Real Property Flashcards
Different ways in which property can be transferred
Sale
Gift
Devise
Intestate Succession
Ownership interests are divided in time between which two types of interests?
Present and future interests.
What is the key distinction between present and future interests?
Timing of possession.
True or false, someone must be in possession of a piece of real property at all time?
True.
Fee simple is the _______ possessory estate?
largest
Why is fee simple the largest possessory estate?
It is inheritable and so is capable of lasting forever.
What are the “magic words” to create a fee simple?
“And his/her heirs.”
If a grant is ambiguous, courts will construe the grant to create what?
Fee simple
True or false: there is a presumption that the grantor conveys the most he or she has.
True.
True or false: words of intent or purpose can create future interests in a property.
False.
Ex.: Oliver conveys Blackacre “to Anna, my hope and wish being that, on her death, Anna will give the property to her son, Ben.” Anna has fee simple; Ben has nothing.
Is there a future interest associated with a fee simple?
No, because a fee simple is capable of lasting forever.
A defeasible fee is one that may be ________ by the occurrence of an event.
Terminated.
True or false: a defeasible fee is capable of lasting forever.
True, but they are also capable of being terminated early.
A property interest limited by specific durational language is a ________
fee simple determinable.
What are four examples of durational language used in a fee simple determinable?
1) “so long as”
2) “while”
3) “during”
4) “until”
A property interest limited by specific conditional language is a ________
fee simple subject to condition subsequent
What are three examples of conditional language used in a fee simple subject to condition subsequent?
“but if”
“provided that”
“on the condition that”
In additional to conditional language, a grant conveying a fee simple subject to condition subsequent will often include what?
language suggestion the grantor must exercise a right in order to take possession.
If language of a conveyance is ambiguous, are courts more likely to construe the instrument to effectuate a fee simple determinable or fee simple subject to condition subsequent?
Fee simple subject to condition subsequent.
If an instrument conveying a fee simple subject to condition subsequent does not contain express language reserving a right of entry, what might the court do?
The court can choose not to imply a forfeiture provision and convert the property interest into a fee simple absolute
Possibility of Reverter.
Future interest held by a grantor following a fee simple determinable.
Difference between a Possibility of Reverter and a Right of Entry
Possibility of Reverter vests automatically after the durational period ends, while a Right of Entry must be exercise following a condition.
Right of Entry
Future interest held by the grantor following a fee simple subject to condition subsequent
Fee Simple Subject to Executory Interest
Will end upon the happening of an event and the future interest will vest in a third party.
Executory Interest
Future interest that will terminate an earlier interest
Divest
To terminate a prior interest
Life Estate
Present estate that is limited by a life
What are the magic words to create a life estate?
“for life”
If ambiguous, look for the grantor’s intent to create an estate that will end ________
upon the death of the measuring life.
When does a life estate terminate?
When the measuring life dies.
Can a life tenant pass the property by will or intestate succession?
No, the life estate ends at the tenant’s death.
Reversion
Future interest held by a grantor following a life estate.
Remainder
Future interest held by a third party following a life estate.
What are the three kinds of waste?
Affirmative
Permissive
Ameliorative
Affirmative Waste
Waste caused by voluntary conduct which causes a decrease in value
Permissive Waste
Waste cause by neglect toward the property which causes a decrease in value
Ameliorative Waste
When a person in possession changes the use of the property and actually increases the value of the property.
In what situations does the doctrine of waste apply?
Landlord vs. Tenant
Co-tenant out of possession vs. Tenant in possession (concurrent estates)
Mortgage (bank/lender) vs. Mortgagor (borrower)
How do you spot a waste problem (3 steps)?
1) Determine if multiple parties have simultaneous interests (life tenant/remainder)
2) Determine if there is a change in the value of property due to the actions/inactions of the party in possession
3) Determine if the waste will substantially change the interest taken by the party out of possession.
Concurrent Estates
Ownership or possession of real property by two or more persons simultaneously
Concurrent owners each have a right to use/possess ________ % of the property.
100%
In what situation might a concurrent owner not have a right to possess the whole property?
If the concurrent owners contract out of their right to possess.
What are the three kinds of concurrent estates?
