Real Property Flashcards
How is a joint tenancy created? What survivorship rights exist with a joint tenancy?
Must have the 4 Unities (Time, Title, Interest, Posession - TTIP) plus exress language needs to be used.
Joint tenants have a right of survivorship
How is a tenancy in common created? What are the survivorship rights?
TIC created when the parties have a right to possess the whole. No survivorship rights.
How is Tenancy By the Entirety created?
Similar to joint tenancy but the parties must be married.
How is a joint tenancy destroyed?
Can be partitioned, gifted, signing a contract of sale, actual judicial sale by creditor, or granting mortgage (in title theory state)
Types of present estates
Fee Simple, Defeasible Fees, Life Estates
Fee Simple - conveyance, restrictions
“To A” or “To A and his heirs”; no restrictions on transfer. Freely aienable, devisable and descendible.
What are the three types of defeasible fees?
Fee Simple Determinable, Fee Subject to Condition Subsequent, Fee Simple Subject to Executory Interest
Fee Simple Determinable - signal language and rules; characterization of future interest
Limited by determinable language such as “so long as”, “while” or “uring. Terminates upon happening of stated event. If grantor retains future interest: possibility of reverter. If future interest is with third party: executory interest.
Fee Simple Subject to Condition Subsequent - signal language, rules, charaterization of future interest
Present fee simple limited by specific conditional language “upon condition that” or “provided that” or “but if”. Terminates ONLy if grantor affirmatively demonstrates intent to terminate
Future interest: grantor reserves the right to terminate the estate upon happening of a stated event; grantor must retain right to reenter.
Fee simple subject to executory interest FSSEI
Present Fee simple that is limited by specific conditional language. AUTOMATICALLY TERMINATES upon happening of stated event and title passes to third party. Future interest: executory interst held by the third party.
Life estate
Interest that exists for the duration of a measuring life.
Rule regarding waste in a life estate
LT holder must deliver property to future interest holder in substantially same condition as when LT took possession.
Types of waste
Permissive - occurs when LT allows premises to deteriorate through neglect, failure to protect property); LT must make reasonable repairs.
Voluntary waste - condition of property substantially changed due to LT’s affirmative action. NOT PERMITTED if it decreases the property value. If no decrease in property value, it’s ca ameliorative waste and ok unless future interest holders have reasonable objection.
Types of Future Interest
Reversion, Possibility of Remainder, right of reentry, remainder, executory interests
Reversion - who holds it? Restrictions?
Held by grantor who transfers life estate or estate for yars w/o conveyance remaining FI to third party. Alienable, devisable, descendible
Posibility of Reverter
FI retained by grantor when FSD conveyed. Alienable, devisable, descendible
Right of reentry
FI retained by grantor after Fee simple subject to condition subsequent granted. Also called right to terminate.
Remainder
FI that b ecomes possessory upon expiration of prior estate
Vested remainder
Remainder that is not subject to any conditions precedent; ascertainable grantee.
Types of vested remainders
Vested remainder subject to open, subject to complete divestment
Contingent remainder
Created in unascertainable grantee or subject to express condition precedent to grantee’s taking
Requirements for Adverse Possession
Actual Possession, Open and Notorious, Hostile, Continuous, Exclusive (including ouster of cotenant), Statutory period E-CHOPS (Continuous, Hostile, Open, Exclusive Statutory period)
Issue Checklist: Has the property been acquired?
Adverse Possession, Land Sales Contracts, Mortgages, Deeds, Wills, Recordin Acts
Issue Checklist: Who has an interest in the land
Estates in Land (Freehold estates, future intersts) Joint ownership (concurrent estates) (joint tenancy, tenancy in common, tenancies by the entirety) ; Landlord tenant (types of tenancies, rent disputes, condition of premises, waste, fixtures, assignment/sublease)
Issue Chiecklist: Limits on Land Use
Easements, real covenants, equitable servitudes, zoning
Requirements for land sale contract
Contract Law Requirement: Statute of Frauds. Writing, parties identified, land identified, signed by ONE to be bound, description of land, statement of consideration. Part Performance: Possession, improvement, payment (2/3)
Does adverse possession create marketable title?
No, but title can be perfected by judicial notice to quiet title
Contracts governing conveyance of interest in real estate
Contract governs until time of closing, then deed becomes operative document.
Marketable Title
Implied promise in every land sale that seller conveys marketable title at time of closing. Marketable title is free of reasonable doubt about seller’s aility to convey.
What is the doctrine of equitable conversion?
Once land contract is signed, buyer is deemed owner even in absence of recording.
What happens if property is destroyed after contract is signed, through no fault of the party?
Buyer bears risk of loss
Remedies for breach of land sale contract
Damages (FMV-K) or Specific Performace (Valid K, K conditions on plaintiff satisfied, inadequate legal remedy, mutuality of performance, feasibility of enforcement, no defenses)
3 types of security interests in land
Mortgage, Deed of Trust, Installment Contract
Mortgage
Mortgage conveys a security interest in land where parties intend for land to be collateral for repayment of monetary obligation. SOF applies. Buyer has possession and title, mortgagee has lien.
Foreclosure
Judicial foreclosure required. Purchase money mortgage cannot get deficiency judgment.
Deed of Trust v. Mortgage
Deed of trust: Debtor is trustor and deed of trust is in possession of a third party. Mortgage: debtor remains in possession
Installment Agreement (security interest in land)
Seller financed. Seller keeps title. If buyer fails to make a payment, seller gets forfeiture and keeps installment agreements.
Deed requirements
In writing, identify parties, identify land, signed by grantor, words of intent. Consideration NOT required.
