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Real Property Flashcards

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1
Q

Fee Simple Absolute

A

A fee simple absolute is the largest estate that can be held. It is freely devisable, descendible, and alienable. Here,

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2
Q

Defeasible Fees

A

A defeasible fee is a fee simple estate that can be terminated upon the happening of a stated event.

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3
Q

Defeasible Fees - Fee Simple Determinable (Possibility of Reverter)

A

A fee simple determinable terminates upon the happening of the state event, and will AUTOMATICALLY revert back to the grantor. Here,
*Key words: so long as, until, during, while

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4
Q

Defeasible Fees - Fee Simple Subject to Condition Subsequent (Right of Entry)

A

A FSSCS is an estate where the grantor reserves the right to re-enter and terminate the estate upon the happening of the stated event. This right to terminate is called the “right of entry” and must be expressly reserved. Here,
*Key words: but if, provided that, on condition that

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5
Q

Defeasible Fees - Fee Simple Subject to Executory Limitation (Executory Interest)

A

A FFSEL will automatically terminate upon the happening of the stated event, and the interest in the property will be granted to a 3rd party, who is the owner of an executory interest.
Springing - cuts off grantor
Shifting - cuts off previous interest holder

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6
Q

Fee Tail

A

A fee tail limits the succession of estate to the lineal heirs of the grantee. The fee tail is abolished in most jurisdictions and has been replaced by the fee simple absolute.
*Key words: to A and the heirs of his body

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7
Q

Life Estate (Reversion)

A

A life estate is one that is measured by the life of a specific person. Here,

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8
Q

Life Tenant Duties (Waste)

A

The holder of a life estate is entitled to the normal use and profits of the property but has a duty to maintain the value for the future interest holders by not engaging in any form of waste.

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9
Q

Life Tenant Duties - Affirmative Waste

A

Affirmative waste is when the tenant purposely does something that reduces the value of the property. The life tenant must continue the normal use of the land and not exploit natural resources unless consumption is considered normal use. Harvesting crops is allowed. Here,

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10
Q

Life Tenant Duties - Permissive Waste

A

Permissive waste occurs when the tenant allows the property to fall into disrepair because of a lack of substantial upkeep of the property. The life tenant has a duty to maintain/repair but no duty to replace/upgrade. This includes not paying taxes and mortgage interest. Here,

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11
Q

Life Tenant Duties - Ameliorative Waste

A

Ameliorative waste occurs when the tenant does something that improves the value of the property, but without the consent of future interest holders. However, life tenant can make changes if the property is relatively worthless because of a changed condition. Here,

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12
Q

Grantor Future Interest - Possibility of Reverter

A

A possibility of reverter is granted concurrent with a fee simple determinable, and must be expressly reserved by the grantor. This means that the property will automatically revert back to the grantor upon the stated condition. Here,

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13
Q

Grantor Future Interest - Right of Entry

A

A right of entry is granted concurrent with a FSSCS and gives the grantor the permission to re-enter and terminate the estate if the stated condition occurs. The estate does not automatically revert, but rather the grantor must re-enter the land and re-take possession. Here,

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14
Q

Grantor Future Interest - Reversion

A

A reversion exists with a life estate where the grantor leaves himself with some interest in land. Here,

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15
Q

3rd Party Future Interest - Remainder

A

A remainder is a future interest granted to a 3rd party that follows naturally and immediately at the expiration of all previous estates. A remainder waits its turn and cannot cut short an estate and must be explicitly granted at conveyance.

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16
Q

Indefeasibly Vested Remainder

A

A vested remainder is a remainder created in a known person and NOT subject to a condition precedent or divestment. All vested remainders are fully transferable during life. Here,

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17
Q

Vested Remainder Subject to Open (Divestment)

A

A VRSTO is a remainder that is usually granted to a class of people that is certain to become possessory, but is uncertain as to the amount of class members that will share the interest. The class closes whenever any member of the class is entitled to a distribution. Here,

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18
Q

Vested Remainder Subject to Complete Defeasance

A

A VRSCD is a vested remainder that is subject to condition subsequent, and may, upon the stated condition, fully exclude the 3rd party of all interest in the property. Here,

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19
Q

Contingent Remainder

A

A contingent remainder is a remainder that is subject to a condition precedent. And will only become possessory (indefeasibly vested) upon the happening of that stated event. Here,

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20
Q

Contingent Remainder - Destructibility

A

The rule of destructibility states that if a contingent remainder fails to vest before the preceding estate expires, it is terminated. However, most states have abolished this rule and simply convert the contingent remainder into a springing executory interest. Here,

