statute of frauds;
  2. Intent that the covenant runs with the land;
  3. Vertical privity between succeeding parties; AND
  4. The covenant must touch and concern the land.

Priority: Medium

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24
Q

What must be present to enforce the burden of a Real Covenant?

A

All of the requirements for enforcing the benefit PLUS:

  1. Horizontal privity between the original parties; AND
  2. The new owner must have notice of the covenant (actual, constructive, or inquiry notice).

Priority: Medium

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25
Q

What is an Equitable Servitude?

A

Covenants that equity will enforce if the burdened estate had notice of the covenants.

(The remedy is injunctive relief, rather than damages)

Priority: Medium

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26
Q

What must be present to enforce the benefit of an Equitable Servitude?

A

There must be:

  1. A writing that satisfies the statue of frauds;
  2. Intent for the servitude to be enforceable; AND
  3. The servitude must touch and concern the land.

Priority: Medium

27
Q

What must be present to enforce the burden of an Equitable Servitude?

A

All of the requirements for enforcing the benefit, PLUS:

  1. The new owner must have notice of the servitude (actual, constructive, or inquiry notice).

Priority: Medium

28
Q

What is the Common Scheme or Plan Doctrine?

A

A court will imply reciprocal restrictive covenants on parcels of land in a subdivision sold by a developer if:

  1. The developer had a common scheme or plan that all parcels of land would be subject to at the time the subdivision was sold; AND
  2. The defendant land owner had actual, inquiry, or record notice of the restriction.

Priority: Medium

29
Q

What is a Common Interest Community (CIC)?

A

A development or neighborhood in which individually owned lots are burdened by a servitude that imposes an obligation to:

  • Pay for or contribute to the maintenance held in common by the individual owners; OR
  • Pay dues or assessments to an association that provides services to the common areas or enforces the servitudes.

*CIC’s include Condo’s, Co-ops, and Home Owner Associations.

Priority: Medium

30
Q

Easements

Easement in Gross vs. Easement Appurtenant

A

Easement in Gross: Benefits a specific owner’s enjoyment, and DOES NOT attach to the land. Doesn’t pass to subsequent owners.

Easement Appurtenant: Benefits ANY owner’s enjoyment, and DOES attach to the land. Passes to subsequent owners.

Priority: HIGH

31
Q

Easements

What is an Easement by Grant?

A

An express agreement by the grantor allowing the easement, which must:

  1. Be in writing signed by the grantor and satisfy the statute of frauds;
  2. Identify the land and parties involved; AND
  3. Indicate the grantor’s intent to convey the easement.

Priority: HIGH

32
Q

Easements

What is an Easement by Prescription?

A

It’s created when the possessor’s use of the land is:

  1. Open and notorious;
  2. Continuous;
  3. Hostile; AND
  4. For the statutory period.

Priority: HIGH

33
Q

Easements

What is an Easement by Implication?

A

It’s established when:

  1. A single tract of land is divided by a common owner;
  2. A pre-existing use by the grantor is established prior to the land division;
  3. The use was continuous and apparent indicating it was intended to be permanent; AND
  4. Such use is reasonably necessary for the owner’s use.

Priority: HIGH

34
Q

Easements

What is an Easement by Necessity?

A

It’s created when:

  1. The original piece of land owned by the one owner is subdivided; AND
  2. Access is essential to the use of the property because no other ingress or egress is available.

Priority: HIGH

35
Q

Easements

What are the ways an Easement can be Terminated?

A
  1. Estoppel;
  2. Termination of the necessity that created the easement;
  3. Involuntary destruction of the servient estate;
  4. Condemnation of the servient estate;
  5. Written release;
  6. Abandonment;
  7. Merger; OR
  8. By prescription

Priority: HIGH

36
Q

What is a License?

A

It is a privilege to use another’s land in a particular way.

It doesn’t need to be in writing, and may be revoked at any time (although a licensor may be estopped from revoking it if the licensee invested money/labor in reasonable reliance).

Priority: Medium

37
Q

What is a Fixture?

(under the Common Law)

A

A fixture is:

  1. Personal property,
  2. That is attached to land or a building, AND
  3. Regarded as an irremovable part of the real property.

*A fixture is treated as real property, and passes with the ownership of the land (unless otherwise agreed).

Priority: HIGH

38
Q

What factors are considered to determine if an item is a Fixture?

A
  1. The nature of the item;
  2. The manner in which it’s attached;
  3. The damage that would result if removed; AND
  4. The extent to which the item is adapted to the property.

*Whether an item is a fixture is determined by the objective intent of the party who attached the item.

Priority: HIGH

39
Q

What are the elements of Adverse Possession?

A

It allows someone who is in possession of land, owned by another, to acquire title when the possession of the property is:

  1. Continuous for the statutory period (i.e. 10 yrs);
  2. Open and notorious;
  3. Exclusive;
  4. Actual; AND
  5. Hostile and under a claim of right.

*An adverse possessor can only acquire title to the portion of the land he has met all the requirements on.

Priority: HIGH

40
Q

What is Constructive Adverse Possession?

A

When a person takes possession of only a portion of the land covered under color of title → that possession extends to the entire portion of the land described in the title for adverse possession purposes.

Priority: HIGH

41
Q

What are the elements of a valid Land Sale Contract?

A

The contract must:

  1. Be in writing;
  2. Describe the property;
  3. Identify the parties involved;
  4. Contain the purchase price; AND
  5. Be signed by the grantor/grantee (depending on who the contract will be enforced against).

Priority: Medium

42
Q

What is Marketable Title?

A

A title that is FREE from any cloud or subject to any adverse claims.

Title is unmarketable when it contains a substantial defect (such as encumbrances, mortgages, liens, etc.).

