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331 Cards in this Set

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What is a present possessory estate?
Interest that gives the holder the right to present possession.
What is a fee simple absolute?
Estate that:
1) is freely devisable, descendible, and alienable
2) is presumed to continue indefinitely.

**Presumed absent contrary intent.
What is a fee simple defeasible?
Fee Simple Estate that can be terminated upon the happening of some stated event.
What are the 3 types of fee simple defeasables?
1) Fee simple determinable
2) Fee simple subject to condition subsequent
3) Fee simple subject to as executory limitation
What is a fee simple determinable?
A fee simple which automatically reverts to the grantor when when a stated event occurs or fails to occur.
Can a fee simple determinable be conveyed?
Yes, but grantee takes subject to the possible termination.
How is the fee simple determinable created?
Only by words limiting the duration of the state, such as "while," "so long as," or "until."

**eg, terms such as "to be used for" are simply expression of motive not limits of duration.
What is the possibility of reverter?
A reversionary future interest, which the grantor automatically retains when he conveys a fee simple determinable.
What is a fee simple subject to condition subsequent?
An estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event.

**ie, does not automatically terminate - grantor must take some action.
What is the right of entry?
Future interest reserved by the grantor of fee simple CS, giving the grantor the right to terminate the estate on the happening of the event.

**Not automatic, must be expressly reserved.
What is the fee simple subject to executory limitation?
A fee simple estate that terminates upon the happening of a state event and then passes to a third party.

**Correlative future interest is an executory interest.
What is a fee tail?
An estate where inheritability is limited to lineal heirs.

**created by the words "to B and heirs of his body"
Are fee tails still recognized?
Most states have abolished them, and an attempt to create one will result in a fee simple.
What is a life estate?
Estate that is measured by the lives of one or more persons.

**Correlative future interest is either a reversion, remainder, executory interest.
What is a life estate pur autre vie?
Life estate measured by a life other than the grantee's (eg, to B for the life of C).
Can life estates be defeasible?
Yes, although they generally are not. (eg, to A for life, but if A is divorced, to B).
What are the 2 rights and duties of a life tenant - doctrine of waste?
1) A life tenant is entitled to ordinary use and profits from the land, BUT

2) Cannot do anything that injures the remainderman or reversioner. (eg, waste)

**Future interest holder may sue for damages or enjoin such acts.
What is affirmative waste?
Exploitation of natural resources by the life tenant constitutes waste, the actual overt conduct that causes a value decrease
What is permissive waste?
Occurs when the life tenant fails to:
1) preserve the land and structure,
2) pay the interest on mortgages,
3) pay ordinary taxes on the land, OR
4) pay special assessments of a short duration

**Not responsible to insure or for the damages of a 3rd party tort-feasor.

**Duty to repair or pay taxes is only to the extent of rents/profits or FMV rent if T occupies
What is ameliorative waste?
A change that benefits the property economically.

**The life tenant must not engage in acts that will enhance the property's value, unless all of the future interest holders are known and give consent

**NY: By statute, a life tenant may make reasonable improvements unless the remaindermen object
When may a life tenant alter or demolish the existing buildings?
1) The market value of the future interest is not diminished, AND EITHER

2) The remaindermen do not object, or
3) A substantial and permanent change in the neighborhood has deprived the property of usefulness.
What happen if a life estate is renounced?
The future interest following the estate become immediately possessory.
What is a future interest?
Gives the holder the right or possibility of future possession of an estate.

**It is a present, non-possessory, legally protected right in property.
What are the five types of future interests?
1) The possibility of reverter,
2) The right of entry
3) The reversion
4) The remander
5) The executory interest
What is the possibility of reverter?
Follows a fee simple determinable, and is automatically retained by the grantor. Property automatically reverts to grantor on occurence of the condition.
What is the right of entry?
Follows a fee simple condition subsequent, and gives grantor the right reclaim the property upon occurrence of the condition.

**Can be retained only by the grantor.
What is a reversion?
A future interest that arises in a grantor who transfers an estate of lesser quantum than he started with.
Estate left in the grantor who conveys less than he owns. (eg, "to B for life", A has a reversion.)

**Arises by operation of law and is alienable, devisable, and inheritable.
What is a remainder?
A future interest in a 3rd person that can become possessory on the natural expiration of the prior possessory interest created in the same conveyance in which the remainder is created

**Cannot divest a prior estate and cannot follow a time gap.

**eg, "G to A for life, then to B." B has a remainder.
How is a remainder created?
By express words in the same instrument that conveys the possessory interest. (eg, "to B for life, then to C and his heirs")
What is the difference between a remainder and a reversion?
The remainder is created in a 3rd party. Reversion is in the grantor. **ie, they're the same thing except for who the interest goes to.
What is a vested remainder?
Remainder created:
1) In an existing and ascertained person, AND
2) Not subject to a condition precedent.

**The vested remainder is indefeasible if not subject to divestment or diminution.
What is a vested remainder subject to open?
Vested remainder in a class of persons that is certain to become possessory but subject to diminution (by adding members to the class); vested in a group of takers at least one of whom is qualified to take possession
What is a vested remainder subject to total divestment?
Vested remainder subject to condition subsequent.

**Not a condition precedent - that would mean the remainder is not vested.
What is a contingent remainder?
Remainder that is:
1) created in unborn or unascertained persons, and/or
2) subject to condition precedent.

**ie, a remainder that is not yet vested.
What happens if a contingent remainder fails to vest before or upon the termination of the preceding freehold estate?
Under the CL Doctrine of Destructibility, contingent remainders are destroyed if they fail to vest before or upon termination of the preceding estate.

**States/NY have ABOLISHED the destructibility rules and the interest becomes executory.
What is the doctrine of merger?
When one person acquires all of the present and future interest in land except a contingent remainder, the contingent remainder is destroyed. eg, to A for life, then to A's child if he reaches 21, remainder to B. If A sells to B, the contingency is destroyed.
What is the importance of vested v. contingent remainders?
It makes a difference for: 1) RAP - Vested remainders are not subject to it
2) Transferability - At CL, contingent remainders were not transferable inter vivos
3) Destruction
What is the "Rule in Shelly's Case"?
At CL, if the same instrument creates a life estate in A and gave a remainder only to A's heirs, the remainder was not recognized and A took the life estate and remainder.