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21
Q

Contingent Remainder - Doctrine of Worthier Title

A

The doctrine of worthier title states that a remainder in the grantor’s heirs becomes a reversion in the grantor. Here,

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22
Q

Contingent Remainder - Rule of Shelley’s Case

A

The Rule in Shelley’s Case states that if the same instrument created a life estate in A, a remainder interest in A’s heirs, the remainder is not recognized and A is awarded a fee simple absolute. Here,

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23
Q

3rd Party Future Interest - Executory

A

An executory interest is one that will cut short the interest in another person (shifting) or the interest of the grantor (springing) upon the occurrence of the stated event. Here,

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24
Q

Rule Against Perpetuities

A

The rule against perpetuities states that an interest must vest, if at all, within 21 years after the death of a measuring life. Applies only to contingent remainders, executory interest, and vested remainders subject to partial divestment.

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25
Q

RAP - Fertile Octogenarian

A

There is a presumption that a person is fertile no matter her age

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26
Q

RAP - Unborn Widow

A

A person’s widow is not determined until death, so a disposition to the issue of the widow violates the RAP (no measuring life)

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27
Q

RAP - Class Gifts

A

If an interest of any class member may vest too remotely, the whole class gift fails.

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28
Q

RAP - Charities

A

A gift from one charity to another charity does not violate RAP

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29
Q

Concurrent Estates

A

Tenants can share a common interest in the same piece of property through either a joint tenancy, a tenancy in common, or a tenancy by the entirety.

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30
Q

Joint Tenancy

A

A joint tenancy is disfavored, so it is formed only if the 4 unities are satisfied and there is an explicitly stated right of survivorship. The 4 unities are 1) equal possession, 2) equal interests, 3) received at the same time, and 4) each own a portion of the same title. When on JT dies, his interest automatically passes to surviving JTs. Here,

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31
Q

Joint Tenancy - Severance

A

A JT interest is transferable but not devisable or descendible. A transfer by sale, partition, or mortgage (lien theory) will sever JT. The buyer in a sale takes as tenant in common. In a lien theory (MAJ) a mortgage does not sever the JT.

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32
Q

Tenancy by the Entirety

A

A tenancy by the entirety is similar to a JT but rather between husband and wife. Each has an undivided interest in the whole estate with the right of survivorship. Here,

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33
Q

Tenants in Common

A

A tenancy in Common is the default tenancy with no right of survivorship. Each tenant owns an individual interest in the property (need not be equal) but has a right to occupy the entire property. Here,

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34
Q

Rights and Duties of Co-Tenants - Possession

A

Each tenant has a right to the entire property. Any exclusion of one of the tenant to any part of the property would be considered an ouster. Here,

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35
Q

Rights and Duties of Co-Tenants - Profits/Rents

A

A co-tenant in possession has the right to retain profits from his own use of the land, but must share net profits from 3rd party rent and exploitation of the land (mining, cutting trees) Here,

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36
Q

Rights and Duties of Co-Tenants - Repairs

A

A co-tenant who repairs is entitled to contribution for reasonable expenses to long as other tenant were given notice. Here,

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37
Q

Rights and Duties of Co-Tenants - Improvements

A

Joint tenants are NOT entitled to contribution for improvements made to the land, unless there is a partition. Here,

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38
Q

Rights and Duties of Co-Tenants - Taxes/Mortgages

A

Each co-tenant is responsible for their fair share of taxes, mortgage, and interest payments based on his ownership share. Here,

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39
Q

Rights and Duties of Co-Tenants - Waste

A

Co-tenants have a duty to not commit waste. Here,

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40
Q

Landlord Tenant

A

A leasehold is an estate in land under which the tenant has a present possessory interest in the leased premises and the landlord has a future interest.

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41
Q

Tenancy for Years

A

A tenancy for years is a lease for a fixed period of time and will come to an end automatically at the end of the lease.

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42
Q

Periodic Tenancy

A

A periodic tenancy continues for repeating periods until terminated by proper notice by either party. A lease with no mention of duration will be presumed a periodic tenancy measured by the rent payment period specified in the lease. Proper notice is usually at least equal to the length of the period. 6 month notice for a year lease. Here,

43
Q

Tenancy at Will

A

A tenancy at will is a tenancy for no fixed duration of time and endures for as long as the landlord and tenant desire. A tenancy at will is created by express agreement and may be terminated at the will of either the landlord or the tenant. Here,

44
Q

Tenancy at Sufferance

A

A tenancy at sufferance arises when a tenant wrongfully remains in possession after the expiration of a lawful tenancy and lasts only until the landlord takes steps to evict the tenant or holds tenant to new tenancy (usually a periodic tenancy from month to month) Here,

