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Bar Study-MBE > Real Property > Flashcards

Real Property Flashcards

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1
Q

Fee Simple Absolute:

A

Divisible, Descendible and Alienable.

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2
Q

Fee Tail:

A

Abolished and turns into a fee simple absolute.

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3
Q

Life Estate:

A

Life tenant limited by doctrine of waste.

Future interest: reversion in grantor or remainder in 3rd party.

If life estate in 2 persons, contingent remainder in fee simple upon death of first.

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4
Q

Fee Simple Determinable:

A

Requires: Clear conditional language, violation of which leads to automatic forfeiture.

Characteristics: Divisible, Descendible, Alienable –but always subject to durational condition.

Future Interest: possibility of reverter.

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5
Q

Fee Simple Subject to Condition Subsequent:

A

Requires: clear language that grantor has a right to re-enter.

Characteristics: Divisible, descendible, alienable, subject to condition. If violated, interest may terminate at grantor’s option.

Future Interest: right of entry

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6
Q

Fee Simple Subject to Executory Limitation

A

Characteristics: Divisible, Descendible, Alienable subject to condition.

Future Interest: Shifting executory interest to 3rd party

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7
Q

Future Interests to Grantor:

A

1) Possibility of reverter.
2) Right of Entry.
3) Reversion.

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8
Q

Future Interests to Third Party:

Shifting Executory Interest

A

Follows defeasible fee of some sort.

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9
Q

Future Interests to Third Party:

Contingent Remainder:

A

Unascertained person OR subject to condition precedent, or both.

If condition precedent, conditional language appears before language creating remainder.

If satisfied, becomes an indefeasibly vested remainder.

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10
Q

Future Interests to Third Party:

Vested Remainder:

A

Ascertainable person and not subject to condition precedent.

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11
Q

Future Interests to Third Party:

Indefeasibly Vested Remainder:

A

3rd person certain to acquire future interest without condition.

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12
Q

Future Interests to Third Party:

Vested Remainder Subject to Complete Defeasance/Total Divestment:

A

3rd party’s future interest could get cut short by satisfaction of a condition subsequent.

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13
Q

Doctrine of Waste (Very Athletic Purple Aliens)

A

Voluntary or Affirmative waste

Permissive Waste

Ameliorative waste

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14
Q

Voluntary or Affirmative waste

A

Overt conduct causing a decrease in value or consumption/exploitation of natural resource.
Exceptions: PURGE

1) Prior Use (if exploitation previously occurred, but limited to open mines doctrine);
2) Reasonable repairs;
3) Grant; or
4) Exploitation (land only suitable for this purpose).

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15
Q

Permissive Waste:

A

Life Tenant must pay all ordinary taxes and mortgage interest payments, and protect land from disrepair by conducting reasonable maintenance.

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16
Q

Ameliorative waste:

A

Acts that may enhance property’s value not allowed unless future interest holders know + give consent.

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17
Q

Rule Against Perpetuities

A

Voids future interest if any possibility that given interest may vest > 21 yrs after death of measuring life.

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18
Q

Rule Against Perpetuities:

Analysis

A

(1) Last person mentioned by proper name.
(2) Next subsequent party not mentioned by proper name takes.
(3) The rest is struck.

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19
Q

Rule Against Perpetuities:

Reform

A

Wait and See/Second Look: Majority of jurisdictions determine RAP at the end of the measuring life.

Uniform Statutory RAP: provides for 90 year vesting period instead of life + 21 yrs.

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20
Q

Joint Tenancy:

How is it Created?

A

TTIP – time; title; interest (equal); and possession of the whole.

Grantor must clearly express survivorship rights. Characteristics: not devisable or descendable; alienable but destroys Joint Tenancy.

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21
Q

Joint Tenancy:

How is it Severed?

A

SPAM – Sale, Partition (voluntary agreement; partition in kind; forced sale), Mortgage (if title theory).

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22
Q

Tenancy by the Entirety

A

Marital interest between H & W with right of survivorship.

Creation: only H&W who take as one. Presumption when couple takes.

