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Barbri > Real Property > Flashcards

Real Property Flashcards

1
Q

FS absolute

A

runs forever and is freely alienable

- courts will presume a FS unless language shows clear intent to create another estate

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2
Q

defeasible fee estate

A

may terminate upon the happening of a condition

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3
Q

fee simple determinable

A
  • look for words that are durational (so long as, until, during, while)
  • ends automatically
  • the holder of the future interest is the grantor and he just waits patiently for present estate to end
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4
Q

fee simple subject to condition subsequent

A
  • look for words that are conditional (but if, provided, however)
  • does not end automatically
  • holder of the future interest is the grantor and he must take steps to reenter
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5
Q

fee simple subject to executory limitation

A
  • ends automatically upon the happening of some condition

- possession passes to another grantee

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6
Q

life estate

A

estate is measured by life

- can create by implication

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7
Q

life estate pur autre vie

A

measuring life is the life of someone other than the life tenant

  • must be expressly created in conveyance
  • if life tenant dies before measuring life, life estate passes to the life tenant’s estate until the measuring life dies
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8
Q

waste

A

if life tenant does more or less than merely maintain the estate, then life tenant is guilty of waste
- !!! depletion of natural resources is waste unless the normal use of the land was to deplete

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9
Q

voluntary waste

A

affirmative act beyond the right of maintenance that causes harm to the premises

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10
Q

permissive waste

A

where tenant has failed to maintain the estate

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11
Q

ways to avoid permissive waste

A
  • make ordinary repairs

- pay taxes

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12
Q

ameliorative waste

A

voluntary waste that occurs when the affirmative act alters the property substantially but increase the value of it
- if changed conditions have made the property relatively useless in its current use, the life tenant can tear it down without liability to the holder of the future interest

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13
Q

future interest

A

present interest in the land with a future right of possession (will come later if at all)

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14
Q

if a grantor holds the future interest the only possible choices of classification are…

A
  • reversion
  • possibility of reverter
  • right of entry
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15
Q

if a grantee holds the future interest the only possible choices of classification are…

A
  • remainders

- executory interests

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16
Q

reversion

A

interest kept by grantor when grantor gives a grantee less than the durational estate the grantor had
- never subject to RAP

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17
Q

possibility of reverter

A

when grantor gives FS determinable grantor keeps a possibility of reverter
- never subject to RAP

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18
Q

right of entry

A

when grantor gives FS subject to conditions subsequent grantor keeps a right of entry

  • grantor must exercise the right of entry to take possession
  • never subject to RAP
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19
Q

vested remainder

A

nothing stands in the way of its becoming possessory on the expiration of the estate that comes before it
- requires ascertainable person and no express condition precedent

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20
Q

vested remainder subject to open

A 
no condition to be satisfied before taking possession but conveyed to a class of people 
- at least 1 member who will take but the size of the share is unknown because the class remains open and future persons may qualify as members of the class
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21
Q

contingent remainder

A

something has to happen or be known before the remainder can become possessory

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22
Q

contingent remainder conditions

A
  • condition must be satisfied before the grantee can be certain of possession
  • grantee is not in existence
  • ID of exact taker unknown
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23
Q

vested remainder subject to divestment

A

taker is IDed but there is a condition subsequent

- condition will be in the clause that is after the clause that creates the future interest in the grantee

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24
Q

executory interest

A
  • operates to cut short the estate that comes before it
  • does not come into possession at the natural expiration of the earlier estate
  • if future interest in grantee cuts short an earlier estate it must be an EI
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25
Q

future interests RAP applies to

A

EI, VR subject to open, contingent remainder

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26
Q

RAP

A

no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest

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27
Q

class gifts and RAP

A

if it is possible that a member of the class could vest outside of the “LIB + 21 years” time period then all interests are void

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28
Q

charity to charity and RAP

A

RAP never violated if the gift is from one charity to another

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29
Q

joint tenancies

A
  • right of survivorship
  • each of the cotenants owns an undivided fractional share of the whole
  • individual interest is transferable inter vivo
  • must clearly make intention known, otherwise it will be a TIC
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30
Q

creation of JT

A

requires 4 unities

  • time
  • title
  • interest
  • possession
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31
Q

destruction of JT

A

partition - voluntary destruction that completely ends the co-tenancy
severance - involuntary destruction occurs when one of the 4 unities is disturbed

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32
Q

TX lien theory for no severance

A

when a mortgage is executed, a lien merely attaches to the title, title does not get transferred so unity is disturbed

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33
Q

TIC

A
  • no right of survivorship
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34
Q

