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Real Property Flashcards

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1
Q

Four unities

A

TTIP: same time, same title, same interest, right to possess the whole.
Creates joint tenancy (w/ express right to survivorship

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2
Q

trade fixtures doctrine

A

commercial tenant may remove all trade fixtures installed on a leased premises prior to the expiration of the lease, except accessions (structural additions)

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3
Q

implied covenant of quiet enjoyment

A

Prohibits actual total or partial eviction, constructive eviction, and nuisance by third parties

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4
Q

actual eviction

A

violates implied covenant of quiet enjoyment.
Total or partial eviction by landlord: relieves tenant’s duty to pay rent on the entire premises
Partial eviction by paramount title holder: tenant must pay rent minus the proportion of property tenant is excluded from.

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5
Q

constructive eviction

A

violates implied covenant of quiet enjoyment
SING:
Substantial Interference: chronic/permanent problem due to landlord’s actions or failure
Notice: tenant must notify the landlord
Goodbye: tenant must vacate

Remedies: terminate the lease and seek damages

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6
Q

implied warranty of habitability

A

residential leases only (not commercial leases); nonwaivable
premises must be fit for basic human habitation
remedies: MRRR
Move out & terminate lease (not required)
Repair and deduct cost from rent
Reduce/withhold rent until fair rental value determined (escrow account usually expected)
Remain in possession, pay full rent, sue for damages

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7
Q

assignment

A

transfer of entire remaining leasehold interest; assignee stands in the shoes of original tenant
privity of estate: landlord & current possessory assignee (not prior assignees); liable to each other for covenants that run with the land (touch and concern) (original landlord remains liable for covenants that run with the land after the landlord assigns his interest)
privity of contract: landlord & original tenant; secondarily liable to one another

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8
Q

sublease

A

transfer of part of the remaining leasehold interest
privity of estate AND privity of contract: original tenant and landlord; no privity relationship between landlord and subtenant
landlord and subtenant are not directly liable to one another. One party may sue the original tenant for the wrongs of the other party and the original tenant may implead the other.

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9
Q

landlord tort liability

A 
caveat lessee (let the tenant beware), except CLAPS:
Common areas: duty of reasonable care in maintaining common areas
Latent defects: duty to warn about latent defect the LL knew or should have known about (failure to warn = liability for injuries caused by defects)
Assumption of repairs: duty of reasonable care for repairs undertaken (no duty to undertake repairs)
Public use rule: liability for injuries caused by defects in short-term rental of public space when LL knew or should have known of the defect
Short-term lease of furnished dwelling: liability for injuries caused by defects, whether or not LL knew or should have known about the defect
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10
Q

easement appurtenant

A

benefits the holder in the use and enjoyment of his own land
characterized by two parcels: a dominant tenement and a servient tenement
Transferability: passes automatically with transfer of dominant tenement, whether or not mentioned in conveyance; passes automatically with transfer of servient tenement unless conveyed to a bona fide purchaser (i.e., purchaser for value with no actual, inquiry, or record notice of the easement)

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11
Q

easement in gross

A

does not benefit the holder in the enjoyment of his own land; characterized by only one parcel: a servient tenement (e.g., laying power lines on a lot, using a parcel to place a billboard, right to swim in another’s pond)
Transferability: not transferable unless for commercial purposes

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12
Q

negative easement

A 
prohibits otherwise lawful activity on another's property
must be created in writing
Uses: LASS(S)
Light
Air
Subjacent support
Stream water
(Scenic view; minority of states protect this)
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13
Q

positive easement

A 
permits use of another's land. Four methods of creation: PING
Prescription
Implication
Necessity
Grant
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14
Q

express easement (easement by grant)

A

deed of easement: usually in writing and signed by servient tenement owner unless Statute of Frauds is not implicated

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15
Q

prescriptive easement

A

Elements: COAH (similar to adverse possession, minus exclusivity)
Continuous & uninterrupted use for statutory period
Open & notorious (discoverable upon reasonable inspection)
Actual use (NEED NOT BE EXCLUSIVE)
Hostile (without permission)

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16
Q

easement by implication

A

Implied from preexisting use (quasi-easement):
previous use on servient land is apparent and continuous, AND parties expected the use would continue because it is reasonably necessary for use and enjoyment of dominant tenement

Implied without preexisting use:

(1) subdivision plat: parcels within a subdivision have an implied right to use the roads in the subdivision for ingress and egress,
(2) profit (a prendre): holder of a profit has an implied easement to access land as needed to extract resources under the profit

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17
Q

easement by necessity

A

implied
landowner conveys portion of their land with no way out except over part of the grantor’s land
owner of servient parcel has right to locate the easement

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18
Q

terminating an easement

A

surcharge (misuse/overuse) of easement WILL NOT terminate the easement (servient parcel owner has right to sue for injunction)

ENDCRAMP
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger 
Prescription
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19
Q

terminating easement by estoppel

A

(1) oral expression of intent to terminate easement, and

(2) detrimental reliance on the statement

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20
Q

terminating easement by necessity

A

when the necessity that created the easement terminates, so will the easement, unless it was reduced to writing

