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UBE - Real Property > Set 1 > Flashcards

Set 1 Flashcards

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1
Q

FS determinable

A

Limited by specific durational language (e.g., “so long as,” “while,” “during,” “until”); Grantor (or his successor in interest) retains possibility of reverter

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2
Q

FS subject to condition subsequent

A

limited by specific conditional language (e.g., “upon condition that,” “provided that,” “but if,” or “if it happens that”); grantor must specifically retain right to reenter

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3
Q

FS subject to executory interest/limitation

A

limited by specific durational or conditional language; automatically terminates upon happening of stated event, and title passes to a
third party; future interest: executory interest held by the third party

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4
Q

Life estate

A

present possessory estate fully transferable during measuring life; if measured by the grantee’s life, not devisable/descendible

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5
Q

Affirmative Waste

A

Occurs when overt conduct causes a decrease in property value

Holder of a vested future interest—may bring suit against LT for damages

Holder of any future interest—may bring suit against LT for injunction

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6
Q

Permissive Waste

A

Occurs when LT permits the premises to deteriorate through neglect, failure
to preserve, or a failure to reasonably protect the property

LT must make reasonable repairs (up to amount of income produced by property or, if LT is in actual possession, the fair rental value)

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7
Q

Ameliorative Waste

A

Occurs when a change in use of the property increases its value

LT may alter structures on property when a substantial and permanent change in the
neighborhood is necessary to continue reasonable use of property if value not diminished.

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8
Q

Vested subject to open (class gift)

A

If at least one class member is qualified to take possession at conveyance (but less than all of them), each class member’s share is subject to partial diminution.

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9
Q

Contingent Remainder

A

created in an unascertainable grantee or subject to express condition precedent to grantee’s taking

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10
Q

Executory Interest

A

Future interest in a third party (not a remainder) that cuts prior estate short upon occurrence of specified condition.

Springing = cuts short a prior estate
Shifting = divests the grantor’s interest or fills a gap in possession
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11
Q

RAP

A

Specific future interests are valid only if they vest or fail by end of a life in being plus 21 years; applies to contingent remainders, options, rights of first refusal, executory interests, and subject to open remainders (CORES)

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12
Q

Rule of Conveniance

A

can operate to prevent application of RAP to a class transfer

Exceptions: transfers of specific dollar amount to each class member; transfers to subclass that vests at a specific time

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13
Q

Tenancy in common

A

Two or more grantees with unity of possession; each co-tenant holds undivided interest with unrestricted rights to possess whole; no right of survivorship

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14
Q

Joint tenancy

A

title, time, interest, possession (T-TIP)

severance = converts a JT into a TC; mortgage severs JT under title theory, but not under lien theory

sale = don’t need consent; severs JT as to seller, but JT of non-transferors remains
intact.

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15
Q

Co-Tenant - Rent

A

Each co-T has right to possess entire property and is generally not required to pay rent when other co-Ts do not use the property

Co-T is liable to other co-Ts for third-party rents (after deducting operating expenses and necessary repairs)

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16
Q

Co-Tenant - Expenses

A

Co-T can only compel other co-Ts to share expenses for repairs if (i) the repairs are
necessary, and (ii) the co-T seeks accounting or partition.

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17
Q

Co-Tenant - Contribution

A

Co-T can collect contribution from other co-Ts for operating expenses, but if in sole possession, only if they exceed the rental value of the property.

Co-T has no right to reimbursement for improvements (except contribution/partition)

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18
Q

Co-Tenant - Fair Dealing

A

Co-T owes duty of fair dealing to other co-Ts, but generally does not owe fiduciary duties

Exception: co-T buys the property at a tax or foreclosure sale (other co-Ts can buy back their interests within reasonable time)

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19
Q

FHA

A

Owner-occupied buildings with no more than four units (including the owner’s unit) and single-family homes sold or rented without a broker are generally not subject to FHA (but are subject to advertising rules).

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20
Q

Tenancy for Years

A

any fixed period of time; automatically terminates at end of term (no notice needed; if term longer than one year, SOF applies

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21
Q

Periodic tenancy

A

Repetitive, ongoing estate by set periods of time with no predetermined termination date; automatically renews at end of each period unless valid termination notice

Termination notice—must be given before last period begins; late notice effective for next period; generally effective as of last day of period; oral notice sufficient under common law, but most states now require some writing.

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22
Q

Tenancy at will

A

does not have specific term; continues as long as L and T want

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23
Q

Tenancy at sufferance (holdover tenancy)

A

T wrongfully remains in possession after expiration of lease; T bound by lease terms before expiration.

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24
Q

Duties of Tenant

A

pay rent and avoid waste

Repair—non-residential leases, T may be contractually liable for all damage to property.

