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
2
Q
defeasible fee estate
A
may terminate upon the happening of a condition
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
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
5
Q
fee simple subject to executory limitation
A
- ends automatically upon the happening of some condition
- possession passes to another grantee
6
Q
life estate
A
estate is measured by life
- can create by implication
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
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
9
Q
voluntary waste
A
affirmative act beyond the right of maintenance that causes harm to the premises
10
Q
permissive waste
A
where tenant has failed to maintain the estate
11
Q
ways to avoid permissive waste
A
- make ordinary repairs
- pay taxes
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
13
Q
future interest
A
present interest in the land with a future right of possession (will come later if at all)
14
Q
if a grantor holds the future interest the only possible choices of classification are…
A
- reversion
- possibility of reverter
- right of entry
15
Q
if a grantee holds the future interest the only possible choices of classification are…
A
- remainders
- executory interests
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
17
Q
possibility of reverter
A
when grantor gives FS determinable grantor keeps a possibility of reverter
- never subject to RAP
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
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
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
21
Q
contingent remainder
A
something has to happen or be known before the remainder can become possessory
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
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
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
25
future interests RAP applies to
EI, VR subject to open, contingent remainder
26
RAP
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
27
class gifts and RAP
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
28
charity to charity and RAP
RAP never violated if the gift is from one charity to another
29
joint tenancies
- 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
30
creation of JT
requires 4 unities
- time
- title
- interest
- possession
31
destruction of JT
partition - voluntary destruction that completely ends the co-tenancy
severance - involuntary destruction occurs when one of the 4 unities is disturbed
32
TX lien theory for no severance
when a mortgage is executed, a lien merely attaches to the title, title does not get transferred so unity is disturbed
33
TIC
- no right of survivorship
34
TIC creation
if right of survivorship is unclear or 4 unities are not present
35
how to partition TIC
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
36
periodic tenancy
ongoing, continuing estate until 1 party gives valid notice
37
creation of periodic tenancy
express agreement, implied agreement, operation of law (via statute of frauds)
38
tenancy for years
must be expressly created for a specified of time
39
statute of frauds
any tenancy for years over 1 year must be in writing
40
termination of periodic tenancy proper length of notice
year to year = 6 months
| less than 1 year = length of period but up to 6 months
41
ways to terminate tenancy at will
- death of either party
- waste by tenant
- assignment by tenant
- transfer of title by LL
- lease by LL to someone else
42
tenancy at sufferance
- not a true tenancy
| - bare possession of a holdover tenant
43
LL options for tenancy at sufferance
- 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
44
LL options if tenant voluntarily abandons
- 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
45
implied warranty of habitability
applies to residential property and cannot be waived
46
ways LL can breach unwaived implied covenant of quiet enjoyment
- 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)
47
assignment
T transfers everything
48
sublease
T transfer a portion of the lease period, holding some time back
49
TX statute regarding assignments and subleases
no right to do so unless LL gives permission
50
elements for justification of T's termination of lease
- 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
51
privity of estate
liability on the conveyance
52
privity of K
liability on the K (relationship based on K)
53
touch and concern test
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
sublessee liability to LL
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
what if LL gives permission for an assignment or sublease where there is a non-assignment clause
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
how to determine if something is a fixture
did the one doing the installing intend that the item would stay with the real property?
57
rule for fixtures
if the attached item became a fixture the item cannot be removed by either the seller or a T
58
factors for determining fixture
- 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
trade fixtures
chattels used in a trade or business - NOT fixtures
60
effect of partial taking by the state on a T
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
effect of full taking by the state on a T
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
easement
non-possessory interest in land involving a right of use
63
easement appurtenant
when the easement directly benefits the use and enjoyment of a specific piece of land
- burdened property (servient estate)
- benefited property (dominant estate)
64
easement in gross
easement does not benefit land... only a servient estate
| - utility easement
65
creation of express easement
- 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
easement must comply with
SofF and formalities of a deed
67
implied easement by prior use
- 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
implied easement by necessity
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
easement by prescription
like title by adverse possession but is only use, not possession
70
to create an easement by prescription
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
time period for creation of easement by prescription
MBE: 20 years unless otherwise stated
TX: 10 years
72
transferring of the benefit of appurtenant easements
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
transferring of the benefit of easement in gross
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
presumptions if easement is silent or created without a writing
- 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
repair of easement
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
termination of easement
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
profit in terms of easement
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
for a burden of a real covenant to be enforceable against a successor promisor there must be...
