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Real Property Flashcards

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1
Q

WHAT IS A CONCURRENT ESTATE?

A

Ownership in land by 2 or more people

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2
Q

WHAT ARE THE 3 FORMS OF CONCURRENT ESTATES?

A

1) Joint Tenancy
2) Tenancy by the Entirety
3) Tenancy in Common

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3
Q

WHAT ARE THE CHARACTERISTICS OF A JOINT TENANCY?

A

1) 2 or more own with RIGHT OF SURVIVORSHIP
2) Alienable inter vivos (transferable)
3) NOT devisable nor descendable

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4
Q

CREATION OF A JOINT TENANCY

A

1) At same time
2) by same title
3) identical equal interests
4) Rights to possess the whole

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5
Q

SEVERANCE OF A JOINT TENANCY: (SEVERANCE AND SALE)

A

1) Severance and Sale: JT may transfer interest during her life - transferee becomes tenant in common

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6
Q

SEVERANCE AND PARTITION (3 TYPES)

A

1) Voluntary Agreement
2) Partition in kind - Judicial division of the property in all parties’ BEST INTEREST
3) Forced Sale - judicial action ordering sale and distribution of proceeds in BEST INTEREST

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7
Q

TENANCY BY THE ENTIRETY

A

DEF: A marital estate akin to a joint tenancy with right of survivorship

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8
Q

CREATION OF TENANCY BY THE ENTIRETY

A

PRESUMED when a conveyance to married partners occurs

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9
Q

TENANCY BY THE ENTIRETY: CREDITORS

A

A creditor as to only one spouse cannot satisfy the debt on this property. Only CREDITOR OF BOTH PARTIES

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10
Q

TENANCY BY THE ENTIRETY: CONVEYANCE

A

Neither spouse alone can unilaterally convey to a 3rd party

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11
Q

TENANCY BY THE ENTIRETY: SEVERANCE

A

Death, divorce, mutual agreement, execution by joint creditor severs.

Divorce: becomes TENANCY IN COMMON

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12
Q

TENANCY IN COMMON

A

Concurrent estate with NO right of survivorship. Multiple grantees PRESUMED to take as T’s in common

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13
Q

PARTIES’ INTERESTS IN A T IN COMMON

A

1) Each Co-T owns an INDIVIDUAL part and right to POSSESS the WHOLE
2) Devisable, descendable and alienable

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14
Q

RIGHTS AND DUTIES OF CO-T’S: POSSESSION

A

1) Each has right to possess the whole
2) No right to exclusive possession
3) Wrongful exclusion = OUSTER - legally actionable

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15
Q

RIGHTS AND DUTIES OF CO-T’S: RENTS/PROFITS

A

1) Co-T in exclusive possession - Right to retain ALL profits
2) Profits from 3rd party - Fair share of income to EACH Co-T

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16
Q

RIGHTS AND DUTIES OF CO-T’S: ADVERSE POSSESSION

A

CO-T in exclusive possession for statutory period DOES NOT acquire FULL TITLE.

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17
Q

RIGHTS AND DUTIES OF CO-T’S: WASTE

A

Not permitted. There are 3 types
1) Voluntary - willful destruction
2) Permissive - neglect
3) Ameliorative - Unilateral changes that increase value

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18
Q

LEASEHOLDS

A

An estate in land where T has a PRESENT POSSESSORY INTEREST & LL has a FUTURE INTEREST (reversion)

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19
Q

WHAT ARE THE 4 TYPES OF LEASES?

A

1) Tenancy for years
2) Periodic tenancy
3) Tenancy at will
4) Tenancy at sufferance

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20
Q

TENANCY FOR YEARS

A

Has a fixed, DETERMINED period of time

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21
Q

TERMINATION: TENANCY FOR YEARS

A

Ends automatically at stated date

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22
Q

TERMINATION UPON BREACH: TENANCY FOR YEARS

A

1) Failure to pay rent: LL may terminate
2) LL accepts T’s SURRENDER: If 1+ yr on the term remains, surrender must be WRITTEN

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23
Q

PERIODIC TENANCY

A

A lease which has successive intervals and is CONTINUOUS until properly terminated

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24
Q

PERIODIC TENANCY: CREATION

A

1) Can be created EXPRESSLY
2) IMPLIED
- Lease with no mention of DURATION
- Oral term of years violating SOF
- RESIDENTIAL leases where HOLD OVER occurs

