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Essay Rules Flashcards > Real Property > Flashcards

Real Property Flashcards

1
Q

Fee Simple Absolute

A

Absolute ownership of potentially infinite duration, with no accompanying future interest

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2
Q

Defeasible Fees

A

Ownership of potentially infinite duration, which may be terminated by occurrence of an event.

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3
Q

Types of Defeasible Fees

A

Fee simple determinable
Fee simple subject to condition subsequent
Fee simple subject to executory interest

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4
Q

Fee simple determinable

A

Limited by specific durational language, terminates automatically on occurrence of event.

Grantor interest: possibility of reverter

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5
Q

Fee simple subject to condition subsequent

A

Limited by specific conditional I (language, grantor has right to terminate on occurrence of event (not automatic).

Grantor interest: right of entry

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6
Q

Fee simple subject to executory interest

A

Limited by specific conditional language, title automatically passes to third party on occurrence of condition.

Third party interest: executory interest

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7
Q

Life estate

A

Present possessory estate limited in duration by a life.

Grantor interest: reversion
3d party: remainder

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8
Q

Types of Remainders

A

Vested
Contingent

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9
Q

Vested Remainder

A

not subject to any conditions precedent, and created in ascertainable grantee.

Can be subject to open or subject to complete divestment

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10
Q

Contingent remainder

A

Subject to express condition precedent, or created in grantee that is unascertainable

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11
Q

Executory Interest

A

Future interest in third party that is NOT a remainder, generally cuts prior estate short upon occurrence of specified condition. Can be shifting or springing

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12
Q

Shifting Executory Interest

A

Divests interest of grantee by cutting short a prior estate created in the same conveyance. Shifts from one grantee to another when condition happens.

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13
Q

Springing Executory Interest

A

Divests the interest of the grantor or fills a gap in possession in which estate reverts to grantor.

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14
Q

RAP

A

Future interests are valid only if they must vest or fail by the end of a life in being (at time of conveyance) plus 21 years.

APPLIES TO: CREIVSO (+)
Contingent remainders
Executory interests
Vested remainders subject to open (if not closed by rule of convenience)
Also:
- Powers of appointment
- Rights of first refusal and options (unless commercial)

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15
Q

Tenancy in Common

A

Default concurrent interest; separate but undivided interests, no right of survivorship.

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16
Q

Joint Tenancy

A

Right of survivorship.

Creation requires four unities (PITT):

Possession
Interest
Time
Title

Destroyed by conveyance.

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17
Q

Tenancy by the Entirety

A

Joint tenancy between married people (marriage = fifth unity). Right of survivorship. Need consent to alienate. Can’t partition.

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18
Q

Rights of cotenants

A

Possession! (Not required to pay rent or share profits from business.)

Natural resources! (in proportion to ownership)

Third party rents! (must account to each other, but can deduct expenses)

Property related expenditures!
Can compel other cotenants to contribute to necessary property-related obligations, to extent they exceed rental value of property

CANNOT compel for repairs, unless indirectly through another action

CANNOT compel for improvements, unless indirectly in partition

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19
Q

FHA exemptions

A

Single family homes sold / rented without a broker

Rental places with four units including the owner’s

Housing operated by religious orgs and private clubs

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20
Q

Types of tenancies

A

tenancy for years
periodic tenancy
tenancy at will
tenancy at sufferance

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21
Q

Tenancy for years

A

Measured by a fixed and ascertainable amount of time.
CREATION: agreement
NOTICE: none required
TERMINATION: automatically at end

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22
Q

Periodic Tenancy

A

Repetitive and ongoing until party give notice.
CREATION: intent (express or implied)
NOTICE: before intended last period
TERMINATION: renews automatically until notice

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23
Q

Tenancy at will

A

Created at will of parties (express, or implied by allowing tenant to occupy).
NOTICE: reasonable notice
TERMINATION: all ways

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24
Q

Tenancy at sufferance

A

Tenant holds over after lease has ended. Temporary, before eviction or re-rent. Tenant owes reasonable value & damages.
CREATION: actions of tenant alone
TERMINATION: leaves, eviction, re-rent

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25
Q

Tenant Duties

A

Pay rent
Avoid waste
Contractual duty to repair (nonresidential)
Other lease duties

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26
Q

Landlord duties

A

Give physical possession
Duty to repair
Warranty of habitability (residential)
Covenant of quiet enjoyment

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27
Q

Warranty of habitability

A

Landlords of residential premises keep premises suited for residential use, avoid threats to health or safety. Cannot be waived.

