Real Property Flashcards
Types of Estates
- present estates
- future estates
Present Estates
owner has present right of possession and right to use and enjoy the property.
Types of Present Estates
- fee simple absolute
- defeasible estate
- life estate
- fee tail
Fee Simple Absolute
infinite in duration; cannot be cut short; devisable and descendible
Defeasible Estate
may be cut short upon occurrence of event; devisable and descendible.
Types:
- fee simple determinable
- fee simple subject to a condition subsequent
- fee simple subject to an executory limitation
Defeasible Estate: Fee Simple Determinable
created using durational language (so long as during, while)
automatically terminates
held in the grantor (possibility of reverter)
Defeasible Estate: Fee Simple Subject to a Condition Subsequent
created using conditional language (provided that, but if) and requires EXPRESS language reserving future interest (right of reentry)
Claim of ownership must be asserted when condition is broken
Defeasible Estate: Fee Simple Subject to an Executory Limitation
created using durational OR conditional language.
requires EXPRESS language reserving the future interest in another grantee.
estate automatically terminates upon occurrence of stated condition
Life Estate
limited in duration by life of a person.
automatically terminates and transfers to the future interest holder upon the person’s death
can be conveyed with a condition (i.e., determinable)
can be conveyed by the life tenant to another (i.e., pur autre vie)
Fee Tail
created when conveyance confined the transfer of the property to the issue (children) of the first taker.
no longer recognized
Future Estates
not presently possessory but may become so in the future
types:
- future interests held by grantor
- remainders (future interests held by subsequent grantees)
- executory interest
Future Interests Held By Grantor: Reversion
grantor conveys less than grantor’s entire estate, vests upon the expiration of the preceding estate, and does not need to be expressly reserved.
freely alienable
Future Interests Held By Grantor: Possibility of Reverter
grantor transfers a determinable estate to the grantee that automatically reverts to the grantor once the condition occurs.
alienable
Future Interests Held By Grantor: Power of Termination / Right of Reentry
grantor transfers a fee simple subject to a condition subsequent to a grantee and requires the grantor to exercise the power of termination in order to terminate the estate when the condition is broken
Remainders
become immediately possessory at the natural termination of a preceding estate and will not cut short the preceding estate
types:
- vested remainder
- contingent remainder
- alternative contingent remainders
Vested Remainder
given to an ascertainable person and is not subject to any condition precedent.
alienable and classified as
- indefeasible (not subject to divestment)
- subject to partial divestment (size of interest diminishes if others enter the class) or
- subject to complete divestment (conditions can lead to termination of the estate)
Contingent Remainders
either:
- transferred to an unascertained person or
- subject to a condition precedent
alienable
Alternative Contingent Remainders
pair of remainders that have opposite conditions precedent in which one person will make if a condition is met and another person will take if the condition fails
not transferable
Executory Interest
future interest held by someone other than grantor that divests the preceding interest or follows a gap that existed after termination of preceding interest
classified as either:
- shifting (divesting another grantee) OR
- springing (divesting a grantor)
Doctrine of Worthier Title
presumption that grantor did not intend to convey a future interest to grantor’s own heirs but intended to retain interest.
applies when grantor conveys property to a grantee and creates a remainder in grantor’s own heirs
abolished in most states
Rule in Shelley’s Case
prevents creation of a remainder interest in heirs of a grantee or devisee and instead has the remainder vest in the grantee
applies when grantor conveys property to a grantee and creates a remainder in the grantee’s heirs
abolished in most states
Destructibility of Contingent Remainders
destroyed if:
- prior estate terminates before remainder vests or
- same person holds a present estate and future interest (intervening contingent remainders are destroyed)
abolished in most states
Conditions of Survivorship
if grantor has placed an express condition of survivorship in the transfer, then the future interest may not be alienable by the grantee
Class Gift
transfer that is made to a class of people
if class gift for which some members have qualified but for which others may qualify in the future, the vested remainder is classified as subject to partial divestment or subject to open
Class Gift: Rule of Convenience
future interest will not become possessory until the class naturally closes, but if the jurisdiction applies this rule, it can close the class when any of its members is entitled to that member’s share of the class gift
Rule Against Perpetuities
no interest is valid unless it vests, if at all, within 21 years of some life in being at the creation of the interest
only applies to future interests held by persons other than grantor (contingent remainders, vested remainders subject to partial divestment, executory interests).
life in being = person who was alive/in gestation when interest was created
Cy Pres Doctrine
RAP does not apply to charitable trusts.
some jurisdictions have applied this to non charitable transfers.
court has discretion to reform conveyance in a way that most closely meets the transferor’s intent
Waste
life estate holders and tenants in possession must not commit waste.
