Real Property Flashcards
class gifts
when the property is transferred from the grantor
- -if its a will, it’s upon the grantors death
- if its a trust, then immediately
it closes when any member of the class has a present possessory interest in the property.
if you have a child in the womb, that child is included as well
as for the children born later, they get nothing.
whenever you see great grandchildren in a fact pattern
there’s likely to be a RAP problem
holdover tennant
if you are a holdover commercial tenant, you will be locked into a brand new one-year month to month tenancy
if you are a holdover residential tenant you will be a holdover tenant month to month.
restrictive covenents
a huge plot of land that is divided up into a common development scheme with a covenant that was recorded with the original deed. these covenants run with the land. and each plot owner is on notice and can enforce against all other plot owners.
one of the original owners in the development scheme will sell to a new owner, who doesn’t have the restrictive covenant in the deed.
the answer is yes, if there was notice
common suburban scheme developments notice
fixtures
to determine whether a tenant can remove a chattel from a residential piece of property
*** how much damage will be caused to the real property when the chattel is removed.
tenant’s intent when they installed the fixture.
prior to a commercial lease expiring, the tenant can remove all fixtures
escrow period
escrow period==the days between the buyer signing and closing , the buyer is considered to be the equity owner of the property, so if the property is destroyed, the buyer is liable.
the moment you buy a piece of property, buy homeowner’s insurance
equitable conversion
once you enter into a land sale agreement, the buyer or the seller can demand specific performance.
the estate of the developer can demand specific performance that the landowner go through with the sale.
exoneration
?
adverse possession
elements:
1) use the property as if you were the true owner
2) ?
3) ?
4) ?
if there is consent to use the land, there is a license, not adverse possession
incompetency and adverse possession
this applies if the incompetency exists at the outset of adverse possession. the period of adverse possession is tolled until the person turns 18 or becomes competent.
if you become incompetent in the middle of adverse possession, then it doesn’t toll
in order to have a valid conveyance
the deed must adequately describe the land being conveyed
general warranty deed
Present covenants:
1) covenant of seisen– I possess the property
2) the covenant of the right to convey
3) the covenant against encumbrances
Future covenants that run with the land. they can be enforced by the buyer and subsequent buyers as well as against the original grantor:
1) the covenant of quiet enjoyment– the grantor indemnifies the grantee and all subsequent grantees against claims of title brought by third parties
2) covenant of general warranty– no one else has claim to the land
3) covenant of future assurances- grantor will take necessary measures to protect grantee’s title.
purchase money mortgage
a mortgage given to a third party lender (the bank) who is lending money to the mortgagor (buyer of property) to purchase that property.
your purchase money mortgage is going to take precedent over other mortgages on the land.– BUT this mortgage must be recorded and is subject to recording statutes.
Notice jurisdiction
last BFP wins
you get to take advantage of the shelter doctrine, you get to step into the shoes of the BFP.
race notice
“without notice” “first recorded”
the first BFP/mortgagee who records before anyone else is the winner
riparian water rights doctrine (majority)
a riparian is anyone who owns land that abuts a river or stream. the reasonable use rule: DOMESTIC USE trumps commercial and agricultural rule
prior appropriations doctrine (minority)
first person to make sure of the water trumps
a fee simple determinable/ fee on limitation (NY) always has
a possibility of reverter.
To A so long as…
If the stated condition is violated, the forfeiture is automatic.
a fee simple subject to condition subsequent/ a fee on condition
“To A, but if X occurs, grantor reserves the right to enter and retake.
This estate is not AUTOMATICALLY TERMINATED, but it can be cut short at the grantor’s option
Future interest: the right of reacquisition
a fee simple subject to executory limitation
“to A, but if X event occurs, then to B”
Just like the fee simple determinable only now if the condition is broken, the estate is favorably forfeited in favor of someone other than O, the grantor.
Accompanying future interest? The shifting executory interest.
life estate
an estate measured in explicit lifetime tenure,never in terms of years, that would create a leasehold interest
life estate pur autre vie
a life estate measured by someone else’s life
Life tenants and doctrine of waste
1) a life tenant is entitled to all ordinary uses and profits from the land
2) a life tenant must not commit waster or cause injury to the future interest holders entitlements
voluntary or affirmative waste
a life tenant must not consume or exploit natural resources on the property, such as timber, oil or minerals unless on of four exceptions apply. PURGE:
PU PRIOR USE–if the prior tenants exploited the property, the life tenant may continue to do so
R–REPAIRS– life tenant may consume natural resources for repairs and maintenance
G-GRANTED– the life tenant may exploit if granted
E– EXPLOIT– the land is suitable only to exploit
e.g. Blackacre is a quarry
Open mines doctrine
if mining were done on the land before the life estate began: the life tenant may continue to mine but is limited to mines already opened
permissive waste
this occurs when the land falls into disrepair
the life tenant must simply maintain the premises in reasonably good repair.
the life tenant must pay the ordinary taxes associated with the land, based on income or profits from the land, or its fair rental value.
ameliorative waste
the life tenant must not engage in acts that will enhance the property’s value unless: all future interest holders are known and consent.
Future interests
there are three kinds:
- a vested remander (3 kinds)
- a contingent remainder
- an executory interest (2 kinds)
a remainder is vested if:
it is both created in an ascertained person and is not subject to any condition precedent.
a remainder is contingent if:
it is created in an unascertained person OR is subject to a condition precedent, OR both.
the indefeasibly vested remainder
the owner of this remainder is certain to acquire an estate in the future with no strings attached
a condition precedent creates a
contingent remainder
a condition subsequent creates a
a vested remainder subject to complete defeasance
a class is open if
others can still join
a class is closed when
no others can join; whenever any member can demand possession
an executory interest
a future interest created in a transferee that is not a remainder and which takes effect by either cutting short some interest in:
another person (shifting) or
in the grantor and his heirs (springing)
a shifting executory interest
always follows a defeasible fee and cuts short someone other than O, the grantor
e.g. “ To A and his heirs, but if B returns from Canada sometime next year, to B and his heirs.”
B has a shifting executory interest
A has a fee simple subject to B’s shifting executory interest.
a springing executory interest
O conveys to A, if an when he marries. A is unmarried.
A has a fee simple subject to A’s springing executory interest and
O has a fee simple subject to A’s springing executory interest.
In NY, executory interests and contingent remainders are the same and are called
a remainder subject to a condition precedent
joint tenancy
joint tenants must take their interests: T-TIP
T– at the same time
T– by the same TITLE (instrument)
I– identical shares
P– the right to possess the whole
+ Grantor must clearly state the right of survivorship
what are the distinguishing characteristics of the joint tenancy?
1) the right of survivorship– upon death, one joint tenant’s share goes automatically to the surviving joint tenant
2) a joint tenant’s interest is alienable, it is not devisable nor descendable
Severance of joint tenancy
SPAM
S– sale
P– partition
A– and
M– mortgage
A joint tenant can sell or transfer her interest during her lifetime. Even without the other’s knowledge or consent.
One joint tenants sale severs the joint tenancy as to the seller’s interest…
because it disrupts the four unities, thus the buyer is a tenant in common.
