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92 Cards in this Set
- Front
- Back
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O to A and his heirs
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- Fee simple absolute
- "and his heirs" is not required today - Devisable, descendible, and alienable |
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O to A and heirs of his body
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- C/L tradition: Fee tail
- not alienable - passes to the linear descendant of A - Under any circumstances - Modern: creates a fee simple absolute in A |
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Defeasible fees
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- fee simple determinable
- [NY: fee on limitation] - fee simple subject to condition subsequent - [NY: fee on condition] - fee simple subject to executory limitation |
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O to A so long as ...
O to A during ... O to A until ... |
- fee simple determinable
- [NY: fee on limitation] - automatically reverts to O if violated - O: possibility of reverter - "with the purpose/wish/hope" insufficient - O's interest not subject to RAP |
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O to A, but if ..., O has the right to re-enter and re-take
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- fee simple subject to condition subsequent
- [NY: fee on condition] - Right to re-enter and re-take: must be express - O: right of entry - [Power of termination] - [NY: right of re-acquisition] - Upon violation, O must take action - Not automatic reverting to O - O's interest not subject to RAP |
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O to A, but if ..., to B
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- fee simple subject to executory interest
- B: shifting executory interest - Upon violation, automatically goes to B - O: reversion (if any) - B's interest is subject to RAP |
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O to A for life
O to A for life, then to B O to A, and upon A's death, to B |
- A: life estate
- O: reversion - B: remainder - A is entitled to ordinary use and profits - A may not commit waste - A may transfer life estate - If transfer: life estate pur autre vie |
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Waste (real property)
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- affirmative, permissive or ameliorative
- affirmative/voluntary: overt act destroys value - permissive: neglection that destroys value - ameliorative: acts that increases value |
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Affirmative waste
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- life tenant may not exploit the land
- exception: open mines doctrine - exception: to the extent necessary to repair - exception: express authorization by grant - exception: expectation - only suitable use |
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Permissive waste
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- duty to maintain and protect the land
- only for reasonable repairs - pay ordinary taxes to the extent of: * profit/income * fair rental value |
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Ameliorative waste
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- C/L: committing ameliorative waste requires:
* knowledge by remaindermen * consent from remaindermen - NY: committing amelorative waste permitted, unless remaindermen object |
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Vested remainder
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Requirements:
- identified person/class - no condition precedent (CP) [No CP before or within same comma] |
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Types of vested remainder
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- indefeasibly vested remainder
- vested remainder subject to * complete defeasance [total divesture] * open [NY: remainder vested subject to complete defeasance] [condition after granting clause, separated by comma] |
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Rule of convenience
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Upon termination of preceding interest, when the remaindermen may claim possession, the class closes
[Womb's rule: unborn fetus at time of close may join if born alive] |
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Contingent remainder
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- Unidentified holder (except class)
- Condition Precedent to vesting [CP before or in the same comma] - [NY: remainder subject to condition precedent] |
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Rule of destructability of contingent remainder
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- Remainder destroyed if:
* Preceding interests terminates * Contingency unsatisfied - Abolished now: * O gets fee simple subject to EI * Remainderman: gets springing EI |
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Rule in Shelly's Case
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- It is by operation of law
* A gets present interests * A's heir gets "contingent" future interest * [Contingent because A has no heir when alive] - Grantor intent is irrelevant - Abolished today Tradition: - O grants "to A for life, then to A's heirs" - A receives a fee simple absolute Now: - A gets life estate - A's heir gets contingent remainder - O gets reversion |
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Doctrine of Worthier Title
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- It is a presumption
- Grantor may override by clear intent - O grants "to A for life, then to O's heirs." Tradition: - "to O's heirs" is void and O has reversion - O and A may transfer fee simple together Now (NY after abolishment 1967): - A gets life estate - O's heir gets contingent remainder |
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Executory interest
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- divesting O: springing
- divesting A: shifting [NY: remainder subject to condition precedent] |
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Restriction of alienability
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- Absolute restriction: void
- Nov void: * reasonable time limit * reasonable purpose |
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Rules against Perpetuities (RAP)
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- Applicable to:
* Contingent remainder * Vested remainder subject to open * Executory interests * Right of first refusal * Suspension of alienation - Not applicable to: * grantor interests * indefeasibly vested remainder * vested remainder subject to complete defeasance - Identify interest - Identify condition - Identify measuring life - Theoretically possible: life + 21 years - No: struck the future interest - If remaining part gramatically incorrect, delete the conditions as well. |
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RAP violations (flat situatons)
