Real Property Flashcards
The future interest following a life estate or term of years is a ___________ if held by the grantor.
Reversion
A fee simple determinable (“fee on limitation” in New York) is followed by a ________________.
Possibility of reverter (“right of reverter” in New York).
A fee simple subject to condition subsequent (“fee on condition” in New York) is followed by a ________________in the grantor
Right of entry
For a fee simple subject to an executory limitation, the third party’s interest is called an __________.
Executory interest (“remainder subject to a condition precedent” in New York).
A remainder is contingent if…
(1) It is left to an unascertained person. OR
(2) It is contingent on some event occurring, other than the natural termination of the prior estate.
Three types of vested remainder
(1) Indefeasibly vested
(2) Vested subject to compete divestment
(3) Vested subject to open
What are the requirements for a covenant?
(1) in writing
(2) intent that the duties run with the land
(3) touch and concern the land
If subsequent purchasers, need:
(4) Notice of the covenant (actual, constructive, or inquiry)
(5) horizontal privity (estate and the covenant are contained in the same instrument)
(6) vertical privity (unbroken chain of ownership from the original parties).
How do you terminate a covenant?
Same ways as an easement
abandonment: affirmative action that shows clear intent to relinquish covenant.
What are the requirements for a valid land sale contract?
(1) in writing
(2) signed by the party to be charged
(3) contains all the essential terms
Exception for equitable estoppel if one party detrimentally relies.
What is the “implied covenant of marketable title”?
Promises title free from unreasonable risk of litigation. Implied in In every contract for sale of real property.
A breach of the covenant gives the buyer the right to terminate the contract. But if the defect is not the fault of the seller, damages are limited to recovering money paid out.
How can you oust a co-tenant?
Express ouster: Communicate intention to exclude or deny co-tenant of his rights + 10 year adverse possession
Implied ouster: Can imply ouster if 10 years of exclusive possession by the co-tenant + 10 years of adverse possession. (20 total)
What is an “equitable servitude”?
An equitable servitude is a nonpossessory property right created when:
(1) there is an intent that a land use restriction is to be enforceable not only by parties to the agreement but also by their successors-in-interest;
(2) the person against whom the servitude is to be enforced has actual, constructive, or inquiry notice of the servitude; AND
(3) the servitude touches and concerns the land
What is the doctrine of exoneration of liens?
Devisee of real property is entitled under the doctrine of exoneration of liens to have any outstanding balance of a mortgage or other encumbrance on the property to be paid from the remaining assets of the testator’s estate.
What is a “fee simple determinable”? And what language is used to create it?
Fee simple limited by specific durational language. Eg., “so long as,” “while,” “during,” “until.”
What is a “fee simple subject to condition subsequent”? And what language is used to create it?
Fee simple limited by specific conditional language. E.g., “but if,” “provided that,” “on the condition that.”
What are the three types of fees?
(1) fee simple
(2) fee simple determinable
(3) fee simple subject to condition subsequent
What are the three types of waste?
(1) affirmative waste = voluntary conduct that decreases value of the land
(2) permissive waste = neglect that causes decrease in value of land
(3) ameliorative waste = tenant changes the use of property and increase the value of property
When does the doctrine of waste apply?
Look for simultaneous interests in land + change in value of property. Including:
(1) present estates vs. future estates
(2) landlord vs. tenant
(3) co-tenant out of possession vs. tenant in possession
(4) mortgagee vs. mortgagor
What are the three kinds of concurrent estates?
(1) tenancy in common
(2) joint tenancy
(3) tenancy by the entirety
What are the requirements for a tenancy in common?
Concurrent owners have separate but undivided interests in the property. (I.e., each has a right to possess the whole.)
What are the requirements for a joint tenancy?
Four Unities:
(1) Possession (equal right to possess the whole)
(2) Interest (tenants have equal share of ownership)
(3) Time (tenants received interest at the same time)
(4) Title (tenants received ownership from the same instrument)
What destroys a joint tenancy?
(1) any inter vivos transfer by one of the tenants
(2) mortgage in a title theory state, but not in a lien theory state
(3) Leasing the property (in some jurisdictions)
What are the requirements for a tenancy by the entirety?
Four Unities:
(1) Possession (equal right to possess the whole)
(2) Interest (tenants have equal share of ownership)
(3) Time (tenants received interest at the same time)
(4) Title (tenants received ownership from the same instrument)
PLUS:
(5) tenants are married
What is different in a tenancy by the entirety from a joint tenancy?
Tenants cannot alienate or encumber their share without consent of their spouse.
What is “ouster” between co-tenants?
A co-tenant denies another co-tenant access to the property. Can be implied or express.
Should rents collected from third parties be divided based on the ownership interest of each co-tenant?
Yes. Rent, minus operating expenses, are divided among co-tenants.
Are co-tenants responsible for operating expenses of a jointly owned property?
Yes. Includes taxes or mortgage interest payments. Divided based on ownership share.
Co-tenants can sue for contribution from other co-tenants for payments in excess of their share of operating expenses.