**Abolished in most states and NY
What is the "Doctrine of Worthier Title"?
A remainder in grantor's heirs is void and becomes a remainder to the grantor.

**Eg, "G to A for life, remainder to G's heirs." Creates an alienable remainder in G.
What is an executory interest?
Future interest (like Dr. Evil) created in a transferee (3rd Party), which is not a remainder and which takes effect by either cutting short some interest in another person (“shifting”) or in the grantor or his heirs (“springing”).

Eg, In a grant from A "to B and his heirs when B marries C", B has a springing executory interest because it cuts short the grantor's estate.
What is the difference between an executory interests and a remainder?
A remainder never cuts off a prior interest, where as a executory interest does divest or cut off prior to natural termination.
What is the transferability of remainders and executory interest?
1) Vested remainders are fully transferable and devisable.
2) Contingent remainders and excutory interest were not transferable inter vivos at common law
3) Contingent remainders and exec interests are devisable.

**Today, most courts hold CRs and EIs are freely transferable.
What is a class gift?
A gift to a group of persons having common characteristics. **Share is determined by the number in the group.
What is the Rule of Conveyance?
In absence of contrary intent, a class closes when some member of the class become entitled to call for distribution of his share. (Person in gestation at the time the class closes are included).

**eg, to then B's children upon turning 21. Only children living are when the first child turns 21 are included in the class.
Is suviorship of class member necessary to share in a future gift?
No, unless survival was made an express or implied (eg, widow, heirs, issue) condition.
What interest do class members usually hold when a gift of future interest becomes effective?
Existing members have a remainder subject to open.

**Watch for a condition precedent that will prevent the remainder from opening. eg, A for life, remainder to B's children who survive A.
What is the Rule Against Perpetuities?
Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may best more than 21 years after the death of the measuring life

**life in existence is anyone named in the conveyance
What interests does the RAP apply to?
1) Contingent remainders
2) Executory interests
3) Vested remainders subject to open
4) Options to purchase
5) Powers of appointment
When does the perpetuities period begin to run?
1) For interests granted by will, it runs from the date of testator's death
2) For deeds, its the date of delivery
3) For an irrevocable trust, it is from the date created
4) For a revocable trust, it is from the day it becomes revocable

**Eg, for a Will the the lives in being will be determined on date of Testator death.
What does "Must Vest" mean?
When it becomes:
1) Possessory, or
2) An indefeasibly vested remainder or vested remainder subject to total remainder.
What does "Lives in Being" mean?
Unless other measuring lives are specified, one connected with the vesting of the interest is used.
What is the effect of violating the RAP?
Violation destroys only the offending interest.

**When a void interest is stricken, the interests are classified as if the void interest were never there.
How does the RAP affect an executory interest following a defeasible fee?
There will usually be a violation of the RAP and the executory interest is stricken.
Does an age contingency beyond age 21 in an open class violate the RAP?
Yes.
What is the fertile Octogenarian problem?
A women is presumed capable of bearing children regardless of ages; thus, a disposition of "to A for life, the A's children for life, then A's grandchildren in fee" is invalid, even A is 90.
What is the gift conditioned on administrative contingency problem?
A gift conditioned on some admin contingency (eg, admission to probate) violates the rule because it is possible the administration may take more than 21 years.
What is the rule against restraints on alienation?
Generally, any restriction on the transferability of a fee simple is void.
What are 3 types of restraints on alienation?
1) Disabling restraints - renders attempted transfers ineffective
2) Forfeiture restraints - attempted transfer forfeits interest
3) Promisory restraints - attempted transfer breachs a covenant.
When might restraints on alienation be upheld?
Restraints on fee simple estates for a limited time and reasonable time may be upheld

**Eg, restraint limited to joint life-times of co-owners as a reasonable way to ensure neither will have to reside with a stranger.
Do use restrictions constitute a impermissible restraint?
No.
Can an estate in land be held concurrently by multiple people?
Yes an estate in land can be held concurrently by several persons, all of whom have the right to enjoyment and possession.
What is a joint tenancy?
2 or more people own an undivided, single unified interest in a whole estate or personal property, with the right of survivorship
What are the 2 distinguishing features of a Joint Tenancy
1) Right of Survivorship (when one dies, the share passes automatically to the others)
2) Alienablility (but not devisable or descendable)
What are the 4 common law requirements for creation of a joint tenancy?
The joint tenants must clearly express right of survivorship AND 4 unities (TTIP)
T – at the same Time
T – by the same Title
I – Identical, equal interests
P – Identical rights to Possess the whole

**ie, interests must be equal in every way, where as tenancy in common need not.
How may a joint tenancy be severed?
SPaM:
S – Sale (sale or transfer of the interest during her lifetime)
Pa – Partition (either by voluntary agreement, partition in kind, or forced sale by the court)
M – Mortgage

**Lien theory of Mortgage in NY, a joint tenant's execution of a mortgage on his or her interests will not sever the joint tenancy (only when the mortgage is foreclosed)
What is the effect of severance of a joint tenancy?
When severance occurs, a tenancy in common results
Does a granting of a mortgage sever the joint tenancy?
1) Title theory states - treated as a conveyance and severs
2) Lien theory states - does not sever
Does a granting of a lease issued by one joint tenant sever the joint tenancy?
Not in most states.
What is a tenancy by the entirety?
Marital estate akin to joint tenancy. Can only be severed by death, divorce, mutual agreement, or execution by a creditor of both the husband and wife.
What is Tenancy in Common?
Each co-tenant owns an individual part & each has the right to possess the whole. A concurrent estate with no right of survivorship. Tenants may hold equal shares.

**Presumption in favor of tenancy in common and presumption of equal shares.
What is the right to posession among co-tenants?
Each has the right occupy the entire premises, subject only to a similar right of the others.

**Parties can make an agreement contrary.
When can a co-tenant bring a possesory action?
Only whe he is ousted (ie, the occupying tenant refuses to permit the other tenant equal occupancy).
How must rents and profits from the proprerty be divided?
1) Co-Tenant can retain profit from own use of property
2) Co-Tenants must split rents from 3rd parties or profits from exploiting the land.
Can a co-tenant encumber his interest (eg, mortgage)?
Yes, but may not encumber other co-tenants.
Can a co-tenant bring an action for partition?
Yes, the court will either divide the property or order it sold and have the proceeds distributed.