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25
Q

PERIODIC TENANCY: TERMINATION

A

Written notice is usually required - usually length of the period itself

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26
Q

TENANCY AT WILL

A

Has no fixed period and is terminable at will of EITHER PARTY

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27
Q

TENANCY AT WILL: CREATION

A

Generally must be created by EXPRESS AGREEMENT

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28
Q

TENANCY AT WILL: TERMINATION

A

Most states: Notice and reasonable time to vacate

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29
Q

TENANCY AT SUFFERANCE

A

Created when a tenant WRONGFULLY holds over past expiration of lease. LL can RECOVER RENT

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30
Q

TENANCY AT SUFFERANCE: TERMINATION

A

Terminated upon EVICTION OR LL holds T to NEW TENANCY.

NO NOTICE REQ’D

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31
Q

THE HOLD OVER DOCTRINE

A

1) Eviction allowed
2) Or bind T to new PERIODIC TENANCY
- length depends on how frequently rent was previously paid

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32
Q

HOLD OVER: COMMERCIAL TENANTS

A

May be held to NEW period tenancy IF original lease was for 1+ years

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33
Q

TENANT’S DUTIES

A

1) Make repairs (some)
2) Pay RENT

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34
Q

T’S DUTY TO REPAIR (SILENT LEASE)

A

Maintain the premises:
1) routine repairs NOT ordinary wear and tear

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35
Q

T’S DUTY TO NOT COMMIT WASTE

A

1) Voluntary - over conduct causing damage
2) Permissive - failing to take reasonable steps to protect premises
3) Ameliorative - unilateral alterations increasing value

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36
Q

T’S DUTY TO REPAIR - EXPRESS COVENANT IN LEASE

A

Residential: LL remains obligated under nonwaivable IMPLIED WARRANTY OF HABITABILITY

Nonresidential: Covenant is enforceable and LL can get damages for breach

TYPICALLY: exclude ordinary wear and tear

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37
Q

T’S DUTY TO PAY RENT: EVICTION

A

If T fails to pay rent while in possession - LL can EVICT through UNLAWFUL DETAINER

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38
Q

T’S DUTY TO PAY RENT: SELF-HELP

A

LL may NOT engage in this by changing locks, forcible removal, etc.

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39
Q

T’S BREACH WHEN OUT OF POSSESSION (SIR)

A

(S)urrender - LL can treat it as abandoning and end lease
(I)gnore abandonment and hold T responsible for RENT (minority view)
(R)e-let and hold original T responsible for DEFICIENCY IN RENT

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40
Q

LL’S DUTY TO DELIVERY POSSESSION

A

Majority Rule: Duty to put tenant in ACTUAL physical possession of the property

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41
Q

IMPLIED COVENANT OF QE

A

VERY IMPORTANT - applies to all residential & commercial leases

Def: provides tenants with right to quiet use and enjoyment of the premises without LL interference or from paramount title holder

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42
Q

BREACH BY WRONGFUL EVICTION: ACTUAL EVICTION

A

When LL or paramount title holder OR holdover T excludes T from ENTIRE premises

Terminated obligation to pay rent

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43
Q

BREACH BY WRONGFUL EVICTION: PARTIAL EVICTION

A

T is physically excluded from only part of premises. Partial eviction by LL relieves T of obligation to pay rent for ENTIRE premises

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44
Q

BREACH BY CONSTRUCTIVE EVICTION (SING)

A

DEF: Occurs when LL breaches duty and renders premises UNSUITABLE

(S)ubstantial (I)nterference:
(N)
(G)oodbye

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45
Q

LL LIABILITY FOR ACTS OF OTHER T’S

A

General Rule: Not liable

2 EXCEPTIONS:
1) LL has duty to abate nuisance on sit
2) LL must control COMMON AREAS

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46
Q

IMPLIED WARRANTY OF HABITABILITY

A

Def: must be fit for BASIC HUMAN HABITATION
Applies to RESIDENTIAL LEASES and is NONWAIVABLE

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47
Q

T’S RIGHTS WHEN WARRANTY OF HABITABILITY IS BREACHED

A

Acronym: M R 3
(M)ove out and terminate
(R)eapir and deduct cost from rent
(R)educe rent or withhold all rent until court makes value judgment
(R)emain in possession, pay full rent & SEEK $$ DAMAGES

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48
Q

ASSIGNMENT OF LEASE

A

T’s generally can freely transfer their whole interest in the remainder of the lease by ASSIGNMENT

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49
Q

ASSIGNMENT: WHO HAS PRIVITY OF ESTATE?

