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137 Cards in this Set

  • Front
  • Back

Can you put restrictions on alienation of a FSA?
No, except for right of first refusal
Can you put restrictions on alienation of a life estate?
Yes
Who gets life tenant's life estate if LT dies before measuring life?
Life tenant's estate
General obligation of life tenant as to the property
Maintain it (minimum & maximum)
Define Voluntary Waste
Any affirmative action beyond the right of maintenance that causes harm to the property
Depletion of natural resources = waste unless...
...consumption of the resources is the natural use of the land
Tenant must do 3 things to avoid liability for permissive waste:
1. Make repairs (not replace)
2. Pay taxes
3. Pay interest on mortgage
Define ameliorative waste
It occurs when the life tenant alters the property substantially but this increases the value of the land.
When is ameliorative waste ok?
When changed conditions have made the property relatively worthless
Future interests retained by Grantor
Reversion
Possibility of Reverter
Right of Re-entry
Future interests retained by Grantee
Remainder (contingent or vested -- follows naturally)
Executory Interest--(cut short)
FSD goes with
Possibility of Reverter
Magic Words for FSD/Possibility of Reverter:
"So long as"
"While"
"During"
"Until"
FSCS goes with
Right of Re-entry
Magic Words for FSCS/Right of Re-entry:
"Provided, however"
"But if"
"On condition that"
To create a FSCS, the magic words must be followed by...
language where Grantor expressly reserved right to re-enter & retake property
How to spot a remainder:
Future interest retained by a third party that comes naturally and immediately upon the termination of the preceding estate
When is a remainder vested?
If nothing stands in the way of its becoming possessory on the natural expiration of the preceding estate.
When is a remainder contingent?
When there is a condition that the taker must satisfy before his interest can become possessory. If the condition isn't satisfied, it goes back to O in reverter.
Define Vested remainder subject to open
Where the remainder interest is conveyed to a class of unnamed persons whose members are not yet fully known
In a class gift, the class closes when...
any class member is entitled to distribution.
Define Executory Interest and what words to look for:
It cuts short the preceding interest

look for "but/and if" "then to"
May holders of Executory Interests sue for waste?
No, no standing
RAP applies to which 3 interests?
1. Executory Interests
2. Contingent Remainders
3. Vested Remainders Subject to Open

also applies to options & rights of first refusal
RAP Charities Exception
Charity to Charity doesn't violate RAP
How do you create a joint tenancy, what what "unities" are needed?
All 4 unities (time, title, possession, & interest) are needed.

Create it by specifying that it is to have a right of survivorship
2 ways to terminate a joint tenancy & describe details of each:
Partition (voluntary)
*effect: lines drawn, each party owns their share outright
*method: by voluntary agreement or by judicial action

Severance (involuntary)
*method
+sale
-----effect: the remaining parties are still joint tenants, the buyer owns his share as a tenant in common
+mortgage
-----effect: Majority Lien Theory = no severance; lien attaches to title but title not transferred. Minority Title Theory = IS a severance; title passes from mortgagor to mortgagee, then goes back to mortgagor when mortgage is satisfied
+contract of sale---severance occurs when K is signed
+creditor's sale---severance occurs when sale actually takes place, not before
Tenancy in Common
-Unities?
-Presumption?
-Alienability?
-How to Terminate?
-Survivorship?
-only need unity of possession
-modern presumption in favor of tenancy in common
-freely alienable: any co-tenant can sell, mortgage, gift, will, etc.
-any tenant can force a partition
-no right of survivorship
Tenancy by the Entirety Characteristics
-4 unities + marriage
-right of survivorship
-not able to partition
-not severable by a unilateral act of one co-tenant
-terminates by:
---death
---divorce
---mutual agreement in writing
---execution by JOINT creditor
Accountability of Co-Tenants: General Rule and 4 Exceptions
Rule: A co-tenant does not have to account to another co-tenant for his share of the profits
Exceptions
1. ouster--accounting required if one co-tenant is either keeping another off the property or is claiming right of exclusive possession
2. Agreement to share
3. Lease of the property by co-tenant to 3rd party
4. Depletion of natural resources
Contribution as to Co-Ownership--Define & Rules
Define: concerns right of one co-tenant to force the others to pay for their fair share of some expenditure made on the property

