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Real Property > RP 1 Final Study > Flashcards

RP 1 Final Study Flashcards

1
Q

Rules on Transferability of Estates

A
  1. Cannot transfer greater interest than held;
  2. fee simple absolute presumed absent express language to contrary.
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2
Q

Fee Simple Absolute

A
  1. Absolute ownership potential perpetuity;
  2. Freely devisable, descendible, and alienable;
  3. No accompanying future interest.
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3
Q

No Defeasible Fees

A
  1. Words of mere hope, intention, or desire;
  2. Mere expectation.
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4
Q

Fee Simple Determinable

A
  1. Granter must use clear durational language;
  2. If stated condition violated, forfeiture automatic;
  3. Freely devisable, descendible, and alienable (but always subject to the condition);
  4. Accompanying future interest is possibility of reverter.
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5
Q

Fee Simple Subject to Condition Subsequent

A
  1. Grantor must use clear conditional language and carve out right to reenter;
  2. Not automatically terminated but can cut short at grantor’s option if condition occurs;
  3. Freely devisable, descendible, and alienable;
  4. Accompanying future interest is right of reentry.
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6
Q

Fee Simple Subject to Executory Limitation

A
  1. Future interest in third party which cuts short prior estate;
  2. Accompanying future interest is shifting or springing executory interest.
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7
Q

Life Estate

A
  1. Possessory estate measured in explicit lifetime terms and never in years;
  2. Accompanying future interest is a reversion in granter or remainder in third party;
  3. A life tenant is entitled to ordinary use and profits of the property.
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8
Q

Waste

A
  1. Life tenant must not commit
    waste;
  2. Voluntary, permissive, ameliorative.
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9
Q

Voluntary Waste

A
  1. Affirmative and actual overt conduct that;
  2. causes a decrease in value.
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10
Q

Permissive Waste

A
  1. Negligent or intentional conduct failing to repair or preserve original condition;
  2. Life tenant has a duty to maintain premises in good repair and pay all taxes and carrying costs.
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11
Q

Ameliorative Waste

A
  1. Improvements or changes in use which;
  2. enhance the value or change character;
  3. without the knowledge and consent of all vested future interest holders.
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12
Q

Remainder - What is it and what does it never follow?

A
  1. Future interest in third party;
  2. following natural termination of
    preceding estate of known, fixed duration;
  3. Never follows defeasible fee.
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13
Q

Vested Remainder, VRSTD, VRSTO

A
  1. Created in ascertainable person and no conditions precedent;
  2. Indefeasible if certain and no conditions subsequen;t
  3. Subject to complete defeasance (divestment) if possession can be cut short due to condition subsequent;
  4. Subject to open if vested in a group, at least one of whom is qualified to take possession.
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14
Q

Contingent Remainder

A
  1. unascertained person; or
  2. subject to condition precedent.
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15
Q

Rule of Destructibility of Contingent Remainders

A
  1. Destroyed if still contingent at cessation of preceding estate;
  2. Modernly, will remain contingent while held by grantor’s heirs.
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16
Q

Shelley’s Case Rule

A
  1. Life estate with remainder in life tenant’s heirs merges into fee simple absolute;
  2. Modernly, life estate remains and unknown heirs have a contingent remainder;
  3. Grantor has reversion since life tenant could die with no heirs.
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17
Q

Doctrine of Worthier Title

A
  1. Contingent remainder in Grantor’s heirs is void;
  2. Grantor retains reversion;
  3. Grantor’s intent controls.
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18
Q

Executory Interests

A
  1. Always follows a defeasible fee;
  2. shifting cuts short someone
    other than grantor, and springing cuts short grantor;
  3. No standing to sue life tenant for waste b/c not vested.
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19
Q

Public Policy Limitations

A

No restraints on alienation or marriage

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20
Q

Joint Tenancy

A
  1. Concurrent estate where two or more cotenants own equal interests;
  2. Requires words of survivorship and joint tenancy;
  3. Must have four unities.
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21
Q

Rule Against Perpetuities

A
  1. Future interest is void unless it must vest, if at all, not later than 21 years after death of a life in being at creation of future interest;
  2. Applies to contingent remainders, executory interest, and certain vested remainders subject to open;
  3. A gift to open class conditioned on members surviving beyond 21 violates;
  4. Executory interest without vesting time limit violates;
  5. Gift from one charity to another does not violate.
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22
Q