TIC creation

A

if right of survivorship is unclear or 4 unities are not present

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35
Q

how to partition TIC

A

any co-tenant can ask that property be partitioned either

  • property will be capable of physical division and lines will be drawn and the parties are no longer co-tenants OR
  • property will not be capable of physical division and it will be sold and the proceeds divided among fractional owners
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36
Q

periodic tenancy

A

ongoing, continuing estate until 1 party gives valid notice

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37
Q

creation of periodic tenancy

A

express agreement, implied agreement, operation of law (via statute of frauds)

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38
Q

tenancy for years

A

must be expressly created for a specified of time

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39
Q

statute of frauds

A

any tenancy for years over 1 year must be in writing

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40
Q

termination of periodic tenancy proper length of notice

A

year to year = 6 months

less than 1 year = length of period but up to 6 months

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41
Q

ways to terminate tenancy at will

A
  • death of either party
  • waste by tenant
  • assignment by tenant
  • transfer of title by LL
  • lease by LL to someone else
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42
Q

tenancy at sufferance

A
  • not a true tenancy

- bare possession of a holdover tenant

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43
Q

LL options for tenancy at sufferance

A
  • hold tenant as wrongdoing trespasser and sue to throw tenant off the property and recover damages for holdover
  • impose new periodic tenancy on tenant (residential will always be month to month, commercial will be rent period of old rent period
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44
Q

LL options if tenant voluntarily abandons

A
  • treat abandonment as an offer of surrender and accept the offer by retaking the premises, ending tenant’s liability
  • re-let the premises on tenant’s account and hold tenant liable for any deficiency
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45
Q

implied warranty of habitability

A

applies to residential property and cannot be waived

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46
Q

ways LL can breach unwaived implied covenant of quiet enjoyment

A
  • total eviction (termiantes lease, ends T’s obligation to pay rent)
  • partial eviction (does not terminate lease, T can stay and pay no rent to LL)
  • constructive eviction (LLs act or failure to provide some servce that he has a legal duty to provide makes the premises uninhabitable)
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47
Q

assignment

A

T transfers everything

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48
Q

sublease

A

T transfer a portion of the lease period, holding some time back

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49
Q

TX statute regarding assignments and subleases

A

no right to do so unless LL gives permission

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50
Q

elements for justification of T’s termination of lease

A
  • LL must cause the injury
  • must be substantial interference with covenant of quiet enjoyment rendering the premises uninhabitable
  • T must vacate the premises within a reasonable time after the breach or will otherwise lose the right to do so
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51
Q

privity of estate

A

liability on the conveyance

52
Q

privity of K

A

liability on the K (relationship based on K)

53
Q

touch and concern test

A

if performance of covenant makes the land more valuable or more useful, then it meets the touch and concern test and runs with the land

54
Q

sublessee liability to LL

A

not liable because there is no POC or POE… sublessor is deemed to have kept the estate
- original T is still connected to the LL on estate principles because the sublease happens during part of T’s leasehold and T’s present possessory estate is what is connected to LL on timeline

55
Q

what if LL gives permission for an assignment or sublease where there is a non-assignment clause

A

permission given once means the non-assignment clause is waived for all time unless L states otherwise at the time of giving permission (cashing a check also implies acceptance

56
Q

how to determine if something is a fixture

A

did the one doing the installing intend that the item would stay with the real property?

57
Q

rule for fixtures

A

if the attached item became a fixture the item cannot be removed by either the seller or a T

58
Q

factors for determining fixture

A
  • degree of attachment: the more that has to be done to attach it to the property, the more likely it stays
  • general custom
  • degree of harm to the premises on removal
59
Q

trade fixtures

A

chattels used in a trade or business - NOT fixtures

60
Q

effect of partial taking by the state on a T

A

does not release T from obligation to pay full rent, but T gets an amount equal to the rent that will have to be paid over the remainder of the lease for the property taken (reimbursement)

61
Q

effect of full taking by the state on a T

A

extinguishes the lease and T is excused from paying rent… T shares in the condemnation award only to the extent that the fair rental value of the lease exceeds the rent due under the lease

62
Q

easement

A

non-possessory interest in land involving a right of use

63
Q

easement appurtenant

A

when the easement directly benefits the use and enjoyment of a specific piece of land

  • burdened property (servient estate)
  • benefited property (dominant estate)
64
Q

easement in gross

A

easement does not benefit land… only a servient estate

- utility easement

65
Q

creation of express easement

A
  • must be in writing
  • created by express grant of an easement to someone else OR
  • reservation of an easement when land is sold to another
66
Q

easement must comply with

A

SofF and formalities of a deed

67
Q

implied easement by prior use

A
  • exists if commonly owned land is severed during the time of common ownership AND
  • there was a use by the common owner AND
  • the previous use is apparent and continuous AND
  • use is reasonably necessary for continued enjoyment of now dominant estate
68
Q

implied easement by necessity

A

when property is landlocked… must have been

  • common ownership of the severed land AND
  • at time of severance the dominant estate became landlocked AND
  • there is strict necessity for access to a public road
69
Q

easement by prescription

A

like title by adverse possession but is only use, not possession

70
Q

to create an easement by prescription

A

there must be use of the land of another and that use must be…

  • visible and notorious so that the landowner could discover the use (cannot be hidden)
  • adverse or without permission of the owner (any grant of permission by the owner will destroy hostility)
  • continuous and uninterrupted (seasonal use is ok)
  • must be met for prescriptive period
71
Q

time period for creation of easement by prescription

A

MBE: 20 years unless otherwise stated
TX: 10 years

72
Q

transferring of the benefit of appurtenant easements

A

benefit goes automatically along with dominant estate whether it is mentioned or not in the conveyance and cannot be transferred separately from the dominant estate

