Real Property Flashcards
Severing a Tenancy by the Entirety
Severance occurs in a tenancy by the entirety when:
1. The co-tenants jointly convey to another;
2. One co-tenant conveys to the other; or
3. Divorce.
Statutory vs. Equitable Right of Redemption
Equitable redemption is the right of a borrower to redeem the property before the foreclosure sale. Whereas statutory redemption is the right of a defaulting borrower to redeem the property after the foreclosure sale (usually 6-12 months).
Either may not be “clogged”/waived at any time!
Rule Against Perpetuities
An interest in land must vest, if at all, within 21 years of a life in being at the time of the creation of the interest.
Doctrine of Merger
Although a covenant that title will be marketable is implied in a contract for the sale of land, the doctrine of merger provides that one can no longer sue on title matters contained in the contract of sale after the deed is delivered and accepted.
After closing, the contract of sale is “merged” with the deed.
AKA, a buyer seeking to sue on implied warranties that were in the contract, but merged into a quitclaim deed that provided no warranties, can no longer do so after merger/closing.
Estoppel by Deed
Estoppel by deed applies to validate a deed, particularly a warranty deed, that was executed and delivered by a grantor who had no title at that time, but who represented that they had such title and who thereafter acquired such title.
Light and Air
Negative easements for light and air have been repudiated, absent an express agreement between parties.
There is no longer an implied right to light and air, as such a right would hamper development. However, an easement for light and air may be created by express grant.
3 Types of Notice
Actual notice, constructive/record notice, and inquiry notice (should have made a reasonable inquiry to discover, circumstances would make a reasonable person inquire further).
Rule of Convenience
The class (“subject to open”) closes as soon as one member of the class becomes entitled to immediate possession of the property.
EXAMPLE: “A to B for life, remainder to the children of C.” If C currently has 2 children when B dies, any child born after the death of B is not entitled to the remainder since the class has already closed.
Fixtures
Personal property attached to real property that transfers with the real property.
To characterize the property, look to the intent — would a reasonable person thing that this property is affixed permanently to the land?
Judged objectively, according to a reasonable person standard.
Examples: a furnace, boat dock, chandelier, etc.
Ademption
“Adeemed by Extinction”: If a gift described in a will isn’t in the testator’s estate at the time of death, it is adeemed by extinction.
“Adeemed by Satisfaction”: If a gift in a will was already made during the testator’s lifetime, i.e., the beneficiary already has it, it is adeemed by satisfaction.
How to Impose a Equitable Servitude
A real covenant with no privity or not in writing may be proven the covenant through estoppel, by showing an equitable servitude.
An equitable servitude can be proven upon a showing of an intent to run (plus notice and T&C), usually by establishing a common scheme.
If a sufficient number of lots in a subdivision are burdened by the same covenant, the court may find that a common scheme binds ALL of the lots in the sub., including those without the restriction written in the deed.
Common scheme must have been evident at the time of conveyance.
Prescriptive Easement
Requires proof that the use of the property is:
1. Continuous (traditional period is 20 yrs.)
2. Hostile
3. Actual
4. Notorious and Open
5. Exclusive (may share use with the owner, but not the whole world).
Like adverse possession, but the possessor gains the right to use, instead of title.
Possibility/Right of Reverter
A future interest in the grantor following a determinable estate. Upon the happening of an event, the property will automatically revert back to the grantor.
Term of Years Lease
Has a definitive beginning and end, can be more than one year, and ends automatically at the end of the period (no notice required).
Fee Simple Subject to an Executory Interest
Uses the same language as a fee simple determinable and a fee simple subject to condition subsequent, except the interest will go to a third party.
EXAMPLE: “If B dies without marrying, to C.”
Terminating a Fee Simple Absolute/Life Estate
Can ONLY be terminated upon the owner dying without a will and heirs, in which case the property escheats back to the state.
Tenancy in Common vs. Joint Tenancy
Both give each co-tenant a possessory interest in 100% of the property.
However, joint tenancy has a right of survivorship while tenancies in common do not.
Right of Survivorship
When property is held in joint tenancy, where one co-tenant dies, the entirety of the property passes to the surviving co-tenant automatically.
Trumps a will.
Creating a Joint Tenancy
Traditionally, tenants must take at the same time, on the same title, with equal interests, and shared possession. (TTIP)
Modernly, the tenants are only required to share an equal interest and equal possession. (IP)
Common Law vs. Modern Split on Ameliorative Waste
Ameliorative waste refers to modifications that increase the value of property made without permission.
Common Law: NO substantial alterations can be made to the property at ALL, unless authorized.
Modern Rule: You can make an alteration to the property if it doesn’t affect the market value, the *remaindermen approve**, or a substantial change in the neighborhood justifies it.
Types of Present Interest
Fee tail, fee simple/life estate (+ life estate pur autre vie), and nonfreehold estates (leases).
Fee Tail
“To the heirs of his body”; only to children. Think Downtown Abbey. Not favored because of the restraint on alienability.
Future-Advance Mortgage
Any line of credit or home equity loan. Time of attachment depends on if it is an obligatory FAM or an optional FAM.
Obligatory Future-Advance Mortgage: Attaches at the date that the loan is made, but not necessarily the date that the money is accessed. Normal for automatic installment.
Optional Future-Advance Mortgage: Attaches on the first payment, but subsequent creditors can take priority over whatever is left unpaid or remaining installments. Up to the bank’s discretion as for when to disburse.
Rights and Duties of Co-Tenants
Equal possession, equal profits, and equal payment of expenses. (PPP)
Generally, there is no duty to repair or improve.
The remedy for disagreements between co-tenants is a judicial partition.
