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Selected Topics (Part 1) > Real Property > Flashcards

Real Property Flashcards

1
Q

Real Property - Adverse Possession

Adverse Possession

A

To establish adverse possession, the adverse possessor’s use of the land must be:
1. Open and Notorious - would put reasonable person on notice
2. Actual and Exclusive - nobody other than possessor using land
3. Hostile, - no permission or consent from owner - AND
4. Continuous for the statutory period - for the manner reasonably and normally intended

.
Government
Cannot adversely possess; cannot be adversely possessed
.
No Marketable Title
Adverse possession does not give marketable title.

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2
Q

Real Property - Estates in Land

Estates in Land

List

A
  1. Fee Simple
  2. Life Estate
  3. Remainder
  4. Fee Simple Determinable
  5. Fee Simple Subject to Condition Subsequent
  6. Merger
  7. Class Gifts
  8. Rule Against Perpetuities
  9. Concurrent Estates
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3
Q

Real Property - Estates in Land

jFee Simple

A

“Owner to [Person] or Owner to [Person] and their heirs” creates a fee simple estate in land

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4
Q

Real Property - Estates in Land

Life Estate

A

“To [Person] for life”
.

A life estate is one that lasts for the duration of one or more lives
.
Pur Autre Vie is a life estate based on a nonparty’s life
.
Life tenant is responsible for taxes and mortgage interest if the property has income
.
Life Estates are followed by a reversion or remainder
.
.
Remainder
A remainder is a future interest created in a transferee that is capable of becoming a present interest on termination of the preceding estate.
.
Vested Remainder is one that imposes no condition
.
Contingent Remainder is one where the remainderman must first fulfill a condition.

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5
Q

Real Property - Estates in Land

Fee Simple Determinable

A

“to [Person] so long as property is used for . . .
.
Estate that automatically terminates on the occurence of a stated event then goes back/reverts to the grantor.
.
A fee simple determinable estate in land is automatically followed by possibility of reverter
.
Executory Interest is where the estate goes to a third party, rather than reverting to the grantor.

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6
Q

Real Property - Estates in Land

Fee Simple Subject to Condition Subsequent

A

“to [Person], but if property ceases to be used as . . .
.
Grantor retains power to terminate the estate of the grantee upon the happening of a specific event.
.
Followed by a Right of Re-entry in grantor, which must be affirmatevely exercised. Must be exercised or it is subject to defense of laches.

Executory Interest is where the power to terminate the estate goes to a third party, rather than the grantor.

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7
Q

Real Property - Estates in Land

Merger

A

If the same person acquires the present and all future estates, they merfe into fee title (life estate & remainder)
.
If estates are for different durations, there is no merger. (Easement and estate for for life does not merge)

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8
Q

Real Property - Estates in Land

Class Gifts

A

Gifts to defined groups.
Rule of convenience says the class closes when a class can call for distribution, UNLESS there is a contrary intention in the instrument to include all members of the class, whenever born.

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9
Q

Real Property - Estates in Land

Rule Against Perpetuities

A

Future interests must vest, if at all,
1. Within the lives in being
2. Plus 21 years
.
Applies to:
1. Contingent remainder
2. Executory Interest
3. Class Gifts
4. Options and Right of First Refusal
5. Powers of Appointment
.
Validity
Determined at time interests created, taking into account all then existing facts.

.
When Vesting Occurs
Vesting occurs when the interest becomes a present possessory estate, OR when it becomes an indefeasibly vested remainderor a vested remainder subject to total divestment
.
* Wills - Vest on date of Testator’s death
* Revocable Trusts - Vests on date the trust becomes irrevocable
* Irrevocable Trusts - Vests on date created
* Deeds - Vests on date deed is delivered with intent to pass title

.
Charity to Charity is an exception

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10
Q

Real Property - Estates in Land

Concurrent Estates

Types

A

Unless otherwise stated, title in cotenants presumed tenancy in common.
.
Joint Tenancy
Requires four unities and right of survivorship
.
Four Unities
Joint tenants must take their interest
1. At the same time
2. By the same titme (document)
3. With identical equal interest (same type and duration of interest), AND
4. With identical right to possess in whole.
.
Grantor must clearly express right of survivorship
.
Severance
Joint tenant may sever joint tenancy by conveying their interest to a third party, creating a tenancy in common.
.
.
Tenancy in Common
1. Two or more people own with no right of survivorship.
2. Unity of possession
3. Each owns an individual part
4. Each has a right to posses the whole

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11
Q

Real Property - Estates in Land

Concurrent Estates

Rights & Liabilities

A

Possession
Each cotenant has equal right to possess the entire property, BUT no right to exclusive possession of any part.
.

