Real Property Flashcards
Averse Possession Requirements?
- Actual possession
- Open and notorious
- Hostile (no consent)
- Continuous
- Statutory period (20 years+)
Land Sale Contract - Writing Requirements?
Statute of Frauds
1. Writing
2. Partied identified
3. Signed by one to be bound
4. Describes land
5. States Consideration
PIP Exception for SOF: (1) possession by buyer; (2) substantial improvements; (3) payment
Land Sale Contract - Marketable Title
Implied promise in all land sales that title is free from reasonable doubt.
Land Sale Contract - Equitible Conversion
Once contract signed, buyer deemed owner of real property; risk of loss imposed on buyer
Land Sale Contract - Remedy for Breach?
- Damages;
- Specific Performance if:
* Valid contract
* Conditions met
* Inadequate legal remedy
* Mutuality of performance
* Feasibility to enforce
* No defenses
Mortgage Requirements?
Writing (SOF)
1. Writing
2. Partied identified
3. Signed by one to be bound
4. Describes land
5. States Consideration
Mortgage - Foreclosure
- Must be judicial foreclosure
- Priority of loans paid: purchase money mortgage, fees, senior, junior, unsecured
- Deficiency
- Redemption sometimes allowed after by states
Deed Requirements?
- Parties
- In writing and signed by grantor
- Describe land
- Word of intent
- No consideration required
Three Types of Deeds?
- Quitclaim - convey whatever interest and no warranties
- Warranty - against all defects and six covenent to title
- Statutory Special Warranty Deed - when grantor promises (some states)
General Warranty Deed Six Covenants?
- Seisin - grantor owns what he says he owns
- Right to convey
- Free of encumberances
- Defend against lawful claims of title
- Quiet enjoyment - not disturbed in possession by lawful claim in title
- Further assurances - will do whatever reasonably necessary in future to perfect title
Deed Delievered When:
- Intent to make present transfer
- Acceptance
Merger Doctrine?
Contract merges into deed and deed controls.
Damages for Warranty Deed Breach?
- Title Issues = purchase price or costs to perfect (lesser of)
- Encumberances = difference in value
Warranty Deed Breach Defenses?
- Laches
- Unclean hands
- Waiver
Three Types of Recording Acts?
- Pure Race - First to file
- Pure Notice - BFP over grantee that did not record
- Race-Notice: BFP who records first over grantee who did not record or record second
Bona Fide Purchaser?
- Takes land for value
- No notice of prior interest
Three Types of Notice for Real Property?
- Actual
- Inquiry - should know
- Record (constructive)
Estoppel By Deed?
One who conveys what he does not have but later does have cannot deny conveyance.
Shelter Doctrine?
One who takes from BFP stands in shoes of BFP.
Fee Simple Absolute?
Conveys absolute ownership.
Fee Tail?
Property must remain in family (modernly gone)
Fee Simple Divisible?
Property conveyed subject to limitation.
Fee Simple Determinable?
- Automatically terminated upon occurrance (so long as, while, unless)
- Reverts back to grantor (possibility of reverter)
Fee Simple Subject to Condition Subsquent?
- Potential to terminate (not automatic) upon occurance (but if, provided that)
- Creates right to re-entry; must be enforced
Fee Simple Subject to Executory Interest?
- Automatically terminates upon occurrence (so long as, while, unless)
- Passes to third person (executory interest; subject to Rule Against Perpetutites)
Life Estate?
- last for lifetime of some person; not always the one in possession
- Can transfer only life estate interest
Future Interest - Possibiity of Reverter?
Automatically reverts to grantor; follows fee simple determinable.
Future Interest - Right of renetry?
May revert back to grantor; requires enforcement; follows fee simple condition subsequent
Future Interest - Reversion?
- When holder transfers something less than full estate
- It is vested already - no rule against perpetuitites
Future Interest - Remainder?
Only becomes possessory upon expiration of prior possessory estate in same instrument. “If A for life, then B”
Future Interest - Vested Remainder?
- Ascertained person; and
- No condition precedent
Future Interest - Contingent Remainder
- Unascertained person (unborn); or
- Ascertainable but subject to condition precendent
Future Interest - Alternative Contigent Remainder?
Two parties have contingent remainder (condition precedent). “To A for life, then B if B marries C, otherwise to D.”
Future Interest - Executory Interest?
When possessory estate automatically terminates and goes to third party (not grantor).
Future Interest - Shifting Vs. Sprining Executory Interest?
Springing: Cuts short (“To A, but if X, then to B”)
Springing: Does not cut short (“To A for life, then to B for life, then to C)
Rule Against Perpetuities?
Interest must vest no later than 21 years after life in being at creation of interest.
Applies to:
1. Contingent remainders
2. Executory interests
3. Options in gross
4. Class gifts
5. Powers of appointment
Joint Tenancy?
- Automatic right of survivorship
- Equal right to occupy whole
- Equal shares
Joint Tenancy Creation - Four Unities + Language?
- Time
- Title
- Interest
- Possession
- States Right to Survivorship
Severance of Joint Tenancy?
Conveyance
* Not by will - just void devise
* Mortgage in Lien Theory does not sever but mortgage in Title theory severs that joint tenant’s share
* Lease: jurisdictions split
Tenancy in Common?
- Equal right to occupy
- Nonequal shares allowed
- Can sell, will, or gift share
- No right of survivorship
Tenancy by Entirety?
