Real Property Flashcards
Fee Simple Absolute
FSA holder has all possible rights
may last forever- alienable, devisable, and descendible
terminate- owner dies without a will or heirs, and property escheats to state
Devisees take by ____
Heirs take by ____
Grantees take be _____
Devisees take by will
Heirs take by the laws of intestacy
Grantees take by inter vivos transfer
Fee simple absolute creation
“to A and his heirs”
VA “and his heirs” unnecessary
Defeasible estate
an estate that may terminate upon some happening or event before its maximum duration (forever in fee) has run
Fee simple determinable
created by durational language (for so long as, during, until, or while)
terminates automatically on happening of a named future event. the estate returns to the grantor
Fee simple subject to a condition subsequent
created by conditional language to occurrence of a condition that will terminate estate (provided however, however if, but if, on condition that, or in the event that)
POWER of termination MUST be EXPRESSLY reserved to the GRANTOR
Fee simple subject to executory interest
created by either durational or conditional language
termination occurs on the happening of an event that terminates the estate; property the passes to someone other than grantor
Fee tail
CL: an estate that descended to grantee’s children only
ML: fee tails are disfavored and are treated as fee simple absolutes
VA- abolished
Life Estate
life estates last for the duration of the grantee’s life
Life estate pur autre vie
the duration of the estate is measured by the life of someone other than the grantee
can be made defeasible
Non-freehold estates
term estate: estate that is limited in duration (basically landlord-tenant relationship)
Possibility of reverter
a future interest in the grantor that follows a determinable estate
creation: a fee simple automatically creates a possibility of reverter (no special language needed)
Upon the happening of the event, the land automatically reverts back to grantor
transferability: ML the power of termination is freely transferable, devisable, and descendible
NOT subject to RAP
Power of termination (Right of reentry)
a future interest in the grantor when the grantor attempts to create a FSSCS or a defeasible life estate
Creation: not automatic, must be spelled out in the conveyance or it does not exist
does not automatically revert, grantor must exercise right of reentry and take affirmative steps to retake the property
transferability: ML power of termination is descendible and devisable, not transferable inter vivos
NOT subject to RAP
Reversionary interest
a future interest retained by the grantor when the grantor transfers less than a fee interest to a third person
transferability: ML power of termination is descendible and devisable
NOT subject to RAP
Remainder
A future interest created in a third person that is intended to take effect after the natural termination of the preceding estate
Contingent remainder
any remainder that is not vested
Vested remainder
vested at the point it is created in an ascertainable person and is not subject to any condition precedent, other than termiantion of the preceding estate
Vested remainder subject to total divestment
a remainder that is presently vested but may be terminated on the happening of a future event
Vested remainder subject to open
a remainder that has been made to a class and has at least one member who is ascertainable who has satisfied any conditions precedent to vesting, but may have other members join the class later
Is the remainder vested?
ascertainable person
not subject to any condition precedent
“A to B for life, then to C”
Class openings
inter vivos conveyance: class opens at the time of the conveyance
testamentary conveyance: class opens at the death of testator
Class closing**
RAP can void a future interest (generally not applicable to vested interest except vested remainders subject to open); if any member of a class potentially claim in a way that violates the RAP, the entire class gift fails
Rule of convenience
Class closes as soon as one member of the class becomes entitled to immediate possession of the property
Executory interest
a future interest in a third person that cuts short the previous estate before it would have naturally terminated (because a fee estate has the potential to last forever, any interest created in a third party that follows the granting of a fee will always be an executory interest)
Shifting executory interest
the interest passes from one grantee to another (i.e. a grantee to a grantee (most common))
RAP applies
Springing executory interest
the interest transfers from a grantor to grantee
RAP applies
Waste
determines what someone who owns land can or cannot do with it
owner of a fee estate can do whatever she wants with the property but an owner of less cannot commit waste
Voluntary waste
a life tenant cannot intentionally or negligently damage property
if they do, they are liable for the damage
Permissive waste
a life tenant must take reasonable steps to avoid danger. failure to do so constitutes permissive waste and the life tenant will be liable
Ameliorative waste
a life tenant makes improvements to the land
CL- a life tenant not allowed to make substantial alterations unless authorized to do so and could be held liable for costs of restoring the land to its previous condition
ML- a life tenant is now allowed to commit ameliorative waste if:
1 market value of the remainderman’s interest is not impaired and
2 it is permitted by the remainderman OR a substantial and permanent change in the neighborhood justifies the improvement
Remainderman has standing to sue for past/future waste
vested remainderman: can sue for damages or an injunction to stop the waste from occurring
contingent remainderman: cannot sue for damages and can only sue for an injunction to stop the waste from occurring
Vested remainderman sue for waste?