Characteristics: creditors can’t touch and no unilateral conveyance to 3rd party.

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23
Q

Tenancy in Common

A

Characteristics: each co-tenant owns individual part with right to possess the whole.

Descendible, divisible & alienable. No survivorship rights.

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24
Q

Rights of Co-Tenants Part 1

A

Possession: each has right to possess whole; no ouster. Rent from Co-T: none, absent ouster.

Rent from 3rd Parties: lease of premises must account to co-T for fair share of income.

Adverse Possession: co-T can’t adversely possess unless valid ouster.

Carrying Costs: each co-T must pay for portion of taxes & mortgage.

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25
Q

Rights of Co-Tenants Part 2

A

Repairs: contribution from other co-T if co-Ts advised of reasonable & necessary repairs.

Improvements: no contribution from co-Ts. But at partition, improver responsible for increase or decrease in value.

Waste: no waste and liability if co-T commits. Partition: any co-T can seek it.

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26
Q

Landlord/Tenant:

Tenancy for Years/ Term of Years/Estate for Years:

A

Lease of fixed, determined period.

Termination: no notice required.

Term > 1yr must be in writing (SoF).

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27
Q

Periodic Tenancy

A

Successive or continuous intervals.

Termination: notice required; must be at least equal to length of period with end at natural lease period.

Express or Implied

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28
Q

Implied Periodic Tenancy

A

1) no duration specified but payment required at specific intervals;
2) oral agreement of terms of years with payment at specific intervals; or
3) if Landlord elects to holdover Tenant who wrongfully stays.

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29
Q

Tenancy at Will

A

No fixed period of duration.

Termination: at any time.

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30
Q

Tenancy at Sufferance

A

T wrongfully holds over expiration of lease.

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31
Q

Tenant Duties:

Duty To 3rd Parties

A

Must keep premises in good repair.

Liability for injuries sustained by invitees, even if L promised to repair.

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32
Q

Tenant Duties:

Duty to Repair

A

Must maintain premises and make ordinary repairs. No waste.

Fixtures: pass with ownership of land unless: private agreement OR T can remove without causing substantial harm to premises.

Loss: CL – T liable for any loss, incl force of nature. Mod – if loss w/o fault of T, T may terminate lease.

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33
Q

Tenant Duties:

Duty to Pay Rent

A

CL: duty independent of L’s obligations.

Mod: duty dependent on L’s covenants under lease.

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34
Q

Tenant Duties:

Breach of Duty to Pay Rent when Tenant in Possession of Property

A

Commercial Ts: may be held for new yr-to-yr lease if original was > 1 yr.

Residential Ts: held to new month-to-month lease, regardless of original term.

Rent = new rent if L advised T before term of old lease OR old rent if L advised T after term.

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35
Q

Tenant Duties:

If Tenant Fails to Pay Rent when out of Possession

A

SIR:

1) Surrender (L treats as ending of leasehold, but if

> 1yr left, writing may be required);

2) Ignore (hold T responsible for rent unpaid);
3) Re-Let (hold T liable for deficiency but L must diligently try to re-let).

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36
Q

Landlord Duties:

Duty to Deliver Possession

A

MAJ (English Rule): put T in physical possession. If former T on premises, L is liable for damages.

MIN (American Rule): put T in legal possession. If former T on premises, that is T’s issue.

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37
Q

Landlord Duties:

Implied Covenant of Quiet Enjoyment

A

Breached by Total/Partial Actual or Constructive Eviction

Total Eviction: L excludes T from entire premises; or actual or continual refusal to repair material damages that prevent habitability (terminates T’s obligation to pay rent);

Partial Eviction: 3rd party retakes and physically excludes T from portion of leased premises (rent proportionately reduced).

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38
Q

Constructive Eviction

A

SING:

1) Substantial Interference (chronic problem fundamentally incompatible with quiet enjoyment);
2) Notice (T notifies L, who fails to respond);
3) Get out (T must vacate within reasonable time)

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39
Q

Landlord Duties:

Actions of Other Tenants

A

L not responsible for actions of other Ts, except cannot permit nuisances and must control/police common areas.