Types:
- voluntary
- permissive
- ameliorative
Voluntary Waste
person causes property damage.
includes permanent impairment, depletion of natural resources (unless already being put to that use at time of conveyance - open mines doctrine)
Permissive Waste
person’s failure to make minor repairs leads to substantial issues.
excludes ordinary wear and tear
Ameliorative Waste
person makes improvements to property that increase the property’s value
but it is permitted when the improvements reflect a substantial change that has occurred in the character of the surrounding area
Restraints on Alienation: Types
If a restraint is void, grantee takes the interest without the intended restraint
- disabling: no right to transfer any interest
- forfeiture: if attempts transfer, grantor permitted to reenter and retake land or property goes to 3P
- promissory: promise not to transfer
- against public policy or unconstitutional: prohibited by law (based on race, ethnicity, religion, or gender)
Total Restraints on Alienation
on fee simple estates, almost always void
Partial Restraints on Alienation
may be valid if:
- restraint qualified so as to permit alienation to some possible alienees and
- reasonable under the circumstances (like right of first refusal)
Cotenancy Types
- tenancy in common
- joint tenancy
- tenancy by the entirety
Tenancy in Common
presumed unless conveyance states otherwise
no right of survivorship and freely transferable
Joint Tenancy
conveyance includes words of survivorship and four unities are met:
- possession: right to possess entire property
- interest: same interest in property
- time: take title at same time
- title: take title in the same document
Right of Survivorship: when one dies, interest automatically transfers to other covenants. Not devisable or inheritance
Joint Tenancy: Severance
occurs if joint tenant:
- conveys interest to another by deed
- signs contract to sell an interest in the property
- takes a mortgage out on the interest in a title theory jurisdiction
- in some states, lease can
Severance results in tenancy in common and destroys right of survivorship
Tenancy by the Entirety
Four unities (possession, interest, time, and title) are met and tenants are legally married.
Each covenant has equal and undivided interest with right of survivorship
Tenancy by the Entirety: Severance
- one spouse dies
- covenants divorce
- mutual agreement between the spouses
Partition
destroys cotenancy.
available to tenants in common and joint tenants.
occurs if:
- parties voluntarily execute a writing agreeing to physically divide or jointly sell OR
- file court action to force division or sale
Partition: Accounting
cotenants entitled to accounting upon partition. enables adjustments based on expenses or improvements that one of the covenants has paid
Types of Partitions
- partition in kind (physical division)
- partition by sale (sold and proceeds split equitably). Available only if partition in kind is impossible, impracticable, or results in substantial injury to one of the cotenants
Rights and Obligations of Cotenants: Possession
each cotenant has right to possess all of the property
cotenant in exclusive possession of the property does not have to pay rent
Rights and Obligations of Cotenants: Ouster
if cotenant in possession refuses to grant other cotenants access, then non possessing cotenant will receive fair rental value of property at time access became impossible
Rights and Obligations of Cotenants: Expeness
share necessary / beneficial expenses (taxes) but cotenant in exclusive possession may not seek contribution unless expenses exceed fair rental value
Rights and Obligations of Cotenants: Rent or Profits
may not collect rent from cotenant unless ouster. But rents / profits from 3P are shared
Rights and Obligations of Cotenants: Repairs
necessary expense shared by cotenants. cotenant in exclusive possession may not seek contribution but can seek reimbursement in an accounting or partition action
Rights and Obligations of Cotenants: Improvements
are an unnecessary expense.
cotenant may seek reimbursement for this type of expense only in an accounting or partition action
Types of Tenancy
- term of years
- periodic tenancy
- tenancy at will
- tenancy at sufferance
Term of Years
fixed duration and not subject to statute of frauds if less than a year
notice of termination not required
automatically terminates at end of tenancy unless:
- parties agere to end lease early or
- material breach of the lease
Periodic Tenancy
default tenancy
runs for specified duration and continues in successive intervals until notice of termination from either landlord or tenant
- common law: notice measured by length of period; year-to-year = 6 mos.
- modern law: for residential, if month or longer, 30 days; if commercial, common law rule
statute of frauds does not apply unless lease expressly created for more than a year
Tenancy at Will
must be expressly created
no specific term
continues until party terminates
- common law: can terminate without notice
- modern law: requires advance express or implied notice
Tenancy at Sufferance
when tenant remains in possession without permission when lease ends.
landlord can either
- accept a new lease (periodic tenancy established by rental payments) or
- evict tenant and claim damages (NO SELF-HELP)
Exceptions: not created if
- time associated with the holdover was minor or
- tenant is not at fault in creating the circumstances that led to holdover
Landlord’s Duties
- deliver possession
- covenant of quiet enjoyment
- implied warranty of habitability
- duty to mitigate
Deliver Possession
must deliver legal and actual possession.
minority require delivery of only legal right of possession.