Tenancy in Common
Joint Tenancy
Tenancy by the Entirety
What is the default concurrent interest?
Tenancy in Common
What kind of interests do tenants in common have in a concurrent estate?
Tenants in common have separate and undivided interests in the property.
True or False: tenants in common have a right of survivorship
False
True or False: a co-tenant in common can transfer her share of the property at death or during life.
True.
What is the defining characteristic of a Joint Tenancy?
Right of survivorship.
Right of survivorship.
When a surviving tenant automatically takes the deceased tenant’s interest.
How does one create a joint tenancy?
Grantor must make a clear expression of intent, AND must include survivorship language.
Four Unities
Possession
Interest
Time
Title
Unity of Possession
Requires every joint tenant have an equal right to possess the whole property
Unity of Interest
Joint tenants must have an equal share of the same type of interest
Unity of Time
Joint tenants must receive their interests at the same time.
Unity of Title
Joint tenants must receive their interests in the same instrument of title.
What happens if one of the four unities in a joint tenancy is severed?
The joint tenancy is converted into a tenancy in common.
What is the consequence of an inter vivos transfer by one co-tenant in a joint tenancy.
The transfer will destroy the right of survivorship and convert the joint tenancy into a tenancy in common.
Conveyance by only one of more than two joint tenants (does/does not) destroy the joint tenancy of the remaining joint tenants?
does not
In a majority jurisdiction, does a mortgage granted by a joint tenant sever the joint tenancy?
No. Most jurisdictions follow a lien theory in which the mortgage does not destroy joint tenancy.
In a minority jurisdiction, does a mortgage granted by a joint tenant sever the joint tenancy?
Yes. A minority of jurisdictions follow the title theory in which a mortgage severs title and the joint tenancy is converted into a tenancy in common.
If a joint tenant leases her share in the property to a tenant, is the joint tenancy severed?
Some jurisdictions hold that the lease severs the joint tenancy.
Other jurisdictions treat the lease as a temporary suspension of the join tenancy.
Tenancy by the Entirety
Joint tenancy by married spouses.
What is the fifth unity in a tenancy by the entirety?
Unity of Person (marriage)
What types of concurrent estates contain a right of survivorship?
Joint Tenancy
Tenancy by the Entirety
True or False: A tenant by the entirety can alienate or encumber his/her share without spousal consent.
False.
What are the magic words to convey property as a tenancy by the entirety?
“as tenants by the entirety, with a right of survivorship”
Is a co-tenant in possession required to pay rent to co-tenants out of possession?
No.
Ouster
When a co-tenant in possession deines another co-tenant access to the property.
What remedies are available to an ousted tenant?
Injunction granting access to the property
AND/OR
damages for the value of the use while the co-tenant was unable to access the property
Rent received from a third-party’s possession of a concurrent estate, minus operating expenses, are divided based on ________ of each co-tenant.
ownership interests.
Operating expenses.
Necessary charges, such as taxes or mortgage interest payments.
A co-tenant can collect ________ from the other co-tenants for payments in excess of her share of the operating expenses.
Contribution
Is there a right to reimbursement from co-tenants for improvements or necessary repairs?
No, but the co-tenant who makes the improvements can get credit in a partition action.
Partition.
Equitable remedy (unilateral right) available to all holders of a tenancy in common or joint tenancy, in which a court will divide the property into distinct portions.
Partition in Kind
Physical division of property
Courts have a preference for what kind of division in a partition?
Partition in Kind.
When will a court order a partition by sale?
If physical partition is not practical OR not fair to all the parties.
Partition by Sale
Partition in which sale of the property is divided among the co-tenants based on their ownership interests.
What are the requirements for an agreement among co-tenants not to partition?
The agreement must be clear, AND
The time limitation must be reasonable.
Springing Executory Interest
Executory interest that divests the grantor
Shifting Executory Interest
Executory interest that divests the grantee
Remainder (can/cannot) follow a vested fee simple.
Cannot.
What are the two types of remainders?
Vested and Contingent.
Vested Remainder
Interest must be:
given to an ascertainable grantee, AND
not subject to a condition precedent.
Contingent Remainder
Interest whose grantee is unascertainable, OR that is subject to a condition precedent.
