Real Property Flashcards
What are the elements of adverse possession?
Exclusive
Open notorious
Hostile
Continuous
What is adverse possession?
Allows one who has wrongfully entered a property to take possession of it where there has been exclusive, open and notorious, hostile, continuous possession of the land
Define actual possession for the purpose of adverse possession?
True owner excluded
Can only claim land used
Can lease to tenant to satisfy actual possession
How is open and notorious possession determined?
Using the land as a typical owner would
Puts true owner on notice of trespass
How is hostile possession determined for adverse possession?
No permission
Boundary disputes = hostile
Ouster of co-tenant
How is continuous possession defined for adverse possession?
20 years at common law
Owner does not regain possession
Seasonal use can satisfy (as long as only true owner would use land that way)
Tackling permitted where adverse possessors in privity
What is the effect of adverse possession?
Marketable title not conveyed unless title perfected and made marketable by judicial action to quiet title
What are the sof requirements for a land transfer?
Writing Name parties Signed Describe land State consideration
What are the part performance exceptions to sof?
Possession + payment
Substantial improvements
Conveyance made by seller
What is the implied promise in every land transfer agreement?
Marketable title
What is the doctrine of equitable conversion?
Buyer is owner of property after signing of contract, before closing
What are the remedies for breach of land sale?
Specific performance
Damages
How are damages calculated in a sale of land contract?
Difference between market price and contract price
What are the requirements for specified performance to apply?
Valid contract Conditions satisfied Inadequate legal remedy Mutual performance Feasible enforcement No defenses
Chocolate cheesecake is my favorite dessert
When might there be an inadequate legal remedy such that specific performance is appropriate?
Damages too speculative
Defendant insolvent
Possible multiple suits
Property unique
Speculative, insolvent, unique suits
What are the defenses to a breach of a sale of land contract?
Laches Unclean hands Lack of consideration Sof Sale to a bona fide purchaser
Define mortgage
A financing agreement that conveys a security interest in the land where parties intend land to be collateral for the repayment.
Is there a writing requirement for a mortgage?
Yes!
What is the mortgage exception to sof?
An equitable mortgage
What are the buyer’s rights under a mortgage?
Possession
Title
What are the creditor’s rights in a mortgage?
Lien which allows him to look to mortgage in the event of default
Are mortgages transferable?
Yes
What is a foreclosure?
Mortgagee seeks land when mortgage defaults
What is the effect of an anti deficiency statute?
Limits lender to value of loan
Excess goes to buyer from proceeds of sale after paying off debts
What is a deficiency judgment?
A judgment holding someone personally liable for debt not recovered from foreclosure.
Property worth less than loan.
Lender can only sue debtor personally for difference if:
- judicial foreclosure
- loan was not purchase money mortgage
What is the difference between an installment contract and a mortgage?
Buyer does not get title until payment completed where there is an installment contract
What happens if a buyer defaults on an installment contract?
Seller gets back property
Seller keeps payments
What are the requirements of a conveyance by deed?
Identification of parties
Signature of grantor
Description of property
No consideration required
What is a quitclaim deed?
Conveys grantor’s interest in property, but contains no covenants of title
What are the present covenants for title that may be breached at the time of sale?
Seisin (grantor owns property)
Right to convey
Against encumbrances
What are future covenants that may be breached when grantee is disturbed in possession?
Warranty of title
Quiet enjoyment
Further assurances
How may a deed be delivered?
Physical transfer
Intent to present transfer
Acceptance of deed by grantee
When does title pass from grantor to grantee?
Immediately upon delivery of the deed
What factors create a presumption of intent to make a present transfer of deed?
Recording of deed
Grantor giving deed to grantee
What is the merger doctrine?
Upon closing, the deed rather than the land sale contract becomes the operative document.
Obligations in the contract are discharged at closing unless repeated in the deed.
What is ademption?
A testator decided a specific property to a specific party under his will, but that property is no longer part of his estate.
A gift that is adeemed fails.
What is exoneration?
Where a party receives a bequest of a specific property that is subject to a lien, the encumbrance is paid off with estate’s personal property.
Recipient receives a free and clear property.
What is lapse?
If a beneficiary named in a will predecessors the testator, the bequest fails.
What is an antilapse statute?
If beneficiary predeceases the testator, decreased’s heirs take the property
What time applies in absence of a recording act?
Common law, first in time, first in right
What are the three types of recording acts?
