California Bar Exam-Property Short Set

Front 1

Present Possessory Interests In Land-Fee Simple Absolute

Back 1

1. Fee Simple Absolute-To A [and his heirs-old common law] --Potentially infinite, no future interst

Front 2

Present possessory Interests in Land-Fee Tail

Back 2

To A and the heirs of his body-rare, old style type of fee-blood lineal descendants-goes automatically to lineal descendants-futire interts reversion (g'r and remainder 3rd party)

Front 3

Life estate (or lease if in years)-

Back 3

To A for life or to A for life of B-Measured by life of transferee or other-pur autre vie--devis, descindable, alienable if measuring life is still alive--reversion in g'r, remainder in 3rd

Front 4

Defeasible Fees-FS Determinable

Back 4

To A so long as, To A until, To A while, Duration is infinite is event does not occur, Devis, Desc, and alienable subject to condition-possibility of reverter--automatically returns to grantor if condition occurs

Front 5

Defeasible Fees-Fee Simple Subject to Condition Subsequent

Back 5

To A but if [event] grantor reserves right to remnter and retake--duration indefinite if condition not breached until act to retake-Devis, Desc, and alienable subject to condition-right of entry/power of termination (g'r)

Front 6

Defeasible Fees-FS subject to Exec Limitation

Back 6

To A, buf if [event], then to B--duration indefinite if event does not occur,Devis, Desc, and alienable subject to condition-Shifting, Springing executory interest in 3rd Party

Front 7

Future Interests-In grantor

Back 7

reversion, possibility of reverter, right of reentry, power of termination

Front 8

Future Intersts in Grantee of 3rd person

Back 8

Tip-Determine if executory interest, first (future interst takes effect by cutting short prior estate); if not, then determine if contingent remainder(future interest holder is either unknown, subject to a condition precedent, or both) if not, determine which type of vested remainder

Front 9

Executory Interest

Back 9

future iinterest that cuts short interest in another (shifting) or grantor (springing)

Front 10

Remainder

Back 10

Waits for expiration of prior estate created in same conveyance--

comma rule--if condition precedent relating to reversion occurs before the to reversion language, condition precedent and reversion is a contingent reversion-, if language occurs after to reversion language, condition subsequent and reversion is vested subject ot complete defeasence

Front 11

Contingent remainder

Back 11

unascertained person and/or subject to condition precedent

Front 12

Vested remainders

Back 12

ascertained person and not subjec to condition precedent

i. Indefeasible-r'n certain to acquire and not subject to condition precedent

ii. Subject to complete defeasance/divestment r'n exists but condition subsequent which could cut short right to possession

iii. Subject to Open-remainder vested in group in which at least one person exists and more can join (no existing member has right to demand possession which would close group) and dilute shares of existing members

Front 13

Validity of future intersts-obsolete or incomprehensible doctrines

Back 13

i. Destructibility common: no remainder if still contingent at time prior estate ends

ii. Shelly's case- O to A for lIfe, then A's heirs, A has FS absolute-merges

iii. Doctine of worthier title (still exists) O alive to A for life, then O's heirs, contingent remainder in O's heirs destroyed, A has life estate O has reversion unless intent otherwise because of rule of construction, not rule of law

iv. no absolute restraints on alienation

Front 14

Rule Against Perpetuities

Back 14

Future Interest invalid and removed i interest will vest, if at all, more than 21 years after death of measuring life, applies only to contingent remainders, executroy interests, vested remiander subject to open

Front 15

Rule Against Perpetuities-Details

Back 15

i. Invalid-Gift to Open Calss conditioned on members suriving to beyond age 21

ii. Invalid-Executory interest with no limit on time within which to vest

iii. Charity to charity exception

iv. Wait and See-see if violates RAP or 90 year vesting period

USRAP-Uniform Statutory--90 year period

Cy pres-as near as possible--court modification to most closely match grantor's intention and not violate RAP, used in wait and see and USRAP

