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40 Cards in this Set
- Front
- Back
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Life tenant
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-responsible for taxes and upkeep
-if there is a tax sale, rights of the remainderman are cut off -cannot mine property UNLESS grantor gave permission to do so, already an open mine on property (open mines theory-does not apply to the fee simple and defeasible estates) |
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G to A, "so long as" xx occurs, if not to V
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- A has a fee simple determinable subject to an executory interest held by V (on exam, 95 % of time RAP applies on this kind of estate--if you can't tell when it will occur, it's void by RAP)
- if no future interest mentioned, or RAP applies, automatically goes to orignal grantor - G has a possibility of reverter - V's interest void by RAP (because may not happen for 10,000 years) |
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G to A and his heirs, "provided that" or "but if"
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-fee simple subject to a condition subsequent (no one can tell this person how to handle the property, like a life estate)
-when event occurs and not future interest (void under RAP or no one listed) there must be an ejection of a holder of the estate (is not automatic); right of re-entry |
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x to life, then to "group of people" (grandchildren)
always 1 question |
- class opens at the time gift takes effect (death of the owner)
-class remains open and new members can join untill any member of the class as a right to the property (when the estate preceding class gift comes to an end, class closes, with the exception of when the potential member is a direct decedent (i.e. grandchild) was in gestation, can share) |
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to W for life, then to C for life, then to G for life, followed by fee simple remainder
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- any person or group that are living and can be identified at the time of the original conveyance are ok against RAP
- first person or group who cannot be identified at time or original conveyance, are also ok against RAP -See MSE 18, 150, 139, 98, 175, 182, 149 -all interests after that are void by RAP |
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Right of first refusal
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- only lasts within lifetime
??? see question 149 (only 6 questions on MBE on future interests |
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Joint tenancy
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- joint tenant does not need permission from other JT to convey interest (absolute right), and tenancy in common will be created
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Landlord/Tenant
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- when leased property is sold, the purchaser is liable for all of the promises that the seller made to the tenant that the purchaser agrees to accept or that run with the land (touches and concerns the land) see MSE no 114
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Hold over tenant
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- landlord can eject tenant or hold tenant to a new period tenancy (in commercial lease, new period tenancy will be year to year unless original lease was less than one year and follow that) (in residential leases, month to month, regardless of length or original lease)
-landlord can collect rent (if tenant was notified that rent would go up, then tenant would be responsible for increased rent; otherwise, stuck with old rent) - look for commercial leases on MBE (see MSE 129) |
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Assignment
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- entire interest transferred
(sublease, partial transfer) -original tenant is liable (assignee, is also liable for the time they had a right to the estate) -jointly and severly liable -if assignee assigns to another, then old assignee is no longer responsible, but new assignee is (See MSE 132) |
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Easement
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- if conveyed, new property owner must honor the easement if he has notice of it (by actual notice, record notice (title search), inquiry notice) MSE 46
-owner in subdivision, must comply with easements if have notice (actual notice, record notice, recorded in subdivision plan, inquiry notice-reasonable person would have inquired). Can be enforced by anyone bound by the restriction. |
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Race-Notice
O to A; A does not record; O sells to B, who has no notice, B receives if he records before A |
- must record first to prevail
- contains "first recorded" or "recorded first" - failure to record after first grant (see MSE 112) |
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purchase money security interest in a fixture
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- PMSI in a fixuture, will always prevail over previously recorded interest on property, as long as it's recorded 20 days after fixture is attached, the security interest will prevail (MSE 168)
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Equitable conversion
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- buyer is owner of property after contracting and bears risk of loss (common law rule); MSE 42, 159
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Marketable title
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-when seller contracts, gives implied warranty of a marketable title at time of closing
-title that a reasonable buyer would accept -if there is a gap, it is NOT a marketable title -a title acquired in whole or in part by adverse possession is NOT marketable title unless seller has obtained a judicial order declaring them to be the owner of the property |
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Adverse Possession
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- look for missing elements on test (usually AP NOT established on the test)
- incompetency occuring after AP has started does NOT toll the statutue (if incompetent when started, then tolls until no longer incompetent) -no AP if owner gave consent (not hostile) |
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Deeds
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- no physicial delivery needed to make deed valid, just need intent
- if deed made out to 3rd person, then keeps deed, presumption that owner did not intent to convey (because they didn't make a effort -dresser drawer presumption) - = MSE 25, 111 |
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Conveying Less than Contract
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-if at closing, seller tenders something less than promised, buyer may deduct from purchase price reasonable value of property
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Pure Notice/Notice Statute
O to A, A does not record; O sells to B |
- party who receives first conveyance, who does not record, subsequent purchaser who takes without notice WILL obtain surperior title, regardless of who records first
-B gets title if he does not have notice (BFP) |
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Notice Statutue Rules
(shelter rule) |
-anyone lending money for property, will be treated like a purchaser for purposes of a recording statutue for analysis (look at them as any other purchaser)
- if a person takes superior title under either recording statute, superior title can be transfered to anyone, even if that person doesn't qualify (i.e. they did have notice). SHELTER RULE) |
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Riparian Rights
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- riparian owner can use ALL the water necessary for domestic use (natural use) (i.e. flush 100 times); will always prevail over downstream owner if using for non-domestic use and doesn't matter who uses it first
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What rights does a junior mortgagee have in a foreclosure?