damages or an injunction to stop the waste from occurring
Contingent remainderman sue for waste?
Cannot sue for damages and can only sue for an injunction to stop the waste from occurring
ML ameliorative waste
life tenant allowed if
1. market value of remainderman’s interest is not impaired
2 . it is permitted by the remainderman OR a substantial and permanent change in the neighborhood justifies the improvement
Doctrine of waste
Applies to mortgagor/mortgagee relationship
Applies to landlord/tenant relationship
Rule against Perpetuities (RAP)
CL: “no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest”
Rule against perpetuities common parlance
Rules deals solely with possibilities.
If you can look at a future interest in a conveyance and can come up with an interpretation where someone could be claiming more than 21 years after everyone currently alive connected to the grant is dead, it violates the rule.
RAP application
does not apply to present possessory estates,
only applies to three future interests (executory interest, contingent remainder, and vested remainder subject to open), applies to purchase option and right of first refusal.
all other future interests are exempt from the RAP
Restraint on total alienation
“A to B, but if B ever tries to sell the property, the property will revert to A”
On a fee: generally not valid
On less than a fee: this will be upheld, if reasonable
Partial restraint on alienation
both are valid if reasonable
factors: scope, time, purpose, legitimate interests of the party, supported by consideration
Purchase option: A reserves right to buy back property at any time during A’s life
Right of First Refusal: if B attempts to sell during A’s life, B must first offer A buyback at the same price
Tenancy in common
each co-tenant owns an undivided possessory interest in the whole of the property
Joint tenancy
each co-tenant owns an undivided possessory interest in the whole of the property AND has a right of survivorship
Right of survivorship
jointly owned property passes to surviving co-tenant automatically
ML a conveyance to two or more people to jointly own property is presumed to create a tenancy in common, unless specifically stated otherwise
MUST use language to demonstrate the right attached to the grant
Creation of a joint tenancy
(TTIP)
Time
Title
Interest
Possession
Differences between joint tenancy and tenancy in common
right of survivorship
four unities (time, title, interest, and possession)
Tenancy by the entirety
reserved for married couples
Each spouse has an undivided interest in the whole of the property and a right of survivorship, unless expressly stated otherwise
Only created by deed or will not descent
Severance: tenancy by the entirety
only when the spouses jointly convey to a third party, one spouse conveys to the other spouse, or the couple divorces
Severance: Joint tenancy
Creates a tenancy in common
done by an inter vivos act of the parties
can seek a partition action
joint tenant sells his interest
joint tenant mortgages
Lien theory jurisdiction
(majority)
mortgage is viewed as a lien on the property, will not sever interest
mortgage encumbers only the portion belonging to the mortgagor
if mortgagor dies, the living joint tenant inherits the whole free of the mortgage. if there is a foreclosure before mortgagor dies, foreclosure severs the joint tenancy.