If a condition precedent is not satisfied, what happens upon the death of the measuring life of a life estate?
The property reverts back to the grantor.
What interest does a grantor have in a life estate with a vested remainder?
Nothing.
What interest does a grantor have in a life estate with a contingent remainder?
Reversion.
Vested subject to open:
Vested remainder in a class gift for which full class membership is unknown.
What requirement must be met for a class gift to be vested subject to open
At least one person in the class must be vested.
When all members of a class are identified, a class is ________
“Closed”
If no member of a class is vested, then the remainder is ________?
contingent
Rule of Convenience
If a grant conveying a class gift does not have an express closing date, the rule of convenience closes the class when any member of the class becomes entitled to immediate possession.
Doctrine of Worthier Title
Prevents against remainders in the grantor’s heirs. Instead, it creates a presumption in a reversion to the grantor,
Rule in Shelley’s Case:
Prevents against remainders in the grantee’s heirs. Instead, it uses the doctrine of merger and creates a fee simple.
Goal of Rule Against Perpetuities
Testing for certainty.
Purpose of Rule Against Perpetuities.
Prevents remote vesting.
When are interests created that are subject to RAP?
inter vivos transfers
devise (will)
What interests are subject to RAP?
contingent remainders
executory interests
vested remainders subject to open (if remainder not closed by rule of convenience)
Relevant Life (RAP)
Person who affects vesting, usually mentioned or implied by the grant (e.g., prior life tenant, the parent where a conveyance is made to a child)
Validating Life (RAP)
Person who tells us whether the interests vests or not within the perpetuities period.
Perpetuities period
Life plus 21 years
Validating life must have been ________ when the interests were created.
alive
A validating life (can/cannot) validate her own interests.
can.
If there is no validating life. . .
then the interest is no good an is stricken from the grant.
Oliver conveys “to my grandchildren who reach 21.” Oliver has two children, Anna and Ben, and three grandchildren under the age 21. This conveyance ________ RAP? Why?
Violates. It is possible that Oliver could have another child who gives birth to a grandchild after Oliver, Anna, and Ben have died. This grandchild will not reach age 21 until more than 21 years after the deaths of the measuring lives.
What happens when an interest violates RAP?
It is strick as if the interest was never created.
What happens if a class gift to any member of the class is void under RAP?
The gift is void as to all members of the class. “bad as to one, bad as to all”
Exceptions to the Class Gift Rule
Transfers of specific dollar amounts to each class member
Transfers to a subclass that vests at a specific time (e.g., to the children of B, and upon the death of each, to that child’s issue)
How are exceptions to the Class Gift Rule treated?
They are tested separately under RAP.
Exceptions to RAP
Gift from one charity to another charity
Option held by a current tenant to purchase a fee interest in the leasehold property.
“Wait and See”
Courts will wait and see if interest subject to RAP vests within perpetuities period.
Lease creates what kind of interests?
creates both a contract interest and a property interest
Four types of estates that can govern the landlord-tenant relationship?
tenancy for years
periodic tenancy
tenancy at will
tenancy at sufferance
Tenancy for Years
Measured by a fixed and ascertainable amount of time.
What is required to create a tenancy for years?
An agreement by the landlord and the tenant.
If a term for a tenancy in years is longer than one year, then the agreement ________
must be in writing.
How is a tenancy for years terminated?
1) At the end of the term, the tenancy is automatically terminated.
OR
Tenant surrenders the lease before the term is over
OR
The tenant or landlord commits a material breach.
Periodic tenancy
Estate that is repetitive and ongoing for a set period of time (month-to-month/year-to-year)
At the end of each period, a periodic tenancy will ________
renew automatically until one party gives notice of termination.
Intent to create a periodic tenancy can be either ________ or _________
express; implied
Propert notice to terminate a periodic tenancy
must be before the start of what will be the last period.
Notice to terminate a periodic tenancy is effective
the last day of the period.
Tenancy at will
may be terminated by either landlord or tenant at any time, for any reason.
Termination of a tenancy at will
can be initiated by either party without notice, assuming a reasonable amount of time.