Severance of Joint Tenancy

A
  1. Severed as to joint tenant (only) who acts in a manner inconsistent with joint tenancy;
  2. Sell, convey, partition, or mortgage in title theory state;
  3. Doctrine of equitable conversion will sever upon enforceable contract.
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23
Q

Tenancy in Common

A
  1. Default in common law jurisdictions;
  2. Has unity of possession, which gives each cotenant an undivided interest and right to possess the whole.
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24
Q

Rent from Tenant in Exclusive Possession

A
  1. Cotenant in exclusive possession is not liable to others unless ouster;
  2. Other cotenants liable for carry costs (NET - exceeding rental value - in some jdx).
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25
Q

Rent from Third Parties

A
  1. Cotenant leasing all or part of premises must account to cotenants, providing them with proportionate share of income.
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26
Q

Cotenant Repairs

A
  1. Repairing cotenant enjoys proportional right of contribution when;
  2. reasonable, necessary, properly notified;
  3. No right to contribution for improvements, but improving cotenant entitled to full increase or decrease in value.
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27
Q

Waste

A

Cotenants must not commit waste

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28
Q

Cotenant Carrying Costs

A

Each cotenant responsible for their share of carrying costs such as taxes and mortgage interest; ousted cotenant not liable; some jdx are for NET if sole tenant in possession.

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29
Q

Cotenant Adverse Possession

A

Unless ousted by other cotenants, one cotenant in exclusive possession cannot acquire title by AP to exclusion of others by ouster.

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30
Q

Tenancy by the Entirety

A
  1. Only in husband and wife;
  2. Default in states that recognize;
  3. All five unities;
  4. Creditors of one spouse cannot touch;
  5. No unilateral conveyance, devise, or partition.
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31
Q

Easement

A
  1. Grant of nonpossessory property interest entitling holder to use or enjoyment of another’s land;
  2. Appurtenant when servient and dominant. Passes automatically regardless of whether mentioned in conveyance;
  3. In gross when only servient. Personal or pecuniary not related to use and enjoyment. Not transferable except for commercial.
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32
Q

Creation of Easement

A
  1. Prescription, implication, necessity, or grant (PING);
  2. Prescription if CHOSE;
  3. Implication if quasi-easement (prior/apparent), expected continuance, Reasonable necessity to enjoyment of Dominant’s land;
  4. Necessity if landlocked;
  5. Grant must satisfy SOF.
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33
Q

Negative Easement (SALS)

A
  1. Never implied, only writing signed by granter;
  2. Support, Air, Light, or Stream of water from artificial flow.
34
Q

Termination of Easement (ENDCRAMP)

A
  1. Estoppel;
  2. Necessity;
  3. Destruction;
  4. Condemnation;
  5. Release;
  6. Abandonment;
  7. Merger; and
  8. Prescription.
35
Q

License

A
  1. Mere privilege, no writing, freely revocable;
  2. Easement by estoppel if invested in reliance on license;
  3. Failed easement creation results in license.
36
Q

Profit

A

Holder entitled to enter servient
land and take soil or substance
thereof;
2. Shares same rules as easements;
3. Always transferable.

37
Q

Covenant

A
  1. Promise to do or not do
    something related to land;
  2. Unlike easement, not a grant of property interest but a contractual limitation regarding the land;
  3. Money damages permitted.
38
Q

Equitable Servitude

A
  1. Covenant that, regardless of whether it runs with the land at law,
  2. equity will enforce against assignees of burdened land who have notice.
  3. Remedy is injunction.
39
Q

Termination of Covenant

A

(ME­ CPR)
1. Merger;
2. Estoppel;
3. Condemnation ;
4. Prescription; and
5. Release (written).

40
Q

Defenses to Covenants

A

CUEAA

  1. Changed conditions;
  2. Unclean hands;
  3. Estoppel;
  4. Acquiescence; and
  5. Abandonment.
41
Q

Creation of Servitudes

A
  1. Writing satisfying SOF;
  2. Negative is implied from common plan or scheme (notice of scheme or promises in prior deeds).
42
Q

Adverse Possession

A
  1. Continuous, hostile, open, notorious, actual, and exclusive for
    the statutory period ripens into title;
  2. Privity between parties will tack possession;
  3. Disabilities (iii) will prevent statute from running at inception of AP (insanity, infancy, imprisonment).
43
Q