Rules: Mortgage, taxes, necessary repairs--others must pay. Improvements need not be paid for, but if the property is later sold, the one who paid for the improvements will get more $$ from the sale
What are the 4 landlord-tenant estates?
1. Estate for years
2. Periodic tenancy
3. Tenancy at will
4. Tenancy at sufferance
Describe Estate for Years
Runs for specified time; must have beginning date and end date; anything over a year must be in writing; no notice required to terminate
Describe Periodic Tenancy
Key phrase is "repeating"; continues until one party gives proper notice; created by express agreement, implication (where lease is silent as to duration, period is measured by rent payments), or operation of law (oral lease that violates SoF can turn into periodic tenancy with cashing or rent check), or holdover tenant; proper notice to terminate = the term of the lease or if its a year, 6 months; needs to be in enough time AND on effective date
Describe Tenancy at Will
Can be terminated at any time without notice
Or terminates by operation of law upon
--death
--waste by tenant
--assignment by tenant
--transfer of title by landlord
--lease by LL to 3rd party
Describe Tenancy at Suffereance
Only arises when tenant wrongfully holds over

LL may either sue in trespass to evict and to recover for damages OR to impose a new periodic tenancy (residential = month to month, other = period of rent payment if less than a year. If commercial property and lease was a year or more, new periodic tenancy is year to year) (Cant impose periodic tenancy in FL, but LL can get double the rent)

LL can't impose new tenancy if it's unreasonable (ex. holdover by a few hours b/c moving van was late)

Raising rent--LL can raise rent if he gives notice before expiration of lease
Tenant's Duties
-Pay rent
-Maintain property
-If lease is silent, T must not commit waste
-If lease includes a covenant for T to repair, T must repair everything, even ordinary wear & tear
-If property destroyed w/o fault of T, T may usually terminate the lease and won't be required to rebuild structure
Landlord's Basic Remedies if Tenant fails in duties
Common law: sue for damages, collect amount in arrears ($ due and payable)
TODAY: sue for damages and terminate lease
LL Remedies if T unjustifiably abandons
1. Accept T's offer of abandonment (T has no further rent obligation)
2. Re-let premises and hold T liable for deficiency
--common law -- no duty to mitigate
--today -- LL must make reasonable effort to mitigate

In FL, in residential leases, LL may stand by and do nothing and continue to hold T liable for rent, unless LL retakes in which case he must mitigate
Duties of Landlord
--deliver possession right away or else breach
--common law--no duty to make it habitable
--modern rule--implied warranty of habitability: applies to residential property only, LL must provide and maintain premises reasonably suited for residential use
--implied covenant of quiet enjoyment--every lease includes LL's implied promise not to interfere w/ T's enjoyment
T's remedies if LL breaches warranty of habitability
T can move out and end the lease OR stay on the property and sue for damages. Some courts allow T to stay on and make repairs and deduct from rent
3 ways in which LL can breach implied covenant of quiet enjoyment
1. total eviction--LL throws out T--lease is over
2. partial eviction--LL excludes T from part of the premises--T can stay on what's left for free
3. constructive eviction--LL fails to provide a service that he's obligated to provide and it becomes uninhabitable. T must abandon w/in reasonable time
What kind of privity must there be for T to be liable to LL?
EITHER privity of K or privity of estate
No privity of K between LL and second tenant unless second tenant______
expressly assumes the the agreement
Obligation to pay rent can be enforced by which type(s) of privity?
Both K and estate
Covenants other than to pay rent will run with the land (ie be enforceable by either privity of K OR estate) if:
it touches & concerns the land
Describe liability of successor LLs to T:
Liable if either privity of K or estate. T has no privity of K with LL2 unless LL2 expressly assumes the obligation
In the case of a sublease (as opposed to an assignment), does T1 or T2 (subtenant) "keep" the estate?
T1--so no privity between LL and subT
Non-Assignment Clauses
Valid, but if waived once, waived continuously unless LL explicitly says otherwise
Rules for partial condemnation
T still must pay rent but they share in condemnation awared
Rules for complete condemnation
T no longer needs to pay rent and T will get condemnation award only to the extent that the fair rental value of the place exceeds the amount of rent due under the lease
LL's Tort Liability to Tenant
General rule is no liability to T (or his invitees) for injury
5 EXCEPTIONS
1. Latent defects (k/sk - disclose)
2. short term furnished lease
3. Common passageways - reasonable care
4. Negligent repairs-- LL has to repair pretty much perfectly
5. Public Use--LL must k/sk of defect and that T won't fix and that public will use premises
Tenant's Tort Liability
T is always liable to 3rd party invitee for negligent failure to correct dangerous conditions, regardless of whether LL may also be liable
Fixtures Rule
Fixtures can't be removed b/c the become part of property.
How to Determine if something is a fixture
look at intent, degree of attachment, general custom, whether it's a trade fixture
Express Easement arises from (2):

