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Constitution Law Bar Prep > Real Property and Future Interests > Flashcards

Real Property and Future Interests Flashcards

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1
Q

Devisible

A

pass by will

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2
Q

descendible

A

passing through intestate

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3
Q

alienable

A

passing inter vivos

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4
Q

Fee simple abosulte

A
  • implied if no express intent

- absolute ownership of potentially infinite duration

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5
Q

defeasible fee

A

fee simple estates that can be terminated upon an event or occurance

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6
Q

fee simple determinable

A

fee simple that terminates upon occurance of event and reverts back to grantor

  • created with conditional language (as long as, until, during)
  • transferable, devisilbe descenible, ALWAYS subject to condition
  • always has a possiblity of reverter back to grantor; automatic
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7
Q

fees imple subject to conditon subsequent (FSSCS)

A
  • fee simple that reserves right to terminate only after the grantor takes some action
  • not automatic
  • condition is after granting of property
  • Always has the right of re-rentry
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8
Q

fee simple subject to executory interest

A

-fee simple with condtions giving a thrid party the property if not met (executory interest)

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9
Q

do words of desire hope or intention count as a defeasible fee

A

no

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10
Q

are fees simple conditions penalizing marriage or encourgaing divorce valid?

A

no, BUT conditions supporting someone until marriage or in the event of divorace are

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11
Q

life estate

A
  • must be made in explicit lifetime terms (for life,)
  • for natrual life of the recipient
  • transferable, not devisible or decendible (bc for life)
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12
Q

life estate pur autre vie

A

life estate that was transfered to a thrid party during the life of the transforor
-once transferor dies, life estate ends

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13
Q

what is a remainder

A

future interest of a third party

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14
Q

what is a reversion

A

future interest of a grantor

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15
Q

can life tenants commit waste on property

A

no, must not commit actual, permissive, or ameliorative waste
-for permissive waste, must repair, pay taxes, pay interest on mortgage, pay special assessments for SHORT term improvements (long term improvements split with future interests)

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16
Q

contingent remainder

A

third party interest to either an unborn or unascertained person OR subject to a condition precedent (condition that needs to be met before taking)

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17
Q

vested interest

A

present ppl with NO condition precedent

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18
Q

indeafisible vested remainder

A

third party is certain to get property, no strings attached when they do

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19
Q

vested interest subject to total divestment

A

vested interest subject to a condition subsequent

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20
Q

vested reaminder subject to open

A

third party interest that is certain, but could be claimed (diminuated) by sharing interest with others

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21
Q

springing executory interest

A

cuts the interest of grantor short (original O)

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22
Q

shifting executory interest

A

always follows a defeasible fee and cuts short someone elses interest

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23
Q

the rule of perpetuities; when does it begin to run

A

for interest granted by will: runs from the testators death

-for deeds: date of delivery

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24
Q

when does an interest vest according to the rule against perpetuities

A

when the interest becomse possessory (party owns property) OR when the interest is an indefeasible vested remainder (will certain become possessory with no conditions)

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25
Q

what are the four steps for analyzing rule against perp

A
  1. determine the interest
  2. how will future interest holder take
  3. whos life am I measuring to detemrine if within rule
  4. when will we know for sure the future interest holder can take
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26
Q

When rule against perp is broken, what happens?

A

the void provision is removed, but only the void provision

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27
Q

What form of restraint on alienation is always prohibited

A

absolute restraints on fee simple

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28
Q

what are permissible alienation restraints on fee simple

A

reasonable and limited time forfeiture and promissory restraints

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29
Q

what are promissory and forfeiture alineation restraints

A

forfeiture: attempted transfer forfeits interest
promissory: attempted transfer breaches covenant

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30
Q

what happens in a joint tenancy with more than two ppl in which one joint tenant transfers their interest?

A

joint tenancy remains for the other two, but they are in a tenant in common with transferee

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31
Q

what is lien theory in joint tenancy

A

a mortgage DOES NOT sever JT; majority view

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32
Q

what is title theory for JT

A

a mortgage DOES sever JT

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33
Q

can creditors of one spouse in a tenants by the entirety go after the shared property?

A

no

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34
Q

can a spouse transfer their interest in a tenancy by the entirety?

A

Yes, BUT that does NOT defeat the right to suvivorship to the other spouse

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35
Q

in a tenancy in common, can a co-tenant rent property out?

A

yes, no permission needed to rent BUT must split proceeds with co-tenants

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36
Q

what are the partition rules for tenancies?

