Real Property Flashcards
cumulative zoning
creates hierarchy; then land can be used for named use or any higher-ranking use
variance
departure from zoning restriction
amortization
gradual elimination of nonconforming use within land zoning
is the right to airspace above a parcel exclusive?
no, but owner is entitled to freedom from excess noise
doctrines of watercourse rights
riparian (water belongs to those whose land borders the water course; only to be used on riparian parcel)
prior appropriation (rights acquired by actual use, determined by priority of beneficial use)
liability for an owner of land in its natural state if excavation causes subsiding (slipping or caving in?)
strict liability
liability for an owner of land ADJACENT to buildings if his excavation causes trouble?
strict liability if est. that land would’ve collapsed in natural state
otherwise only liable if excavation was conducted negligently
can redemption in equity be waived in a mortgage?
no
redemption in equity
prior to foreclosure sale, mortgagor may redeem property by paying the amount due.
if the note/mortgage contains an acceleration clause, mortgagor must pay full balance (including any interest)
which interest does foreclosure destroy?
the interest being foreclosed and any junior interests
if a junior interest holder is inadvertently excluded from a foreclosure matter, that holder’s interest remains
purchase money mortgage
takes priority over prior claims
maybe given to the seller as part of the purchase price, or to a third party
priority of foreclosure proceeds
expenses/attorneys’ fees/court costs
foreclosed loan
junior loans
what if foreclosure proceeds are insufficient to satisfy the mortgage debt?
mortgagee retains a personal cause of action against the mortgagor (deficiency judgment)
lien theory
Mortgagee holds a security interest only; mortgagor is landowner until foreclosure.
Mortgagee can’t take possession of land before foreclosure!
When, prior to foreclosure, may mortgagee take possession?
when mortgagor consents or abandons
When property is damaged or destroyed before the testator’s death buy the casualty insurance proceeds are not paid until after the death, does ademption apply?
No. The beneficiary of the specific bequest takes the insurance proceeds.
Do anti-lapse statutes pass gifts to a predeceasing beneficiary’s spouse?
Never. The predeceasing beneficiary’s descendants are substituted.
What is an installment land contract and what is its common forfeiture clause?
Dictates installment purchaser obtains legal title only when the full contract price is paid.
Common forfeiture clause: on default, vendor cancels the contract, retakes possession, and retains all money paid.
How are recording acts protective?
They protect bona fide purchasers from the detriment of prior secret interests.
Is recordgin essential to the validity of a deed between grantor and grantee?
Not in itself; but can be essential to protecting the deed from subsequent BFPs.
notice statute
Land conveyances/mortgages, if not recorded, not valid against subsequent BFPs
(“notice is everything”)
subsequent BFP
paid value
no actual or constructive notice of prior sale
race-notice statute
subsequent BFP must take without notice and record before the prior grantee
lack of notice means first in time doesn’t take priority, but the race to record still trumps all
race statute
notice is irrelevant; whomever records first wins
rare statute
are donees, heirs, and devisees protected any recording acts?
no: they didn’t pay anything, so that. can’t be BFPs
shelter rule
anyone who takes from a BFP steps into the BFP’s shoes and is likewise protected by recording acts
(unless transferee held prior title and is trying to beat the system moving through a BFP)
Is a BFP’s statues impacted by learning of a prior recording between conveyance and recording?
No; only notice at time of conveyance matters.
Does a BFP have a legal duty to perform a title search?
No, but subsequent purchasers are held to whatever notice such a search would have provided
wild deed
not connected to any chain of title
O conveys Blackacre to A. A doesn’t record. A contest to B and B records.