40
Q

Landlord Duties:

Tort

A

CLAPS:

1) Common Areas (must maintain);
2) Latent Defect (warn of those latent defects landlord should be aware of);
3) Assumption of Repairs (if you say you’ll fix, fix with reasonable care);
4) Public Use Rule (defects if leasing public space);
5) Short term lease of furnished apt (liable for any defects causing harm).

41
Q

Landlord Duties:

Implied Warranty of Habitability (Residential only)

A

Req’t: fit for basic human habitation as determined by housing code or individual judicial conclusion.

Breach: M + 3Rs:

1) Move out (and terminate);
2) Repair & deduct;
3) Reduce rent (or withhold until ct determines fair market value – but put $ in escrow);
4) Remain and sue (pay rent and get damages).

42
Q

Tenant Power

A

T only has ability to assign or sublease the interest (time) he has.

If extended, then sublease for that extra time would be invalid and the subletter/assignee could be ejected.

43
Q

Landlord/ Tenant:

Assignments

A

Transfer in entirety. L and T2 are in privity of estate but not in privity of K.

L and T1 not in privity of estate but in privity of K.

T2 is primarily responsible and T1 is secondarily responsible.

Sublease: only portion of interest transferred. L and T2 are not in privity of estate or K. T1 and T2 are responsible to each other.

44
Q

Affirmative Easements

A

Right to do something on servient land.

45
Q

Negative Easements

A

Requires holder to compel servient owner to refrain.

Limited to LASSS: Light, Air, Support, Stream, Scenic view.

46
Q

Easement Appurtenant:

A

Physical use/enjoyment of property.

Passes automatically with dominant tenement and with servient tenement unless BFP without notice.

In gross: only personal or commercial advantage. Non-transferrable unless for commercial purpose.

47
Q

Creation of an Easement

A

PING:

1) Prescription (continuous, open, adverse, hostile).
2) Implication (if division, implied from existing use if apparent and reasonably necessary to dominant land’s use/enjoyment).
3) Necessity (if division creates land lock).
4) Grant ( > 1yr must be in writing).

48
Q

Termination of an Easement

A

END CRAMP:

(1) Estoppel (servient landowner materially changes position in reasonable reliance that easement won’t be enforced);
(2) Necessity;
(3) Destruction of servient land;
(4) Condemnation of serv land by eminent domain;
(5) Release (in writing);
(6) Abandonment (physical action by holder expressing intent never to use again);
(7) Merger (if separated later, doesn’t auto revive)
(8) Prescription (servient owner interferes)

49
Q

License

A

Privilege to enter land for specific purpose.

Informal and freely revocable, unless estoppel (licensee invested substantial $/labor in reasonable reliance on continuation)

50
Q

Profit

A

Permission to enter land to take soil. Same rules as easements.

51
Q

Covenant ($ damages)

A

Contractual promise to do or not do something on land.

52
Q

Covenant ($ damages):

Burden Runs

A

WITHVN:

1) Writing (by original parties);
2) Intent (by original parties to run);
3) Touch/Concern (provides some value to benefited party);
4) Horizontal and Vertical Privity (H: succession of estate between original parties, e.g. grantor/ee; L/T; debtor/creditor. V: non-hostile nexus);
5) Notice (Actual, Record, or Inquiry).

53
Q

Covenant ($ damages):

Benefit Runs

A

WITV:

1) Writing;
2) Intent;
3) Touch/Concern;
4) Vertical Privity.

54
Q

Equitable Servitude

A

Operates like covenant, but injunction required to enforce burden.

55
Q

Creation of Equitable Servitude

A

WITNES:

1) Writing;
2) Intent;
3) Touch/Concern;
4) Notice;
5) Equitable Servitude.

56
Q

Implied Equitable Servitude

A

Majority rule

Req’ts: (1) General Scheme by subdivider when sale began; and (2) Notice.

Defenses: changed condition is so pervasive it affects entire area.