**Not available for tenancy by the entirety.
What are co-tenant's duties regarding repairs?
A co-tenant who pays more than his share pro-rata is entitled to contribution from other tenants.
What are co-tenant's duties regarding improvements?
There is no right to contribution for the cost of improvements unless there is a partition.
What are co-tenant's duties regarding taxes and mortages?
Contribution can be demanded for taxes or mortgage payments paid on the entire property.

**A co-tenant in sole possession is limited to the extent that expenditures exceed the rental value of his use.
What is a leasehold?
An estate in land, under which the tenant has a present possessory interest in the leased premises.
What are the 4 types of landlord-tenant relationships?
1) Tenancy for years
2) Periodic tenancy
3) Tenancy at will
4) Tenancy at sufferance
What is a tenancy for years?
A lease for a fixed, determined period of time, where you know the termination date from the start

**Eg, A rents to B for 2 years.
How is a tenancy for years created?
Usually by written lease. (SOF requires writing if the lease is for more than 1 year.)
How is a tenancy for years terminated?
It automatically ends at its termination date.
What is the effect of a breach of covenants in TFY?
In most cases, L reserves a right of entry, which allows him to terminate the lease if T breaches any of the lease's covenants.
What is the effect of failure to pay rent in a TFY?
In many jurisdictions, L may (by statute) terminate the lease even in the absence of a reserved right of entry.
What is a Periodic Tenancy?
A lease that continues for successive intervals, until terminated by proper notice by either party
How is a periodic tenancy created?
1) Express agreement (eg, L leases to T month to month)
2) Implication (eg, L leases to T for $100 per month), or
3) Opp of Law (eg, T remains in possesion after experation and L treats it as a PT)
How is a PT terminated?
Automatically renewed until proper notice is given, usually one full period in advance. (eg, one full month in a month to month lease).
What is a tenancy at will?
A lease with no fixed period of duration
How is a TW created?
Express agreement that the lease can be terminated at any time.

**If the lease gives only the L the right to terminate, a similar right will be implied in favor of T.
How is a TW terminated?
Without notice:
1) any party with the power to terminate may do so, or
2) may occur by operation of law (eg, death, waste, etc.)
What is a tenancy at sufferance?
Tenancy that arises when the tenant wrongfully remains in possession after the expiration of a lawful tenancy.
How long does a tenancy at sufference last?
A tenancy at sufferance lasts only until L takes steps to evict T.
What is the hold-over doctrine?
If a tenant continues in possession after his right to possession has ended, L may;
1) Evict or
2) Bind T to a new periodic tenancy.
What will the terms be for a hold-over tenancy?
Generally the terms of the expired tenancy, unless L had already notified T of a rent increase.
What are the exceptions to the holdover doctrine?
L cannot bind T to a new lease if:
1) wrongfully possession only for a few hours or leaving a few items of personal property
2) delay is not T's fault (eg, severe illness), OR 3) it is a seasonal lease.
What is a lease?
Contract that governs the landlord-tenant relationship.
Are convenants of the lease independent?
Yes, if one party breaches, a covenant, the other party can recover damages but must still perform.
What are T's duties under a tenancy?
1) Duty to repair
2) Duty not to use premises for illegal purpose
3) Duty to pay rent
What is T's duty to repair?
Tenant cannot damage or commit waste on the leased premise

**Recall the 3 types of waste: Voluntary, permissive, or ameliorative.
What happens if the leased premises are destroyed through no fault of T or L?
Absent lease language or statute to the contrary, neither party has a duty to restore the premises, but T must continue to pay rent.
What if T specifically covenants to make repairs?
His duty will be higher than the duty implied by the law of waste.

**T has a duty to repair even ordinary wear and tear unless express excluded but no duty for structural repairs or fire unless expressly included.
What is T's duty not to use the premises for illegal purpose?
If T uses the premises for an illegal purpose, L may terminate the lease or sue for damages and obtain injunctive relief.

**Must be more than occasional unlawful conduct.
What is T's duty to pay rent?
At Common Law, rent is due at the end of each term. Modern leases usually contain a provision making rent payable at some other time.
What is the duty to pay rent if the lease terminates before the time originally agreed upon?
T must pay a proportionate amount of the agreed rent.
What is the effect if the security deposit is termed a "bonus"?
Generally, the deposit can only be held to the extent of actual damages, but if the deposit is termed a "bonus" L can keep the bonus if T is evicted.
What is L's duty if T is on premises but fails to pay rent?
Evict via the unlawful detainer statute or sue for rent.

**Common law you could only sue
Can tenant raise counter claims in a unlawful detainer suit?
No.
What is L's right when tenant unjustifiably abandons the property?
T is liable for rent lost by adandonment unless surrender is accepted.
What are the landord's duties to tenant?
1) Duty to deliver possession
2) Implied Covenant of Quiet enjoyment
3) Warranty of Habitability
4) No Retaliatory eviction
What is L's duty to deliver possession?
Most states require L to put T in actual possession of the premises at the beginning of the leasehold term.

**eg, L is in breach if he has not evicted the holdover tenant.
What is L's duty to provide quiet enjoyment?
Every lease has an implied covenant that neither L or a paramount title holder will interfere with T's quiet enjoyment and possession.
How will the implied covenant of quiet enjoyment be breached?
1) Actual eviction - excluded from the entire premises
2) Partial eviction - tenant is excluded from part of the premises
3) Constructive eviction - L does something or fails to do something that renders the property uninhabitable. By SiNG:
Si – Substantial Interference (attributable to L's actions or failure to act)
N – Notice (T gave notice of problem, and L failed to respond)
G – Goodbye (T vacated within a reasonable period oftime)
What's L's duty of implied inhabitability?
If L doesn't keep the home up to local housing code, T may:
1) Make repairs and offset the cost from rent
2) Terminate the lease
3) Abate rent to an amount equal to the fair rental value in view of the defects
4) Remain possession, pay in full and sue for damages
What is L's duty against retaliatroy eviction?
In many states L may not terminate lease in retaliation for T's exercise of legal rights.
When can T transfer his leasehold interest?
Absent express restriction in the lease, T may freely transfer his leasehold interest in whole or in part.
What is an assignment?
A complete transfer by the T of the remaining term of the least
What is a sublease?
Transfer where T retains any part of the remaining term (other than the right to reenter upon breach).
What are the consequences of assignment?
An assignee stands in the shoes of the original tenant, in a direct relationship with L. (privity of estate)
Does the original tenant remain liable for rent after assignment?
Yes, because the original tenant is in privity of contract.
Can an assignee reassign his leasehold interest?
Yes and his privity of estate ends. (ie, not liable for a subsequent assignee's failure to pay)
What are the consequences of a sublease?
The sublessee is a tenant of the original lessee and pays rent directly to the original lessee.