A
  • any tenant can bring a partition action

- partition in kind, valuntary agreement, and forced sale

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37
Q

Can you mortgage when in a JT or a TiC

A

Yes, but on ly your interest, and wont disolve right of survivorship in JT or TitE

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38
Q

Do landlords have the right of entry in most leases

A

yes, if the tenant breaches a lease covnant

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39
Q

how do you create a tenancy at will

A

must be express (oral or written)

40
Q

what are a landlords rights in a holdover proceeding

A

evict OR

create a new periodic tenancy

41
Q

what are the tenants duties

A

to repair and to pay rent

42
Q

what are the tenants duties to repair

A

maintain premises; routine repairs, NOT ordinary wear and tear

43
Q

what can a landlord do when a tenant vacates before lease is up

A

surrender: retake possession of apartment
Ignore: hold tenant resp for rent
re-let the premises on behalf of the tenant: usually the landlord must at least TRY to re-let.

44
Q

is leasee entitle to compensation when a landlord property is taken by emminent domain

A

yes, only if a complete taking, if a partial taking then no

45
Q

What are the landlords duties

A

duty to deliver possession, implied warrant of quiet enjoyment, and implied warranty of habilitability

46
Q

how can a landlord breach quiet enjoyment

A

wrongful

  • actual eviction
  • partial eviction (doesn’t apply to paramount title holder)
  • contructive eviction
  • -substantial interference
  • -notice to the landlord by the tenant
  • -tenant MUST vacate
47
Q

implied waranty of habitability

A

the premises must be fit for basic human habitation

48
Q

what happens when landlord breach habilitability

A

tenant can

  • move & terminate lease
  • repair and dedcut repairs from rent
  • reduce rent or withhold until court states fair rental value
  • reamin in possession, pay rent, and seek money damages
49
Q

assignment versus sublease

A

assignment is the transfer of a tenants entire interest in lease. puts landlord and assignee in privity of estate. Assignor is STILL in privity of contract with landlord.

-sublease is only a partial transfer of lease rights. this puts sublettor in privity of contract with sublettee, but sub lettee not in privity of contract OR estate with landlord. Landlord CAN ONLY go through sublettor, which is still in privity of estate with landlord, CANT enforce covenants or collect rent from sublessee

50
Q

do rent covenants run with the land?

A

yes, so anyone in privity of estate would owe rent (assignee)

51
Q

what are the rights of a sublessee

A

only the implied warrranties of habilitability and quiet enjoyment

52
Q

are covenants agaisnt assginemtn valid

A

Yes, if limited to req written approval of landlord. BUT landlord waives if

  • knows of assignment
  • doesnt object
53
Q

Once a landlord consents to a transfer by tenant…

A

waives rights to object UNLESS landlord expressly reserves the right

54
Q

Tell me about landlord assignments

A

landlord can assign, no consent needed by tentants

  • once tenants have reasonable notice of assignment, rent and duties owed to landlord now owed to assginee
  • duties to tenants runs with the land, so assignee must respect
  • if covenant violated by assignee, both assignee AND landlord liable IF covenant was in original agreement
55
Q

what are the two rules for landlord tort laiblity

A

common law rule: no liablity unless common area latent (hidden) defect, assumption of repairs, public use, short term leases.

general duty of reasonable care: ordinary negligence for any defect the LL knew of and could have repaired

56
Q

what are the types of negative easements that are allowed

A

light, air, support, stream watter

57
Q

easement appurtenant

A

there is a dominant and servient parcel

one benfits, another loses

58
Q

easement in gross

A

a serivent land

one loses, the other does not lose or win

59
Q

how do easements transfer

A

easement apurtenant: for the dominant estate: ALWAYS transfers, even if not recorded or mentioned on conveyance

for the servient estate: follows automatically UNLESS the purchaser is a BFP (purchaser for substnatial consideration w/o notice of the easement)

easement in gross: NOT transferable UNLESS for commercial purposes

60
Q

how do you create an easement

A

Prescriptive easements
Implied easement: preexisting use
EAsement of necessity
Grant : signed writing ONLY req servient land signature

61
Q

what is the scope of an easement

A

assumed to meet the present and future needs of the dominant tenement

62
Q

does overuse or misues of an easement terminate it?

A

NO, offers the servient tenement poss of injunctive relief to enjoin use

63
Q

how do you terminate an easemnet

A 
estoppel
necessity
destruction of servient land
condemnation or servient
release by dom
adandonment 
merger
prescrition
64
Q

what is a license

A

privilege to enter someones land for a purpose

  • revocable at any time for any reason
  • non-tranferable
  • think hotels
65
Q

restrictive covenant VS equitiable servitude

A

a written promise to do/not do something with land. Differs from easement bc it is a contractual obligation, not a land interest.
-therefore, the remedy would be damages

66
Q

for restrictive covenants to run with land (burden then benefit)

A

Burden: writing, intent to run (liberal app), touch and concern (must affect legal rights as landowners), horizontal and vertical privity (H: think mortgagor/mortgagee, landlord tenatn, grantor grantee)(V: think any conveyance except adverse), Notice.