73
Q

transferring of the benefit of easement in gross

A

benefits of easement in gross that are commercial can always be transferred but benefits of easements in gross that are personal cannot be transferred
- in TX can’t be transferred unless the language of the easement says so

74
Q

presumptions if easement is silent or created without a writing

A
  • presumed the easement is perpetual
  • use presumed is that of reasonable development of the dominant estate (can only be used to benefit the dominant estate, not other property)
75
Q

repair of easement

A

holder of easement must keep the easement in repair and can always go on the servient estate to repair the easement even if the grant of the easement does not specifically provide the right to enter and repair

76
Q

termination of easement

A
  1. unity of ownership (merger)
  2. valid release that complies with the statute of frauds and all deed formalities terminates an easement
  3. abandonment (intent to abandon must be manifested by taking some physical act on the property itself that would show the intent to abandon
  4. termination by estoppel
  5. termination by prescription
  6. end of necessity
77
Q

profit in terms of easement

A

gives the right to go onto land and take a natural resource away (implied easement to go on the land and get the resource)

78
Q

for a burden of a real covenant to be enforceable against a successor promisor there must be…

A
  1. intent that it run with the land
  2. notice of the covenant at the time an interest in the burdened land is acquired
  3. covenant must touch and concern the land
  4. horizontal privity
  5. vertical privity
79
Q

horizontal privity

A

refers to the original party to the covenant
- requires that at the time the promisor entered into the covenant with the promisee, the two shared some interest in the land independent of the covenant

80
Q

vertical privity

A

refers to those who subsequently acquire property subject to the covenant and the original party from whom they got the property
- must be a transfer of the original covenantor’s entire estate to the successor

81
Q

for the benefit of a real covenant to run to a successor promisee there must be…

A
  1. intent that it run with the land
  2. covenant must tough and concern the land
  3. vertical privity
    (need only succeed in part)
82
Q

for the burden of an equitable servitude to be enforceable against a successor promisor there must be…

A
  1. intent that it run with the land
  2. notice of the covenant at the time an interest in the burdened land is acquired
  3. covenant must touch and concern the land
83
Q

for the benefit of an equitable servitude to run to a successor promisee there must be…

A
  1. intent that it run with the land

2. covenant must touch and concern the land

84
Q

equitable defenses to enforcement for equitable servitudes

A
  • unlcean hands (P did same thing as D)
  • acquiescence (let neighbor on other side do same thing)
  • latches (P say by while D build the office building and only now, after D has finished it, does P complain)
  • estoppel (P said earlier she did not mind if D put up office buildign)
85
Q

required elements for adverse possession (HELUVA)

A
  • Hostile (being on property with no right to be there)
  • Exclusive (must be excluding others from access)
  • Lasting (possession lasts for statutory period)
  • Uninterrupted (kind of continuous use an ordinary owner would make)
  • Visible (open and notorious)
  • Actual (must actually possess land to get title)
86
Q

bare possession statute

A

10 years but possession limited to 160 acres

87
Q

state of mind for adverse possession in TX

A

possessor must have intent to appropriate the land as his own… if AP’s state of mind is that he wasn’t trying to anything that isn’t his then the AP claim fails

88
Q

tacking time for owners and possessors

A

can tack periods of adverse possession but the periods must pass directly from one adverse possessor to another, no gaps

89
Q

3 disabilities for TX tolling AP

A
  1. minor
  2. unsound mind
  3. armed forces
    (not jail as in MBE)
90
Q

risk of loss during executory period

A

if property is damaged or destroyed before closing, the buyer loses… once the K is signed it is buyers land and buyer bears the risk because equitable conversion has taken place, even if the seller remains in possession and control

91
Q

if an occupier enters with the owner’s permission, how does her possession become adverse

A

only once she makes it clear to the owner that she is claiming hostilely (can be done by explicit notification by refusing to permit the true owner to come onto the land or by other acts inconsistent with the original permission)