**Sublessee not personally liable to the lessee.
What is the effect on the sublease if L terminates the lease?
The sublease automatically terminates with the lease.
What are the rights of the sublessee?
Cannot enforce any covenants made by L in the main lease except for implied habitability.
How are covenants against assignment or sublease construed?
Generally strictly construed against the landlord.
What is the effect of waiver of such a covenant?
Vaild covenant is waived if L knows and does not object, and once waived it is waived for all future transfers unless expressly reserved.
What is the effect of a transfer in violation of the lease?
If T assigns or subs in violation of the lease, the transfer is not void. L may only terminate lease or sue for damages.
What is the effect of L's assignment?
1) The assignee is liable for all covenants
2) The original L is still liable on all of the covenants made in the lease.
What is the tort liability of L?
Landlord has no duty to make the premises safe except for the CLAPS exceptions
What is L's general duty of reasonable care?
Many courts also now hold L owes a general duty of reasonable care toward residential tenants, and is liable for negiligence in failing to repair a defect he had notice of and opportunity to repair.
What is T's tort liability?
See Torts.
What is a fixture?
A chattel that has been so affixed to the land that it has ceased being personal property and has become part of the realty. Eg, a house
How do fixtures pass?
With the ownership of the land.
What are nonpossessory interests in land?
Easements, profits, covenants, and servitudes are nonpossessory interests in land, creating a right to use land possessed by someone else.
What is an easement?
A grant of nonpossessory property interest that entitled its holder to some form of use or enjoyment of another's land

**Eg, lay pipe, access a road, etc.
How long does an easement last?
It is presumed to be of perpetual duration unless the grant specifically limits the interest.
What are the 2 types of easements?
1) Affirmative - holder make affirmative use of the servient tenement
2) Negative - entitles the holder to compel refrainment

**Negative easements are really covenants.
What is an easement appurtenant?
An easement is appurtenant when it benefits the holder in his physical use or enjoyment of another tract of land.
What is necessary for an easement to be appurent?
two tracts:
1) the dominant tenement (the estate benefited by the easement),
2) and the servient tenement (the estate subject to the easement right).
Does an easement appurtenant pass with transfer of the land?
Yes, regardless of whether it is mentioned in the conveyance.
What is an easement in gross?
The holder of an easement in gross acquires a right to use the servient tenement independent of his possession of another tract of land eg, right to erect a billboard
Is an easement in gross transferable?
Only if it serves an economic commercial interest.
How is an easement created?
Negative easement can only be created expressly. Affimative easements can be created by (PING):
P - Prescription
I - Implication
N - Necessity
G - Grant or Reservation
How is an easement created by express grant?
It is in writing and signed by the holder of the servient tenant.

**Unless it doesn't fall within the SOF
How is an easement created by express reservation?
When a grantor conveys title to land but reserves the right to use the land for a special purpose.

**Under the majority view the easement can only be reserved for he grantor.
How is an easement created by implication from existing use?
An easement may be implied if:
1) Prior to the division of a single tract,
2) An apparent and continuous use exists on the “servient” part,
3) Reasonably necessary for the enjoyment of the “dominant” part, and
4)Court determines that the parties intended the use to continue after division.
How is an easement created by implication w/o any existing use?
1) Subdivision - lots are w/ reference to a map that shows streets leading to lots
2) Profit a Pendre - Holder has implied easement to cross over the land reasonably necessary
How is an easement created by necessity?
Arises when a landowner sells a portion of his tract and by this division deprives one lot of access to a public road or utility line.

**The owner of the servient parcel has the right to locate the easement.
How is an easement created by prescription?
Acquiring an easement by prescription is analogous to acquiring property by adverse possession.

**Same requirements as adverse possession
What is the scope of an easement?
In the absence of specific limitations in the grant, courts assume the easement was intended to meet both present and future needs of the dominant tenement.

**eg, easement may widen to accommodate bigger cars
What is the remedy for misuse of an easement?
The appropriate remedy for the servient owner is an injunction against use.
How can an easement be terminated?
END CRAMP:
E – Estoppel due to reliance on oral expressions
N – Necessity that created the easement ends.
D – Destruction (of the servient land, other than through willful conduct of the servient owner)

C – Condemnation or involuntary destruction of the servient estate
R – Release (deed of release from the owner of the easement to the owner of the servient land)
A – Abandonment (holder demonstrates by physical action an intent to abandon the easement)
M – Merger Doctrine (If the same person acquires the easement and the servient estate)
P – Prescription (opposite of creating easement by prescription)
What are "Profits"?
Servitude entitling the holder of the benefit to take some resource (soil, timber, materials, fish, etc.) from the servient estate.
What are the rules governing creation, alienation, and termination of profits?
They are the same as with easements.
What is a real covenant?
Written promise to do or not do to something on the land.
Do real covenants run with the land?
Yes, which means that subsequent owners can enforce or be burndened by the covenants.
What are the requirements for a burden to run?
WITHN:
A successor in interest will be bound by the covenant if:

W – Writing (original promise must be in writing)
I – Intent to run
T – Touch & Concern (the covenant must touch and concern the land (ie, to do or not do something to the land))
H – Horizontal +Vertical Privity (the original parties had horizontal privity and vertical privity)
N – Notice (successor had notice at purchase)
What are the requirements for a benefits to run?
WITV:
W – Writing (original promise was in writing)
I – Intent for it to run
T – Touch & Concern (Covenant must touch and concern the land (ie: promised performance enhances enjoyment of the land))
V – Vertical Privity (some non-hostile nexus between A1 and A2 – like a suceeding possessory estate)
Do promises to pay money in connection with the land run with it?
Yes, if the money is to be used in connection with the land (eg: homeowners fees.
What is the remedy for breach of a real covenant?
Money damages are the only remedy.