Pure race
Pure notice
Race-notice
What is a pure race statute?
First to record wins
What is a pure notice statute?
Subsequent bona fide purchaser wind over a grantee who didn’t record
What is a race-notice statute?
A subsequent bfp that records first prevails over a grantee that didn’t record first
What is a bona fide purchaser?
One who takes property for value
Without notice of prior interest
Do recording acts protect donees?
No, they don’t take for value
Who do recording acts protect?
Bfps
Subsequent grantees
What instruments do recording acts apply to?
Conveyances Easements Mortgages Life estates Restrictive covenants
Mr. Cel
What are the three types of notice of a prior interest?
Actual notice
Record notice
Inquiry notice
What is inquiry notice?
Purchaser is property is in possession of facts that would lead a reasonable person to make a further inquiry
What is estoppel by deed?
One purporting to own property conveys interest, later obtains interest, cannot dent validity of that conveyance
What is the shelter doctrine?
One who takes property from a bfp will stand in the shoes of the bfp and will prevail against any entity against which the transferor-bfp would have prevailed
What is fee simple absolute?
A freehold estate that conveys absolute ownership
What is fee tail?
Allows landowner to ensure real property remains within family
What is fee simple defeasible?
Allows property to be held/conveyed to another subject to a stated limitation
What are the stated limitations under fee simple defeasible?
Fee simple determinable
Fee simple subject to condition subsequent
Fee simple subject to executory limitation
What is fee simple determinable?
A type of fee simple defeasible that:
Automatically terminates a possessory interest in land at the occurrence of a specified event
Grantor retains possibility of reverter
Created by words of duration
What is fee simple subject to condition subsequent?
A type of fee simple defeasible which can terminate the possession of an estate at the occurrence of a stated event, but not automatically
Grantor retains right of reentry
What is fee simple subject to executory limitation?
Automatically terminated a preceding estate at the occurrence of a stated event, but estate passes to third party rather than revert to grantor
Third party holds future interest
What is a life estate per autre vie?
A life estate that lasts for lifetime of third party
May a life estate be defeasible?
Yes
May a holder of a life estate convey his interest?
Yes, but not more than what he holds
What duty does the holder of a life estate have?
Not to commit waste on the land
What language establishes a fee tail?
To “a” and the heirs of her body
Modernly, what does an attempt to create a fee tail establish?
Fee simple absolute
What are the characteristics of fee simple absolute?
Absolute ownership Infinite duration Freely divisible Freely descendable Freely alienable
Does a living person have heirs?
No, just potential heirs
Historically, what was the effect of a fee tail?
Title passed by operation of law to blood descendants upon death
What is a defeasible fee?
An interest in real property that has the possibility of being taken away
What language indicates a fee simple determinable?
So long as
Until
During
Provided that
What is the effect of a violation of a fee simple determinable?
Automatic reversion to the grantor
Where there is a fee simple subject to condition subsequent, what happens when the condition occurs?
Nothing until the grantor exercises her right of reentry
How do courts generally interpret defeasible fees?
Disfavored, policy against restraints on alienation.
Require clear durational language.
What is the effect of absolute restraints on alienation?
Void and unenforceable
What are the rights of a life tenant?
Ordinary use and profits of the land
What are the duties of a life tenant?
Duty not to commit waste
When may a life tenant exploit land?
Where exploitation was prior use of land
Reasonable repairs and maintenance
Only suitable use of land
Open mines
Express authorization
What’s the difference between fee simple determinable and fee simple subject to condition subsequent?
Fee simple determinable = automatic reverter
Fee simple subject to condition subsequent = right of reentry
What does a failed attempt at an easement create?
A license
Whose interests are being divested in a springing executory estate?
The grantor
Whose interests are being divested in a shifting executory estate?
The transferee
Do joint tenants have the right of survivorship?
Yes
What is a tenancy in common?
A concurrent estate where each co-tenant retains an undivided interest in the whole property.
What is a joint tenancy?
A concurrent estate where each tenant owns an undivided interest in the whole property with right of survivorship.
How is joint tenancy created?
With unity in time, title, interest, possession
What is the effect of an oral easement?
Unenforceable, creates a freely revokable license
What is required for a covenant burden to run with the land?
Writing Intent Touch and concern land Horizontal privity Vertical privity Notice
Witch van
What is a reversion?
A future interest retained by the grantor when he transfers less than a fee interest
Transferable, devisable and descendable
When is a remainder vested?
