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80 Cards in this Set
- Front
- Back
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Adverse possession (definition and elements)
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Assuming another's property interest through possession that is
Actual Open and Notorious Exclusive Hostile or Adverse Continuous |
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Circumstances that may prevent adverse possession even when the elements are met
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Statutory period (must be met)
Tacking/Privity (later party must have privity with original adverse possessor to tack prior holding time onto their claim) Disability (can't adversely possess from the legally or physically disabled) Life Tenants/Remaindermen (adverse possession only takes the current and not future interests) |
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A conveys "to B and his heirs"
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Fee Simple Absolute
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A conveys to "B and his heirs so long as liquor is not sold on the property."
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Fee simple determinable
- words of duration "while", "as long as" "until" - Automatic Reversion to grantor if event occurs |
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A conveys "to B and her heirs but if liquor is sold on the property, then A has right of re-entry"
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Fee Simple Subject to Condition Subsequent
- conditional language: provided that, but if, on condition that - right of re-entry not automatic reversion |
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A conveys "to B and her heirs but if liquor is sold on the property then to C and his heirs"
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Fee Simple Subject to (shifting) Executory Limitation
- if event occurs, title or right of re-entry passes to third party instead of grantor |
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A conveys "to B and the heirs of his body."
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Fee tail
- reversion to grantor on failure of issue |
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A conveys "to B for life"
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Life estate
Reversion to grantor on death of grantee |
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Types of Freehold Estates
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Fee Simple
Fee Tail Life Estate |
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Types of Fee Simple
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Absolute
Determinable Subject to Condition Subsequent Subject to Executory limitation |
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types of Leasehold estates
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Estate for years
Periodic Tenancy Tenancy at will (also tenancy at sufferance, which occurs when a tenant stays past end of lease) |
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Types of Future interests retained by Grantor
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Reversion (after end of life estate, fee tail, or term of years)
Possibility of Reverter (follows fee simple determinable) Right of Re-entry (follows fee simple subject to condition subsequent) |
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A conveys "to B for life, remainder to C and his heirs"
C's interest? |
Life estate to B, with a vested remainder in C
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How can an open class close re the Rule Against Perpetuities?
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Naturally (e.g., parent dies so can't have more children)
Rule of convenience - when any member of the class can demand possession of the property If one class member fails the rule, the entire class fails. |
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Doctrine of first possession
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Being first in time to discovery a property and establishing ownership gives a valid claim.
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The right to exclude
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The right to deny others access to land that is an essential property right; does not include right to bar government works providing essential services.
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Acquisition by Find (finder's rights)
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Finders have the right to retain possession of property against all but the "rightful" owner. Title of possession is defined relative to others. No rights if property was intentionally/voluntarily mislaid.
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Trover
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Common law action for money damages resulting from conversion of a chattel; forced purchase from taking something.
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Replevin
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Action to have goods returned
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Lost vs Abandoned vs Mislaid
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Lost - unintentional & wants to reclaim
Abandoned - intentional & doesn't want to reclaim Mislaid - intentional & wants to reclaim |
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Color of title (definition & effect on adverse possession)
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Possessing a written instrument conveying land that you think is valid but isn't. In adverse possession, may give ownership to land beyond what is actually occupied IF true owner has actual or constructive notice of the instrument.
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Is adverse possession of chattels possible?
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Yes; same elements required. Open and notorious element harder to satisfy. No title possible in stolen goods.
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What is "hostile or adverse" re adverse possession?
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Occupying without owner's possession regardless of the adverse possessor's state of mind. May be good faith mistaken belief of ownership or aggressive intent to take possession.