**If an injunction is sought, the promise must be enforced as as equitable servitude.
How can a covenant be terminated?
As with all other servitudes, a covenant may be terminated by
1) a written release
2) merger
3) condemnation or destruction
What is an equitable servitude?
A covenant that, regardless of whether it runs with the land, equity will enforce against the assignees of the burdened land who have notice of the covenant.
How is as equitable servitude remedied?
Usually by injunction.
What is the difference between a real covenant and equitable servitude?
Basically the difference is the remedy that can be sought. To seek an injunction, the requirements for enforcement as an equitiable servitude must be met.
How is an equitable servitude created?
WITN:
T – Touch & Concern (Covenant must touch and concern the land)
I – Intent that promise was enforceable by and against assignees
N – Notice (assignees of the burdened land had notice of the promise)
W – Writing (original promise should generally be in writing)
Can an equitable servitude ever be implied?
Only a negative equitable servitude can be implied from a common scheme for developing a subdivison.
What are the requirements for burdensome equitable servitude to run?
1) Covenanting parties intended that the servitude be enforceable by and against assignees;
2) Successor of the promisor has actual, inquiry, or record notice of the servitude; and
3) Covenant touches and concerns the land
What are the requirements for beneficial equitable servitude to run?
promisee’s successors if:
1) the original parties so intended, and
2) the servitude touches and concerns the benefited property.
What are the defenses to equitable servitudes?
1) Person seeking enforcement is violating a similar restriction in his own land.
2) Benefited party acquiesced in a violation of the servitude by one burdened party
3) Benefited party acted in a way to make it reasonable to believe the servitude was abandoned
4) Fails to bring suit a reasonable time
5) Change to the area has been so significant that enforcement would be inequitable.
What is adverse possession?
A way to acquire real property via operation of the statute of limitations for trespass. Ie: If an owner does not, within the statutory period, take action to eject the trespassor, title vests in that person.
What are the requirements for adverse possession?
COAH:
C – Continuous
O – Open & Notorious
A – Actual & Exclusive Possession
H – Hostile (no permission to be there)
When does the SOL begin to run?
When the owner first can bring suit.
What constitutes open and notorious possession?
Occupation must be sufficiently apparent to put the true owner on notice of tresspass.
What constitutes continous possession?
Constant use by the claimant is not required as long as possession is of a type that the usual owner would make.

**Need not be by one person either. Can tack onto predecessors but privity is required.
What is effect of disability of the owner?
The SOL does not begin to run if the true owner was under some disability to sue when the COA first occurred. (eg, minority, imprisonment, etc).

**Note: If the disability arises after the COA has accrued, the SOL will not be tolled.
What is the effect of adverse possession on future interest?
The SOL does not run against a future interest holder until the interest is possessory.
What is the adverse possessor's duty with regard to restrictive covenants?
If an adverse possessor uses the land in violation of a restrictive covenant, she takes free of the covenant. Otherwise she takes title subject to it.
What land cannot be adversely possesed?
Title to government-owned land and land registered under a Torrens system.
What is conveyancing?
The process of transferring real property, which usually consists of:
1) A land sale contract (which endures until closing), and
2) Closing (when the deed becomes operative).
What is the land sale contract?
Contract that preceeds most transfers of land.
What is the doctrine of equitable conversion?
Once a contract is signed, equity regards the buyer as the "owner" of the real property.

**The legal title that remains in seller is considered held in trust for the buyer.
Who bares the risk of loss under equitable conversion?
Usually the buyer
What is marketable title?
Every contract contains an implied warranty that the seller will provide a title reasonably free from doubt at closing, without any encumberances
Is a title by adverse possession marketable?
Not for the purposes of the MBE.
What is the effect of liens, restrictive covenants, and easements on marketability?
Generally render the title unmarketable.
When is marketability measured?
Generally the date of closing. Date of last payment in a land installment contract

**If an MBE answer refers to marketability sometime after closing it usually wrong.
What is the remedy if the title is not marketable?
1) The buyer must notify the seller and give him reasonable time to cure the defects

2) If seller fails to cure, buyers remedies include rescission, damages, specific performance w/ abatement, and a quiet title suit.
Does a quitclaim deed affect the warranty to provide marketable title?
No, it does not let the seller off the hook for defects.
What is the generally rule for time of performance of a land sale contract?
Courts presume time is "not of the essence" (ie, closing date is not absolutely binding if tendered w/in a reasonable time)
When will the "time is not of the essence" presumption be overcome?
1) The contract so states,
2) The circumstances indicate that was the intent, or
3) One party gives the other notice that time is critical.
What is the liability if time is of the essence and a part fail to render performance on closing?
The party who fails to tender performance is in breach and may not enforce the contract.
What type of conditions are obligations under a land sale contract?
Concurrent, meaning neither party is in breach until the other tenders performance.

**If neither party tenders on closing date, the date is extended until one of them does
What are the remedies for breach of a sale contract?
Damages or specific performance.

**Damages are the difference between K price and market value on date of breach.
What is the sellers liability for defective property?
Seller may be liable for existing building defects on grounds of misrepresentation, active concealment, or failure to disclose.

**No implied warranty of quality or fitness for purpose
Are disclaimers of liability effective?
General disclaimers in the sales contract are not sufficient to overcome a seller's liability for fraud, concealment, or failure to disclose.
When are real estate agents entitled to commission?
The modern trend is to award commission only if the sale actually occurs or fails because of the fault of the seller.
What is the deed?
Deeds transfer the title to an interest in real property.
What requirements must be meet for the deed to be effective?
1) Be in writing,
2) Signed by the grantor, and
3) Reasonably identifies the parties and the land.
When will a void or voidable deed be set aside?
1) Void deed will be set aside even if the property has passed to bona fide purchaser
2) Voidable deeds will be set aside by the court only if the property has not passed to a bona fide purchaser.