if violated, tenant can terminate the lease and seek damages OR enforce lease and seek relief
Covenant of Quiet Enjoyment
landlord or someone acting under landlord’s control cannot interfere with tenant’s right of possession
if tenant improperly evicted (actual or constructive), then tenant may terminate lease and seek damages
Implied Warranty of Habitability
must provide and maintain a premises fit for human habitation in residential leases
cannot be waived
after tenant gives notice of substantial defect, if landlord does not repair within reasonable amount of time, tenant can either:
- terminate lease
- remain in possession and withhold rent
- repair and deduct the cost from future rent
Duty to Mitigate
take reasonable steps to attempt to relet
if still cannot relet, tenant liable for remaining rent. If does, tenant liable for past-due rent and difference between rent obligation and amount of new rent (so long as reletting was in good faith)
Tenant’s Duties
- pay rent
- repair
- not to commit waste
Pay Rent
primary duty of tenant.
if surrenders premises and landlord accepts surrender, relieved of future rent obligations. If fails to pay, tenant can evict or sue for rent.
Abandonment
tenant no longer in possession and improperly abandoned.
landlord may take possession and accept abandonment
Surrender
if landlord retakes, can be acceptance of surrender, which relieves the tenant of future rent obligations
but reentering to make repairs, accepting keys, or attempting to relet may not constitute acceptance.
if no acceptance, tenant must still pay rent
Tenant Duty to Repair
must make ordinary, minor repairs of damage caused by tenant (intentionally or negligently) and other repairs agreed upon by the parties
Types of Eviction
- actual eviction
- partial actual eviction
- constructive eviction
- partial constructive eviction
Actual Eviction
landlord, or someone under their control, ousts tenant
tenant can terminate lease and seek damages
Partial Actual Eviction
landlord deprives tenant of use of a portion of premises.
tenant can terminate lease ore remain in possession and withhold rent.
modern approach: only rent abatement
Constructive Eviction
tenant moves out because landlord, or someone under their control, substantially interfered with use and enjoyment of premises.
may terminate and withhold rent if abandons premises within a reasonable time
Partial Constructive Eviction
allows tenant only a rent abatement
Transfers by Landlord
may transfer landlord’s interest unless agreement says otherwise.
new owner obligated to abide by terms of existing lease unless tenancy at will
Transfers by Tenant
tenant may transfer tenant’s interest unless agreement says otherwise. landlord can enforce agreement if in privity of contract or estate with that party
restrictions on transfer strictly construed against landlord
traditionally, landlord could withhold consent for any reason but modern trend is cannot be unreasonable.
Assignment v. Sublease
assignment - lessee transfers lessee’s interest for entire duration of lease.
sublease: anything less than entire duration
Transfers By Tenant: Privity of Contract
original tenant in privity of contract unless novation.
Transfer by Tenant: Privity of Estate
if tenant sublets, tenant remains in privity of estate with landlord. Subtenant not in privity of contract or privity of estate.
If tenant assigns, subtenant in privity of estate with landlord
Sublease: Assumption
tenant subletting a property is in privity of contract or estate only if tenant expressly assumes obligations of original lease
if so, then landlord could sue subtenant as 3P beneficiary
Fair Housing Act
prohibits discrimination in housing against members of certain protected classes who are engaging in housing-related activities
discriminatory advertising always prohibited
protected classes = race, color, national origin, religion, sex, disability, family status
Real Covenants
agreements or promises that run with land and can be affirmative or negative. enforced by actions at law (money damages)
Real Covenants: Requirements for Burdens to Run with Land
- written document (statute of frauds)
- horizontal privity (shared interest in property at time covenant created)
- vertical privity (original party transferred entire estate to subsequent owner)
- intent: original parties must intend for it to run with land
- touches and concerns the land
- notice (actual, inquiry, or constructive)
Real Covenants: Requirements for Benefits to Run with Land
- written document (statute of frauds)
- vertical privity (OG party transferred entire estate or any lesser estate to subsequent owner)
- intent
- touches and concerns the land
Equitable Servitudes
identical to real covenants, except that they are enforced in equity (injunction)
requirements:
- intent
- touches and concerns the land
- written document (sometimes)
no writing required if:
- purchaser has partly performed agreement or
- party seeking to enforce has proof of detrimental reliance
Implied Reciprocal Servitude
courts can provide injunctive relief even if plat filed without inclusion of servitude if:
- intent to create a servitude on all the lots
- servitude benefits and burdens each parcel
- servitude is negative and
- owner subjected to the servitude has notice of it
Equitable Servitude: Defenses
- estoppel
- laches
- unclean hands
- acquiescence
Estoppel
- benefitted landowner made statements or committed conduct indicating servitude will be released or abandoned
- burdened landowner detrimentally relied on those statements / conduct
- would be inequitable to enforce servitude
Laches
benefitted landowner has unreasonably delayed bringing an enforcement action