A

The assignee and the LL are in P of E and each is liable to each other on all covenants that RUN WITH THE LAND

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50
Q

ASSIGNMENT: WHO HAS PRIVITY OF CONTRACT

A

Between LL and T ONLY

Def: Original T remains liable on their lease contract with LL

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51
Q

COVENANTS RUNNING WITH THE LAND

A

Def: runs with the land if the original parties to the lease intend and if the covenants TOUCH AND CONCERN the land (benefit the LL and burden the T or vice versa)

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52
Q

RENT COVENANTS

A

Covenants to pay rent run with the land: ASSIGNEE owes rent directly to LL

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53
Q

SUBLEASE

A

A transfer of part of the remaining lease by the original T to the sublessee

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54
Q

SUBLEASE: RELATIONSHIPS

A

LL and Sublessee are NEITHER in P of E or P of K

INSTEAD: T2 and T1 are responsible to each other and T2 is not PERSONALLY liable to LL for rent

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55
Q

SUBLESSEE RIGHTS

A

1) NO right to enforce any covenants in MAIN LEASE except warranty of habitability

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56
Q

ASSIGNMENTS BY LL

A

LL can assign rents and reversionary interest they own without T’s consent.

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57
Q

LIABILITY OF LL’S ASSIGNEE TO T’S

A

Covenants that run with the land are the liability of the assignee and ALSO original LL

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58
Q

LL’S TORT LIABILITY (CLAPS)

A

(C)ommon Areas: reasonable care
(L)atent Defects: warn of hidden defects unable to be discovered
(A)ssumption of repairs: once undertaken, complete w/in reasonable time
(P)ublic Use Rule: liable for any defects on premises that cause injury when defect is significant
(S)hort-term lease of furnished dwelling

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59
Q

EASEMENTS

A

A grant of a nonpossessory property interest that entitles the holder to a form of use or enjoyment of another’s land

PRESUMED PERPETUAL unless expressly limited

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60
Q

AFFIRMATIVE EASEMENTS

A

The right to go onto and do something on the land - only created EXPRESSLY

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61
Q

NEGATIVE EASEMENTS (LASS)

A

Entitles holder to prevent the landowner from doing something otherwise permissible:

(L)ight
(A)ir
(S)upport
(S)tream of water from artificial flow

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62
Q

EASEMENT APPURTENANT

A

It benefits the holder in physical use or enjoyment of his own land. 2 PARCELS OF LAND INVOLVED.

Ex. A grants B right of away across A’s lot to more easily reach B’s parcel

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63
Q

EASEMENT APPURTENANT: DOMINANT TENEMENT

A

Parcel that DERIVES the benefit

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64
Q

EASEMENT APPURTENANT: SERVIENT TENEMENT

A

Parcel that bears the burden

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65
Q

EASEMENT IN GROSS

A

When it confers on the holder only some PECUNIARY or PERSONAL benefit unrelated to use or enjoyment of the land.

SERVIENT LAND is burdened

EX. Right of utility company to lay power lines on another’s lot

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66
Q

EASEMENT APPURTENANT: TRANSFER

A

Passes AUTOMATICALLY with transfer of dominant tenement

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67
Q

EASEMENT IN GROSS: TRANSFER

A

NOT transferable unless COMMERCIAL purpose

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68
Q

4 WAYS TO CREATE EASEMENTS (PING)

A

(P)rescription
(I)mplication
(N)ecessity
(G)rant

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69
Q

EASEMENT BY GRANT

A

Must be in WRITING and signed by holder of SERVIENT tenement unless brief enough to NOT be subject to SOF

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70
Q

EASEMENT BY IMPLICATION - FROM PREEXISTING USE

A

1) Previous use on the servient part was APPARENT and CONTINUOUS and
2) Parties EXPECT use would SURVIVE division because it is REASONABLY NECESSARY to use and enjoyment of DOMINANT TENEMENT

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71
Q

EASEMENT BY NECESSITY

A

IMPLIED whenever landowner conveys a portion of land with NO WAY OUT except over part of grantor’s land