Ouster:
* Absent ouster, cotenant not in possession cannot bring a possessory action againt cotenant in possession
* Wrongful exclusion of cotenant
* Ouster required for adverse possession against cotenant
.
.
Rents & Profits
Cotenant in Possession
1. Has right to retain profits gained by use of the property
2. Is not required to reimburse other cotenants for rent (absent ouster, contrary written agreement, profits from depletion of land)
.
Cotenant Leases to Third Party
Must account to cotenants for fair share of rental income
.
.
Taxes & Mortgage
1. Each cotenant required to pay fair share of taxes and mortgage.
2. Cotenants not in possession who pay these expenses are entitled to contribution from other cotenants
3. Cotenant in sole possession only entitled to reimbursement of the amount exceeding fair rental value

.
.
Necessary Repairs
Cotenant in sole possession who pays for necessary repairs has right to reimbursement.
.
.
No Reimbursement for Improvements
No right of contribution for cost of improvements; not set off in accounting.

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12
Q

Real Property - Landlord-Tenant

Landlord-Tenant

List/Analysis

A

Analysis
1. Identify type of lease
2. Discuss whether failure to pay rent by tenant
3. Discuss tenant’s defenses to failure to pay
4. Discuss issues arising from assignment

.
Type of Lease/Tenancy

(1) Term of Years
* Set start and end date (includes yearly lease paid monthly)
* Terminates either automatically on the end date OR when tenant surrenders premises and landlord accepts
* Does not renew absent exercise of a renewal clause
* Failure to pay rent subjects tenant to obligation to pay rent a end of term
.

(2) Periodic
* Continues for successive intervals
* Without defined end date
* Automatically renews UNLESS terminated by tenant or landlord.
* Can only be terminated on written notice
* If tenant fails to properly terminate, tenant owes rent to Landlord.
.

(3) Holdover
* Occurs if tenant stays beyond term of lease
* Eith Consent of Landlord
* Lease continues for same rent, BUT can be terminated on 30 days oral or written notice

.
.
Landlord’s Duty to Mitigate
1. If tenant wrongfully terminates lease and breaches duty to pay rent, landlord has duty to mitigate.
2. Landlord must take reasonable steps to re-lease.
3. This is a defense to tenant non-payment of rent.

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13
Q

Real Property - Landlord-Tenant

Landlord’s Implied Covenants

A

(1) Duty to Deliver Possession

Landlord has a duty to deliver possession, which includes timely possession

.
(2) Quiet Enjoyment

Can be breached by actual or partial physical eviction by landlord, OR by constructive eviction.
.
Constructive Eviction

  1. Landlord breaches duty set out in lease
  2. Breach substantially and materially deprives tenant os use and enjoyment of premises, AND
  3. Tenant gives notice and reasonable opportunity to cure OR landlord refuses to repair

Remedy: timely move out and terminate

.
(3) Warrant of Habitability

  1. Only applies to residential leases
  2. Requires property to be reasonably suitable for human habitation
  3. Breach requires Tenant to have given notice and opportunity to cure, OR landlord refuses to repair

.
Remedies

  1. Vacate and Terminate lease
  2. Repair and Deduct expenses from rent
  3. Sue landlord for Damages, OR
  4. Reduce Rent in amount reduced by issue.
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14
Q

Real Property - Landlord-Tenant

Tenant’s Implied Covenants

A

(1) Pay Rent
* Tenant covenants to pay rent
* Breach allows landlord to terminate lease and evict

.
(2) Repair Any Damages Caused
Tenant must:
* Maintain the premises, AND
* Make ordinary repairs
*
.
(3) Not to Commit Waste
Tenant covenants not to commit:
* Affirmative waste
* Permissive waste, OR
* Ameliorative waste

.
(4) Fixtures
Fixtures are affixed to the propery so that removal would cause substantial damage to the property
Tenant generally cannot remove, UNLESS
* Removal would not damage property
* Written agreement allows removal, OR
* Trade fixtures in a commercial lease

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15
Q

Real Property - Landlord-Tenant

Assignments

A

Complete transfer of all leased premises for entire remaining term of lease. Absent express restriction in lease, tenant is free to transfer leasehold interest in whole or in part.
.
Assignee
1. Stands in shoes of original tenant in direct relationship with landlord
2. Assignee and landlord are in privity of estate
3. Assignee and landlord are liable to the other on all covenants in lease that run with the land

.
Assignor
1. Original tenant and landlord remain in privity of contract
2. Original tenant still liable for rent under covenant to pay rent (unless novation)

.
Generally Allowed
1. Each party has right to assign lease
2. Any language in lease binding all successors and assignees OR generically describes parties as landlord and tenant permits assignment

.
Covenant Not to Assign
1. Will be enforced
2. Consent cannot be unreasonably withheld
3. Prohibition on sublease is not a prohibition on assignment and vice versa.

