Virginia Real Property Flashcards
An action to recover land must be brought within this many years
This type of action must be brought within 25 years from when the cause of action first accrued
Statute of Limitations - Ejectment Action against an adverse possessor (generally)
There is a 15 year statute of limitations for this type of action, generally
An attachment lien holder must do this to be effective (superior) against a bon fide purchaser
An attachment lien holder must file a memorandum of attachment or lis pendens with the clerk’s office where the property is located for this to occur
What type of civil action should a landlord file in order to remove a tenant from real property (regain possession from a person wrongfully possessing property)
An unlawful detainer filed by a landlord does this against a tenant
What type of civil action should a landlord file to try title and establish that he holds title to land?
An ejectment action filed by a landlord does this against a tenant
What is the remedy for an ejectment action?
The remedy for this type of action is a writ of possession from the court directing the sheriff to deliver possession to the Plaintiff.
What type of civil action should a landlord file to recover rent by proceeding against the tenant’s tangible personal property?
A distress claim is an in rem law claim filed by a landlord that does this against a tenant
The doctrine of emblements permits a former tenant to enter land to cultivate/harvest crops that had been planted or maturing at the time of the termination of the tenant’s lease if:
If 1) the tenancy was for an undetermined period of time or was a life estate; and 2) the tenancy was terminated under conditions other than a tenant’s fault, then what doctrine permits a tenant to reenter and cultivate/harvest crops?
Easements by prescription must be:
This must be continuous, actual, open and hostile (but does not have to be exclusive)
Present estate is this:
This is a freehold if immobile & for indeterminate duration
Fee simple (absolute) is: (to A or to A and his heirs)
Absolute ownership of potentially infinite duration is this
A Defeasible Fee type is: (so long as, while, during, until)
Potentially infinite duration, subject to termination by event occurrence is this type of Fee
Fee Determinable is: (so long as, while, during, until)
Terminates automatically when event happens; successor in interest retains possibility of reverter
Fee simple subject to condition subsequent: (upon condition that, provided that, but if, if it happens that)
This is a present fee that is limited by specific conditional language; grantor must specifically retain right to reenter, reserves right to terminate estate upon event
Fee simple subject to executory interest/limitation
This is a present fee that is limited by specific conditional language; automatically terminates upon event, title passes to 3rd party
Life Estate is : (to A for life, to B after the life of A, to B for the life of C)
This is a present possessory esetate fully transferable during measuring life (if by grantees life, not devisable/descindible; may be if another)
A life tenant’s rights in the life estate are:
This persons rights in this are: 1) right to possess, right to collect rents, lease/sell mortgage (must pay taxes on financial benefit from land)
Life tenants and waste must do this:
This person must deliver property to future interest holder in substantially the same condition as when LT took possession
Permissive waste is this and life tenant’s responsibility:
This occurs when the premises are allowed to deteriorate through neglect/failure to preserve/failure to reasonably protect property; this person must make reasonable repairs up to amount of income produced/FRentalV
Voluntary waste is this; down in value or no change:
Condition of property substantially changed by life tenant’s affirmative action; decreasing is not permitted, but ameliorative waste is unless future interest holders object
Holder of future interest may do what for waste on property?
This person may bring suit against Life Tenant for injunction
Allocation of burdens of Life tenant
This person must pay property taxes to extent of financial benefit received; pre-existing mortgage obligations/assessments for public improvement allocated between present and future
A Future Interest type is this and are fully?
