Real Property Flashcards
Fee Simple Defeasible
Ownership - Present Estates
A conveyance of property that has conditions placed on it.
It’s created when the grantor uses express conditional language indicating that the conveyance will be terminated at the occurence or non-occurence of an event or condition.
It gives the grantee a possessory interest but reserves a future interest (if the condition occurs) to the grantor or a third party.
Fee Simple Determinable
Ownership - Present Estates - Type of Defeasible Fee
A conditional conveyance that allows the grantor to retain a possibility of reverter upon the stated condition.
When condition occurs, the interest automatically terminates and reverts back to the grantor.
Fee Simple Subject to Condition Subsequent
Ownership - Present Estates - Type of Defeasible Fee
A conditional conveyance that allows the grantor to retain a right of reentry.
When condition occurs, the grantor has to affirmatively exercise his right to re-enter and take possession of the property.
Fee Simple Subject to Executory Interest
Ownership - Present Estates - Type of Defeasible Fee
A conditional conveyance that gives a 3P an interest in the property if a specified condition occurs
Restraint on Alienation
Ownership - Present Estates
Occurs when the grantor tries to restrain the alienability or transferability of an interest in property.
All absolute or unreasonable restraint of fee simple estates are void and unenforceable
Life Estate
Ownership - Present Estate
An estate that is given to a person for the duration of their life or another’s life, then goes back to grantor or 3P
Joint Tenancy
Ownership - Co-Tenancy
A JT is a concurrent estate with a right of survivorship, which means that when one tenant passes, it automatically goes to the other tenant(s). It is created when
- interest acquired at same TIME
- interest acquired through same TITLE
- INTEREST in property is equal
- all tenants have the same rights to POSSESSION of the property
TTIP
PITT
Severance of a JT
Ownership - Co-Tenancy
When one JT unilaterally transfers his interest in the property, there is no need for consent, but it will sever the JT and now be a TIC.
JT takes a Mortgage
Ownership - Co-Tenancy
If a JT takes a mortgage on her interest, the result will depend on the jurisdiction’s title theory.
Lien Theory: won’t affect JT
Title Theory: will affect and now TIC
Co-Tenants Entitlement to Rent and/or Repairs
Ownership - Co-Tenancy
An out of possession co-T does not have the right to recieve rent from an in-possession co-T unless there was an agreement to the contrary or the out of possession co-T was wrongfully ousted
If in possession co-T rents to a 3P, the out of possession co-T has a tight to receive fair share of rent
If necessary repairs were made, co-T has the right to get reimbursed unless wrongful ouster
If one co-T makes improvments, he is not entitled to reimbusement unless otherwise agreed. In case of partition or sale, only the co-T that paid for improvements will be entitled to raise in value
Landlord/Tenant Lease
LLT
A lease provides a tenant with a present possessory interest in a property and gives the LL a future interest in it. Under the SOF, a lease longer that one year is required to be in writing.
Tenancy for Years
LLT
A TFY lasts for a fixed period of time with a specified beginning and ending date. It automatically ends at the ending date. Normally, tenant cannot terminate the lease unless constructive eviction or another exception.
Periodic Tenancy
LLT
A PT contiunues for a specific period in time that can be weekly or monthly, and ends the last day of the specific period of time.
To terminate, either the LL or T has to give notice at least a full period in advance
Tenancy at Will
LLT
A TAW continues until either party terminates it. It is created by express agreement and it is usually terminated by giving notice to the other party and a reasonable time to exit the premises.
Tenancy at Sufference/Holdover Tenant
LLT
A tenant that is still occupying the premises even though lease has ended
LL Duties/Implied Warranty of Habitaility
LLT
It is implied in every residential lease that a LL has a duty to provide a habitable property to the tenant (reasonably suitable for a human being).
If breach, tenant can:
1. Move out and terminate lease
2. Withhold or reduce rent
3. Make necessary repairs and reduce rent
4. Stay on premises and sue for damages
LL Duties/Constructive Eviction
LLT
Every lease includes an implied covenant of quiet enjoyment that prevents a LL from interfering with the tenant’s use and enjoyment of the property.
Occurs when the LL:
1. Breaches duty of QE
2. T suffers loss of use and enjoyment
3. T gives notice to LL about the loss
4. LL fails to fix in reasonable time
5. T forced to abandon
T can sue for damages
Assignment of Lease
LLT
Occurs when a T assigns all his interests in a lease to a 3P
Leases are assignable unless k states otherwise.
The assignee will be liable to the LL for rent and covenants that run with the land because they will have privity of estate.
The assignor will still remain liable for rent if the assignee does not pay becuase they still have privity of k.
If LL included a no assignment clause, and T assigns anyway, and the LL takes rent from assignee, provision will be waived
Sublease
LLT
Occurs when the T transfers only some of his remaining interest in the property to sublessee.
T can freely sublet unless clause in k states otherwise.
Sublessee has no privity of estate or k with LL.
If provision of not subleases in k, and LL takes from sublessee, provision waived
Real Covenants
Rights in Land
A non-possessory interest in the land that obligates the holder to do something or refrain from doing something to the land.
