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Bar Review > Real Property > Flashcards

Real Property Flashcards

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1
Q

Ways property can be transferred:

A
  1. Sale
  2. Gift
  3. Devise
  4. Intestate
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2
Q

Fee Simple

A

Largest possessor estate
Lasts forever
Ambigous grants create a fee simple
“to A” OR “to A and his heirs”

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3
Q

Defeasible Fees

A

May be terminated by the occurrence of an event

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4
Q

Fee Simple determinable

A

Limited by durational language

So long as, while, during

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5
Q

Fee Simple Subject to Condition Subsequent

A

Limited by conditional language

but if, provided that, on the condition

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6
Q

Possibility of Reverter

A

Grantor interest following fee simple determinable

Vests automatically

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7
Q

Right of Entry

A

Grantor interest following a FS subject to a condition subsequent
Does not vest, must be claimed

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8
Q

Fee Simple Subject to Executory Interest

A

Future interest vests in third party upon event

Held by transferee, not grantor

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9
Q

Executory Interest

A

Cuts short earlier interest

Divests that interest.

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10
Q

Life Estate

A

Present Estate limited by somebody’s life

Created by words “for life” or making contingent upon somebody’s death

Cannot pass by will or intestacy

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11
Q

Reversion

A

Future interest following a life estate, to grantor

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12
Q

Remainder

A

Future interest following a life estate to third party

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13
Q

Three Kinds of Waste

A

Affirmative
Voluntary
Ameliorative

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14
Q

Affirmative waste

A

voluntary conduct which decreases value

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15
Q

Permissive waste

A

neglect which causes a decrease in value

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16
Q

Ameliorative Waste

A

conduct which increases the value of property

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17
Q

Remainders can be?

A

Vested or contingent

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18
Q

A vested remainder

A
  1. has an ascertained grantee AND

2. Is not subject to a condition precedent

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19
Q

Class Gifts- Vested subject to open

A

Class gift where full membership is unknown.

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20
Q

Doctrine of Worthier Title

A

prevents against remainder in grantor’s heirs. Greats presumption of reversion t grantor

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21
Q

Shelley’s Can Rule

A

No remainder in grantee’s heirs. Creates fee simple absolute

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22
Q

Springing Executory interest

A

From Grantor

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23
Q

Shifting executory interest

A

From grantee

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24
Q

Rule Against Perpetuities

A
  1. When: intervivos transfers & devise
  2. What: Contingent remainders, executory interests, class gifts
  3. Who: Relevant & validating life

Must vest within 21 years.

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25
Q

Class Gifts RAP rule

A

If any member of class violates RAP, gift is void as a whole.

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26
Q

Rule of Convenience

A

Vests grant as soon as member of class is entitled to immediate possession. Optional way to save against RAP

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27
Q

Exceptions to Class Gifts Rule

A
  1. transfers of a specific dollar amount to each class member
  2. Transfers to a subclass that vest at a specific time
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28
Q

Exceptions to RAP

A
  1. Gifts between charities
  2. Options to buy property by current leaseholder
  3. Options in commercial transaction
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29
Q

Wait and See approach

A

Modern approach, wait a certain number of years to see if it vests. Often 90.

Exam still tests traditional version

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30
Q

Cy Pres

A

equitable doctrine that allows a court to reform transfer to avoid RAP

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31
Q

Three Kinds of Concurrent Tenancy

A
  1. Tenancy in Common
  2. Joint Tenancy
  3. Tenancy by the entirety
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32
Q

Tenancy in Common

A

Default concurrent interest
Separate undivided interest in property
No rights of surviorship

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33
Q

Joint Tenancy

A

Right of survivorship; PITT

  1. Possession
  2. Interest
  3. Time
  4. Title
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34
Q

Tenancy by the entirety

A

Joint tenancy between married people

Right of survivorship

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35
Q

Rent is divided by

A

ownership interests of each cotentant

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36
Q

Operating Expenses

A

Divided by ownership, can collect from other tenants

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37
Q

Improvements

A

no right to reimbursement among concurrent owners

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38
Q

Repairs

A

no right to reimbursement among concurrent owners

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39
Q

Proceeds

A

Divided among covenants based on ownership

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40
Q

Partition

A

Equitable remedy available to tenancy in common or JT
Divides property into distinct portions

Partition in kind or partition in sale

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41
Q

FHA prevents discrimination

A

In the sale, rental, financing, and advertising concerning dwellings.

