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Bar Prep > Real Property > Flashcards

Real Property Flashcards

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1
Q

Adverse Possession

A

1) Open & notorious;
2) Actual & exclusive;
3) Hostile;
4) Continuous; &
5) For the statutory period

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2
Q

Easement by Prescription

A

1) Open & notorious;
2) Hostile;
3) Continuous; &
4) For the statutory period

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3
Q

Fee Simple Absolute

A

Owner owns everything

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4
Q

Fee Simple Determinable

A

“To A so long as the property is used for X”

Followed by possibility of automatic reverter in the Grantor

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5
Q

Fee Simple Subject to Condition Subsequent

A

“To A, but if X happens, then to B”

Reentry must be affirmatively exercised

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6
Q

Vested Remainder

A

“A to B for life, then to C”

No conditions

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7
Q

Contingent Remainder

A

“A to B for life, then to C if C passes the Bar”

Condition must be fulfilled by the end of B’s life. Otherwise it reverts to Grantor

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8
Q

Executory Interest

A

If a defeasible fee isn’t followed by an estate in the grantor, but goes to a 3rd party, the 3rd party has an executory interest

All executory interests that don’t create a time limit on when they can vest violate the rule against perpetuities (exception - charity to charity)

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9
Q

Doctrine of Merger

A

If the same person holds both the present & all future estates, they merge into fee simple title

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10
Q

Class Gifts

A

Gift to a defined group

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11
Q

Class Gifts - Rule of Convenience

A

Absent a contrary intent, the class closes when a class member can call for a distribution of their share

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12
Q

Rule Against Perpetuities

A

A future interest in a 3rd person must vest, if at all, within the lives in being plus 21 years

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13
Q

Rule against perpetuities applies to

A

Contingent remainders, executory interests, class gifts, options & rights of first refusal, & powers of appointment

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14
Q

Co-Tenancies - If the deed is unclear

A

The default presumption is tenancy in common

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15
Q

Joint Tenancy Requirements

A

A) Four Unities: 1) same time 2) by the same title, 3) identical interest, & 4) identical right to posses; &

B) Right of survivorship

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16
Q

Joint Tenancy Severance

A

If joint tenant conveys their interest to a 3rd party, it severs the JT as to the 3rd party. 3rd party is a tenant in common with original parties. Original parties retain their JT interest to each other

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17
Q

Joint Tenancy - Effect of Lien/Mortgage

A

Majority (lien state): a mortgage is a lien & doesn’t sever the JT when executed. When A dies, it wipes out the mortgage

Minority (title state): JT is severed when the mortgage is executed. A & B are tenants in common, & A’s interest at death, including the mortgage, goes to A’s heirs

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18
Q

Tenancy in Common

A

Two or more people own with no right of survivorship

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19
Q

Rights of Co-Tenants - Possession

A

Each co-tenant has the right to possess the whole of the property

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20
Q

Rights of Co-Tenants - Accountability

A

Co-tenant A doesn’t have to account to co-tenant B for B’s share of the profits

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21
Q

Rights of Co-Tenants - Accountability Exceptions

A

1) Ouster
2) Agreement to share
3) Lease of the property by a co-tenant to a 3rd party
4) Depletion of natural resources

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22
Q

Rights of Co-Tenants - Contribution

A

1) Cost of improvements - no
2) Necessary repairs - yes
3) Paying the mortgage - yes if mortgage signed by all co-tenants
4) Paying taxes - yes

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23
Q

Periodic Tenancy

A

Undefined end date

Automatically renews at the end of each successive period

Requires written notice to terminate

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24
Q

Tenancy for Years

A

Defined start & end dates

Automatically terminates on the end date, so no renewal absent a renewal clause

25
Q

Assignment

A

A complete transfer of the entire remaining term of the lease

Assignee is liable to LL for all lease covenants & rent

Assignor is liable to LL for rent

26
Q

Sublease

A

Sublessor retains some part of the remaining term & is still liable for rent

Sublessee isn’t personaly liable to LL for rent or lease covenants unless expressly assumed

27
Q

Landlord’s Implied Covenant - Duty to Deliver Possession

A

Yep

28
Q

Landlord’s Implied Covenant - Covenant of Quiet Enjoyment & Non-Disturbance

A

Actual & partial eviction - LL physically excludes tenant from all or part of the premises

Constructive eviction - LL breaches a duty in the lease, & the breach substantially & materially deprives tenant of the use and enjoyment of the premises

Remedy - timely move out & terminate the lease

29
Q

Landlord’s Implied Covenant - Warranty of Habitability

A

Property must be reasonably suitable for human residence

Remedies - leave & terminate lease, make repairs & deduct from rent, OR sue for damages

30
Q

Tenant’s Implied Covenants

A

1) Pay rent
2) Repair any damage T causes
3) Not commit waste

31
Q

Express Covenants run with the land if

A

1) There’s intent in the lease that the covenant runs; & 2) the covenant touches and concerns the land

Remedies

1) Traditional - if LL breaches the covenant, T can only sue for damages, not move out
2) Modern - If it’s a material breach, T can terminate & move out

32
Q

Waste

A

An act done by someone in rightful possession of property that permanently injures the land, harming the interest of someone entitled to future possession