- Spouses Only
- Cannot unilaterally convey share or encumber whole
- Right to survivorship
- Severed by death, divorce, or agreement
- Not applicable in CP state
Co-Tenancy Rules?
- Right to possession
- Accounting - Tax/Mortgage = proportionate and seek reimbursement
- Accounting - Improvements = no reimbursement
- Accounting - Necessary reparies = contribution
- Partition Action (voluntary or judicial) = property divided or sold and distributed
Landlord-Tenant - Four Types of Tenancies?
- Term for years
- Periodic
- Tenancy at will
- Tenacy at sufferance
Landlord-Tenant - Term for Years?
Lease for any fixed period of time; SOF required if more than one year.
Landlord-Tenant - Period Tenancy?
Automatically continues from one period to another unless one party terminates with notice (month to month)
Landlord-Tenant - Tenancy at Will?
- No fixed period and terminated at any time.
- Requires express agreement or implication
Landlord-Tenant - Tenancy at Sufferance?
When tenant wrongfully holds over.
Landlord-Tenant - Defenses to Duty to Pay Rent?
- Failure to deliver possession
- Breach of covenant of quiet enjoyment
- Constructive eviction
- Destruction of premises
- Contract defenses (i.e., frustration of purposes)
- Surrender and acceptance
- Re-letting after abandonment
Implied Covenant of Quiet Enjoyment?
- Implied in all leases
- LL, LL agents, or title holder will not interfere with quiet enjoyment
- NOT strangers
Constructive Eviction Occurs?
- Virtually uninhabitable
- Substantial interferense with use
- Notice
- LL does not respond
- T timely moves out
Partial actual eviction?
- LL makes it impossible to occupy part of premises
- May withhold entire rent
Breach of Warranty of Habitability Remedies?
- Terminate and move;
- Repair and deduct; OR
- Pay reduced rent and sue
Retaliatory Eviction?
Not allowed if tenant complains of habilitability.
Tort Landlord Liability - LL Must:
- Maintain common areas
- Fix latent defects
- Repare non-negligently
- Duty to inspect areas open to public
Doctrine of Waste?
Tenant or Life Estate must prevent waste.
Three Types of Waste?
- Voluntary - decrease value
- Permissive - neglect
- Ameliorative - alterations
Factors to determine fixtures (MARIA)?
- Method of attachemnt (permenant/temp)
- Adapted to fit
- Removal would destroy chattel/damage property
- Intention of party who installed
- Agreement
Assignment vs. Sublease?
Assignment = entire interest
Sublease = less than entire interest (still on hook)
Affirmative vs. Negative Easement?
Affirmative = entitled to do something on another’s land
Negative = prevent from doing something on own land
Easement in Gross?
Easement to individual; “Al can fish in my pond.”
Five Ways to Create Easement?
- Express
- Implication
- Necessity
- Prescription
- Estoppel
Express Easement?
- SOF applies.
Easment by Implication?
- Originally one parcel
- Use existed prior to severance
- Reasonably necessary
Easement by Necessity?
- Common ownership at some point
- Strictly necessary (e.g. landlocked)
- No prior use needed
Easement by Prescription?
- Actual use
- Open and Notorious
- Hostile (no consent)
- Continuous
- Statutory Period (20+ years)
Easement by Estoppel?
Reliance
Scope of Easement?
- Present and future use
- Normal, foreseeable development
- Excessive Use Remedy = injunction or damages (not terminated)
Easement maintenance and repairs?
Dominant owner has implied right to repair.
Transfer of Easement?
- Servient estate transfer = passes with land to new owner except BFP
- Dominant estate transfer = passes if not in gross
Termination of Easement (END CRAMP)?
- Estoppel (reliance)
- Necessity ends
- Destruction
- Condemnation
- Release
- Abandonment with action
- Merger of parcels
- Prescription (in reverse)
Real Covenant - Burden Runs With Land (WITCH VaN)?
- Writing b/w original owners
- Intent
- Touch and concern land
- Horizontal Privity (original had shared interest)
- Vertical privity (sucessor holds entire interest)
- Notice
Real Covenant - Benefit Runs with Land?
- Writing b/w original owners
- Intent
- Touch and Concern Land
- Vertical privity (successor hold entire interest)
No notice or horizontal privity required
Real Covenant vs. Equitable Servitude?
Real Convenant Breach = Money
Equitable Servitude Breach = Injuction
Equitible Servitude = No privity
Equitable Servitudes - Run With Land If (When Injunction is The Certain Need)?
- Writing
- Intent
- Touch and Concern
- Notice
Equitable Servitude - Implied Reciprocal Servitude?
- Common plan or scheme for land;
- Notice
Writing not requried.
Termination of Real Covenants and Equitible Servitudes?
Same as Easements:
* Destruction
* Release
* Estoppel
* Abandonment
* Merger
* Condemnation
PLUS Changed Conditions
License?
- Right to use licensor’s land for specific purpose
- Revocable at will
- Oral agreements allowed (but could create easement by estoppel if detrimental reliance)
Three Water Rights?
- Drain surface water
- Riparian rights
- Ground Water
Lateral and Subjacent Support?
Right to receive necessary physical support of adjecent (lateral) and underlying (subjacent) soil.
* If land in natural state, strict liability if excavation damages
* If land is improved upon, strict liability if excavation would have damages natural state; otherwise negligence theory.
Zoning?
- For public health and safety
- Must be reasonable
- Variance for unnecessary hardship
- Nonconforming prior use usually allowed; improvment or rebuilding may lose this.