**Void deeds include those that are forged, obtained by fraud, etc. Voidable deeds are those by minors, incapacitated, duress, etc.
What would happen if a joint owner attempted to convey property by forging the signature of the owner?
1) The conveyance would be valid as to the interest of owner with valid signature
2) Void as to the other owner
When may a deed be set as a fraudelent conveyance?
It may be set aside by the grantor's creditors if it was made:
1) With the actual intent to hinder, delay, or defraud; or
2) Without receiving reasonably equivalent consideration and debtor was insolvent.
What constitutes a sufficient land description for a deed?
It must provide a good lead to the indentity of the property.
What is the order of priority where descriptions are inconsistent?
1) Natural monuments,
2) Artificial monuments
3) Courses (ie, routes)
4) Distances
5) Name
6) Quantity
When is a deed effective?
Only after it has been delivered and accepted.
What is delivery of a deed?
Grantor's intent to make a deed presently effective even if possession is postponed.

**eg, manual delivery, notarized acknowledgment, recording, etc
What is the effect of retention of interest by grantor or conditional delivery?
It indicates lack of intent, and the title will not pass even if the deed is executed because there's no delivery.

**A properly executed and delivered deed that provides title will not pass until grantor's death is valid and creates a future interest.
What are the 7 real defenses that a holder in due course is subject to?
MAD FIFI4:

MA - Material Alteration
D - Duress
FIF - Fraud in Factum
I - Incapacity
I - Illegality
I - Infancy
I - Insolvency
What is acceptance of the deed?
Completes a conveyance and usually is presumed after delivery.
What is dedication?
Transfer of land to a public body by written/oral statement, map showing land, or opening the land for public use.
How may a dedication be accepted?
1) formal resolution
2) approval of plot or map
3) actual assumption of maintenance or improvements
What are the 3 types of deeds?
1) general warranty deed
2) special warranty deed
3) quitclaim deed

**Real covenants are different in that they do not relate to title.
What are covenants for title?
Covenants that relate to title and are usually found in deeds. **Real covenants are different in that they do not relate to title.
What are the usual covenants in general warranty deeds?
1) Covenant of Seisin (title and possession)
2) Covenant of Right to Convey
3) Covenant against encumbrances
4) Covenant for quiet enjoyment
5) Covenant of warranty
6) Covenant for further assurances
Who may the last grantee sue if he is evicted by lawful claim of title?
Anyone up the line.
What a special warranty deed?
In many states, using the word "grant" in a deed creates assurances that:
1) the grantor has not conveyed the same estate or interest to anyone else, and
2) that the estate is free from encumbrances made by the grantor.
What is a quitclaim deed?
A quitclaim deed releases whatever interest the grantor has and no covenants of title are included or implied.
What is estoppel by deed?
If the grantor purports to convey an estate in property that he does not then own, his subsequent acquisition of the estate will injure to the benefit of the grantee.

**Not applicable to quitclaim deeds
How does estoppel by deed affect subsequent purchasers?
If the grantor transfers his after-acquired title to a bona fide purchaser for value, the BFP will prevail over grantee.
What is the original grantee's remedy in estoppel by deed?
Can accept title or sue for damages for breach of covenant.
What are recording acts?
Protects all bona fide purchasers from secret interests previously created and provide a mechanism for earlier grantees to give notice through recordation.
What do recording act statutes require?
That a grantee record his deed to put others on notice.
What can be recorded?
Any instrument creating or affecting an interest in land can be recorded, provided it is notarized.
Who has the burden of proving qualification for protection under a recording act?
The subsequent taker.
What protection is provided by a notice statute?
A subsequent BFP prevails over a prior grantee who fail to record.

**key is no actual or constructive notice.
What protection is provided by a race-notice statute?
A subsequent BFP is protected only if he takes without notice and records before the prior grantee.
What protection is provided by a race statute?
Whoever records first wins and notice is irrelevant.

**only 2 states use race statutes.
Who is protected by recording acts?
Only bona fide purchasers are protected under notice and race-notice statutes.
What are the requirements to be a BFP?
Must be:
1) A purchaser,
2) Without actual or notice, and
3) Pays valuable consideration
When is a purchase "for value"?
1) Okay if less than FMV, but still requires "substantial pecuniary consideration"
2) Donees, heirs and devisees do NOT qualify as BFPs (NOT protected)
When is a person said to be on constructive notice?
1) Buyer has a duty to inspect premises before transfer of title and is responsible for what an examination of the land would reveal
2) If a recorded instrument makes reference to an unrecorded transaction—Buyer is on inquiry notice of whatever a reasonable follow up would have revealed
What is record notice?
A buyer is on notice of properly recorded deeds with in the chain of title.

**Chain is generally established by through a title search of grantor-grantee index
What is "wild deed"?
Arises when the transferee in chain of title fails to record.

**Incapable of giving record notice of its existence and is a nulity
What is the effect of a late recording?
A deed recorded after the grantor has passed title through a subsequent instrument is not constructive notice in most states.
What is the effect of a recorded deed received from a grantor who had no title when conveyed but later obtains title?
1) Most court say it does not impart constructive notice to subsequent purchasers
2) Some protect the grantee over BFP on an estoppel by deed theory.
What is an effect of a mistake by the recorder?
It is considered recorded when filed with the office, regardless of whether properly indexed.

**BFP may have cause of action against the recorder's office.
What is a possessor's right?
The possessor of land has the right to be free of trespass & nuisance
What is trespass?
The invasion of land by a tangible physical object
What is nuisance?
The substantial and unreasonable interference with another's use and enjoyment of the land
What is eminent domain?
Government's 5th A power to take private property for public use in exchange for just compensation
What are the 2 types of takings?
1) Explicit takings (an act of gov. condemnation)
2) Regulatory takings (by gov. regulation)
What are the 2 remedies for regulatory takings?
1) Compensation of the owner for the taking
2) Termination of the regulation & payment of the owner for damages that occurred while the regulation was in effect
What is zoning?
Governmental controls of land use pursuant to police powers
What is variance in zoning?
the principal means to achieve flexibility in zoning, permitting landowners to depart from requirements of the zoning ordinance
Are non-conforming uses allowed in zoning?
Non-conforming uses cannot be eliminated all at once unless just compensation is paid
What is mortgage?
Any conveyance of land intended by the parties at the time of the making to be security for the payment.
What is the statute of frauds for a mortgage?
To be enforceable, a mortgage must be in writting and signed by the mortgagor or an agent.
What is an equitable mortgage?
Certain security transactions in land that do not satisfy the requirements of legal mortgages may still be enforceable as equitable mortgages.
What is the priorty for an equitable mortgage?
An equitable mortgage is entitled to preference over subsequent judgment creditors, but will be cut off by a bona fide purchaser.
When well a deed conveyancing property be construed as a mortgage?
If there is any written instrument that makes it appear that the legal deed was intended to create a mortgage.