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- class gift contingent on members reaching an age beyond 21
- executory interest with no limitation on condition |
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RAP reforms
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- Second look: upon termination of preceding estate
- USRAP: 90-year alternative period - Cy pres: reform the grant to match grantor intent as nearly as possible - Reform age condition to 21 if violating NY: - Common law RAP - No second look, no USRAP - No cy pres - Reform age to 21 - Suspension of alienation within RAP - Women > 55 are infertile |
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Joint tenancy
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- Joint tenant has right of survivorship
- Four identities: * Identical time * Identical title (instrument) * Identical share * Right to possess the whole - Straw is necessary - Grantor must expressly provide right of survivorship, otherwise it is tenants in common - NY: no need of straw |
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Tenancy by the entirety
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- Only available between married couples
- Has right of survivorship - Conveyance to married couples presumed to be tenancy by the entirety (i.e. may change) - Creditor cannot reach the property - One spouse cannot convey title NY: - Creditor can reach one spouse' share - But subject to all rights of the other spouse |
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Tenancy in common
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- Has title in part of the property
- No need to be identical share - Has right to possess the whole - Tenancy in common may result from: * Express grant * Failure to create joint tenancy * Severance of joint tenancy |
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Severance of joint tenancy
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- One joint tenant sells property
- (even if sale did not close) - Partition - Mortgage severs: * In title theory jurisdictions * Not in lien theory jurisdictions (NY) |
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Tenant rights and duties (in joint tenancy / tenancy in common / tenancy by the entirety)
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- Right to possess the whole
- Wrongful eviction if excluding other tenants - No adverse possession if voluntarily absent - NY: 20 years adverse possession - No right to collect rent if voluntarily absent - Right to account if rent to 3rd party - May not commit waste - Partition |
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Partition (3 methods)
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- By agreement
- In kind through court - Forced sale through court Court may partition the property if it is in the best interest of all parties. |
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Waste (co-tenant)
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- Voluntary/affirmative waste
- Permissive waste: * co-tenant must repair the property * co-tenant contribution with notification * co-tenant must pay carrying costs (taxes) - Ameliorative waste: upon partition, co-tenant is entitled to credit if his efforts increased value, and is subject to damage if his efforts decreased value. |
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Four types of leaseholds
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- tenancy for years
- periodic tenancy - tenancy at will - tenancy at sufference |
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Tenancy for years (features)
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- Create by express grant
- Longer than 1 year: writing SOF - 1d to many years available - Notice not required to terminate |
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Tenancy at will (features)
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- Must be explicit
- Both parties have right to terminate - Reasonable notice necessary - NY: landlord must give 30d notice |
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Tenancy at sufference (features)
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- created for holdover tenants
- purpose: recover rent - terminate upon: * acceptance of holdover * successfully evict through court |
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Periodic tenancy (features)
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- May be of different periods
* week by week * month by month * year by year - Terminate with notice of at least one period - Notice be written - 6 months for year-to-year or above - Terminable only at the end of period - Creation: * Express * Writing w/o length but with rent * Accepting hold-over tenant * Tenancy for years failed for SOF - Periods implied by way of tender rent |
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Rights and duties of tenant (leasehold)
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- Pay rent. Landlord's remedy differs:
* tenant in possession * tenant not in possession - Not commit waste - Make ordinary repair - Liable to 3-P in tort - Assignment - Sublease |
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Tenant's liability to 3P in tort (leasehold)
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- T is liable even if L explicitly promise to repair
- T may sue L for indemnification under K |
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If tenant does not pay rent and is in possession, landlord's remedy
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Landlord may:
* Sue to evict and claim past due rent * Accept and sue for due rent - No landlord self-help * change premise (e.g. lock) * remove T's property * forcibly evict - If self-help: civil/criminal liability - NY: treble damages |
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If tenant does not pay rent and is not in possession, landlord's remedy
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- treated it as a surrender and accepts
* If remaining period > 1y: SOF * Acceptance deliver to last known dwelling - minority: do nothing and sue for rent - majority: try to sublease on behalf of tenant - NY: no need to try (let others come to you) |
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If tenant explicitly promises to repair and premises destroyed without fault of tenant
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- C/L: tenant must restore
- Now: tenant may terminate - NY: unless expressly provided otherwise, tenant may surrender the premise and stop paying rent |
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Tenant waste (leasehold)
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Removal of fixture is affirmative waste
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Fixture (real property)
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Fixture is movable property, when attached to realty, objectively show the intent to permanently improve the realty.