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25
Q

Landlord remedies for Tenant breach - Failure to pay rent

A

Failure to pay rent—(majority) L can sue for damages and evict and terminate lease
(could not evict or terminate lease at CL)

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26
Q

Landlord remedies for Tenant breach - Future Rent

A

Future rent: no anticipatory repudiation in most states; where AR applies,
damages limited to difference between future rent under lease and either (i)
reasonable rental value or (ii) actual rent collected from re-letting

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27
Q

Landlord remedies for Tenant breach - Late Rent

A

Late rent—L entitled to damages; whether L can sue to remove depends on if breach
material or L waived right to evict by accepting late rent

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28
Q

Landlord remedies for Tenant Breach - Abandonment

A

Abandonment—treated as offer to surrender rights under the lease.

L accepts surrender—lease terminates and T liability for future rent ends

L rejects surrender—T remains liable for rent, but under majority rule, L has duty to
mitigate damages

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29
Q

Duties of Landlord

A

deliver possession, repair, warranty of habitability (residential), Covenant of quiet enjoyment (commercial and residential)

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30
Q

Constructive Eviction - Covenant of Quiet Enjoyment

A

substantial interference caused by L’s actions or failure to act, T must
give notice of problem, L fails to respond, and T must vacate premises within
reasonable time after L fails to fix problem

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31
Q

Actual Eviction

A

L excludes T from premises = lease is terminated and T’s obligation to
pay rent ends

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32
Q

Partial Eviction

A

T excused from paying rent, but must pay reasonable rental value if partial eviction by third party with superior claim; T not excused from paying rent for partial eviction by adverse possessor/trespasser

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33
Q

Tort Liability - Tenant

A

duty of care to invitees/licensees/foreseeable trespassers and may be liable for dangerous conditions/activities

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34
Q

Tort Liability - Landlord

A

CL—liable for injuries in common/public areas, non-common areas under L’s control, or hidden defect/faulty repair by L or L’s agent

Modern Trend —general duty of reasonable care; liability for defects prior to T’s occupancy, failure to make required repairs, and criminal activities of third parties who injure Ts

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35
Q

Assignment

A

complete transfer of T’s remaining lease term; landlord can collect rent from tenant and subsequent tenant

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36
Q

Sublease

A

any transfer for less than the entire duration of lease; landlord can collect rent from tenant

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37
Q

Landlord Assignment

A

Generally, L may assign lease rights to a third party, but remains liable to T for lease covenants.

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38
Q

Limitations for Assignment

A

T can assign/sublet if lease prohibits, but L can terminate for breach and recover
damages.

L can only withhold permission to grant assignment or sublease on reasonable grounds in relationship to the property being leased and not on a whim or personal prejudice

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39
Q

Land Sale Contract - Formalities

A

must be in writing, signed by the party to be charged, and contain all of the essential terms (parties, property description, terms of price/payment).

40
Q

Land Sale Contract - Marketable Title

A

Title free from defects or unreasonable risk of litigation. A buyer may waive the right to have marketable title.

41
Q

Land Sale Contract - Duty to Disclose

A

seller must disclose all known material physical defects not readily observable

42
Q

Land Sale Contract - Merger

A

obligations merge into deed upon delivery, unless obligations independent of conveyance

43
Q

Land Sale Contract - Remedy for Breach

A

difference between K price and market value

44
Q

Land Sale Contract - Equitable Conversion

A

Seller’s interest converted by contract into interest in proceeds of sale, not in RP; once contract is signed, buyer is owner of land, subject to paying purchase price at closing. But in interim between contract and closing, buyer bears risk of loss if land is destroyed. There is an exception when the loss is attributable to the intentional or negligent acts of the seller.

If the seller dies = bare legal title passes to takers of real property, but they must give up title to buyer when the contract closes;
when purchase price is paid, money passes as personal property to those taking seller’s personal property.

If the buyer dies = the taker of his real property can demand a conveyance of land at closing.

45
Q

Adverse Possession

A

Continuous - through statutory period (20 years at CL); seasonal use okay if consistent with type of property.

Open and Notorious—use must be such that it would put reasonable true owner on notice.

Actual—actual entry; but if only actually possess portion of property, constructive AP gives title to whole

Hostile—possession without owner’s permission; majority rule ignores the adverse possessor’s state of mind; minority rule inquires into adverse possessor’s state of mind (good faith based on mistake; bad faith (knows land is not hers)).

Exclusive—possession cannot be shared with true owner

46
Q

Delivery Deed

A

At time of transfer, grantor must intend to make present transfer of property interest
to grantee; execution and recording—creates rebuttable presumption the deed is presently operative.

Parol evidence is admissible to show
grantor lacks such intent. However, when the grantor transfers deed to grantee subject to a condition not appearing in deed (e.g., an oral condition), parol evidence is not admissible and condition not enforceable.

