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real property Flashcards

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1
Q

define escheat

A

a decedent has no will or heirs so their property goes to the state

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2
Q

define ademption

A

devised property is no longer owned by the decedent at death

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3
Q

doctrine of lapse vs. anti-lapse statute

A

*the devisee dies first so property cannot be conveyed
*the property is determined to go to the devisee’s heirs

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4
Q

ways to terminate an easement or covenant

A

*express release in writing
*merger (of properties)
*abandonment (non-use + act showing intent)
*sale
*prescription
*estoppel
*end of necessity
*change in use (unreasonable damage/interference with servient estate for easements / substantial for covenants)

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5
Q

types of remainders

A

*contingent remainder: no ascertainable person OR have an unmet condition precedent
*vested remainder: ascertainable person AND any condition precedent is satisfied
*vested remainder subject to open: at least one person (who meets any conditions) is identified in a class
*vested remainder subject to divestment: the occurrence of a condition subsequent completely divests any remainder interests

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6
Q

what is a deed

A

a legal instrument transferring ownership

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7
Q

what must be fulfilled for a deed to be valid?

A

delivery (intent) + acceptance

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8
Q

what must be contained in a deed to be valid?

A

*parties identified
*grantor signature
*granting clause with an intent to transfer
*sufficient description of the land (doesn’t have to be legal)

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9
Q

what is marketable title (+standard)?

A

title that is free from unreasonable risk of litigation (reasonable buyer standard)

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10
Q

what common things could prevent title from being marketable?

A

*an adverse possession claim not yet quieted by the courts
*private encumbrances
*violation of a zoning ordinance

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11
Q

types of partition

A

*partition in kind: physical division
*partition by sale: split profits based on ownership interests

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12
Q

what is the default partition type and when is the other used?

A

*partition in kind
*partition by sale instead IF physical division is not practical or unfair

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13
Q

three types of waste

A

*affirmative waste: voluntary + decrease in value
*permissive waste: neglect + decrease in value
*ameliorative waste: change in use + increase in value (improvements)

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14
Q

elements for a real covenant to be enforceable

A

*writing
*intent to run with the land
*touch and concern (affects use, enjoyment, or occupation of land)
*notice (actual or constructive) (only if successor is a purchaser)
*privity

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14
Q

when is there a duty not to commit waste?

A

*life estates + future interests
*leaseholds
*mortgages
*concurrent estates

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14
Q

five types of easements (+elements)

A

*express easement: writing creating a grant or reservation
*implied easement by necessity: common ownership before severance + necessity at severance (virtually useless)
*implied easement by prior use: common ownership before severance + quasi-easement before severance + open and continuous use + reasonably necessary to use
*implied easement by prescription: continuous for statutory period + open + hostile
*implied easement by estoppel: license granted + relied upon + withdrawn

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15
Q

what are two equitable defenses?

A

*unclean hands: engaged in same conduct in which claiming (intentional or in bad faith)
*laches: unreasonable delay

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16
Q

what is the changed circumstances doctrine?

A

such drastic changes have occurred in the area surrounding the land that the restrictions (covenant) no longer makes sense (no benefit retained)

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16
Q

what privity is required for a benefit or burden in a real covenant to be enforceable

A

*benefit: relaxed vertical privity (some transfer of interest equal to or less than the grantor’s interest)
*burden: horizontal privity (simultaneous transfer of land and create covenant) + strict vertical privity (transfer of interest equal to the grantor’s interest)

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16
Q

three covenants/duties attaches to a land sale

A

*implied covenant of marketable title
*implied warranty of fitness or suitability (new property only): material defects that could not reasonably be uncovered prior to purchase
*duty to disclose defects: latent/hidden material defect + substantially impacts value, health, safety + reasonable buyer wouldn’t discover

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16
Q

ouster and the available remedies

A

*a co-tenant in possession of real property denies other co-tenants access to the property
*injunction or damages

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17
Q

three remedies available to buyers and sellers of real property

A

*damages (contract-market price)
*rescission
*specific performance

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17
Q

implied warranty of habitability + remedies (3)

A

*a landlord has a duty to maintain the property so it is suitable for residential use (think health and safety)
*remedies
**refuse to pay (notify + reasonable
time passes first)
**remedy or fix the defects and
offset the cost against rent
**defend against eviction

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17
Q

key easement terminology

A

*servient estate: maintains the burden
*dominant estate: receives the benefit
*appurtenant: tied to use of the land
*in gross: benefits the holder personally

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17
Q

types of present interests and corresponding future interests

A

*fee simple absolute
*fee simple determinable (durational) / possibility of reverter (grantor)
* fee simple subject to condition subsequent / right of reentry (grantor)
*fee simple subject to executory interest / springing or shifting executory interest (3rd party)
*life estate / reversion (grantor) or remainder (3rd party)
*defeasible life estate (durational/conditional) / reversion (grantor) or remainder & executory interest (same 3rd party)

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18
Q

two types of zoning ordinances

A

*cumulative
*mutually exclusive

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19
Q

what happens if land is nonconforming to a zoning variance?