O then conveys Blackacre to C. C does NOT have notice of B’s claim.
covenant of seisin
grantor possesses and passes both title and possession at time of grant
covenant for quiet enjoyment
grantor covenants that the grantee’s possession will not be disturbed by a lawful third party claim of title
quitclaim deed
releases whatever interest the grantor has; covenants of title neither included nor implied
three covenants which can only be breached at time of conveyance
seisin
right to convey
against encumbrances
what if a grantor purports to convey a property she does not own, then she subsequently acquires it?
the property automatically goes to the grantee (unless the grantor only ever conveyed a quitclaim deed)
impact of deed to a dead person
void, even if grantor was unaware of the death. title remains with grantor
impact of grantee returning deed to grantor
none: grantee must draw up and deliver a new deed to return title
Valid delivery when a grantor transfers to grantee via third party WITHOUT CONDITION?
Valid is grantor gave such instructions.
Without instructions, validity depends on how the third party is construed. If grantor’s attorney, delivery valid. If considered grantor’s mere agent, delivery invalid because grantor did not pass power.
Valid delivery when a grantor transfers to grantee via third party WITH CONDITION?
Commercial transaction.
Valid, and parol evidence is admissible to show condition.
When a grantor transfers to donee via third party WITH CONDITION, may grantor revoke?
Yes, so long as condition is not grantor’s death and there is no enforceable contract to convey.
necessary inclusions for a valid deed
in writing
signed by grantor
reasonably identify parties and land
deed valid if name of grantee or land description blank?
generally valid without grantee’s name
land description blank, deed void unless grantee was expressly given authority to fill it in
how precise must a deed’s land description be?
must provide a GOOD LEAD
“all my land in Auburn”
Is parol evidence available to explain a good lead?
Yes, but not admissible if the land description is totally silent.
Doctrine of equitable conversion
Once contract is signed, buyer owns real property and seller’s proceeds are personal property
Once a land sale contract is signed, who bares risk of loss prior to closing?
Majority places risk on the buyer
BUT seller must credit any fire/casualty insurance proceeds received against the purchase price
Is title acquired by adverse possession marketable?
no
May seller satisfy a mortgage or lien with sale proceeds at closing?
yes
Do zoning restrictions impact marketability?
Not unless there is an existing violation. Then, title is unmarketable.
Does implied covenant of marketability apply after closing?
No. The seller is no longer liable on the implied covenant after closing. Then, seller is liable only for express promises made in the deed.
Who assesses marketability of title and what are those responsibilities?
Buyer must notify seller is title is unmarketable, and provide reasonable time to cure.
Does a quitclaim deed affect the implied covenant to provide marketable title?
No. But the covenant still goes away if the buyer doesn’t look into marketability and closes on the sale.
In conveying land sale contracts, is the closing date binding?
No. Courts presume time is not of the essence. A party rendering late performance can still enforce the contract within a “reasonable time” (maybe two months).
adverse possession elements
actual entry
open and notorious
adverse/hostile
continuous through statutory period
May two or more people obtain title by adverse possession?
Yes: they take as TC.
For adverse possession, does the statutory period begin to run if the true owner was disabled when the cause of action first accrued?
no
Is adverse possessor subject to restrictive covenants on the land?
Not if she used the Landin violation of the restrictive covenant for the statutory period.
What land cannot be adversely possessed?
government-owned land
land registered under Torrens system
equitable servitude
covenant
regardless whether it runs with the land at law, equitably enforced against assignees of burdened land who have notice
(remedy usually injunction)
May a single promise create an equitable servitude and a real covenant?
yes, generally! diff is often remedy sought
Do real covenants and equitable servitudes require a writing?
Real covenants always do.
Equitable servitudes generally do, though they may be implied from a common scheme for development in a subdivision.
What if a subdivision developer begins selling lots with a restrictive covenant after the first few are sold?
The restrictive covenant does not apply to the first few.
Is there horizontal privity between two landowners who agree to maintain a fence between their properties?
No. Must have grantor/grantee, landlord/tenant type of relationship.
For an equitable servitude, what is required for a benefit or burden to run?
benefit:
intent
touch and concern
burden: add vertical privity
For a real covenant, what is required for a benefit or burden to run?
benefit:
intent
touch and concern
notice
burden:
add horizontal, vertical privity
May a license be transferred?