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72
Q

EASEMENT BY PRESCRIPTION (COAH) - Adverse Possession

A

(C)ontinuous and uninterrupted use for statutory period
(O)pen and notorious use
(A)ctual use
(H)ostile use (without servient’s consent)

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73
Q

EASEMENT TERMINATION (END CRAMP)

A

Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription

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74
Q

EASEMENT TERMINATION: ESTOPPEL

A

Termination of easement needs to be in writing. BUT, if servient owner MATERIALLY changes position in REASONABLE RELIANCE of easement holder’s assurance of discontinued use - terminates through estoppel

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75
Q

EASEMENT TERMINATION: NECESSITY

A

Easement ends when necessity ends unless expressed otherwise

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76
Q

EASEMENT TERMINATION: DESTRUCTION

A

of the SERVIENT land ends it

77
Q

EASEMENT TERMINATION: CONDEMNATION

A

of SERVIENT estate by eminent domain terminates it

78
Q

EASEMENT TERMINATION: RELEASE

A

Release given by HOLDER to SERVIENT landowner

79
Q

EASEMENT TERMINATION: ABANDONMENT

A

Holder shows by PHYSICAL ACTION an intent to NEVER use it again

80
Q

EASEMENT TERMINATION: MERGER

A

When title to easement and to servient land is vested in the HOLDER - (acquiring ownership)

81
Q

EASEMENT TERMINATION: PRESCRIPTION

A

interference by ADVERSE POSSESSION

82
Q

LICENSE

A

Def: Merely a privilege to enter another’s land for some delineated purpose. It is FREELY REVOCABLE

83
Q

LICENSE CREATION

A

Can simply be ORAL

84
Q

LICENSE: REVOCATION

A

FREELY REVOCABLE unless estoppel applies

85
Q

RESTRICTIVE COVENANTS

A

Covenant: promise to do or not do something

86
Q

NEGATIVE COVENANTS (MOST ARE)

A

Refrain from doing something on the land

87
Q

AFFIRMATIVE COVENANTS

A

Promise to do something related to the land

88
Q

COVENANT VS. EQUITABLE SERVITUDE

A

Distinguish by the REMEDY SOUGHT

1) Damages: Covenant
2) Injunction: Equitable servitude

89
Q

RUNNING WITH THE LAND - QUESTION

A

We ask when can the covenant be capable of BINDING SUCCESSORS?

90
Q

4 REQUIREMENTS FOR BURDEN TO RUN (WITHN)

A

1) (W)riting - original promise
2) (I)ntent - for covenant to run
3) (T)ouch and concern
4) (H)orizontal AND vertical privity
5) (N)otice - successor has notice when they take subject to the covenant

91
Q

REQ’S FOR BURDEN TO RUN: TOUCH AND CONCERN

A

1)Restrictive Covenants: restrict burdened land owner in USE of the parcel

2) Affirmative Covenants: Require servient holder to do something on the land

92
Q

REQ’S FOR BURDEN TO RUN: HORIZONTAL PRIVITY

A

There was a nexus between the original promising parties when the promise was made (grantor-grantee, LL-T, etc.)

93
Q

REQ’S FOR BURDEN TO RUN: VERTICAL PRIVITY

A

Nexus between the successor in interest and the original covenanting.

A contact, devise, or descent required

94
Q

EQUITABLE SERVITUDE

A

Promise equity will enforce against the successors of the burdened land

95
Q

CREATION OF EQUITABLE SERVITUDE (WITNES)

A

Writing
Intent
Touch and Concern
Notice
Equitable Servitude

96
Q

EQUITABLE SERVITUDE: ENFORCEMENT AGAINST ASSIGNEES

A

Regardless of whether the covenant runs with the land, it can be enforced against all assignees who have notice of it.

97
Q

EQUITABLE SERVITUDE: IMPLIED WHEN NO WRITING

A

Can be enforced as reciprocal negative servitudes when:
1) There is a COMMON SCHEME FOR DEVELOPMENT and
2) the Grantee had actual, record or inquiry notice of the covenant

98
Q

WHAT DOES THE LAND SALE K DO?

