Real Property Flashcards
What are the three types of fee simple and their corresponding future interest?
- Fee Simple Determinable (FSD) (“so long as”) –> Possibility of Reverter (Grantor) or Executory Interest (3P)
- Fee Simple Subject to Condition Subsequent (FSSCS) (“but if” / “upon condition that”)–> Right of Reentry
- Fee Simple Subject to Executory Interest (FSSEI) –> Executory Interest (3P)
What are the rights/obligations of a life tenant?
- Right of possession, collect rents, lease, sell, mortgage, pay taxes on financial benefit from the land
- Avoid waste - LT must make reasonable repairs (up to amount of income produced by property or, if LT is in actual possession, fair rental value)
- LT must pay property taxes to the extent LT receives financial benefit from the land
- Pre-existing mortgage obligations and assessments for public improvements are allocated between LT and future interest holder
What are the four unities of a joint tenancy
PITT (Possession, Interest, Time, Title) (Plus Person for Tenancy by Entirety)
What is the main difference between JT and TBE besides marriage requirement?
Interest in JT is severable without consent of others; Interest in TBE cannot be alienated or encumbered without the consent of the other
What are the right and obligations of a co-tenant?
- Possess entirety property
- Collect contribution from co-ts for operating expenses (e.g. taxes), but if in sole possession, only if they exceed rental value of property
- Cannot compel co-Ts to share expenses for repairs in contribution action (minority rule –> separate action if they had notice). Otherwise, recoup indirectly in partition action.
- No right to contribution for improvements
- Account for rent from 3rd parties (deduct expenses)
- Duty of fair dealing, but not fiduciary (unless buying back property tat tax/foreclosure sale)
Can co-T unilaterally create easement?
Yes, but will only be enforceable against co-T who created it.
What are the duties of a tenant?
- Pay rent
- Avoid waste
- Can make changes that increase property value if reasonably necessary to use in reasonable manner
- T has default duty to repair premises to keep in pre-rental condition, but no duty to repair normal wear and tear
What are the duties of a landlord?
- Deliver possession
- Repair if residential lease (unless T caused)
- Warranty of habitability (residential)
- Covenant of quiet enjoyment (commercial and residential)
What is the warranty of habitability?
- Residential only
- Must be fit for basic human habitation (health/safety)
- T must notify L of defect and give reasonable time repair AND
- T can refuse to pay rent, make reasonable repairs and deduct cost from future rent, or remain in possesion, pay rent, and seek damages
What is covenant of quiet enjoyment?
- T has right to quiet use and enjoyment of premises without interference
- Partial eviction –> still on hook for part of rent
- Contsructive eviction: Substantial intereference caused by L’s actions or failure to act
- CE: T must give notice of problem and reasonable time to cure, and T must vacate premises within reasonable time after failure to cure
What does a deed need in order to be valid?
- In writing
- Signed by grantor
- Contain description of property
- Identify grantee
- Contain words of transfer
EXCEPTIONS: Partial performance or detrimental reliance
What is the implied warranty of fitness?
Only for new homes, warrants use of adequate materials and workmanship, includes latent construction defects
Buyer still has duty to reasonably inspect, and can sue builder/developer/contractors within reasonable time after discovery.
What is the general maximum reasonable amount for liquidated damages in land sale contract?
10% of purchase price
What are the requirements of adverse possesion?
- Exclusive - can’t share land with true owner
- Continuous - continuous and uninterrupted (may include tacking)
- Hostile - without owner’s permission
- Open and Notorious - make use of land as reasonable owner would
- Actual - actual possesion of land
Color of Title –> constructive adverse possesion
What is required to make valid transfer of deed?
- Valid deed (e.g. signed by grantor, in writing)
- Present intent to transfer property interest (either by delivery, recording, or the facts)
- Doesn’t count if grantor retains absolute right to recover deed or gift intends to be post-death
What are the covenants associated with a general warranty deed?
- Seisin (grantor owns land)
- Right to convey (right to transfer title)
- Against encumbrances (no undeclared encumbrances)
- Quiet enjoyment (not disturbed by 3P’s lawful claim)
- Warranty (defend against 3P claim)
- Further assurances
What is the difference between ademption and lapse?
- Ademption: Devise fails because testator doesn’t own property on death
- Lapse: Devisee dies before testator and no alternate beneficiary names (but see: anti-lapse statutes)
What are the types of easements?
- Express Easement: Complies with Statute of Frauds
- Easement by Necessity: Dominant property is useless without benefit of easement across neighboring servient property
- Easement by Implication: Owner of two parcels used one to benefit the other and parties intended easement to continue after sale (must be continous, apparent, and reasonably necessary)
- Easement by Prescription: ECHOA but no E (exclusivity)
How can easements be terminated?
- Abandonment (requires act, not just non-use)
- Merger (owner of easement becomes owner of servient estate)
- Sale to BFP (if not recorded)
- Severance
- Release (in writing)
What is required for a covenant to run with the land?
- Writing
- Intent
- Touch and Concern
- Notice (burden only)
- Horizontal Privity (burden only)
- Vertical Privity (strict if burden)
What is required for equitable servitude?
- Writing
- Intent
- Touch and Concern
- Notice (burden only)
- NO PRIVITY (unlike covenant)
What is an implied reciprocal servitude?
- Intent to create a servitude on all plots (common scheme); no writing required
- Negative servitude (promise to refrain)
- Notice (actual, record, or inquiry) by party against whom enforcement is sought
- Can defend against by arguing “changed circumstances”
What is the order of the distribution of proceeds of a foreclosure?
- Costs associated with the sale
- Mortgage obligation being foreclosed
- Mortgage obligations owed to junior interest holders
- Debtor-mortgagor
What is equity of redemption?
After default but before foreclosure sale, mortgagor may regain title by paying amount of loan obligation currently owed, plus interest (can be full amount of unpaid loan if there is an acceleration clause).