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16
Q

Real Property - Landlord-Tenant

Subleases

A

Tenant retains some part of the remaining term of the lease
.
Sublessee Liability
Not personally liable to landlord for rent or performance, _UNLESS express assumption
.
Covenant Not to Sublease
1. Will be enforced
2. Consent cannot be unreasonably withheld
3. Prohibition on assignment is not a prohibition on sublease and vice versa.

17
Q

Real Property - Landlord-Tenant

Express Covenants that Run with the Lease

A

Requirements:
1. Intent (lease applies to “successors and assignees”)
2. Touches and Concerns the land (affects value)

.
Breach of Express Covenant
Traditional Rule
1. Express covenants in lease are independent of each other, EXCEPT the covenant to pay rent.
2. Breaching party may owe damages
3. Nonbreaching party not excused from duty to pay rent

.
Modern Rule
1. Express covenantys are dependent
2. If material breach, Tenant may terminate and claim damages
3. Tenant can only withohold rent if they terminate and move out

.
.
Enforcement of Express Covenant
Instead of enforcement by suing for damages, landlord or tenant can seek enforcement of the covenant by specific performance or injunction
.
Plaintiff must show:
1. Intent to bind
2. Notice (for burden to run)
3. Touch & Concerns the land

.
.
Tenant Breach
Where a breach of lease by the tenant that results in termination, tenant is liable for
1. The rent for remainder of term,
2. Minus reasonable rent landlord could have obtained (landlord duty to mitigate), UNLESS
3. Landlord breached express or implied covenant

18
Q

Real Property - Landlord-Tenant

Waste

A

Waste is:
1. An =act or omission (voluntary or permissive)
2. By someone in rightful possession of property
3. That does permanent injury to the land (not ameliorative), AND
4. Harms the interest of someone entitled to future possession

.
Three Types of Waste
.
(1) Voluntary
Acts that are deliberate or destructive
.
Damages: Lesser cost of repair/diminution in value + possibility of statutory damages
.
Injunction always available to stop harm to land
.
(2) Permissive
Acts of omission or neglect
.
Damages: Lesser cost of repair/diminution in value
.
(3) Ameliorative
Acts that alter the property but increases its value
.
Damages: Ususally not recoverable, unless restoration is needed
.
Injunction: Depends on specific facts

19
Q

Real Property - Easements, Profits, & Licenses

Easements, Profits, & Licenses

A

(1) Easements

An Easement is the right to use land for a particuolar purpose, but not to possess or enjoy that land.
* Creation
* Types and Transfer
* Termination

.
(2) Profits

Right to take specific things, like timber, from the land. (Apply easement rules)

.
(3) License

  • Mere privilege to enter land for some delineated purpose
  • Arise expressly or from failure of express easement
  • Are revocable, BUT may become irrevocable if the licensee invests substantial amounts of money or labor in reliance
    NOTE: Comes up when express easement fails for not being in writing
20
Q

Real Property - Easements, Profits, & Licenses

Easement Creation

A

Five ways to create an easement:

(A) Express Grant or Reservation

An express easement is a direct grant of the easement

Statute of Frauds applies to easements as interests in land –> should grant by deed
Easement by Reservation is where grantor reserves easement for themself as part of conveyance to another party
.
(B) By Implication

Court may imply easement where use of the land is:
1. Apparent and continous at time tract divided, AND
2. Reasonably Necessary to the enjoyment of the dominant parcel

* Cost
* Difficulty of Alternatives
* Whether price paid reflects continued use

.
(C) By Necessity

  1. Two parcels were under common ownership at one time,
  2. No prior use (no use of easement prior to necessity arising)
  3. Party asserting easement owns a landlocked property with no access to public road

.
(D) By Prescription

Essentially an easement by adverse possession, requiring:
1. Open and Notorious
2. Hostile
3. Actual possession
4. Continuous for Statutory Period

.
(E) Negative Easement

.Prohibits certain uses

21
Q

Real Property - Easements, Profits, & Licenses

Easement Types & Transfer

A

Easement Appurtenant

  1. An easement where the holder of the dominant parcel holds and is benefited by the easement burdening the servient parcel over whict it runs.
  2. Transferability
    • Transfers between holders
    • Transfers automatically on transfer of either dominant or servient parcel
    • WILL NOT transfer with servient estate sold to BFP without notice of easement

.
.
Easement In Gross

  1. Holder is not an owner of another parcel
  2. Holder has right of access irrespective of property ownership
  3. Transferability
    • Does not transfer between successive owners, UNLESS commercial
    • Transfers automatically with servient estate, UNLESS sold to BFP without notice.
22
Q

Real Property - Easements, Profits, & Licenses

Easement Termination

A

Easement holder can terminate:
1. In writing, OR
2. Orally, if accompanied by act of abandonment.

