Real Property Flashcards
Fee Simple Absolute
Potentially lasts forever
No direct restraints on transfer of ownership
- except valid first right of refusal
Fee Tail
Common Law- no longer modern presumption
Was device to lock property into grantee’s family “to A and his bodily heirs”
Life Estate
Never measured by time, only by life
Grantee’s life is measuring life
Life Estate Pur Autre Vie
Life estate measured by life of another
Modern rule; if life tenant dies before the measure life dies, life estate passes to estate o deceased life tenant and continues in place until the measureing life dies
Life estate restraints on alientation
Modern rule allows a provision that terminates the life estate if the life tenant attempts to convey away the life estate
Law of Waste
life tenant maintains the estate
maintain is both the maximum and minimum of what tenatn can do to land. maintain means tenant can continue normal use of land, whatever it may be
Voluntary waste
any affirmative action beyond maintenance that causes harm to premises
Permissive waste- Failure to maintain
Life tenant has obligation to make normal repairs but not replacement.
Repair obligation limited to amount of rents and profits received from land, or reasonable rental value if tenant is using the land
Life tenant must pay all taxes, same limitation as above. If they don’t pay could eliminate the future interest
Life tenant must pay interest on mortgage debt but not principal, subject to same limitation as above
ameliorative waste
alters property substantially but increases value of land-
if changed conditions have made property relatively worthless, life tenant can alter property with incurring liability to holder of future interest
Seisin
holder of seisin is the taxpayer
Reversion to grantor
reversion arises whenever grantor coveys less than full durational estate the grantor had
Possibility of reverter to grantor
when grantor conveys a fee simple determinable- could always revert back to grantor. Magic Words: so long as while during until
Right of Re-entry in grantor
Fee simple on condition subsequent title doesn't go back to grantor automatically, grantor must do something to take it back Magic words: provided-however but if on condition that
Vested Remainder in Grantee
Remainder is vested if nothing stands in way of it becoming possessory on th enatural expiration of preceding estate. Grantor keeps nothing.
Contingent Remainder in Grantee
when there is a condition that “b must survive a” or something like that. something must happen before b can possess property. Grantor keeps reversion.
Vested Remainder subject to Open
where remainder interest is conveyed to a group of unnamed persons whose members are not yet fully known, class remains open to allow for future persons, but closes on grantors or measuring life’s death
Executory interests
cuts short the estate that comes before it
But if, then to…
Rule against Perpetuities
no interest will be valid unless it must vest, if it is going to vest at all, withing 21 years after the death of some life in being who was alive at the moment the conveyance was made.
If conveyance violates RAP, just ignore everything that violates rule
Perpetuities Savings Clause
Basically walks the line of 21 years to save grant form violating RAP
Joint Tenancy
Must be present at time of creation:
Unity of time- must take at same time
Unity of Title- must take by same instrument
Unity of Interest- same amount and same kind of interest
Unity of Possession- identical rights of possession
Conveyance must specifically intend joint tennancy
Joint tenancy partition
Voluntary- Lines drawn and party seeking aprition is no longer a joint tenant and just owns their portion outright.
Joint tenancy Severance
Involuntary- occurs when any of four unities is dusturbed- like if someone sells their interest, but cannot be severed by will
Tenancy in Common
only unity of possession required- each co-tenant is entitled to possession of the whole of property.
Default presumption of tenancy.
Can always force partition, and no right of survivorship.
Tenancy by Entirety
yes right of survivorship no right of partition, not severable by unilateral act of one of co tenants Can only be terminated by: Death mutual agreement in writing divorce execution by joint creditor
co-tenant accountability
co tenant does not have to account to another co tenant for his share of the profits, with four exceptions
Ouster
agreement to share
lease of property by co tenant to third party
depletion of natural resources
Tenancy for years
specified time- definite begining and end
anything over one year must be in writing
periodic Tenancy
repeating- estate rolls on and on until one party gives proper notice
also includes holdover tenants
to terminate, 2 criteria:
1: enough time, equal to length of period of tenancy (generally month to month)
2. effective date, must be at end of tenancy, can’t terminate in 6 weeks it is month to month
Tenancy at will
either party can terminate at any time
Duty to maintain premises
tenants covenant to repair- tenant liable for everything, including wear and tear, unlesss agreement expressly excludes.
duties of landlord
deliver possession of the leased premises
modern rule- implied warranty of habitability
Implied coveneant of quiet enjoyment-
implied covenant of quite enjoyment
every lease includes the landlords’ implied promise not to interfere with the tenants quite enjoyment of the leased premises. can be breached by one of the three types of eviction
Three types of eviction
total: landlord threw tenant off premises
partial: landlord excludes tenant from only a part of property
constructive: Landlord fails to provide a service he is required to provide, must be substantial interference to tenant, tenatn must give notice and reasonalbe time to repair, tenant must abandon in reasonable time.
