Real Property Flashcards
Ways property can be transferred:
- Sale
- Gift
- Devise
- Intestate
Fee Simple
Largest possessor estate
Lasts forever
Ambigous grants create a fee simple
“to A” OR “to A and his heirs”
Defeasible Fees
May be terminated by the occurrence of an event
Fee Simple determinable
Limited by durational language
So long as, while, during
Fee Simple Subject to Condition Subsequent
Limited by conditional language
but if, provided that, on the condition
Possibility of Reverter
Grantor interest following fee simple determinable
Vests automatically
Right of Entry
Grantor interest following a FS subject to a condition subsequent
Does not vest, must be claimed
Fee Simple Subject to Executory Interest
Future interest vests in third party upon event
Held by transferee, not grantor
Executory Interest
Cuts short earlier interest
Divests that interest.
Life Estate
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
Reversion
Future interest following a life estate, to grantor
Remainder
Future interest following a life estate to third party
Three Kinds of Waste
Affirmative
Voluntary
Ameliorative
Affirmative waste
voluntary conduct which decreases value
Permissive waste
neglect which causes a decrease in value
Ameliorative Waste
conduct which increases the value of property
Remainders can be?
Vested or contingent
A vested remainder
- has an ascertained grantee AND
2. Is not subject to a condition precedent
Class Gifts- Vested subject to open
Class gift where full membership is unknown.
Doctrine of Worthier Title
prevents against remainder in grantor’s heirs. Greats presumption of reversion t grantor
Shelley’s Can Rule
No remainder in grantee’s heirs. Creates fee simple absolute
Springing Executory interest
From Grantor
Shifting executory interest
From grantee
Rule Against Perpetuities
- When: intervivos transfers & devise
- What: Contingent remainders, executory interests, class gifts
- Who: Relevant & validating life
Must vest within 21 years.
Class Gifts RAP rule
If any member of class violates RAP, gift is void as a whole.
Rule of Convenience
Vests grant as soon as member of class is entitled to immediate possession. Optional way to save against RAP
Exceptions to Class Gifts Rule
- transfers of a specific dollar amount to each class member
- Transfers to a subclass that vest at a specific time
Exceptions to RAP
- Gifts between charities
- Options to buy property by current leaseholder
- Options in commercial transaction
Wait and See approach
Modern approach, wait a certain number of years to see if it vests. Often 90.
Exam still tests traditional version
Cy Pres
equitable doctrine that allows a court to reform transfer to avoid RAP
Three Kinds of Concurrent Tenancy
- Tenancy in Common
- Joint Tenancy
- Tenancy by the entirety
Tenancy in Common
Default concurrent interest
Separate undivided interest in property
No rights of surviorship
Joint Tenancy
Right of survivorship; PITT
- Possession
- Interest
- Time
- Title
Tenancy by the entirety
Joint tenancy between married people
Right of survivorship
Rent is divided by
ownership interests of each cotentant
Operating Expenses
Divided by ownership, can collect from other tenants
Improvements
no right to reimbursement among concurrent owners
Repairs
no right to reimbursement among concurrent owners
Proceeds
Divided among covenants based on ownership
Partition
Equitable remedy available to tenancy in common or JT
Divides property into distinct portions
Partition in kind or partition in sale
FHA prevents discrimination
In the sale, rental, financing, and advertising concerning dwellings.
FHA does not apply to
- Single-family housing without a broker
- Owner occupied buildings with four or fewer units
- Religious organizations and private clubs
FHA protects against discrimination in
- race
- color
- religion
- national origina
- sex (not orientation)
- disability
- and familial status
FHA prohibits specifically
- refusing to deal
- requiring different rents
- falsely denying that a unit is available
- providing different services to facilities
- stating a discriminatory preference
FHA allows for both _____ types of impact
Intent and Effect
Disparate treatment and disparate impact
Basic Rule of Confict of Laws
Law of the situs; place where property is located controls
Exceptions to Law of the Situs
- Instrument designates jurisdiction
- marriage cases
- mortgage cases where documents specify different state of repayment
Four types of tenancy:
- Tenancy for years
- Periodic tenancy
- Tenancy at will
- Tenancy at sufferance
Tenancy for Years
- fixed and ascertainable amount time
- created by agreement between landlord and tenant
- terminates automatically
Periodic Tenancy
- 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)
Tenancy at Will
- May be terminated by either at any time for any reason
- Created through express or implied conduct/agreement
- Termination without notice
Tenancy at Sufferance
- Created when a tenant holds over from lease
- Created solely by actions of tenant
- Terminate in 3 ways
a. Tenant voluntarily leaves
b. Landlord evicts tenant
c. Landlord regents to tenant
Duty to mitigate damages
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
Holder over Tenant
Wont leave after lease ends
Duty to deliver possession
Majority rule is that landlord must deliver actual physical possession of premises.