No, it’s inalienable. Any attempt to transfer results in revocation by operation of law.
If a grantor orally grants an easement for more than a year what result?
Unenforceable because it’s not in writing, but the grantee does have a valid easement.
When do easements created by necessity end?
As soon as the necessity ends.
Remedy for overuse or misuse of an easement?
Injunction. Does not terminate!
Time-limit of an easement
Presumed perpetual unless the grant specifically limits
affirmative easement
holder makes affirmative use of the servant tenement
negative easement
holder entitled to compel possessor of servant tenement to refrain from certain activity on the servient estate
easement appurtenant
dominant tenement gets to use or enjoy the servient tenement
Does an easement appurtenant pass with transfer of benefitted land?
Yes, regardless whether mentioned in the conveyance.
May an easement appurtenant be conveyed apart from the dominant tenement?
No, unless conveyed to the owner of the servient tenement to extinguish the easement.
easement in gross
holder acquires right to use servient tenement independent of possession of another tract of land
Are easements in gross transferrable?
Not for personal use (right to swim in a lake), but they are for commercial use (right to erect billboards, etc.)
Methods of creating an easement
express grant or reservation
implication
prescription
express easement grant
memorialized in writing, signed by servient tenement holder (unless for less than a year)
generally must reasonably identify parties and land, like a deed
express easement reservation
grantor conveys title to land but reserves the right tot continue to use the tract for a special purpose
May a grantor reserve an easement for someone else’s use?
Generally not.
easement by prescription and elements
easement acquired by adverse possession
open and obvious
adverse
continuous and uninterrupted
for statutory period
Does an easement holder have duty to make repairs?
Yes, if he is the sole user.
Does overuse or misuse of an easement terminate the easement?
No, but the servient owner may file for an injunction.
Are easements, covenants and servitudes considered possessory interests?
No, they are nonpossessory interests in land. they create a right to use land possessed by someone else.
fixture
chattel that has been affixed to the land such that it ceased to be personal property and becomes part of the realty
Do chattel become fixtures in landlord-tenant property?
Generally, tenants are deemed to lack intent to permanently improve the premises, so they can remove their chattels before the end of the lease so long removal does not substantially damage the premises or destroy the chattel.
At common law, does a landlord have a duty to make premises safe?
No. Exceptions:
must disclose concealed dangerous conditions known or should’ve known about
common areas
knows/should’ve known of dangerous condition and failed to repair despite knowing tenant may admit the public before repair
furnished short-term residence (like summer cottage)
negligent repairs (regardless whether there was a duty to make them)
landlord contracts to repair
Per modern trend, does a landlord have a duty to make premises safe?
landlords owe reasonable care and are liable for negligence when there is notice of a defect and opportunity to repair.
Differentiate leasehold assignments and subleases
assignment: complete transfer for remaining term
sublease: transfer for part of the remaining term
consequences of assignment
assignee is liable for covenants that run with the land, and pays rent directly to the landlord
consequences of sublease
rent to lessee
not liable for any covenants unless expressly assumed
May a valid covenant against assignment be waived?
Yes, if landlord is aware and does not object
Is a landlord in breach if he has not evicted a holdover tenant by the beginning of someone else’s lease term?
Yes. Most states require the landlord to put the tenant in ACTUAL possession.
quiet enjoyment
implied covenant in every lease: no interference with tenant’s quiet enjoyment and possession of premises
what breaches the implied covenant of quiet enjoyment?
actual, partial, or constructive eviction
impact of partial eviction on rent?
if partially evicted by the landlord, tenant no longer liable for any rent
if partially evicted by a third party with paramount title, tenant pays reduced rent
constructive eviction elements
landlord breaches duty
breach substantially, materially deprives tenant of use/enjoyment
tenant gave landlord notice and reasonable time to repair
tenant vacated premises after reasonable time
constructive eviction remedy
tenant may terminate lease and seek damages
May a tenant who remains on the premises claim constructive eviction?
