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MBE > Real Property > Flashcards

Real Property Flashcards

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1
Q

Fee simple absolute

A

Absolute ownership of potentially infinite duration (e.g., “To A” or “to A and his heirs”)

Freely alienable and no accompanying future interest

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2
Q

Fee simple determinable

A

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)

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3
Q

Fee simple subject to condition subsequent

A

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)

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4
Q

Fee simple subject to executory interest

A

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.”

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5
Q

Life estate

A

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
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6
Q

Affirmative waste

A

Occurs when overt conduct causes a decrease in property value

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7
Q

Permissive waste

A

Occurs when a tenant permits the premises to deteriorate through neglect or failure to preserve/protect and causes a decrease in property value

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8
Q

Ameliorative waste

A

Occurs when a change in use of the property increases its value

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9
Q

Reversion

A

Held by grantor who transfers a LE without conveying remaining FI to third party

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10
Q

Possibility of reverter

A

Automatically reverts back to grantor upon occurrence of stated event when FSD conveyed

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11
Q

Right to reentry

A

Held by granter after FSSCS granted

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12
Q

Remainder

A

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

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13
Q

Executory interests

A

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
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14
Q

Rule Against Perpetuities

A

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

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15
Q

Measuring life

A

If not specified, it is the life directly related to the FI that is subject to RAP

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16
Q

Tenancy in common (default)

A
  • 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
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17
Q

Joint tenancy

A
  • 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)
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18
Q

Tenancy by entirety

A
  • JT between married persons with ROS; fifth unity of marriage
  • Neither party can alienate or encumber the property without consent of other
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19
Q

Partition

A

Partition in kind – physical division of property

Partition by sale – sale of property; less-preferred method; only when physical division is not fair/feasible

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20
Q

Tenancy for years

A
  • 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)
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21
Q

Periodic tenancy

A
  • 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
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22
Q

Tenancy at will

A
  • 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
23
Q

Tenancy at sufferance (holdover tenancy)

A
  • 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
24
Q

Duties of tenant

A
  1. Pay rent – unless premises destroyed or material breach by L
  2. Avoid waste
  3. Repair – non-residential leases
  4. 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
25
Q

Duties of landlord

A
  1. Possession – generally, L must delivery actual physical possession; some states only require L to deliver legal possession
  2. Repair – L must repair for residential but not commercial leases
  3. 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
  4. 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
26
Q

Constructive eviction

A
  • 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
27
Q

Land sale K – SoF

A
  • 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
28
Q

Marketable title

A
  • 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
29
Q

Implied warranty of fitness

A

Only for new homes, and disclosure duty of known material physical defects not readily observable/known to buyer for all homes

30
Q

Duty to disclose defects

A

Seller must disclose all known material physical defects not readily observable

31
Q

Merger

A

Land sale K’s obligations merge into the deed upon delivery

32
Q

Equitable conversion

A

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

33
Q

Adverse possession

A
  1. Continuous/uninterrupted – through statutory period
    - Seasonal use OK if consistent with type of property
    - Tacking permitted but no gaps; need privity
  2. Actual – open/notorious,
  3. Hostile – without owner’s possession and with intent to claim land as own
  4. Exclusive – possession cannot be shared with true owner
34
Q

Delivery of deeds

A

At time of transfer, grantor must intend to make present transfer of property interest to grantee

35
Q

Deed

A

Requirements

  • Identify parties
  • Grantor’s signature
  • Words of transfer
  • Reasonably definite property description
36
Q

Recording acts

A
  1. Notice
    - BFP without notice of prior interest prevails over prior grantee who failed to record
  2. Race
    - First to record prevails, regardless of knowledge
  3. 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

  1. Actual – actual, personal knowledge of prior interest
  2. Constructive (record) – properly recorded and appears in chain of title
  3. Inquiry – reasonable investigation would have disclosed prior claims
37
Q

General warranty deed

A

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)
38
Q

Special warranty deed

A

Same covenants of title as GWD but only warrants against defects arising during time grantor had title

39
Q

Quitclaim deed

A

No covenants of title

40
Q

Mortgages

A

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

41
Q

Due-on-sale clause

A

Lender can demand immediate payment of full amount due

42
Q

Due-on-encumbrance clause

A

Lender can accelerate mortgage upon second mortgage

43
Q

Assuming vs. taking subject to mortgage

A

If transferee assumes mortgage, borrower is secondarily L

If transferee takes subject to mortgage, transferee is not personally L upon default

44
Q

Equity of redemption

A

After default but before foreclosure sale, mortgagor may regain title by paying full amount of outstanding debt plus interest

45
Q

Foreclosure

A

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
46
Q

Express easement

A

Affirmatively created by parties in writing that satisfies SoF

47
Q

Easement by necessity

A

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

48
Q

Easement by implication

A

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
49
Q

Easement by prescription

A

Similar to adverse possession, except relates to use

  1. Continuous
  2. Actual – open and notorious
  3. Hostile
    - For statutory period
50
Q

Easement by estoppel

A

Good faith, reasonable, detrimental reliance on permission by servient estate holder, issued to prevent unjust enrichment

51
Q

Termination of easement

A
  1. Release – by writing that satisfies SoF
  2. Merger – owner of easement acquires title to underlying estate
  3. Severance
  4. Abandonment – affirmatively acts to show clear intent to abandon right
  5. Destruction/condemnation
52
Q

Real covenants

A

Promises that concern the use of land

  • Can be either affirmative (right to do something) or negative (restriction on doing something)
  • Typical relief – damages
  1. Writing – SoF
  2. Intent – to run with land
  3. Touch and concern
  4. Notice (burden only) – must be constructive or actual
  5. Privity
    a. Horizontal – burden only
    b. Vertical – strict for burden and relaxed for benefit
53
Q

Equitable servitudes

A

Agreement to allow for or limit the use of property
- Typical relief – injunction

  1. Intent to be enforceable by and against successors
  2. Touch and concern
  3. Notice – actual, record, or inquiry
54
Q

Post-ordinance non-conforming property

A

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

MBE (8 decks)

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