REMEDY: refuse to pay rent; remedy defect and offset cost; defend against eviction

28
Q

Covenant of quiet enjoyment

A

Duty not to interfere with possession of the premises. Actions that breach amount to actual or constructive eviction.

Actual eviction: terminates lease, ends obligation to pay rent.

Partial eviction: if landlord’s fault, tenant excused from rent. If third party’s fault, tenant pays reasonable value of occupied portion.

Constructive eviction: if tenant gives notice and time to fix, then obligation to pay rent is excused.

29
Q

Tenant duties under tort law

A

Duty of care to invitees, licensees, foreseeable trespassers, dangerous conditions or activities

30
Q

Landlord duties under tort law

A

Injuries occurring in common and public areas, or hidden defects/faulty repairs (common law)

General duty of reasonable care – existing defects, failure to make repairs, criminal activity of third persons (modern trend)

31
Q

Formation of Land Sales Contract

A

i) in writing
ii) signed by party to be charged
iii) contains essential terms (parties, description, price, payment)

32
Q

Statute of Frauds and Land Contracts

A

SOF APPLIES:
Promise to create interest in real property
Assignment of right to purchase
Most option contracts
Promise to give mortgage as security
Leases over a year

SOF DOES NOT APPLY
Leases under a year
Licenses
Options/Rights of first refusal granted in LEASE, or COMMERCIAL

33
Q

Implied Covenant of Marketable Title

A

Title free from defects that create risk of litigation, including:
- Unquieted adverse possession
- Future interests, where haven’t agreed
- Private encumbrance (mortgage, covenant, option, easement)
- Violation of zoning
- Physical defect
- Right of first refusal, option contracts

Buyer remedies: rescind; sue; specific performance

34
Q

Time of the essence in land contracts

A

Not assumed, must be specifically stated.
If not stated, strict adherence to closing date not grounds for rescission, though treated as breach and other party liable for damages.

35
Q

Implied warranty of fitness or suitability

A

Implied for sales of newly constructed homes.

Implied against professional builders/developers/contractors, available to initial purchaser and maybe subsequent purchasers within reasonable time.

Damages = cost of repairs, or difference between value with warranty and as built

Can be disclaimed, if very specific!

36
Q

Duty to disclose defects

A

Seller must disclose all known material physical defects that aren’t observable to buyer

Remedy: rescind, damages

37
Q

Merger doctrine (land contracts)

A

Contract terms are merged into the deed and can’t thereafter be enforced unless in the deed.

EXCEPTIONS: things intended to survive deed; collateral obligations; defenses

38
Q

Equitable title

A

Equitable title passes to buyer upon entering contract, but seller holds legal title so has right to possess the property (and duty to upkeep) until closing.

Buyer bears risk of loss unless seller intentional/negligent (or UVPRA)

39
Q

Right of First Refusal

A

Preemptive right that gives holder opportunity to acquire property before it is transferred to another; valid unless UNREASONABLE.

RAP appplies, unless in lease or commercial

40
Q

Adverse possession

A

ECHOS: exclusive, continuous, hostile, open/notorious/actual, statutory period

41
Q

REquired elements of deed

A
  • Writing
  • grantor’s signature
  • identity of parties
  • words of transfer
  • property description

WILL GRANT INTEREST WHEN PROPER

  • Grantor must demonstrate intent to make a present transfer of the interest and the grantee must accept the interest
  • Transfer must be evidenced by writing (SOF)
42
Q

Transfer of deed

A

Grantor must, at time of transfer, intend to make a present transfer of property interest to grantee. Physical delivery helpful, but not required.