**Even in the absence of such other written instrument, a mortgagor may prove that there was such an intention via parole evidence.
What may a mortgage secure?
Any existing monetary obligation or obligation capable of being reduced to equivalent.

**Includes preexisting debts and debts to one other than the mortgagro
Can a mortgage secure advances to be made in the future?
Yes.
What property is subject to a mortgage?
Any transferable interest in real property may be mortgage.

**Fee simple, life estate, ones spouse in a tenancy.
What defenses are applicable to a mortgage?
A mortgage is subject to the same kind of defenses are are available against assertion of the underlying obligation that the mortgage secures.

**An action for foreclosure may be sustained even though the note is illlegal or tainted by fraud.
What is the defense of usury?
In New York, usury serves as a defense available against actions both for principal and for interest if the mortgagor is not a corporation.

**Usury laws prevent charing of really high interest rates
What is the outcome of a conflict between the note and the mortgage?
The provisions of the note control.
What are the rights of the mortgagee (lender) to the land?
A mortgagee merely has a lien, and is not automatically entitled to possession.

**May take possession until the debt is paid if mortgagor gives express or implied consent.
What are the rights of the mortgagor (borrower) to the land?
The mortgagor has right to possession until for foreclosure.
What are the duties of the mortgagor (borrower) to the land?
May not commit waste or in any way impair the value of the property.
Is notice a mortgage necessary to bind a recording purchaser of property?
Yes, the mortgaee must record or risk losing his lien if an assignee of property records.
Can the mortgagee make transfers?
Transfer of a mortgage and note may be effected by delivery.
Can you assign the mortgage without the note?
No, because the mortgage is collateral to the note. Such an assignment will be void.
What is the effect if the mortgagor transfers the property subject to the mortgage?
If mortgaged property is transferred “subject to the mortgage,” the property becomes the primary source for payment of the debt; the original mortgagor continues to be liable on the bond.
What is the effect if the mortgagor transfers the property and the transferee assumes the mortgage?
If property subject to a mortgage is transferred to one who assumes the mortgage, the transferee becomes the primary obligor; the original mortgagor is liable only secondarily.
What does assumption of the mortgage require?
Requires that the party assuming the mortgage execute and acknowledge
1) a writing stating that she assumes and agrees to pay the mortgage debt and stating the amount of the debt or
2) a deed reciting the assumption of debt and the amount of the debt.

**Assumption does not relieve the original mortgagor of his obligation on the bond
What is the effect of a transfer from the mortgagor to the mortgagee?
If the value of the property is equal to the remaining debt secured by the mortgage, the conveyance satisfies the bond and mortgage.
What is the effect of transfer of property upon the death of a mortgagor?
If a decedent’s property is encumbered by a mortgage, the beneficiary takes it subject to the mortgage.
What is a due on sale clause?
A mortgage provision stating that the principal becomes due at the mortgagee’s option in the event of a sale or conveyance is enforceable.
What are the mortgagees remedies when the mortgage debt is due and unpaid?
The mortgagee may either sue on the debt or foreclose the mortgage.
Can a mortgagee bring a foreclosure action if has alread sued on the debt?
By statute, the mortgagee who has brought suit on the debt may begin the foreclosure action only if he has a judgment on the debt and that judgment is unpaid.
What is a judicial foreclosure action?
An action brought by a mortgagee to foreclose the exercise of what is otherwise the equitable right of the mortgagor—to redeem the property from the mortgagee by tendering payment.

**The mortgagor retains this right until the moment of sale pursuant to a judgment of foreclosure.
What is the requirement to bring a foreclosure action?
A foreclosure action may be brought upon any default on payment of the debt that the mortgage secures.
Are acceleration clauses valid?
If the parties so agree, nonpayment of principal or interest can effect an acceleration of the debt so that the entire principal becomes due.
When is foreclosure prohibited?
A foreclosure is prohibited if:
1) the mortgage was secured to pay for legal fees in a matrimonial action,
2) it is on the mortgagor’s primary residence, and
3) the mortgagor remains the titleholder.
What is the effect of a foreclosure sale?
It is the sale, and not the judgment, that extinguishes all subordinate interests of persons included as defendants in the foreclosure proceedings.
What title does a purchaser at foreclosure sale take?
The purchaser at a foreclosure sale acquires a title clear of any claim of the parties to the foreclosure action—a title that reverts back to the date of the mortgage, cutting off any intervening rights. The mortgagee
What is a deficiency judgement?
If sale proceeds are less than the judgment in the foreclosure action, and if the mortgagor was personally served in the foreclosure action, the mortgagee can ask the court for a defi ciency judgment. Demand for such judgment must be made within 90 days of sale.
When must demand for a deficiency judgment be made?
Demand for such judgment must be made within 90 days of sale.
Is there a right of redemption in NY?
In New York, there is only an equitable right of redemption prior to sale; there is no statu tory right of redemption after sale regardless of who buys at the sale.
When is it possible for the mortgagee to foreclose by advertisement?
It is possible for the mortgagee to foreclose the equity of redemption without recourse to judicial action if:
1) the mortgage contains a power of sale;
2) default has occurred which under the mortgage gives the mortgagee the power of sale;
3) no action has been brought on the debt;
4) the mortgage is recorded; and
5) the first “advertisement” is made within the limitation period for judicial foreclosure.

