Real Property Flashcards
Fee simple absolute
Absolute ownership of potentially infinite duration (e.g., “To A” or “to A and his heirs”)
Freely alienable and no accompanying future interest
Fee simple determinable
Limited by specific durational language (e.g., “so long as,” “while,” “during,” “until”)
Automatically terminates upon happening of stated event and reverts to grantor (possibility of reverter)
Fee simple subject to condition subsequent
Limited by specific conditional language (e.g., “upon condition that,” “provided that,” “but if,” “if it happens that”)
Grantor reserves the right to terminate estate early upon happening of stated event (right of re-entry)
Fee simple subject to executory interest
Present fee simple that is limited by specific durational or conditional language
Automatically terminates upon happening of stated event and title passes to third party (executory interest)
E.g., “To A, but if X event occurs, to B.”
Life estate
Present possessory estate fully transferrable during measuring life
Rights/duties
- Right to possess
- Right to collect rents/profits, lease/sell/mortgage (must pay taxes on income or rental value of land)
- Duty not to commit waste
Affirmative waste
Occurs when overt conduct causes a decrease in property value
Permissive waste
Occurs when a tenant permits the premises to deteriorate through neglect or failure to preserve/protect and causes a decrease in property value
Ameliorative waste
Occurs when a change in use of the property increases its value
Reversion
Held by grantor who transfers a LE without conveying remaining FI to third party
Possibility of reverter
Automatically reverts back to grantor upon occurrence of stated event when FSD conveyed
Right to reentry
Held by granter after FSSCS granted
Remainder
FI that becomes possessory upon expiration of prior estate of known fixed duration created in the same conveyance in which the remainder is created
Vested – not subject to condition precedent and has ascertainable grantee
- Vested subject to open (class gifts) – group of unspecified persons whose number, identity, and share of interest is determined in future; subject to RAP
a. Rule of convenience – closes class when any class member is entitled to immediate possession - Vested subject to complete divestment – occurrence of condition subsequent will divest the remainder
Contingent – created in unascertainable grantee or is subject to express condition precedent to grantee’s taking; subject to RAP
Executory interests
FI in third party (not remainder) that cuts prior estate short upon occurrence of specified condition; transferrable and subject to RAP
- Shifting – shifts from one grantee to another
- Springing – divests grantor
Rule Against Perpetuities
Specific FIs are valid only if they must vest or fail by the end of a life in being plus 21 years
If there is ANY possibility that it will not be known whether the interest will vest or fail within the applicable period, then RAP has not been satisfied
Measuring life
If not specified, it is the life directly related to the FI that is subject to RAP
Tenancy in common (default)
- Two or more grantees with unity of possession
- No right of survivorship
- Each co-tenant holds undivided interest with unrestricted rights to possess whole
- Interest freely devisable/transferable
Joint tenancy
- Requires express language creating JT
- Two or more tenants own the property with ROS
- Interest is alienable (but not devisable/descendible)
- Four unities
1. Equal rights to possess the whole
2. With identical equal interests
3. Created at same time
4. By the same title - Severance – converts to TIC (but only with respect to the severed share)
Tenancy by entirety
- JT between married persons with ROS; fifth unity of marriage
- Neither party can alienate or encumber the property without consent of other
Partition
Partition in kind – physical division of property
Partition by sale – sale of property; less-preferred method; only when physical division is not fair/feasible
Tenancy for years
- Any fixed period of time
- Created by express agreement
- Term longer than one year must in writing to satisfy SoF
- Automatically terminates at end of term (no notice required)
- May be terminated before end of term (e.g., breach of lease covenant)
Periodic tenancy
- Repetitive, ongoing estate by set periods of time with no predetermined termination date
- Automatically renews at end of each period unless valid termination notice
- SoF does not apply
- Created by express agreement, implication, or operation of law (holdover tenant)
- Termination notice –must be given before last period begins; late notice is effective for next period; generally effective as of last day of period
Tenancy at will
- Does not have specific term; continues until terminated by L or T
- Created by express agreement or implication
- May be terminated by either party at any time, but reasonable demand to vacate usually required; may also be terminated by operation of law
Tenancy at sufferance (holdover tenancy)
- T wrongfully remains in possession after expiration of lease
- T is bound by terms of lease that existed before expiration, including payment of rent
- Tenancy lasts until T vacates L, L evicts T, or L elects to hold T to periodic tenancy
Duties of tenant
- Pay rent – unless premises destroyed or material breach by L
- Avoid waste
- Repair – non-residential leases
- L’s remedies for T’s breach
a. Failure to pay rent – L can sue for damages and evict
b. Abandonment – L can retake premises if T abandons but L must mitigate damages by re-renting premises; T will be L for any deficiency
c. Holdover T – L can accept as periodic tenant or tenant at sufferance or sue after notice to vacate
Duties of landlord
- Possession – generally, L must delivery actual physical possession; some states only require L to deliver legal possession
- Repair – L must repair for residential but not commercial leases
- Warranty of habitability (residential) – premises must be fit for basic human habitation and if breached
- T must notify L of defect and given reasonable time to repair, and
- If L does not do so, T can refuse to pay rent, make seek reasonable repairs and deduct costs from future rent, or remain in possession, pay rent and seek damages - Covenant of quiet enjoyment (commercial and residential)
- T has right to quiet use and enjoyment of premises without interference from L
- L has duty to control other tenants’ nuisance in common areas
Constructive eviction