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42
Q

FHA does not apply to

A
  1. Single-family housing without a broker
  2. Owner occupied buildings with four or fewer units
  3. Religious organizations and private clubs
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43
Q

FHA protects against discrimination in

A
  1. race
  2. color
  3. religion
  4. national origina
  5. sex (not orientation)
  6. disability
  7. and familial status
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44
Q

FHA prohibits specifically

A
  1. refusing to deal
  2. requiring different rents
  3. falsely denying that a unit is available
  4. providing different services to facilities
  5. stating a discriminatory preference
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45
Q

FHA allows for both _____ types of impact

A

Intent and Effect

Disparate treatment and disparate impact

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46
Q

Basic Rule of Confict of Laws

A

Law of the situs; place where property is located controls

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47
Q

Exceptions to Law of the Situs

A
  1. Instrument designates jurisdiction
  2. marriage cases
  3. mortgage cases where documents specify different state of repayment
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48
Q

Four types of tenancy:

A
  1. Tenancy for years
  2. Periodic tenancy
  3. Tenancy at will
  4. Tenancy at sufferance
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49
Q

Tenancy for Years

A
  1. fixed and ascertainable amount time
  2. created by agreement between landlord and tenant
  3. terminates automatically
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50
Q

Periodic Tenancy

A
  1. Can be created through express or implied conduct

2. Renews automatically until notice is given (usually one month in the period prior to final period)

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51
Q

Tenancy at Will

A
  1. May be terminated by either at any time for any reason
  2. Created through express or implied conduct/agreement
  3. Termination without notice
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52
Q

Tenancy at Sufferance

A
  1. Created when a tenant holds over from lease
  2. Created solely by actions of tenant
  3. Terminate in 3 ways
    a. Tenant voluntarily leaves
    b. Landlord evicts tenant
    c. Landlord regents to tenant
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53
Q

Duty to mitigate damages

A

Majority rule is that landlord has to make reasonable efforts to rerent property

Minority rule is that no duty to mitigate. More common in commercial leases

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54
Q

Holder over Tenant

A

Wont leave after lease ends

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55
Q

Duty to deliver possession

A

Majority rule is that landlord must deliver actual physical possession of premises.

Minority rule is that only deliver legal possession.

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56
Q

Covenant of Quiet Enjoyment

A

landlord must control common areas, and prevent nuisance-like behavior of other tenants

Wholly or substantially unsuitable for intended purpose, tenant is constructively evicted

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57
Q

Tenant’s duties

A

Pay rent and avoid waste

58
Q

Three ways duty to pay rent is suspended

A
  1. Premises are destroyed
  2. Complete or partial eviction
  3. Landlord materially breaches
59
Q

Constructive Eviction

A
  1. premises were unusable
  2. Tenant notifies landlord of the problem
  3. Landlord does not correct problem
  4. Tenant vacates after a reasonable amount of time.
60
Q

Implied warranty of habitability

A

health and safety
Cannot be waived
Tenant can: refuse to pay rent, remedy defect, or defend against eviction.

61
Q

Duty to avoid waste

A

Tenant has duty not to commit affirmative or permissive waste

62
Q

At common law landlord responsible for

A

Latent defects
Faulty repairs
negligence in common areas

63
Q

Modern trend of landlord responsibility

A

General duty of reasonable care

64
Q

Assignment of lease

A

complete transfer of remaining term

Can collect from T or T1

65
Q

Sublease

A

Transfer fro less than entirety of remaining term

Can only collect from T

66
Q

Listing agent

A

agent who assists seller in selling property

67
Q

Seller’s agent

A

sub agent for listing who finds buyers

68
Q

Dual agent

A

represents both

69
Q

Covenant of marketable title

A

Title is free from unreasonable risk of litigation

70
Q

Implied warranty of fitness or suitability

A

Applies to defects in new construction. Action must be brought within a reasonable time after discovery.