Lateral Support

A
  1. Absolute right to have land supported in natural state by adjoining land;
  2. P must show land would have subsided in its natural state for strict liability;
  3. Negligence standard if improvements cause subsidence.
44
Q

Riparian Doctrine

A
  1. Water belongs to owners of bordering land;
  2. Share right to reasonable use;
  3. Liable to other riparian owners if use unreasonable interferes with others’ use.
45
Q

Prior Appropriation Doctrine

A
  1. Water initially belongs to state; but
  2. can be acquired in priority of beneficial use;
  3. First in time, first in right.
46
Q

Ground Water

A
  1. Surface owner entitled to make reasonable use;
  2. Must not be wasteful.
47
Q

Surface Water Jurisdictions

A

In order of most preferred by developers:
1. Common enemy, landowner may divert as desired, no liability to neighbor;
2. Modified common enemy, only liable if blocking natural watercourse or no reasonable care;
3. Reasonable use, like nuisance;
4. Civil law/natural servitude, strictly liable.

48
Q

Trespass

A
  1. Physical invasion of land without consent or privilege;
  2. Must bring ejectment action, no self-help.
49
Q

Nuisance

A
  1. Substantial and unreasonable interference with another’s use and enjoyment of land;
  2. Reasonable to average and not overly sensitive community member.
50
Q

Zoning

A
  1. States may enact statutes to reasonably control land use pursuant to police powers;
  2. Variance must show undue hardship and no detriment to surrounding property values;
  3. Nonconforming change must be gradual; and
  4. No unconstitutional exactions (amenities government seeks in exchange for permission to build).
51
Q

Land Sale Contract (PIDS, warranties)

A
  1. SOF (D-PIGS), Description, Price, Identity of granter, Grantor’s Signature (part performance exception);
  2. No implied warranties of fitness or habitability;
  3. Caveat emptor, but seller liable for failure to disclose latent material defects by omission or misrepresentation;
  4. Exception when seller is builder, implied warranty of fitness and workmanlike construction.
52
Q

Equitable Conversion

A
  1. Once contract is signed, buyer is equitable owner of realty and bears risk of loss;
  2. Seller has interest in personal property.
53
Q

Marketable Title (EZAP)

A
  1. Title free from lawsuits and threat of litigation;
  2. (EZAP) Encumbrances, Zoning, Adverse Possession.
54
Q

Delivery of Deed

A
  1. (LEAD) Lawfully Executed And Delivered, deed passes legal title from seller to buyer;
  2. (D-PIGS) Description, Present Intent, Grantor’s Signature;
  3. Physical delivery or recording is a rebuttable presumption.
55
Q

General Warranty Deed

A
  1. General contains present and future (SER-QWA);
  2. Present: Seisin, Encumbrances, Right to convey;
  3. Future: Quiet enjoyment, Warranty, Assurances (further);
  4. Special contains all but only covers actions by immediate grantor;
  5. Quitclaim has no warranties whatsoever.
56
Q

Bona Fide Purchaser

A
  1. Recording exists to protect bona fide purchasers and mortgagees;
  2. Donees not protected unless shelter rule.
57
Q

Shelter Rule

A

Grantee who takes title from BFP will prevail against claims against whom BFP would prevail.

58
Q

Wild Deed

A
  1. Recorded outside chain of title;
  2. Incapable of giving record
    notice.
59
Q

Estoppel by Deed

A
  1. One who conveys unowned land; is
  2. estopped from denying the validity of prior conveyance; if they
  3. subsequently acquire title to the previously transferred property;
  4. BFP protected in majority.
60
Q

Mortgage (CUCS)

A

Mortgage (CUCS)
1. Conveyance of a security interest in land;
2. Union of debt and voluntary transfer of security interest;
3. Collateral for the repayment of a monetary obligation;
4. Subject to SOF.