Criteria to create express easement (3):
1. Express grant
2. Express reservation

1. Must be in writing
2. Must be signed by holder of servient land
3. Must satisfy all deed formalities
Must easements of less than a year be in writing?
No
Implied Easement arises (2):
1. From previous use by a common grantor (one person owns land then sells the part of it that has the easement, the previous owner can keep using it. Previous use must be 1 continuous, 2 apparent, 3 reasonably necessary)

2. Absolute Right of Access Rule--if one landowner is landlocked, he can use and easement on another property, but the owner of the servient estate can choose the location as long as its reasonable
Easement by Prescription & 4 Requirements
Basically like adverse possession
1. Use must be adverse
2. Use must be continuous
3. Use must be visible/notorious/owner has knowledge
4. Use must be hostile (ie owner did give permission)
The "Easement Appurtenant" refers to the
dominant estate
Transfer of the Easement Appurtenant (dominant estate)
Benefit is transferred automatically along with the dominant estate whether or not easement is recorded in deed of conveyance. All who subsequently come to title get the benefit.
Transfer of Easement in Gross
Commercial easements in gross can always be transferred; personal ones cannot.
Transfer of the Servient Estate (the burden)
General Rule is that easements are always binding on the subsequent owners of the servient estate even if the easement isn't mentioned in the deed of conveyance, UNLESS the new owner didn't have notice of it (actual, constructive, or inquiry notice)
Scope of Easement Use
UOA, easement is presumed perpetual
Use presumed is that of the reasonably development of the dominant estate (not excessive use)
Remedy for successive use of easement:
enjoin (not terminate)
Repair of Easement
General rule is that dominant holder must repair and has right of access to repair. He must make reasonable restoration of the servient estate. Servient holder has no obligation to repair.
LIST Ways of Termination of Easement (6)
1. Merger
2. Deed of Release
3. Abandonment by Action
4. Termination by Estoppel
5. Termination by Prescription
6. Termination of Necessity Easements
Termination of Easement by Merger
When the dominant and servient lands come together under one owner. Easement does NOT revive if later resold and land is split again
Termination of Easement by Deed of Release
A valid release must be in writing and follow deed formalities
Termination of Easement by Abandonment by Action
General Rule: Mere non-use does not = abandonment; need some sort of action
Termination of Easement by Estoppel
Requires:
1. A representation of relinquishment by holder of dominant estate AND
2. The holder of the servient estate must make a change in his reliance on the rep. of relinquishment
Termination of Easement by Prescription
Just as easements can be created by prescription, they can be terminated if the owner of the servient estate stops the use of the easement and does so for the period imposed by the SOL.
Termination of Easement Created by Necessity
General Rule: Once the necessity that gave rise to an implied easement ceases to exist, the implied easement will automatically terminate
NO Easements for:
view and sunlight
5 Characteristics of a License:
1. Limited privilege to use the land in possession of licensor
2. NOT a property interest
3. IS a contact interest
4. Can always be revoked at the will of licensor (but see when irrevocable)
5. If revocation is wrongful, licensor might have to pay K damages

