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Bar II > Real Property > Flashcards

Real Property Flashcards

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1
Q

defeasible fee

A

potentially infinite, subject to termination by occurrence of event

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2
Q

” so long as” “while” “during” “until”

A

FS determinable

automatically ends upon happening of state event

reverter

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3
Q

“upon condition that” “provided that” “but if” “if it happens that”

A

FS subject to condition subsequent

ends only if grantor demonstrates intent to terminate

re entry

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4
Q

how much in property taxes must life tenant pay

A

to extent LT receives financial benefit

mortgages are allocated between LT and future interest holder

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5
Q

what is RAP

A

specific future interests are valid only if they must vest or fail by the end of a life in being plus 21 years

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6
Q

what does RAP apply to

A

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

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7
Q

vest or fail rule for rap

A

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

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8
Q

rap rule for class gifts

A

bad as to one, bad as to all

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9
Q

rule of convenience

A

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

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10
Q

common rap violations

A

survival beyond age 21
fertile octogenarian
unborn spouse
defeasible fee followed by executory interest
conditional passage of interest

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11
Q

charity exception for rap

A

if property passes from one charity to another, it’s fine

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12
Q

Tenants in common

A

unity of possession
no right of survivorship
each has right to possess whole
interest freely devisable

this is default

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13
Q

joint tenancy

A

right of survivorship
four unities
- possession
- identical interests
- time of creation
- same title

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14
Q

severance rules for JT

sale
mortgage
judicial lien

A

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

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15
Q

tenancy by entirety

A

same 4 unities + marriage

can’t alienate or encumber without consent

in states with TE, presumed that conveyance to married couple is this

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16
Q

can co T collect contribution from other co Ts for operating expenses like taxes

A

yes
but if she’s in sole possession, only if they exceed rental value

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17
Q

can Co T compel other co Ts to share expenses for repairs

A

some states yes if notified Co Ts of need for repairs

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18
Q

does co T have right to contribution for improvements

A

no

but could factor in and get some additional value in partition action

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19
Q

how are rents divided among co Ts

A

profits are divided based on ownership interests

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20
Q

duties to other co Ts

A

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

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21
Q

is an easement enforceable against another co T

A

no, only the co T who made it

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22
Q

what does fair housing act require

A

no discrimination in sale, rental, financing

plaintiff must show disparate racial impact, not intent or purpose

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23
Q

what classes does FHA protect

A

race, color, religion, national origin, sex, disability, family

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24
Q

who is exempt from FHA

A

owner occupied buildings with no more than 4 units

single family homes sold or rented without broker (still subject to advertising rules)

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25
Q

conflict of laws for real property

A

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

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26
Q

types of tenancies

A

for years
periodic
at will
at sufferance

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27
Q

how to create terminate tenancy for years

A

express agreement

automatic at end of term

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28
Q

how to create terminate periodic tenancy

A

express, implication (no mention of duration), operation of law (holdover)

renews unless valid termination notice

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29
Q

valid termination notie for periodic tenancy

A

-must be given before last period begins (6 months for yearly)
- effective as of last day of period
- common law: oral ok

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30
Q

how to create terminate tenancy at will

A

express or implication

either party can terminate with no notice

CL: L must give T reasonable time to vacate

most states now require notice

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31
Q

how to create tenancy at sufference

A

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

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32
Q

duties of tenant

A

pay rent
avoid waste
repair (non residential only)

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33
Q

how is abandonment of rental treated

A

L accepts surrender: lease terminates and T not liable for future rent

L rejects surrender: T remains liable but L must try to mitigate

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34
Q

landlord options for holdover tenant

A

can accept as periodic or accept as sufferance or sue after notice to vacate

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35
Q

duties of L

A

-deliver possession to T
-repair (for residential)
-warranty of habitability (residential)
-covenant of quiet enjoyment
-security deposit

36
Q

what is arrant of habitability

A

only residential

premises must be fit for basic habitation. if breached:

