real property Flashcards
Fee Simple preferred
the law disfavors defeasible estates and will interpret ambiguous language as expressing only the grantor’s purpose in making the grant, which has no legal effect, rather than a binding restriction on the grantee’s usage of the property.
What happens when a conveyance does not expressly reference a right of entry?
Courts may not construe a fee simple subject to a condition subsequent as implying a right of entry if none is expressly invoked in the instrument of conveyance. In such a case, courts may find that the grant conveys no future interest and the grantee will be deemed to have essentially received a fee simple absolute.
Fee Simple Determinable
If the condition specified in the conveyance should occur, then the fee simple will end automatically, and the property will return, or revert, to the grantor.
The grantor’s interest in a potential reversion is a future interest called a possibility of reverter.
To spot a fee simple determinable on the bar exam, look for words of time or duration, such as until, while, so long as, or during.
Fee Simple Subject to a Condition Subsequent
right of entry
conditional language but if, on condition that, unless
presumption in favor of fee simple subject to condition subsequent
in the case of an ambiguous conveyance, there is a presumption in favor of the fee simple subject condition subsequent over a fee simple determinable.
Life Estate
An estate of a duration measured by the life of some named person.
Followed by a remainder (in the grantee) or a reversion (in the grantor)
Life tenant (Duty to avoid Permissive Waste)
- requires the life tenant to take reasonable steps to maintain the premises but no duty to make extraordinary repairs or improvements
- requires life tenant to pay taxes on the property up to the amount of income that can be derived from the land
- responsible for interest on debt secured by mortgage (principle to remainderman)
Life tenant duty to avoid voluntary waste
must not alter property in ways that materially decrease its value
life tenant duty to avoid ameliorative waste
must not alter the property in ways that change its character, even if those changes increase the property’s value
vested remainder
A vested remainder is one that passes to (1): an identifiable, living remote grantee when the preceding life estate ends, (2): with no preconditions to the transfer.
contingent remainder
A contingent remainder is a remainder that’s held by (1): an unknown or unborn remote grantee, or (2): a remainder that vests in a remote grantee only if a condition precedent occurs.
executory interest
a future interest based on some condition precedent that may vest in a remote grantee in a manner that cuts off a previous estate before its natural end.
alienability of future interests
future interests are generally devisable, descendible and transferrable.
tenancy in common
shared property ownership
no requirement of equal interest
regardless of each cotenant’s stake, each is entitled to possess the whole property
none can exclude the other
preference for tenancy in common
A tenancy in common is the default estate created by a conveyance or bequest of real property to two or more people, unless: (a): there is express language stating that the parties have a survivorship right creating a joint tenancy; or (b): if the conveyance of real property is stated as husband and wife creating a tenancy by the entirety.
Joint tenancy creation
A conveyance of real property to two or more persons creates a joint tenancy when (1): a clear express intent to create a joint tenancy is expressed in the instrument of conveyance or transfer; and (2): the four unities of time, title, interest and possession are present
Joint tenancy 4 unities
time,
* The unity of time requires that the joint tenants’ interests must vest simultaneously.
title,
* The unity of title requires that the joint tenants must derive their ownership from the same deed or other instrument
interest, and
* The unity of interest requires that the joint tenants must hold the property in equal shares
possession…
* And the unity of possession requires that each joint tenant must have the right to use the entire property.
Joint Tenancy Inference
In many states clear language is required.
But courts sometimes will infer a joint tenancy from words like “share and share alike.”
Effect of Severance
The severed interest becomes held as a tenancy in common, while the remaining interests continue in a joint tenancy as before.
Severance by sale
Sale of a joint tenant’s interest severs the interest because the unities of time and title have been disturbed.
Equitable Conversion destroys unity of title at point of sales k, before closing.
Effect of lease on lessor’s joint tenancy interest (Common Law/minority of jds)
Severance
Effect of Lease on Lessor’s joint tenancy interest (minority)
Other states hold that such a
lease does not sever the joint tenancy.
Some courts follow a
middle ground approach: the joint tenancy is severed only if
the leasing joint tenant dies before the end of the lease term;
What happens to the lessee in jds where a lease does not sever the joint tenancy if a leasing joint tenant dies before the end of a lease
Lease is terminated as non-leasing joint tenants now own leasing joint tenants share by ros.
Effect of Mortgage on a lease
Lien theory states: No severance
Title theory states: Severance
What is Partition?
a judicial proceeding in which one or more cotenants seek to end the cotenancy and divide the property among themselves individually
What kind of partition is preferred
Partition in Kind (dividing the properly physically) is preferred to partition by sale.
When is partition by sale preferred?
When partition in kind isn’t possible
property is a house
physical division would leave part of the property unusable
physical division would substantially reduce the property’s value or utility.
When is an out of possession cotenant entitled to rent from an in-possession cotenant?
when there has been an agreement of this kind; or
the in-possession co-tenant has been wrongfully ousted.
When is a cotenant entitled to reimbursement for repairs?
A tenant is entitled to reimbursement for the costs of the necessary repairs that he paid for in an amount proportional to the co-tenant’s ownership interest UNLESS there has been a wrongful ouster
What is the responsibility for mortgage payments among co-tenants?
Co-tenants are each responsible for his or her share of mortgage payments in proportion to their ownership interests on the property and an overpaying cotenant may recover such overpayment in a contribution action.
Does a cotenant require consent of other tenants before making improvements to the property?
o Generally, any cotenant may improve the property without the others’ consent.
o A co-tenant who makes improvements is not entitled to reimbursement unless there is an agreement to the contrary.
o At the end of the cotenancy, the improving cotenant bears all the downside risk of the improvements, but also has all of the upside gain.
Tenant’s duties
- A tenant has the duty to
o pay rent;
o to avoid waste; and
o to not abandon the premises by leaving and ceasing to pay rent before the lease ends.
Abandonment
Abandonment occurs if the tenant (1): without legal justification; (2): vacates the premises; (3): with no intention to return; and (4): stops paying rent.
Landlord’s duties
A landlord’s duties include delivering the premises; honoring the implied warranty of quiet enjoyment; and honoring the implied warranty of habitability.
Delivery (most jds require both)
A landlord has a duty to deliver to the tenant (1): actual; or (2): legal possession at the beginning of any lease term.
legal possession
exclusive legal right to possess the property.
actual possession
property is free from any holdover tenants or other wrongful occupiers when the lease begins.
Quiet Enjoyment
Every lease includes an implied covenant of quiet enjoyment which prevents a landlord from interfering with a tenant’s quiet enjoyment and possession of the property.
How does a ll interfere with a tenant’s quiet enjoyment?
By constructively evicting him
Elements and effect of Constructive Eviction
(1): Landlord breached a duty owed to the tenant
(2): That breach substantially interfered with tenant’s right to quiet enjoyment of the premises;
(3): Tenant gave landlord notice of the breach and an opportunity to cure
(4): landlord failed to cure in a reasonable time; and
(5): tenant vacated the premises
Tenant may terminate the lease
Landlord’s remedies upon abandonment
- Acceptance of surrender
- re-lease the premises and recover the difference in rent
- allow the premises to remain vacant and sue the tenant for rent as it becomes due (subject to a duty to mitigate).
What constitutes acceptance of Surrender
Requires more than merely taking the keys back
Express agreement
Re-leasing the premises at same or higher rental rate
substantially reconfiguring the premises so as to change their character