**Note: All tickets are licenses
Characteristics of Irrevocable Licenses:
1. If an easement fails because of SoF, a license is created
2. If $$ is spent on a property in furtherance of an oral license, then it becomes irrevocable
What is a Profit
It gives the right to go on land of another to take away natural resources, and along with it goes the implied easement to access the land to remove the resources
Define Restrictive Covenant and What 2 Categories Do They Fall Into?
A restrictive covenant gives the holder of the interest a right to restrict some 3rd party in the use of their land

Can be either a covenant (runs with the land at law) or an equitable servitude
Distinguish Restrictive Covenant from Equitable Servitude
Basically the same thing but covenant is enforced at law and remedy is $$ damages. Equitable servitude is enforced in equity and remedy is an injunction.
4 Requirements to Enforce a Restrictive Covenant at Law
1. Intent--parties must intend that the restriction run with the land
2. Notice--to the person against whom enforcement is sought (actual, constructive, inquiry)
3. Touch & Concern the Land
4. Privity
--Enforcing benefit: P is successor-in-interest and you only need vertical privity
--Enforcing burden: DF is successor-in-interest and you need horizontal & vertical privity
3 Requirements to Get an INJUNCTION to Enforce the BURDEN of an Equitable Servitude
1. Intent that the restriction be enforceable by successors-in-interest
2. Touch & Concern
3. Notice to the Successor-in-Interest
**NO privity is required**
2 Requirements to Enforce the Benefit of the Covenant as a Equitable Servitude
1. Intent
2. Touch & Concern
Define Reciprocal Negative Servitude
Gives each lot owner in a residential subdivision the right to enforce a restriction against each other one
2 Requirements to Establish Mutual Right of Enforcement in Reciprocal Negative Servitude
1. INTENT to impose a servitude (restriction on use) on ALL land in the subdivision (recorded map, pattern of development, almost all houses look alike)
2. Notice (actual, constructive, inquiry)
Defenses to Enforcement of a Covenant as an Equitable Servitude (4)
1. Unclean hands--P has made the same use of her property
2. Acquiescence--P let other neighbors do the same thing and didn't complain
3. Laches--P sat by while DF changed their land and only when he was done did P complain
4. Estoppel--P represented that she had no problems with DF's plans
3 Ways to Terminate Covenants & Servitudes
1. Deed of Release
2. Merger--unity of ownership
3. Changed conditions--only if ALL lots in subdivision are affected--ALL or NOTHING
6 Requirements for Adverse Possession
1. Hostile
2. Exclusive
3. Lasting (for period of SoL)
4. Uninterrupted (continuous that ordinary owner would use)
5. Visible (open & notorious)
6. Actual (adverse possessor is actually on the land) (2 exceptions -- constructive adverse possession and leased land)
Constructive Adverse Possession
*Exception to requirement of actual occupancy on land for adverse possession

Means that of someone goes onto property under color of title to 100 acres but actually owns only 90, and the other adverse possession requirements are satisfied, he gets all 100 acres. Only requirements are that the land actually possessed must bear reasonable relation to the whole and the property must be seamless
Leased Land as Exception to Possession Requirement of Adverse Possession
Adverse Possessor can lease the land out to someone else and that counts as occupancy
Adverse Possession Against Concurrent Owners
Can't adverse possess against co-tenant unless the co-tenant in possession excludes the others for the SoL period. Exclusion starts the clock running
When does the clock start for adverse possession of a future interest?
Only when that interest becomes possessory
When does the clock start running for adverse possession of a possibility of reverter?
When the condition happens that allows the reverter.
When does the clock start running for adverse possession for a right of re-entry?
When the grantor exercises the right of re-entry.
Tacking Rules
1. An adverse possessor can tack together successive periods of adverse possession (one person to another)
2. You can tack successive adverse possessors or successive true owners
3. If the true owner suffers from a disability (3 I's) at the time adverse possession beings, the clock starts running when the true owner is free of the disability
4. But if adverse possession starts first and then the owner gets one of the disabilities, the clock keeps running
5. No tacking of disabilities
To make title acquired by adverse possession marketable, you need to...
sue in quiet title
Statute of Frauds requirements for Contract of Sale
1. K must be in writing
2. Signed by the one who is sued
3. Must include description of the property, names of the parties, and the price
Doctrine of Part Performance
Exception to SoF; if oral contract then buyer starts building on the land, the buyer wins