No.
Is an implied warranty of habitability waivable?
No.
Tenant’s options when an implied warranty of habitability is broken?
terminate lease
make repairs and offset cost against future rent
abate rent in amount equal to fair rental value given defects
remain in possession and pay full rent, and sue for damages
Does implied warranty of habitability apply to commercial tenants?
No
voluntary/affirmative waste by leasehold tenant
intentional or negligent property damage or mineral exploitation
permissive waste by leasehold tenant
tenant fails to take reasonable steps to protect premises from ordinary damage from the elements
tenant is liable for all ordinary repairs
ameliorative waste by leasehold tenant
tenant alters property and increases its value
leasehold tenant generally liable for costs unless he is long-term and the change reflects changes in the neighborhood
Landlord remedies when tenant on premises fails to pay rent
evict or sue for rent
unlawful detainer statute
state law permitting landlord to sue tenant on premises and not paying rent for rent, or to evict
only issue is whether tenant has right to possession
tenant may not bring counterclaims!
May tenant bring counterclaims in an unlawful detainer proceeding?
no
If tenant abandons, does the landlord have any duty?
Yes: dusty to mitigate damages by seeking to relet the premises.
tenancy for years
definite ending date, at which the lease automatically terminates
also terminates if the tenant surrenders and landlord accepts
periodic tenancy
continues for successive period until terminated by proper notice of either party
how can a periodic tenancy be created?
express agreement (month to month lease)
implication (L leases to T at $1000 rent payable monthly)
operation of law (T remains in possession after lease expires, and L treats it as a periodic tenancy)
tenancy at will
at creation, both parties expressly agree the lease is terminable by notice of either party (also terminated by operation of law, like death)
tenancy at sufferance
holdover: tenant wrongfully remains in possession after lease ends
lasts until landlord evicts, at which point notice is not required
holdover doctrine
if tenant continues possession after right to possession ends, landlord may evict or bind him to a new periodic tenancy (generally under same terms).
holdover doctrine exceptions
landlord can’t bind tenant to new tenancy when:
tenant remained in possession for only a few hours after termination, or left a few items of personal property behind
delay is not tenant’s fault (sickness, etc.)
joint tenancy with rights of survivorship
held in equal shares, and whomever outlives takes all.
full equality: holders must take identical interests at the same time by the same instrument with the same right to possession
impact when a joint tenant conveys her undivided interest (whether voluntarily or involuntarily)
JT destroyed and transferee takes as TC
Does a lien against a joint tenant sever the tenancy?
Only when actually sold at foreclosure.
tenancy by entirety
marital estate akin to joint tenancy
only severed by death, divorce, mutual agreement, execution by joint creditor
May an individual spouse convey or encumber TE property?
No.
Which concurrent estates include right of survivorship?
JT, TE, not TC
conveyance language for JT
To A and B as joint tenants with the right of survivorship
without survivorship language, may be construed as TC
conveyance language for TE
To A and B (when they’re married)
conveyance language for TC
To A and B
or
To A and B as joint tenants (w/o survivorship language)
What happens to JT if one tenant murders the other?
Converts to TC and victim’s heirs inherit his interest
Are TCs entitled to possess the whole?
Yes, even if they have less than equal interests
Must a co-tenant in possession share profits from her own use of the property with other tenants not in possession?
No, but she must share net rents from third parties and net profits gained from exploitation of the land like mining.
Do mortgage or foreclosure sever JT?
Mortgage won’t, but foreclosure will.
Risk run by mortgagee when someone mortgages their interest in a JT
If obligated co-tenant dies before foreclosure, mortgagee’s interest is extinguished.
Impact of disabling restraint on any legal interest
Always void.
Rule Against Perpetuities
No interest in property is valid unless it must vest within 21 years after the measuring life.
Any possibility that the interest might take more than 21 years to vest voids the interest.