**The mortgagee must advertise at least once each week for 12 weeks
What are the basic priority rules in absence of recording?
1) Priority in time is priority in right except that
2) a subsequent legal mortgage that is accepted in good faith, without notice, and for value will have priority over a prior equitable mortgage.
How does the recording act affect priority?
1) A purchase money mortgage has priority over other mortgages recorded at the same time,
2) A mortgage securing antecedent debt is valid, but mortgagee is not a purchaser for value (ie, rights will inferior to prior unrecorded mortgage even if recorded first)
What is the priority of a judgement creditor?
A docketed lien of a judgment creditor is superior to subsequent mortgages whether or not recorded, but is inferior to prior mortgages whether or not recorded.
What is lateral support?
The ownership of land including the right to have the land supported in its natural state by adjoining land
What is the riparian doctrine?
The water belongs to those who own the land bordering the water course
What is the prior appropriation water doctrine?
The water belongs initially to the state, but the right to divert it & use it can be acquired by an individual, regardless of whether he is a riparian owner
What is the property ownership of ground water?
The surface owner is entitled to reasonable use of the water beneath the surface (not confined to a known channel) BUT his use must not be wasteful
What is surface water?
Water that comes from rain, springs, or melting snow and which has not yet reached a natural watercouse or basin
What is the common enemy rule?
A landowner may change the drainage of water or make any other changes or improvements on his land to combat the flow of surface water because it is considered a bad thing
What kind of estate is created with: “To A” ?
Fee simple absolute
What kind of estate is created with: “To A and his heirs” ?
Fee simple absolute
What is devisable?
It can pass by will
What is descendable?
It can pass by the statutes of intestacy if the holder dies intestate
What is alienable?
It can be transferred inter vivos (during the holder's lifetime)
What kind of estate is created with: “To A and his heirs of his body” ?
fee tail
Is the fee simple absolute accompanied by a future interest?
NO, a living person has no heirs
Does a fee tail accompany a future interest?
YES, for the grantor, a reversion; for a 3rd party, a remainder
What kind of estate is created with: “To A for so long as...” ?
A fee simple determinable
What kind of estate is created with: “To A during ...” ?
A fee simple determinable
What kind of estate is created with: “To A until...” ?
A fee simple determinable
Can the fee simple determinable be devisable, descendable, and determinable?
YES
What is the fee simple determinable subject to?
Always subject to the condition
Does the fee simple determinable accompany a future interest?
YES, there is a possibility of reverter in the grantor (FSDPOR)
What kind of estate is created with: “To A, but if X event occurs, grantee reserves the right to reenter and retake” ?
Fee simple subject to condition subsequent
What kind of estate is created with: “To A, but if X event occurs, then to B” ?
Fee Simple subject to executory limitation
What are the 3 defeasible fees?
1) Fee Simple Determinable
2) Fee Simple Subject to Condition Subsequent
3) Fee Simple Subject to Executory Limitation
Does a fee simple subject to executory limitation accompany a future interest?
YES, the shifting executory interest
Does a fee simple subject to condition subsequent accompany a future interest?
YES, the right of entry, synonymous with the power of termination

**NY: the right of reacquisition
What kind of estate is created with: “To A for life” ?
A life estate
What are the 4 exceptions to Affirmative waste (when the life tenant may purge the land)?
PURGE:
PU – Prior Use
R – Reasonable Repairs
G – Grant
E – Exploitation
Does a life estate accompany a future interest?
YES, if held by grantor, a reversion; if held by 3rd Party, a remainder
What are the 2 types of remainders?
1) Vested Remainder
2) Contingent Remainder
What are the 3 types of vested remainders?
1) Indefeasibly Vested Remainders
2) Vested Remainders Subject to Complete Defeasance/Total Divestment
3) Vested Remainders Subject to Open
What is an indefeasibly vested remainder?
The holder of this remainder is certain to acquire the state in the future, with no strings or conditions attached
What interests does the RAP NOT apply to?
1) Reversions (any future interest in O, the grantor)
2) Indefeasibly vested Remainders
3) Vested Remainders Subject to Complete Defeasence
4) Charities
What does the use of straw mean?
To satisfy all the requirements of creation, the grantor conveys land to a strawman, who then conveys back to himself and another person as joint tenants with rights of survivorship
What tenancy is created by “to T until 1 year from now” ?
Tenancy for years
What tenancy is created by “to T from month to month” ?
Periodic tenancy
What tenancy is created by “to T for as long as landlord or tenant desires”?
Tenancy at will
In NY, how many days written notice must a landlord give in a tenancy at will?
30 days
What the exceptions to tort liability of a landlord?
CLAPS:
C – Common Areas

L – Latent Defects Rule (L must warn T of hidden defects that L has, or should have, knowledge of

A – Assumption of Repairs (Once undertaken, L must complete repairs with reasonable care)

P – Public Use Rule (when L leases public spaces that obviously cannot be repairs by T)

S – Short Term Lease of Furnished Dwelling (L responsible for any defective condition that proximately injured T)
What is a servitude?
A non-possessory interest in land, creating a right to use land possessed by someone else
What are the 5 types of servitudes?
1) Easement
2) License
3) Profit
4) Covenant
5) Equitable Servitude
What is a license?
A mere privilege to enter another's land for some delineated purpose **This is the weakest form of servitude
What is Horizontal Privity?
Refers to the nexus between the originally promising parties (A & B), requires that they be in “succession of estate” meaning that they were in a grantor-grantee / landlord-tenant / etc. relationship
What is Vertical Privity?
Refers to a non-hostile nexus between the A party and its successor (A1 & A2)
What is tacking?
When one adverse possessor may tack onto his time with the land his decessor's time, so long as there is privity, which is satisfied by any non-hostile nexus such as: Blood, Contract, Deed, or Will
What must the land contract have?
It must be:
1) In writing
2) Signed by the party against whom enforcement is sought
3) Must describe the land
4) State some consideration
What are 2 implied promises in every land contract?
1) Seller promises to provide marketable title
2) Seller promises not to make any false statements of material fact
Is NY a notice jurisdiction or a race-notice jurisdiction?
Race-notice jurisdiction
Can B still be a purchaser of value even if he paid less than the FMV?
YES, as long as B remits substantial pecuniary consideration
What are 3 forms of notice that a buyer may potentially be charged with for buying land?
AIR:
A – Actual notice of another purchaser's existence
I – Inquiry Notice of whatever inspection of the land would reveal
R – Record notice of another's deed properly recorded within the chain of title