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21
Q

terminating an easement by destruction

A

when the servient land is destroyed, other than by willful conduct of the servient owner, the easement will be terminated

22
Q

terminating an easement by condemnation

A

easement will be terminated if the servient estate is condemned through eminent domain by the government

23
Q

terminating an easement by release

A

written release from the dominant tenement holder will terminate the easement

24
Q

terminating an easement by abandonment

A

physical action manifesting an intent to never use the easement again
Mere nonuse, even for extended periods of time, is insufficient

25
Q

terminating an easement by merger

A

the easement terminates when title to the servient and dominant tenements are vested in the same person.
the interest in the servient tenement must be equal to or longer than the interest in the dominant tenement.
if the parcels are divided again, the easement does not resume

26
Q

terminating an easement by prescription

A 
servient tenement holder may occupy the easement and extinguish the easement through the same process as gaining an easement by prescription: COAH
Continuous interference
Open and notorious
Actual (exclusive?) 
Hostile
27
Q

license

A

freely revocable privilege to enter another’s land
no alienable
writing not required (failed easements are licenses)
terminated at the will of the grantor
may become an easement by estoppel based on detrimental reliance

license + interest: license is irrevocable so long as the interest lasts (e.g., future interest holder may enter land to check for waste)

28
Q

profit (a prendre)

A

allows holder to enter land to take resources
same rules as easements re creation, alienation, and termination
surcharge will result in termination

29
Q

real covenants & equitable servitudes

A

promises or limitations related to the land
restrictive/negative covenant: promise not to do something related to the land (promise not to build for commercial purposes)
affirmative covenant: promise to do something related to the land (promise to maintain a common fence)

real covenants are enforceable with legal remedies
equitable servitudes are enforceable with equitable remedies

real covenants pass to successors if the covenant runs with the land

properly formed equitable servitudes will bind successors whether or not the servitude runs with the land

30
Q

when a real covenant runs with the BURDENED estate

A

WITHN
Writing: agreement between original covenanting parties must be in writing
Intent: original covenanting parties must have intended the covenant to run with the land (construed broadly)
Touch and concern: the covenant must affect the relationship between the parties as landowners
Horizontal AND vertical privity:
- horizontal: original parties must have succession of estate (some shared interest in the land apart from the covenant; e.g., mortgagor-mortgagee, etc.)
- vertical privity: non-hostile nexus between successor and predecessor (e.g., deed, will, contract; NOT adverse possession)
Notice: successor must have actual, inquiry, or record notice of the covenant (a bona fide purchaser does not take subject to the covenant)

31
Q

when a real covenant runs with the BENEFITTED estate

A

WITV
Writing: agreement between original covenanting parties must be in writing
Intent: original covenanting parties must have intended the covenant to run with the land (construed broadly)
Touch and concern: the covenant must affect the relationship between the parties as landowners.
Vertical privity (no horizontal privity): non-hostile nexus between successor and predecessor (e.g., deed, will, contract; NOT adverse possession)

32
Q

creation of an equitable servitude

A

WITNES
Writing (to satisfy Statute of Frauds)
- exception: common scheme doctrine, or implied negative reciprocal servitudes
Intent: original parties intended the servitude to be binding on successors
Touch and concern: promise affects the relationship between the parties as landowners
Notice: successors must have actual, inquiry, or record notice of servitude to be bound
ES, for Equitable Servitude

33
Q

common scheme doctrine, or implied negative reciprocal servitudes

A

courts will imply a negative servitude when:

(1) defendant’s lot is part of a residential development,
(2) covenants regarding a common residential development plan were included in deeds for lots sold prior to defendant’s, and
(3) defendant’s deed does not include the servitude

34
Q

defenses to enforcing equitable servitudes

A
  • changed conditions: neighborhood conditions of the entire subdivision have changed so much that enforcement of the servitude would be inequitable
  • unclean hands
  • acquiescence
  • estoppel
  • laches
35
Q

requirements for an effective deed

A

LEAD
Lawful Execution and Delivery
Execution:
(1) writing signed by grantor
(2) unambiguous description of the land (need not be perfect; enough information to provide a good lead such that the land can be ascertained with research is sufficient)
(3) identification of the parties
(4) words indicating a transfer (e.g., “grant”)

Delivery:
grantor’s present intent to part with control (physical delivery is not required)

36
Q

fee simple absolute

A

absolute ownership of indefinite duration
alienable, devisable, descendible
“To A…” or “to A and his heirs…”
NO FUTURE INTEREST (living person has no heirs; future interest in heirs does not materialize until death)

37
Q

defeasible fees

A

fee simple “with a catch”

(1) fee simple determinable
(2) fee simple determinable
(3) fee simple subject to executory interest

38
Q

fee simple determinable

A

fee simple ownership while condition precedent is satisfied
when condition precedent is violated, interest reverts to the grantor automatically (possibility of reverter)
“To A while/until/during/for so long as…”
All defeasible fees are alienable, descendible, and devisable; absolute restraints on alienation are void

To Troy, for so long as he is an attorney.