- Substantial interference caused by L’s actions or failure to act
- T must give reasonable notice of problem
- L fails to respond
- T must vacate premises within reasonable time after L fails to fix problem
Land sale K – SoF
- Must be in writing,
- Signed by party to be charged, and
- Contain all essential elements (parties, property description, terms of price/payment)
Exceptions
- Partial performance – need to of following: (1) possession; (2) payment (all or part); (3) improvements to land
- Detrimental reliance
Marketable title
- Title free from defects or unreasonable risk of litigation
- Seller generally not required to delivery marketable title until closing
- Buyer can rescind/recover out-of-pocket and earnest money payments, sue for breach, or due for SP with an abatement of purchase price
Implied warranty of fitness
Only for new homes, and disclosure duty of known material physical defects not readily observable/known to buyer for all homes
Duty to disclose defects
Seller must disclose all known material physical defects not readily observable
Merger
Land sale K’s obligations merge into the deed upon delivery
Equitable conversion
Although the seller retains legal title to the property during the pendency of the land sales contract, equitable title passes to the buyer upon entering the contract
Adverse possession
- Continuous/uninterrupted – through statutory period
- Seasonal use OK if consistent with type of property
- Tacking permitted but no gaps; need privity - Actual – open/notorious,
- Hostile – without owner’s possession and with intent to claim land as own
- Exclusive – possession cannot be shared with true owner
Delivery of deeds
At time of transfer, grantor must intend to make present transfer of property interest to grantee
Deed
Requirements
- Identify parties
- Grantor’s signature
- Words of transfer
- Reasonably definite property description
Recording acts
- Notice
- BFP without notice of prior interest prevails over prior grantee who failed to record - Race
- First to record prevails, regardless of knowledge - Race-notice
- Subsequent BFP only protected if he takes without notice and is first to record
IL is a race-notice jurisdiction
Types of notice
- Actual – actual, personal knowledge of prior interest
- Constructive (record) – properly recorded and appears in chain of title
- Inquiry – reasonable investigation would have disclosed prior claims
General warranty deed
Present covenants
- Seisin (grantor owns land as described)
- Right to convey (grantor has right to transfer title)
- Against encumbrances (no undeclared encumbrances)
Future covenants
- Quiet enjoyment (grantee not disturbed in possession by third-party claim)
- Warranty (grantor will defend grantee against third-patty claim)
- Further assurances (grantor will do whatever reasonably necessary to pass title if later determined it is imperfect)
Special warranty deed
Same covenants of title as GWD but only warrants against defects arising during time grantor had title
Quitclaim deed
No covenants of title
Mortgages
Document that conveys interest in RP as security for obligation
- Must be in writing
- Debtor/mortgagor has title and right to possession until foreclosure
- Creditor/mortgagee has lien and right to land if there is default
- Lien stays on land if mortgage properly recorded
- Creditor can foreclose by judicial proceedings which terminate junior interests; subordinate interests must be joined or remain on land; take subject to senior interests
IL DIS: “intermediate theory” state, where borrower owns property and lender only has a lien
Due-on-sale clause
Lender can demand immediate payment of full amount due
Due-on-encumbrance clause
Lender can accelerate mortgage upon second mortgage
Assuming vs. taking subject to mortgage
If transferee assumes mortgage, borrower is secondarily L
If transferee takes subject to mortgage, transferee is not personally L upon default
Equity of redemption
After default but before foreclosure sale, mortgagor may regain title by paying full amount of outstanding debt plus interest
Foreclosure
Mortgagee takes RP when mortgagor defaults
Methods – judicially supervised sale, private sale, or strict foreclosure
Priority – if two mortgages, foreclosure terminates junior interest and has no effect on senior
- First in time, first in right
- Exceptions
a. PMM – mortgage used to purchase RP generally has priority over others
b. Recording act
Express easement
Affirmatively created by parties in writing that satisfies SoF
Easement by necessity
Created when property is virtually useless without benefit of easement across adjacent property
- Estates must have been under common ownership and necessity must arise when estates were severed
Easement by implication
If the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the sale of the dominant parcel, the parties intended the easement to continue
- Easement previously used on servient estate by earlier owner
- Prior use was continuous, apparent, and reasonably necessary to dominant estate’s use/enjoyment
- Estates were once under common ownership
- Quasi-easement existed at severance
Easement by prescription
Similar to adverse possession, except relates to use
- Continuous
- Actual – open and notorious
- Hostile
- For statutory period
Easement by estoppel
Good faith, reasonable, detrimental reliance on permission by servient estate holder, issued to prevent unjust enrichment
Termination of easement
- Release – by writing that satisfies SoF
- Merger – owner of easement acquires title to underlying estate
- Severance
- Abandonment – affirmatively acts to show clear intent to abandon right
- Destruction/condemnation
Real covenants
Promises that concern the use of land
- Can be either affirmative (right to do something) or negative (restriction on doing something)
- Typical relief – damages
- Writing – SoF
- Intent – to run with land
- Touch and concern
- Notice (burden only) – must be constructive or actual
- Privity
a. Horizontal – burden only
b. Vertical – strict for burden and relaxed for benefit
Equitable servitudes
Agreement to allow for or limit the use of property
- Typical relief – injunction
- Intent to be enforceable by and against successors
- Touch and concern
- Notice – actual, record, or inquiry
Post-ordinance non-conforming property
Owner may request special exception permit or administrative variance (for use or area)
Party seeking variance must show
- Unique unnecessary hardship
- That hardship not self-induced, and
- That variance would not result in substantial harm
