Real Property Flashcards
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
2
Q
Ownership - Present Possessory Estate Interest
A
(1) Fee Simple Absolute (FSA); (2) Defeasible Fees; (3) Life Estates (LE)
3
Q
Fee Simple Absolute
A
absolute ownership (lasts forever); devisable, descendible, alienable
4
Q
Defeasible Fees
A
(1) Fee Simple Determinable; (2) Free Simple Subject to Condition Subsequent; (3) Fee Simple Subject to Executive Limitation
5
Q
Fee Simple Determinable
A
ends at stated event, automatically reverts to grantor
- Durational - so long as, during, until
- Characteristics - devisable, descendible, alienable
- Grantor retains possibility of reverter
6
Q
Fee Simple Subject to Condition Subsequent
A
can be terminated by grantor upon happening of a stated event
- To A, upon condition that, or provided that, but if, or if it happens that
- Characteristics - devisable, descendible, alienable
- Grantor retains right of entry or termination
7
Q
Fee Simple Subject to Executory Interest
A
ends at stated event, then passes to TP
- “T o A but if stated event happens, to B”
- Characteristics - devisable, descendible, alienable
- Termination is automatic and future interests in third party
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
9
Q
LE (life of grantee)
A
“To A for life”
- Reversion in grantor or remainder or executory interest in 3rd party
- Life tenant entitled to ordinary uses but cannot commit waste
10
Q
LE (per autre vie)
A
measured by life other than grantee - “A for life of B”
- Reversion in grantor or remainder or executory interest in 3rd party
11
Q
Waste
A
(1) Affirmative / Voluntary
(2) Permissive / Neglect
(3) Ameliorative
12
Q
Affirmative / Voluntary Waste
A
actual overt conduct that decreases value of estate
13
Q
Permissive / Neglectful Waste
A
failure to protect / preserve land
14
Q
Ameliorative Waste
A
change that economically benefits land
15
Q
Future Interests (Grantor)
A
(1) Possibility of Reverter; (2) Right of Reentry; (3) Reversion
16
Q
Possibility of Reverter
A
follows fee simple determinable
17
Q
Right of Reentry
A
power to terminate follows fee simple subject to condition subsequent
18
Q
Reversion
A
interest when grantor transfers an estate lesser than he had
19
Q
Future Interests (Grantee or Third Party)
A
remainder (contingent / vested) OR executory interest
20
Q
Vested Remainders (types)
A
- Vested Remainder;
- VR Subject to Condition Subsequent; OR
- VR Subject to Open
21
Q
Vested Remainder
A
created in known person, not subject to condition sub
22
Q
Vested Remainder Subject to Condition Subsequent
A
remainderman’s interest could be cut short by cond sub
23
Q
Vested Remainder Subject to Open
A
remainder’s interest subj to diminution b/c more can join
24
Q
Contingent Remainders (issues)
A
(1) Rule of Destructibility; (2) Merger Rule; (3) Rule in Shelly’s Case; (4) Doctrine of Worthier Title
25
Contingent Remainder
created in unknown person, sub to cond precedent, or both
26
Rule of Destructibility
(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
27
Merger Rule
destroy contingent remainder when one acquires all present & future interests except contingent remainder
28
Rule in Shelly's Case
remainder to only grantee’s heirs of a life estate in grantee is not recognized; heir’s interest abolished, grantee takes in fee simple
29
Doctrine of Worthier Title
remainder in grantor’s heirs becomes reversion in grantor
30
Executory Interests (types)
(1) Shifting Exec Interest; OR
| (2) Springing Exec Interest
31
Shifting Executory Interest
3rd person’s interest cuts short interest in other
32
Springing Executory Interest
TP’s interests cuts short interest in grantor or heirs
33
Rule Against Perpetuities (RAP)
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
34
RAP (applicable to)
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
35
RAP Reform
RAP reform (wait and see) USRAP (90 year vesting period)
36
Fertile Octogenarian
presumption that person is fertile no matter age
37
Unborn Widow Rule
widow not determined until death, so disposition to issue of widow violates RAP
38
Class Gifts
