Ma Real Property

Front 1

What is the special rule regarding fee simple determinables and fee simples subject to condition subsequent?

Back 1

Will become a fee simple IF the specified condition/contingency doesn’t occur within 30 years from date of possession

Front 2

in MA spouse gets life estates by marital right - how much?

Back 2

Surviving spouse holds 1/3rd life estate in all land owned by the deceased spouse at death

Front 3

What does a "cry pres" doctrine do?

Back 3

“as near as possible” doctrine - If given disposition violates the rule, a court may reform (redraft) it in a way that most closely matches grantor’s intent while still complying with the RAP

Front 4

What rule for severance is in MA?

Back 4

Title theory - One joint tenant’s execution of a mortgage or a lien on his or her share WILL SEVER the joint tenancy as to that now encumbered share ONLY in the minority of states to follow the title theory of mortgages

Front 5

How do you terminate a periodic tenancy?

Back 5

may be terminated by either party by 3 months’ notice in writing or, if the rent is payable at periods less than 3 months apart, by notice equal to the interval between the days of payment unless such interval is less than 30 days. In latter case, 30 days’ notice must be given

Front 6

What is T's liability for injuries sustained by 3rd parties invited?

Back 6

By statute any 3rd party lawfully on site who is injured by an unsafe condition can proceed against L provided that L received written notice of the problem

Front 7

For the implied warrant of habitability for commercial leases, what is special about commercial T's?

Back 7

have no right to withhold rent

Front 8

What is the rule about retaliatory eviction in MA?

Back 8

presumption that eviction is retaliatory if within 6 mths of T’s complaint

Front 9

What is the common law of caveat lessee?

Back 9

By statute, MA has disregarded caveat lessee for residential leases. L is liable for unsafe conditions that T did not cause and that L had written notice of (also applies to 3rd parties)

Front 10

What is the scope of easements in MA?

Back 10

Owner with real estate abutting a private way with rights of ingress and egress upon that way can place utilities on and through the way if they do not unreasonably obstruct the private way or its existing use

Front 11

What is the statutory period for adverse possession?

Back 11

20 years. Strictly construed. Even a three-week break renders the possession non-continuous

exception: actions by nonprofits to recover land for conservation, parks, recreation, water protection or wildlife protection

Front 12

rule for implied equitable servitudes?

Back 12

MA does NOT recognize this because all covenants and equitable servitudes must be in writing

Front 13

What is the de minimus encroachment rule?

Back 13

Generally a landowner is entitled to equitable relief to compel removal of an encroachment on his property.

b. But NARROW EXCEPTION HERE WHERE
i. The D’s encroachment on the land is de minimus
ii. D acted in good faith
iii. Cost to the D of removing the encroachment is grossly disproportionate to the benefit conferred by its removal

Front 14

Who has the risk of loss for a property after the K is signed?

Back 14

party in possession prior to closing bears the risk of loss

Front 15

What does a deed need in order to be lawfully executed?

Back 15

i. Must be in writing signed by grantor
ii. Deeds CANNOT be recorded UNLESS they recite consideration
iii. Must contain a description of the land - Property must be “adequately described”

Front 16

what does lawfully recording a lawful deed mean?

Back 16

recording a lawful deed properly is presumptive evidence of delivery (bright line standard)

Front 17

What is statutory redemption?

Back 17

MA DOESN'T RECOGNIZE IT - only redemption in equity

Front 18

which water rights doctrine does MA use?

Back 18

riparian doctrine--
• The water belongs to those who own the land bordering the watercourse.
• These people are known as riparians, who share the right of reasonable use of the water.
• Thus, one riparian will be liable if his or her use unreasonably interferes with the others’ use

Front 19

Recording System in Massachusetts?

Back 19

Massachusetts is a Notice Jurisdiction
If, at the time B takes, he is a bona fide purchaser, he wins. It won’t matter that A may ultimately record first, before B does.
So, the last BFP to enter the picture without notice wins

Three forms of Notice
Actual
--Prior to closing, B learns of A

Inquiry
--Whether an exam of the property would show
• Massachusetts does NOT recognize inquiry notice

Record notice
• B is on record notice of A’s deed if at the time B takes, A’s deed was recorded properly

Front 20

Quitclaim Deed

Back 20

Massachusetts calls these "release deeds" (no covenants)

Front 21

Statutory Special Warranty Deed

Back 21

Massachusetts calls these "quitclaim deeds" (protect against encumbrances created by grantor and covenant that grantor has title)

Front 22

Part Performance to Statute of Frauds

Back 22

Most states require 2 of 3 but Massachusetts requires all 3:
--B takes possession
--B pays all or part of the price
--B makes substantial improvements

Front 23

Easements by Necessity

Back 23

Most states require only "reasonable necessity" but Massachusetts requires "strict necessity"

Front 24

Tenant's Duty to Pay Rent

Back 24

Landlord must not engage in self-help (change locks, remove possessions). In Massachusetts, Landlords that resort to self-help are liable for treble (triple) damages or 3 months rent and attorney's fees.

Front 25

Tenancy by the Entirety

Back 25

o Multi-state: Tenancy by entirety arises presumptively in any conveyance to married partners unless stated otherwise
o In Massachusetts, creation of a tenancy by the entirety requires an express statement
 The default is a tenancy in common
o Creditors
 Multi-state: creditors of one spouse cannot touch the tenancy (need to be joint creditors)
 Massachusetts: creditors of one spouse may encumber that spouse’s share but cannot touch other spouse’s share and cannot defeat the right of survivorship

Front 26

Rule Against Perpetuities

Back 26

o Massachusetts applies the “wait and see” doctrine
 The validity of any suspect future interest is determined on the basis of the facts as they now exist, at the end of the measuring lifetime
 This eliminates the “what if?” or “anything is possible” line of inquiry
o Massachusetts has also adopted the Uniform Statutory Rule Against Perpetuities (USRAP)
 This codifies the common law RAP and, in addition, provides for an alternative 90 year vesting period
o Both of these reforms (wait and see and USRAP) embrace the Cy Pres doctrine
 If a given disposition violates the rule, a court reform it in a way that most closely matches the grantor’s intent while still complying with the RAP

Front 27

Doctrine of Worthier Title

Back 27

Does not apply in Massachusetts
o Applies when O, who is alive, tries to create a future interest in his heirs. The interest is void and O has a reversion.
o In Massachusetts: O’s heirs have a contingent remainder

Front 28

Rule in Shelley's Case

Back 28

abolished in Massachusetts
o So when O conveys “To A for life, then to A’s heirs”
 A has a life estate and A’s heirs have a contingent remainder.
 Note: O has a reversion, since A could possibly die without heirs

Front 29

Easement by Necessity

Back 29

Most States require "reasonable necessity"

Massachusetts requires "strict necessity"

Front 30

Fee Tail

Back 30

Massachusetts still recognizes the Fee Tail (to A and the heirs of his body) but the owner can end it by transferring the property