Real Property Flashcards
What is a restraint on alienation?
Restraints on Alienation are restrictions on transferring property and are generally void unless they are reasonable restrictions on use, lease, or time-limited sale.
What is marketable title?
It requires that title must be free from reasonable doubt of litigation at closing, meaning it is free from defects such as undisclosed liens or adverse claims.
Marketability challenges must be made before deed transfer, otherwise they will merge with the deed.
What is tenacy in common?
A TIC is a concurrent estate held with no right of survivorship. Tenants can hold different interests in the property, but each is entitled to posession of the whole. Interests are alienable, devisable and inheritable.
How do co-tentants determine responsiblity for repairs?
Each co-tenant is responsible for their fair share of carrying costs (taxes, morgage, interest payments) based upon the undivided share that they hold?
A co-tenant that makes repairs is entitled to contribution for reasnable and necessary repaires provided they notified the others of the need.
What is joint tenancy?
A joint tenancy is a conveyance of real property to two or more persosns which includes a right of surviviorship.
It requires the four unities of time, title, interst and possession.
How can joint tenancy be severed?
When one joint tenant unilaterally transfers their interest, destroying the right of survivorship and converting the tenancy into a tenancy in common as to the severed interest. Severance can also occur through mutual agreement, partition, or foreclosure.
What is tenancy by the entirety?
Tenancy by the Entirety is a form of concurrent ownership available only to married couples.
Each spouse has an equal, undivided interest with a right of survivorship. It requires the four unities plus marriage.
It is only severably by divorce, death, a creditor of both spouses, or mutual agreement. Neither spouse alone can convey or encumber this real property.
What is legal possession?
Requires the landlord to provide the tenant with legal possession at lease commencement.
Under the English Rule (majority), the landlord must also provide actual possession, ensuring no holdover tenants remain.
Under the American Rule (minority), the landlord need only provide legal possession, and the tenant must evict any holdovers.
What are leaseholds?
A leasehold provides the tenant with a present possessory interst in real property.
There are 4 types, periodic, at will, at sufferance, and fixed term.
What is a Fixed-Term tenancy?
A Fixed-Term Tenancy lasts for a specified period and ends automatically.
What is a periodic tenancy?
A Periodic Tenancy renews automatically at set intervals until proper notice is given.
It can be created by express agreement or by implication if rent is paied at specific periods , or by law.
Requireds notice of a full period except for a year-year tenant who only requires six months notice.
What is tenancy at will?
A Tenancy at Will continues until either party terminates without notice requirements.
What is tenancy at sufferance?
A Tenancy at Sufferance occurs when a tenant remains in possession after lease expiration without the landlord’s consent.
What are a tenant’s duties?
A tenant must pay rent unless legally excused and must not commit waste .
How are cotenent rights violated by outster?
A cotenant’s right of possession is violated if another cotenant wrongfully excludes the cotenant from the property.
(i.e., cotenant in possession denies entry or unequivocally gives notice that they intend to exclude other cotenants).
What is a sublease?
A sublease is a transfer of less than the full amount of the lease term to another.
A sublessee is only in privity with the sub-lessor and is not personally liable to the landlord for rent or any covenants in the main lease unless the sub-lessee expressly assumes them.
Somone who leases cannot sublease for longer than their own lease, if they do, the tenant can be ejected.
What is the implied warranty of habitability?
It applies to residential leases, requiring landlords to provide habitable premises with essential services (e.g., heat, water, structural integrity).
If breached, tenants may withhold rent, repair and deduct costs, or terminate the lease and sue for damages.
What is a constructive eviction?
Constructive eviction occurs when the landlord’s breach of the implied covenant of quiet enjoyment substantially interferes with the tenant’s use of the premises.
The tenant must notify the landlord, allow an opportunity to cure, and vacate to terminate the lease before seeking damages.
What is self help?
Self-help refers to the actions a landlord takes to eject a tenant from their property.
Most states do not allow self help; the landlord must properly evict the tenant.
What is an assignment?
An assignment occurs when a tenant transfers their entire remaining lease interest, making the assignee liable under privity of estate but leaving the original tenant liable under privity of contract unless released.
A lease may prohibit or restrict assignments and subleases, but absolute restraints are generally disfavored.
If landlord consent is required, refusal must be reasonable unless the lease explicitly grants unrestricted discretion to deny assignments.