.
Servient Property Owner:

  1. CAN seek injunction against overuse
  2. CANNOT unilaterally terminate for overuse
23
Q

Real Property - Covenants & Servitudes

Covenants & Servitudes

A

(A) Covenant or Equitable Servitude
.
Covenant

  1. Binding promise
  2. Regarding use of land
  3. Breach entitles plaintiff to damages

.
Equitable Servitude

  1. Covenant that courts will enforce in equity
  2. Against successors of the burdened land
  3. who have notice
  4. Regardless of whether it runs with the land
    .
    .
    (B) Covenant – Runs with Land

Burden

  1. Covenant in writing
  2. Intent to create interest that is subject of covenant
  3. Notice of covenant/interest
  4. Horizonatal privity (Shared interest independent covenant)
  5. Vertical privity (entire estate/duration)
  6. Touch and concerns the land

.
Benefit

  1. Writing
  2. Intent
  3. Vertical Privity
  4. Touch and Concern

.
.
(C) Equitable Servitude – Runs with the Land

Burden

  1. Writing
  2. Notice
  3. Intent
  4. Touch and Concern

.

Benefit

  1. Writing
  2. Intent
  3. Touch and Concern
24
Q

Real Property - Conveyancing

Conveyancing

List

A
  1. Statute of Frauds
  2. Deeds
  3. Quitclaim Deeds
  4. Warranty Deed
  5. Marketable Title
  6. Recording Statutes
25
Q

Real Property - Conveyancing

Deeds

A

To be valid, a deed must be:

  1. Executed
  2. Delivered
  3. Accepted, AND
  4. Contain adequate description of property

.
.
Quitclaim Deed

  • Conveys only what the seller has
  • Does not affect warranty of marketable title

.
.
Warranty Deed

Present Covenants

Breached at time of conveyance

  1. Seisin (grantor owns estate/interest conveyed)
  2. Right to convey property, AND
  3. Against encumbrances (other than prior recorded)

.
Future Covenants

  1. Quiet enjoyment
  2. Warranty (grantor will defend/compensate)
  3. Further Assurances

.
Special Warranty Deed

Granto makes same assurances, but only on behalf of self.

26
Q

Real Property - Conveyancing

Marketable Title

A
  1. Title that is reasonably free from doubt
  2. That a reasonably prudent buyer would be willing to accept.
27
Q

Real Property - Conveyancing

Recording Statutes

A

Recording statutes protect bona fide purchasers, but not giftees or judgment creditors

28
Q

Real Property - Mortgages & Deeds of Trust

Mortgages & Deeds of Trust

List

A
  1. Mortgage
  2. Foreclosure
  3. Rights of Redemption
  4. Owner of Note Secured by Mortgage
  5. Deed of Trust
  6. Deed of Foreclosure
  7. Deficiency Judgment
29
Q

Real Property - Mortgages & Deeds of Trust

Mortgage

A
  1. Security Interest
  2. In Property
  3. Which secures repayment of loan.

It is the conveyance of a security interest in land, intended by the parties to be collaterally.

Typically requires SoF
.
.
Foreclosure

When a mortgage is recorded, and later foreclosed, the mortgagee gets title that existed as of date of recording.

Rights of Redemption

Equitable Redemption - the foreclosed mortgagor has the right to redeem by bringing loan current before foreclosure sale

Statutory Redemption - one year

30
Q

Real Property - Mortgages & Deeds of Trust

Deed of Trust

A

A deed of trust is like a mortgage. It is a security interest in property that can be recorded.

Lender = Beneficiary

Borrower = Trustor

Disinterestd 3rd party = Trustee
.
.
Foreclosure
1. Non-judicial
2. Notice
3. No right of redemption

31
Q

Real Property - Mortgages & Deeds of Trust

Deficiency Judgment

A

occurs when the amount owed on the note secured by a mortgage or deed of trust is greater than the current value of the property

32
Q

Real Property - Lateral & Subjacent Supports

Lateral & Subjacent Supports

A

Lateral Support
1. Damage to adjacent property from excavation
2. Strict Liability (discuss natural state of land)
3. Otherwise, argue negligent liability

.
Subjacent Support
1. Damage to property from subsurface mining or tunneling
2. Strict (extraction rights)
3. Otherwise, argue negligence

Selected Topics (Part 1) (7 decks)

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