47
Q

Deed Requirements

A

Identified parties
Grantor’s signature
Words of transfer
Reasonably definite property description (extrinsic evidence admissible)

48
Q

Recording Act - Notice

A

BFP (purchaser for value without notice) of prior interest prevails over prior
grantee who failed to record

49
Q

Recording Act - Race

A

First to record prevails

50
Q

Recording Act - Race Notice

A

Subsequent BFP protected only if he takes without notice and is first to
record

51
Q

Types of Notice

A

Constructive—properly recorded and appears in chain of title.

Inquiry—if reasonable investigation would disclose prior claims.

Actual—a grantee with actual, personal knowledge of prior interest

52
Q

Mortgage

A

an interest in RP that serves as security for an obligation

Lien theory (majority)—debtor/mortgagor has title and right to possession until
foreclosure, creditor/mortgagee has lien and right to land default occurs.

If promissory note is transferred without the mortgage = mortgage is treated as having been transferred under principle mortgage follows the note.

53
Q

Mortgagor’s liability

A

If transferee assumes mortgage, then borrower is secondarily liable.

Borrower may be relieved of liability if lender impairs borrower’s right of recourse against transferee by: (i) modifying loan terms, (ii) releasing transferee of liability; or if lender
releases or impairs the RP subject to the mortgage

54
Q

Transferee Liability

A

If transferee assumes mortgage, transferee is personally liable for mortgage obligation

If transferee takes RP “subject to” mortgage, then transferee is not personally liable upon default (but RP may be sold at a foreclosure sale)

55
Q

Pre-foreclosure rights and duties

A

Lien theory state—mortgagee cannot take possession before foreclosure

title theory state—mortgagee theoretically entitled to possession at any time (but typically cannot take possession until default by mortgage terms).

Mortgagor has duty not to commit waste

Equity of redemption—after default but before foreclosure sale, mortgagor may regain title by paying amount of loan obligation currently owed, plus interest;

56
Q

Foreclosure

A

mortgagee takes RP when mortgagor defaults (i.e., no payment)

Priority: if two+ mortgages, foreclosure terminates junior interest and has no effect on senior; purchase-money mortgage (PMM) exception—mortgage used to purchase RP generally has priority over others.

57
Q

Easement Scope

A

An easement’s scope is determined by the terms or conditions that created it. In interpreting the easement’s scope, courts will consider the reasonable intent of the parties.

58
Q

Express Easement

A

affirmatively created by parties in writing that satisfies SoF

59
Q

Easement appurtenant

A

An easement appurtenant is a nonpossessory right to use someone else’s land (the servient estate) in a way that directly benefits the holder’s own possession of the land (the dominant estate). An easement appurtenant cannot be used for the benefit of property other than the dominant estate.

60
Q

Easement by Necessity

A

created when the dominant property is useless without an easement’s benefit across the neighboring servient property.

61
Q

Easement by Implication

A

created if: (1) prior to the division of a single tract, (2) an apparent and continuous use exists on the servient parcel, (3) that is reasonably necessary to the dominant parcel’s use and enjoyment, and (4) parties intended the easement to continue upon the sale of the dominant parcel.

Exceptions. subdivision plot (lots in a subdivision are sold with reference to a map plan) or (2) profit a prendre (holder passes over land’s surface as reasonably necessary to extract materials).

62
Q

Easement by Prescription

A

created like adverse possession (continuous, actual, open, and hostile for the specific period), except there is no exclusivity requirement.

63
Q

Negative Easement

A

entitles the holder to prevent the servient landowner from engaging in permissible actions relating to light, air, support, or stream of water from an artificial flow. A negative easement can only be created by express grant (writing signed by grantor).

64
Q

Termination of Easement

A

Condemned! Why? Bad Mine

Condemned, written release, bona fide purchaser of servient estate without notice of easement, abandonment, destruction of express purpose, merger of dominant and servient estate, interference with easement covering period for adverse possession, necessity ends, or estoppel (when owner materially changes position in reasonable reliance on easement holder’s promise to no longer enforce the easement.)

expanded use is not an independent ground for termination of an easement.

