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CA Bar: Elements > Real Property > Flashcards

Real Property Flashcards

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1
Q

Types of Interest

A

(1) Present Possessory Estate Interest; (2) Future Interest; (3) Concurrent Interest; (4) Landlord-Tenant (non-freehold estates); (5) Assignment/Subleases; (6) Non-possessory interests

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2
Q

Ownership - Present Possessory Estate Interest

A

(1) Fee Simple Absolute (FSA); (2) Defeasible Fees; (3) Life Estates (LE)

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3
Q

Fee Simple Absolute

A 
absolute ownership (lasts forever); 
devisable, descendible, alienable
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4
Q

Defeasible Fees

A

(1) Fee Simple Determinable; (2) Free Simple Subject to Condition Subsequent; (3) Fee Simple Subject to Executive Limitation

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5
Q

Fee Simple Determinable

A

ends at stated event, automatically reverts to grantor

  1. Durational - so long as, during, until
  2. Characteristics - devisable, descendible, alienable
  3. Grantor retains possibility of reverter
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6
Q

Fee Simple Subject to Condition Subsequent

A

can be terminated by grantor upon happening of a stated event

  1. To A, upon condition that, or provided that, but if, or if it happens that
  2. Characteristics - devisable, descendible, alienable
  3. Grantor retains right of entry or termination
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7
Q

Fee Simple Subject to Executory Interest

A

ends at stated event, then passes to TP

  1. “T o A but if stated event happens, to B”
  2. Characteristics - devisable, descendible, alienable
  3. Termination is automatic and future interests in third party
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8
Q

Life Estate

A

measured by the life of one or more persons

(1) Life of Grantee;
(2) Life Estate Per Autre Vie;
(3) Waste

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9
Q

LE (life of grantee)

A

“To A for life”

  1. Reversion in grantor or remainder or executory interest in 3rd party
  2. Life tenant entitled to ordinary uses but cannot commit waste
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10
Q

LE (per autre vie)

A

measured by life other than grantee - “A for life of B”

  1. Reversion in grantor or remainder or executory interest in 3rd party
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11
Q

Waste

A

(1) Affirmative / Voluntary
(2) Permissive / Neglect
(3) Ameliorative

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12
Q

Affirmative / Voluntary Waste

A

actual overt conduct that decreases value of estate

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13
Q

Permissive / Neglectful Waste

A

failure to protect / preserve land

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14
Q

Ameliorative Waste

A

change that economically benefits land

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15
Q

Future Interests (Grantor)

A

(1) Possibility of Reverter; (2) Right of Reentry; (3) Reversion

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16
Q

Possibility of Reverter

A

follows fee simple determinable

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17
Q

Right of Reentry

A

power to terminate follows fee simple subject to condition subsequent

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18
Q

Reversion

A

interest when grantor transfers an estate lesser than he had

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19
Q

Future Interests (Grantee or Third Party)

A

remainder (contingent / vested) OR executory interest

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20
Q

Vested Remainders (types)

A
  1. Vested Remainder;
  2. VR Subject to Condition Subsequent; OR
  3. VR Subject to Open
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21
Q

Vested Remainder

A

created in known person, not subject to condition sub

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22
Q

Vested Remainder Subject to Condition Subsequent

A

remainderman’s interest could be cut short by cond sub

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23
Q

Vested Remainder Subject to Open

A

remainder’s interest subj to diminution b/c more can join

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24
Q

Contingent Remainders (issues)

A

(1) Rule of Destructibility; (2) Merger Rule; (3) Rule in Shelly’s Case; (4) Doctrine of Worthier Title

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25
Q

Contingent Remainder

A

created in unknown person, sub to cond precedent, or both

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26
Q

Rule of Destructibility

A

(CL) condition remainder destroyed if condition at time E ends. Results in FS absolute. (Today) - rule gone, heirs hold E subject to springing exec interest

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27
Q

Merger Rule

A

destroy contingent remainder when one acquires all present & future interests except contingent remainder

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28
Q

Rule in Shelly’s Case

A

remainder to only grantee’s heirs of a life estate in grantee is not recognized; heir’s interest abolished, grantee takes in fee simple

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29
Q

Doctrine of Worthier Title

A

remainder in grantor’s heirs becomes reversion in grantor

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30
Q

Executory Interests (types)