45
Q

Tenant Duties - Pay Rent

A

Tenants have the duty to pay rent per the lease agreement. If the tenant fails to pay rent, but remains in possession, the landlord can evict through the court or sue for rent. No self-help allowed. If a tenant is out of possession, the landlord can treat as a surrender, ignore, or re-let the premise. SIR. Here,

46
Q

Tenant Duties - Not Commit Waste

A

Tenant must maintain the premises, make ordinary repairs, and must not commit waste. Waste is committed when the tenant changes the property in a way that affects its value. There are three types of waste - voluntary, permissive, and ameliorative. Here,

47
Q

Tenant Duties - Fixtures

A

The law of fixtures walks hand in hand with the law of waste. A fixture is a once movable thing that by virtue of its attachment objectively shows the intent to improve the property. Courts will look to the degree of attachment, general custom, and damage if removed. Fixtures pass with ownership of the land. Therefore, a T commits waste if he removes fixtures from the premises even if he has installed the fixture. Here,

48
Q

Tenant Duties - Liability to 3rd Parties

A

Tenant is liable for injuries to 3rd party invitees on the premise, even where landlord promised to make all repairs. Here,

49
Q

Tenant Duties - Do Not Use for Illegal Purposes

A

Tenant may not use the premises for an illegal purpose. If used for an illegal purpose, the landlord may terminate the lease or obtain damages. Here,

50
Q

Landlord Duties - Deliver Possession

A

The landlord must put the tenant in actual physical possession of the premises at the start of the lease. A landlord is in breach if he has not evicted a holdover tenant. Here,

51
Q

Landlord Duties - Implied Warranty of Habitability (always raise with quiet use)

A

The implied warranty of habitability only applies to residential leases and is a non-waivable duty that the premises must be fit for basic human habitation. If breached, tenant may either 1) move out, 2) repair and deduct, 3) reduce rent until court determines fair market value, or 4) remain in possession, pay full rent, and sue for damages. Here,

52
Q

Landlord Duties - Implied Covenant of Quiet Use and Enjoyment (always raise with habitability)

A

Every lease (residential and commercial) has an implied covenant of quiet use and enjoyment, meaning that the landlord will not interfere with the tenant’s possession of the premises. May be breached by either actual, partial, or constructive eviction. Here,

53
Q

Landlord Duties - Quiet Use - Actual Eviction

A

Actual wrongful eviction occurs when the landlord excludes the tenant from the entire leased premises, which terminates T’s duty to pay rent. Here,

54
Q

Landlord Duties - Quiet Use - Partial Eviction (always raise with constructive eviction)

A

A partial eviction occurs when the tenant is physically excluded from part of the pleased premises, which relieves iT’s obligation to pay rent even through T remains in partial possession. Here,

55
Q

Landlord Duties - Quiet Use - Constructive Eviction

A

A constructive eviction is when no physical eviction occurs, but the landlord’s conduct makes the property uninhabitable. The T can terminate the lease if 1) interference by L is substantial, 2) T gave notice and L failed to respond, and 3) T vacates the property within a reasonable time. Here,

56
Q

Landlord Duties - No Retaliatory Evictions

A

A landlord may not terminate a lease or otherwise penalize a T in retaliation for the T’s exercise of his legal rights, including reporting housing or building code violations. Here,

57
Q

Landlord Duties - Tort Liability

A

Under common law, a landlord has not duty to make the premises safe. Modernly, landlord is liable for common areas, latent defects, public use, or defects in a short term lease of a furnished dwelling. Here,

58
Q

Landlord Duties - Mitigate

A

A landlord must make reasonable efforts to try and mitigate damages after the tenant has breached his duty and is out of possession of the property. Landlord may not hold the tenant liable for any deficiency if a suitable tenant was readily available to re-let the premises. Here,

59
Q

Assignment/Sublease

A

Unless there is an express restriction in the lease, a tenant may feely transfer his leasehold interest, in whole or in part. This transfer is referred to as either an assignment or a sublease.

