Real Property Flashcards
defeasible fee
potentially infinite, subject to termination by occurrence of event
” so long as” “while” “during” “until”
FS determinable
automatically ends upon happening of state event
reverter
“upon condition that” “provided that” “but if” “if it happens that”
FS subject to condition subsequent
ends only if grantor demonstrates intent to terminate
re entry
how much in property taxes must life tenant pay
to extent LT receives financial benefit
mortgages are allocated between LT and future interest holder
what is RAP
specific future interests are valid only if they must vest or fail by the end of a life in being plus 21 years
what does RAP apply to
contingent remainders
vested remainders subject to open
executory interests
powers of appointment
rights of refusal and option unless commercial
NOT FIS that revert to grantor
vest or fail rule for rap
if there is any possibility that it will not be known whether the interest will vest or fail within applicable period, RAP has not been satisfied
rap rule for class gifts
bad as to one, bad as to all
rule of convenience
can save a class gift:
membership in a class closes whenever any member of the class is entitled to immediate possession of a share of the class gift
common rap violations
survival beyond age 21
fertile octogenarian
unborn spouse
defeasible fee followed by executory interest
conditional passage of interest
charity exception for rap
if property passes from one charity to another, it’s fine
Tenants in common
unity of possession
no right of survivorship
each has right to possess whole
interest freely devisable
this is default
joint tenancy
right of survivorship
four unities
- possession
- identical interests
- time of creation
- same title
severance rules for JT
sale
mortgage
judicial lien
sale: severs JT as to seller
mortgage: title severs, lien theory doesn’t
judicial lien: lien doesn’t, but severance happens if levied and sold
tenancy by entirety
same 4 unities + marriage
can’t alienate or encumber without consent
in states with TE, presumed that conveyance to married couple is this
can co T collect contribution from other co Ts for operating expenses like taxes
yes
but if she’s in sole possession, only if they exceed rental value
can Co T compel other co Ts to share expenses for repairs
some states yes if notified Co Ts of need for repairs
does co T have right to contribution for improvements
no
but could factor in and get some additional value in partition action
how are rents divided among co Ts
profits are divided based on ownership interests
duties to other co Ts
duty of fair dealing
fiduciary duty only if co T bought property at foreclosure - has to let other co Ts buy back interest within reasonable time
is an easement enforceable against another co T
no, only the co T who made it
what does fair housing act require
no discrimination in sale, rental, financing
plaintiff must show disparate racial impact, not intent or purpose
what classes does FHA protect
race, color, religion, national origin, sex, disability, family
who is exempt from FHA
owner occupied buildings with no more than 4 units
single family homes sold or rented without broker (still subject to advertising rules)
conflict of laws for real property
generally apply law of situs
exceptions
- document says
- MP: where spouses were domiciled when acquired
- collateral issue (like saying it was fraud), law of state with most significant interest
types of tenancies
for years
periodic
at will
at sufferance
how to create terminate tenancy for years
express agreement
automatic at end of term
how to create terminate periodic tenancy
express, implication (no mention of duration), operation of law (holdover)
renews unless valid termination notice
valid termination notie for periodic tenancy
-must be given before last period begins (6 months for yearly)
- effective as of last day of period
- common law: oral ok
how to create terminate tenancy at will
express or implication
either party can terminate with no notice
CL: L must give T reasonable time to vacate
most states now require notice
how to create tenancy at sufference
squat
T bound by terms of lease that existed before
tenancy lasts until T leaves, L evicts, or L elects to hold T to new periodic tenancy
duties of tenant
pay rent
avoid waste
repair (non residential only)
how is abandonment of rental treated
L accepts surrender: lease terminates and T not liable for future rent
L rejects surrender: T remains liable but L must try to mitigate
landlord options for holdover tenant
can accept as periodic or accept as sufferance or sue after notice to vacate
duties of L
-deliver possession to T
-repair (for residential)
-warranty of habitability (residential)
-covenant of quiet enjoyment
-security deposit
what is arrant of habitability
only residential
premises must be fit for basic habitation. if breached:
- T must notify L and give reasonable time to repair
- then T can refuse to pay rent, make reasonable repairs and deduct, or pay rent and seek damages
covenant of quiet enjoyment
applies to commercial and residential
T has right to use and enjoy premises without interference from L
L has duty to control other T’s nuisance in common areas
how may breach of quiet enjoyment lead to eviction
actual: L excludes T, lease ends, T’s obligation ends
constructive: T gives notice, L fails to respond, T must vacate within reasonable time after L fails to fix problem
retaliatory: L can’t evict T for complaining or refusing to pay rent if L breaches W of H
tort liabilities for T
duty of care to
invitees
licensees
foreseeable trespassers
may be liable for dangerous conditions