A

*if existing property/use at time the ordinance is enacted, grandfathered in
*if after the ordinance is enacted, seek a variance (use vs. area)

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20
Q

elements for obtaining a variance

A

*compliance with the ordinance would create an unnecessary hardship
*the hardship arises from circumstances unique to the property
*the owner didn’t create the hardship
*the variance keeps with the overall purpose of the ordinance
*no substantial harm to the general welfare would result if the variance were granted

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20
Q

four alternatives to a mortgage

A

*deed of trust: trustee holds title for the lender’s benefit
*installment land contract: the seller finances the sale and retains title
*absolute deed: deed given to creditor with intent to secure loan (equitable mortgage unless competing equities like GFP take precedence)
*conditional sale and repurchase (sale-leaseback): the land is sold to a lender, who leases back the property and provides the option to buy the land once it’s paid off

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21
Q

what is the difference between a real covenant and equitable servitude?

A

*no privity requirement for an equitable servitude
*remedy is damages for a real covenant vs. injunctive relief for an equitable servitude

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21
Q

elements for an implied reciprocal servitude

A

*intent to create a covenant
*reciprocal promises (apply to every parcel equally)
*negative restriction on use
*notice
*common written plan or scheme

22
Q

types of concurrent estates

A

*tenancy in common
*joint tenancy with right of survivorship
*tenancy in the entirety

22
Q

two types of mortgages

A

*purchase money mortgage: for property
*future advance mortgage: line of credit

23
Q

what can sever a joint tenancy?

A

*an inter vivos transfer
*a mortgage in a title theory state
*a lease (some states treat as a temporary suspension)

23
Q

four unities for joint tenancy

A

*possession: equal right to possess the whole
*interest: equal shares of the same type of interest
*time: received at the same time
*title: received in the same instrument

23
Q

two considerations in a lien vs. title theory state

A

*joint tenancy
*lender ability to possess / foreclosure

24
Q

when is a mortgagor no longer liable?

A

*when released by the lender
*when the obligation is modified by the lender

24
Q

is a subsequent transferee ever liable for a mortgage?

A

*liable if “assume” the mortgage
*not liable if “take subject to” the mortgage

25
Q

what is the implied covenant of quiet enjoyment?

A

*the landlord takes actions that make the premises wholly or substantially unsuitable for its intended purpose
*the tenant is constructively evicted

26
Q

elements of constructive eviction

A

*the premises are unusable for the intended purpose
*the tenant notifies the landlord of the problem
*the landlord doesn’t correct the problem
*the tenant vacates the premises after a reasonable time passes

27
Q

ways to transfer real property

A

*sale
*gift
*devise/will
*intestate succession

28
Q

doctrine of equitable conversion

A

the buyer holds equitable title from the contract’s execution until closing, thereby placing the risk of loss on the buyer

29
Q

allowed restraints on alienation

A

*absolute restraint = void
*partial = valid IF for a limited time and reasonable purpose

30
Q

elements of adverse possession (+considerations)

A

*continuous for statutory period: impacted by tacking (if in privity), disability at beginning of period, interruptions
*open and notorious
*hostile/nonpermissive (intent to claim land): standards of objective intent vs. good faith possession vs. bad faith possession
*exclusive

31
Q

three questions for the rule against perpetuities

A

*what? inter vivos conveyances vs. devise
*when? applies to contingent remainders, vested remainders subject to open, executory interests, right of first refusal (except: leases), and options
*who? look for a validating life (alive when the interest was created) and whether the interest vests within 21 years of their death

32
Q

types of leasehold (what, creation, termination)

A

*tenancy for years: for a fixed time / created by agreement / terminates automatically at the end of the period, when the tenant surrenders, or when the landlord materially breaches
*periodic tenancy: for a repetitive set period / created expressly or implicitly / terminated with proper, written notice before the start of the last period
*tenancy at will: infinite / created expressly or implicitly / terminated by any party at any time for any reason
*tenancy at sufferance: holdover tenant / created by tenant conduct / terminated by the tenant leaving or the landlord evicting or re-renting

33
Q

tenant’s duties

A

*duty to pay rent UNLESS
**the premises are destroyed (inc.
condemnation/eminent domain)
**complete or partially evicted
**landlord materially breaches
**frustration of purpose

*duty to avoid waste, unless ameliorative waste occurs for permitted improvements

34
Q

pre-foreclosure remedies

A

*equity of redemption: full payment of debt BEFORE the foreclosure sale to reclaim title
*statutory right of redemption: full payment of debt AFTER the foreclosure sale to reclaim title
*deed in lieu of foreclosure: give the property to the lender to release them from debt

35
Q

what is estoppel by deed?