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Requirement for gifts
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Intent
Delivery (may be constructive or symbolic) Acceptance |
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inter vivos
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"among the living" - the transfer of property between living persons
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Interpretation of language concerning freehold estates
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Always favors grant of the greatest estate possible
Language indicating intent does not create a condition |
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fee simple
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Absolute title to land free of any other claims against the title; can be sold or passed on to another by will or inheritance
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seisin
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having both possession and title; refers to fee simple ownership
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reversion
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when title returns to the person giving or deeding property
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types of vested remainders
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indefeasibly vested (certain to become possessory in the future and not subject to divestment)
vested subject to divestment (a transfer is made to A with conditions applied that could take away A's interest) vested subject to open/partial divestment (transfer made to class of persons identified by description. class can close naturally or on timely demand of member) |
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what is a life estate "pur autre vie"?
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an interest that is conditional on a life other than the grantees; e.g., to B for life of C
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types of executory interests
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Shifting (divests a transferee)
Springing (divests transferor in the future) |
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A conveys "to B for life but if B marries X, then to C and his heirs." C's interest?
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C has a shifting executory interest because B's interest will 'shift' to C.
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A conveys "to B for life, then two months after B's death, to C and his heirs." C's interest?
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C has a springing executory interest because A's remainder interest (the transferor) will divest ('spring') to C
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Rule against Perpetuities (definition)
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No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest
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Interests that the Rule against Perpetuities applies to
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Contingent remainders
Executory interests Vested remainders subject to open NOTE: likely to apply when there are contingent interests conditional on an event occurring or not occuring |
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O gives to A for life, then to B and his heirs, if A is given a proper burial. Valid under RAP?
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No. Possible scenario where there is a 21+ year wait before A is buried.
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The merger rule
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if a person holding a life estate acquires a vested remainder in the same property at a later time, the two estates merge into a larger estate. Acts to destroy intervening contingent interests between the two vested interests.
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validating life
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The relevant life or lives IF ANY that within 21 years of their death the interest is absolutely guaranteed to timely vest or fail to vest. Needed to satisfy the rule against perpetuities.
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3 types of common law concurrent interests (names)
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Tenancy in common
Joint tenancy Tenancy by the entirety (married joint tenancy) |
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Tenancy in common (definition)
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-Separate but undivided interest in property
-interests passed to heirs and each may convey -"to B and C as tenants in common" |
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Joint tenancy (definition)
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-each regarded as an equal owner of the whole
-main different is right of survivorship, where if someone dies their interest automatically disappears -if interest is transferred creates a tenancy in common w/ new person -"to B and C as joint tenants" (language required for creation) |
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Tenancy by the entirety (definition)
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-joint tenancy where the owners are married
-main different is that neither can convey, partition, or get around the right of survivorship -divorce converts to tenancy in common |
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Severance of Joint tenancies permitted?
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yes, joint tenancy owners may transfer their interest to themselves or others to convert it to a tenancy in common
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ouster
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the wrongful dispossession of a rightful owner, forcing the party pushed out to bring a lawsuit to regain possession
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Lease and Rental income re joint tenants
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Proportionally sharing rental income not required.
Leasing ok so long as other owners rights are not prejudiced |
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Requirements for joint tenancy
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Requires four unities among parties:
1. time 2. title 3. identical interests 4. right to posses the whole |
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marital community property
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each spouse has a present, vested one-half interest in all property acquired during marriage. excludes "separate property" acquired before the marriage or during the marriage by specific gift.
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dower/curtesy
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spouses are not heirs at common law
law gave surviving spouses a life-estate interest (dower for wives, curtesy for husbands) in their deceased spouse’s property |
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Elective Share
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right of surviving spouse to take as an heir (usually one-third to one-half of the deceased spouse’s estate)
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Who is responsible for for dealing with holdover tenants at creation of new lease? (two methods)
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English rule - landlord responsible
American rule - incoming tenant responsible |
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Landlord options to deal with holdover
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1. treat as trespasser
2. treat as continuing the lease for a new term (accepting rental payment is consent) |
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Term of years
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lease with a specified beginning and ending date
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periodic tenancy
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lease w/ no specified termination date that renews automatically; notice is required to terminate
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tenancy at will
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either party may terminate at will, no notice required. Will terminate if owner sells property or either parties dies. e.g., to T "for as long as T wishes"
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tenancy at sufferance
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when a tenant stays past the end of a lease (holder tenant); landlord may evict or create new lease term
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Landlord duty to mitigate
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A landlord has a duty to mitigate the loss suffered by a defaulting tenant by finding a new tenant to fulfill the lease
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Doctrine of Constructive Eviction
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any act or omission by the landlord that renders a premise "substantially unsuitable for the purpose for which they are leased" constitutes a constructive eviction
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implied warranty of habitability
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a warranty implied by law that a residential property is suitable to be lived in and will remain so for the duration of the lease
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tenant repair and destruction of property
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tenant usually has no duty to repair.