1. Oral K must be certain and clear AND
2. Acts of part performance must clearly prove up the existence of the K (B paid all or close to all of purchase price, made improvements, took some further action showing K)
Risk of Loss & Doctrine of Equitable Conversion
After K of Sale is signed, Buyer bears RoL (if Seller not at fault)
Death of Party Before Close of Escrow
Equity will order specific performance so if Seller dies, Buyer will give $$ to S's estate and B gets house. If B dies, B's estate get's house and gives$$ to S
Every land sale contract contains an implied warranty that S will deliver marketable title to B at close of escrow. List the 3 requirements that S must provide to B to satisfy this warranty:
1. Proof of Title (deed, abstract of title)
2. Title must be free of encumbrances other than ones already disclosed
3. Valid legal title as of closing. If it's not valid as of closing, B must notify seller and S has right to cure (about 2 months)
B's Remedies for S's Failure to Deliver Marketable Title
B can rescind
B can sue for damages
B can order specific performance--coupled with reduction in purchase price to reflect defect in title
What happens if B closes and accepts the deed without problems being cured?
B is stupid and has no recourse based on contract, so any action must be based on what's in the deed
IF the K says time is of the essence and seller is late, what is the effect?
Seller in total breach and can't enforce K.
Remedies for breach of K for Real Property
1. Damages--usually difference between purchase price and value of property at date of breach
2. Specific Performance (for both B & S)
What if there are defects on the property that render the property unfit for ordinary purposes?
Common law--caveat emptor, B is screwed
Common law exception--concealed defects, B can rescind
Modern Trend--duty to disclose on seller of all serious defects that S knows of and of which B is not aware. This is the majority in residential property
MODERN RULE--Implied Warranty of Fitness--applies only to the sale of NEW residential housing
2 Requirements for Deed to Effectively Pass Title:
1. Execution
2. Delivery
Rules for effective execution of deed
--Deed must comply with SoF
--Deed must describe the land with sufficient accuracy
--If it doesn't it's void for vagueness
Rules for effective delivery of deed
--solely a question of INTENT to pass title, no physical transfer necessary
--recording a deed raises presumption of delivery, even if grantee is clueless
--once delivery occurs, title passes, returning deed is ineffective
--if grantor dies and deed is still in grantor's possession, presumption of NO delivery but grantee may rebut
Physical transfer + condition =
transfer of future interest
Oral conditions on deeds are
ineffective
If delivery of deed is conditioned on grantee's payment of purchase price, this type of condition is valid provided (3):
1. grantor makes delivery to 3rd party in escrow
2. grantor tells escrow agent to deliver deed to grantee when condition is satisfied (oral condition ok here)
3. once grantor gives deed to escrow agent, grantor can't get it back as long as grantee satisfied condition
In a quitclaim deed, the grantor makes no covenants of ____
title
General warranty deeds contain the following 6 types of covenants of title:
PRESENT Covenants--personal and DON'T run with the land
1. Covenant of seisen
2. Covenant of right to convey
3. Covenant against encumbrances other than ones already disclosed

FUTURE Covenants--DO run with the land, only breached, if at all, at some later date when grantee is disturbed in possession

1. covenant of quiet enjoyment
2. covenant of warranty
(these two represent S's promise to protect B against anyone who comes along and claims paramount title to the property)
3. Covenant of Further Assurances
Breach of a Covenant of Title--Remedy
P's remedy limited to amount of purchase price received by warrantor + incidental damages
Estoppel by Deed Doctrine
Courts say Grantor gave an implied covenant that title will be conveyed to Grantee, therefore, grantee can sue to compel the transfer of title from the Grantor
What happens where there is a subsequent sale to a BFP?
This will cut off the rights of an earlier grantee, and will therefore cut off grantee's rights to rely on estoppel by deed doctrine
IF a will purports to devise a specific parcel of land, but testator does not own the land at the time of his death, the gift is ___________.
Ademed, which means it fails and won't be replaced by other land
Exoneration
Majority Rule: if the devised property is subject to a mortgage or other lien, that lien must be exonerated from testator's estate. That means the devisee is entitled to have the lien debt paid off from the testator's residuary estate. Devisee will then take land free and clear