39
Q

fee simple subject to condition subsequent

A

fee simple ownership until condition subsequent occurs
when condition subsequent occurs, then option for grantor to retake (right of entry); right must be expressly reserved
“To A on condition that/provided that/but if/however if…” plus language re right to re-enter
All defeasible fees are alienable, descendible, and devisable; absolute restraints on alienation are void

To Troy, but if he gets a tattoo, then mom reserves the right to re-enter and retake.

40
Q

fee simple subject to executory interest

A

fee simple until either a condition precedent is violated or a condition subsequent occurs, then conveyance to third party
when condition is violated or occurs, interest automatically passes to third party (shifting executory interest)
All defeasible fees are alienable, descendible, and devisable; absolute restraints on alienation are void

To Troy for so long as he is an attorney, then to Kyle.
To Troy, on condition that he does not get a tattoo, then to Kyle.

41
Q

life estate

A

life estate: for the life of the life tenant
life estate pur autre vie: for the life of a third party

created by life terms, not by terms of years

interest is alienable, but not devisable or descendible

future interest in grantor: reversion
future interest in third party: remainder

duty not to commit waste

To Troy for life (reversion)
To Troy for life, then to Kyle (remainder)
To Troy for Nick’s life (pur autre vie; reversion)
To Troy for Nick’s life, then to Kyle (pur autre vie; remainder)

42
Q

reversionary interests

A

future interests that revert to the grantor
all reversionary interests are vested (not subject to RAP)

(1) possibility of reverter
(2) right of entry
(3) reversion

43
Q

possibility of reverter

A

accompanies fee simple determinable
ownership interest automatically reverts to grantor
alienable, devisable, and descendible

44
Q

right of entry

A

accompanies fee simple subject to condition subsequent
grantor has the option to re-take the interest (must be expressly reserved)
descendible and devisable, but NOT alienable inter vivos

45
Q

reversion

A

grantor’s future interest if the grantor conveys less than his full interest (e.g., a life estate)

46
Q

future interests belonging to third parties

A

Remainders (become possessory after natural conclusion of prior estate; do not cut short prior estate)

(1) contingent remainder
(2) vested remainders
(a) indefeasibly vested remainder
(b) vested remainder subject to complete defeasance
(c) vested remainder subject to open

Executory interests (cut short prior estates)

(3) executory interest
(a) shifting executory interest
(b) springing executory interest

47
Q

contingent remainder

A

remainder is created in an unborn/unascertained person, and/or is subject to a condition precedent
(note, if it’s a condition subsequent, it’s a vested remainder subject to complete defeasance)

To Troy for life, then to Kyle if Kyle marries Amelia. (Kyle has a contingent remainder that is subject to the condition precedent of marrying Amelia.)

48
Q

indefeasibly vested remainder

A

remainderman is certain to acquire the interest in the future without any conditions

To Troy for life, then to Evan. (Evan has an indefeasibly vested remainder because Troy and Evan are both alive and Evan will certainly acquire the interest after Troy dies.)
[remainders are descendible and devisable if Evan predeceases Troy, but not if Evan predeceases the testator (mom)]

49
Q

vested remainder subject to complete defeasance (or subject to total divestment)

A

vested remainder than is subject to a condition subsequent; interest is vested but could be cut short by a later occurrence
(note, if it’s a condition precedent, it’s a contingent remainder)

To Troy for life, then to Kyle, but if Kyle divorces Amelia, then to Evan. (Kyle has a vested remainder subject to complete defeasance because he will lose his vested interest if he divorces Amelia.)

50
Q

vested remainder subject to open

A

interest is vested in a class of possible takers; at least one class member exists now, but there could also be more in the future

rule of convenience: class closes when existing class members could demand distribution

To Troy for life, then to Kyle’s children. At the time of Troy’s death, Kyle had two children. (Kyle two children have a vested remainder subject to open. Any children Kyle has after Troy dies do not have an interest.)

Look out for conditions precedent snuck into the fact pattern.

51
Q

shifting executory interest

A

occurs after defeasible fee and cuts short someone other than the grantor

To Troy for so long as he is an attorney, then to Kyle. (Troy has a fee simple subject to executory interest (determinable); Kyle has a shifting executory interest.)
To Troy for so long as Joe Biden is president, then to Kyle. (Same.)
To Troy, provided he never gets a tattoo, then to Kyle. (Troy has a fee simple subject to executory interest (condition subsequent); Kyle has a shifting executory interest.)
To Troy, until Nancy Pelosi dies, then to Kyle. (Same.)

52
Q

springing executory interest

A

cuts short the interest of the grantor

To Troy, when he becomes an attorney. (Mom has a fee simple subject to executory interest; Troy has a springing executory interest.)
To Troy, if Kamala Harris becomes president. (Same.)

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