if interest of any class member may vest too remotely, class gift fails
39
Charities
gift from one charity to another will not violate RAP
40
Concurrent Interests (types)
(1) Joint Tenancies;
(2) Tenancy in Common;
(3) Tenancy by Entirety
41
Joint Tenancy (four unities)
"T-TIP" -- (1) Time, (2) Title, (3) Interest, and (4) Possession
42
Joint Tenancy
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
43
Tenancy in Common
i. descendible, devisable, and transferable with no right of survivorship
ii. each co-tenant owns individual part, right to possess whole, presumption of TIC
44
Tenancy by Entirety
i. marital estate, must be married, right of survivorship
| ii. creditors of one spouse cannot reach tenancy and unilateral conveyance invalid
45
Rights and Duties of Co-Tenants
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
46
LL-Tenant (types of leaseholds)
(1) Tenancy for Years; (2) Periodic Tenancy; (3) Tenancy at Will; (4) Tenancy at Sufferance
47
Tenancy for Years
fixed length, written, ends at termination date, no notice
48
Periodic Tenancy
continues until termination by notice, express agreement, implication, or operation of law
49
Tenancy at Will
no fixed length, at will, express agree lease can be ended at any time
50
Tenancy at Sufferance
hold over doctrine
51
Tenant's Duties
(1) Duty to Repair; (2) Duty to Pay Rent
52
Tenant's Duties (Duty to Repair)
tenant must maintain premises and make ordinary repairs; no waste
fixtures - passes with ownership, T may remove if no substantial harm to premises
53
Tenant's Duties (Duty to Pay Rent)
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
Tenant's Duties (Liability to Third Parties)
liable even where LL expressly promised to make repairs
55
Landlord's Duties
(1) Duty to deliver at beginning of term; (2) Implied Covenant of Quiet Enjoyment; (3) Implied Warranty of Habitability
56
Implied Covenant of Quiet Enjoyment
T entitled to quiet enjoyment without LL interference
57
Evictions (types)
(1) Actual; (2) Partial; and (3) Constructive)
58
Actual Eviction
LL excludes tenant from premise - T does NOT need to pay rent
59
Partial Eviction
LL excludes from part of leased land - T does NOT need to pay rent
60
Constructive Eviction
LL’s conduct makes place inhabitable
a. T must vacate w/i reasonable time
b. T can terminate lease and sue for damages
61
Implied Warranty of Habitability
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
Retaliatory Eviction
LL may NOT terminate lease or otherwise penalize a tenant for exercising his rights
63
Landlord Tort Liability
CL (no duty), Modern (liable for common areas, defects, repairs, public use, defects in short term furnished dwellings)
64
Assignment
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
Sublease
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
Adverse Possession
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
Adverse Possession (requirements)
"COAH" - Continuous, Open and notorious, Actual physical entry, Hostile
68
Non-Possessory Interest (types)
(1) Easements; (2) Licenses; (3) Profits; (4) Covenants; (5) Equitable Servitude; (6) Support
69
Easements
non-possessory interest, entitles holder to use/enjoy another’s land
70
Easements (types)
"PING" - (1) Prescriptive; (2) Implied; (3) Necessary; (4) Grant
71
Prescriptive Easement
like adverse possession (requires COAH)
72
Easement by Implication
implied from prior/existing use, apparent, reasonably necessary to dominant tenement’s use and enjoyment
73
Easement by Necessity
easement of right of way implied if grantor conveys land w/o exit
74
Easement by Grant
requires a deed of easement in writing signed by holder of servient tenant
75
Termination of Easement
"END CRAMP" - Estoppel, Necessity, Destruction, Condemnation, Release, Abandonment, Merger, Prescription
76
License
privilege to enter another’s land, narrow purpose, no SoF, revocable unless estoppel
(note: if no easement, think license)
77
Profit
holder may enter servient tenement and take mineral, soil, other resource
78
Covenant
written promise to do or not do something
79
Run with the Land (Burden)