- Fixture belongs to owner of realty - Removal causes substantially damage: fixture - Otherwise: not fixture - K may provide recognition of fixture |
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Assignment of lease
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- contract may prohibit assignment
- if L consent to assignment, waived, unless expressly reserve right to deny future assignment NY: without agreement for residential lease: - assignment requires landlord's consent - L may unreasonably withhold consent - assignee in privity of estate - L may sue T2 for covenants on land - not in privity of contract - if assumes all responsiblity: in privity - assignor in privity of contract - L may sue T1 for covenants on K - T1 is secondarily liable to L |
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Sublease
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- contract may prohibit sublease
NY: in residential buildings >= 4 units - sublease requires L's consent - L may not unreasonably withhold - Unreasonable withhold = consent - after sublease: * L and T is in privity of K and estate * T and S is in privity of K and estate * No relationship between L and ST |
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Landlord's rights and duties (leasehold)
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- Delivery
* English rule: legal and physical * American rule: legal - if failed: T may sue for damages - Implied warranty of quiet enjoyment - Implied warranty of habitability - Constructive eviction - Caveat lessee |
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Implied warranty of quiet enjoyment (leasehold)
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- Residential and commercial
- Constructive eviction: * T must actually vacate * Severe interference * T must give notice to L - Landlord is NL for 3-P tort towards T: * L should not permit nuisance * L should control common area |
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Implied warranty of habitability (leasehold)
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- Only residential
- Bare minimum for living - Building code or cases for standard - Violate: * No plumbing * No running water * No heat in winter - Tenant remedy: * Reduce rent * Repair and deduct rent * Sue for damages * Vacate - L may not retaliate if T reports L for violation of housing code by: * increase rent * terminate lease |
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Landlord's liability for tort
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- Caveat lessee: no duty to fix
- Landlord is liable: * Defects in common area * Known latent defect: must warn * Landlord assumes to repair * Lease of public space * Short term, fully furnished lease |
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Servitudes (types)
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- Easement
- License - Profit - Covenants - Equitable servitudes |
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Easement (types)
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Holder has a non-possessory right to some form of use or enjoyment of the servient tenement.
- Affirmative easement - Negative easement (only by express grant) * Air * Water flow * Light * Support * Minority - scenic views - Easement appurtenant to dominant tenement - Easement in gross |
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Easement appurtanent to dominant tenement
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- Requires two parcel of land
* Dominant tenement gets benefit * Servient tenement has burden - Automatically follows transfer of land - Exception: BFP of servient tenement * For value * Without notice |
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Easement in gross
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- Only one parcel: servient tenement
- Not automatically transfer - Exception: for commercial use |
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Creation of easement
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- Express grant
* Requires writing for SOF if > 1y - Prescription (adverse possession) - Necessity (landlock situations) - Implication (divide and sell) NY SOL: 10y |
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Easement by prescription requirements
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- Continuous for SOL
- Open and notorious - Actual - Hostile (no permission) |
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Scope of easement
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- Determined by term of grant
- Condition giving rise to the easement - Owner of servient tenement may determine the location of the easement arising out of necessity. |
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Termination of easement
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END CRAMP
- Estoppel: * Holder represents no more use * Servient owner relied and changed - Necessity: necessity ends * Unless it is also by express grant - Destruction of servient tenement without fault - Condemnation of servient tenement - Release by holder in writing - Abandonment: * Physical act of holder * Showing intent to no longer use * Not mere non-use - Merge of dominant and servient lands * Not automatically revived - Prescription: COAH |
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Profit (real property)
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Holder has non-possessory right to enter into servient tenement to take out soil or soil products (timber, oil, minerals)
Same rules as easement |
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License (real property)
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Holder is granted the right to enter land for delineated purpose.