Front 16

Waste

Back 16

Affirmative/Voluntary-overt act that causes decrease Permissive-failure to maitain, pay taxes, repair Ameliorative-act enhancing value, unless all future interest holders agree and are known

i. Exception-Purge Rule-Prior Use, Reasonable Repair, Grant, Exploitation -suitability

Front 17

Concurrent Estates-Joint tenancy

Back 17

Two or more, equal right of possession of whole, right of survivorship

1. Alienable but not divisable or descendable

Serverance by sale (upon date of K signing via doctrine of equitable conversion, partition (voluntary agreement, partition in kind physically dividing property, forced sale of all land,) and mortgage (minority--severs majority-does not sever) buyer has tenancy in common

i. Four unities required-Some time, title (instrument), identical equal interest, identitcal right to possession of the whole+ clear intent to create right of survivorship

TTIP-mnemomic

Front 18

Concurrent Estates-Tenancy in Entirety

Back 18

Protected marital interest of husband and wife w/ right of survivorship

i. neither spouse alone can sever by conveyance, deed or mortgage, cansever by death, divorce, agreement or joint creditor agreement

Front 19

Tenancy in Common

Back 19

Two or more with no right of survivorship, each owns individual part but no right to possess whole, no right ot exclude (oust) any tenant of possession of any part

i. rent-no right to collect from each other can can collect from 3rd Parties

ii. No adverse possession unless ouster, responible for portion of carrying costs, right to demand contribution for reasonable and necessary repairs if notice, no right ot demand contribution for improvements during co-tenancy, can get value of improvement if increase or must pay value of decrease upon partition, no waste and can bring action for waste anytime

alienable, descendible, divisible, right to bring action for partition

Front 20

Landlord-Tenant-look for on exam-Nature of Leasehold

Back 20

Estate in land giving present possessory interest

Front 21

Landlord-Tenant-Tenancy for Years

Back 21

Fixed determiend period with start and end date, no notice needed to terminate, if greater than one year, need writing, otherwise implied periodic

Front 22

Landlord-Tenant-Periodic tenancy

Back 22

for successive intervals until proper notice, (written and notice equal to length of period unless year to year or greater, in which case 6 months)

Front 23

Landlord-Tenant-express or implied

Back 23

Express

Implied-with period determioend by rent payment interval, if

1) period missing but payment at set intervals

2) oral tenancy for years

iii. holdover in residential lease if L elects

Front 24

Landlord-Tenant-Tenancy at Will-terminable at the will of either LL or Tenant

Back 24

No fixed period of duration, must have express agreement, terminate at will at any time but reasonable demand ot vacate likely necessary

Front 25

Landlord-Tenant-Tenancy at Sufferance

Back 25

T wrongfully holds over past expiration of lease, lasts until LL evicts or elects to hold T to new lease term-implied periodic tenancy

Front 26

Landlord-Tenant-Tenant Duties

Back 26

Duty to 3rd Party-Keep premises in reasonably good repair, liable for injuries even if LL expressly promised to repair (T may then seek indemnification from LL)

Front 27

Tenant Duties-Duty to Repair

Back 27

Duty to Repair (If Lease Silent)-Maintain and make ordinaryrepairs, no waste-removal of fixtures=voluntary waste

Front 28

Tenant Duties-Duty to Pay Rent

Back 28

If T breaches and is in possession, LL may move to evict or continue relationship and sue for back rent-no self help allowed

If T breaches and is out of possession and time is left on the lease, LL may

1) Treat as surrender

2) relet and hold T liable for deficiency -thoug hamjority requires mitigation LL must try to relet

3) ignore and hold T responsible for remainder of lease (minority)

Front 29

Landord Duties-tort liability to lessee

Back 29

No duty to make safe to lessor except common areas, affirmative duty to warn if know/reason to know of latent defects, liable if

1) assumed repairs (complete with reasonable repair)

2) defects on public use premises if LL knowns, has reason to know because of defect and length of lease T will not repair and

3) defects in short term leased furnished dwelling

Front 30

Landlord Duties-Deliver Possession

Back 30

Majority rule-old English rule LL must deliver actual physical possession to T,

minority American rule-legal possession only

Front 31

Landlord Duties-Implied covenant of quiet enjoyment

Back 31

residential and commercial-T has right to quiet use and enjoyment of premises without interference from LL

Breach-if actual wrongful eviction, partial eviction-relieves duty to pay rent, constructive eviction-substantial interference, notice to LL, who fails to respond meaningfully, T vacates within reasonable time).

