Real Property Flashcards
Conveyance
Fee Simples Absolute
Is the largest estate in land. It is potentially infinite in duration (fee), it has no restrictions on alienability or transferability (simple), and it is in fact infinite in duration (absolute).
Defeasible Fee
Is one in which is potentially infinite (fee) but may end sooner upon happening of an event (defeasible).
Fee Simple Determinable
Here the language of defeasance is “for so long as…” This language of duration traditionally has created a fee simple determinable.
Joint Tenancy
A joint tenancy is a form of co-ownership (concurrent estate) between two or more persons of an interest in real property. A joint tenancy requires four unites for creation:
- Unity of Possession
- Unity of Interest
- Unity of Time
- Unity of Title
Tenancy in Common
A tenancy in common is one in which the co-tenants have only the unity of possession. Each co-tenant can use, enjoy, and occupy all the property.
Restraint on Alienation
Restricts a grantee’s power to convey his/her interest in the property to another.
Types of Easement: Appurtenant or Gross
Easement Appurtenant
It benefits the easement holder in their capacity as owner of the dominant tenement (tied to land).
Easement in Gross
It benefits the holder personally even if the holder of the benefit does not own the land (tied to the individual).
Easements-Right to use the land of another.
Creation - an easement can be created via:
1. Express Grant
When it is in writing, signed by the grantor, identifies the parties involved, and indicates intent to convey.
Prescription
an easement by prescription is created in a similar manner as an adverse possession
Easement by Implication
When a single tract of land is divided and the previous owner established use, the easement was intended to be permanent, the use affects the value of the land and is intended to be permanent.
Easement by Necessity
When a single owner subdivides their property and the access the provides essential use of the property.
Termination of Easement
An easement is terminated through non-use, abandonment, agreement, merger or end of necessity.
Reciprocal of Negative Easements
Usually found in housing developments to enforce common plan or scheme.
- common grantor
- common/plan scheme
- other restricted lots
- notice
Zoning
- Tenth amendment
- Cumulative/Non-Cumulative
- Comprehensive Plan/Spot Zoning
- Variance
- Constitutional Attacks
- Modern Law - Assumption of Risk
Adverse Possession
Adverse possession ripens into title when a person’s possession of property is:
- Continuous
- Actual
- Open and Notorious
- Hostile, and
- Exclusive
Hostile
Claim of right with lack of permission
Open/Notorious
Put the owner on notice
Actual use
Like an owner would use it
Continuous
For Statutory Period
- Tacking
- Color of Title - extent of land adversely possessed come from title document.
- Disabilities
Landlord/Tenant
Landlord Duties - Provide a place to live that is reasonably suitable for human needs, including heat, running water, and sewage disposal. Tenant Duties - A tenant must: 1. pay rent 2. not commit waste; and 3. not use the property for illegality.
Types of Leases
Tenancy for Years
A tenancy for years is a leasehold estate for a fixed period of time, which automatically terminates at the end of the lease period. A lease longer than a year requires a writing per the statute of frauds.
Periodic Tenancy
A tenancy that continues for a specified time until terminated by a proper notice is a periodic tenancy.
Tenancy at Will
A tenancy at will is a tenancy that continues until either party terminates. Requires notice of termination and reasonable time to quit the premises.
Tenancy at Sufferance
A tenancy at sufferance occurs when a tenant has wrongfully held over past the expiration of the lease. The tenancy only lasts until eviction or landlord elects to hold the tenant to a new tenancy.
Subleases
A sublease is a transfer of less than the full amount of the lease to another. A sub-lessee is only in privity with the sub-lessor and is not personally liable to the landlord for rent or the performance of any covenants in the main lease unless sub-lessee expressly assumes the covenants.
Sublease from Tenant
If a tenant further subleases to a Sublessee tenant, (tenant 2), then Tenant 2 is not in privity of estate or privity of contract with owner.