- May be oral (no SOF) * Ticket * Neighbor talking - License is freely revocable - Estoppel: relied and spent money and effort |
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Covenant (real property)
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Covenant: P sues for money damages
Types: affirmative/negative Requires: - Covenant runs on benefited tract - Covenant runs on burdened tract |
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Covenant runs on burdened parcel
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- Covenant in writing
- Intent to run - Touch and concern (i.e. relating to land) - Horizontal privity * Buyer-seller * Landlord-tenant * Mortgagor-Mortgagee - Vertical privity - Notice (actual, inquiry, record) |
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Covenant run on benefited parcel
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- Covenant in writing
- Intent to run - Touch and concern (relating to land) - Vertical privity (non-hostile) |
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Equitable servitudes (requirement)
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P sues for injunctive relief
- Writing - Intent to run - Touch and concern - Notice - Implied equitable servitude: general or common scheme doctrine |
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Implied equitable servitude (general or common scheme doctrine)
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- Applicable to holder who's not bound by written covenant
- general scheme including holder's land - Notice requirement: * Actual * Inquiry * Record MBE: record notice of others' deed NY: no record notice of other's deed |
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Adverse possession (land)
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Possession may ripen into title.
- Continuous - Open and notorious * Like an owner - Actual (in possession) - Hositle --- - MBE: good faith belief of ownership not required - NY: good faith belief of ownership is required - Lease of property to others is like an owner (open and notorious) and is in possession (actual) - NY: 20 years for co-tenant's possession |
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Land Transfer Requirement
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- Land contract
* Written * Citing consideration and tract * Signed by grantor - [SOF: part performance doctrine] - Lawfully executed and delivered deed |
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Land contract (real property)
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- Warranties of marketable title: no litigation or threatened litigation
* No violation of zoning regulation * No encumbrance at closing - Encumbrance: may be waived - If there is mortgage and buyer understand that proceeds will release mortgage, buyer may not use marketable title defense. - Warranty of full disclosure of material facts * Non-disclosure or fraud: void - No warranties of quality or habitability - Except if builder-seller: * workmenlike construction * quality |
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Risk of loss regarding land contract
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- Risk of loss transferred to buyer
* upon closing * equitable conversion: upon signing - NY: buyer assumes risks upon: * Getting possession * Obtains title (closing) |
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Deed execution and delivery (land transfer)
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- Writing required
- Citing unambiguously the land - No need to mention consideration - Signed by grantor - Delivery - Delivery is legal delivery - Showing present intent to transfer - No need of physical transfer - May by mail, messenger or agent - No need to put into grantee's hand - If rejected by grantee: not successful |
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Three types of deeds
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- Quitclaim deeds
- General warranty deeds - Statutory warranty deeds |
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Quitclaim deeds
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There is no warranty at all made by the grantor
There is not even warranty that grantor has marketable title Buyer may not resort to grantor |
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General warranty deeds
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Grantor guarantees no breach by him or predecessor.