What can void an assignment clause?
They are void if:
1. the landlord knew of the clause but did not object; or
2. the landlord accepts rent from the new tenant.
What are real covenants?
Real Covenants are promises regarding land use (to do something or refrain from doing something) that run with the land if certain conditions are met. Breach of a real covenant allows for damages as a remedy.
What are the requirments for a burden or benefit to run with the land?
WITH-VerN
The requirements for the burden to run with the land:
Writing,
Intent,
Touch and concern,
Horizontal privity,
Vertical privity, and
Notice.
For the benefit to run, no horizontal privity or notice are required.
What is horizontal privity?
Horizontal privity is a relationship between the original covenanting parties.
What is vertical privity?
Vertical privity is an unbroken chain of conveyances, and the promise must touch and concern the land by affecting its use or value.
What is an equitable servitude?
WITh - Norm
An equitable servitude is a rule or restriction that applies to a piece of land and is enforceable in court, usually through an injunction.
Successors in interests can enforce an equitable servitude if:
- the servitude is in Writing ;
- the original parties Intended the servitude to run with the land (i.e., using words such as heirs, assigns, successors, never, always, or forever);
- the servitude Touches and concerns the land (i.e., use, enjoyment, or occupation); and
- the owner of the servient land had adequate Notice (i.e., actual, implied, or record).
What is an easement?
An easement is an agreement where a (dominant) party buys the right to use someone else’s land (servient).
These agreements must be in writing to satisfy the statute of frauds, excepting necessity and prescription.
What is an easment in gross?
An easement that provides use or benefit to a particular person or persons.
What is an easement appurtenant?
Appurtenant easements benefit any successive owner’s enjoyment and use the land.
As opposed to easment in gross, these do attach to the land. Burdening easements pass to subsequent owners as long as the new owner has notice.
How is an easment created?
An easment can be created via an express grant, implication, necessity or prescription.
What is an easment by exress grant?
An easement by grant occurs when the owner of the servient estate expressly grants an easement to another.
An easement is created by express grant when it is in a valid, signed writing, which details the conveyance of the right to the dominant party.
What is an easement by implication?
An easement by implication is created when a landowner divides property, and a preexisting, apparent, and reasonably necessary use continues after severance.
What is an easement by necessity?
An easement by necessity is created when a single owner subdivides their property and access the property would be impossible without usage or the easement.
Once the necessity is no longer needed, the easement is rescinded.
What is an easement by prescription?
An easement by prescription is created in a similar manner as an adverse posession, where the possesor’s use is open and notorious, continuous, hostile and for the duration of the statutory period.
What is waste?
Present estate holders have a duty to refrain from committing waste.
- Permissive waste: Failure to maintain property (e.g., taxes, mortgage interest, repairs).
- Voluntary waste: Unauthorized alterations that lower value (exceptions: preexisting resource use or estate preservation).
- Ameliorative waste: Significant changes, even if value increases (allowed if no objection or local conditions make current use unproductive).
What are fixtures?
A fixture is chattel attached to the land, thereby converting it from personal property to fixture. Fixtures that can be removed from the land without causing damages and trade equipment are typically exceptions.
How does an easment terminate?
An easement is terminated through non-use, abandonment (also requires a physical act), agreement, merger or end of necessity.
How do you transfer an easement appurtenant?
An easement appurtenant is transferred when real property encumbered with an easement is transferred to a new owner. The burden and benefit convey as well, but subject to the recording statute.
How do you relocate an easement appurtenant?
An easement appurtenant cannot be moved if its location was already reasonably decided. After it is created, the reason for location selection is irrelevant.
Who is responsible for easement maintenance?
An easement holder is required to make any necessary repairs to the easement.
What is a profit?
A profit is an agreement that entitles its holder to enter the servient estate to extract resources, such as timber, oil, or quarried material.
What is a license?
A license is a permission to enter another’s land for some identified narrow purpose. A license need not be in writing and is freely revocable at the will of the licensor, unless estoppel applies to bar revocation.
What are recording statutes?
Recording Statutes (Race, Notice, Race-Notice) determine priority of ownership based on recordation.
In a Race Jurisdiction, the first to record wins, regardless of notice.
In a Notice Jurisdiction, a bona fide purchaser (BFP) prevails over prior unrecorded interests if they lacked notice.