57
Q

Adverse Possession

A

Possession for statutory period of time can ripen into title if it’s COAH:

1) Continuous;
2) Open/Notorious;
3) Actual;
4) Hostile.

Possessor’s state of mind irrelevant. No adverse possession if owner disabled at inception. Tacking ok if privity between adverse possessors.

58
Q

Land Conveyances:

Requirements for a land contract

A

SoF requires writing unless (2 of 3):

1) Possession;
2) Payment;
3) Substantial Improvements.

59
Q

Land Conveyances:

Risk of Loss in Land Contract

A

B owns land when K is signed so buyer bears risk.

60
Q

Land Conveyances:

Implied Promises in Land Contract

A

Marketable title at closing free from adverse possession, encumbrances, zoning violations.

No false statement of material fact, including failure to disclose latent, material defects.

No implied promise of fitness or habitability unless new home builder (promise of workmanlike construction).

61
Q

Land Conveyances:

Effect of Untimely Performance

A

Time not of the essence unless stated in K.

Performance rendered within reasonable time after closing date is ok.

62
Q

Land Conveyances:

Deed Requirements

A

Deed replaces K as controlling doc.

Req’s: LEAD – Lawfully Executed And Delivered.

Lawful execution: writing, signed by grantor (“G”), comports with stat req’ts (no consideration req’d and description only requires “good lead”).

Delivery: G must have present intent to be immediately bound. Recipient’s express rejection defeats delivery.

63
Q

Land Conveyances:

Quitclaim Deed

A

No covenants. Only gives what Grantor has.

64
Q

Land Conveyances:

General Warranty Deed

A

Sad, Crying Elvis Wants Queen Anne

1) Seisin – G owns estate he’s conveying;
2) Rt. to Convey – has power to convey w/o temp restraints;
3) Against Encumbrances – no servitudes or mortgages;
4) Warranty – promise to defend against lawful claims by others;
5) Quiet Enjoyment – no disturbance by 3rd party’s lawful claim of title;
6) Further Assurances – do whatever necessary to perfect title.

65
Q

Land Conveyances:

Statutory Special Warranty Deed

A

Promises G makes on behalf of himself that he won’t convey to anyone else and property is free from encumbrances made by G.

66
Q

Recording System:

What is protected?

A

BFP = purchaser for value and without notice of someone else buying first (actual, inquiry or record notice).

Doomed Donee: no protection for heir, devisee, or donee except shelter rule.

Estoppel: person conveying land w/o any interest in it is estopped from denying validity of conveyance if he later acquires.

67
Q

Recording System:

Shelter Ruler

A

One who takes from BFP is protected just like BFP.

68
Q

Recording System:

Wild Deed

A

Out of order deed doesn’t give record notice.

69
Q

Recording System:

Notice Statute Jurisdiction

A

2nd buyer wins if neither BFP nor buyer A record.

70
Q

Recording System:

Race Notice Jurisdiction

A

1st buyer wins if records before 2nd buyer.

71
Q

Mortgages:

Legal Mortgage

A

Encumbrance in writing.

72
Q

Mortgages:

Equitable Mortgage

A

Deed absolute on face given as collateral.

73
Q

Mortgages:

Transfer of a Mortgage

A

1) Note must be negotiable and made payable to named mortgagee;
2) Original note must be endorsed and signed by mortgagee;
3) Original must be delivered;
4) Transferee must take note in good faith without notice of illegality;
5) Transferee must pay value for note.

Transferee is holder in due course. T takes free of personal defenses but subject to real defenses.

74
Q

Mortgages:

Real Defenses – MAD FIFI 4

A

MAD FIFI 4

1) Material Alteration
2) Duress
3) Fraud in Factum
4) Incapacity
5) Illegaility
6) Infancy
7) Insolveny

75
Q

Mortgages:

Selling Property with a Mortgage

A

Assumption of mortgage: Debtor and buyer are personally liable. Buyer is primarily and Debtor is secondarily liable.

Subject to mortgage: Buyer has no personal liability; only owner is personally liable, but home can still be foreclosed.