If an agreement gives only the landlord the right to terminate at will, the tenant ________
is also given right to terminate at will
If an agreement gives only the tenant the right to terminate at wil, the landlord ________
is not given the right to terminate at will
What happens to each tenancy if a landlord dies?
Tenancy for Years: continues
Periodic Tenancy: continues
Tenancy at Will: terminates
Tenancy at Sufferance
Temporary tenancy that occurs when a tenant holds over aft the lease has ended.
Tenancy at sufferance exists until
The landlord evicts the tenant OR re-rents the property to the tenant.
What happens if a landlord re-rents a property to a holdover tenant?
The terms of the prior lease control.
What are the tenant’s duties?
Pay rent (contractual duty) Avoid waste (property duty)
When is a duty to pay rent suspended?
Premises are destroyed (so long as the tenant did not cause the damage)
Landlord completely or partially evicts the tenant
Landlord materially breaches the lease
Material Breach of a landlord-tenant relationship
Breach of either:
implied covenant of quiet enjoyment, OR
implied warrant of habitability
Implied Covenant of Quiet Enjoyment
Tenant can withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for their intended purposes, and the tenant is constructively evicted.
Four elements of constructive eviction
1) Premises were unsuitable for their intended purposes
2) Tenant notifies landlord of the problem
3) Landlord does not correct the problem
4) Tenant vacates the premises after a reasonable amount of time has passed
Implied Warranty of Habitability
Landlord has an obligation to maintain the property such that it is suitable for residential use. Concerned with conditions that threaten tenant’s health and safety.
Tenant (can/cannot) waive habitability protection.
Cannot
Landlord’s failure to comply with housing codes constitutes
A breach of implied warranty of habitability
Implied Warranty of Habitability usually applies to
multi-family residential properties (not commercial leases)
If premises are not habitable, a tenant may:
1) refuse to pay rent
2) remedy the defect and offset the costs against the rent; or
3) defend against eviction
If premises are not habitable, and tenant chooses ti withhold rent, tenant must:
1) notify landlord of problem; AND
2) give landlord a reasonable opportunity to correct problem
Unlike quiet enjoyment and constructive eviction, IWH does not
require the tenant to vacate the premises.
True or False: “wear and tear” is included in permissive waste.
False.
In a residential lease, the (landlord/tenant) is presumed responsible for repairs.
Landlord.
In a commercial lease, the (landlord/tenant) has a duty to repair.
Either, depending on the contract.
If the tenant abandons the property early or is evicted by the landlord, does the landlord have an obligation to mitigate damages b re-renting the property?
Majority: The landlord must make reasonable efforts to re-rent the property.
Minority: The landlord does not have to mitigate damages. The minority rule is more common in cases involving commercial leases.
What are “reasonable efforts” to re-rent property?
1) must treat leasehold as if it was vacant stock
2) does not have to accept an unacceptable replacement tenant
If landlord does seek to mitigate, landlord is entitled to ________
the difference between the original rent and the rent received
In the case of a holdover tenant, when can a landlord impose a higher rent than that imposed in the prior agreement?
If the landlord had informed the tenant of the increase prior to the expiration of the old lease.
Duty to Deliver Possession
Majority: LL must deliver actual (physical) possession
Minority: LL must deliver legal possession
In a multiunit leased building, the landlord controls
common areas
nuisance-like behavior of other tenants
Landlord does not have to control
Off-premises actions of third-party
(Tenant/landlord) owes duty of care to invitees, licensees, and foreseeable trespassers?
Tenant.
Landlord’s liability to invitees, licensees, and foreseeable trespassers?
Responsible in negligence for latent or hidden defects about which tenant has not been warned.
Responsible for faulty repairs negligently completed by landlord or agents
Responsible for negligence that causes injuries in common areas of property.
Assignment vs. sublease
Assignment: complete transfer of tenant’s remaining term
Sublease: transfer for less than entire duration of lease
In an assignment, landlord can collect from
Tenant (privity of contract)
Subsequent tenant (privity of estate)
In sublease, landlord can collect rent from
Tenant (privity of contract and estate)
Can landlord deny permission to a transfer of the lease?
Majority: may deny permission to transfer only for commercially reasonable reason
Minority: may deny permission at her discretion
Does a landlord need a tenant’s permission to transfer interest?