Title theory jurisdiction (minority)
mortgage is viewed as a title to the property, will sever
mortgage encumbers only the portion belonging to the mortgagor
VIRGINIA
Partition
each co-tenant has the right to seek partition of the property
Voluntary partition
done by exchange of deeds or selling the property and dividing the proceeds
Involuntary partition
is the result of a partition action filed by one or more co-tenants in court
Co-tenant possession
each co-tenant entitled to possess the whole property
Co-tenant profits
profit produced by one of the co-tenant’s efforts, then the other co-tenants have no right to share in those profits
profit generated by a third party, then all co-tenants are entitled to a proportionate share
Co-tenant expenses
taxes/mortgage payments- each co-tenant must pay a proportionate share
repairs- no direct duty of repair imposed, however a co-tenant who makes repairs to the property may be compensated for the amount of the repair
improvements- no duty imposed. if one co-tenant chooses to improve the property, they cannot get contribution from the other co-tenants. exception: if the property is sold, any amount attributable to the improvement goes to the tenant who made the improvement
Landlord-tenant question
- what type of tenancy?
- what is the dispute?
(rent, premises condition, possession, improvements) - Has the LL/T transferred their interest in the property?
Lease creation
oral or in writing (required for a term longer than a year)
implied lease- through conduct of the parties
Term of Years tenancy
creation: express agreement between LL and T for a term specified in the lease
termination: automatically at the end of the period, no notice required
Periodic tenancy
Creation: expressly or by implication with a holdover tenant
termination: LL or T must give appropriate notice of intent to terminate (in writing if specified in the lease or state statute, otherwise orally) equal to the rental period, up to a maximum of six months
(ex. 1 month tenancy= 1 month, 3 month tenancy = 3 months, 1 year tenancy = 6 months)
Timing of notice: notice is good whenever given but does not take effect until the start of the next rental period
Tenancy at-will
creation: generally by express agreement of the parties
Termination: as soon as either party decides, if either LL or T dies, or if either party attempts to transfer their interest
Tenancy at sufferance
creation: holdover situation, a holdover tenant will become either a periodic tenant or a tenant at sufferance
termination: depends on whether T becomes a periodic tenant or a tenant at sufferance
Crucial factor: acceptance of rent from the tenant
Rent- can the landlord sue?
tenancy for years: tenant is liable for all unpaid rent in the lease (LL must reasonable cover)
periodic tenancy: tenant is liable for the rental obligation up until proper notice is given to terminate the lease
tenancy at-will: the tenant is liable for the amount of rent stated in the agreement that is already owed (stay as long as T gardens the property)
tenancy at sufferance- tenant is liable for the reasonable rental value of the property
Failure to deliver possession (LL/T)
Majority: LL has an obligation to deliver possession of the premises
minority: LL has no obligation to deliver, tenant must take it
Actual eviction
the tenant is physically removed from all or part of the property
EXCUSE for not paying rent
Constructive eviction
LL has allowed the condition of the premises to deteriorate to the point that T is essentially being forced out. use and enjoyment substantially interfered with
T must move out in a reasonable time
includes acts by third parties if LL knew or had reason to know
total- defense to paying rent
partial- reduction in rent only
Destruction (LL/T)
CL: did not excuse paying rent (still in possession)
ML: defense to paying rent, exception if T intentionally or negligently caused the destruction
Warranty of Habitability
implied warranty that the premises are fit for habitation
residential leases only
T must:
1. provide LL notice
2. allow the LL reasonable time to repair the problem
LL obligation to maintain premises
CL: absent express promise, no obligation to maintain or repair leased premises
ML: an implied warranty of habitability and other statutory obligations
LL duty for common passageways and other areas under LL’s control
Tenant’s obligations
CL: no obligation to repair leased premises
Duty to avoid waste
Liability in tort: possessor owes duty (invitees, licensees, trespassers)
Fight over possession (LL/T)
LL can retake property if T committed a material breach of the lease
CL: LL entitled to use reasonable force to retake possession
ML: majority, no longer allow the use of any force and LL must use legal process
VA- unlawful detainer SoL 3 years
LL transfer of interest