  1. T must notify L and give reasonable time to repair
  2. then T can refuse to pay rent, make reasonable repairs and deduct, or pay rent and seek damages
37
Q

covenant of quiet enjoyment

A

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

38
Q

how may breach of quiet enjoyment lead to eviction

A

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

39
Q

tort liabilities for T

A

duty of care to
invitees
licensees
foreseeable trespassers

may be liable for dangerous conditions

40
Q

tort liability for L

A

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

41
Q

assignment v sublease

A

assignment: complete transfer of T’s remaining lease term

sublease: any transfer for less than duration of lease

42
Q

what is assignee tenant liable for

A

rent b/c in privity of estate with L

43
Q

what is sublessee liable for

A

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

44
Q

what is original tenant liable for when subleasing or assigning

A

liable for lease unless novation by L because still in privity of contract

privity of estate ends with L upon assignment but not sublease

45
Q

when can L withhold permission to grant assignment or sublease

A

on reasonable grounds in relationship only

46
Q

SOF exception of part performance

A

2/3:
possession
payment
improvement

47
Q

exceptions to SOF for Rp

A

part performance
detrimental reliance (specific performance)
admission

48
Q

what is marketable title

A

title free from defects or unreasonable risk of litigation

49
Q

when is time of the essence

A

not enforced unless part of K (but party would be in breach)

50
Q

implied warranty of fitness

A

only for new homes, warrants use of adequate materials and workmanship

51
Q

duty to disclose defects

A

applies to all homes, seller must disclose all known material physical defects not readily observable

52
Q

how does merger work

A

details of k merge into deed upon delivery

53
Q

remedies for breach

A

damages: difference between k price and market value

specific performance

54
Q

rule for buyer’s deposit as liquidated damages

A

ok for deposits of 10% or less

but court may refuse if seller suffered no actual loss, k was silent

55
Q

what is equitable conversion

A

once k is signed, buyer is owner of land and bears risk of loss if land is destroyed between signing k and closing

56
Q

elements of adverse possession

A

E - exclusive
C - continuous use
H - hostile
O - openly using

57
Q

how is deed delivered

A
  • grantor has intent to make present transfer
  • given to grantee or grantee’s agent
58
Q

valid deed requirement

A
  • identified parties
  • grantors signature
  • words of transfer
  • reasonably definite property desscription
59
Q

notice recording act

A

BFP (purchase for value without notice) wins over prior grantee who failed to record

60
Q

race recording act

A

first to record wins regardless of knowledge

61
Q

race notice recording act

A

subsequent BFP only protected if he takes without notice AND is first to record

62
Q

types of notice

A

actual
inquiry
record

63
Q

types of deeds

A

general
special
quitclaim

64
Q

present and future covenants in general warranty

A

Present
seisin - grantor owns
right to convey
no undeclared encumbrances

Future
quiet enjoyment
warranty
further assurances

65
Q

what is special warranty

A

same as general but ONLY for stuff that happened when that owner had it

66
Q

mortgager’s liability upon transfer

A

if transferee assumes mortgage, original borrower is secondarily liable

transferee would be personally liable

67
Q

transferee liability if takes subject to mortgage

A

transferee is not personally liable but house could still be foreclosed on

68
Q

equity of redemption

A

after default but before foreclosure sale, mortgagor can pay amount of loan + interest to get house back

69
Q

what is an easement

A

right held by one person to make specific limited use of land owned by another

70
Q

ways to create easements

A
  1. express
  2. implied (necessity or implication)
  3. prescription (AP)
  4. estoppel
  5. negative
71
Q

what are the types of implied easement

A

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

72
Q

requirement for negative easement

A

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

73
Q

types of easement

A

appurtenant

in gross

74
Q

ways to end easement

A

release
merger
abandonment ( intent + act)

75
Q

can easement owner seek contribution from co owners of easement for cost of repairs

A

yes
easement owner has right and duty to maintain easement

76
Q

what is a license

A

privilege to enter another’s land

freely revocable

77
Q

easement runs with land if

A

writing
notice
intent

78
Q

difference between covenant and equitable servitude

A

covenant - gets damages

ES - gets injunction

79
Q

covenant runs with land if

A

W -writing
I - intent
T - touch and concern
H - horizontal
V - vertical
P - privity
N - notice

80
Q

ES runs with the land if

A

W - writing
I - intent
T - touch and concern
N - notice
ES!

81
Q

common scheme

A

common scheme for development + notice

try if ES doesn’t work

82
Q

defenses to covenants and Es

A

changed circumstances
laches
unclean hands
acquiescence
estoppel

83
Q

existing non conforming property after Gov regulation

A

can be grandfathered in but can’t expand use

84
Q

post ordinance non conforming property

A

owner may request variance. must show

unusual situation
compliance would be unnecessary hardship

85
Q

water rights theories

A

riparian rights - water belongs to those who own the boarder

prior appropriation - determined by priority of beneficial use

86
Q

support rights

A

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

87
Q

air rights

A

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

Bar II (16 decks)

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