This is an ownership interest in presently existing property which may commence possession/enjoyment in future, and is fully alienable
Reversion
Grantor holds, transfers to life estate/estate for years w/out remaining future interest; no RAP, alienable devisable descendible
Possibility of reverter
Future interest retained by grantor when FS Det conveyed; alienable, devisable, descendible; 10yr SOL
Right of reentry (right to terminate/right to entry/power of termination)
Future interest retained by grantor after FS subject condition subsequent; 10 year SOL
Remainder
Future interest becomes possessory upon natural expiration of prior estate created in same conveyance this is created
Vested Remainder, & subject to open
Not subject to conditions precedent, & If one class member can take at time of conveyance, then each member share is shrunk because others not determined could vest
Contingent Remainder
Subject to express condition precedent to grantee’s taking/unascertainable grantee; not destroyed if preceding estate is terminated, condition must occur
Executory Interests
Future interest in 3rd party that cuts prior estate short upon occurrence of specified condition; transferable, subject to RAP
Shifting Exec vs. Springing Exec
This cuts short prior estate in same conveyance, and goes from one to another upon condition precedent; divests grantors interest or fills in possession gap from reversion
Remainders/Executory Interests: Transfer
These are transferable while alive (inter vivos) and devisable/descendible
Class gifts are this:
Transfers to members of a group; beneficiaries and amount of gift subject to change
Survival Contingency is this:
when ambiguous, majority applies at termination of interest preceding remainder
Rule Against Perpetuities (RAP)
Specific Future Interests are valid only if they must vest or fail by end of a life in being plus 21 years
Uniform Statutory RAP (Wait and See)
An invalid future interest can be valid if it actually vests within 90 years of creation
RAP does not apply to what type of future interest?
This does not apply to any future interest that would revert back to grantor
RAP measuring life is:
Must be human, can be more than one but it is life directly related to FI when not specified
RAP for Class Gifts Rule
Bad as to one, bad as to all; if this voids one transfer to class member, it voids all members of that class (including those that vest)
RAP charity to charity transfers
This does not apply when property passes from one charity to another
Tenancy in Common (Default co-tenancy)
This is 2 or more grantees with unity of possession (undivided interest with unrestricted right to possess whole, no ROS, interest freely devisable/transferable
Joint Tenancy
This is two or more persons own property with ROS, and ROS must be express or it is deemed a Tenancy in Common
Joint Tenancy: Four Unities
Equal rights to possess, with identical equal interests, created at the same time, by the same title
Converting a Joint Tenancy to a Tenancy in Common
Severance does this:
JT: Severance by Sale
No consent required, severs this as to seller but this as to non-transferors remains
JT: Severance by Mortgage
Severs this under title theory, but not under lien theory
JT: Severance by Judicial Lien
This will not typically sever this; occurs when property is levied and sold
Slayer of Joint Tenant or Tenant by Entirety is considered:
This is considered predeceased of the victim
Tenancy by the Entirety
This is the same as a Joint Tenancy, but with unity of person (marriage); cannot encumber without consent of other
Tenancy by Entirety: Construction
Created by stating “This” or “JT w/ ROS” and parties are described as married; if unmarried, JT with ROS created
Tenancy by Entirety: Divorce
This converts to a Tenancy in Common
Co-tenant rights:
Posses entire property w/out rent when others aren’t using, can collect contribution from others for expenses (taxes), can compel expense sharing for repairs, is entitled to compensation for value of improvements when partitioned, receive equal net proceeds of 3rd party rent, owes duty of fair dealing
If a co-tenant buys property at tax or foreclosure, others may what?
Other co-tenants may buy back interest within reasonable time
Partition applies to these generally
Tenancy in common or Joint Tenancy (but not by Entirety) generally have right to unilaterally this
Partition in kind is this:
This is the physical division of jointly possessed property, preferred by courts
In Virginia, these are contemplated by the Court for Partition:
1) Collective duration of ownership; 2) sentimental attachment; 3) lawful use and harm of ceasing use; 4) contributions; 5) any other relevant factors
Rights of Co-tenants and Easements:
Co-Ts may agree to create this; a unilaterally created this is only enforceable against the co-T who created
Fair Housing Act prohibits this
This prohibits the sale, rental and financing of homes and in other housing-related transactions (advertising, homeowners insurance, zoning)
This is an exemption to the FHA:
Owner-occupied buildings with no more than four units and single family homes sold or rented without broker
FHA protected classes:
prohibits discrimination on basis of: 1) race, 2) color, 3) religion, 4) national origin, 5) sex, 6) disability, and 7) familial status
Virginia Fair Housing Law additional protected classes:
8) elderliness, 9) sexual orientation, 10) gender identity, 11) military status, or 12) source of funds
Conflict of Laws, RP generally:
Generally apply law of the situs (where RP is located)
Conflict of Laws, RP Exceptions:
1.) Document conveying specifies law; 2) Law of spouse’s domicile when acquired determines whether marital/separate; 3) Collateral issue (transfer of land is fraudulent), state with greatest interest applies these
English Covenants of Title
Seisin, right to convey, against encumbrances | quiet enjoyment, warranty/quiet possession, and further assurances
Tenancy for Years
Created by express agreement, for any fixed period of time, to automatically terminate at end of term but with potential to terminate before end of term
If term of Tenancy for Years is longer than one year, then:
SOF applies; Written lease signed by party to be charged, must identify parties, premises, lease duration, and rent paid
English Covenants of Title
Seisin, Right to Convey, Against Encumbrance, Quiet Enjoyment, Warranty/Quiet Possession, Further Assurance
Present Covenant: Seisin
Grantor owns land as described in the deed
Present Covenant: Right to Convey
Grantor has the right to transfer title
Present Covenant: Against Encumbrances
No undeclared this against the land
Future Covenant: Quiet Enjoyment
Grantee not disturbed in possession by 3rd party’s claim
Future Covenant: Warranty/Quiet Possession
Grantor will defend grantee against 3rd party claim
Future Covenant: Further assurances
Grantor will do whatever future acts reasonably necessary to pass title if later determined title is imperfect
Rent Increase Notice from Landlord to Tenant
For a 4+ unit dwelling, Landlord must provide notice of this 60 days before end of tenant’s term
Periodic Tenancy
Created by express agreement, implication, or operation of law; Repetitive, ongoing estate by set periods of time with no predetermined termination; automatically renews at end of each period unless noticed termination; SOF does not apply unless initial term is greater than 1 year
Contribution in partition for improvements to real property
If Tenant in Common/Joint Tenant places improvement on common property at own expense, entitled to compensation in event of partition (from value to be divided)
Periodic Tenancy: Termination Notice
Must be before last period begins; for year to year - six months. Effective from last day of the period
Periodic Tenancy: Virginia notice for multi-family
For this type of dwelling with 50% of month to month tenancies (or 20 units) meant to terminate within same 30-day period, T is entitled to 60 days for this before termination
Tenancy at will
Created by express agreement or implication, no specific term, may be terminated by either party with notice/operation of law
Tenancy at sufferance (holdover tenancy)
T wrongfully remains in possession after lease expiration, was bound to the terms before expiration, and lasts until T leaves/is evicted/or L holds T to a periodic tenancy
Action for non-payment of rent in Virginia: Defense
T may assert this in this type of action, for a condition existing that is a serious threat to life, health, or safety of occupants
Nonpayment of Rent: T’s Defense to Prove
To assert this, T must Prove: 1) L had notice of condition but didn’t fix in reasonable time; and 2) if T in possession, has paid rent to escrow (I could’ve paid it). Rebuttable presumption - more than 30days from notice is unreasonable
Nonpayment of Rent: L’s Response to Prove
To assert in this action in response to T’s Defense, L may 1) allege the conditions do not exist; 2) have been remedied; 3) or were caused by tenant, or tenant did not allow L in to remedy
Landlord-Tenant: Affirmative Waste
T is prohibited from committing this, or voluntary waste
