Real Property Flashcards

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1
Q

Life tenant duties

A

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

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2
Q

Life estate

A

A life estate is a present possessory interest that is limited in duration by the life of the grantee, unless otherwise specified.

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3
Q

Life Tenant - Taxes

A

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)

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4
Q

The “right of survivorship” part of joint tenancy

A

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.

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5
Q

fee simple subject to an executory interest

A

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.

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6
Q

Defeasible Fee

A

A defeasible fee is a fee simple estate that may be terminated upon the occurrence of a stated event or condition.

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7
Q

fee simple subject to a condition subsequent

A

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.

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8
Q

restraint on alienation

A

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

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9
Q

right of first refusal

A

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.

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10
Q

Privity of K

A

A landlord and tenant have a legal relationship based on privity of contract, their shared interest in the lease agreement, AND privity of estate

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11
Q

Privity of Estate

A

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).

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12
Q

Assignment

A

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.

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13
Q

Term of Years Lease

A

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.

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14
Q

Periodic Tenancy

A

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.

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15
Q

Tenancy at will

A

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.

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16
Q

Tenancy at sufferance

A

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.

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17
Q

Types of landlord-tenant estates

A

There are four types of landlord-tenant estates:

i) Tenancy for years;

ii) Periodic tenancy;

iii) Tenancy at will; and

iv) Tenancy at sufferance.

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18
Q

Acquiring title by adverse possession

A

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

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19
Q

Shelter rule

A

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.

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20
Q

estoppel by deed

A

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.

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21
Q

equitable servitude

A

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.

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22
Q

express equitable servitude

A

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).

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23
Q

easement by necessity

A

an easement by necessity will be implied if all of the following elements are met:

Necessity – the dominant (benefited) estate is virtually useless without an easement across the servient (burdened) estate

Common ownership – the dominant and servient estates were under common ownership in the past (i.e., they were once a single tract of land)

Severance – the necessity arose when the land was severed and the dominant and servient estates were created

24
Q

Equitable Right of redemption

A

Equitable right (always exists). At any time prior to foreclosure sale. Pay full amount of debt due (including interest) to lender

Statutory right (if statute exists). Statutory period after property has been sold in foreclosure. Pay foreclosure sale price to purchasing party

24
Q

license

A

A license is a nonpossessory right to enter and use someone else’s land for a specific purpose. A license is freely revocable unless the licensee detrimentally relied on the license (e.g., paid money to use or maintain the license) OR the license was coupled with an interest in the property (e.g., a remainderman’s license to enter and inspect property). A license can be revoked by the licensor at any time, but it terminates automatically upon (1) the death of the licensor or licensee or (2) the conveyance of the licensed property.

24
Q

lifetime transfer of a joint tenant’s interest

A

A lifetime transfer of a joint tenant’s interest severs that interest from the joint tenancy. The transferee holds that interest as a tenant in common with the remaining joint tenant(s). If two or more joint tenants remain after the transfer, then they retain a joint tenancy with respect to each other.

25
Q

vested remainder is subject to complete divestment

A

A vested remainder is subject to complete divestment if the occurrence of a condition will eliminate the remainder interest.

25
Q

fixture

A

A fixture is a chattel that is (1) attached to real property in such a manner that it is treated as part of the realty and (2) used for some larger component or function of the land (e.g., a wall separating adjoining properties).

25
Q

Private-nuisance liability

A

Private-nuisance liability arises when a defendant’s interference with the plaintiff’s use and enjoyment of his/her property is both substantial (offensive, annoying, or intolerable to normal person in community) and unreasonable (severity of plaintiff’s harm outweighs utility of defendant’s conduct).

25
Q

tenancy at will

A

A tenancy at will is a leasehold estate that has no specific term and continues so long as the landlord and the tenant desire. If only one party is expressly given the right to terminate the leasehold, the lease may be deemed unconscionable and both parties will have the ability to terminate it.

26
Q

subsurface rights

A

A third-party owner of subsurface rights is strictly liable for any failure to support the land and buildings that predate the conveyance of those rights, provided that the damage would have occurred in the land’s natural state.

27
Q

exoneration-of-liens

A

Under the common-law exoneration-of-liens doctrine, the recipient of a specific devise of real property can use the remaining assets in the testator’s estate to pay off any encumbrances on that property.

28
Q

Terminating a Covenant

A

A covenant is terminated by abandonment when an affirmative act—something more than neglect or nonuse—shows a clear intent to relinquish the covenant.

29
Q

Rule of Convenience

A

The Rule of Convenience prevents the Rule Against Perpetuities from being applied to class gifts by closing class membership when any member of the class is entitled to immediate possession of a share in the class gift.

30
Q

judicially supervised foreclosure

A

For a judicially supervised foreclosure sale, the foreclosing mortgagee must give notice to the holders of any junior interests in the property to eliminate those interests. Any others who have an interest in the property or are liable on the debt may be joined as proper but unnecessary parties.

31
Q

wild deed

A

A recorded deed that falls outside the chain of title is a “wild deed” that fails to give constructive notice to subsequent purchasers.