A

Conveys equitable title

99
Q

2 STEPS FOR A LAND SALE CONVEYANCE

A

1) The K
2) Closing: deed passes legal title to the buyer

100
Q

SOF REQUIREMENTS: LAND SALE K’S

A

1) Must be in writing
2) Signed by the party against whom enforcement is sought
3) ID parties
4) Describe property
5) State the price

101
Q

LAND SALE K: PART PERFORMANCE EXCEPTION TO THE SOF

A

If part performance has occurred, the buyer can enforce an ORAL K by SPECIFIC PERFORMANCE IF:
1) the K is certain and clear AND
2) ACTS prove EXISTENCE of the K (need 2/3 following things)
- Possession
- payment
- buyer’s substantial performance

102
Q

DOCTRINE OF EQUITABLE CONVERSION

A

Once the K is signed, the buyer is regarded as the OWNER of the REAL PROPERTY and bears the RISK OF LOSS regardless of FAULT unless stated otherwise.

103
Q

WHAT ARE THE 2 PROMISES IN EVERY LAND SALE K?

A

1) Marketable title
2) No false statements of material fact

104
Q

PROMISE TO CONVEY MARKETABLE TITLE

A

DEF: seller’s implied promise to provide reasonably feee from doubt/threat of litigation at closing

105
Q

MARKETABLE TITLE DEFECTS: ADVERSE POSSESSION

A

Adverse possession of any part of the land renders title unmarketable

106
Q

MARKETABLE TITLE DEFECTS: ENCUMBRANCES

A

Mortgages, liens, easements, restrictive covenants render title unmarketable UNLESS WAIVED by the buyer

107
Q

MARKETABLE TITLE DEFECTS: ZONING VIOLATIONS

A

Existing violations of zoning ordinances renders title unmarketable

108
Q

SELLER: NO FALSE STATEMENTS OF MATERIAL FACT

A

This is an implied promise and the seller will be liable for failing to disclose LATENT DEFECTS

109
Q

SELLER’S DISCLAIMER OF LIABILITY

A

Generally NOT acceptable EXCEPT for:
1) specific types of defects (ex. roof)

110
Q

THE CLOSING: DEEDS

A

The deed must be lawfully executed AND delivered. It is required to be:
1) in writing signed by the Grantor
2) an UNAMBIGUOUS land description,
3) ID the parties
4) words of INTENT

111
Q

DEED DELIVERY: REQUIREMENTS (TEST)

A

Grantor must physically or manually deliver the deed to the grantee - NOT LITERALLY

TEST: there must be a PRESENT INTENT by the grantor to give away LEGAL CONTROL

112
Q

DEED DELIVERY: EXPRESS REJECTION BY GRANTEE

A

Acceptance is presumed but if the grantee EXPRESSLY REJECTS - legal title does not pass

113
Q

DEED DELIVERY WITH ORAL CONDITIONS

A

If the deed is absolute on its face with oral conditions - they are NOT INCLUDED

114
Q

DEED DELIVERY: TO A 3RD PARTY

A

The Grantor MAY:
1) deliver the deed to a third party
2) with instruction to deliver to grantee
3) once certain conditions are met

115
Q

COVENANTS FOR TITLE: 3 TYPES OF DEEDS

A

1) Quitclaim deed
2) General Warranty deed
3) Special warranty deed

116
Q

QUITCLAIM DEED

A

Contains NO covenants of title - “promising no promises”

117
Q

GENERAL WARRANTY DEED: DEFINITION

A

Warrants against all defects in title - INCLUDING by the grantor’s PREDECESSORS

118
Q

GENERAL WARRANTY DEED: PRESENT COVENANT - SEISIN

A

Covenant that the GRANTOR OWNS the land

119
Q

GENERAL WARRANTY DEED: PRESENT COVENANT - RIGHT TO CONVEY

A

Covenant that Grantor can TRANSFER legal title

120
Q

GENERAL WARRANTY DEED: PRESENT COVENANT - AGAINST ENCUMBRANCES

A

Promise that there are no servitudes, liens

121
Q

GENERAL WARRANTY DEED: FUTURE COVENANTS - DEFINITION

A

Can ONLY be breached when the grantee is in POSSESSION

122
Q

GENERAL WARRANTY DEED: FUTURE COVENANTS - QUIET ENJOYMENT

A

No 3rd party lawful claims

123
Q

GENERAL WARRANTY DEED: FUTURE COVENANTS - WARRANTY

A

GRANTOR will defend against claims of title by 3rd parties

124
Q

GENERAL WARRANTY DEED: FUTURE COVENANTS - FURTHER ASSURANCES

A

GRANTOR promises to PERFECT TITLE if it is imperfect

125
Q

SPECIAL WARRANTY DEED: DEFINITION

A

Warrants against all defects in title ONLY concerning the GRANTOR

126
Q

RECORDING SYSTEM: RACE STATUTE

A

Whoever wins the RACE TO RECORD wins

Language: “Unless… first recorded

127
Q

BONA FIDE PURCHASES: DEFINITION

A

1) Purchaser
2) for VALUE
3) w/o notice of prior conveyance

128
Q

ACTUAL NOTICE

A

B learns of A’s possession (literal knowledge)