Significant Minority--Abolishes above rule and says that devisee takes land subject to the mortgage
Lapse & Anti-Lapse Statutes
Common law--if beneficiary died before the testator, the gift in the will lapsed (was void)

Modern Rule--anti lapse statutes allow the gift to pass to relatives of the dead beneficiary
Trusts
--subject to RAP
--holds legal title and has fiduciary duty
--charitable trusts don't have named individuals
--Cy pres doctrine--a court may later the terms of a charitable trust to further the Settlor's intent
Common law recording rule
First in time, first in right
Notice jurisdiction (Florida)
If P2 is a BFP who doesn't have notice of the first sale, P2 takes, even if P1 records after the sale to P2 but before P2 records. If P1 recorded before the SALE to P2, P2 will lose because recording imputes notice.

Magic words = without notice/in good faith
Race Jurisdiction
Notice is irrelevant, whoever records first wins
Race-Notice
P2 wins if he's a BFP, takes without notice, and records first.

Magic words = recorded first or first recorded
Shelter Rule
anyone, included heirs, donees, or devisees, can shelter under purchase by BFP
Define the 3 types of security interests in property
1. Mortgage
2. Deed of Trust--debtor gives the deed to a 3rd party in trust who holds deed until loan is paid back in full. If loan is not paid, trustee can obtain court order for foreclosure or sell the property himself at public auction
3. Land Sale Contract--B pays to S in installments but S keeps title until paid in full
Purchase Money Mortgage
mortgage taken out to BUY a property; receives priority over all other mortgages recorded around the same time. PMM given by seller gets priority over one given by a 3rd party lender, like a bank
Rule for changes in senior mortgages
If a senior mortgage is increased at all, (more money or higher interest rate), that mortgage loses priority over junior mortgages, but ONLY to the extent of the increase
Effect of Foreclosure on other mortgages
Foreclosure by one party wipes out all junior mortgages (those made after the one that is foreclosing) but does NOT wipe out senior mortgages (those made before the one foreclosing)

But junior mortgages are necessary parties to a foreclosure proceeding and must be made a party or else they are not eliminated
How do the proceeds from a foreclosure work?
First pay off the costs
Then pay off the one who did the foreclosure
Then pay off the junior mortgages in order of priority
Then give any left to the mortgagor
Effect of Anti-Deficiency Statutes?
Allows the mortgagee to sue the mortgagor directly for the balance if the foreclosure doesn't raise enough $$
General rule when mortgagor (borrower) transfers the property
Buyer takes subject to the mortgage which means he can be foreclosed on if the mortgage doesn't get paid.

New buyer is NOT personally liable for the mortgage UNLESS he ASSUMES the mortgage (in which case original mortgagor is still personally liable too).
Any modification of the obligation by the creditor/mortgagee (bank) and the grantee (new buyer) will ___________
release the original borrower of all liability under that mortgage
Due on Sale Clause
Says that if Mortgagor (Borrower) sells the property without mortgagee (bank's) consent, the full amount of the loan is immediately due and payable. These are enforceable
General rule regarding security interest on fixtures
A seller of a fixture who provides a purchase money security interest (financing plan) in the fixture must make a UCC Article 9 filing with 20 days after installation or else the fixture goes with the house if its foreclosed upon. If they make the filing they can remove it without regard to the priority of the earlier mortgage
Majority Rule--Riparian Rights
A riparian owner may use all of the water needed for domestic use, and reasonable use for non domestic use
Minority Rule--Prior Appropriation
First in time to use the water beneficially is protected against those who come later and want to use it