For benfiting party: writing, intent, touch and concern, vertical privity
-if can’t run for benefiting party, can’t run for burdened property

67
Q

what is an equitable servitude

A

promise that equity will enforce agaisnt sucessors regardless of running with land UNLESS pruchaser is a BFP

  • seek injunction to enforce
  • created by
  • -writing
  • -intent
  • -touch and concern
  • -notice
68
Q

when do you not need a writing for an equitiable servitude

A

common scheme doctrine: a developer who has restrictive covenants on some land but not others, those others will be held to an implied reciprocal negative servitude to hold unrestricted lots to the promise

69
Q

what are the elements of common scheme doctrine

A

general scheme of development AND D had notice of common scheme WHEN D TOOK property

70
Q

Can an adverse possessor use time of the previous owner in measuring his own time of adverse possession?

A

Yes, so long as land transfer b/w prior adverse possessor and current adverse possessor was in privity

71
Q

What is part performance for land sales?

A

only remedy to a land sale that violates the statute of frauds. req

  • oral contract is certain and clear
  • and two of these three: possession of buyer, substnatial improvements of buyer, or paid purchase price or signifcant part of purhcase pirce
72
Q

who needs to sign a contract for a land sale

A

the party agsint whom the contract is being enforced

73
Q

what is the doctrine of equitible conversion

A

after contract of land sale, buyer is considered the owner of the property and is on the hook if destroyed

74
Q

what are the two promises of land sales

A

marketable title and no false statements of material fact

75
Q

marketable title

A
  • title is free from defects, zoning violations, and encumberances
  • if even a portion of land is adversely possessed, title is unmarket able
  • any unwaived encumberance: mortgage, easemente, resetrictve covenant, option to purchsea, significant encroachment
76
Q

when must title be marketable

A

the day of closing

77
Q

what remedy to unmarketable title

A

recession, specific perforamce with abatement, quiet title. damages

78
Q

seller will not make false statements of material fact

A
  • includes knowingly false statements, active concelament of a defect, and failure to disclose knwon defects
79
Q

can seller disclaim liability for defects with an as is contract?

A

yes, must identify specific defects

80
Q

is time of the essence for land sales

A

no, presumed not to be unless

  1. stated in contract
  2. cirucmstnaces indicate timeliness was parties intent
  3. one party (ONLY one needed) tells the other timlinesss needed
81
Q

remedies for breach of sales contract

A

damages or specifc performance

82
Q

what is needed to pass legal title from grantor to grantee

A

lawful execution and delivery (only need clear intent of delivery)

83
Q

how do you execute a valid deed

A

writing signed by grantor, unambiguous description of the land, id the parties, words of intent to transfer

84
Q

is a deed delivered with additional conditions valid

A

yes, but only if they are written conditions

85
Q

what are the types of deeds

A

quitclaim: not claiming to own title
general warranty: claiming to own good title for self and previous owner
special warranty deed: claiming own good title for self only

86
Q

what are the six covenants for warranty deeds

A

seisin: conveyor is sole owner
right to convey
against encumberances
quiet enjoyment: wont be disturbed in possession by third party
further assurances: assist to fix title
warranty: defend agaisnt thrid party claiming title

87
Q

what other documents are needed for closing

A

closing disclosure: mortgagee to mortgagor/new buyer
notification of defects
environmental report

88
Q

what is a BFP

A

a purchaser for valuable consideration without notice (of prior conveyance OR covenant, or whatever else restricted the land)

89
Q

who can’t be a BFP

A
  • a donee, gift getter

- someone with notice (previous owner recorded in proper chain of title), inspected land or should have inspected land)

90
Q

what is created when someone takes out a mortgage

A
  1. a note (personal promise to repay)

2. a mortgage (offer to transfer land as repayment for a debt)

91
Q

purchase money mortgage and non-purchase money mortgage

A

pmm: lender’s funds are used to purchase the land that the lender has a secuirty interest it
npmm: lender gives money for some other purpose

92
Q

a mrotgage is a combination of

A

a debt and a voluntary lien in land to secure debt

93
Q

as a creditor, waht must you do

A

record your property interest (mortgage) have no priority if you dont

94
Q

what is a subordination agreement

A

a senior creditor may agree to subordinate its priority to a junior creditor

95
Q

who is resonsible for mortgage payments in a life tenancy

A

the life tenant is responsible for interest ONLY

remainderman is responsible for principle

96
Q

recorded plat

A

a map of specifc land area that conforms to govt req

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