Real Property - MBE Flashcards
Does condemnation of the servient estate terminate the easement?
Yes
Does use of an easement beyond its legal scope automatically terminate the easement?
No
This “surcharges” the easement, and the owner of the servient estate can enjoin the use beyond scope.
What is required to terminate an easement by abandonment?
- Intent to abandon
- Affirmative act (something physical)
Does use of a profit beyond its legal scope automatically terminate the profit?
Yes
Estates:
“as long as” “until” “while” “during”
These create what kind of estate for grantee?
If it reverts back to grantor, what kind of estate does he have?
If it transfers to a third party, what kind of estate does the third party have?
Is the transition automatic?
GRANTEE:
- Fee simple determinable
GRANTOR:
- Possibility of reverter
THIRD PARTY:
- Executory interest
Yes, automatic
Estates:
“but if” “provided that” “upon condition that”
These create what kind of estate for grantee?
If it reverts back to grantor, what kind of estate does he have?
If it transfers to a third party, what kind of estate does the third party have?
Is the transition automatic?
GRANTEE:
- Fee simple subject to condition subsequent
GRANTOR:
- Right of entry
THIRD PARTY:
- Executory interest
NO, grantor has a RIGHT OF ENTRY, but must exercise it to get the estate back
Estates:
“for life”
What kind of estate does this create for the grantee?
What about the grantor?
Is the transition automatic?
GRANTEE:
- Life estate
GRANTOR:
- Reversion
Yes, automatic
Estates:
“to A for the life of B”
What kind of estate does this create for the grantee?
What about the grantor?
Is the transition automatic?
GRANTEE:
- Life estate pur atutre vie
GRANTOR:
- Reversion
Yes, automatic
Estates:
“to A for life, but if X happens, then to B”
What kind of estate does this create for the grantee?
What about the grantor?
What about B?
Is the transition to B automatic?
GRANTEE:
- Life estate
GRANTOR:
- Reversion
B:
- Executory interest
I think it’s automatic. The “right of entry” rule seems to only apply to grantors.
Estates:
What are a life tenant’s rights and duties regarding natural resources on the land?
Exploitation of natural resources could be WASTE if not done properly. Can only exploit resources IF:
- Necessary for repair or maintenance of the land
- The land is suitable ONLY for such exploitation
OR
- It is expressly/impliedly permitted by the grantor
OPEN MINES DOCTRINE:
- If there are already open “mines” exploiting resources, the life tenant can exploit those—but can’t open new ones
Estates:
What does a life tenant have to do to avoid permissive waste?
- Reasonable upkeep of the land/structures (ordinary repairs only)
- Pay all taxes on the property
- Pay INTEREST on the mortgage
Estates:
Does a life tenant have to insure the property?
NO—the FI owner is the one who gets fee simple to the property in the end, so insurance is their responsibility
Estates:
What counts as ameliorative waste?
- Alters the property substantially
- BUT increases its value
Estates:
When is a life tenant permitted to alter or even diminish buildings on the property?
- Doing so doesn’t lower the market value of the land
AND EITHER: - The remaindermen do not object
OR - Changed conditions around the property (e.g. going from residential to 90% industrial) have rendered the property relatively useless
Estates:
What future interests are subject to RAP?
- Contingent remainder
- Vested remainder subject to open
- Executory interest
Note that NONE of these are a GRANTOR future interest
Estates:
What is the RAP?
A future interest MUST VEST before 21 years after all “lives in being” have died.
Estates:
Jerry to Kramer and his heirs so long as no liquor is consumed on the premises; and if liquor is ever consumed on the premises, then title shall go to Elaine and her heirs.
What interest to the parties have?
BEFORE RAP: Kramer (grantee): - Fee simple subject to condition subsequent Elaine: - Executory interest
Estates:
A charity conveys to another charity, but the second charity’s interest could theoretically vest after RAP would allow. Is the interest void?
No—this is the “charity-to-charity” exception to RAP
Estates:
For a class gift, when does the class close?
As soon as ANY class member can take the property
Estates:
Generally, an absolute restraint on alienation of a fee simple estate is void. What are some restraints that survive this rule?
- Reasonable restrictions in commercial transactions
- Rights of first refusal / options
- Restrictions on assignment and sublease of leaseholds
Concurrent:
Joint tenancy is destroyed with a severance. What are some things that may not result in a severance?
- Testamentary disposition—doesn’t sever because a person cannot actually inherit an interest in a joint tenancy anyway (it vanishes when the joint tenant dies).
- Judgment liens—not a severance until the interest is sold a foreclosure sale
- Mortgages—not a severance in LIEN THEORY states. However, it’s always a severance if the mortgage is foreclosed and sold at the foreclosure sale.
- Leases—states are split
- Contracts for sale—might be a severance if ALL joint tenants contract to sale their interests (it’s definitely a severance once the executory period is over, deed)
Concurrent:
What are the four unities required to create a joint tenancy?
*What is needed in Texas?
- Time
- Title
- Interest
- Possession
*Just have to say the co-tenants have a “right of survivorship”
Concurrent:
Co-tenant A runs a business on the property and makes a profit. Does A have to account to the other co-tenants for their share of profits?
What kind of use for profit does require sharing profits?
No
Only EXPLOITATION OF THE LAND for profit has to be shared (e.g. mining, natural resource exploitation)
Concurrent:
Co-tenant A is collecting rent from a third party who lives on the land. Does A have to account to the other co-tenants for their share of the rent?
Yes
Concurrent:
A and B are co-tenants. A lives in a totally different state and hasn’t set foot on the property for several years. Since B is the only one possessing the property, does B have to pay rent to A for possessing the whole thing?
No
A co-tenant has right to possess the whole property. A is entitled to nothing unless there has actually been an OUSTER.
Concurrent:
A, B, and C are joint tenants. A mortgages his interest. He doesn’t pay, so the bank gets ready to foreclose. But A dies before the bank forecloses.
Is the bank SOL?
Yes
When A died, his interest vanished and the other co-tenants now own without A.
Concurrent:
A makes some repairs on the property and wants the other co-tenants to pay their share. What is this called? What kind of repairs could be reimbursed?
Contribution
Only NECESSARY repairs—provided that A NOTIFIED the other co-tenants
Concurrent:
A makes some improvements on the property and wants the other co-tenants to pay their share. What is this called? What kind of improvements could be reimbursed?
Contribution
None—co-tenants are not entitled to contribution for improvements unless there is a PARTITION
Concurrent:
A pays taxes and makes payments on the mortgage. Should the other co-tenants pay their share?
Yes
Leases:
When is a writing required to create a lease?
If it lasts for more than one year
Leases:
T is a holdover tenant. L can evict him, or bind him to a new periodic tenancy as a holdover tenant.
How long is each “period” of the periodic tenancy?
Can L raise T’s rent?
LENGTH:
- If COMMERCIAL lease: year-to-year, unless the original lease was shorter than a year
- If RESIDENTIAL lease: month-to-month
RENT INCREASE:
- Only if L told T about a rent increase BEFORE the holdover
Leases:
T’s lease ended today at 5pm. He didn’t actually leave until around 8pm. Is T a hold-over tenant, bound to a new periodic tenancy?
No
Leases:
T’s lease ended last week. He is still in the apartment because he’s very sick and cannot move. Is T a hold-over tenant, bound to a new periodic tenancy?
No