Landlord-Tenant: Ameliorative Waste
T may make changes to physical condition of property that increase property value if reasonable is this
Landlord-Tenant: Permissive Waste
Unless relieved by lease/statute/ordinance, T has duty to repair and keep in pre-rental condition, but no duty for normal wear and tear
Landlord-Tenant (Commercial): Repair
T may be contractually liable for all property damage unless caused by L for this type of lease
Landlord Remedy: Failure to Pay Rent
This person can sue for damages and evict and terminate lease
Late fees for Rent in Virginia
Cannot charge unless provided for in less; lesser of 10% periodic payment or outstanding balance
Landlord Remedy: Abandonment (Accept or Reject)
If this is accepted, lease terminates and T’s liability for future rents ends; If this is rejected, T remains liable but L must mitigate damages (usually residential)
Landlord Remedy: Holdover Tenant
If this is accepted, they become a periodic tenant/tenant at sufferance, or can be sued after notice to vacate
Landlord Duties to Tenant: Possession
L must deliver actual this for residential leases; legal this for commercial
Landlord Duties to Tenant: Failure to Deliver Possession
If L fails to do this to T, rent abates until it occurs and T may: 1) terminate lease upon min. 5 day notice to L; or 2) demand performance of agreement
Landlord Duties to Tenant: Repairs
For residential leases: If T notifies L in writing of condition that is threat to harm or safety not caused by T/Guest - L must repair w/in 14 days or T can contract w/ 3d party to repair & deduct costs
Landlord Duties to Tenant: Warranty of Habitability
Must be fit for basic human habitation (health/safety)
Landlord Duties to Tenant: Warranty of Habitability Breached
If this occurs, T must notify L of defect and give reasonable time to repair; and T can refuse to pay rent, make reasonable repairs & deduct costs from future rent/remain in possession pay rent & seek damages
Landlord Duties to Tenant: Warranty of Habitability - Damages
L liable for damages to T for: 1) housing codes; 2) necessary repairs; 3) maintenance of essentials such as electricity, running and hot water; and 4) prevention of mold
Landlord Duties to Tenant: Warranty of Habitability - L Must do
Keep common areas shared by multiple multifamily dwelling units clean, provide waste receptacles, and maintain CO alarms
Landlord Duties to Tenant: Warranty of Habitability - Fail to Supply Essential Services
If L willfully/negligently does this: T must serve written notice on L identifying breach & give reasonable cure time
Landlord Duties to Tenant: Warranty of Habitability - Fail to Supply Essential Services, Recovery
If L fails to correct this, T may: 1) recover damages based on diminution of FRV; or 2) Move into sub housing, excused from rent
Landlord Duties to Tenant: Warranty of Habitability - Hazard at Start of Lease
If exists that could be fire hazard/serious threat to life/health/safety at start of tenancy, T can terminate, receive refund of rent & deposits; Must give notice w/in 7 days
Landlord Duties to Tenant: Covenant of Quiet Enjoyment - Generally
T has right to quiet use & enjoyment of premises w/out L interfereing (L must control other T’s nuisance in common areas
Landlord Duties to Tenant: Covenant of Quiet Enjoyment - Actual Eviction
L excludes T from premises - Lease is terminated, T’s obligation to pay rent ends
Landlord Duties to Tenant: Covenant of Quiet Enjoyment - Partial Eviction
T excused from paying rent from L eviction, but must pay reasonable rent if caused by 3rd party w/ superior claim; not excused if occurring from adverse possessor/tresspasser
Landlord Duties to Tenant: Covenant of Quiet Enjoyment - Constructive Eviction
Substantial Interference caused by T’s actions or failure to act
Landlord Duties to Tenant: Covenant of Quiet Enjoyment - Constructive Eviction remedy
T must give notice of problem, L fails to respond, and T must vacate premises w/in reasonable time after L fails to fix
Landlord Duties to Tenant: Covenant of Quiet Enjoyment - Retaliatory Conviction
L CANNOT evict for T complaining about housing code violations/refusing to pay rent when L breaches Warranty of habitability
Landlord Duties to Tenant: Security Deposit Amount
L may demand up to 2 months rent for this:
Landlord Duties to Tenant: Security Deposit Return
W/in 45 days of T’s termination/day T vacates (whichever later) - L must provide itemized list of deductions/charges taken from this & any balance owed. Must be held in escrow if no forwarding address.