A

(1) Shifting Exec Interest; OR

(2) Springing Exec Interest

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31
Q

Shifting Executory Interest

A

3rd person’s interest cuts short interest in other

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32
Q

Springing Executory Interest

A

TP’s interests cuts short interest in grantor or heirs

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33
Q

Rule Against Perpetuities (RAP)

A

certain future interests void if there is any possibility that interest vests more than 21 years after death of a measuring life in being at the time of creation

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34
Q

RAP (applicable to)

A

contingent remainders, executory interests, vested remainders subject to open (class gifts), options to purchase (not attached to leasehold), rights of first refusal, and powers of appointment

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35
Q

RAP Reform

A

RAP reform (wait and see) USRAP (90 year vesting period)

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36
Q

Fertile Octogenarian

A

presumption that person is fertile no matter age

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37
Q

Unborn Widow Rule

A

widow not determined until death, so disposition to issue of widow violates RAP

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38
Q

Class Gifts

A

if interest of any class member may vest too remotely, class gift fails

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39
Q

Charities

A

gift from one charity to another will not violate RAP

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40
Q

Concurrent Interests (types)

A

(1) Joint Tenancies;
(2) Tenancy in Common;
(3) Tenancy by Entirety

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41
Q

Joint Tenancy (four unities)

A

“T-TIP” – (1) Time, (2) Title, (3) Interest, and (4) Possession

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42
Q

Joint Tenancy

A

i. When one co-tenant dies, interest automatically passes to surviving JT
ii. Interest is transferrable but not devisable or descendible
iii. Termination - inter vivos sale or conveyance, partition

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43
Q

Tenancy in Common

A

i. descendible, devisable, and transferable with no right of survivorship
ii. each co-tenant owns individual part, right to possess whole, presumption of TIC

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44
Q

Tenancy by Entirety

A

i. marital estate, must be married, right of survivorship

ii. creditors of one spouse cannot reach tenancy and unilateral conveyance invalid

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45
Q

Rights and Duties of Co-Tenants

A

right to possess whole, profit from own use, no waste

i. Must share net from 3rd party rent, profits from exploitation of land
ii. Each co-tenant responsible for fair share of taxes/mortgage interest payments
iii. Entitled to contribution for reasonably necessary repairs, need notice
iv. No affirmative right to improvements unless partition

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46
Q

LL-Tenant (types of leaseholds)

A

(1) Tenancy for Years; (2) Periodic Tenancy; (3) Tenancy at Will; (4) Tenancy at Sufferance

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47
Q

Tenancy for Years

A

fixed length, written, ends at termination date, no notice

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48
Q

Periodic Tenancy

A

continues until termination by notice, express agreement, implication, or operation of law

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49
Q

Tenancy at Will

A

no fixed length, at will, express agree lease can be ended at any time

50
Q

Tenancy at Sufferance

A

hold over doctrine

51
Q

Tenant’s Duties

A

(1) Duty to Repair; (2) Duty to Pay Rent

52
Q

Tenant’s Duties (Duty to Repair)

A

tenant must maintain premises and make ordinary repairs; no waste

fixtures - passes with ownership, T may remove if no substantial harm to premises

53
Q

Tenant’s Duties (Duty to Pay Rent)

A
  1. T breaches in possession, LL evict thru courts, continue relationship, sue for rent
  2. T out of possession, LL may - 1) Treat T’s abandonment as surrender, 2) ignore abandonment, hold T responsible for unpaid rent, 3) re-let, sue for deficiency
54
Q

Tenant’s Duties (Liability to Third Parties)

A

liable even where LL expressly promised to make repairs

55
Q

Landlord’s Duties

A

(1) Duty to deliver at beginning of term; (2) Implied Covenant of Quiet Enjoyment; (3) Implied Warranty of Habitability

56
Q

Implied Covenant of Quiet Enjoyment

A

T entitled to quiet enjoyment without LL interference

57
Q

Evictions (types)

A

(1) Actual; (2) Partial; and (3) Constructive)

58
Q

Actual Eviction

A

LL excludes tenant from premise - T does NOT need to pay rent

59
Q

Partial Eviction

A

LL excludes from part of leased land - T does NOT need to pay rent

60
Q

Constructive Eviction

A

LL’s conduct makes place inhabitable

a. T must vacate w/i reasonable time
b. T can terminate lease and sue for damages

61
Q

Implied Warranty of Habitability

A

residential home must be fit for human living (MR3)

  1. T may Move and terminate lease
  2. T may make reasonable Repairs and deduct costs
  3. T may Reduce or withhold rent
  4. T may Remain in possession, pay rent, and seek damages
62
Q