A

if a person sells land knowing they don’t own it then later acquires title, they can’t try to repossess the land on grounds they didn’t have title on sale

36
Q

what is the shelter rule?

A

if a subsequent transferee takes from a bona fide purchaser, they are protected by the recording act

37
Q

rights of concurrent tenants

A

*all tenants have the right to possess the entire property unless an agreement states otherwise
*receive proportionate shares of net profits from removal of natural resources
*receive pro rata share of rent from third parties

38
Q

assignment vs. sublease (+liability)

A

*assignment: complete transfer of the remaining term of leasehold / liable
*sublease: transfer of less than the entire duration of the leasehold / not liable

39
Q

three types of deed

A

*general warranty deed: any owner
*special warranty deed: grantor
*quitclaim deed: nothing

40
Q

six covenants include in a warranty deed

A

*covenant of seisin: correct description of the land
*covenant of right to convey
*covenant against encumbrances: no undisclosed encumbrances

*covenant of quiet enjoyment: will not be disturbed by a third party claim
*covenant of warranty: will defend against any future third party title claims
*covenant of further assurances: will fix any future title issues

41
Q

exceptions to “first in time, first in right” foreclosure rule for interests

A

*agreement
*recording act satisfied
*purchase money mortgage superior to interests created before the property was acquired and to interests for property that may be acquired in the future
*replacement mortgages take the same priority

42
Q

common law and recording act standards

A

*first in time, first in right
*notice: without notice (actual, constructive/record, inquiry)
*race: record first
*race-notice: record first without notice

43
Q

landlord’s duties

A

*duty to repair (residential)
*duty to mitigate (reasonable efforts)
*duty to deliver possession (actual vs. legal)
*quiet enjoyment: control common areas, prevent nuisance

44
Q

doctrine of merger

A

contractual obligations related to title (but not physical condition) are merged into the deed and thereafter not enforceable unless expressly included in the deed

45
Q

exoneration of liens doctrine

A

if real property is conveyed through devise, the devisee is entitled to payment of any encumbrances from the remainder of the estate

46
Q

three duties of a life tenant

A

*to pay current charges/taxes up to value/benefit received (fair market rental value)
*to not commit waste
*to make ordinary/reasonable repairs to preserve the property

47
Q

durational language

A

*so long as
*during
*until

48
Q

conditional language

A

*on the condition that
*but if
*provided that
*unless
*NOT: for the purpose of / to…

49
Q

what tolls an adverse possession claim

A

*disability at inception of claim
*disability includes: insanity, infancy, and imprisonment

50
Q

what creates a presumption a deed was delivered?

A

*physical transfer to grantee
*recording of deed
*transfer to third party without conditions
*grantee obtains possession
*intent can always override these to disprove delivery

51
Q

who can raise the same defenses as the debtor?

A

*a transferee can
*a grantee who assumes the mortgage may not

52
Q

special considerations for a deed in lieu of foreclosure

A

*the mortgagee takes the property along with any junior interests
*without reserving the right to foreclose, their mortgage is extinguished

53
Q

doctrine of subrogation

A

when a third party pays another’s mortgage loan in full, they become the owner of the loan and mortgage to the extent necessary to prevent unjust enrichment and may seek reimbursement from the former owner (debtor) or enforce the mortgage (against co-tenants)

54
Q

parties who must receive notice in a judicially supervised foreclosure sale

A

*junior interests must receive notice for interest to be extinguished post-sale
*senior interests may be joined

55
Q

is a mortgage subject to the same defenses as the underlying obligation or debt secured by mortgage?

A

yes

56
Q

definition, creation, and termination of licenses

A

*revocable (absent detrimental reliance or coupling with an interest) nonpossessory interest to enter and use land for specific purpose
*express (oral or writing) or implied (by conduct)
*at any time, upon death of either party, or upon transfer of licensed property

57
Q

who is responsible for the maintenance/repairs of easements?

A

*the easement holder
*but they may seek contribution from other easement owners or the owner of the servient estate (if use it)

58
Q

a fixture a tenant has attached to leased property may be removed if

A

*the leased property can be and is restored to its original condition AND
*the restoration and removal are made within a reasonable time

59
Q

a tenant may remove a fixture within a reasonable time after termination of the lease IF

A

*termination is not due to tenant’s breach
*the tenant could not have foreseen termination sufficiently far enough in advance to permit removal before termination

60
Q

duties of concurrent tenants

A

*pay proportionate shares of operating expenses (contribution only for share above fair rental value)
*contribute to repairs or improvements upon agreement (no duty of contribution)

61
Q

order of distribution from a foreclosure sale

A

*costs of foreclosure
*mortgage foreclosed upon
*junior interests
*debtor

62
Q

to what interest does an adverse possession claim apply?

A

only the current/present possessory interest

63
Q

if a seller has casualty insurance, are they required to offset the price of property damaged between the contract and closing?

A

yes

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