When does RAP begin to run?
For wills, from testator’s death
For deeds, from date of delivery
Does RAP apply to vested interests?
No
To A when and if he becomes a doctor
Springing executory interest
To A for life, then two ears after A’s death, to B
Springing executory interest
To A for life, remainder to B and her heirs; but if B predeceases A, then to C and his heirs
What does C have?
Shifting executory interest
To A for life, then to B if B marries C
Contingent remainder
To A for life, then to A’s surviving children
Contingent remainder
To A for life, and on A’s death, to B; but if B predeceases A, then to C.
What does B have?
Vested remainder subject to total divestment
To A for life, then to B
Indefeasibly vested remainder
Trust
Settlor owns property and, with intent, appoints trustee to hold legal title subject to enforceable equitable rights in a beneficiary
Rule of Convenience
Absent express contrary intent, a class closes soon as some member of the class can call for distribution.
T’s will devises the residue of his estate “to those of A’s children who attain the age of 21.” When does the class close if none of the children are 21 at T’s death?
When one of A’s children reaches age 21.
T’s will devises the residue of his estate “to A for life, then to those of A’s children who attain the age of 21.” Who gets what when?
A for life, then the class remains open until A’s death, even if some of A’s children were 21 at T’s death.
Are persons in gestation at the time a class closes included in the class?
Yes
“O to A for life.” What does O have?
A reversion
Are reversionary interests vested?
Yes, so never subject to the Rule Against Perpetuities.
Remainder
Future interest in a third person that can become possessory on the natural expiration of the preceding estate
Indefeasibly vested remainder
Created in an existing, ascertained person; not subject to condition precedent
Vested remainder subject to open
Created in a class of persons that is certain to become possessory but may grow (e.g., by birth of additional persons)
Vested remainder subject to total divestment
Created in a person and subject to a condition subsequent
O to A for life, then to the children of B. A and B are living and B has one child, C. What does C have?
Vested remainder subject to open
O to A for life, then to B and his heirs but if B dies unmarried, then to C and his heirs. What do B and C each have?
B has a vested remainder subject to total divestment, and C has an executory interest
Contingent remainder
Created in unborn or unascertained persons, or subject to a condition precedent
O to A for life, then to B and his heirs if B marries C. What does B have?
Contingent remainder subject to condition precedent
He must marry C before he can take possession
O to A for life, then to B and his heirs if B marries C, otherwise to D and his heirs. What do B and D have?
B and D have alternative contingent remainders.
O to A for life, then to B and his heirs; but if B marries C, then to D and his heirs. What do B and D have?
B has a vested remainder subject to divestment by D’s executory interest.
B has a vested remainder because there is no condition precedent.
O to A for life, then to B’s children. Before B has children, O purchases A’s life estate in a separate instrument. What is the result?
O has a life estate purchase autre vie and a reversion, which merge, destroying the contingent remainder in B’s unborn children.
ameliorative waste by life tenant
change that benefits the property economically
permissible if market value isn’t demised
AND
remaindermen do not object, or substantial, permanent change in neighborhood conditions deprived property of reasonable usefulness in its current state
permissive waste by life tenant
failure to:
preserve land/structures in reasonable state of repair
pay interest on mortgage
pay ordinary land taxes
pay special assessments for public improvements
Duty LIMITED to extend to profits generated from the land (or reasonable rental value if there’s no profit)
affirmative waste by life tenant
Exploitation of natural resources BEYOND
what’s necessary for repair or maintenance
suitable use
what’s permitted by grantor
Open mines doctrine
Life tenant may continue finding conducted on the land prior to the life estate, but only through mines already open
life estate pur autre vie
Life estate measured by the life of another
defeasible fee
Uncertain or potentially infinite duration, terminated on the happening of a stated event
What type of language is necessary to establish a fee simple determinable?
durational language–must expressly speak to time
while, during, until, for so long as
fee simple subject to condition subsequent
estate in which grantor reserves tight to terminate on happening of a stated event
fee simple determinable creates what future interest in grantor?
possibility of reverter
fee simple subject to condition subsequent creates what future interest in grantor?
right of entry, if expressly reserved
How will most courts likely interpret a convenes containing both duration language and a power of termination?