- Present warranties - SOL runs from delivery * Grantor has seisin (i.e. ownership) * Grantor has right to convey * There is no encumbrance - Future warranties - SOL runs from breach * Quiet enjoyment (no double sale) * Defend * Further assistance - Right to convey: * Not subject to suspension of alienation * Not infant * Not insane |
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Statutory warranty deeds
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- NY: Bargain and Sale Deed
- Grantor only guarantee no breach by him Two warranties: - not to double sell - no encumbrance created by grantor |
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Recording statutes
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- Race-notice statute: BFP trumps prior buyer if BFP records first
- Notice statute: BFP trumps prior buyer, even if subsequent to BFP's purchase, prior buyer records earlier than BFP |
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Bona find purchase (for recording statutes)
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- Purchase for value
- Without notice * Actual * Inquiry (objective) * Record Inquiry notice if: - someone else in possession - deed mentions unrecorded transaction No record notice if: - Wild deed - Deed prior to grantor obtains ownership |
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Shelter rule
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- Grantee gets the same right as grantor
- It protects BFP - applies if threads of sale of land > 1 |
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Wild Deed
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- prior deed is unrecorded
- missing link in the chain of title - It does not give due record notice |
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Estoppel by deed
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- Grantor grants when lacking title
- Grantee records deed - Grantor later obtains title and record - Grantor later grants to second grantee - B/w grantor and grantee-1: grantee-1 - B/w grantee 1 and 2: grantee-2 |
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Mortgages requirement
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Deed:
- Writing * a note * a mortgage deed * a security interest in land * Sale and lease back * a deed of trust - citing land - Priority * recording statute determines priority * purchase money mortgage priority - Mortgagor has title and right to possess - Mortgagee has lien - Each party may transfer the interest |
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Equitable mortgage
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- Parties have intent to mortgage
- Delivers an absolute deed B/w parties: may use extrinsic evidence to prove the mortgage intent Mortgagee transfers land to another: - Owner has no recourse against BFP - Owner may sue mortgagee for * fraud (damages) * disgorging proceeds of sale |
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Sell of land subject to mortgage
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- If buyer assumes responsbility
* Buyer is personally liable * Seller is personally secondarily liable - If buyer takes "subject to" mortgage * Buyer is not personally liable * Seller is personally liable * Mortgage is still on land * Mortgagee may foreclose on buyer Under both, mortgage goes with land, unless BFP without notice under recording statute |
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Assignment of mortgage
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- assignment in a separate agreement
- endorse and deliver the note to asignee Assignee becomes a holder in due course: - Negotiable to assignor - Assignor endorses - Assignor delivers to assignee - Assignee has no notice of illegality - Assignee pays more than nominal value |
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Defense against holder in due course (assignee of mortgage)
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- Mortgagor has no personal defenses
* Lack of consideration * Fraudulent inducement * Unconscionability re original * Waiver (by assignor) * Estoppel (by assignor) - Mortgagor has real defenses (MAD FIF IIII) * Material alteration * Duress * Fraud in fact * Infant * Incapacity * Insolvency * Illegality |
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Mortgage forclosure
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- Foreclosure through court
- Necessary parties: * all junior lien holders * debtor-mortgagor - Parties not joined retains mortgage - Foreclosure not terminate senior lien - Priority: * Attorney fees * Forclosure expenses * Principal and interest of senior lien * each junior lien * debtor |
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Equitable redemption
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Mortgagor before foreclosure has the right to redeem by paying:
- all past due amount - if accelerated, all outstanding balance - plus cost and interest - It is not waivable |
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Statutory redemption
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- 6m/1y after the foreclosure
- redeem by paying sale price - may remain in possession - nullify the sale transfer |
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Support and excavation standard of care
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- Strict liability if cave in without improvement
- Negligence otherwise |
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Water rights
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- Riparian owner theory
* riparian owner has right * reasonable use - First appropriation theory * state has right * appropriate by beneficial use * [agriculture OK] * first in time, first in right - Underground water * reasonable owner theory * no malicious or wasteful use * C/L minority: absolute right - Surface water: common enemy |
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Taking forms (real property; constitution)
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- Express taking
* condemnation * physical occupation - Implicit taking * removing all reasonable economically viable use of property * exaction that are not proportional or congruent with the proposed use |
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Taking requirements (real property; constitution)
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- Government may take for public use private property in exchange for just compensation
* public use: gov. reasonably belives that taking will benefit the public * just compensation: market value (fair value) to owner; not benefit to taker |
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Zoning regulations (real property)
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Zoning is allowed under the general police power (note first amendment)
- may not deprive prior conforming use in totality without just compensation |
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Exactions (real property; constitutional law)
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Exactions: conditions attached to zoning:
- proportional - congruent - to the impact of the proposed development |
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Zoning variance
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Elements:
- Show undue hardship of current zoning - Not decrease the value of neighboring land - Decision by zoning board - Administrative ruling |