Are co-tenants jointly responsible for repairs?
No. There is no right to reimbursement from co-tenants for necessary repairs. BUT can get credit in a partition action.
Are co-tenants jointly responsible for improvements to jointly held land?
No. No right to reimbursement. But tenant that makes the improvement can get credit in a partition action.
What is a “partition” of a concurrent estate?
Equitable remedy that divides property into distinct portions. Unilateral right, UNLESS tenancy by the entirety = consent of all tenants required.
Courts prefer physical division. But will order sale if (1) not practical OR (2) not fair to all parties.
What are the two kinds of executory interest?
(1) springing executory interest = divests the grantor
(2) shifting executory interest = divests the prior grantee
What is the doctrine of worthier title?
Converts a remainder in the grantor’s heirs to a mere reversion in the grantor.
What is the rule in shelley’s case?
Converts a remainder in the grantee’s heirs to a mere fee simple.
What interests are subject to RAP?
(1) contingent remainders
(2) executory interests
(3) vested remainders subject to open if remainder not closed by rule of convenience
What is a “measuring/validating life” under the RAP?
Person who is…
(1) alive when the interest is created
(2) mentioned or implied by the grant
What is the RAP?
The common-law rule prohibiting a grant of an estate unless the interest necessarily vests no later than 21 years after the death of some person alive when the interest was created.
In general, how does the RAP apply to class gifts? What are the exceptions?
All-or-nothing rule: If the gift to any member of the class is void under RAP, then the gift is void as to all members of the class. The gift is “bad as to one, bad as to all.”
Exceptions:
(1) transfers of specific dollar amount to each class ember
(2) transfers to a subclass that vests at a specific time (e.g., “to the children of B, and upon the death of each, to that child’s issue”)
(3) rule of convenience
What is the “rule of convenience” in RAP?
For purposes of RAP, the class closes as soon as a member of the class is entitled to immediate possession of the estate. This prevents voiding an entire class merely because, e.g., one member will not satisfy RAP.
What are the two exceptions to the RAP?
(1) Gifts from one charity to another charity
(2) Options held by a current tenant to purchase a fee interest in the leasehold
What is the “wait and see” approach to the RAP?
Some jurisdictions wait and see if an interest subject to RAP vests within the perpetuities period.
What are the four types of lease tenancies?
(1) tenancy for years
(2) periodic tenancy
(3) tenancy at-will
(4) tenancy at sufferance
What is a tenancy for years?
Measured by a fixed and ascertainable amount of time. If longer than one year, agreement must be in writing re: Statute of Frauds.
What is a periodic tenancy?
Estate that is on-going for a set period of time, then renews automatically and the end of each period until one party gives notice of termination. Notice must be given before the start of what will be the last period.
What is a tenancy at will?
Tenancy that may be terminated by landlord or tenant at any time, for any reason. No notice required.
If landlord has right to terminate at will, tenant must also get the right. But vice versa is not required.
What is a tenancy at sufferance?
Created when a tenant holds over after a lease has ended. Exists until the landlord evicts the tenant or re-rents the property to the tenant.
During tenancy at sufferance, terms of the prior lease control.
What are a tenant’s two basic duties to the landlord?
(1) pay rent
(2) avoid waste
What are the three situations where a tenant’s duty to pay rent is suspended?
(1) premises are destroyed AND tenant did not cause the damage
(2) landlord completely or partially evicts the tenant
(3) landlord materially breaches the lease
What is “constructive eviction”?
Four elements:
(1) premises were unusable for intended purpose (i.e., breach of covenant of quiet enjoyment)
(2) tenant notifies landlord of the problem
(3) landlord does not correct the problem, AND
(4) tenant vacates premises after reasonable amount of time
What is the “implied warranty of habitability” in a leasehold agreement?
Landlord has an obligation to maintain the property such that it is suitable for residential use. Must avoid conditions that threaten tenant’s health and safety. Breach of housing codes = breach of covenant.
Tenant CANNOT waive.
What are a tenant’s three remedies for breach of implied warranty of habitability?
(1) refuse to pay rent (after notification + reasonable time)
(2) remedy defect and offset costs against rent
(3) defend against eviction
Who has a duty to repair in a residential lease?
Landlord. Tenant must notify landlord of needed repairs. Landlord is not responsible for repairs caused by tenant’s actions.
What is the duty to mitigate in a leasehold? (majority and minority rules)
Majority = If tenant abandons the property or is evicted, landlord has an obligation to mitigate damages by using reasonable efforts to re-rent. minority = landlord has no duty to mitigate damages.
What is a landlord’s duty to deliver possession? (majority and minority rules)
Majority = landlord must give actual/physical possession. Minority = only required to give legal possession
What must landlord’s control in most leases?
(1) common areas
(2) nuisance-like behavior of other tenants
After property is leased, how can a landlord be held liable for negligence to third-parties?
(1) any latent or hidden defects of which the tenant is not warned
(2) faulty repairs completed by the landlord negligently
(3) injuries in common areas caused by landlord’s negligence