Front 32

Landlord Duties-Implied warranty of habitability

Back 32

residential only, non-waivable, premises must be fit for basic human habitation, (may use local housing code as standard)

T remedies-

1) may move out, terminate lease,

2) Repair and Deduct

3) Reduce rent or withhold rent for judicial valuation

4) Remain in possession, pay rent, sue for damages

Front 33

Leases-Assignment and sublease

Back 33

Assignment-L and T2 in privity of estate, not privity of K unless T2 assumed, L and T1 in privity of K but not estate.

Sublease-LL and T1 in privity of K and Estate, LL and T2 no privity

Front 34

Adverse Possession

Back 34

Possession can ripen into title if elements for statutorily prescribed period and owner does not take action to eject adverse possessor during that time

Possession must be continuous and uninterrupted for statutory period

Open and notorious (Acts like owner, put owner on notice)

Actual and Exclusive-no sharing with owner

Hostile-without permission

No adverse possession if govt land

Front 35

Easements-definition

Back 35

Nonpossessory property interst entitling use or enjoyment of another's land for a special purpose

Front 36

Easements-Types-Appurtenant

Back 36

1) Appurtenant-if there are two parcels and holder benefits in physical use/enjoyment of his property

i. Appurtenant-benefit passes automatically with dominant tenemen, even if no mention in conveyance, burden passes automatically with servient tenement unless new owner is BFP w/out notice of easement

Front 37

Easements-Types-In Gross

Back 37

Holder gains personal or pecuniary advantage not related to his property

Not transferable unless for commercial purpose

Front 38

easement type-Affirmative

Back 38

Right to go onto and do something on the land

Creation by prescription--look to adverse possession analysis

Creation By Grant-writing plus easement for over 1 year

Creation by Necessity-Landlocked

Front 39

Easements-Types-Negative

Back 39

right to prevent servient landowner from doing something permissible

Created only by an express, written agreement (Never Implied)

Light, air, support, streamwater from artificial flow, scenic view (minority)

Front 40

Easements-Scope

Back 40

Determiend by terms of grant or condition; overuse does not terminate, remedy is unjunction against overuse

Front 41

Easement-termination

Back 41

Terminates by

i. estoppel-servient owner changes position in reasonable reliance on holder's assurance will never enforce

ii. necessity ends-if created by necessity

iii. Destruction or condemnation of servient estate-

iv. Written Release

v. Abandonment-physical action manifesting intent to never use again

vi. merger of dominant and servient estate

vii. prescription

Front 42

Easement Creation-RIPEN

Back 42

Reservation, Implication, Prescription, Express grant, Necessity

Front 43

Easement Termination Mnemonic

Back 43

SURE NAP-

Stated conditions
Unity of ownership
Release
Estoppel
———–
Necessity
Abandonment
Prescription

Front 44

License

Back 44

nonpossessory privilege to enter on land for specific purpose, not subject ot Statute of Frauds, (oral unenforceable easement may become license) fully revocable-like tickets

estopppel bars revocation-look for investment of money, labor in reasonable reliance that license would continue.

Front 45

Profits

Back 45

Non possessory right to entter the servient land and take soil, minerals, timber, oil etc.

