Real Property Flashcards
Fee Simple Absolute
Property Estates
Freehold Estate that can be sold, divided, devised, or inherited and has or can have an infinite duration (presumed absent express contrary intent).
Fee Tail
Property Estates
Freehold Estate - estate where inheritability is LIMITED to lineal heirs. MUST state expressly (i.e. “to A and the HEIRS OF HIS BODY”).
Life Estate
Property Estates
Freehold Estate - an estate interest measured by the life of a person. (i.e. “to A for life.”)
- Life Estate Tenants are held to the Doctrine of Waste (voluntary, permissive, and ameliorative)
- Life Estate Pur Autre Vie - life estate measured by the life of another (instead of the tenant). (i.e. “to B for the life of A.”)
Voluntary Waste
Property Estates
Harm to the property done by the tenant, that results in a loss of value.
-Exploitation of natural resources limited to when i) land is suited to such use, ii) necessary for repair or maintenance, or iii) permitted by the Grantor (can be implied).
Permissive Waste
Property Estates
Failure to maintain the property by the tenant. Must do the following:
1) Repairs - to preserve in a reasonable state.
2) Taxes - must pay ordinary taxes.
3) Mortgageable Debt - must pay interest (not principle)
4) Insurance - NO OBLIGATION TO PAY
Ameliorative Waste
Property Estates
Altering of the property by the tenant, that results in a GAIN in value. Only occurs when CHANGED CONDITIONS make the property RELATIVELY WORTHLESS, then tenant makes the changes.
Reversion
Property Estates
Future Interest in the Grantor Only - A defeasible fee that automatically reverts to the Grantor upon the happening of a stated event (look for “…for so long as…”, “…while…”, “…during…”, or “…until…”).
The possibility of Reverter is kept by the Grantor for as long as in existance. It is transferable, descendible, and devisable.
Right of Re-Entry
Property Estates
Future Interest in the Grantor Only - A defeasible fee simple subject to condition subsequent. It is held by the Grantor as a reserved right to terminate the estate upon the happening of a stated event (look for “…upon condition that…”, “…provided that…”, “…but if…”, “…if it happens that…”).
MUST be EXPRESSLY preserved!
Vested Remainder
Property Estates
A future interest held by a third party Grantee, that follows the natural expiration of the preceeding estate, and is expressly created. No conditions can exist for it to be deemed vested.
-Vested Remainder Subject to Open - no conditions, but estate will pass to a still open Class (i.e. “children, heirs”).
Executory Interests
Property Estates
Future Interest in the Grantee Only - A defeasible fee that terminates upon the happening of an event, then passes to a third party (the Grantee).
(i.e. “to A and heirs, SO LONG AS LIQUOR IS NOT SOLD ON THE PREMISE; in that event, to B.”)
Class Gifts
Property Estates
If a grant is to a group of persons that can change over time (i.e., to heirs, children), the RULE OF CONVENIENCE applies:
the class CLOSES when ANY CLASS MEMBER is entitled to distribution (i.e. all children collect at same time, so predeceased kids wont take)
Rule Against Perpetuities
Property Estates
A future interest is INVALID if possible that the interest CAN vest after every named party in the grant dies, plus 21 years. Applies to Executory Interests, Contingent Remainders, and Vested Remainders Subject to Open.
- If applicable, strike the invalid phrase and re-analyze the grant.
- Charity-to-Charity EXCEPTION: Both Transferees MUST be charities in order to qualify.
- Class Gift RAP issue –> if grant puts an age contingency beyond 21 years old, RAP makes it invalid. (i.e. To A for life, then A’s heirs that reach age 30)
Joint Tenancy (Property Tenancy)
Formed if TIPP Test is satisfied (PLUS clarity of grant):
- Unity of TIME
- Unity of TITLE
- Unity of INTEREST
- Unity of POSSESSION
(ie. in joint tenancy WITH RIGHTS OF SURVIVORSHIP) must be express!!!
Severance of Joint Tenancy
Property Tenancy
An INVOLUNTARY termination of the joint tenancy relationship severs the relationship.
-Severs ONLY survivorship for the party that acts. Others still have survivorship rights to each other’s share in property.
Tenancy In Common
Property Tenancy
Each interest is freely alienable (do what you want). Each tenant is entitled to use of the whole.
Tenancy By the Entirety
Property Tenancy
Between a Husband and Wife. Right of Survivorship to spouse.
Co-Tenancy Issues
Property Tenancy
Possession - each has a right to the whole.