65
Q

Easement - Duty to Maintain

A

easement owner has right and duty to maintain easement; may seek
contribution from co-owners of easement after notice and opportunity to participate in repair decisions

66
Q

License

A

Privilege to enter another’s land; freely revocable unless estoppel; invalid oral easements create license

67
Q

Covenant Running with Land

A

Writing—must comply with SoF to be enforced as real covenant

Intent—rights/duties to run with land through explicit language or implied from totality of circumstances

Touch/concern—benefit or burden must affect promisee/promisor as owners of land (negative covenants—run with the land if they restrict the owner’s use or enjoyment
of the land; affirmative covenants—run with the land if they require the owner to do something related to the use and enjoyment of the land)

Notice (burden only)—must be constructive or actual

Horizontal privity—(burden only) when estate and covenant in same instrument

Vertical privity—(covenant based on mutual/successive interest in land
burdened/benefited by covenant)

68
Q

Equitable Servitude

A

Writing, Intent, Touch and Concern (no privity, notice (actual, record, or inquiry)

69
Q

Implied reciprocal servitude

A

Intent to create servitude on all plots (common scheme); no writing required

Negative servitude (promise to refrain from doing something)

Notice (actual, record, or inquiry) by party against whom enforcement is sought

70
Q

Defenses to enforcement of covenants and equitable servitudes

A

changed circumstances; laches; unclean hands; acquiescence; estoppel

71
Q

Fixture

A

chattel attached to RP such that it is treated as part of the RP when determining its ownership; trade fixtures exception allows tenants who are tradesmen to remove items that would be fixtures, unless removal would cause substantial damage.

72
Q

Fixture - Test

A

various factors are examined to ascertain the seller’s objective intent.

73
Q

Fixture - Tenant

A

Absent an agreement to the contrary, a tenant may remove a fixture that the tenant has attached to the leased property if (i) the leased property can be and is restored to its former condition after the removal, and (ii) the removal and restoration is made within a reasonable time

74
Q

Cumulative Zoning

A

A cumulative zoning ordinance creates a hierarchy of uses of land; land that is zoned for a particular use may be used for the stated purpose or any higher use.

75
Q

Noncumulative Zoning

A

Under a noncumulative zoning ordinance, land may be used only for the purpose for which it is zoned.

76
Q

Zoning Regulation - Test

A

rationally related to a legitimate gov. purpos

77
Q

Post-ordinance non-conforming property

A

owner may request special exception permit or administrative variance

Party seeking variance must show unique unnecessary hardship, that hardship not self-induced, and that variance would not result in substantial harm

78
Q

Zoning Requirements

A

Comprehensive plan generally required and development must adhere to plan

79
Q

Lateral Support - Undeveloped (no improvements)

A

landowner who excavates on his land is

strictly liable for damage to undeveloped adjoining land

80
Q

Lateral Support - Improvements

A

landowner who excavates on his land is strictly liable only if adjoining land would have collapsed in its undeveloped state

81
Q

Lateral Support - Improvements contribute to collapse

A

landowner who excavates on his land is

only liable if he is negligent

82
Q

Subjacent support

A

owner of the mineral rights is strictly liable for any failure to support the land and any buildings on the land at time the rights were conveyed

83
Q

Air rights

A

landowner has limited right to reasonable use and enjoyment of airspace above his land

84
Q

Riparian rights (water)

A

water belongs to those who own land bordering the watercourse; owners may make any reasonable use of the water; water rights cannot be transferred
separate and apart from the adjoining land

85
Q

Prior appropriation (water)

A

water rights are determined by priority of beneficial use; subsequent users must not infringe upon the rights of prior users; water rights may be transferred separately from the adjoining land

86
Q

Doctrine of Attornment

A

Under the doctrine of attornment, the tenant is bound to honor any covenant in his lease that has been assigned by the landlord to a third party, if the covenant touches and concerns the land.

87
Q

Condemnation

A

Condemnation is the taking of land for public use or because it is unfit for use.

If condemnation is partial = tenant must continue to pay rent. The tenant is entitled to compensation for the portion that was taken.

If condemnation complete = tenant does not have t opay

88
Q

After Acquired Title Doctrine

A

When a person who attempts to transfer real property that he does not own subsequently becomes owner of that property, title to property automatically vests in the transferee.

89
Q

Doctrine of Exoneration

A

CL = devisee of real property is entitled to have any outstanding balance of a mortgage or other encumbrance on the property to be paid from the remaining assets of the testator’s estate (most jurisdictions have abolished this doctrine and property passes subject to any encumbrance.

90
Q

Estoppel by Deed

A

a grantor who conveys a real property interest by warranty deed before actually owning it is estopped from later denying the effectiveness of his deed.

91
Q

Landlord remedy for illegal behavior

A

terminate the lease and recover damages or seek injunctive relief.

92
Q

Doctrine of Marshalling Assets

A

holder of a senior security interest must first proceed against property on which there are not any junior security interests, and then against the property on which the junior interest was more recently created, before proceeding against property on which the junior interest was more remotely created.

93
Q

Restraint on Alienation

A

may be enforceable by an injunction if it is reasonable.

94
Q

Subrogation

A

A person who pays off a loan that is secured by a mortgage to protect her own interests, acquires the rights of the original mortgagee-lender and may therefore enforce the mortgage.

95
Q

Title Insurance

A

An owner’s policy only protects the owner of the policy and does not run with the land for subsequent conveyances.

UBE - Real Property (1 decks)

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