Transfer to own agent = treated as retention

Transfer to grantee agent = treated as delivery

Transfer to third party = language matters.
- If absolute right to recover, no delivery
- conditional transfer creates future property interest
- if conditioned on death of grantor, valid with proper intent

Transfer to independent agent on contract = agent must deliver on occurrence of condition

Recording = delivery presumed

43
Q

General Warranty Deed

A

guarantees the grantor holds six covenants of title

44
Q

Present covenants

A

seisin: grantor owns land as described
(recovery: purchase price or cost of perfecting title)

right to convey: grantor has right to transfer
(recovery: purchase price or cost of perfecting title)

against encumbrances: no undisclosed encumbrances. (recovery: diff in value between title with or without, or cost of removing encumbrance)

45
Q

Future covenants

A

quiet enjoyment: no third party interference via lawful claim for title
(recovery: with notice, purchase price or cost of defending title)

warranty: grantor will defend against third party claim (recovery: with notice, purchase price or cost of defending title)

further assurances: grantor will perfect title (recovery: purchase price or cost of perfecting title)

46
Q

special warranty deed

A

Contains same covenants, but only warrants against defects arising during time grantor had title

47
Q

quitclaim deed

A

promises no covenants

48
Q

Notice recording act

A

Purchaser who purchases without notice of prior interest prevails.

“in good faith” / “without notice”

49
Q

Race recording

A

Purchaser who records first prevails, regardless of notice

“first recorded”

50
Q

Race notice

A

Purchaser who takes the interest without notice AND first prevails.

“in good faith and first duly recorded”

51
Q

Assuming mortgage liability

A

transferee-buyer becomes personally liable, and lender may sue either or both

52
Q

subject to mortgage obligation

A

TB is not personally liable, though property can still be sold at foreclosure
(DEFAULT IF AMBIGUOUS)

53
Q

Equity of redemption

A

mortgagor can retain property under doctrine of EoR by paying amount of loan obligation currently owned, if do it BEFORE foreclosure sale.

54
Q

Easement

A

Non-possessory interest in land allowing a person to use another’s land for a specific limited purpose.

Servient estate: subject to easement
Dominant estate: benefits from the easement

Appurtenant: tied to land (runs with both)
In Gross: tied to person (runs with servient)

55
Q

Types of easements

A

Express: owner grants or reserves; defined by terms

Implied: prescription, implication, necessity, or estoppel

56
Q

Easement by Prescription

A

Like adverse possession. Requires:
- continuous
- hostile
- open
- statutory period

SCOPE: extent of AP use

57
Q

Easement by Implication

A

when owner of two parcels previously used one to benefit the other, and on transfer of one parcel parties intend use to continue if use was continuous/apparent/known and reasonably necessary to use and enjoyment (a “quasi easement”)

SCOPE: existing quasi-easement

58
Q

Easement by necessity

A

Created when a property is virtually landlocked. Requires:
- estates must have been under common ownership;
- strict necessity arose at time of severance

SCOPE: extent of necessity

59
Q

Easement by Estoppel

A

Good faith, reasonable, detrimental reliance on permission to make limited use of servient estate. Must be necessary to prevent injustice.

60
Q

license

A

Nonpossessory right to use another’s land for specific purpose that is FREELY REVOCABLE unless coupled with an interest or detrimentally relied upon. Binds only licensor, not successors.

61
Q

Covenants

A

Restrictions on use of land that run with the lands and bind successive owners. Transferable. Remedy is DAMAGES!

REQUIREMENTS TO RUN: (WINTP)
1) writing
2) intent
3) notice
4) touch and concern
5) privity

62
Q

Equitable Servitude

A

Promise concerning use of land that runs to successors, with easier standard.

Requirements to run: WINT

Remedy is injunctive relief!

63
Q

Privity requirements for burden to run

A

Horizontal privity = original parties must have had privity of estate (some shared property interest) at time covenant is created

Vertical privity = successor must hold estate of same or longer duration (life estate can run to life estate)

64
Q

Direct restraints on alienation

A

Direct restraints on alienation (e.g., restrictions that prohibit some or all types of transfers) are disfavored and are valid only if they are deemed reasonable. To determine reasonableness, courts weigh the utility of the restraint against the harm resulting from its enforcement.

65
Q

Ouster

A

When a co-tenant refuses to allow another co-tenant access to the property, then there has been an ouster. The ousted cotenant may bring a court action (e.g., an injunction) to gain access to the property and to recover the value of the use of the property for the time during which the cotenant was denied access to the property.

Essay Rules Flashcards (8 decks)

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