76
Q

Foreclosure:

Joinder

A

All junior lien holders must be joined or mortgage will remain on land.

D must be joined if seeking deficiency judgment.

77
Q

Foreclosure:

Amount

A

If sale < debt, mortgagee brings deficiency action.

If sale > debt, junior liens paid in full by order of priority, surplus to debtor.

78
Q

Foreclosure:

Senior Interest

A

If sale < debt, mortgagee brings deficiency action.

If sale > debt, junior liens paid in full by order of priority, surplus to debtor.

79
Q

Foreclosure:

Priority

A

First to record, first in right.

BUT, purchase money mortgagee has “super-priority.”

80
Q

Foreclosure:

Redemption

A

In equity: up to date of sale, debtor may pay missed payments + interest + cost.

Statutory redemption: ½ states allow redemption within fixed period (e.g. 6months). Mortgagor has right to possess during that time.

81
Q

Lateral Support

A

Strict liability if excavation causes adjacent land in natural state to cave or if land with building can show that land would have collapsed in natural state.

Otherwise, negligence.

82
Q

Water Rights:

Riparian Doctrine

A

Water belongs to landowners (riparians) bordering water course.

Liable only for unreasonable interference with other’s use.

83
Q

Water Rights:

Prior Appropriation Doctrine

A

Water initially belongs to the state.

Right to divert and make beneficial use can be acquired by individual.

Rights determined by priority of beneficial use (e.g. agriculture). First in time, first in right generally.

84
Q

Water Rights:

Groundwater

A

Surface owner has right to make reasonable use of water beneath surface, but can’t be wasteful.

85
Q

Water Rights:

Surface Water

A

Common enemy rule: landowner can change drainage, but can’t unnecessarily harm land of another.

86
Q

Zoning:

Variance

A

Creates flexibility.

Requirements: 1) undue hardship; 2) variance won’t decrease neighboring prop value.

Determined by admin action before zoning board.

87
Q

Zoning:

Non-Conforming Use

A

Once lawful but no longer because of new zoning ordinance.

Can’t be eliminated all at once unless just compensation paid.

88
Q

Zoning:

Unqualified Exactions

A

Amenities government seeks in exchange for granting permission to build.

Inherently suspect – must be reasonably related in nature and scope to impact of proposed development.

89
Q

Zoning:

Institutionalized Persons Act (RIULPA)

A

No zoning restrictions that impose substantial burden on religious exercise of a person/institution unless compelling gov interest.

90
Q

Zoning:

Cumulative Zoning

A

Zones ranked in hierarchy. Residential zones = higher; business zones = lower.

Uses allowed in higher zones also allowed in all lower zones. But, no use allowed in higher zone than the zone for which it was originally listed. (e.g. may build residential home in business district, but no businesses in residential district).

91
Q

Zoning:

Non-Cumulative (Exclusive) Zoning

A

Allowed uses are exclusive to individual district. (e.g. no residential building in business district).

92
Q

Zoning:

Grandfather Clauses

A

Exempt businesses/class of persons from new zoning rules/regulations.

93
Q

Zoning:

Validity of Grandfather Clauses

A

Typically valid if lawful non-conforming use.

But there is expectation that non-conforming use will come to an end (e.g. factory in residential zone may be prohibited from upgrading facilities since would indicate no intent to eventually conform).

94
Q

Conflicts of Law:

Re: Disposition of Property

A

Disposition (by decent, deed, or any other method) governed by laws of place where property located.

BUT: if property only incidental to K and K is personal in nature, traditional conflicts of law rules for Ks apply.

95
Q

Conflicts of Law:

Re: Validity of Land Contract

A

If no choice of law by parties, validity of K determined by local law of state where property located. UNLESS another state has more significant relationship under choice of law principles to transaction or parties.

96
Q

Conflicts of Law:

Re: Executory K for Sale of Land

A

Typically governed by law of jurisdiction where property located. BUT in some jurisdictions, validity and effect of executory K for land sale governed by place where K is made and to be performed.

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