at common law may have duty to continue paying lease after destruction of leased property. |
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easement: definition and two types
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"An irrevocable right to use another person's land for a specific purpose"
either: in gross - benefiting a specific person appurtenant - benefits the owner or possessor of a particular parcel of land (favored construction) |
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easement in gross
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assignable if commercial
divisible if not contrary to intent of the original parties and division would not unreasonably burden the estate |
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easement appurtenant
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results in land that is burdened by the easement (servient estate) and benefits from it (dominant estate)
not assignable divisible w/ full enjoyment to sub-owners favored construction if easement is unclear |
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affirmative vs negative easements
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affirmative - requires servient landowner permit something (e.g., right of access)
negative - right to prevent servient landowner from doing something (e.g., not build certain structures) |
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ways to create an easement
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express - written grant
prescriptive - granted after satisfying elements of adverse possession by necessity - required for ingress/egress implied - use was in place, apparent, and required for enjoyment of estate estoppel - license or unclear easement relied upon as permanent |
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elements of easement implied by prior use
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unity of ownership severed (easement owner is not same as property owner)
use was in place beforehand & apparent easement is necessary for enjoyment of estate |
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elements of easement implied by necessity
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unit of ownership severed (easement owner is not same as property owner)
REQUIRED for egress/ingress onto the estate |
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Ways to terminate easement
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Merger
Intentional release or end of term Abandonment or destruction Prescription (must severely interfere w/ dominant estate) Eminent domain |
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Scope of easement with respect to non dominant property owners
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No benefit allowed, even if they are an adjacent/adjoining property
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Are improvements/repairs allowed on an easement?
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Yes, as long as it is within the scope of the easement and does not burden the servient estate owner's use/enjoyment
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definition of real covenant/equitable servitude
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Agreements, promises, or deeds that relate to real property and intend to bind only subsequent owners solely because they own the property. Creates a burdened and a benefited estate.
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Affirmative vs Negative Covenants
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Affirmative - require owner (of burdened estate) to pay money or perform an act
Negative - restrict or prohibit the uses that can be made of the burdened property |
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Elements to create a Real covenant or Equitable servitude
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Intent to bind successors (parties must bind land not people e.g. "heirs and assigns")
Touch and concern (would a reasonable person have intended it to bind successors?) Third element is privity of estate for real covenants and notice for equitable servitudes |
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Real covenant vs equitable servitude remedies
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real covenant = monetary remedy
equitable servitude = equitable remedy, e.g. injunctions |
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elements of privity of estate
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horizontal privity (created with a transfer between two original parties)
vertical privity (parties on both sides must be subsequent owners of the entire interest) |
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types of notice acceptable for equitable servitudes
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actual
constructive (was available via deeds / records) or inquiry (obvious from premises or surrounding properties) |
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Common Scheme or general plan of development (definition)
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common owner subdivides land w/ covenants; entire tract of land is burdened and benefited as soon as first lot is sold
benefit appurtenant - any property owner can enforce restriction against another |
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Common Scheme or general plan of development (elements required to find)
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Common covenant covering certain percent of lot
Created at same point of time Intended geographic boundary |
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Recording Acts requirement
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Requires common schemes give notice to a bona fide purchaser in order to subject them to the burden of the covenant
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Ways to terminate covenants
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Merger
Release by all benefited property owners Unclean hands (can't enforce on others if you are violating) Passively enduring violations or abandonment Lache (unduly delaying enforcement) Drastically changed conditions or hardship |