Retaliatory Eviction

A

LL may NOT terminate lease or otherwise penalize a tenant for exercising his rights

63
Q

Landlord Tort Liability

A

CL (no duty), Modern (liable for common areas, defects, repairs, public use, defects in short term furnished dwellings)

64
Q

Assignment

A

absent express restriction in lease, T transfers entire leasehold interest

i. Assignee stands in shoes of T - privity of estate, liable for covenants run with land
ii. Assignor (original T) / LL no longer in privity of estate but in Privity of K; secondarily liable

65
Q

Sublease

A

absent express restriction in lease, T transfers less than entire leasehold interest

i. Sublessee & LL not in privity of estate or K; sublessor (original T) & LL remain in privity
ii. Sublessee pays rent to sublessor, LL may terminate main lease for nonpayment of rent

66
Q

Adverse Possession

A

If owner does not, within statutory period, take action to eject possessor who claims adversely to owner, title vests in possessor

(note: owner’s disabilities must be present at start of statutory period for it to delay the clock)

67
Q

Adverse Possession (requirements)

A

“COAH” - Continuous, Open and notorious, Actual physical entry, Hostile

68
Q

Non-Possessory Interest (types)

A

(1) Easements; (2) Licenses; (3) Profits; (4) Covenants; (5) Equitable Servitude; (6) Support

69
Q

Easements

A

non-possessory interest, entitles holder to use/enjoy another’s land

70
Q

Easements (types)

A

“PING” - (1) Prescriptive; (2) Implied; (3) Necessary; (4) Grant

71
Q

Prescriptive Easement

A

like adverse possession (requires COAH)

72
Q

Easement by Implication

A

implied from prior/existing use, apparent, reasonably necessary to dominant tenement’s use and enjoyment

73
Q

Easement by Necessity

A

easement of right of way implied if grantor conveys land w/o exit

74
Q

Easement by Grant

A

requires a deed of easement in writing signed by holder of servient tenant

75
Q

Termination of Easement

A

“END CRAMP” - Estoppel, Necessity, Destruction, Condemnation, Release, Abandonment, Merger, Prescription

76
Q

License

A

privilege to enter another’s land, narrow purpose, no SoF, revocable unless estoppel

(note: if no easement, think license)

77
Q

Profit

A

holder may enter servient tenement and take mineral, soil, other resource

78
Q

Covenant

A

written promise to do or not do something

79
Q

Run with the Land (Burden)

A

“WITCH NV” - 1) Writing, 2) Intent, 3) Touch/Concern, 4) Horiz/Vert Privity, 5) Notice

80
Q

Run with the Land (Benefit)

A

“WITV” - 1) Writing, 2) Intent, 3) Touch/Concern, 4) Vertical privity

81
Q

Touch and Concern

A

covenant must relate to the use and enjoyment of land

82
Q

Horizontal Privity

A

original covenanting parties were in a relationship independent of the covenant

83
Q

Vertical Privity

A

non-hostile connection between promisor and successor established by contract, blood relation, or devise

84
Q

Covenants (Termination)

A

written release, merger of land, condemnation of burdened property

85
Q

Convenants (Remedy)

A

money damages ONLY (Real Covenants, Real Cash)

86
Q

Equitable Servitude

A

promise that equity (injunctive relief) will enforce against successor of burdened land who has notice

87
Q

Equitable Servitude (creation)

A

“TWIN” - 1) Touch/Concern, 2) Writing, 3) Intent, 4) Notice

88
Q

Equitable Servitude (Remedy)

A

Injunction / Equitable remedy

89
Q

Implied Equitable Servitude / Common Scheme Doctrine (aka Negative Servitude)

A

original deeds have common restriction, subsequent deeds silent, general scheme in residential development

90
Q

Changed Conditions

A

so pervasive that neighborhood character changes prevent enforcement of equitable servitude

91
Q

Limitations on Interest

A

(1) Eminent Domain; and (2) Zoning

92
Q

Eminent Domain

A

5th/14th AM. Must be for public use and provide just compensation. Total/Partial

93
Q

Partial Taking

A

1) social goals of reg, 2) diminution in value, 3) investor backed expectations

94
Q

Zoning

A

1) non-conforming use requires amortization (gradual elimination of use), 2) special use permit (hospitals, funeral homes, drive-in business), 3) variance (permission to deviate from zoning restriction)

(note - zoning restrictions invalid if no reasonable relation to public welfare)