Accountability (req if):
- Ouster - if keeping co-tenant off or exclusive possession
- Agreement to Share
- Lease to a third-party
- Depletion of natural resources
Contribution (paying fair share):
- Improvements - can be recouped but not required
- Repairs - only if necessary
- Mortgage payment - if signed by ALL co-tenants
- Taxes -
Tenancy for Years
Property Tenancy
Non-Freehold Estate (Landlord Tenant estate) - tenancy that continues for a FIXED period. Must be in writing if more than one year (SoF).
Periodic Tenancy
Property Tenancy
Non-Freehold Estate (Landlord Tenant estate) - tenancy that continues for successive periods (i.e., month to month), until terminated by proper notice to either party.
-Automatically renews without express termination. Valid termination is one full period in advance.
Tenancy At Will
Property Tenancy
either party can terminate this tenancy at any time, if NOTICE is given and REASONABLE TIME to vacate.
Tenancy At Sufferance
Property Tenancy
ONLY FOUND when tenant WRONGFULLY holds over. Landlord has two options:
1) Sue to Evict, or
2) Impose a New Periodic Tenancy
-Landlord may raise rent if given notice BEFORE expiration of the lease.
Duties of the Tenant
Property Tenancy
1) Duty to Pay Rent
2) Duty to Maintain Premises (use WASTE rules)
Remedies for Landlord if Tenant Breaches
Property Tenancy
If Tenant Fails to Pay Rent - landlord may sue for damages AND terminate lease.
If Tenant Abandons - Landlord can EITHER 1) accept surrender and terminate, OR 2) make REASONABLE EFFORTS to relet, and hold tenant liable for intermediate losses.
Duties of the Landlord
Property Tenancy
1) Duty to Deliver Premises
2) Duty regarding CONDITION - MAJ is implied warranty of fitness, which means must provide a property that is reasonably suited for residential use; COMMON LAW - no duty.
3) Implied Covenant of Quiet Enjoyment - breached by Total, Partial, or Constructive Eviction.
Remedies for Tenant if Landlord Breaches
Property Tenancy
If Landlord Breaches CONDITIONS duties
1) Tenant can move out and end the lease
Evictions
Property Tenancy
Breach of an Implied Covenant of Quiet Enjoyment:
1) Total Eviction
2) Partial Eviction - landlord physically excludes tenant from part of premises.
3) Constructive Eviction
i) Landlord’s failure,
ii) Substantial Interference,
iii) tenant gives notice and reasonable time to repair, and
iv) tenant then abandons within a reasonable time.
Assignment
Property Tenancy
A transfer of ALL of a premise under a lease.
Tenant is liable for rent to Landlord if their is:
- PRIVITY OF ESTATE or
- PRIVITY OF CONTRACT
–>Covenants and Liabilities typically run with the land if they TOUCH AND CONCERN THE LAND (if Tenants or Landlords change, both run)
Sublease
Property Tenancy
A transfer of PART of a premise under a lease.
–> SUBLESSOR KEEPS THE ESTATE (and therefore covenants and liabilities) Sublessee never has privity of estate.
Tenant is liable for rent to Landlord if their is:
- PRIVITY OF ESTATE or
- PRIVITY OF CONTRACT
Non-Assignment Clauses
Property Tenancy
Valid on their face, but will be strictly construed.
-A violation of the clause means the action is voidable by the landlord.
-Can be waived EASILY!!! Implied acts (cashing checks) or one-time oral waiver can lead to complete waiver.
Condemnation (Land taken by Eminent Domain)
Property Tenancy
Partial Taking by the state - tenant still has to pay rent for remaining portion of property, but can be
Complete Taking by the state - extinguishes the lease and excuses tenant from rental duties.
Special Torts of Landlord/Tenant Law
Property Tenancy
Five Exceptions to lack of liability for Landlord for injuries on premise:
1) Latent Defects - must disclose, but no repair needed
2) Defects on Short Term Lease of a Furnished Dwelling (3 months or less)
3) Common Areas under Landlord’s Control - must use reasonable care.
4) Negligent Repairs by Landlord - reasonable care.
5) Public Use - public is using, tenant wont fix, and landlord knows of the major defect
Fixtures
Property Tenancy
- TEST: degree of harm from removal (but express agreements control)
- RESIDENTIAL– factors: (1) Nature of chattel; (2) Intent of annexer; (3) Mode of annexation; (4) Damage from removal
- COMMERCIAL – Trade Fixture doctrine: chattel annexed for pecuniary gain is removable before lease expires, unless structural attachment.
Easement Appurtenant
Property Tenancy
An easement that DIRECTLY BENEFITS the USE and enjoyment of a SPECIFIC PARCEL of land.
Easement In Gross
Property Tenancy
An easement where there is NO DOMINANT estate because there is only ONE PROPERTY, which is BURDENED.