assignment v. sublease
assignment- tenant transfers all lease. Sublease- tenant transfers a part of lease
Privity of estate
exists only between current tenant and current landlord
privity of contract
where there is an agrement between landlord and the particular tenant from whom the landlord seeks to recover rent
waiver of non-assignment clause
non-assignment clause generally enforceable, but if permission given onces it measn non assignment clause is waived altogether- unless landlord states otherwise at time of giving permission
partial condemnation
partial taking does not release tenant from full rent payment
tenant will share in award equal to rent that was to be paid
Complete taking
Tenant does not hae to pay rent
tenant will only share in award to the extent that fiar rental value of property exceeds the amount of rent due under lease
Latent Defects
Landlord Liable- under duty to disclose latent difects which landlord either knows or has reason to know
Short term Lease of furnished dwelling
Landlord Liable- Liable for defects, even if neither knows nor has reson to know of such defects- Less than 3 months is short term
Common Passageways under Landlord’s control
Landlord Liable if failed to exercise reasonable care
negligent repairs undertaken by Landlord
Liable!
Public Use Exception
Liable!
Landlord must know or should know of major defect
Landlord must know or should know tenant will not fix defect
landlord mus know or should know that public will be using premises
Tenant’s tort liabilty
Tenatn always liable to third party invitee for negligent fialure to correct dangerous conditions on the leased premises.
Fixtures
Cannot be removed- Four factors Degree of attachment General Custom Degree of harm to premises on removal Trade fixtures- not considered fixtures
Easement Appurtenant
any time easement directly benefits the use and enjoyment of a specific parcel of land
Easement in Gross
No dominant estate, only one parcel of land involved- utility easement
Creating Easement
Express Grant
Express reservation when selling land
Must be in writing!!!!
Implied Easement
Must be previous use by common owner and:
Continuous
Apparent
Reasonably necessary
Easement by prescription
Like adverse possession Musbe be adverse continuous and uninterrupted and last for statutory period visible and notorious without owners permission
Transfer of Easement w/ servient estate
Three ways successor in interest to servient estate may be put on notice
Actual knowledge or notice
constructive notice- arises from recorded in direct chain of title
inquiry
termination of easement
Merger
Deed of release- in writing and complies with deed formalities
abandonment- must be manifested- non use not sufficient
termination by estoppel
prescription
if created by necessity and necessity no longer there
License
Limited use privilged to use land in possession of licensor
not prop interest
contract of right
Profits
right to go onto land of another and take away a natural resource
like easements
Enforce Restrictive Covenant
intent
notice
touch and concern the land
privity-horizontal and vertical
Adverse Possession
Hostile Exclusive Lasting Uninterrupted Visible Actually- actually possesses
Disabilities w/ adverse possess
Infancy
Incarceration
Insanity
if true owner is suffering from any of these at time period begins, clock for adverse possession doesn’t start
Statute of Frauds
any contract for slae of an interest in real property mus be in writing and signed by one who is sued
description of real prop
names of parties
price
Doctrine of Part Performance
Exception to statute of frauds if
oral contract is certain and clear
acts of partial performance clearly prove up existence of contract
Marketable Title
reasonably proven buyer would acccept- minor defects don’t matter
Proof of title
free of encumbrances
valid legal title as of date of closing
Execution of Deed
Must pass statute of frauds
Must describe land with sufficient accuracy
Delivery of Deed
Grantor just has to intend to deliver deed- doesn’t have to actually do it
Recording a good deed raises presumption of delivery
Delivery must be accepted
Three Present Covenants of Title
Covenant of Seisen
Covenant of Right to convey
Covenant against encumbrances
Three future Covenants
Covenant of Quiet Enjoyment
Covenant of Warranty
Covenant of Further Assurances- mop up
Anti-lapse
modern rule- prevent lapse by allowing gifts to pass to certain relatives of predeceasing beneficiary
Mechanics of Recording
Court clerk files copy of deed in a book
Clerk indexes in Grantor index and Grantee index
Race
notice is irrelevant- rule is whoever rcords first keeps property
Race notice
Protects all subsequent grantees who are BFP for value who took without notice and are first to record.
Notice
protects BFPs for value who take wihtout notice.
Bona Fide Purchaser
purchaser for value who takes without notice- any consideration that is out of pocket is enough to be considered vlaue.
Riparian Rights
REfers to property that borders lake or stream
can use all you need for domestic purposes
but standard of reasoanble use for commercial uses.