"WITCH NV" - 1) Writing, 2) Intent, 3) Touch/Concern, 4) Horiz/Vert Privity, 5) Notice
80
Run with the Land (Benefit)
"WITV" - 1) Writing, 2) Intent, 3) Touch/Concern, 4) Vertical privity
81
Touch and Concern
covenant must relate to the use and enjoyment of land
82
Horizontal Privity
original covenanting parties were in a relationship independent of the covenant
83
Vertical Privity
non-hostile connection between promisor and successor established by contract, blood relation, or devise
84
Covenants (Termination)
written release, merger of land, condemnation of burdened property
85
Convenants (Remedy)
money damages ONLY (Real Covenants, Real Cash)
86
Equitable Servitude
promise that equity (injunctive relief) will enforce against successor of burdened land who has notice
87
Equitable Servitude (creation)
"TWIN" - 1) Touch/Concern, 2) Writing, 3) Intent, 4) Notice
88
Equitable Servitude (Remedy)
Injunction / Equitable remedy
89
Implied Equitable Servitude / Common Scheme Doctrine (aka Negative Servitude)
original deeds have common restriction, subsequent deeds silent, general scheme in residential development
90
Changed Conditions
so pervasive that neighborhood character changes prevent enforcement of equitable servitude
91
Limitations on Interest
(1) Eminent Domain; and (2) Zoning
92
Eminent Domain
5th/14th AM. Must be for public use and provide just compensation. Total/Partial
93
Partial Taking
1) social goals of reg, 2) diminution in value, 3) investor backed expectations
94
Zoning
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
Land Sale Contract (validity)
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
Land Sale Contract (Equitable Conversion)
once K signed, equity regards buyer as owner and risk of loss placed on buyer
97
Marketable Title
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
Deed (formalities)
(1) Writing, (2) Signed by Grantor, (3) Readily identifies parties and land
99
Deed (delivery)
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
Quitclaim Deed
no covenants, conveys whatever interest owner has
101
General Warranty Deed
warrants against all defects (present / future covenants)
102
General Warranty Deed (Present Covenants)
["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
General Warranty Deed (Future Covenants)
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
Special Warranty Deed
1) grantor has not conveyed to someone else 2) estate is free from encumbrances made by grantor
105
Estoppel by Deed
if grantor does not own land deeded, when they subsequently get the land, land automatically goes to grantee (except for BFP issues)
106
Recording (types)
(1) Notice; (2) Race-Notice; and (Race)
107
Notice
subsequent BFP prevails over prior grantee who fails to record
108
Race-Notice
subsequent BFP protected only if he records before prior grantee
109
Race
whoever records first wins
110
Mortgages
mortgagor (Debtor), mortgagee (Lender)
111
Mortgages (Theories on Title)
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
Mortgages (Redemption)
any time prior to foreclosure sale, mortgagor can redeem by paying amount due
113
Mortgages (Priorities)
Senior interests - not extinguished
Junior interests - must be brought into suit
Purchase money mortgage - becomes super priority
114
Mortgages (Foreclosure Proceeds)
1) expenses, 2) law fees/court costs, 3) principal, 4) junior interests, 5) mortgagor
115
Mortgages (Deficiency)
not enough money, mortgagee has personal cause of action for deficiency
116
Mortgages (defenses)
MAD FIFI4
Material, Alteration, Duress, Fraud in Factume, Incapacity, Illegality, Infancy, Insolvency
117
Riparian Doctrine
water to landowners bordering water, reasonable use, liable if not reasonable
118
Prior Appropriations Doctrine
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
Groundwater AKA Percolating Water
water beneath surface not confined to known channel; surface owner entitled to make reasonable use but must not be wasteful
120
Surface Water
water from rain, springs, melting snow which has not reached final resting place
121
Surface Water (Common Enemy Rule)
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