Front 46

Covenant-non possessory-relief is money damages (Distinguish from ES)-Promise to do or not do something related to land which may bind successors

Back 46

Negative-(restrictive) promise to refrain from doing something

Affirmative -promise to do something related ot the land

Burden runs --Withn- Writing, Intent regarding successors, touch and concern the land, horizaontal and vertical privity, notice

Horizontal Privity-Siuccession of estate -grantor/grantee LL/T, mortgagor/mortgagee

Vertical Privity-Non hostil nexus (contract, devise, descent -no adverse)

Benefit runs --WITV-wriitng, intent, touch and concern the land and vertical privity concern,

Front 47

Equitable Servitudes-nonpossessory-Relief is Injunction--promise to do or not do anything relating to land which equity will enforce against successors

Back 47

BindsSuccessors-Witness--Writing, Intent, touch and concern + notice--no privity is necessary

Implied--(Common plan or scheme) --subdivider must have had general scheme of residential development which included D's Lot + D had notice of promise contained in prior deeds (actual, inquiry or record); remedy to enjoin D if 2 elements met

Changed conditions--seek release from ES because pervasive change in area.

Front 48

Conveyancing-Purchase/Sale of Real Estate, =Land Contract + Closing

Back 48

Land Sale Contracts-Writing signed by party to be bound + (statute of frauds), description of land to be conveyed, + recital of consideration

i. land less than description-buyer must perform but gets pro rata discount

ii. Oral Contract/Part Performance Doctrine- Equity decrees specific performance if buyer does 2 of 3 things 1) takes possession 2) remits all or or part of purchase price 3) makes substantial improvements

Front 49

Conveyancing-Purchase/Sale of Real Estate-Equitable Conversion

Back 49

Once K is signed, buyer is constructive owner--it burns down while in escrow, you bought it.

Front 50

Conveyancing-Purchase/Sale of Real Estate-Implied promise to provide marketable title-

Back 50

seller impliedly promises buyer takes title frr from

1) reasonable doubt re title

2) lawsuits and

3) threat of litigation

Unmarketable if:

1) any portion of title rests on adverse possession unless buyer proves good title record,

2) encumbered, without buyer's waive, by servitude or mortgage

3) property violates zoning ordinance

Tip: Seller may satisify outstanding mortgage or lien at closing with proceeds of sale, buyer can't claim unmarketable title and back out

Front 51

Conveyancing-Purchase/Sale of Real Estate-Implied promises

Back 51

Majority-Implied promise not to make false statements of material facts--Seller liable for failing to disclose latent defects plus lies and material misrepresentations

Implied wrranty of fitness and workmanlike construction--only applies to sale of new homes by vendor-builder

time of essence not presumed-party can tender performance late within reasonable time after closing unless --1) time of the essence clause 2) circumstances indicate

Front 52

Conveyancing-Purchase/Sale of Real Estate-Closing

Back 52

LEAD

Lawful Execution of Deed--writing, signed by grantor, reasonably identifying parties and land (unambiguous description of land and good lead for research) no recital of passing of consideration necessary

Acceptance and deliver-Delivered if present intent by grantor to be bound (no literal handover or immediate possession required) Express rejection at time of delivery defeats delivery.

Tip--failure to record does not affect passage of title

Tip--Oral condition void when given upon delivery of deed absolute on face--delivery valid

Front 53

Conveyancing-Purchase/Sale of Real Estate-Three types of deeds/covenant of title-Quitclaim Deed

Back 53

Quitclaim deed--no covenants, release of whatever grantor has, but promise of marketable title at closing

Front 54

Conveyancing-Purchase/Sale of Real Estate-Three types of deeds/covenant of title-Warranty Deed

Back 54

General Warranty deed- Best deed ot have warrants against all defects in title including from predecessors--3 present covenants and 3 future covenants

Front 55

Conveyancing-Purchase/Sale of Real Estate-Three types of deeds/covenant of title-Warranty Deed-present covenants

Back 55

1) covenant of seisen--grantor owns estate conveyancing

2) right to convey

3) no encumbrances (mortgages or servitudes) Statute of limitations runs from time of delivery of deed