An asignee tenant is liable to landlord because:
This person is liable to landlord through privity of estate
An sublease tenant is not liable to a landlord beacuse:
This person is not liable to landlord because theyr are neighter in privity of estate or contract with Landlord (unless expressly assumes covennats, then personally liable)
An original tenant is liable to landlord for lease covenants unless:
This person remains liable on lease covenants being in privity of contract unless novation; privity of estate ends on assignment not sublease
Limitations on assigning/subletting:
T may still do this if prohibited by lease, but L can terminate for breach/recover damages; L can only withhold on reasonable grounds in relationship to property being leased (not personal prej)
Virginia permits real estate broker to do this:
This person is permitted to represent a buyer and a seller
Per equal dignities rule, contract to pay commission must:
This must be in writing as the underlying contract to sell property must be in writing
Land sale contracts must be: (satisfy SOF)
These must be in writing, signed by party to be charged, and contain all essential terms (parties/property description, terms of price/payment)
Exceptions to SOF: Part Performance
This may be used as an exception to SOF if: 1) parol agreement is certain/definite, 2) this was pursuant to the agreement, and 3) refusal to execute full agreement would operate as fraud upon performing party
Exceptions to SOF: Detrimental Reliance
Specific performance may be sought when party seeking enforcement has reasonably relied on contract and would suffer hardship
Oral modification of a contract subject to SOF:
In Virginia, these modifications to a contract subject to SOF are not permitted
Implied warranty of fitness provides:
This warranty for new dwellings provides that it is free of structural defects and fit for habitability
Duty to disclose defects requires:
This requires seller to inform buyer of CL caveat emptor (buyer beware) rule, except in certain circumstances like court-ordered transfer to beneficiary of deed for foreclosure
Land sale contract obligations merge into deed until delivery, and only applies to:
This only applies to obligations in a contract that relate to title/addressed in deed (even if terms specifically provide that obligation will do this); does not apply to closing statements/collateral agreemetns
Risk of loss is born by this person between signing of contract and closing:
This is born by the buyer, but born by the seller before signing the contract.
Adverse possession of real property requires continuous and uninterrupted possession for a period of:
This must be continuous and uninterrupted for a period of 15 years
For adverse possession, this is not considered hostile possession in Virginia:
For this, possession of parent’s land by child is presumed permissive
A co-tenant may only obtain the other’s property by adverse possession through:
This may only be done through ouster or by transferring entire property to new co-tenant
If mineral rights are separate from surface rights (adv. poss):
If this is present, surface owner cannot obtain mineral rights unless open, notorious, and hostile possession of minerals
Adverse possession of property owned by life tenant does this:
If owner is a life tenant, title through this is only obtained upon LT’s death; remainderman resets statutory period for running
Intent to make present transfer of property is evidenced by:
This is typically evidenced by delivery of the deed; execution & recording create rebuttable presumption that deed is presently operative; parol evidence admissible to determine grantor intent
Valid deed requirements:
These must identify the parties, have the grantor’s signature, words of transfer, and a reasonably definite property description
A deed may be executed by this person (equal dignities)
An agent may do this, as agency authorization for real property contracts must be in writing
To record a deed in Virginia, it must:
This must be acknowledged by grantor or proved by two witnesses for it to be recorded; may pass w/out recording
Virginia has this type of recording statute for deeds
The Supreme Court of VA has construed Virginia’s recording act statute as a race-notice jurisdiction
Recording Acts: Race-Notice
A subsequent BFP protected only if he takes w/out this and is first to do this;
Recording Acts: Just Race vs. Just Notice
First to do this prevails, regardless of knowledge of conflicting interests vs. BFP of prior interest prevails over grantee who failed to record (must record against subsequent purchaser)
Notice is tested at time of conveyance and may be:
This may be actual, inquiry or record
Actual Notice of another’s interest in property
This is actual, personal knowledge of prior interest; cannot prevail under notice/race-notice statute
Inquiry notice of another’s interest in property
If reasonable investigation would disclose prior claims, cannot prevail against; mere possession by another not grantor is insufficient to do this for subsequent purchaser in VA
Record notice of another’s interests in property
This occurs when deed is properly recorded and appears in chain of title
Estoppel by deed is only:
This is only effective against Grantor and Grantee
‘With general warranty” creates this, “with English Covenants of title” adds:
Creates a general warranty deed and includes six covenants of titel
Special warranty deed in Virginia only warrants:
This in Virginia only warrants that seller has not created any defects in title
Quitclaim deed provides:
This provides for no covenants
A license to use real property may be granted:
This may granted orally and is freely revocable
A claim of title by adverse possession will be defeated if:
This will be defeated if possessor actually had owner’s permission (revocable license)
The statutory period for adverse possession of real property is:
This is 15 years for adverse possession
Only a unit association, not this, has standing to sue for:
Only this, not an individual unit owner, has standing to sue for misuse of common areas