No. A landlord can transfer her interest at will. The new landlord is bound by terms of existing lease.
Who is covered under Fair Housing Act
Race, color, religion, national origin, sex, disability (mandates reasonable accommodations), familial status (special exemption for senior living)
What is prohibited under FHA?
Refusing to rent
Requiring different rents
Falsely denying unit is available
Providing different services to facilities
Stating discriminatory preference in advertisement
Note: there must be CAUSATION (prohibited behavior must be linked to protected basis)
Adverse Possession
Allows person in unlawful possession to acquire good title to piece of property. Until person acquires good title, person is trespasser. When person acquires title, it relates back to date of entry; no transfer of title from former owner.
True or False: Government property can be adversely possessed
False
Elements of adverse possession
Continuous for statutory period
Open and Notorious
Hostile
Exclusive
Tacking in adverse possession
If adverse possessor cannot satisfy the continuity requirement on her own, she can tack on her predecessor’s time on the property to satisfy the statute of limitations. There must be privity between prior and current adverse possessor.
Statute of limitations for adverse possession will not run against a true owner who
has a disability at the time the adverse possession BEGINS.
insanity, infancy, imprisonment
Open and Notorious
Adverse possessor’s use must be such that it would put a reasonable true owner on notice of adverse use
Hostile (adverse possession)
Possession must be adverse to owner’s interest.
Majority: no inquiry into state of mind
Minority (2 camps):
Good faith (AP by mistake)-adverse possessor must think land is unowned or that she is rightful owner
Bad faith (AP by aggressive TP)-adverse possessor must intend to acquire by AP
Can two people adversely possess property together?
Yes. They acquire title as tenants in common
Constructive adverse possession
Adverse possessor enters under color of title from invalid instrument and occupies portion of property described by instrument
Two stages of land sale contract
1) contract - any liability must be based on contract provision
2) deed - any liability must be based on a deed warranty
Doctrine of Merger
covenants under contracts are merged into deed and therefore can’t be enforced unless covenant is also in deed
Statute of Fraud requirements
1) in writing
2) signed by the party to be charged, AND
3) must include essential terms (parties, description of property, price and payment info)
Exceptions to Statute of Frauds
Past Performance Doctrine
Detrimental Reliance Doctrine
Past Performance Doctrine (statute of frauds)
Partial performance by either seller or buyer is treated as evidence that contract existed.
Look for ACTS of performance:
- payment
- possession
- improvement
Detrimental Reliance Doctrine (statute of frauds)
Estoppel doctrine that applies where party has reasonably relied on contract and would suffer hardship if contract is not enforced.
Every land sale contract includes implied covenant of ________
marketable title
Implied covenant of marketable title
Title is free from unreasonable risk of litigation
- title acquired from adverse possession that hasn’t been quieted
- private encumbrance (mortgage, covenant, easement)
- violation of zoning
If defect in title is discovered, seller must cure defect ________
before closing, at which point contract merges with deed
If seller cannot deliver marketable title, buyer’s remedy is
recision of contract
Implied Warranty of Fitness or Suitability
Applies to defects in new construction. In most jurisdictions, both initial and subsequent purchasers may recover damages.
Duty to Disclose Defects
Most jurisdictions impose dut on seller to disclose to buyer all known, physical, material defects. Must substantially affect value of home, health and safety of occupants, or desirability of property.
Seller’s remedies on breach by buyer
Must choose between:
1) Damages (difference between contract price and market value at time of breach)
2) Recision
3) specific performance
Buyer’s remedies on breach by seller
Must choose between:
1) Damages (difference between contract price and market value at time of breach)
2) Recision
3) specific performance
Note: if seller breaches in good faith, buyer can only recover out of pocket expenses
Equitable Conversion and Risk of Loss
Majority: Buyer holds equitable title between execution of contract and delivery of deed (responsible for damage to property)
Minority: Risk of loss on seller until closing/delivery of deed.
Mortgage
security device used to secure repayment of debt.