Minority rule is that only deliver legal possession.
Covenant of Quiet Enjoyment
landlord must control common areas, and prevent nuisance-like behavior of other tenants
Wholly or substantially unsuitable for intended purpose, tenant is constructively evicted
Tenant’s duties
Pay rent and avoid waste
Three ways duty to pay rent is suspended
- Premises are destroyed
- Complete or partial eviction
- Landlord materially breaches
Constructive Eviction
- premises were unusable
- Tenant notifies landlord of the problem
- Landlord does not correct problem
- Tenant vacates after a reasonable amount of time.
Implied warranty of habitability
health and safety
Cannot be waived
Tenant can: refuse to pay rent, remedy defect, or defend against eviction.
Duty to avoid waste
Tenant has duty not to commit affirmative or permissive waste
At common law landlord responsible for
Latent defects
Faulty repairs
negligence in common areas
Modern trend of landlord responsibility
General duty of reasonable care
Assignment of lease
complete transfer of remaining term
Can collect from T or T1
Sublease
Transfer fro less than entirety of remaining term
Can only collect from T
Listing agent
agent who assists seller in selling property
Seller’s agent
sub agent for listing who finds buyers
Dual agent
represents both
Covenant of marketable title
Title is free from unreasonable risk of litigation
Implied warranty of fitness or suitability
Applies to defects in new construction. Action must be brought within a reasonable time after discovery.
Duty to Disclose defects
Duty on seller to disclose all known, physical and material defects
Risk of Loss
Majority Rule: Buyer bears risk between execution and closing. Holds equitable title
Elements of Adverse Possesion
- Continuous
- Open and notorious
- Hostile
- Exclusive
Tacking
Adverse possessor can previous possessor time if there is privity
Hostile
Majority rule: no state of mind
Minority rule: either good faith or bad faith
A valid deed must be
Delivered and accepted
Contents of a deed
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
common law recording rule
first in time first in right
person who first recieved deed wins
Interests Covered by Recording Acts
- Deeds
- Mortgages
- Leases
- Options
- Judgments on title
- Other instruments creating an interest in land
Protected by recording acts
subsequent purchasers
Types of notice
- Actual - grantee has real, personal knowledge of prior interest
- Constructive, prior interest is recorded
- Inquiry - reasonable inquiry would have disclosed existence of prior claims
Inquiry NOtice
Dude on the land
mentioned interest
Race Statutes
first to record wind
first recorded or first to record language
Notice Statute
Subsequent purchaser who acquires without notice of prior unrecorded purchase wins
Race-Notice Statute
Acquired without notice and is the first to record
Shelter Rule
A person who take from a bona fide purchaser is entitled to same recording act protections as grantor
Estoppel by Deed
Grantor conveys land they do not own. If they subsequently acquire title, cannot try to repossess on grounds that initial conveyance was not valid.