Creating an Easement
Property Tenancy
a. IMPLIED GRANT: created in favor of grantee upon severance of land once formerly owned as whole
i. Apparent from reasonable inspection;
ii. Used continuously; and
iii. Reasonably necessary to use
b. IMPLIED RESERVATION: same as above, but strict necessity
c. EXPRESS GRANT OR RESERVATION: written grant
d. ESTOPPEL: Intent to create + Detrimental reliance + Failure due to SoF
e. NECESSITY: Previous common ownership + Strict necessity + Substantially impracticability w/out easement
f. DEDICATION: manifesting intent to deed to public or public use
g. PRESCRIPTION (COAH) – CL: 20 years
Transfer of an Easement
Property Tenancy
Transfer of the BENEFIT of the easement:
- Easement Appurtenant - transferred automatically - Easement in Gross - personal easements in gross CANNOT be transferred.
Transfer of the SERVIENT ESTATE:
-successor-in-interest must have been put on NOTICE: either ACTUAL, CONSTRUCTIVE (recorded), or INQUIRY (physical inspection would reveal).
Easement Use, Repair, and Termination
Property Tenancy
USE: Terms always control. If silent, easement is presumed perpetual, and use is presumed a reasonable development of dominant estate.
REPAIR: the benefit holder is responsible for repair.
TERMINATION: terminated upon
1) MERGER of properties,
2) a DEED of release,
3) ABANDONMENT (show of manifestation),
4) by ESTOPPEL (i) representation of relinquishment and (ii) holder relies,
5) PRESCRIPTION, or
6) ending of a NECESSITY.
Licenses
Property Tenancy
A contract right involving a limited privilege to use land in the possession of the licensor.
- Can always be revoked.
- Tickets are always licenses.
- Irrevocable licenses are created by i) easements failing the SoF, or ii) money spent on property in furtherance of an oral license.
Profits
Property Tenancy
a grant giving the right to take away natural resources. An implied easement is always granted with a profit grant.
Covenant Running With the Land
Property Tenancy
A WRITTEN promise imposing a restriction on the USE of land, that plaintiff pursues DAMAGES.
Must establish:
1) INTENT - that the restriction runs with the land
2) NOTICE - to the person AGAINST whom the enforcement is sought. Can be Actual, Constructive (recorded), or Inquiry (physical inspection would reveal)
3) TOUCH and CONCERN the land - would performance make land more valuable or useful.
4) PRIVITY - horizontal or vertical
BENEFITS requires: Intent, Notice, Touch/Concern, Horizontal and Vertical Privity
PROMISES require: Intent, Notice, Touch/Concern, and ONLY Vertical Privity
Equitable Servitudes
Property Tenancy
A WRITTEN promise imposing a restriction on the USE of land, that plaintiff pursues an INJUNCTION.
Must establish:
1) INTENT - that the restriction runs with the land
2) NOTICE - to the person AGAINST whom the enforcement is sought. Can be Actual, Constructive (recorded), or Inquiry (physical inspection would reveal)
3) TOUCH and CONCERN the land - would performance make land more valuable or useful.
Adverse Possession
Property Tenancy
1) Continuous
2) Open and Notorious
3) Actual Possession
4) Hostile
Common Law 20 years SoL runs
Tacking is allowed so long as
i) NO GAPS in possession, or
ii) NO Infancy, Incarceration, Insanity at the START of the adverse possession (can delay START of clock).
Reciprocal Negative Servitudes
Property Tenancy
Landowner w/out restrictive covenant in their deed will be held to restrictive covenants in other deeds if:
i. General scheme of residential development which included landowner’s lot; and
ii. Landowner had notice (AIR – Actual, Inquiry (reasonably ascertainable), Record)
Defenses and Termination of Restrictive Covenant
Property Tenancy
Defenses: Unclean Hands, Acquiescence, Laches, Estoppel.
Termination: Deed of Release, Merger, CHANGED CONDITIONS (if ALL lots affected, use restriction will be eliminated).
Statute of Frauds
Property Conveyance/Recording
Any Contract for sale of ANY interest in real property must be IN WRITING, and SIGNED BY the PLAINTIFF:
Writing Must:
1) describe the property,
2) name the parties, and
3) state the price.
Doctrine of Part Performance
Property Conveyance/Recording
An exception to the SoFs:
1) the oral contrat must be certain and clear; and
2) the acts of part performance must clearly PROVE UP the existance of a contract.
Doctrine of Equitable Conversion
Property Conveyance/Recording
ONCE CONTRACT IS SIGNED, equity transfers to the buyer.
IF either party dies before closing, specific performance still is effected.