Priority: Medium

43
Q

What is the Equitable Conversion Doctrine?

A

It splits ownership between the buyer and the seller. The buyer has equitable title, while the seller has legal title and holds the property in trust for the buyer.

*The buyer’s ownership is considered real property, while the seller’s is considered personal property.

Priority: Medium

44
Q

What does a “time is of the essence” clause ensure?

A

It ensures that the buyer MUST perform on the closing date.

If the buyer fails to perform, it will be deemed a material breach and the seller may keep the buyer’s down payment as liquidated damages.

Priority: Medium

45
Q

When is Specific Performance appropriate?

A

When monetary damages will not fully remedy a party’s complaint.

Real property is ALWAYS considered unique, and specific performance is ALWAYS an appropriate remedy.

Priority: Medium

46
Q

What is a Home Builder’s Implied Warranty?

A

A warranty that protects a purchaser of a newly constructed home against latent defects, AND warrants that the building is safe and fit for human habitation at the time of sale.

Priority: HIGH

47
Q

What are the requirements of a valid Deed?

A

A valid Deed must:

  1. Be in writing;
  2. Be signed by the grantor;
  3. Identify the grantor and grantee;
  4. Describe the property; AND
  5. Indicate the grantor’s present intent to convey the land.

Priority: Medium

48
Q

What are the six covenants of a General Warranty Deed?

A

The three present covenants are:

  1. Seisin;
  2. Right to convey;
  3. Against encumbrances.

The three future covenants are:

  1. Warranty;
  2. Quiet enjoyment;
  3. Further assurances.

Priority: HIGH

49
Q

What is a Special Warranty Deed?

A

It ONLY warrants that the seller has not breached the covenants of title during his period of ownership (that the seller hasn’t previously conveyed the property and there are no encumbrances against the title).

Priority: HIGH

50
Q

What is a Quitclaim Deed?

A

A deed that DOES NOT contain any covenants or promises to the buyer. It’s an “AS IS” deed leaving the buyer with NO rights to sue.

Priority: HIGH

51
Q

What happens if a land transfer is NOT recorded?

A

It is considered a “wild” deed and is effective between the parties, but will NOT put subsequent purchasers on constructive notice because it’s outside the chain of title.

Priority: HIGH

52
Q

What are the three types of Recording Statutes?

A
  1. A notice statute – a subsequent bona fide purchaser will prevail over prior grantee that failed to record.
  2. A race statute – whomever records first prevails.
  3. A race-notice statute – a subsequent bona fide purchaser is protected ONLY if he records before the prior grantee.

Priority: Medium

53
Q

What is a Bona Fide Purchaser (BFP)?

A

A person who:

  1. Takes real property without notice of a prior conveyance;
    * *AND**
  2. Pays valuable consideration.

*Receipt of land by gift or bequest does not constitute BFP status.

*Shelter rule: a person who purchases from a BFP receives the same status and rights as a BFP.

Priority: HIGH

54
Q

Who must sign the deed?

A

The grantor of the real property MUST sign the deed, BUT they may designate an agent to sign on their behalf.

If an entity is the grantor, then authorized persons must sign the deed on behalf of the entity.

The grantee is NOT required to sign.

Priority: Medium

55
Q

What is required for a valid Mortgage?

A

It must be:

  1. In writing;
  2. Signed by the party to be charged; AND
  3. Reasonably identify the parties and the land.

Priority: Medium

56
Q

What is a Purchase Money Mortgage?

A

When the seller is the lender who secures the mortgage on the real property.

The buyer of the property is the borrower.

Priority: Medium

57
Q

Who does the holder of a Purchase Money Mortgage have priority over?

A
  1. All claims and mortgages against the mortgagor prior to the purchase of the property;
  2. ALL subsequent claims and mortgages, unless defeated by a recording statute.

Priority: Medium

58
Q

What is a Future Advance Mortgage?

A

A loan in which the lender may provide future payments under the original loan.

The lender secures a mortgage on the real property for the entire amount of the loan, including future advances.

Priority: HIGH

59
Q

What parties are involved in a Deed of Trust?

A
  1. The borrower;
  2. The lender; AND
  3. A third-party trustee who holds title to the property until the loan is paid off.

Priority: Medium

60
Q

Express vs. Implied Mortgage Assumption

A

Express Assumption: There is an express agreement for the grantee to take the real property and continue making payments to the lender.

Implied Assumption: No express agreement exists; the grantee pays the seller only the equity in the home, and the grantee continues making payments to the lender for the balance.

Priority: Medium

61
Q

What is a Variance?

When may it be granted?

A

It is an exception to a zoning ordinance, and two types exist:

  1. Use variance;
  2. Area variance.

It may be granted if: (1) the owner suffers a hardship because of the ordinance; AND (2) the variance would NOT damage or harm the public welfare.

Priority: Medium

62
Q

Conflict of Laws

What is the situs rule for Real Property actions?

A

That the laws of the state where the real property is located will generally govern (i.e. cases involving the title or a contract for the sale of real property).

*States have a strong interest in actions that affect real property within their state.

Priority: Medium

63
Q

What are the three Real Property conflict of laws tests?

A
  1. 1st Restatement – Situs rule – the laws of the state where the real property is located will govern.
  2. 2nd Restatement – The state with the Most Significant Relationship to the property will govern. The situs state is presumed to have the most significant relationship.
  3. Interest Analysis Test – Situs rule will apply UNLESS another state has a greater interest in having their law applied.

*Apply the test that has been adopted by the jurisdiction.

Priority: Medium

64
Q

When Real Property is incidental to a contract, what tests are used to determine the applicable law?

A

Apply the conflict of laws principles for Contracts.

Priority: Medium

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