Three Kinds of Deeds
- General
- Special
- Quitclaim
General Warranty Deed
Most amount of protection; warrants against all kinds of defects
Implied Covenants in General Warranty Deed
- Covenant of Seisin
- Covenant of right to convey
- Covenant against encumbrances
- Covenant of quiet enjoyment
- Covenant of warranty
- Covenant of further assurances
Special Warranty Deed
Warrants against defects only caused by the grantor. Otherwise same covenants as General
Quitclaim deed
No warranties about the health of the title
Escheat
decedent dies without a will or heirs, property goes to state
Ademption
Devise of property fails because it is not in estate at death
trustee
Owns property and manages for beneficiary
Mortgage
security device used to secure a payment of debt
Two kinds of mortgages
Purchase money - takes out loan for purpose of buying property
Future advance mortgage - line of credit used for home equity
Lien and Title State
Lien state treats mortgage as lien (Majority)
Title state treats as title, severs tenant in common
Mortgage Alternatives
- Deed of Trust
- Installment land K
- Absolute Deed
- Conditional Sale and Repurchase
Lien Theory state foreclosure
Cannot take possession prior to foreclosure
Title theory state foreclosure
Can posses at any time
Intermediate theory state
Can posses only after default
Equity of Redemption
Allows mortgage to reclaim title before foreclosure
Clogging equity of redemption
restrictions on equity of redemption
Foreclosure
forced sale of an asset to pay off debt,
Require notice
Can be judicial or through Power of Sale (private)
Purchase-money mortgage exception
Mortgage given to lender to buy real property has priority of prior mortgages
Recording act exception
Junior mortgage that records first may take priority
Easemant
right by one person to make use of another land
Servient estate
Land burdened by easement
Dominant estate
Land benefited by easement
Affirmative easement
holder has the right to do something on someone else property
Negative Easement
Holder can stop another from doing something on their own property
Easement Appurtenant
Tied to the use of the land
Easement in Gross
benefits the holder personally
Express Easements
Created in writing by grant of reservation
subject to recording statutes
negative easements must be express
Implied easements
Arise out of factual circumstances, are transferable, not subject to SOF or recording statutes
Four kinds of implied easements
- Easement by necessity
- Easement by implication
- Easement by prescription
- Easement by Estoppel
Easement by Necessity
- property is virtually useless without
- proper common ownership
- necessity at severance
Subjacent support
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.
Lateral support
Strict liability if would have collapsed in natural state; negligence if neighbor’s structures contributed.
Fructus Naturales
Wild, perennial growing crops, considered real property
Fructus industriales
Produced through cultivation. Presumption is that they are transferred with property, but may be rebutted.
Implied Easement by Implication
Created by an existing use on a property.
- common ownership
- Before severance: uses as if easement over land “quasi-easement”
- After severance: continuous use that is apparent at the time of severance.
- Necessity: Use must be reasonably necessary to dominant estate’s use and enjoyment.
Implied Easement by Estoppel
- permission to use
- reliance
- Permission withdrawn
Implied Easement by Prescription
Similar to adverse possession
Same elements as adverse possession, focused on use. Does not require exclusivity.
Scope of express easement
Ambigous terms: court considers intent
Changes in use: Objective standard, presumes parties contemplated both current and future use.
Scope of Implied Easements
Determined by nature and scope of prior use or necessity
Termination of an Easement
- Express release, must be in writing, SOF
- Merger, if title is acquired by easement holder.
- Abandonment: more than non-use or statements. Not-use plus act demonstrating intent to abandon
- Prescription: Holder fails to protect against a trespasser for statutory period.
- Sale to a Bona Fide Purchaser?
- Estoppel
- End of necessity
Not Easements
- Profit: right to enter land for a specific natural resource.
- License: revocable permission to use another’s land.
Requirements for a Covenant to Run
- Writing
- Intent
- touch and Concern
- Notice
- Privity
a. vertical for benefit
b. horizantal and strict vertical for burden
Horizontal Privity
privity of estate, where estate and covenant are same instrument. Look for transfer between original parties that contains covenant in it.
Vertical privity
Transfer between original party and successor.
Equitable servitude
Like covenant, remedy is equitable relief.
- Writing
- Intended to run with land
- touch and concern
- successor must have some form of notice.
Implied Reciprocal Servitude
- Intend to create covenant
- Reciprocal promises
- Must be negative
- Successor must be on notice
- Must be a common plan or scheme
Terminating easements
- No longer makes sense due to drastic change in circumstances
- Equitable defense (unclean hands, delays)
Common interest Communities
- Owners’ associations, Condos, Co-ops
- Declaration & Powers
- Duty of good faith, prudence, & ordinary care
Fixtures
Tangible personal property that is attached to real property in a manner that it is treated as real property.
chattel, fixtures
Purchaser of real property is entitled to chattel unless seller reserves.
Zoning variance standard
- Compliance creates uneccesary hardship
- Hardship arises from circumstances unique to the property
- Owner did not create hardship
- variance is in keeping with overall purpose
- variance will not cause substantial harm to the general welfare.
Nuisance
- substantial and unreasonable interference with use or enjoyment of property
- Substantial: would be offensive, inconvenient, or annoying to average person in community
- Unreasonable: injury outweighs the usefulness of the defendant’s actions.
-Usual remedy is damages
Public Nuisance
- Unreasonable interference with health, safety, or property rights of the community
- Private Party: must show that suffered a different kind of harm than the rest of the community.
Equitable Conversion
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.