Voluntary Waste - deliberate destructive acts

Permissive Waste - acts of omission or neglect

Ameliorative Waste - acts that alter the property but results in an increase in value

33
Q

Easement - Creation

A

Express - direct grant of the easement that’s preferably in writing

By Reservation - Grantor reserves an easement as part of the conveyance

By Implication - prior use over a period of time amounting to consent

By Necessity - where there was no prior use, the party asserting the easement owns landlocked property, & the two parcels were originally part of the same ownership

By Prescription - adverse possession without exclusivity

34
Q

Easement - Effect of Transfer of Ownership - Easement Appurtenant

A

Where the holder of one parcel holds the easement burdening a different parcel

Automatically runs with the transfer of the servient estate, unless the servient estate is transferred to a BFP without notice

35
Q

Easement - Effect of Transfer of Ownership - Easement in Gross

A

Holder isn’t the owner of another parcel, but has rights of access irrespective of their ownership of nearby or adjacent property

Automatically runs with the transfer of the servient estate, unless the servient estate is transferred to a BFP without notice

Doesn’t transfer between owners of the dominant estate unless it’s for commercial purposes

36
Q

Easement - Termination

A

Done either in writing, or orally plus an action of abandonment

Servient estate can’t terminate the easement

37
Q

License

A

Generally revocable at will, but is irrevocable if the licensee invests substantial amounts of money or labor in reliance on the license, in which case the license becomes an easement

38
Q

Covenant

A

For a covenant to bind a successive purchaser, the original covenanting parties must have agreed to be bound by the terms of the agreement, & actual or constructive notice must be given to a BFP

39
Q

Equitable Servitude

A

A covenant that, regardless of whether it runs with the land, equity will enforce against the assignee of the burdened land who has notice of the covenant

40
Q

Covenants - For the Burden on the Servient Estate to Run

A

1) Intent to create the interest
2) Notice of the covenant
3) Horizontal privity (original parties)
4) Vertical privity
5) Touch & concern the land

41
Q

Covenants - For the Benefit to the Dominant Estate to Run

A

1) Intent
2) Vertical privity
3) Touch & concern the land

42
Q

For the Equitable Servitude to Run

A

Both the benefit & burden run, but only need to show:

1) Notice (not needed to show benefit runs)
2) Intent
3) Touch & concern the land

43
Q

Implied Negative Reciprocal Servitude

A

Prohibits certain uses, which can be implied from a common development scheme & notice

44
Q

Conveyancing - To be a valid deed

A

1) Executed by Grantor
2) Delivered
3) Accepted - presumed if valuable

Deed must specifically describe the property being conveyed

45
Q

Quitclaim Deed

A

Conveys only what seller has

Includes warranty of marketable title

46
Q

Warranty Deed - Present Covenants

A

Seisin - title & possession

Right to Convey - no restraints on alienation

Against Encumbrances - no encumbrances not of record

47
Q

Warranty Deed - Future Covenants

A

Quiet Enjoyment - title won’t be disturbed

Warranty - grantor will defend grantee’s title

Further Assurances - do what it takes to clear title

48
Q

Recording Statutes

A

Race Statute - whoever records first wins

Notice Statute - subsequent BFP without notice prevails over a prior grantee who failed to record

Race-Notice Statute - subsequent BFP without notice who also records before the prior grantee prevails over a prior grantee who failed to record

49
Q

Mortgage & Deed of Trust

A

A security interest in property

50
Q

Foreclosure

A

Mortgages can only be foreclosed judicially

51
Q

Non-Judicial Foreclosure with Deed of Trust

A

1) Trustee posts & records a notice of default & election to sell
2) Trustor has 90 days to bring the default amount current
3) After 90 days, trustee may post a public notice of trustee’s sale
4) For 21 days, the beneficiary can demand payment
5) At the end of 21 days, trustee can sell the not to the highest bidder at public auction

52
Q

Deficiency Judgment

A

Occurs when the amount owed on the note secured by the mortgage or D/T is greater than the current value of the property

Can obtain a deficiency judgment under a D/T for money against the borrower only if the property isn’t a single-family home or up to 4 single family residences, & beneficiary uses judicial foreclosure

Non-judicial foreclosure of a D/T has an anti-deficiency provision

53
Q

Right of Redemption

A

The foreclosed mortgagor has a right to buy back the property by bringing the mortgage current

54
Q

Lateral Support

A

Right that excavation on adjacent land doesn’t cause collapse on A’s land

55
Q

Subjacent Support

A

tunneling underneath A’s land doesn’t cause subsidence

56
Q

Lateral & Subjacent Support - Strict Liability

A

Liable if excavation causes land in its natural state to subside

Liable if developed land subsides only if the land would’ve subsided in its natural state

Liable if minerals are taken from beneath the surface and the land or existing buildings collapse

57
Q

Lateral & Subjacent Support - Negligence

A

Must prove the excavation was negligent if not strictly liable

58
Q

Riparian Doctrine

A

All riparian owners share a right of reasonable use & must submit to the reasonable use rights of the riparian owners

59
Q

Prior Appropriation Doctrine

A

Water used based on prior appropriation from a particular area on the watercourse for beneficial uses, regardless if user borders the watercourse

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