tort liability for L
cl: liable for injuries in common areas, non common areas under L’s control or hidden defect/faulty repair
modern: general duty of reasonable care, liable for defects existing before T moved in, failure to make required repairs, criminal activities of third parties who injure T
assignment v sublease
assignment: complete transfer of T’s remaining lease term
sublease: any transfer for less than duration of lease
what is assignee tenant liable for
rent b/c in privity of estate with L
what is sublessee liable for
not rent because not in privity of estate or privity of contract with L
only in privity with the sublessor
can assume covenants and be directly liable though
what is original tenant liable for when subleasing or assigning
liable for lease unless novation by L because still in privity of contract
privity of estate ends with L upon assignment but not sublease
when can L withhold permission to grant assignment or sublease
on reasonable grounds in relationship only
SOF exception of part performance
2/3:
possession
payment
improvement
exceptions to SOF for Rp
part performance
detrimental reliance (specific performance)
admission
what is marketable title
title free from defects or unreasonable risk of litigation
when is time of the essence
not enforced unless part of K (but party would be in breach)
implied warranty of fitness
only for new homes, warrants use of adequate materials and workmanship
duty to disclose defects
applies to all homes, seller must disclose all known material physical defects not readily observable
how does merger work
details of k merge into deed upon delivery
remedies for breach
damages: difference between k price and market value
specific performance
rule for buyer’s deposit as liquidated damages
ok for deposits of 10% or less
but court may refuse if seller suffered no actual loss, k was silent
what is equitable conversion
once k is signed, buyer is owner of land and bears risk of loss if land is destroyed between signing k and closing
elements of adverse possession
E - exclusive
C - continuous use
H - hostile
O - openly using
how is deed delivered
- grantor has intent to make present transfer
- given to grantee or grantee’s agent
valid deed requirement
- identified parties
- grantors signature
- words of transfer
- reasonably definite property desscription
notice recording act
BFP (purchase for value without notice) wins over prior grantee who failed to record
race recording act
first to record wins regardless of knowledge
race notice recording act
subsequent BFP only protected if he takes without notice AND is first to record
types of notice
actual
inquiry
record
types of deeds
general
special
quitclaim
present and future covenants in general warranty
Present
seisin - grantor owns
right to convey
no undeclared encumbrances
Future
quiet enjoyment
warranty
further assurances
what is special warranty
same as general but ONLY for stuff that happened when that owner had it
mortgager’s liability upon transfer
if transferee assumes mortgage, original borrower is secondarily liable
transferee would be personally liable
transferee liability if takes subject to mortgage
transferee is not personally liable but house could still be foreclosed on
equity of redemption
after default but before foreclosure sale, mortgagor can pay amount of loan + interest to get house back
what is an easement
right held by one person to make specific limited use of land owned by another
ways to create easements
- express
- implied (necessity or implication)
- prescription (AP)
- estoppel
- negative
what are the types of implied easement
necessity:
- parcels used to be one
- now severed and
- property is useless without easement
implication
- parcels used to be one
- prior use was continuous, apparent or known
- easement reasonably necessary
requirement for negative easement
prevents owner using land in specific ways
must be expressly created in writing signed by grantor, usually only for light air support stream of water from artificial flow
types of easement
appurtenant
in gross
ways to end easement
release
merger
abandonment ( intent + act)
can easement owner seek contribution from co owners of easement for cost of repairs
yes
easement owner has right and duty to maintain easement
what is a license
privilege to enter another’s land
freely revocable
easement runs with land if
writing
notice
intent
difference between covenant and equitable servitude
covenant - gets damages
ES - gets injunction
covenant runs with land if
W -writing
I - intent
T - touch and concern
H - horizontal
V - vertical
P - privity
N - notice
ES runs with the land if
W - writing
I - intent
T - touch and concern
N - notice
ES!
common scheme
common scheme for development + notice
try if ES doesn’t work
defenses to covenants and Es
changed circumstances
laches
unclean hands
acquiescence
estoppel
existing non conforming property after Gov regulation
can be grandfathered in but can’t expand use
post ordinance non conforming property
owner may request variance. must show
unusual situation
compliance would be unnecessary hardship
water rights theories
riparian rights - water belongs to those who own the boarder
prior appropriation - determined by priority of beneficial use
support rights
lateral support
undeveloped adjacent land: SL for damage
improvements: SL only if adjoining land would’ve collapsed in undeveloped state
owner of mineral rights has SL for failure to support buildings on land at time rights were conveyed
air rights
landowner has limited right to reasonable use and enjoyment of airspace above land as long as doesn’t interfere with another’s use and enjoyment