LL of record on the date the rent is due is entitled to that rent
Assignment (LL/T)
tenant transfers all of the remainder of the interest (rental obligation) to a new party
Sublease (LL/T)
tenant transfers less than the entire interest in the contract
Assignment privity
assignee comes into privity of estate with the LL while the tenant remains in privity of contract with the LL
Assignment Rent
Assignee is liable to LL for rent, unless he reassigns to a new assignee who takes over privity of estate
Tenant is liable for rent, even after assignment, unless there is a contract novation
Sublease rent
sublessee comes into privity of estate and privity of contract with the tenant, owing the tenant rent. T still owes LL rent
Covenant to pay rent
enforced by the LL against the original tenant because of the contractual nature of the relationship
if LL is not receiving rent, material breach of the lease and the LL can have assignee or sublessee evicted
Only the original tenant and the current tenant are liable to LL for rent
Transfer of interest leases
generally fully transferable
to prohibit assignment or sublease, the lease must specifically state that both are prohibited
Dumper’s case rule
if there is an express prohibition against an assignment in a lease, and the LL either expressly or impliedly waives that restriction, once waived it is deemed waived for the remainder of the lease except if specifically stated otherwise
Silent consent clause
a consent clause in the lease that does not state a standard or condition for giving or withholding consent
Majority: a silent consent clause gives the LL the right to withhold consent for any reason, or for no reason at all, even if arbitrary and unreasonable (subject to housing discrimination laws)
Covenant vs. equitable servitudes
covenants when breached lead to award of damages
equitable servitude lead to the granting of an equitable remedy (like an injunction)
Creation of covenants
Covenant to run with the land PINT
privity
intent
notice
touch
concern
Privity (PINT)
horizontal- relationship between original covenantor and covenantee, requires privity of contract in connection with the land (LL/T, grantor/grantee, mortgagor/mortagee)
vertical privity- relationship between an original party to a running covenant and the successor in interest to the original party, privity of estate will only exist when holder of the servient estate transfers all his interest in the servient estate to the new owner
Intent (PINT)
the writing (real property SoF) must include language that shows the parties’ intent for the covenant to run with the land and bind successors in interest
Notice (PINT)
the current owner of the servient estate must take with notice of the restriction
requirement on servient side only
recordation will provide notice (3 types)
VA doesn’t recognize inquiry notice
Actual notice
what you know
Constructive notice
recorded
Inquiry notice
you learned enough information that would lead a reasonable person to inquire further, but failed to do so
VA does not recognize
Touch and concern the land (PINT)
servient estate- restriction must reduce the use and enjoyment of the servient estate
dominant estate- the restriction must increase the use and enjoyment of the dominant estate
Creation of Equitable servitudes
TIN
Touch and concern the land (burden/benefit must run with the land)
intent (writings show parties’ intent to run with the land)
notice (current owner of servient estate took with notice)
enforced in equity by injunction; damages not available
Implied reciprocal servitude
filed declaration containing the restrictions (called CC&Rs- covenants, conditions, and restrictions)
SoF does not apply, can be implied
Negative restrictions only
Common scheme or plan
Impose a reciprocal servitude
Show a common scheme or plan
restriction must be part of a common scheme or plan for development of the area and the current owner takes with notice of the restriction
an implied reciprocal servitude is imposed on any lot that does not contain the restriction if a common scheme was evident at the time of the conveyance of those lots
Factors to show “common scheme”
a large percentage of lots expressly burdened,
oral representations to buyers,
statements in advertisements to buyers,
or recorded plat maps or other declarations
Enforcement of a reciprocal servitude
enforced by:
original grantor,
any purchaser affected by the common scheme, or
a condo or subdivision association for common land conveyed
Terminate a covenant or equitable servitude
written release,
merger of the dominant and servient estates,
abandonment.
estoppel, or
changed circumstances so that the reason behind the restriction is no longer valid
Easement (checklist)
interest in the land of another
- was an easement ever properly created?
- What is the scope of the easement?
- Has the easement been terminated?