Front 56

Conveyancing-Purchase/Sale of Real Estate-Three types of deeds/covenant of title-Warranty Deed-future covenants

Back 56

1. Quiet Enjoyment-g'e will not be disturbed by 3rd Party lawful claim of title

2. Warranty-Grantor will defend g'e against any lawful claims of title

3. further assurances-g'r will do future acts reasonably necessary to perfect title if later found imperfect) Statute of limitations does not run until disturbance in possession

Front 57

Conveyancing-Purchase/Sale of Real Estate-Three types of deeds/covenant of title- Statutory Special Warranty

Back 57

Promise that only g'r (not including predecessors) has not conveyed to another and land is free from encumbrances made by g'r

Front 58

Real Property Land Sales-Breach of Contracts

Back 58

Breach of Contract--non-breaching party entitled to damages 1) contract price--market value at time of breach 2) Specific performance--buyer gets abatement for devaluation for unmarketable title or 3) liquidated damages-seller keeps earnest money deposit if reasonable in light of seller's anticipated and actual damages

Front 59

Real Property-Recording System-Bona Fide

Back 59

recording acts only protect bona fide purchaser--not devisees, and not bad faith purchasers

BFP-purchases for value, substantial pecuniary interest, includes mortgagees not not heirs, donee unless Shelter Rule) without notice of prior interest (actual, inquire [buyer must look around and inspect], record notice [properly recorded deed within chain of title]

Front 60

Real Property-Recording System-Pure Notice

Back 60

1) Notice statute-Subsequent BFP wins over g'e who failed to record (BFP wins as soon as takes with no record of g' deed or constructive notice), BFP recording irrelevant

Front 61

Real Property-Recording System-Pure race

Back 61

Whoever records first wins, notice irrelevant

Front 62

Real Property-Recording System-Race notice

Back 62

Subsequent BFP who takes without notice wins if he recorded first, if notice, subsequent BFP loses, if records second, subsequent BFP loses

Front 63

Real Property-Recording System-Shelter Rule

Back 63

If you take from BFP, person taking has status of BFP (status transfers)

Front 64

Real Property-Recording System-Wild Deed

Back 64

link in chain of title missing--(some g'e fails to record) and then chain resumes (some g'e does record) missing link = no capacity for record notice of missing link or resumption of chain

Front 65

Real Property-Recording System-Estoppel by Deed

Back 65

One who conveys realty in which no interest is estopped from denying validity of transfer if later acquires interst in previously transferred

Front 66

Real Property-Mortgages-Generally

Back 66

debt + voluntary transfer of security interest in land to secure debt

Debtor- mortgagor

Lender is mortgagee

Front 67

Types of Mortgages

Back 67

Written-called note/security interest in land, mortgage deed or deed of trust

Front 68

Equitable mortgage

Back 68

partys intend mortgage

mortgagor gives mortgagee deed absolute on face

Front 69

Mortgage-theories of title

Back 69

Lien Theory-mortgagee is the holder of a security interest and possession only and mortgagor owns the land until foreclosure. Mortgagee may not have possession until foreclosure.

Title Theory-Legal title is in the mortgagee, until the mortgage is satisifed or foreclosed, mortgagee is entitled to possession upon demand any time.

Intermediate-small minority opinion, legal title in mortgagor until default, on default, legal title in lender, lender may demand possession upon default, little practical difference between this and title theory

Front 70

Mortgage-Transferability

Back 70

All parties can transfer, mortgage follows properly transferred note by lender (endorsement and delivery of note or execution of separate document of assignment)

Front 71

Mortgage-Transfer

Back 71

Transferee becomes holder in due course, if note negotiable and payable to mortgagee, original signed/endorsed by mortgagee, and delivered to transferee, who takes in good faith and having paid non nominal value.

Transferee takes free of any personal defenses m'r has against m'e, (lack of consideration, unconscionability, fraud in inducement) but m'r may assert Real defenses against t'e (material alteration, duress, fraud in the factum, incapactity, illegality, infancy, insolvency).