92
Q

what must a deed convey in order to be valid

A

grantor’s words of intent - no particular technical phrasing is necessary

93
Q

who is not a BFP

A

donees, heirs and devisees because they do not give value for their interests

94
Q

who do notice and race-notice recording acts protect

A

BFPs from prior unrecorded conveyances of the same property

95
Q

in order to prevail over a prior grantee under a race-notice statute, when must a subsequent BFP record

A

before the prior grantee records

96
Q

what will courts generally presume regarding the delivery and acceptance of a deed

A
  • grantee accepts a deed if the conveyance would benefit her
  • grantee accepts a deed if she is a minor
  • grantee’s possession of a deed means it has been delivered
97
Q

may a buyer obtain specific performance of an oral land sale K

A

yes, if the buyer has taken possession of and made substantial improvements to the land

98
Q

when a seller of land dies before the K closes, the successors to the seller’s real property must

A

give up legal title at closing

99
Q

essential terms of a land sale K under the statute of frauds

A
  • ID of the parties to the K
  • description of the property
  • price and manner of payment, if agreed upon
100
Q

in general, a party who fails to tender performance on the closing date has…

A

a reasonable time after the closing date to tender performance

101
Q

deed of trust

A

security interest in land that debtor transfers title to a 3rd party acting on behalf of the lender

102
Q

what does it mean for a grantee to assume a mortgage

A

the grantee becomes primarily liable to the lender

103
Q

when a mortgagee transfers a promissory note without a written assignment of the mortgage the mortgage…

A

follows the note

104
Q

when may a mortgagor redeem her land in equity

A

before the foreclosure sale

105
Q

as between 2 mortgages, what is the effect of the jr. mortgage when the mortgagor accepts an advance of funds from the sr. mortgagee

A

jr. mortgage is given priority over the advance if the advance was optional

106
Q

in most states, the reservation of an annual rent, payable monthly, in a lease with no set termination date creates a…

A

year to year periodic tenancy

107
Q

if LL’s breach of duty renders the premises unsuitable for occupancy, the T may

A

remain in possession of the premises, continue to pay rent, and sue for damages

108
Q

if a LL consents to one transfer that violates a covenant against assignment or sublease, he waives his right to…

A

avoid future transfers

109
Q

may a T remove a chattel that T affixed to the leased premises

A

yes, if removal occurs before termination of the lease and leaves no damage to the premises

110
Q

a FS subject to executory interest is an estate that…

A

automatically divests in favor of a 3rd party on the happening of a stated event

111
Q

a grantor who conveys a FS determinable retains…

A

a reversion

112
Q

acts that will sever a JT

A
  • inter vivos conveyance by one JT
  • in title theory state, the execution of a mortgage by 1 JT
  • suit for partition by one JT
113
Q

horizontal privity exists between

A

parties to a real covenant who shared an independent interest in the land at the time they entered the covenant

114
Q

required for the burden of an equitable servitude to run to successors in interest

A
  • covenant touches and concerns the land
  • successor in interest has notice of the covenant if she has given value
  • covenanting parties intended that successors in interest be bound by the covenant
115
Q

in a residential subdivision, will a commercial builder be bound by a residential-use restriction that was omitted from his deed

A

yes, if the builder had inquiry notice of a common scheme for development

116
Q

to acquire a prescriptive easement on property, the claimant’s use must be

A

open and notorious, adverse, and continuous for the statutory period

117
Q

a person whose interest in land gives him the right t use someone else’s land independent of his ownership or possession of his own tract holds…

A

an easement in gross

118
Q

notice statute

A

recording act that alters the CL rule of “first in time, first in right” to protect a subsequent BFP… requires that subsequent purchaser have no actual or constructive notice at the time of conveyance

119
Q

the doctrine of estoppel by deed will apply if the grantor…

A

expressly purports to convey land he does not then own

120
Q

effect of properly recording a deed

A
  • raising a presumption that the deed was validly delivered
  • placing subsequent grantees on constructive notice of the deed’s contents
  • raising a presumption that the deed is authentic
121
Q

covenant of warranty

A

future covenant for title… grantor agrees to defend the grantee’s title from any 3rd party’s lawful or reasonable claims of title and to compensate the grantee for any related loss

122
Q

covenant of right to convey

A

present covenant for title… grantor warrants that she has the power and authority to make the grant

123
Q

if a grantor executes a deed but fails to deliver it during her lifetime…

A

title does not pass

124
Q

when O does not acquire title to property until after he purports to convey the property to A, what can A do

A

A can accept title to the land or possibly sue O for breach of covenants to title

125
Q

race notice statute

A

subsequent purchaser who pays valuable consideration takes, without notice of the prior conveyance, and records before a prior grantee prevails over the prior grantee

126
Q

when a grantor transfers land to hinder a creditor, the creditor may…

A

seek to have the transfer set aside

127
Q

notice statute

A

later purchaser of land will prevail over an earlier grantee if she takes without actual or constructive notice of the earlier grant

Barbri (21 decks)

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