61
Q

Equitable Mortgage

A
  1. Deed absolute given to creditor;
  2. BFP can prevail if sold by creditor;
  3. Grantor can sue creditor to recover proceeds of the BFP sale;
  4. Parol evidence freely admissible to show parties intentions.
62
Q

Holder in Due Course (WEL, MaDFIIII)

A
  1. Endorsed and delivered note, transferee eligible to become holder in due course; meaning he
  2. takes free of personal defenses (WEL, Waiver, Estoppel, Lack of consid.); but still
  3. subject to real defenses, such as (MaDFIIII, Material alterations, Duress, Fraud in the factum/execution, Incapacity, Illegality, Infancy, or Insolvency).
63
Q

Redemption

A
  1. Redemption in equity allows mortgagor to pay off entire loan before completion of foreclosure proceedings; cannot be waived;
  2. Statutory right of redemption allows mortgagor to buy back property from foreclosure buyer for same price.
64
Q

Valid Lease (SOF = SQIPS)

A
  1. Validity determined by contract principles;
  2. Mutual assent, consideration, absence of defenses to formation;
  3. SOF if> 1 year. (SQIPS, Subject matter, quantity, identity of parties, Price, Signature of party to be charged).
65
Q

Tenancy for Years

A
  1. Fixed starting and ending date;
  2. No notice required to terminate;
  3. Freely transferable generally;
  4. Must satisfy contractual formalities if> 1 year (SQIPS).
66
Q

Periodic Tenancy

A
  1. Lease continues for periods determined by frequency of rent payments;
  2. One period notice up to six months for longer leases.
67
Q

Tenancy at Will

A
  1. No fixed duration;
  2. terminated by either party at any
    time without notice;
  3. Death;
  4. Transfer (attempt).
68
Q

Tenancy at Sufferance (Holdover Doctrine)

A
  1. Created when T wrongfully held over past expiration of lease;
  2. Lasts until LL evicts or elects to hold T to new term as periodic.
69
Q

Tenant’s Duty to Repair and Acts of God

A
  1. Must make reasonable repairs if lease is silent;
  2. Must not commit waste;
  3. Common law view, T responsible or any loss due to force of nature (independent covenants);
  4. Modernly, T’s duty to pay rent is discharged (dependent covenants).
70
Q

Fixtures

A
  1. Removal of fixtures is voluntary waste;
  2. Fixtures are affixed and pass with land;
  3. T may remove as chattel if can be done without damage or trade fixture;
  4. Look to intent in the lease.
71
Q

Breach of Tenant’s Duty to Pay Rent

A
  1. T breach while in possession (no self-help), LL may
  2. Evict through courts; or
  3. Continue lease and sue for accrued rents;
  4. T breach out of possession, LL can treat as
  5. Abandonment if T demonstrates intent to abandon;
  6. Re-let and hold T liable for deficiency+ future (majority). LL must try to mitigate by reletting.
  7. Ignore and hold T responsible for unpaid rent (minority).
72
Q

LL Duty to Deliver Possession

A
  1. Common law only legal title required;
  2. Modern is actual possession or discharge T’s duty to pay rent.
73
Q

Implied Covenant of Quiet Enjoyment

A
  1. T has right to quiet use and enjoyment without interference from LL or others.
  2. Constructive eviction (SING) - Substantial Interference, Notice, Goodbye (surrender/abandon) after reasonable opportunity to cure.
  3. Partial constructive - stay and abate
  4. Partial actual - stay and pay no rent
74
Q

Implied Warranty of Habitability (and Remedies)

A
  1. Fit for human habitation. Non- waivable;
  2. T’s remedies include (WOPT):
  3. Withhold rent,
  4. Offset and repair,
  5. Possession continued,
  6. Terminate and vacate.
75
Q

Retaliatory Eviction

A

LL may not retaliate after T has exercised a legal right.

76
Q

Assignments and Subleases, Generally

A
  1. If no prohibition in lease, permitted;
  2. Freely transferrable in whole or in part, but limitations strictly construed;
  3. Once LL consents to one assignment, LL waives unless reasserted (Dumpor’s case - doesn’t apply to sublease).
77
Q

Assignments

A
  1. T1 assigns remainder of term to T2;
  2. LL and T2 in privity of estate, liable to each other for all covenants in original lease that run with land (pay rent and repair);
  3. No privity of K unless novation.
78
Q

Sublease

A
  1. T1 conveys less than remainder of term to T2;
  2. No privity of estate or K between LL and T2;
  3. T2 liable to T1 only, and T1 remains liable to LL.
80
Q

Necessity

A
  1. Public - protect community. Not liable in tort or damages.
  2. Private - protect self. Not liable in tort but for actual damages.
80
Q

Eminent Domain (government taking)

A
  1. 5a prohibits without just compensation;
  2. 14a applies to states
  3. Justified if for public use - liberally construed;
  4. FMV at time of taking.

Real Property (1 decks)

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