129
Q

INQUIRY NOTICE

A

B is charged with what INSPECTION would have revealed

130
Q

RECORD NOTICE

A

B is on notice of deeds properly recorded in the chain of title

131
Q

NOTICE STATUTES

A

A later purchases W/O NOTICE prevails over the grantee who didn’t record - LAST BFP WINS

Language: “Subsequent purchases for value w/o notice.. unless recorded.”

132
Q

RACE/NOTICE STATUTES

A

A subsequent buyer must have had NO NOTICE of the prior grant & MUST WIN the race to RECORD

Language: “w/o notice… whose conveyance is first recorded.”

133
Q

CHAIN OF TITLE: DEFINITION

A

Sequence of recorded documents capable of giving NOTICE to later takers. It is usually established through a title search

134
Q

CHAIN OF TITLE PROBLEMS: SHELTER RULE

A

Anyone who takes from a BFP will prevail against any interest the BFP would’ve prevailed against

Applies in NOTICE OR R/N jurisdictions

135
Q

CHAIN OF TITLE PROBLEMS: WILD DEED (DEF & RULE)

A

Def: A recorded deed is NOT connected to the chain of title

RULE: if a deed entered on the records has a GRANTOR MISSING, the deed is wild and cannot give NOTICE

136
Q

CHAIN OF TITLE: ESTOPPEL BY DEED

A

Occurs when:
1) Grantor conveys title he DOES NOT OWN
2) Grantor LATER ACQUIRES title
3) Title will AUTOMATICALLY VEST in GRANTEE
4) Grantor is ESTOPPED from denying validity of the previous conveyance

137
Q

MORTGAGES: THE PARTIES

A

1) Mortgagor: debtor - person who owes money
2) Mortgagee - creditor (lender)

138
Q

PURCHASE MONEY MORTGAGE

A

Def: Lender has a security interest in the real estate (collateral) that the buyer purchased with the LOAN given to them.

139
Q

NON-PURCHASE MONEY MORTGAGE

A

A grant of collateral in land to finance something else

140
Q

EQUITABLE MORTGAGE

A

A landowner who needs money can “sell” land by giving an absolute deed to the buyer but the sale will be deemed an equitable mortgage requiring creditor foreclosure if:
1) grantor promises to repay an existing debt or there is one
2) grantee promises to return land upon payment
3) grantee advanced much lower amount to grantor
4) level of grantor’s financial stress
5) prior negotiations

141
Q

MORTGAGE CREATION

A

1) Debt (note) and a lien in land to secure the debt
2) IN WRITING

142
Q

MORTGAGE: TRANSFER BY CREDITOR

A

A mortgagee can transfer the interest by:
1) INDORSING the note and DELIVERING to transferee OR
2) execute a separate document of ASSIGNMENT

143
Q

MORTGAGES: EFFECTS OF RECORDING ACTS

A

If recorded, a mortgage STICKS WITH THE LAND BUT, the grantee is NOT PERSONALLY LIABLE.

However, the creditor CAN still FORECLOSE

144
Q

MORTGAGE: PERSONAL LIABILITY (ASSUMPTION)

A

1 IF buyer “ASSUMES THE MORTGAGE” - Buyer AND seller are personally liable

145
Q

MORTGAGE: PERSONAL LIABILITY (SUBJECT TO)

A

If the buyer takes SUBJECT TO the mortgage - ONLY the seller is LIABLE but foreclosure is still allowed

146
Q

MORTGAGE DEFAULT: SALE PROCEEDS & DEFICIENCY

A

1) mortgagee brings a deficiency action
2) Junior interests are EXTINGUISHED
3) Junior lienholders and debtor REMAIN
4) SENIOR interests - UNAFFECTED

147
Q

ACCELERATION CLAUSE

A

A mortgage which contains an acceleration clause gives the mortgagee the right to declare the entire mortgage due in the event of default. Once acceleration occurs, to redeem and prevent foreclosure, mortgagee must pay the full balance of the debt.