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- Foreclosure destroys all interests junior to the mortgage foreclosed (younger, or more recent mortgages); however, the junior interest holder may pay off the senior mortgage to preserve it's own mortgage interest (redeem it and avoid it from being wiped out) (no default on loan is necessary)
NOTE: Right of redeemption is a little different. It gives a statutory right to redeem for a fixed period AFTER the foreclosure sale, which is the foreclosure price, rather than the amount of debt. |
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Where do proceeds of the foreclosure go?
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- (after expenses and fees), pay the loan that was foreclosed
- then to pay the junior interests in order of priority (if insufficient, mortgagee can bring a personal action against the debtor for the deficiences) - senior interests remain intact and the purchaser at the foreclsoure take the property subject to the senior mortgage |
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What kind of future interests are subject to involuntary transfer (can be reached by creditors)?
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Any future interest that can voluntary tranfer, which is all kinds of vested remainders.
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Are there times when you cannot exercise the right of re-entry under a FSCS?
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When the ejectment action would aslo violate the 14th amendment because of discrimination and also the Fair Housing Act.
In such cases, the conveyance is stricken. |
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Options to Purchase and Rights of First Refusal
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Generally is structured so that it might be exercised later than the end of RAP, BUT it does not apply to options to purchase held by the current lessee.
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Covenant of Quiet Enjoyment
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Implied in every lease that neither the landlord nor anyone with paramount title will interfere with the tenant's quiet enjoyment and possession of the premises.
May be breached by lawful eviction. The tenant may collect damages for the breach. |
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Profit Appurtenant
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Right to hunt and fish (can be minerals, timber, oil, game) on dominant estate, and can only be transferred along with the dominant estate.
For example, servient holder of the profit can't transfer his interest in the profit (hunter can't transfer to someone else his right to hunt) |
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Are partial restraints on alientation enforceable?
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Yes, if reasonable.
In TX, cannot transfer an in gross easment unless language allows, except for a conservation easement. Under MBE, commercial in gross easement is transferrable. Personal in gross easement in NOT transferrable. |
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Adverse possession for a covenant?
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Yes, if possessor used the land in violation of a covenant for the limitations period, takes land free of the covenant.
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Deeds that are void include
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Deeds that are forged are never delivered, or obtained by fraud.
Otherwise, they are VOIDABLE (undue influence). Even still the deed will not be set aside if property passed to a bona fide purchaser. |
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Delivery of a deed
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-when title passes
-destorying deed or returning it to the grantor has no effect -acceptance inferred, though once accepted, can't change mind after and reverse delivery |
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Doctrine of estoppel by deed
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When a grantor purports to convey property that he does not own, his subsequent acquisition of title to that property vests in the grantee under this doctrine. BUT this only gives title against the grantor and not subsequent bona fide purchasers.
(if there's a house built on land that someone else ones, that serves as notice to a potential BFP, and they cannot be a BFP) |
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Does a tenant or a landlord have the ability to bring a tresspass action?
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Tenant. Tresspass action can be maintained by anyone in actual or constructive possession of the land, even without title or legal right. One not in possession, can not bring this action.
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Under the private necessity doctrine of tresspass, a tresspasser must pay for damages, unless
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If trespass is undertaken for the benefit of the person or property of the the landowner, plaintiff has been deemed to consent.
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How do you defend against a privacy action based on public disclosure of private fact?
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If publication, a defense is a matter of public interest.
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What must you do when you see a negligence question?
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Determine Duty, Breach, Cause, Damages to answer.
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the owner of trespassing animals is strictly liable as long as
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it was reasonably forseeable.
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To prove breach of duty in a products liability case based on negligence, must show
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1) negligent conduct by the D
2) supplying a defective product by the D -Plaintiff may invoke res ipsa loquitur by showing that injury is the type that would not normally occur absent negligence |
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to prevail in a products liability action, a P must show that product was in a dangerous condition unreasonably safe to users.
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Must show a reasonable alternative design (less dangerous modifcation or alternative not economically feasible.
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