Servient estate
the estate burdened by the easement (always required)
Dominant estate
estate that is benefited by the easement (not always present)
Easement appurtenant
benefits a parcel of land (the dominant estate)
Easement in gross
benefits a person or entity rather than a piece of land (no dominant estate)
Creation of easements
expressly, by implication, or by prescription
Express easement
writing satisfies SoF
Easement implied by prior use
- severance of title to land held in common ownership
- the use giving rise to the easement was in existence at the time of the severance
- the use was apparent and could be discovered upon a reasonable inspection, and
- at the time of severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract
Easement by necessity
- common ownership of the dominant and the servient estate, then severance, and
- strict necessity for the easement at the time of severance
Easement by plat
a buyer in a platted subdivision acquires an implied easement to use streets, alleys, and parks in the subdivision
Easement by perscripton
adverse possession
someone actually, openly, notoriously, and exclusively uses land with hostile intent for the statutory period (VA- 20 years)
Scope of easement
if an express easement states a particular use, then that is the only allowable use
otherwise, can be used to the extent that is it reasonably necessary to do so
Holder of easement maintenance
Holder of the easement may do what is reasonably necessary to maintain the easement, even if it interferes with the servient owner’s use of their property
Destruction of the servient estate
destruction of the servient estate will terminate an easement unless the owner of the servient estate intentionally caused the destruction
Merger of title
when the owner of the dominant estate also acquires the servient estate
(termination of easement based on easement holder action)
Written release
expressly terminates the owner’s rights in the easement (must satisfy SoF) (termination of easement based on easement holder action)
Abandonment
requires proof of intent to abandon and an affirmative act in furtherance of the intent (termination of easement based on easement holder action)
Estoppel
the owner of the servient estate foreseeably and detrimentally relies on the easement holder’s action/abandonment
(termination of easement based on easement holder action)
Severance
the owner of the dominant estate tries to sever the easement from the dominant estate
(only arises with easements appurtenant) (termination of easement based on easement holder action)
Prescription based on owner of the servient estate
the owner of the servient estate interferes with the use of the easement for the statutory period
Servient estate sold to a Bona Fide purchaser
pays value and takes without notice,
termination of the estate
End of necessity of easement
for an easement created by necessity, the easement ends when the necessity ends
Profit
a nonpossessory interest in land
holder of a profit has the right to go on someone else’s land and take something off of it
transferable
termination: same as easements
Profit creation
only created expressly or by prescription (analysis is otherwise the same as easements)
License
privilege, usually to do something on someone else’s property
personal right, not an interest in the land
can be oral (no SoF analysis)
freely revocable for any reason (2 exceptions)
not transferrable unless licensor so intends
terminates on death of licensor or conveyance of the servient estate
License irrevocable exceptions
license coupled with interest- licensee purchases personal property that is located on the licensor’s property and is given permission to come onto the land to claim that property
Executed interest- the licensee expends money or labor in reliance on the license, license is irrevocable until the person gets value out of the expenditure
Fixture
personal property (chattel) attached to the land
deed to the land transfers all fixtures on the property, unless buyer and seller agree otherwise
a mortgage covers the land and all its chattels, no matter when the chattels are annexed
When is chattel a fixture?
if it is owned by the landowner and is so necessary or convenient to the use of the land that it is regarded as part of the land
intent to annex a chattel is a question of fact, judged by the reasonable person standard
Zoning scope
regulate, restrict, permit, prohibit, and/or determine:
use of land, buildings, and structures;
size, height, area, location, construction, repair, and removal of structures;
the areas and dimensions of land, water, and air-space to be occupied and open spaces to be left unoccupied; or
the excavation or mining of soil or other natural resources
Enforcement of zoning
when property found to be out of compliance, political subdivision will issue the property owner a notice of zoning violation
Substantive due process- zoning violation
zoning ordinance violates substantive due process if it is arbitrary and capricious, meaning that it is not reasonably related to public health, welfare, or safety
Procedural due process- zoning violation
requires notice and an opportunity to be heard
Equal protection- zoning violation
a zoning ordinance may give rise to an equal protection challenge if similarly situated people are treated differently.