Implied Warranty of Habitability
Implied in every residential (not commercial) lease, requires the landlord to provide a place to live that is reasonably suited for human needs, including heat, running water, and sewage disposal. If breached, the tenant may move out and terminate the lease, withhold or reduce rent, repair and deduct form the rent, or remain and sue for damages.
Constructive Eviction
A breach of the lease’s implied covenant of quite enjoyment, a constructive eviction occurs when:
- the landlord breached a duty to the tenant
- the breach caused a loss of substantial use and enjoyment of the premises
- the landlord was given notice and failed to remedy; and
- the tenant vacated the premises. The tenant may terminate the lease and seek damages.
Assignment of Lease
Assignment occurs when a tenant transfers all of their remaining interest to a third party. Leases are freely assignable unless specified impermissible in the lease agreement. Assignee is liable to the landlord for rent and all other covenants that run with the land. The assignor also remains liable based on privity of contract. A landlord waives the right to enforce the provision prohibiting assignment if they accept rent form assignee.
Covenants
Burden
Burden
a. Intent - for the covenant run with the land to successors in interest.
b. notice - actual, constructive, inquiry
c. touch/concern - covenant must touch and concern the land
d. vertical privity - created by grantor-grantee relationship at the time the deed is conveyed. Requires succession to the estate by one of the original parties to the promise.
e. Horizontal Privity - privity created by a co-ownership in one specific tract of land between the original promisor and promisee,
Covenant
Benefit
a. Intent
b. Touch/concern
c. vertical privity
Equitable Servitude - restrictions of how land may be used.
Burden
(Equity - Injunction)
- Burden
a. intent
b. notice
c. touch/concern
Equitable Servitude
Benefit
a. intent
b. touch/concern
* notice generally presumed
Deed
- Contents
- Delivery
- Closing
- Recording Act
a. Pure Race - First to record wins
b. Pure Notice - Subsequent BFP prevails over grantee that didn’t record.
c. Race Notice - Subsequent BFP that records first prevails over a grantee that didn’t record first.
Notice - AIR
a. Actual - B has actual subjective knowledge of the prior unrecorded notice.
b. Inquiry - B Possesses facts or can inspect the property that would lead a reasonable person to further inquiry.
c. Record - B has constructive notice when prior interest was properly recorded within a chain of title. - Covenants of Title
- Title Insurance
Lien Theory
Under majority rule, mortgage interest in a lien, and does not sever a joint until the property is sold or foreclosure.
Title Theory
Under the minority rule, a mortgage interest severs a joint tenancy upon granting of a mortgage and converts into a tenancy in common.
Mortgages
Mortgages have paid value and are protected by the recording acts.
Conveyance
- Analyze Conveyance to Determine Interest
- Is interest valid? - Apply technical rules
- Apply the facts
- Distribute Property - Deed, Will, Trust, Intestate
Adverse Possession
- Hostile
- Open/Notorious
- Actual Use
- Continuous
* Tacking
* Color of Title
* Disabilities
Landlord/Tenant
- CL/ML Split
- Types of Leases
- Security Deposits
- Duties of Landlord
- Duties of Tenant
- Assignment/Sublease
Deed
- Contents
- Delivery
- Closing
- Recording Act
- Covenants of Title
- Title Insurance
Easements/Profits/Licenses
- Creation
- Characteristics
- Scope
- Termination
Covenants
Law-Damages
- Burden
a. Intent
b. Notice
c. Touch/Concern
d. Vertical Privity
e. Horizontal Privity - Benefit
a. Intent
b. Touch/Concern
c. Vertical Privity
Equitable Servitude
Equity-Injunction
- Burden
a. Intent
b. Notice
c. Touch/Concern - Benefit
a. Intent
b. Touch/Concern
* Notice Generally Presumed
Zoning
- Tenth Amendment
- Cumulative/Non-Cumulative
- Comprehensive Plan/Spot Zoning
- Variance
- Constitutional Attacks
- Modern Law - Assumption of the Risk
Recip Neg Easements
- Common Grantor
- Common Plan/Scheme
- Other Restricted Lots
- Notice