147
Q
A
148
Q

ADVERSE POSSESSION DEFINITION

A

Possession for a statutory period of time can turn into title of real property

149
Q

ELEMENTS OF ADVERSE POSSESSION (COAH)

A

For possession to ripen into title, it must be:
(C)ontinuous
(O)pen and notorious
(A)ctual and exclusive
(H)ostile

150
Q

ELEMENTS OF ADVERSE POSSESSION: CONTINUOUS

A

Intermittent periods of occupancy are not permitted BUT you do not need to have continuous possession by the same person. An adverse possessor can TACK her own possession onto other periods of AP.

151
Q

ELEMENTS OF ADVERSE POSSESSION: OPEN AND NOTORIOUS

A

occupation must be SUFFICIENTLY APPARENT and put the real owner on NOTICE of the trespass

152
Q

ELEMENTS OF ADVERSE POSSESSION: ACTUAL AND EXCLUSIVE

A

Actual possession of some part of the land, not all is needed. Exclusive means that the possessor is not sharing with the true owner or public but could be a friend acting together

153
Q

ELEMENTS OF ADVERSE POSSESSION: HOSTILE

A

Requirement satisfied if the possessor enters WITHOUT OWNER’S PERMISSION

154
Q

ADVERSE POSSESSION: TACKING

A

Adverse possessors may tack onto their own time if their is PRIVITY between them and another predecessor. Privity is acquired by some non-hostile nexus (deed, will, contract) between the AP and predecessor

155
Q

ADVERSE POSSESSION: FUTURE INTERESTS

A

SOL does not run against a holder of a future interest until the interest becomes POSSESSORY (right is asserted by the Grantor).

156
Q

WHAT ARE THE 3 PRESENT POSSESSORY ESTATES

A

1) Fee simple absolute
2) Defeasible fee (3 types)
3) Life Estate

157
Q

WHAT 3 THINGS DO WE NEED TO KNOW ABOUT EACH PRESENT POSSESSORY ESTATE?

A

1) What language creates it?
2) Is it devisable, descendible and/or alienable?
3) Is the estate capable of any FUTURE INTERESTS?

158
Q

FEE SIMPLE ABSOLUTE

A

1) Def: Absolute ownership of indefinite/potentially indefinite duration
2) Language: “To A” or “To A and his heir”
3) Freely transferable, devisable, descendable

159
Q

DEFEASIBLE FEES

A

There are 3 types. Defeasible simply means CAPABLE OF FORFEITURE. Think of defeasible estates as fee simple estates WITH CONDITIONS ATTACHED.

160
Q

FEE SIMPLE DETERMINABLE (FSDPOR)

A

1) Terminates upon the happening of a stated event and AUTOMATICALLY REVERTS TO GRANTOR (POR)
2) Transferable, devisable and descendible

161
Q

FSD: CREATION

A

Language: DURATIONAL

“To A for SO LONG AS”
“To A WHILE”
“To A DURING”

162
Q

FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT (FSSCS)

A

An estate in which the grantor RESERVES THE RIGHT TO TERMINATE upon the happening of a stated event but unlike FSD is not AUTOMATIC.

163
Q

FSSCS: LANGUAGE AND RIGHT OF RE-ENTRY

A

“Upon condition that” or “provided that” or “but if”

REQUIRED: An EXPLICIT statement by the grantor of THE RIGHT TO RE-ENTER

164
Q

FSSCS: RIGHTS

A

1) NOT transferable inter vivos
2) FREELY devisable and/or descendible

165
Q

FEE SIMPLE SUBJECT TO EXECUTORY INTEREST

A

It is essentially an FSD but has AUTOMATIC FORFEITURE to a third party when the condition occurs

Ex. To A but if X happens, then to B” (not grantor”)

166
Q

ABSOLUTE RESTRAINS ON ALIENATION: FEE SIMPLE

A

Disfavored and are VOID

167
Q

LIFE ESTATE: DEFINITION

A

One measured by the life or lives of one or more people (CANNOT be in YEARS)

168
Q

LIFE ESTATE PUR AUTRIE VIE (LIFE OF ANOTHER)

A

Measured by a life other than the grantee’s. It ALSO occurs when the LIFE TENANT CONVEYS to another.