60
Q

Assignment

A

An assignment occurs when the original tenant transfers the entire leasehold interest to a third party assignee. The assignee stands in the shoes of the original T (assignor) and is liable on all covenants that run with the land. Covenants that run with land are those that touch and concern the land, i.e. make it more valuable (pay rent, repair, etc)

61
Q

Rights Against Assignor (original tenant)

A

After assignment, the original tenant is no long in privity of estate with the landlord, but remains in privity of contract, meaning he is liable on the original contractual obligation to pay rent and all other covenants int he lease. Here,

62
Q

Sublease

A

A sublease occurs when the original tenant transfers a portion of his remaining interest to a third party sub lessee. The sub lessee has neither privity of contract or privity of estate, therefore, the original tenant receives rent from the sub lessee and is liable on the original contractual obligation to pay rent and all other covenants in the lease. Here,

63
Q

Adverse Possession

A

Possession of a property for a statutorily prescribed period can ripen into title for the possessor if the following elements are met: 1) continuous possession through the statutory period, 2) open and notorious possession, 3) actual and exclusive possession, and 4) hostile or adverse possession.

64
Q

Adverse Possession - Continuous

A

Possession must be continuous and uninterrupted for the statutory period. Constant use is not required if such use is typical for that type of property, such as a vacation home. Here,

65
Q

Adverse Possession - Continuous - Tacking

A

An adverse possessor may tack all the time spent in possession by himself and those with whom he is in privity, meaning there is a non-hostile transfer. Here,

66
Q

Adverse Possession - Continuous - Extending the Statutory Period

A

The statute begins running when the true owner could potentially bring suit, so the SOL will not run against true owner who is a minor, in jail, or lacks capacity at the time the adverse possessor entered the land. Once begun, SOL is not tolled for jail/incapacity. Here,

67
Q

Adverse Possession - Open and Notorious

A

It must be sufficiently apparent the possessor is using the land to put the owner on notice that a trespass is occurring, but the true owner does not need to actually notice the trespass. Here,

68
Q

Adverse Possession - Actual/Exclusive

A

A possessor must physically enter the land and exclusively occupy it. Here,

69
Q

Adverse Possession - Actual/Exclusive - Color of Title

A

The exception to this is when the adverse possessor enters the land under color of title (document purporting to convey title) claiming to the entire parcel, his continuous and actual possession of a small part of that parcel will perfect his title to the entire parcel defined in his color of title. Here,

70
Q

Adverse Possession - Hostile/Adverse

A

The adverse possessor entered without the true owner’s permission. It doesn’t matter whether possessor believes the land to be her own or knows she is trespassing. Here,

71
Q

Easements

A

An easement is a grant of a non-possessory interest in land that entitles its holder to some form of use or enjoyment of the land. An easement can either be affirmative (right to do something) or negative (restriction from doing something - LASSS). Easements are classified as either appurtenant or in gross.

72
Q

Easement Appurtenant

A

An easement appurtenant involves two parcels of land; a dominant estate receiving the benefit of the easement and a servient estate burdened by the easement. Here,

73
Q

Easement in Gross

A

An easement in gross involves one servient parcel of land and grants the holder the right to use the land for some personal or financial advantage. Here,

74
Q

Easement Creation - Prescriptive

A

An easement may be acquired by prescription by satisfying the elements of adverse possession, minus exclusivity. Here,

75
Q

Easement Creation - Implication

A

An easement may be implied if prior to a division of property, previous use was apparent and continuous and the use was reasonably necessary such that the parties expected it to survive the division. Courts will look to the difficulty of alternatives and if the price paid reflected the expected continued use. Here,

76
Q

Easement Creation - Necessity

A

An easement will be implied by necessity if the grantor conveys part of his land to a grantee with not way to access the land, except over some part of the grantor’s remaining land. The grantor gets to choose placement of the easement. Here,

77
Q

Easement Creation - Grant

A

An easement by express grant for more than 1 year must be in writing to satisfy SoF and comply with the formal elements of a deed. An express grant easement is presumed to be of perpetual duration. Here,

78
Q

Scope of Easement

A

The scope of an easement is set by the terms or conditions that created it. The courts assume that the easement was intended to meet both the present and future needs of the dominant land (can widen for larger cars), but a change in the nature of the easement is not allowed (turning private road into highway). Excessive use does not terminate the easement, rather the affected party should file for an order of conforming use. Here,

79
Q

Repair of Easement

A

The owner of the dominant (benefitted) estate is responsible for making necessary repairs and always has permission to enter servient property to repair the easement, but must restore property to previous condition after repair. Here,

80
Q

Termination of Easement END CRAMP - Estoppel

A

An easement may be terminated if the dominant owner expresses an intent to terminate the easement and the servient owner materially changes position in reasonable reliance on the easement holder’s statement. Here,

81
Q

Termination of Easement END CRAMP - Necessity

A

Easements created by necessity expire as soon as the necessity ends. Here,

82
Q

Termination of Easement END CRAMP - Destruction

A

Destruction of the servient land, other than through intentional wrongdoing, will end the easement. Here,