Note: borrower’s promise to repay loan
Mortgage: Instrument providing security to note
Who’s who: mortgagor vs. mortgagee
Mortgagor - Borrower
Mortgagee - Lender
Purchase money mortgage
Person takes out loan for purpose of purchasing a property
Future advance mortgage
Line of credit used for home equity, construction, business, and commercial loans
Alternatives to Mortgages
1) Deed of trust: operates like mortgage but uses trustee
2) Installment land contract: seller retains title until buyer makes final payment under installment plan
Equity of Redemption
Common law right held by borrower to reclaim title and prevent foreclosure upon full payment of debt. Borrower must exercise right BEFORE foreclosure sale.
Statutory Redemption
Allows borrower to effectively nullify foreclosure sale. Ends purchaser’s title and restores title to borrower.
Two ways to transfer property subject to mortgage
1) buyer can ASSUME mortgage (both original debtor and second buyer are responsible for mortgage)
2) buyer can purchase property SUBJECT TO existing mortgage (original debtor liable for mortgage) (presumption when ambiguous)
Is mortgagor responsible if foreclosure sale produces less than mortgagor owes?
Yes, court can issue deficiency judgment for remaining balance.
If more than one party claims an interest in foreclosure proceeds, what is priority of distribution?
General rule: earliest mortgage placed on property has priority over other interests
Exceptions:
1) Purchase money mortgage gets priority over other mortgages
2) Unrecorded senior interests
3) Subordination agreement
4) Mortgage modification - modification that makes mortgage more burdensome subordinates interest as to modification.
For a deed to be valid, it must be ________ AND ________
delivered; accepted
Controlling question in conveyance of deed
Does grantor have PRESENT interest to transfer property?
Is a physical transfer of deed required?
No. Manifestation of intent, OK
If delivery is not immediate, is it sufficient?
No. Delivery is incomplete or seemingly revocable.
Is delivery to an agent proper?
Yes, grantor can make proper delivery to agent.
Acceptance of deed is generally ________, provided the gift is for value
presumed
Contents of a Deed
1) Parties (grantor and grantee; signed by grantor)
2) Words of transfer
3) Sufficient description of property
What does it mean to record?
Publicly register your deed.
Does recording affect validity of deed?
No, a deed is valid at DELIVERY.
What interests are covered in Recording Acts?
Deeds Mortgages Leases Options Judgment affecting title Easement Covenant
Who is not covered by recording acts?
Grantees who acquire title by gift, intestate, or devise
Three kinds of notice
1) Actual Notice: subsequent grantee has real, personal knowledge or prior interest
2) Constructive Notice: prior interest is recorded
3) Inquiry Notice, reasonable investigation would have disclosed existence of prior claims
Two common fact situations where subsequent grantee is put on inquiry notice
1) Someone else living on land
2) interest mentioned in deed to some other transaction (A’s deed to B references an easement from A to B. Any subsequent purchaser in A’s chain of title will be charged with knowledge of the easement).
Race Statute
First to record wins
Notice Statute
Subsequent purchaser has good title if she buys without notice or prior, unrecorded conveyance.
Race-Notice Statute
Subsequent purchaser has good title if:
1) purchase without notice of prior, unrecorded conveyance; AND
2) first to record
Shelter Rule
A person who takes from a bona fide purchaser protected by recording act has same rights as grantor.
(O sells Blackacre to A, who does not record. Later, Ol sells Blackacre to B. B has no knowledge of the prior conveyance. C is interested in buying Blackacre from B, though C is aware of the prior transfer to A. B sells to C. The state is a “notice” regime.)
Estoppel by Deed
Arises when grantor conveys land grantor does not own. If grantor subsequently acquires title to land, grantor is estopped from repossessing on grounds he did not have title when he made original conveyance.
Three kinds of deeds
General Warranty Deed
Special Warranty Deed
Quitclaim Deed
General Warranty Deed
Greatest amount of Protection. Warrants title against ALL defects, even if grantor does not cause defects.
Special Warranty Deed
Grantor warrants against defects caused by grantor.
Quitclaim deed.
Grantor makes no warranty as to health of title.
