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126 Cards in this Set
- Front
- Back
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What is the language that indicates a fee simple determinable?
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From O to A ....
1. until 2. during 3. So long as (clear durational language and always subject to some condition precedent) |
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What is a fee simple subject to condition subsequent?
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From O to A
1. But if X condition occurs, back to A 2. Must use clear durational language and right of reentry |
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What is a right of reentry and what is it called in NY?
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It is the right of termination and its called a right or reacquisition in NY.
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What is a fee simple subject to condition subsequent called in NY?
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Fee on condition.
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What is a fee simple subject to executory limitation?
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From O to A ...
1. But if X condition occurs, to B 2. |
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Under the fee simple subject to executory limitation - From O to A but of X condition occurs, to B - what does A have?
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A has a fee simple subject to executory interest.
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Identify and distinguish three types of waste
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1. Voluntary
2. Permissive 3. Amelorative (improvements w/out consent) |
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Right of reentry (termination) accompanies only the _______ .
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Fee simple subject to condition subsequent
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Possibility of reverter accompanies only the _______ .
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Fee simple determinable.
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Name the 3 defeasible fees.
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1. Fee simple determinable
2. Fee simple subject to condition subsequent 3. Fee simple subject to executory limitation |
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What is the remainder rule?
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Always accompanies an estate of known and fixed duration (ex, life estate) and never a defeasible fee.
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How do you know you have a vested remainder?
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It is both ...
1. Created in an ascertained person 2. Not subject to any condition precedent |
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How do you know you have a contingent remainder?
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The conveyance is NOT ...
1. Created in an ascertained person OR 2. Is subject to condition precedent |
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What is the doctrine of worthier title?
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Situation -
1. O to A for life then to O's heirs Rule 1. Contingent remainder in O's heirs is void 2. A has a life estate and O has a reversion |
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What is an indefeasibly vested remainder?
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Holder is sure to acquire an estate in the future with no strings attached
Ex - To A for life, then to B A has a life estate and b has an IVR |
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What is a vested remainder subject to complete defeasance?
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Taking not subject to condition precedent but could be cut short by a condition subsequent.
Ex - To A for life, then to B provided that if B dies before age of 25 then to C |
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What is a vested remainder subject to open?
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1. Remainder is vested in a class of takers at least one of whom can take but
2. Each class member's share can shrink because additional takers could still join the class |
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What is a shifting executory interest?
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An interest that cuts shorts the interest of another who is not the grantee
Ex - To A and his heirs but if B returns from Canada some time next year, to B |
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What is a springing executory interest?
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An interest that cuts shorts the interest of the grantee
Ex - To A if and when O marries |
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What is a springing executory interest called in NY
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Remainder subject to condition subsequent
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What 3 elements are necessary to create a joint tenancy?
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1. 4 unities
2. Use of a straw 3. Clear expression of grantor to create a joint tenancy |
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Are joint tenancies descendible or divisible?
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No, and they are not but they are alienable.
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What are the 4 unities necessary to creation of a joint tenancy?
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Tenants must take their interest ...
1. At the same time 2. by the same title (instruments) 3. With identical shares 4. With right to possess the whole |
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What element of the creation of joint tenancies are no longer required under NY law?
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Use of a straw
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Joint tenants have the right of _______.
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Survivorship
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What are 3 ways a joint tenancy can be severed?
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1. Severance and Sale
2. Severance and Partition 3. Voluntary Agreement |
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Under severance and sale, the new buyer becomes a ________ in ________.
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Tenant in common, NOT a joint tenant
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What are the two varieties of severance and partition?
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1. Partition in kind (division)
2. Forced Sale (liquidation) |
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Does severance and mortgage terminate the joint tenancy?
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Lien theory - no
Title (NY/MR) - Yes |
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Can creditors of only one spouse touch a tenancy by the entirety?
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No
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What is the rule for creditors with respect to tenancies by the entirety in NY?
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One spouse may mortgage their interest and the creditor may enforce against that interest only.
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What are the three feature of the tenancy in common?
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1. Each owns an individual part and the right to possess the whole
2. Each interest is descenbible, alienable, and divisible but there is no right of survivorship 3. Presumption favors the tenancy in common. |
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Is a co-tenant in exclusive possession liable to other co-tenants for rent?
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No
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Where a co-tenant leases part or all to a third party, he must ________.
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Pay other cotenants their fair share.
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Under the majority rule, does adverse possession apply to an absent co-tenant?
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No. Because there is no adverse element.
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Under NY law, does adverse possession apply to an absent co-tenant?
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Yes if co-tenant is in exclusive possession for 20 years.
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Does a repairing co-tenant a right to contribution from other co-tenants?
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Other co-tenants must pay their share of the cost but must tell other co-tenants of the need.
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Does an improving co-tenant get to recover from other co-tenants for the improvements?
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No
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If a tenancy for years is longer than a year must be ________.
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In writing
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In what 3 ways may a tenancy for years be created by implication?
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1. Land leased with no mention of duration and rent paid at set intervals
2. Oral term of years in violation of the statute of frauds 3. Holdover lease if landlord elects |
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What is the method of termination to end a landlord tenant relationship?