Difference between RC and ES = when breach, RC seeks damages, ES seeks injunctive relief
To enforce a RC - PINT
1. Privity between parties - vertical if benefit or vertical and horizontal if burden
2. Intent for the covenant to bind future successors
3. Notice to the person the covenant is being enforced against
4. Touch and concern the land - make the land useful or more valuable to the benefitted party
Notice in Real Covenants
Rights in Land
Actual
Constructive - covenant recorded in previous conveyances
Inquiry - an inspection of the land would reveal the covenant
Equitable Servitude
Rights in Land
Covenants that equity will enforce if the burdened estate had notice of the covenants
Easements
Rights in Land
Non-possesory interests in the use of someone else’s land
Easement in Gross
Rights in Land - Easements
Benefits a specific owner and it does not run with the land (unless used for commercial purposes) and does not pass to subsequent landowners
Easement Appurtenant
Rights in Land - Easements
Benefits any owner and runs with the land. Passes to subsequent landowners as long as they had notice (AIC)
Easement by Grant
Rights in Land - Creation of Easement
Made in writing by express agreement
If more than 1 year, must be signed by grantor, naming land, naming parties, and intent to create
Easement by Prescription
Rights in Land - Creation of Easement
When the easement is open and notorious, continuous, hostile, and for the statutory period of time (adverse possession)
Easement by Implication
Rights in Land - Creation of Easement
When the land is divided by a common owner, he was using it before, has intention to permanently use it, his use of the land affects the value of the land conveyed, but the use is relatively necessary for the owner to use and enjoy his own land
Easement by Necessity
Rights in Land - Creation of Easement
When the original piece of land owned by one owner is subdivided and the access the easement provides is essential to the use of the property because there is no other ingress or egress available
Termination of Easements
Rights in Land
- Estoppel: owner materially changes the position becuase he relied on the easement holder’s assurance that the easement will no longer be enforced
- Termination of the necessity that required the easement
- Involuntary destruction of the servient estate
- Condemnation of the servient estate
- Written release
- Abandonment: showing by physical action the intent to never use the easement again
- Merger: when the easement holder acquires title to the servient estate
- Prescription
License
Rights in Land
Merely a privilege to use someone else’s land. Not required to be in writing and can be retracted by the grantor at any time.
However, if the grantee invested a lot of money or time in reliance to the license, the grantor can be estopped from revoking the license
Contract for the Sale of Land
Must satisfy the SOF to be valid:
1. Writing
2. Indentify the parties
3. Describe the property
4. Price
5. Signed by the party that it will be forced against
Once the deed is signed and delivered, the contract merges with the deed and any right to sue under the contract is gone
Warranty of Marketable Title
A seller has a duty to convey marketable title to a buyer, meaning a title free of doubts or threats of litigation.
If a seller cannot convey MT at the closing date, the buyer can decide not to close without penalities.
The buyer can waive his right to MT.
In a LSK, the seller may not revoke once the k is signed - buyer is now considered the owner
Deeds
Title
Valid deed must be:
1. In writing
2. Signed by grantor
3. Identify the grantor and grantee
4. Identify property
5. Express grantor’s intent to convey the property
Grantor’s intent to Convey: not satisfied if he retains the right to revoke or delivered upon his death
Conveyance requires acceptance from grantee, which is implied unless express showing of no intent to accept
Constructive Conveyance
Title
Occurs when a grantor gives the deed to a 3P who is an agent for the grantee
General Warranty Deed
Title - Types of Deeds
Gives the grantee 3 present covenants and 3 future covenants.
Three Present:
1. Right to be the rightful owner
2. Right to convey
3. Right against encumbrances
Three Future:
1. Warranty against 3P claiming rights
2. Right to quiet enjoyment
3. Right to further assurances that grantor will do whatever reasonale to give perfect title if problems arise
Special Warranty Deed
Title - Types of Deeds
Only assures that the seller did not convey the title before and that there are no encumbrances on the title made by him
Quitclaim Deed
Title - Types of Deeds
A QCD does not contain and warranties or promises to the buyer and does not give the buyer right to sue the seller for any encumbrances or defects in the title
Race Statute
Title Assurance Systems - Recording Statutes
Whoever records first, prevails
Notice Statute
Title Assurance Systems - Recording Statutes
A subsequent BFP will prevail over a previous grantee that failed to record
Race-Notice Statutes
Title Assurance Systems - Recording Statutes
A subsequent BFP will prevail only if he recorded before the previous grantee
Bonafide Purchaser for Value
Title Assurance Systems - Recording Statutes
Person or entity that paid value for the property and did not have notice (AIC) of prior conveyances
Shelter Rule: a person who purchases from a BFP recieves the same status and right as the BFP
Adverse Possession
Title
Open and notorious
Continuous
Hostile
Statutory period of time
Purchase Money Mortgage
Mortgages and Security Deeds
A PMM is used by the buyer to purchase real property and the seller is the lender who secures the payment by a mortgage on the property.
These types of lenders have priority over all claims and mortgages against the mortgagor prior to the purchase of the property and under all subsequent claims and mortgages unless defeated by a recording statute
Foreclosure
Mortgages and Security Deeds
Destroys all junior mortgages, meaning that all mortgages obtained after the mortgage being foreclosed will be extinguished. However, all prior mortgages are not affected.
Proceeds of foreclosure will be used to pay in order:
1. Attorney fees and cost of foreclosure
2. Money owed to the mortgagee (lender)
3. If money left, it will go to the mortgagor (buyer)
If money from foreclosure insufficient, the mortgagee may seek a deficiency judgment against the mortgagor to collect the money necessary to satisfy the mortgage
Public Nuisance
Unreasonable interference with the health, safety, or property rights of the community. To recover damages, plainitff must show damages and it must affect a considerable amount of people or whole community
Private Nuisance
A substantial and unreasonable interference with the use and enjoyment of someone’s own property.
The interference must be offensive, inconvenient, or annoying to a reasonable person.
Affected party will be entitled to damages or an injunction if damages are insufficient
Covenants Run with the Land when…
Writing
Intent
Touch and Concern the Land (affects both parties with respect to their interest in the land/property - like hazard insurance)
Horizontal (shared property interest) and Vertical Privity
Notice
*Most jurisdictions - applies also to LL/T
Breach of Express Covenant to…
Seen where tenant promises landlord that they will purchase insurance but does not