95
Q

Land Sale Contract (validity)

A

SofF, marketable title reasonable free from defect

SoF - Essential terms in writing–description of the property, parties, price, and manner of payment

Part performance satisfied if buyer does two of three acts: (1) takes physical possession; (2) pays all or substantial part of price; and/or (3) makes substantial improvements

96
Q

Land Sale Contract (Equitable Conversion)

A

once K signed, equity regards buyer as owner and risk of loss placed on buyer

97
Q

Marketable Title

A

every contract contains implied covenant that seller will provide marketable title act closing

unmarketable “DA FEZ” - (1) Defects in record chain of title; (2) Adverse possession; (3) Future interests held by unborn or un-ascertained persons; (4) Encumbrances; or (5) Zoning Restrictions

98
Q

Deed (formalities)

A

(1) Writing, (2) Signed by Grantor, (3) Readily identifies parties and land

99
Q

Deed (delivery)

A

i. Grantor’s intention to make deed presently effective even if possession is postponed;
ii. Delivery satisfied by manual delivery, notarized acknowledgment by grantor, recording, or anything else showing grantor’s intent.

Acceptance by Grantee required.

100
Q

Quitclaim Deed

A

no covenants, conveys whatever interest owner has

101
Q

General Warranty Deed

A

warrants against all defects (present / future covenants)

102
Q

General Warranty Deed (Present Covenants)

A

[“SARs”]

i. Covenant of Seisin - grantor has estate he purports to convey
ii. Covenant Against Encumbrances - grantor warrants no servitudes/mortgages
iii. Covenant of Right to Convey - grantor has authority to grant

103
Q

General Warranty Deed (Future Covenants)

A

i. Covenant for Quiet Enjoyment - grantee will not be disturbed by third party
ii. Covenant of Warranty - must defend/pay against claim of superior title
iii. Covenant for Further Assurances - agrees to act reasonably to protect title

104
Q

Special Warranty Deed

A

1) grantor has not conveyed to someone else 2) estate is free from encumbrances made by grantor

105
Q

Estoppel by Deed

A

if grantor does not own land deeded, when they subsequently get the land, land automatically goes to grantee (except for BFP issues)

106
Q

Recording (types)

A

(1) Notice; (2) Race-Notice; and (Race)

107
Q

Notice

A

subsequent BFP prevails over prior grantee who fails to record

108
Q

Race-Notice

A

subsequent BFP protected only if he records before prior grantee

109
Q

Race

A

whoever records first wins

110
Q

Mortgages

A

mortgagor (Debtor), mortgagee (Lender)

111
Q

Mortgages (Theories on Title)

A

a. Lien (majority) - L holder of security interest only, D is owner of land until foreclosure
b. Title - lender has title until M satisfied/foreclosed. L can get possession at any time
c. Intermediate - D’s title until default, title in L. L can get possession (similar to title)

112
Q

Mortgages (Redemption)

A

any time prior to foreclosure sale, mortgagor can redeem by paying amount due

113
Q

Mortgages (Priorities)

A

Senior interests - not extinguished
Junior interests - must be brought into suit
Purchase money mortgage - becomes super priority

114
Q

Mortgages (Foreclosure Proceeds)

A

1) expenses, 2) law fees/court costs, 3) principal, 4) junior interests, 5) mortgagor

115
Q

Mortgages (Deficiency)

A

not enough money, mortgagee has personal cause of action for deficiency

116
Q

Mortgages (defenses)

A

MAD FIFI4

Material, Alteration, Duress, Fraud in Factume, Incapacity, Illegality, Infancy, Insolvency

117
Q

Riparian Doctrine

A

water to landowners bordering water, reasonable use, liable if not reasonable

118
Q

Prior Appropriations Doctrine

A

water belongs to state, right to divert and use acquired by individuals

a. Rights determined by priority of beneficial use. Norm - “first in time, first in right”
b. Any productive or beneficial use including for agriculture sufficient to create right

119
Q

Groundwater AKA Percolating Water

A

water beneath surface not confined to known channel; surface owner entitled to make reasonable use but must not be wasteful

120
Q

Surface Water

A

water from rain, springs, melting snow which has not reached final resting place

121
Q

Surface Water (Common Enemy Rule)

A

surface water is nemesis

a. Landowner may change drainage, make other changes / improvements to combat flow
b. Some courts prohibit unnecessary harm to others land

CA Bar: Elements (7 decks)

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