Real Property Flashcards
Life tenant duties
Duty to pay current charges
Life tenant must pay all current charges due during life tenancy (eg, property taxes, mortgage interest) up to financial benefit received from property
Duty to prevent waste
Life tenant must prevent affirmative waste (ie, voluntary waste), permissive waste & ameliorative waste
Duty to make ordinary repairs
Life tenant must make reasonable repairs to preserve property
Life estate
A life estate is a present possessory interest that is limited in duration by the life of the grantee, unless otherwise specified.
Life Tenant - Taxes
These duties include paying ordinary taxes on the real property, but only to the extent that the life tenant receives a financial benefit from the property. The financial benefit is determined differently depending on whether the life tenant:
occupies the property – in which case the financial benefit is measured by the fair market rental value of the property (e.g., reasonable rental value) or
does not occupy the property – in which case the financial benefit is measured by the income derived from the land (e.g., third-party rental income, crops grown on the land)
The “right of survivorship” part of joint tenancy
A joint tenancy is a type of concurrent estate in which each cotenant holds an undivided and equal interest in the property with the right of survivorship. A joint tenant can sever the joint tenancy by conveying his/her interest during life to another, thereby creating a tenancy in common. But a joint tenant cannot devise his/her property interest and it will not pass by intestacy because, at death, the joint tenant’s interest ceases to exist and is automatically absorbed into the surviving joint tenants’ interests.
fee simple subject to an executory interest
A fee simple subject to an executory interest is a present estate limited by durational or conditional language. Upon the occurrence of the specified event or condition, title automatically passes to a third party who holds a future, executory interest.
Defeasible Fee
A defeasible fee is a fee simple estate that may be terminated upon the occurrence of a stated event or condition.
fee simple subject to a condition subsequent
One type of defeasible fee is a fee simple subject to a condition subsequent (FSSCS), which is created with conditional language (e.g., “but if”). If the stated condition occurs, then title will automatically pass to the future interest holder. If the future interest is held by a third party (as opposed to the grantor), then the estate is called a fee simple subject to an executory limitation.
restraint on alienation
A restraint on alienation is a provision that restricts the transferability of real property. An unreasonable restraint is disfavored because public policy encourages the free transfer of property interests; therefore, direct (or absolute) restraints on alienation are void. However, a partial restraint—one that is for a limited time and a reasonable purpose—is generally valid.
Disabling restraint
Prohibition on transfer of property interest by its owner. It is Always void
Forfeiture restraint
Restraint where owner forfeits property interest if owner attempts to transfer it. A restraint on future interest or life estate can be valid
Promissory restraint
Promise by property-interest holder not to transfer property interest. It can be valid
right of first refusal
A right of first refusal is a partial, promissory restraint on alienation that gives its holder a preemptive right to acquire property prior to its transfer to another party. This right is generally reasonable if the holder of the right can purchase the property under the same terms offered to another. If so, the right of first refusal is valid and enforceable by an injunction.
Privity of K
A landlord and tenant have a legal relationship based on privity of contract, their shared interest in the lease agreement, AND privity of estate
Privity of Estate
A landlord and tenant have a legal relationship based on privity of contract, AND privity of estate, their successive right to possess the property (i.e., the tenant’s current right of possession is immediately followed by the landlord’s future right of possession).
Assignment
Unless the lease states otherwise, either party can freely transfer his/her interest under the lease. Assignment is a transfer of a tenant’s entire interest to a third party (assignee) for the remainder of the lease term. The tenant (through privity of contract) and the assignee (through privity of estate) are jointly and severally liable for the landlord’s entire harm arising from a breach of the lease.
Term of Years Lease
a leasehold estate measured by a fixed and ascertainable amount of time (here, one year). At the end of the fixed term, a tenancy for years automatically expires. A tenant who remains on the premises after the lease expires without the landlord’s permission is considered a tenant at sufferance.
Periodic Tenancy
A periodic tenancy is a repetitive, ongoing estate measured by a set period (e.g., a month, a year) but with no predetermined termination date. It automatically renews at the end of each period until one party gives a valid termination notice.
Tenancy at will
A tenancy at will is a leasehold estate that does not have a specific term and continues so long as the landlord and the tenant desire. This is an agreement.
Tenancy at sufferance
A tenancy at sufferance (holdover tenancy) exists for the period after the expiration of a lease during which the tenant remains on the premises without the landlord’s permission. Created by tenants’ actions alone.
Types of landlord-tenant estates
There are four types of landlord-tenant estates:
i) Tenancy for years;
ii) Periodic tenancy;
iii) Tenancy at will; and
iv) Tenancy at sufferance.
Acquiring title by adverse possession
ECHO
Exclusive – physical presence on land not shared with owner
Continuous – presence is continuous & uninterrupted for statutory period
Hostile – possession is without owner’s consent
Open, notorious & actual – possession is apparent or visible to reasonable owner
Shelter rule
Under the Shelter Rule, a person who receives a property interest from a BFP is entitled to the same protection under the recording act as the BFP. This is true even if that person would not otherwise be protected by the recording act because the person acquired title to the property by gift, intestate succession, or devise.
estoppel by deed
Under the “estoppel by deed” doctrine, a grantor who conveys an interest in land by warranty deed before actually owning it is estopped from later denying the effectiveness of that deed. When the grantor acquires ownership of the land, the after-acquired title is transferred automatically to the prior grantee.
equitable servitude
An equitable servitude is a promise to do or not do something on land that is enforceable at equity by injunction. The benefit of enforcing an equitable servitude is held only by the original parties and their successors in interest.
express equitable servitude
An express equitable servitude is enforceable if it meets the following requirements:
Writing – servitude is in a writing that satisfies the statute of frauds (here, the deed from the man to the developer)
Intent to run – promising parties intended for the servitude to bind their successors in interest (here, the deed says “heirs and assigns”)
Touch and concern – servitude relates to the use, enjoyment, or occupation of the dominant and servient estates (here, the servitude restricts land use to single-family residences)
Notice – person to be bound had actual, record, or inquiry notice of the servitude (here, the woman and subsequent purchasers have notice from the developer’s properly-recorded deed).