169
Q

LIFE ESTATE: ACCOMPANYING FUTURE INTEREST

A

If the future interest is held by GRANTOR: REVERSION

If FI is held by a 3rd party - REMAINDER

170
Q

LIFE TENANT: EXPLOITATION OF NATURAL RESOURCES

A

Limited to:
1) Necessity for repair or maintenance
2) Land is suitable ONLY for such USE
3) OR expressly or impliedly PERMITTED by GRANTOR

171
Q

FUTURE INTEREST: DEFINITION

A

Gives the holder the right or possibility of FUTURE possession. It is still a PRESENT interest though that is legally protectable

172
Q

FUTURE INTERESTS: HELD BY GRANTOR/TRANSFEROR (3)

A

1) Possibility of reverter
2) Right of entry
3) Reversion

173
Q

FUTURE INTEREST: HELD BY SOMEONE ELSE (3)

A

1) Contingent remainder
2) Vested Remainder (3)
3) Executory interest (2)

174
Q

FUTURE INTEREST (GRANTOR/TRANSFEROR): POSSIBILITY OF REVERTER

A

Accompanies a FSD and AUTOMATICALLY happens upon occurrence of the stated CONDITION

175
Q

FUTURE INTEREST GRANTOR/TRANSFEROR): RIGHT OF ENTRY

A

Accompanies an FSSCS and allows the grantor to EXERCISE HIS RIGHT OF ENTRY at his DISCRETION

176
Q

FUTURE INTEREST GRANTOR/TRANSFEROR): REVERSION

A

Is the estate lef tot the grantor who conveys less than what they own.

Ex. O conveys to “A for life” - Well, A can die before O who has the reversion if A dies first

TRANSFERABLE, DEVISABLE, DESCENDIBLE

177
Q

FUTURE INTEREST (TRANSFEREE): REMAINDER

A

Future interest in a THIRD PERSON that can become POSSESSORY on the natural expiration of the previous estate. It must be EXPRESSLY CREATED

178
Q

FUTURE INTEREST: CONTINGENT REMAINDER

A

Remainder is contingent IF:
1) it is created in UNBORN OR UNASCERTAINED persons OR
2) It is subject to a condition precedent OR BOTH

Ex. To A for life and then to B’s first child (who isn’t alive) - B’s child has a contingent remainder

179
Q

FUTURE INTERESTS: SUBJECT TO CONDITION PRECEDENT

A

CP if it must be satisfied BEFORE the remainderman has right of possession.

180
Q

FUTURE INTEREST: VESTED REMAINDERS (DEFINITION)

A

One created in an existing and ascertained person and NOT subject to a condition precedent

181
Q

FUTURE INTEREST: INDEFEASIBLY VESTED REMAINDER

A

One that is not subject to divestment or diminution. The holder is CERTAIN TO ACQUIRE THE ESTATE IN THE FUTURE WITH NO CONDITIONS

EX. To A for life, remainder to B. (both alive)

182
Q

FUTURE INTEREST: VESTED REMAINDER SUBJECT TO TOTAL DIVESTMENT

A

This remainder is subject to a CONDITION SUBSEQUENT which could cut short his right to possession.

Ex. To A for life, then to B and his heirs; but if B dies unmarried, to C and his heirs.

183
Q

FUTURE INTEREST: VESTED REMAINDER SUBJECT TO OPEN

A

Created in a CLASS OF PERSONS that is certain to become possessory but subject to DIMINUTION.

(Each members’ share could become smaller due to additional takers)

184
Q

WHEN CLASS CLOSES - RULE OF CONVENIENCE

A

It closes when no other members can join. In the absence of contrary intent, a class closes when:
1) some member of the class can call for distribution of their share.

185
Q

FUTURE INTEREST: EXECUTORY INTEREST

A

FI’s in 3rd parties that divest a transferee’s preceeding estate or FOLLOW A GAP or CUT SHORT a grantor’s estate.

186
Q

SHIFTING EXECUTORY INTEREST

A

Always follows a defeasible fee and cuts short someone other than GRANTOR

Ex. To A, but if A returns from Canada, to B and his heirs

187
Q

SPRINGING EXECUTORY INTEREST

A

Cuts short the interest of the GRANTOR

BAR (8 decks)

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