32
Q

seller of residential property has a duty to disclose

A

A seller of residential property has a duty to disclose any known material defects—i.e., defects that (1) substantially affect the value of the residence, (2) impact the health or safety of a resident, or (3) affect the desirability of the residence to the buyer—that cannot be reasonably discovered by the buyer.

33
Q

doctrine of equitable conversion

A

a judgment obtained against a seller after the execution of a land-sale contract is not enforceable against the real property—even if the claim arose before the contract was executed.

34
Q

Deed

A

A deed is effective to convey a real property interest when it (1) is in writing and signed by the grantor, (2) identifies the grantor and grantee, (3) describes the property being transferred, and (4) contains words of transfer.

35
Q

doctrine of subrogation

A

Under the doctrine of subrogation, a third party (subrogee) who pays another’s mortgage loan in full becomes the owner of the loan and the mortgage. The subrogee may therefore seek reimbursement from the debtor or enforce the mortgage.

36
Q

tenancies by the entirety

A

which are joint tenancies between married persons with the right of survivorship. Can only transfer with other individual’s consent.

37
Q

implied warranty of marketable title

A

The implied warranty of marketable title requires that the seller, at the time of closing, deliver title to the buyer that is free from an unreasonable risk of litigation.

38
Q

risk of loss under real estate contract

A

The primary issue in this case is which party bears the risk of loss. Most states follow the logic of the doctrine of equitable conversion and place the risk of loss on the buyer during the executory period—i.e., the period between the execution of the real-estate contract and closing. This is true regardless of whether the buyer takes possession of the property during that period.

However, a minority of jurisdictions have adopted the Uniform Vendor and Purchaser Risk Act. Under this act, the risk of loss remains with the seller until the buyer takes possession of or receives legal title to the property.

39
Q

Equitable Mortgage

A

An equitable mortgage is created when an absolute deed—i.e., a deed that is free of encumbrances and transfers unrestricted title to property—is given with the intent to secure a debt.

40
Q

Void Deed

A

A deed is void and unenforceable, even by a bona fide purchaser, if (1) the grantor’s signature is forged, (2) the deed itself is forged, or (3) the grantor is deceived about nature of the executed document.

41
Q

Priority of Future-Advances Mortgage

A

If a future-advances mortgage is optional, then the future-advances mortgagee has priority with respect to amounts loaned before receiving notice of a subsequent mortgage. But if the advance is obligatory, then the future-advances mortgagee has priority with respect to amounts loaned before and after receiving notice.

42
Q

future-advances mortgage (a line of credit)

A

A future-advances mortgage (i.e., “line of credit”) is a mortgage given by a debtor (mortgagor) in exchange for the right to receive money from the lender (mortgagee) in the future.

43
Q

Repairing & maintaining easement

A

Easement holder must repair & maintain easement to extent necessary to:

*prevent unreasonable interference with enjoyment of servient estate
*protect servient-estate owner from liability to third parties

When an easement is shared, the owner who maintains or repairs the easement may seek contribution from (1) the other owners and (2) the servient-estate owner if he/she uses the easement.

44
Q

purchase-money mortgages

A

A PMM is a mortgage granted to the seller of real property if the mortgage is given as part of the same transaction in which title is acquired. A PMM has priority over liens that arose prior to the PMM regardless of whether the PMM was recorded. But a PMM does not necessarily have priority over subsequent liens. Instead, the recording act (or, if there is no recording act, the “first in time” rule) will control.

45
Q

liquidated damages clause

A

A liquidated damages clause allows the seller to retain the buyer’s deposit if the buyer breaches the real-estate contract. The clause is enforceable so long as the amount of liquidated damages is reasonable—e.g., no more than 10 percent of the purchase price. But it may not be enforced if the seller suffered no actual loss.

46
Q

Constitutional Issues

A

The Due Process Clause of the Fourteenth Amendment incorporates the Takings Clause of the Fifth Amendment, thereby making it applicable to the states. A taking has occurred when the governmental regulation results in a permanent physical occupation of the property. Takings are okay if parties are compensated.

47
Q

Water

A

Rainwater is classified as surface water or more precisely as diffused surface water. As such, although there are restrictions on the ability of a landowner to prevent such water from entering his property or altering the flow of such water off his property, a landowner may generally impound such water on her property and may make whatever reasonable use she wishes of that water.

48
Q

doctrine of subrogation

A

A person who pays off another person’s obligation that is secured by a mortgage becomes, under the doctrine of subrogation, the owner of not only the obligation but also the mortgage when it is necessary to prevent the unjust enrichment of the mortgagor.

49
Q

Spot zoning

A

A rezoning that affects a small number of parcels of land, most typically a single parcel, in manner that is inconsistent with the zoning of the neighboring land (and the comprehensive plan where one exists) and that usually benefits the owner of the parcel or parcels to the detriment of the neighboring land constitutes impermissible “spot zoning.”

50
Q

Lapse

A

Under the common law, a devise to a beneficiary who predeceases the testator lapses.

51
Q

Anti-Lapse Statute

A

An anti-lapse statute can operate to prevent the devise from lapse.