However, where there is no fundamental right impacted, and where there are no suspect classifications, then the rational basis test will be applied
First amendment- zoning violation
a zoning ordinance may also be subject to a first amendment challenge if it regulates billboards or aesthetics
Rezoning
if rezoning is inconsistent with a comprehensive plan for that area, then it must be based on a change of conditions in the land, neighborhood, environment, or public opinion
rezoning a particular piece of land is quasi-judicial and requires procedural due process. broader rezoning is legislative
an owner may petition for a rezoning to change the classification; however a use variance or special use permit is much easier to obtain
Nonconforming use- zoning
a use permitted by zoning statutes or ordinances to continue, notwithstanding the fact that similar uses are not generally permitted in the area
may be expanded or rebuilt after substantial destruction
local ordinances often prohibit enlargement, alteration, or extension of nonconforming use
often required to be amortized (reduced) over a specified period, at the end terminated
Variance- zoning
permission by the local zoning authorities to use property in a manner forbidden by the zoning ordinances in order to alleviate conditions peculiar to a particular parcel of property
Variance- area restrcition
the petitioner must show that there are practical difficulties in meeting the requirements of the zoning code or that the requirements are unreasonable or create an undue hardship
Variance- use restriction
the petitioner must show undue hardship, meaning that without a use variance, there is no viable use of the property
Special use permit- zoning
required for uses in an area not zoned for those uses, but which would be beneficial to the public welfare and compatible with the area
an applicant for a special use permit is entitled to a public hearing that has been noticed to all who might have an interest in the application, including nearby property owners
Conditional use permit- zoning
required for uses in a area not zoned for those uses, but which would be beneficial to the public welfare, and compatible with the area if certain conditions are met
granted only if the applicant agrees to meet the additional conditions
applicant is entitled to a public hearing that has been noticed to all who might have an interest in the application, including nearby property owners
Lateral support
right of a landowner to physical support of his land in its natural state by adjoining land
landowner has an absolute right to lateral support, therefore if adjoining landowner fails to provide lateral support, the adjoining landowner will be strictly liable for any damages suffered
Lateral support main question
if the land has been improved, would the property have subsided anyway or was it the weight of the improvement that caused the land to subside?
if the land would have subsided anyway (due to natural state)- remains strictly liable
if the weight of the improvement caused the land to subside, the adjoining landowner is liable only if there was negligence in depriving the neighboring property of lateral support
Subjacent support
the right of support extends to:
land in its natural stat; and
buildings existing on the date when the subjacent estate was severed from the surface
however, the underground landowner is liable for damages to subsequently erected buildings only if he is negligent
Riparian view - water rights
anyone who is within the watershed (touches lake or stream) has a right to make reasonable use of the water
Prior appropriation/use view- water rights
awards the right to use the water to the first person to take the water for beneficial purposes
Common enemy rule- diffuse surface water
floodwater can be diverted by an method onto another’s land
Civil law rule- diffuse surface water
no interference with any surface water is allowed
Reasonable use rule- diffuse surface water
surface water can be diverted onto another’s land if using reasonable means to do so
Modified common enemy rule- diffuse surface water
a landowner may not collect the surface water and channel it onto the land of another and must exercise ordinary care
Statute of frauds
requires a writing for a transfer of an interest in real property
must be signed by the party to be changed and must include:
description of the property,
description of the parties,
price, and
any conditions of price or payment, if agreed on
SoF exceptions
doctrine of part performance
equitable and, under the modern trend, promissory estoppel
Doctrine of part performance (SoF exception)
may be used to enforce an otherwise invalid oral contract of sale, provided the acts of part performance unequivocally prove the existence of the contract
showing of at least two of the following must be made:
payment of all or part of the purchase price,
taking of possession, or
making substantial improvements
Equitable and, under modern trend, promissory estoppel (SoF exception)
may be used to prove an oral contract for the sale of land
equitable estoppel based on an act or a representation
promissory estoppel is based on a promise
