Real Property and Future Interests Flashcards
Devisible
pass by will
descendible
passing through intestate
alienable
passing inter vivos
Fee simple abosulte
- implied if no express intent
- absolute ownership of potentially infinite duration
defeasible fee
fee simple estates that can be terminated upon an event or occurance
fee simple determinable
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
fees imple subject to conditon subsequent (FSSCS)
- 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
fee simple subject to executory interest
-fee simple with condtions giving a thrid party the property if not met (executory interest)
do words of desire hope or intention count as a defeasible fee
no
are fees simple conditions penalizing marriage or encourgaing divorce valid?
no, BUT conditions supporting someone until marriage or in the event of divorace are
life estate
- must be made in explicit lifetime terms (for life,)
- for natrual life of the recipient
- transferable, not devisible or decendible (bc for life)
life estate pur autre vie
life estate that was transfered to a thrid party during the life of the transforor
-once transferor dies, life estate ends
what is a remainder
future interest of a third party
what is a reversion
future interest of a grantor
can life tenants commit waste on property
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)
contingent remainder
third party interest to either an unborn or unascertained person OR subject to a condition precedent (condition that needs to be met before taking)
vested interest
present ppl with NO condition precedent
indeafisible vested remainder
third party is certain to get property, no strings attached when they do
vested interest subject to total divestment
vested interest subject to a condition subsequent
vested reaminder subject to open
third party interest that is certain, but could be claimed (diminuated) by sharing interest with others
springing executory interest
cuts the interest of grantor short (original O)
shifting executory interest
always follows a defeasible fee and cuts short someone elses interest
the rule of perpetuities; when does it begin to run
for interest granted by will: runs from the testators death
-for deeds: date of delivery
when does an interest vest according to the rule against perpetuities
when the interest becomse possessory (party owns property) OR when the interest is an indefeasible vested remainder (will certain become possessory with no conditions)
what are the four steps for analyzing rule against perp
- determine the interest
- how will future interest holder take
- whos life am I measuring to detemrine if within rule
- when will we know for sure the future interest holder can take
When rule against perp is broken, what happens?
the void provision is removed, but only the void provision
What form of restraint on alienation is always prohibited
absolute restraints on fee simple
what are permissible alienation restraints on fee simple
reasonable and limited time forfeiture and promissory restraints
what are promissory and forfeiture alineation restraints
forfeiture: attempted transfer forfeits interest
promissory: attempted transfer breaches covenant
what happens in a joint tenancy with more than two ppl in which one joint tenant transfers their interest?
joint tenancy remains for the other two, but they are in a tenant in common with transferee
what is lien theory in joint tenancy
a mortgage DOES NOT sever JT; majority view
what is title theory for JT
a mortgage DOES sever JT
can creditors of one spouse in a tenants by the entirety go after the shared property?
no
can a spouse transfer their interest in a tenancy by the entirety?
Yes, BUT that does NOT defeat the right to suvivorship to the other spouse
in a tenancy in common, can a co-tenant rent property out?
yes, no permission needed to rent BUT must split proceeds with co-tenants
what are the partition rules for tenancies?
- any tenant can bring a partition action
- partition in kind, valuntary agreement, and forced sale
Can you mortgage when in a JT or a TiC
Yes, but on ly your interest, and wont disolve right of survivorship in JT or TitE
Do landlords have the right of entry in most leases
yes, if the tenant breaches a lease covnant
how do you create a tenancy at will
must be express (oral or written)
what are a landlords rights in a holdover proceeding
evict OR
create a new periodic tenancy
what are the tenants duties
to repair and to pay rent
what are the tenants duties to repair
maintain premises; routine repairs, NOT ordinary wear and tear
what can a landlord do when a tenant vacates before lease is up
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.
is leasee entitle to compensation when a landlord property is taken by emminent domain
yes, only if a complete taking, if a partial taking then no
What are the landlords duties
duty to deliver possession, implied warrant of quiet enjoyment, and implied warranty of habilitability
how can a landlord breach quiet enjoyment
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
implied waranty of habitability
the premises must be fit for basic human habitation
what happens when landlord breach habilitability
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
assignment versus sublease
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
do rent covenants run with the land?