In a Race-Notice Jurisdiction, a BFP must both lack notice and record first to take priority.
What is a bona fide purchaser?
A Bona Fide Purchaser is one who pays value for property without actual, inquiry, or constructive notice of prior claims.
What is the shelter rule?
The Shelter Rule allows a party who takes from a BFP to assume the BFP’s rights, even if they would not independently qualify as a BFP.
How does a purchaser recieve notice?
Notice to a Purchaser (Actual, Inquiry, Constructive) determines whether a buyer is charged with knowledge of prior interests.
Actual Notice arises when a buyer has personal knowledge of a prior interest.
Inquiry Notice exists when visible circumstances or facts would prompt a reasonable buyer to investigate further.
Constructive Notice occurs when a prior interest is properly recorded in public records, even if the buyer did not check them.
What is the doctrine of merger?
Applies when a person acquires both a greater and lesser estate, causing the lesser interest to merge into the greater and extinguish unless a contrary intent is expressed.
What SIX covenants do general warranty deeds present?
SEW-FAR
Present Covenants (SEW) – Breached at conveyance
Seisin – Grantor owns the estate.
Encumbrances (Against) – No undisclosed liens or restrictions.
Warranty of Right to Convey – Grantor has the authority to transfer.
Future Covenants (FAR) – Breached after conveyance
Further Assurances – Grantor will fix title defects.
Actual Quiet Enjoyment – Grantee won’t be disturbed by superior title claims.
Right to Warranty – Grantor will defend against lawful title claims.
What is a quitclaim deed?
A Quitclaim Deed transfers only the interest the grantor currently holds, with no title warranties.
What is a special warranty deed?
A Special Warranty Deed only warrants against title defects arising during the grantor’s ownership.
What is the covenant against encumbrances?
The Covenant Against Encumbrances ensures the property is free from undisclosed mortgages, liens, or restrictions unless expressly stated.
If an encumbrance is found after the sale, damages are equial to the difference in the value of property due to the encumbrance.
What are the elements of adverse possession?
Elements of Adverse Possession (Actual, Open, Notorious, Exclusive, Hostile, Continuous).
What is the rule against perpituities?
The Rule Against Perpetuities (RAP) voids a future interest if it may vest more than 21 years after the death of a life in being at the time the interest was created.
What are life tenant’s responsibilities?
Life Tenant Duties:
Must avoid waste and maintain the property by paying taxes, mortgage interest, and repairs.
Not liable for the mortgage principal (remainderman’s duty).
Entitled to all income generated by the land.
No tax obligation if the land is vacant and unproductive
How do you determine Mortgage Priority & Foreclosure Order of Payment ?
First in time, first in right, unless a purchase money mortgage or subordination agreement applies.
Foreclosure proceeds pay (1) sale costs, (2) foreclosing mortgage, (3) junior liens in order, and (4) surplus to the borrower.
How can you convey a deed?
Requires execution, delivery, and acceptance.
Execution: Deed must be in writing, identify parties, be signed by the grantor, and describe the property adequately.
Delivery: Grantor must show present intent to transfer (physical transfer not required).
What does the Fair Housing Act prohibit?
Prohibits landlords from discriminating against tenants based on race, color, religion, sex, national origin, disability, or familial status.
Discriminatory practices include refusing to rent, imposing different lease terms, or misrepresenting unit availability.
What is required for land sale contracts?
Requires a writing, identifying the parties, signed by the party to be bound, descritption of the land or parcel, and state the consideration.
What is zoning non-conforming uses?
A legally existing land use that does not comply with new zoning laws but may continue unless abandoned, destroyed, or phased out by an amortization period.
What are zoning variances?
Grants exceptions to zoning rules.
Use Variance – Allows a prohibited land use if unnecessary hardship is proven.
Area Variance – Allows deviation from physical zoning rules (e.g., setbacks, height) if practical difficulties exist and public welfare is not harmed.
Is spot zoning ?
Spot Zoning occurs when a zoning ordinance unreasonably singles out a specific parcel for different treatment, benefiting or burdening the owner unfairly. Spot zoning is invalid if it lacks a rational basis or conflicts with a comprehensive zoning plan.
What are the five ways a covenant or servitude may terminate?
SCREaM
Statute
Condemnation
Release
Express Terms
a -BLANK
Merger