71
Q

Duty to Disclose defects

A

Duty on seller to disclose all known, physical and material defects

72
Q

Risk of Loss

A

Majority Rule: Buyer bears risk between execution and closing. Holds equitable title

73
Q

Elements of Adverse Possesion

A
  1. Continuous
  2. Open and notorious
  3. Hostile
  4. Exclusive
74
Q

Tacking

A

Adverse possessor can previous possessor time if there is privity

75
Q

Hostile

A

Majority rule: no state of mind

Minority rule: either good faith or bad faith

76
Q

A valid deed must be

A

Delivered and accepted

77
Q

Contents of a deed

A

A valid deed must identify the parties, be signed by grantor, include words of transfer and a sufficient description of the property

Deed must be signed by grantor

78
Q

common law recording rule

A

first in time first in right

person who first recieved deed wins

79
Q

Interests Covered by Recording Acts

A
  1. Deeds
  2. Mortgages
  3. Leases
  4. Options
  5. Judgments on title
  6. Other instruments creating an interest in land
80
Q

Protected by recording acts

A

subsequent purchasers

81
Q

Types of notice

A
  1. Actual - grantee has real, personal knowledge of prior interest
  2. Constructive, prior interest is recorded
  3. Inquiry - reasonable inquiry would have disclosed existence of prior claims
82
Q

Inquiry NOtice

A

Dude on the land

mentioned interest

83
Q

Race Statutes

A

first to record wind

first recorded or first to record language

84
Q

Notice Statute

A

Subsequent purchaser who acquires without notice of prior unrecorded purchase wins

85
Q

Race-Notice Statute

A

Acquired without notice and is the first to record

86
Q

Shelter Rule

A

A person who take from a bona fide purchaser is entitled to same recording act protections as grantor

87
Q

Estoppel by Deed

A

Grantor conveys land they do not own. If they subsequently acquire title, cannot try to repossess on grounds that initial conveyance was not valid.

88
Q

Three Kinds of Deeds

A
  1. General
  2. Special
  3. Quitclaim
89
Q

General Warranty Deed

A

Most amount of protection; warrants against all kinds of defects

90
Q

Implied Covenants in General Warranty Deed

A
  1. Covenant of Seisin
  2. Covenant of right to convey
  3. Covenant against encumbrances
  4. Covenant of quiet enjoyment
  5. Covenant of warranty
  6. Covenant of further assurances
91
Q

Special Warranty Deed

A

Warrants against defects only caused by the grantor. Otherwise same covenants as General

92
Q

Quitclaim deed

A

No warranties about the health of the title

93
Q

Escheat

A

decedent dies without a will or heirs, property goes to state

94
Q

Ademption

A

Devise of property fails because it is not in estate at death

95
Q

trustee

A

Owns property and manages for beneficiary

96
Q

Mortgage

A

security device used to secure a payment of debt

97
Q

Two kinds of mortgages

A

Purchase money - takes out loan for purpose of buying property

Future advance mortgage - line of credit used for home equity

98
Q

Lien and Title State

A

Lien state treats mortgage as lien (Majority)

Title state treats as title, severs tenant in common

99
Q

Mortgage Alternatives

A
  1. Deed of Trust
  2. Installment land K
  3. Absolute Deed
  4. Conditional Sale and Repurchase
100
Q

Lien Theory state foreclosure

A

Cannot take possession prior to foreclosure

101
Q

Title theory state foreclosure

A

Can posses at any time

102
Q

Intermediate theory state

A

Can posses only after default

103
Q

Equity of Redemption

A

Allows mortgage to reclaim title before foreclosure

104
Q

Clogging equity of redemption

A

restrictions on equity of redemption

105
Q

Foreclosure

A

forced sale of an asset to pay off debt,

Require notice

Can be judicial or through Power of Sale (private)

106
Q

Purchase-money mortgage exception

A

Mortgage given to lender to buy real property has priority of prior mortgages

107
Q

Recording act exception

A

Junior mortgage that records first may take priority

108
Q

Easemant

A

right by one person to make use of another land

109
Q

Servient estate

A

Land burdened by easement

110
Q

Dominant estate

A

Land benefited by easement

111
Q

Affirmative easement

A

holder has the right to do something on someone else property

112
Q

Negative Easement

A

Holder can stop another from doing something on their own property

113
Q

Easement Appurtenant

A

Tied to the use of the land

114
Q

Easement in Gross

A

benefits the holder personally

115
Q

Express Easements

A

Created in writing by grant of reservation
subject to recording statutes
negative easements must be express

116
Q

Implied easements

A

Arise out of factual circumstances, are transferable, not subject to SOF or recording statutes

117
Q

Four kinds of implied easements

A
  1. Easement by necessity
  2. Easement by implication
  3. Easement by prescription
  4. Easement by Estoppel
118
Q

Easement by Necessity

A
  1. property is virtually useless without
  2. proper common ownership
  3. necessity at severance
119
Q

Subjacent support

A

Owner of mineral rights is strictly liable for any failure to support buildings on land at time rights were conveyed. Liable for negligence for any improvements after conveyence.