No condition precedent
Will be received by ascertainable person
What is a vested remainder subject to open
Made to a class
One ascertainable member
Others may join later
Subject to rap
What kind of language for
- fee simple determinable
- fee simple subject to condition subsequent
Durational
Conditional
What is a remainder?
An interest created in a third party which follows naturally the termination of a proceeding estate
What is permissive waste?
Damage to the property by failure to take reasonable steps to protect it.
Ex. Not putting up hurricane shutters
What’s the difference between ameliorative waste at common law and at modern law?
At common law couldn’t improve property and liable to restore land to original condition; at modern law, can improve property if not impacting market value and permitted by owner or if justified by a change in the neighborhood.
What is the difference between a vested remainderman’s and a contingent remainderman’s right to sue?
Vested can sue for injunction and damages, contingent can only sue for injunction
When is a total restraint on alienation permissible?
If it’s on less than a fee and is reasonable
What is the common law rule against perpetuities?
No interest is good unless it must best within 21 years in some life in being at the creation of the instrument.
When does the rule against perpetuities apply?
Three future interests:
Executory interest
Contingent remainder
Vested remainder subject to open
A concurrent estate under modern majority rule is that a conveyance to two or more people is presumed to be…
A tic
Unless stated right of survivorship specifically
What four unities for joint tenancy?
Time
Title
Interest
Possession
Modernly, just interest and possession.
Which unities does tic require?
Possession
What happens if a JT mortgages his interest?
JT not severed - Lein Theory
JT seceded - title theory
What are common defects to title?
Mortgage
Adverse possession
Zoning violation
Easement
What are the requirements of a valid deed?
Id parties
Intent to transfer
Id property
Signature of grantee
Who is a bona fide purchaser of land?
Pays value
Doesn’t know about other claim
In a notice jurisdiction, how does a subsequent grantee win ownership of property?
Be a bfp
Not have notice of prior grant
In a race-notice jurisdiction, how does a subsequent grantee win?
Be a bfp
Record first
What is estoppel by deed?
Someone conveys property they don’t have, later acquire, can’t deny title
What is the order of payment from proceeds from a foreclosure sale?
Pay cost of sale
Pay debt
What is the statutory right of redemption where there is a foreclosure sale?
Debtor can buy property from whoever bought it at foreclosure for the price they bought it at the foreclosure sale
What’s the difference between taking a property subject to mortgage and assuming the mortgage?
If mortgage assumed, grantee personally liable on it
If subject to mortgage, debt is on the land
What is required for an easement by conveyance?
Previous common ownership of dominant and servient estate
Prior use/quasi easement
Reasonable necessity
What happens when an easement is surcharged?
Overused, servient estate can sue to enjoin or seek damages from dominant estate
How is an easement terminated?
- Merger
- Abandonment = lack of use + word/act indicating intent to abandon
- Written release - per sof
- Detrimentally relying on abandonment
- Attempt at severance.
Wadma
What happens to an easement when the servient estate is sold to a bona fide purchaser without notice?
Easement terminates
What is a profit right to a property?
Can enter and take something off someone’s land (minerals, water)
Can only be created expressly or by prescription
What is a license interest?
Personal right, not land interest
Can be oral
Freely revocable
What is the difference between a breach of a covenant v. an equitable servitude?
Covenant breach = damages
Equitable servitude breach = injunction
What is the riparian view of water rights?
If you’re using a reasonable amount, not liable for causing lower users to suffer
When is the sale of crops a sale of goods and when is it a sale of real property?
If seller severs, sale of goods
I’d buyer severs, sale of land
Can a lease be oral?
Yes if for less than one year
What is a periodic tenancy?
Self-renewing tenancy
Created by words or implication
Holdover tenant; indefinite term
Must give notice of intent to terminate.
How much notice must be given to end a periodic tenancy?
Equal to the rental period up to 6 months
What factor determines whether a holdover tenant is a periodic tenant or a tenant at sufference?
Whether the landlord accepts rent
What does a tenant at sufferance owe?
Reasonable rental value of property
What is a partial eviction by a landlord?
Landlord puts stuff on tenant’s property preventing tenant from full use of property.
Excuses tenant from paying any rent.
What is the difference between an equitable servitude and a covenant?
Equitable servitudes have no privity requirement and are enforced in equitable relief only
How is an implied equitable servitude established?
- Original owner intended a common plan or scheme
2. Purchaser has notice of scheme
