Real Property Flashcards
Types of present estates
Fee simple absolute
Fee simple determinable
Fee simple subject to condition subsequent
Fee simple subject to executory interest
Fee simple absolute
Absolute ownership of potentially infinite duration, default estate
Fee simple determinable
Present estate limited by specific durational language
Who holds the future interest for a FSD?
Future interest held by grantor who has possibility of reverter
Language that limits only the purpose of the transfer (“for the purpose of” or “with the intent that”) creates what estate?
FSA
Fee simple subject to condition subsequent
Present estate limited by specific conditional language
Who holds the future interest for a FSSCS?
Future interest held by grantor who has a right of re-entry
Fee simple subject to executory interest
Present estate limited by specific conditional language
Who holds the future interest for a FSSEI?
Future interest held by 3P who has executory interest
Life estate
Present estate limited by a life
Who has a future interest in a life estate?
Grantor - Reversion
3P - Remainder
Defeasible life estate
Present estate that terminates upon the end of the measuring life OR happening of stated event
Doctrine of waste
Doctrine of waste limits the rights to a holder of an estate, meaning that the current estate holder cannot cause property value to decrease
What situations does doctrine of waste apply to?
Life estate
LL/Tenant
Concurrent estates
Lender/Borrower
Types of waste under the doctrine of waste
Affirmative
Permissive
Ameliorative
What is affirmative waste
Affirmative waste is waste caused by voluntary conduct which causes value decrease
What is permissive waste
Permissive waste is neglect which causes value decrease
What is ameliorative waste
Ameliorative waste is modification of property that increases value
Duties of life estate holder
Must pay property taxes
Must pay preexisting mortgage obligations
What is a remainder?
A future interest that follows a life estate and can be vested or contingent
What is a vested remainder?
Interest that is 1) given to an ascertained grantee, and 2) not subject to a condition precedent
What is a vested remainder subject to open?
1) vested remainder is a class gift, AND 2) full class membership is unknown; at least 1 person in class must be vested for interest to be vested subject to open, otherwise contingent
What is a vested remainder subject to complete divestment?
exists if occurrence of SUBSEQUENT condition eliminates the remainder interest
Contingent remainder
any interest not vested, RAP applies
What is an executory interest
A future interest that divests (cut short) a prior vested interest
What is a springing executory interest
Future interest that divests the grantor
What is a shifting executory interest
Future interest that divests the prior grantee
Doctrine of worthier title
presumption of reversion to grantor if interest to grantee for life estate then to grantor’s heirs
Rule in Shelley’s case
FSA created if interest to grantee for life estate then to grantee’s heirs
What is a concurrent estate?
ownership/possession by 2 or more people simultaneously
Types of concurrent estates
Tenancy in Common
Joint tenancy
Tenancy by the entirety
Tenancy in common
default co-tenancy where concurrent owners have separate but undivided interests in the property; no right of survivorship; interest freely devisable/transferable
Joint tenancy
concurrent owners w/ right of survivorship (interest of dead tenant is absorbed by survivors) that have 1) equal right to possess, 2) equal interests, 3) received interests at same time, AND 4) received interests in same instrument of title
Tenancy by entirety
joint tenancy between married couple where either cannot alienate/encumber their interest w/o other’s consent
Severance of joint tenancy
if any of the four joint tenancy unities are destroyed, then it becomes TIC w/ respect to the severed share
Lien theory of mortgages for a joint tenancy
mortgage treated as lien and doesn’t destroy joint tenancy
Title theory of mortgages for a joint tenancy
mortgage severs title, tenancy becomes TIC between joint tenant(s) and creditor
Rights/Duties of concurrent owners
all co-tenants have right to possess all property regardless of share and type of co-tenancy, unless agreement to the contrary
Ouster
cotenant in possession denies other access to property
Ousted tenant’s remedies
ousted tenant can get injunction or recover damages
Rights/Duties of concurrent owners - Rent
rent received from 3rd party’s possession are divided based on ownership interests
Rights/Duties of concurrent owners - Operating expenses include?
Operating expenses includes necessary charges like taxes/mortgage payments
Rights/Duties of concurrent owners - Operating expenses are divided how?
divided based on ownership interest and right to collect contribution, unless co-tenant in sole possession then they can collect only to extent that expenses exceed rental value of property
Rights/Duties of concurrent owners - Repairs/Improvements
No right to reimbursement of repairs/improvements, but credit in partition action
Concurrent owners - what is a partition
equitable remedy available to TIC/joint tenancy, proceeds divided based on ownership interests
Partition in kind
Physical partition
Partition by sale
Only available if physical partition is not practical OR is not fair
Fair Housing Act
prohibits discrimination in sale/rental/financing of dwellings and prohibits discriminatory advertising.
Exception to Fair Housing Act
Single family house w/o broker
Owner-occupied building w/ 4 or less units
Religious orgs
Private clubs
Fair Housing Act - What is disparate treatment
Intent to discriminate
Fair Housing Act - What is disparate impact
Effect of discrimination
Choice of law regarding property disputes
Controlling law is generally the jx of where the property is
Between a LL/T, a lease creates?
Lease creates K interest and property interest
Types of leases
Tenancy for years
Periodic
At will
At sufference
Tenancy for years
Fixed and ascertainable amount of time
1+ plus requires S/F
Terminates automatically
No notice to terminate unless K requires
Terminates earlier if T surrenders lease or material breach
Periodic tenancy
Repetitive and ongoing for set period of time
Express or implied intent
Auto renew UNLESS proper written notice
At will tenancy
LL or T can terminate any time/any reason
Can terminate w/o notice
Court will give T right to terminate if unconscionable lease that only gives LL right to terminate
Tenancy at sufferance
T holds over after lease has ended
T owes reasonable value of daily use & reasonably foreseeable special damages
Tenant’s duties
Duty to pay rent
Duty to avoid waste
Implied duties in a tenancy
Implied covenant of quiet enjoyment
Implied warranty of habitability
Tenant’s right in the face of LL breach
Constructive eviction
Landlord’s duties
Duty to mitigate damages
Duty to repair
Duty to deliver possession
Quiet enjoyment
Bidder’s right to withdraw at an auction
At a reserve OR no-reserve auction, a bidder has the right to withdraw a bid UNTIL the auctioneer announces the completion of the auction sale.
However, the bidder’s retraction will not revive any prior bids.
A conveyance of real property “to X and their heirs” conveys what?
FSA in just X