yes, so anyone in privity of estate would owe rent (assignee)
what are the rights of a sublessee
only the implied warrranties of habilitability and quiet enjoyment
are covenants agaisnt assginemtn valid
Yes, if limited to req written approval of landlord. BUT landlord waives if
- knows of assignment
- doesnt object
Once a landlord consents to a transfer by tenant…
waives rights to object UNLESS landlord expressly reserves the right
Tell me about landlord assignments
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
what are the two rules for landlord tort laiblity
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
what are the types of negative easements that are allowed
light, air, support, stream watter
easement appurtenant
there is a dominant and servient parcel
one benfits, another loses
easement in gross
a serivent land
one loses, the other does not lose or win
how do easements transfer
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
how do you create an easement
Prescriptive easements
Implied easement: preexisting use
EAsement of necessity
Grant : signed writing ONLY req servient land signature
what is the scope of an easement
assumed to meet the present and future needs of the dominant tenement
does overuse or misues of an easement terminate it?
NO, offers the servient tenement poss of injunctive relief to enjoin use
how do you terminate an easemnet
estoppel necessity destruction of servient land condemnation or servient release by dom adandonment merger prescrition
what is a license
privilege to enter someones land for a purpose
- revocable at any time for any reason
- non-tranferable
- think hotels
restrictive covenant VS equitiable servitude
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
for restrictive covenants to run with land (burden then benefit)
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
what is an equitable servitude
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
when do you not need a writing for an equitiable servitude
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
what are the elements of common scheme doctrine
general scheme of development AND D had notice of common scheme WHEN D TOOK property
Can an adverse possessor use time of the previous owner in measuring his own time of adverse possession?
Yes, so long as land transfer b/w prior adverse possessor and current adverse possessor was in privity
What is part performance for land sales?
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
who needs to sign a contract for a land sale
the party agsint whom the contract is being enforced
what is the doctrine of equitible conversion
after contract of land sale, buyer is considered the owner of the property and is on the hook if destroyed
what are the two promises of land sales
marketable title and no false statements of material fact
marketable title
- 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
when must title be marketable
the day of closing
what remedy to unmarketable title
recession, specific perforamce with abatement, quiet title. damages
seller will not make false statements of material fact
- includes knowingly false statements, active concelament of a defect, and failure to disclose knwon defects
can seller disclaim liability for defects with an as is contract?
yes, must identify specific defects
is time of the essence for land sales
no, presumed not to be unless
- stated in contract
- cirucmstnaces indicate timeliness was parties intent
- one party (ONLY one needed) tells the other timlinesss needed
remedies for breach of sales contract
damages or specifc performance
what is needed to pass legal title from grantor to grantee
lawful execution and delivery (only need clear intent of delivery)
how do you execute a valid deed
writing signed by grantor, unambiguous description of the land, id the parties, words of intent to transfer
is a deed delivered with additional conditions valid
yes, but only if they are written conditions
what are the types of deeds
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
what are the six covenants for warranty deeds
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
what other documents are needed for closing
closing disclosure: mortgagee to mortgagor/new buyer
notification of defects
environmental report
what is a BFP
a purchaser for valuable consideration without notice (of prior conveyance OR covenant, or whatever else restricted the land)
who can’t be a BFP
- a donee, gift getter
- someone with notice (previous owner recorded in proper chain of title), inspected land or should have inspected land)
what is created when someone takes out a mortgage
- a note (personal promise to repay)
2. a mortgage (offer to transfer land as repayment for a debt)
purchase money mortgage and non-purchase money mortgage
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
a mrotgage is a combination of
a debt and a voluntary lien in land to secure debt
as a creditor, waht must you do
record your property interest (mortgage) have no priority if you dont
what is a subordination agreement
a senior creditor may agree to subordinate its priority to a junior creditor
who is resonsible for mortgage payments in a life tenancy
the life tenant is responsible for interest ONLY
remainderman is responsible for principle
recorded plat
a map of specifc land area that conforms to govt req