Three Present Covenants
Covenant of Seisin: warrants deed describes land in question
Covenant of Right to Convey: Warrants grantor has right to convey
Covenant against Encumbrances: Warrants that there are no undisclosed encumbrances that could limit value
Three Future Covenants
Covenant of Quiet Enjoyment: Grantor promises to defend against future challenges to grantee’s title
Covenant of Warranty: Grantor promises to defend against future assertions of encroachment
Covenant of Further Assurances: grantor promises to fix future title problems
Fixture
Tangible personal property affixed to real property in manner that it is treated as part of real property
Who is entitled to fixtures in sale of property?
Buyer of real property is generally entitled to chattel unless seller reserves right in contract
Can life tenants and tenants remove fixtures?
Presumption in favor of removing fixtures unless doing so would permanently damage property
Can trespassers remove fixtures they installed?
Old Rule: Never
New Rule: Trespassers can remove improvement, or recover value added, so long as they installed in good faith
Guiding principle in interpretation of wills is testator’s ________
intent
Heir
person who takes decedent’s intestate estate
If decedent dies without will and heirs, decedent’s property ________
escheates to the state
Four types of gifts in a will
1) specific gift: devise of property that can be distinguished from rest of testator’s estate
2) general devise: devise of general property that will be satisfied from general assets of estate
3) demonstrative gift: general devise satisfied from particular source (treated as specific gift for abatement)
4) residuary gift: balance of estate after all general and specific gifts have been made
Ademption
Devise of property that fails because it is no longer in testator’s estate at testator’s death
Ademption by Satisfaction
if testator gives property to beneficiary while testator is alive, gift is adeemed by satisfaction
Lapse
a devise of property lapses if beneficiary dies before testator dies, and no alternate beneficiary is named in will.
Lapsed gift becomes part of residual.
Anti-lapse statute
Designed to prevent gifts from lapsing. Apply when two elements satisfied:
1) lapsed gift made to specific party (almost always family member); AND
2) Deceased beneficiary survived by issue
To be an heir, person must ________
survive decedent and take by intestate succession
Special names for immediate family members
Issue: children/grandchildren
Ancestors: parents/grandparents
Collaterals: siblings
Abatement:
Devise is reduced or abated when assets of estate are insufficient to pay all debts and satisfy all devises. If testator does not choose to indicate her intended order of abatement, gifts are sacrificed to satisfy expenses for funeral, administration, and creditors’ claims in following order:
1) property not disposed of by will
2) residuary devises
3) general devises
4) specific devises
Pro rata abatement
Within each class, the amount abated is allocated on a pro rata basis among the devisees in proportion to the amount of property each would have received if a full distribution had been made.
Exoneration of Liens
If testator makes specific devise of real property that is subject to encumbrance (i.e. mortgage/lien), devisee is entitled to have land “exonerated” by payment of encumbrance from remaining assets in testator’s estate (majority view).
Minority of states require transfer of property subject to encumbrance unless otherwise expressed in will.
Trust
device for managing property whereby trustee owns property for benefit of another person
Who’s who in a trust
Settlor: creates trust
Beneficiary: benefits from trust (holds equitable title)
Trustee: responsible for managing property (holds legal title)
Res: property subject to trust
Absolute restraint on alienation is _______
void
Partial restraint on alienation is valid if it is for a ________ and a ________
limited time; reasonable purpose
Easement
Right held by one person to make use of another’s land
Land burdened by easement
servient estate
Land benefited by easement
dominant estate
Affirmative easement:
gives holder right to do something on someone else’s property
Negative easement
gives holder right to prevent someone from doing something on her land
Easement appurtenant
tied to land. Holder of easement appurtenant is benefitted in use of land.
Easement in gross
benefits holder personally. No dominant estate.
Express Easement
Created by grant (and sometimes by reservation). Subject to Statute of Frauds and Recording Statutes.
Implied Easement
Easement by necessity
Easement by Implication (prior use)
Easement by prescription (adverse possession)
Easement by estoppel
Not subject to Statute of Frauds or Recording Statutes, unless subsequent purchaser had notice of easement.
Easement by Necessity
created when property is virtually useless.
Requires:
Common ownership; AND
Necessity at severance
Ens when no longer necessary
Easement by Implication
Created by existing use on property. Must be “reasonably necessary” to dominant estate’s use and enjoyment.