83
Q

Termination of Easement END CRAMP - Condemnation

A

Condemnation of the servient land by eminent domain ends the easement. Here,

84
Q

Termination of Easement END CRAMP - Release

A

A written release from the owner of the easement to the owner of the servient estate will end the easement. Here,

85
Q

Termination of Easement END CRAMP - Abandonment

A

An easement is terminated when its holder demonstrates by physical action, the intent to never use the easement again. Merely expressing a wish not to use again does not terminate the easement and neither does non-use. Here,

86
Q

Termination of Easement END CRAMP - Merger

A

An easement will be terminated if the title to the easement and the title to the servient land become vested in the same person, in the same manner. Once terminated, the easement cannot be revived with a subsequent division of the property. Here,

87
Q

Termination of Easement END CRAMP - Prescription

A

The servient owner may extinguish an easement by interfering with it in accordance with the elements of adverse possession. Here,

88
Q

Licenses

A

A license is a mere privilege to enter onto another’s land for some delineated purpose. A signed writing it not required because a license is NOT an interest in land (mere privilege). An invalid oral easement will often default to a license. here,

89
Q

License - Irrevocable by Estoppel

A

The licensor may revoke the privilege at any time unless the licensee has invested substantial money or labor in reasonable reliance on the continuation of the license such that revocation is estopped. Here,

90
Q

Profits

A

A profit entitles its holder to enter onto the servient land and take some resources from it. A profit IS a valid interest in the land so all of the rules governing creation, alienation, and termination of easements are applicable to profits. A profit may be terminated by misuse that overburdens the land. Here,

91
Q

Covenants

A

A covenant is a written promise (contractual limitation) to do or not to do something related to the land. The covenant can either be restrictive, a promise to refrain from doing something to the land, or affirmative, a promise to do something related to the land. Here,

92
Q

Burden to run with land (WITH VN)

A

A covenant runs with the land if it is capable of binding successors. Most burdens will NOT run with the land, but the burden will run with the land and bind successor if: WITH VN

93
Q

Burden running with land - Writing

A

The original promise must be in writing. Here,

94
Q

Burden running with land - Intent

A

The covenanting parties must have intended that the covenant would run with the land and bind all future successors. Here,

95
Q

Burden running with land - Touch and Concern Land

A

The promised performance makes the land more valuable or useful. The promise must directly benefit the land, not simply as members of the community at large (e.g. CCR to maintain common areas runs, but requirement to recycle does not) Here,

96
Q

Burden running with land - Horizontal Privity

A

At the time of the covenant, the original parties (A to B) must have shared some interest in the land independent of the covenant, and there must be a conveyance of the property interest between the parties. Here,

97
Q

Burden running with land - Vertical Privity

A

There must be a non-hostile nexus between the original promising party and the subsequent purchaser of the property, meaning the property was acquired by contract, devise, or descent - not acquired by adverse possession. Here,

98
Q

Burden running with land - Notice

A

A subsequent purchaser must have had actual, inquiry, or record notice of the covenant at the time of his purchase to be bound by that covenant. Here,

99
Q

Benefit to run with the land (WIT V)

A

Most benefits run with the land because horizontal privity and notice are not required. However, where horizontal privity is lacking, the promisee’s successor can enforce the covenant against the promisor, but not against the promisor’s successors. The benefit will run with the land if the following are met: Writing, Intent, Touch and Concern, Vertical Privity

100
Q

Termination of Covenant

A

A covenant can be terminated by 1) signed writing 2) merger of the benefitted and burdened estates, or 3) condemnation of the property through a changed condition that makes ALL lots in the subdivision unusable for the specified use. Here,

101
Q

Covenant Breach Remedy - Money Damages

A

A breach of a real covenant is remedied by money damages. IF an injunction is sought, the promise must be enforced as an equitable servitude rather than a real covenant. Here,

102
Q

Equitable Servitude (WIT N)

A

An equitable servitude is a promise that regardless of whether it runs with the land, equity will enforce against successors of the burdened land who have notice of the covenant. No privity is required. Injunctive relief is the remedy. Here,

103
Q

Common Scheme Doctrine

A

A reciprocal negative servitude will be implied from a common scheme if the developer had a general scheme of residential development, and the buyer’s deed did not include the promises, but he had notice of the promises in the prior deeds (Actual, Inquire, or Record). Here,

104
Q

Changed Neighborhood Conditions

A

A buyer may argue that changed neighborhood conditions justify the ending of an equitable servitude if the conditions are so pervasive that the neighborhood charger changes prevent enforcement of the equitable servitude. Here,

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