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
horizontal privity
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
vertical privity
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
for the benefit of a real covenant to run to a successor promisee there must be...
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
for the burden of an equitable servitude to be enforceable against a successor promisor there must be...
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
for the benefit of an equitable servitude to run to a successor promisee there must be...
1. intent that it run with the land
| 2. covenant must touch and concern the land
84
equitable defenses to enforcement for equitable servitudes
- 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
required elements for adverse possession (HELUVA)
- 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
bare possession statute
10 years but possession limited to 160 acres
87
state of mind for adverse possession in TX
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
tacking time for owners and possessors
can tack periods of adverse possession but the periods must pass directly from one adverse possessor to another, no gaps
89
3 disabilities for TX tolling AP
1. minor
2. unsound mind
3. armed forces
(not jail as in MBE)
90
risk of loss during executory period
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
if an occupier enters with the owner's permission, how does her possession become adverse
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
what must a deed convey in order to be valid
grantor's words of intent - no particular technical phrasing is necessary
93
who is not a BFP
donees, heirs and devisees because they do not give value for their interests
94
who do notice and race-notice recording acts protect
BFPs from prior unrecorded conveyances of the same property
95
in order to prevail over a prior grantee under a race-notice statute, when must a subsequent BFP record
before the prior grantee records
96
what will courts generally presume regarding the delivery and acceptance of a deed
- 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
may a buyer obtain specific performance of an oral land sale K
yes, if the buyer has taken possession of and made substantial improvements to the land
98
when a seller of land dies before the K closes, the successors to the seller's real property must
give up legal title at closing
99
essential terms of a land sale K under the statute of frauds
- ID of the parties to the K
- description of the property
- price and manner of payment, if agreed upon
100
in general, a party who fails to tender performance on the closing date has...
a reasonable time after the closing date to tender performance
101
deed of trust
security interest in land that debtor transfers title to a 3rd party acting on behalf of the lender
102
what does it mean for a grantee to assume a mortgage
the grantee becomes primarily liable to the lender
103
when a mortgagee transfers a promissory note without a written assignment of the mortgage the mortgage...
follows the note
104
when may a mortgagor redeem her land in equity
before the foreclosure sale
105
as between 2 mortgages, what is the effect of the jr. mortgage when the mortgagor accepts an advance of funds from the sr. mortgagee
jr. mortgage is given priority over the advance if the advance was optional
106
in most states, the reservation of an annual rent, payable monthly, in a lease with no set termination date creates a...
year to year periodic tenancy
107
if LL's breach of duty renders the premises unsuitable for occupancy, the T may
remain in possession of the premises, continue to pay rent, and sue for damages
108
if a LL consents to one transfer that violates a covenant against assignment or sublease, he waives his right to...
avoid future transfers
109
may a T remove a chattel that T affixed to the leased premises
yes, if removal occurs before termination of the lease and leaves no damage to the premises
110
a FS subject to executory interest is an estate that...
automatically divests in favor of a 3rd party on the happening of a stated event
111
a grantor who conveys a FS determinable retains...
a reversion
112
acts that will sever a JT
- 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
horizontal privity exists between
parties to a real covenant who shared an independent interest in the land at the time they entered the covenant
114
required for the burden of an equitable servitude to run to successors in interest
- 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
in a residential subdivision, will a commercial builder be bound by a residential-use restriction that was omitted from his deed
yes, if the builder had inquiry notice of a common scheme for development
116
to acquire a prescriptive easement on property, the claimant's use must be
open and notorious, adverse, and continuous for the statutory period
117
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...
an easement in gross
118
notice statute
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
the doctrine of estoppel by deed will apply if the grantor...
expressly purports to convey land he does not then own
120
effect of properly recording a deed
- 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
covenant of warranty
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
covenant of right to convey
present covenant for title... grantor warrants that she has the power and authority to make the grant
123
if a grantor executes a deed but fails to deliver it during her lifetime...
title does not pass
124
when O does not acquire title to property until after he purports to convey the property to A, what can A do
A can accept title to the land or possibly sue O for breach of covenants to title
125
race notice statute
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
when a grantor transfers land to hinder a creditor, the creditor may...
seek to have the transfer set aside
127
notice statute
later purchaser of land will prevail over an earlier grantee if she takes without actual or constructive notice of the earlier grant