Requires:
Common ownership; AND
Quasi-easement prior to division; that was CONTINUOUS and APPARENT at severance
Easement by Prescription
Requires:
Continuous for statutory period;
Open and Notorious; AND
Hostile
NOT exclusive
Easement by Estoppel
Starts with permissive use, then grantee relies on promise. (Reliance must be in good faith). Grantor withdraws permission. If reliance was detrimental to grantee, grantor is estopped from withdrawing permission.
Changes in use of easement are tested under ________
reasonableness standard. We presume parties contemplated current and future use, which means future use must be reasonably foreseeable.
Can the easement be transferred to new holders of estate if original holder redevelops or subdivides property?
Only if new use was ordinary and foreseeable.
What happens if holder of dominant estate acquires additional property?
Holder is not entitled to use easement to access property acquired after easement is created
How is easement terminated?
Release: holder must expressly release in writing.
Merger: owner of easement acquires fee title to underlying estate.
Abandonment: Owner acts in affirmative way that shows clear intent to relinquish right. Requires non-use statement PLUS act demonstrating intent.
Prescription: holder fails to protect against trespasser for statutory period.
Sale to bona fide purchaser
Estoppel: Servient owner changes position to his detriment in reliance on statements/conduct of easement holder.
End of necessity.
Profit à Prendre
Right to enter another’s land to remove natural resource (operates similar to easement)
License
revokable permission to use another’s land
Real Covenant
Promise concerning the use of a the land that runs to successors to the promise
Requirements for real covenant to run with land
1) Writing: Subject to Statute of Frauds and Record Acts
2) Intent: original parties must intend for covenant to run with land (look for express language)
3) Touch and Concern: benefit or burden must affect both promisee and promisor as owners of land (restriction on use will usually touch and concern)
Notice: actual or constructive (inquiry OK for equitable servitude)
Privity: Horizontal (estate and covenant contained in same instrument)
Vertical (to run burden, successor must take original party’s entire interest; to run benefit, successor need only take interest carved from original estate)
Remedy for breach of real covenant
remedy at law (damages)
Equitable Servitude
Like real covenant, but easier requirements:
1) in writing
2) intent to run with land
3) touch and concern land
4) successor must have notice (actual, constructive, inquiry)
NO PRIVITY REQUIREMENT
Remedy for breach of Equitable Servitude
Injunctive Relief (specific performance)
Implied Reciprocal Servitude
Comes up in planned communities. Must be intent to create servitude on all plots of subdivision. Must be reciprocal (benefits & burdens each parcel). Must be negative rather than positive. Successor must be on notice of restriction. Must be common scheme or plan.
How to determine if common scheme for implied reciprocal servitude
Map of community showing common scheme
Marketing advertisements of community
Oral or written mention that lots are burdened by common restriction
Terminating Implied Reciprocal Servitude?
Changed Circumstances Doctrine: restriction no longer makes sense due to drastic changes in surrounding area since restriction put in place.
Equitable defenses for Implied Reciprocal Servitude?
unclean hands
laches
Riparian Rights
Landowners who border a waterway own rights to waterway. Riparian owners share reasonable use of water, such that one is liable to another for interference with other’s use.
Prior Appropriation of waterway
First in Time, First in Right. User must put water to beneficial use.
Lateral Support Rights
Neighboring landowner cannot excavate so as to cause cave in on neighbor’s land.
Negligence Liability when actions causes subsidence on neighbor’s land and neighbor’s buildings contributed to subsidence
Strict liability when neighbor’s building did not contribute to subsidence.
Subjacent Support
Rights to surface landowner not to have their land subside from activities of owners of underground rights.
Owner of mineral rights strictly liable for failure to support land and building that existed before rights were created.
Owner of mineral rights liable for negligence for damage to buildings built after rights created.
Zoning
State and local governments may regulate use of land through zoning laws. Enacted for protection and safety of community.
Exemption from zoning
Landowner exempt from zoning law if owner can demonstrate ordinance imposes unique hardship. Variance cannot be contrary to public welfare.
Non-conforming use. Use that lawfully existed before zoning ordinance enacted. Prohibition against expansion of non-conforming use.
Vested Rights: when developer in middle of building project at time ordinance enacted. Project must have been started in good faith.