Payment only counts if to t'e, even if m'r had no notice of transfer.

If m'r sells land with mortgage, if buyer assumed mortgage, buyer personally liable to m'e secondarily, m'r primary, if no assumption, lien only.

Front 72

Mortgage-Recording Statutes

Back 72

May protect m'e, lien remains on land if mortgage properly recorded

Front 73

Foreclosure-General

Back 73

m'e must use proper proceeding; land sold, if defecit m'e goes after debtor for deficiency judgment, if surplus, surplus to junior liens then to debtor

Front 74

Foreclosure-title theories

Back 74

Lien theory-m'e holder of security interest, m'r owns until f/closure

title theory-m'e holder of legal title until full payment or f/closure, may demand possession at anty time

Intermediate theory-m'r holder of legal title unless default, title to m'e

Front 75

Foreclosure-how it effects interests-

Back 75

Termination of interests-foreclosure terminates junior interests if junior joined, but not senior, (junior can't look to land for satisfaction,, if joined, must sue debto/m'r for defecit as long as they are joined in foreclosure. seniors may always foreclose against land because new buyer takes land w/mortgages.

Front 76

Foreclosure-priority

Back 76

Priority determiend by time mortgages werre recorded except purchase money mortgage, second in time mortgage given as security to buy land that, that m'e has 1st priority if that land is foreclosed. Remember, no record no priority.

Front 77

Foreclosure-redemption

Back 77

Equity of Redemption-(Universal and may not be waived) prior to f/close date, debtor may redeem land and free mortgage by paying off (including interest and costs)

Statutory-Half the states-debtor has statutory right to redeem for a fixed period after the foreclosure sale, typically by paying foreclosure price, and during statutory time in some states debtor has right to possess.

Front 78

Possessor's Rights

Back 78

Possessor of land has right to be free from trespass and nuisance

trespass-invasion of land by physical, tangible object, action for ejectment to remove

nuisance-substantial and unreasonable interference (includes intangible) with use and enjoyment of another's land. (Does not include hyoersensitive plaintiff)

Front 79

Eminent Domain

Back 79

Gov has 5th amendment right to take private property for public use in exchange for just compensation

govt. condemnation-Explicit taking-like condemnation for public highway

Regulatory-gov regualtion has same effect as taking (implicitly), right to just compensation or termination of regulation pl;us damages while regualtion in effect

Front 80

Zoning-General and Variance

Back 80

Police powers to allow government to enact statutes to reasonably control land use

Variance-Zoning board conducts administrative procedings to deny grant/variance; proponent to show undue hardship and variance-balnce with detriement to surrounding property values

Front 81

Zoning-Nonconforming use and Unconstitutional Exaction

Back 81

Non-conforming use-

Lawful use now deemed uncomforming by new zoning ordinance, if non-conforming use must be eliminated at once, could be unconstitutional taking

Unconstitutional Exaction-Amenities government seeks to exchange for granting permission to build that are not rationally related in scope and nature to the impact of proposed development (basically soliciting a bribe)

Front 82

Support Issues

Back 82

If P's land improved (nonnatural, i.e. buildings) no liability for damages caused by D removing support on adjacent land unless negligence--SL if P shows D's acts would have caused collapse if land was not improved.

Front 83

Water rights-Riparian and Prior Appropriation

Back 83

Riparians (owners of land bordering water course) share right to use water reasonably, and may not unreasaonbly interfere with another's use

Prior Appropriation-water initially belongs to state, but an individual (even a non-riparian) can acquire right to use/divert water, rights determiend by priority of beneficial use.

Front 84

Water rights-Ground Water and Surface Water

Back 84

Ground water-Perecolating water/water beneath surface of land not confined to known channel, surface owner may make reasonable use (no waste)

Surface water-water from rain, spring, melting snow which has not yet reached natural water course, or basin per common enemy rule, land owner may change drainage to combat water flow.