Marketable Title
Property Conveyance/Recording
Title that a reasonably prudent buyer would accept (minor defects are okay). Must provide three things:
- Proof of Title
- Title Free of Encumbrances
- Valid Legal Title as of Closing Date
If defective, Buyer must allow Seller reasonable time to cure; if no cure, remedies are:
- Rescission
- Damages
- Specific Performance - typically lower the purchase price to reflect the defects.
Remedies to Breach of Contract
Property Conveyance/Recording
Damages: measure is difference between contract price and value of property as of date of breach.
Specific Performance: available to BOTH buyer and seller.
Defects as of date of closing?
Common Law - Caveat Emptor (buyer beware)
Modern Rule - Implied Warranty of Fitness - if seller actively concealing defect, can be held liable. Duty to disclose. (ONLY FOR NEW HOUSING SALES)
Deed Requirements
Property Conveyance/Recording
Must be Executed and Delivered:
1) Must satisfy SoF (with seller’s signature, and accuracy)
2) Delivery is determined based on seller’s INTENT to pass title (no physical transfer required).
Conditional Delivery
-Future Interest’s are VALID (“…to A but not until I die…”)
-delivery conditioned on payment are VALID if 1) delivered to an escrow, 2) escrow instructed to deliver upon condition satisfied, then 3) SELLER CANNOT get it back.
Covenants of Title
Property Conveyance/Recording
6 Total, 3 present, 3 future: Covenants of…
Present covenants (do NOT run with land)
- Seisin
- Right to Convey
- Against Encumbrances
Future covenants (run with land)
- Warranty
- Quiet Enjoyment
- Further Assurances
***Estoppel by Deed: Grantee can sue to compel transfer, but a subsequent BonaFide Purchaser cuts of earlier buyer’s rights.
Conveyance by Will
Property Conveyance/Recording
Ademption - if will names a specific property, and the property is no longer owned at time of death, it is adeemed (this does not apply if gift was “in escrow” at time of death).
Exoneration - if a lien is on property, the devisee receives it SUBJECT to the lien (typically a mortgage).
Lapse/Anti-Lapse Statutes - if the beneficiary dies before testator, look for a statute, if none, common law says the gift is lapsed.
Recording Acts
Property Conveyance/Recording
Race: Whichever party records first prevails.
Notice: If a BFP has NO NOTICE of a prior purchase, BFP prevails.
Race-Notice: A BFP prevails only if they had NO NOTICE of a prior purchase AND RECORDED FIRST.
Bona Fide Purchaser
Property Conveyance/Recording
A purchaser of property for value, who takes without notice. If received notice, NOT a BFP
Types of Notice:
Actual - actual awareness from any source
Record - knowledge from a title search
Inquiry - knowledge attainable from a reasonable inspection of the land
Mortgagee/Mortgagor
Mortgagee = creditor (bank)
Mortgagor = borrower/debtor/landowner
Lien Theory jurisdictions give ownership rights to mortgagor, and a lien on property to mortgagee.
Title Theory (minority) the mortgagee (creditor) retains title during the loan period.
Transferability of a Mortgage
Mortgagees may transfer a mortgage by endorsing and delivering note.
Foreclosure
Upon default, the mortgagee can satisfy the debt through a foreclosure action.
REDEMPTION - A mortgagor may redeem property prior to the foreclosure sale by tendering amount due (some jurisdictions allow buy-back AFTER sale).
Junior Interests - terminated by foreclosure of a senior interest, and are necessary parties (if not a party, remain with land).
Senior Interests - remains unaffected by junior foreclosure, future buyers take land subject to senior mortgage.
Lateral & Subjacent Support
Ownership of land includes the right to have land supported in it’s natural state by adjacent lands.
Can bring a negligence or strict liability claim; use strict liability if building collapses due to excavation.
Riparian Rights
Water belongs to those who own land bordering the watercourse.
- Reasonable Use theory (majority): can be liable to other owners if use unreasonably interferes with other’s use.
- Natural Flow Theory (minority): if use results in substantial or material reduction in other’s water quantity or quality, can be liable.
Surface Water Theories
Groundwater - water found beneath the surface is not confined to a known channel.
Surface water - can use as the owner wants, but can be liable for interupting it’s flow:
- Natural Flow Theory: cannot UNREASONABLY ALTER natural drainage.
- Common Enemy Theory: can do anything unless it damages other’s land.
- Reasonable Use Theory: balance between utility of use and gravity of harm.
Zoning
Zoning VARIANCES - If landowner shows 1) undue hardship and 2) no negative impact, can receive exemption from zoning restrictions.
Nonconforming Use - When a govt changes a zoning ordinance that eliminates property use, must receive amortization payment for it.
Exactions - Govt may demand money from private use of property that places a burden on public services (bus, roads, etc.) Must have a NEXUS between use and burden, and PROPORTIONALITY that is reasonable.