Types of deeds
quitclaim, warranty, statutory special
Quitclaim deed
Grantor conveys all interst in property; no covenants of title
General Warranty deed
warrants against all defects in title and contains six covenants for title. Present: Seisin, Right to convey, against encumbrances); Future: warranty of title, quiet enjoyment, further assurances
Damages for breach of covenant
Lesser of purchase price or cost to defend title; encumbrances: damages are lesser of difference between amount paid and value of land w/encubrance, or cost of removing the encumbranc.
What is the purpose of recording acts
Provide buyer with way to ensure he is getting good title
Types of recording acts and description
Pure race statutes: First to record wins. Pure notice: Subsequent BFP prevails over grantee that didn’t record. Race-notice: Subsequent BFP that records first prevails over grantee that didn’t record first.
“No conveyance good against subsequent purchasers FOR VALUE and WITHOUT Notice”
Pure notice statute
No conveyance good against subsequent purchasers FOR VALUE and WITHOUT NOTICE, who shall FIRST RECORD”
Race-notice statute. (must record even if you paid and didn’t have notice)
Types of Notice
Actual, inquiry, record
Estoppel by deed
A conveys property he purports to own but doesn’t. Later obtains interest in that realty. Cannot deny validity of conveyance and estate automatically transferred to grantee.
Shelter doctrine
One who takes from BFP stands in shoes of BFP and can prevail against entity BFP would have prevailed against.
Executory Interest and types
Executory interest is interest in favor of future grantee and follows fee simple subject to an executory limitaiton. Two types: Springing (becomes possessory - from owner - without cutting short a prior interest) and shifting (from one interest holder to anothercuts short prior interest).
Rule: Absolute restraints on alienation
Absolute restraints on alientation are void
Rule against perpetuities
No interest is good unless it vests no later than 21 years after some life in being at creation of interest.
Rules: Tenancy for years
Tenancy for ANY fixed period of time. SOF for >1 year. Automatic termination
Rule: Periodic tenancy
automatically continues unless one party gives notice of termination. (Can be created by implication, written notice. Holdover tenant)
Rule: Tenancy at will
tenancy for no fixed period of time.
Rule: Tenancy at sufference
created when tenant wrongfully holds over past the expiration of a valid lease.
Defenses to paying rent
failure to deliver possession, breach of covenant of quiet enjoyment, constructive eviction, destruction of premises,
Condition of rental premises
common law: tenant takes as is. Modern view: landlord maintians common areas, fix latent defects, make repairs non-negligently.
Implied covenant of quiet enjoyment
Landlord will not interfere with tenants use and enjoyment (can’t guarantee 3rd party acts) - constructive eviction, actual eviction, partial actual eviction.
Implied warranty of habilitability
premises must be fit for human habitation. Tenant can terminate and move out, make repairs/deduct cost from rent, pay reduced rent,
Retaliatory eviction
Tenant cannot be evicted or have lease terminated b/c tenant has asserted premises not habitable
fixtures
once moveable chattel that have become so attached to premises they are deemed fixtures.
Transfer of lease - who is liable?
Assignment of entire interest: New tenant personally liable. Transfer of anything less than entire interest: sublease, old tenant liable.
Easement
Right to use land of another
Types of Easement and definition
Appurtenant easement: Benefits one parcel of land. Dominant estate is the benefited parce. Servient estate is the burdened parcel. Tied to particular piece of land. Easement in gross: benefit provided to an individual. “Tim can fish in my pond”.
Ways to create an easement
Express, implication, necessity (requires common ownership, strictly necessary); prescription (adverse possession); estoppel
Maintenance and repair of easements
owner of the servient estate NOT required dto repair/maintain. Dominant owner has implied right to repair.
Transfer of easements
Servient (burdened): runs with land EXCEPT if purchaser is BFP with NO NOTICE. Dominant (benefited) estate: appurtenant - runs automatically. Gross easements - common law not transferable, but modern law they are.
Termination of easements
Estoppel, necessity, destruction, condemnation, prescription (adv possession), abandonment.
Real Covenants
Written promises between parties about how land is to be used. Burden to “run with the land” - writing, intent, touch and concern, horizontal and vertical privity; notice. BENEFIT to run with the land: writing between original parties, intent, touch and convern, vertical privity only. No horizontal privity.
Restrictave Covenants/Equitable Servitudes
Restrictions on use of land. NO provity requirements (property used for residential purposes, paint colors)
Horizontal and Vertical privity
Horizontal privity: original parties must have shared some interest in land apart from covenant itself. Vertical privity: successor now holder of the entire interest that the party making the covenant had.
License
mere right to use the licensor’s land
Water rights - drainage
owner can use all surface water he wants. 3 approaches for getting rid of water - common enemy (can cast water onto neighbors land); natural flow theory (strict liabilty for interfering with flow0; reasonable use doctrine.
Water rights - riparian rights
Reasonable use: each riparian (water abuts property) can use as much as he reasonably needs. CA and some other states use appropriation doctrine - permit to use water.
water rights - ground water
owner can make reasonable use
Lateral and subjacent support rules
Right to lateral support is absolute. Landowner strictly liable if excavation causes adjacent land to subside while in natural state. If land has been improved adjoining landowner strictly liable for excavation only if shown that land would have collapsed in natural state. If not, then maybe negligence.
Chattel
Pam’s essay writing book
Real property
Pam’s house that the bank owns half of
Fake Property
All that shit that Pam spends here money on
Zoning standards
must be reasonable, not arbitrary, and have substantial relation to the public benefits above.
Types of zoning ordinances
Cumulative - hierarchy - land zoned for particular use can be used for stated purpose or highr use. (e.g., house can be build in industrial zone, but factory couldn’t be built in residential zone)
Noncumulative - Land may only be used for purpose for which it is zoned.
Zoning - requirements for waiver
unnecessary hardship