Fee simple subject to condition subsequent, because the forfeiture is optional and policy disfavors forfeiture of estates.
fee simple subject to executory interest
fee simple estate which terminates either as determinable or subject to condition subsequent, then passes to a THIRD PARTY (rather than reverter or right of entry)
When will conditions and limitations on executory interests be struck?
When in violation of public policy, like penalizing marriage.
To A and his heirs for so long as liquor is not sold on the premises; in that event, to B.
A has FSD, B has a shifting executory interest.
But RAP likely applies, and because of the durational language “for so long as,” A has a fee simple determinable, and O has a possibility of reverter.
To A, but if liquor is ever served on the premises, then to B.
A has fee simple subject to condition subsequent, and B has a shifting executory interest.
But RAP applies, and because of the conditional (not durational) language, B’s interest and the condition are stricken, and A holds in FSA.
Shifting executory interest
Comes from a preceding transferee’s estate
rather than from the grantor’s estate
Springing executory interest
Comes from the grantor’s estate
O to A and his heirs when A marries B.
What does A have?
Springing executory interest
O to A for life, then to B and his heirs; but if B predeceases A, then to C and his heirs.
What does C have?
Shifting executory interest
If a sale of foreclosed property does not bring enough profit to satisfy the mortgage debt, against whom can the mortgagee/lender bring a personal action for the deficiency?
The mortgagee/lender can bring a personal action against the mortgagor/debtor for the deficiency (as long as the jurisdiction does not bar deficiency judgments).
When the mortgagor sells the mortgaged property and gives a deed, how does the grantee take?
The grantee takes subject to the mortgage, which remains on the land.
Mortgagor sells mortgaged property and gives a deed. If the grantee does not sign an agreement to assume the mortgage, who is liable for the mortgage?
The original mortgagor remains personally liable.
Grantee does NOT become personally liable on the loan.
Mortgagor sells mortgaged property and gives a deed. If the grantee signs an assumption agreement, who is liable and who benefits?
Mortgage lender = third-party beneficiary of the assumption agreement, and may recover from:
assuming grantee (primarily liable) or original mortgagor (secondarily liable)
In foreclosure proceedings, when does a statutory right of redemption kick in?
AFTER a foreclosure sale
May a “course of dealing” interpretation be used to supplement vague terms in a real estate contract?
No! Course of dealing is UCC parlance, applicable only to the sale of goods.
“No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.”
What type of jurisdiction?
race-notice
A landowner owned a large tract of land containing numerous coal mines. To finance the renovation of some of the buildings on the land, the landowner obtained a $50,000 mortgage from a bank. Shortly thereafter, the landowner conveyed the surface of the land to his sister and the mineral rights to a utility company. The bank recorded its mortgage the next day; the day after that, the utility company recorded its deed; the following day, the sister recorded her deed. None of the parties dealing with the landowner had any knowledge of the others at the time of their transactions.The jurisdiction in which the land is located has the following statute: “No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.”If the sister brings an action to quiet title to the land, what would be the most likely result?
The sister would have a fee simple interest subject to the mineral rights of the utility company and the mortgage held by the bank.
For the adverse element of adverse possession, need the “hostility” be mean spirited?
No. Requires
- actions appear to community as ownership claim
- not holding w/true owner’s permission
Must a grantee accept a deed for delivery to be effective?
Yes.
If a party begins tolling adverse possession BEFORE the landowner conveys the land to a minor, will the minor’s disability status impact tolling?
Not if the minor was born after tolling began. For disability status to impact tolling, the disability must be at issue at the time the tolling would naturally begin.
Does a transfer in true ownership interrupt the statutory period for adverse possession?
No.