120
Q

Lateral support

A

Strict liability if would have collapsed in natural state; negligence if neighbor’s structures contributed.

121
Q

Fructus Naturales

A

Wild, perennial growing crops, considered real property

122
Q

Fructus industriales

A

Produced through cultivation. Presumption is that they are transferred with property, but may be rebutted.

123
Q

Implied Easement by Implication

A

Created by an existing use on a property.

  1. common ownership
  2. Before severance: uses as if easement over land “quasi-easement”
  3. After severance: continuous use that is apparent at the time of severance.
  4. Necessity: Use must be reasonably necessary to dominant estate’s use and enjoyment.
124
Q

Implied Easement by Estoppel

A
  1. permission to use
  2. reliance
  3. Permission withdrawn
125
Q

Implied Easement by Prescription

A

Similar to adverse possession

Same elements as adverse possession, focused on use. Does not require exclusivity.

126
Q

Scope of express easement

A

Ambigous terms: court considers intent

Changes in use: Objective standard, presumes parties contemplated both current and future use.

127
Q

Scope of Implied Easements

A

Determined by nature and scope of prior use or necessity

128
Q

Termination of an Easement

A
  1. Express release, must be in writing, SOF
  2. Merger, if title is acquired by easement holder.
  3. Abandonment: more than non-use or statements. Not-use plus act demonstrating intent to abandon
  4. Prescription: Holder fails to protect against a trespasser for statutory period.
  5. Sale to a Bona Fide Purchaser?
  6. Estoppel
  7. End of necessity
129
Q

Not Easements

A
  1. Profit: right to enter land for a specific natural resource.
  2. License: revocable permission to use another’s land.
130
Q

Requirements for a Covenant to Run

A
  1. Writing
  2. Intent
  3. touch and Concern
  4. Notice
  5. Privity
    a. vertical for benefit
    b. horizantal and strict vertical for burden
131
Q

Horizontal Privity

A

privity of estate, where estate and covenant are same instrument. Look for transfer between original parties that contains covenant in it.

132
Q

Vertical privity

A

Transfer between original party and successor.

133
Q

Equitable servitude

A

Like covenant, remedy is equitable relief.

  1. Writing
  2. Intended to run with land
  3. touch and concern
  4. successor must have some form of notice.
134
Q

Implied Reciprocal Servitude

A
  1. Intend to create covenant
  2. Reciprocal promises
  3. Must be negative
  4. Successor must be on notice
  5. Must be a common plan or scheme
135
Q

Terminating easements

A
  1. No longer makes sense due to drastic change in circumstances
  2. Equitable defense (unclean hands, delays)
136
Q

Common interest Communities

A
  1. Owners’ associations, Condos, Co-ops
  2. Declaration & Powers
  3. Duty of good faith, prudence, & ordinary care
137
Q

Fixtures

A

Tangible personal property that is attached to real property in a manner that it is treated as real property.

138
Q

chattel, fixtures

A

Purchaser of real property is entitled to chattel unless seller reserves.

139
Q

Zoning variance standard

A
  1. Compliance creates uneccesary hardship
  2. Hardship arises from circumstances unique to the property
  3. Owner did not create hardship
  4. variance is in keeping with overall purpose
  5. variance will not cause substantial harm to the general welfare.
140
Q

Nuisance

A
  1. substantial and unreasonable interference with use or enjoyment of property
  2. Substantial: would be offensive, inconvenient, or annoying to average person in community
  3. Unreasonable: injury outweighs the usefulness of the defendant’s actions.

-Usual remedy is damages

141
Q

Public Nuisance

A
  1. Unreasonable interference with health, safety, or property rights of the community
  2. Private Party: must show that suffered a different kind of harm than the rest of the community.
142
Q

Equitable Conversion

A

After valid contract for sale, Seller holds legal title, equitable title passes to buyer. Seller effectively holding in trust for the buyer. Judgments etc. against seller to not attach to property.

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