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Notice, usually written, must be given.
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Without express agreement, what will a tenancy at will become?
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Periodic Tenancy
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What is usually required to terminate a tenancy at will?
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Reasonable demand to vacate
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What are a tenant's duty to 3rd persons under tort law?
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1. T must keep premises in reasonably good repair.
2. T s liable to 3rd parties T invited even where L promised to make repairs |
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What is T's duty to repair when the lease is silent?
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1. Must make ordinary repairs and maintenance
2. Must not commit waste (including fixtures) |
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What is the test for whether a chattel is a fixture?
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Where there is no express agreement, T can remove chattel if doing so would not o substantial damage to the premises.
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What is T's express duty to maintain under the common law?
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T is liable to any loss to the property including that caused by force of nature.
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What is T's express duty to maintain under NY law and the modern view?
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T may terminate the lease when premises is destroyed without T's fault.
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What are the landlord's remedies when T fails to pay rent while in possession of the premises?
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L can ...
1. Evict through court 2. Continue relationship and sue for rent (NEVER self help) |
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What are the landlord's remedies when T fails to pay rent while not in possession of the premises? SIR
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1. Treat as surrender that L accepts
2. Ignore abandonment and hold T liable for rent 3. Re-let to T and hold T responsible for deficiency (must mitigate under MR but not in NY) |
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What must L do under its duty to deliver possession?
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NY/English Rule - deliver legal and actual possession
American Rule - only legal possession |
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The implied warranty of quiet enjoyment applies to both residential and commercial properties, T/F
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True
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The implied warranty of habitability applies to both residential and commercial properties, T/F
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False, only to residential properties
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What is are the two types of actions T has when violates the implied warranty of quiet enjoyment
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1. Action for constructive eviction
2. Action for actual eviction |
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What must T do under an action for constructive eviction? SING
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1. Substantial Interference (due to L's action or inaction - can be chronic or permanent)
2. Notice - must give to L to cure 3. Goodbye - T must leave premises |
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L is not liable for the actions of other tenants but nevertheless must ...
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1. Not permit nuisance on premises
2. Must control common areas |
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What must a T do under an action for breach of the implied warranty of habitability? LRRR
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1. L must move out and terminate lease
2. Repair and Deduct (escrow) 3. Reduce Rent 4. Remain in possession |
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Under the majority rule, once T consent to assign or sublease T ______.
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Waives right to block future assignments or subleases.
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Under NY law, T cannot assign without _________ and T ______ withhold consent unreasonably.
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1. Consent (unless in lease)
2. Can |
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In a residential building of 4 units or more, L has _________ subject to L's consent and L ________ withhold consent unreasonably.
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1. Right to sublease
2. Cannot |
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Generally, is L liable for injuries to T under tort law?
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No
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What are the exceptions to the rule that L is not liable to T in tort?
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1. Public Use Rule
2. Assumption of repairs 3. Common Areas 4. Short term lease of furnished dwellings |
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Name and distinguish 4 categories of easements.
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1. Appurtenant (benefit to land use)
2. In gross (personal benefit) 3. Affirmative (holder allowed to act) 4. Negative (holder retrained) |
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What are the rules on easement transferability?
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Appurtenant - pass with land
In gross - not transferable |
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What are the 4 ways to create an easement? (PING)
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1. Prescription (10 yrs in NY)
2. Implication 3. Necessity 4. Grant (SOF if more than 1 year) |
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How can an easement be created by implication?
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1. Previous Use was appurtenant AND
2. Parties expected that use would survive division because use is reasonably necessary to use and enjoyment of dominant tenement |
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Absent express agreement, what is the duration of an easement?
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Perpetual
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How can an easement be terminated?
END CRAMP |
1. Estoppel
2. Necessity 3. Destruction of servient land 4. Condemnation of servient land 5. Release 6. Abandonment 7. Merger Doctrine 8. Prescription |
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When will an easement be terminated by estoppel?
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When the servient owner changes position in reliance on the fact that the dominant owner will end easement.
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Under what circumstances will an easement by necessity be terminated?
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When the necessity ends
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What is meant be "condemnation" of the servient land in the easement context?
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Refers to eminent domain
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When will an easement be terminated by abandonment?
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Where the easement holder demonstrates physical action, the intent to never use the easement again.
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How will the merger doctrine end an easement?
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Easement ends when title to both tenements become vested in the same person.
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Under what circumstances will estoppel apply to a license such that it is irrevocable?
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When the licensee has invested substantial money or labor in reliance on the continuation of the license
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What is a profit?
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Gives right to the holder to enter land to take out soil and substance of the soil
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Define covenant
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Promise to do something or not to do something related to land
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How does one distinguish between a covenant and an equitable servitude?
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Covenant -- money damages
Equitable Servitude - Injunction |
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What are the elements for a burden to run with the land under a covenant
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1. Writing (the original)
2. Intent (original parties) 3. Touch and concern 4. Privity (horizontal and vertical) 5. Notice |
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When does a covenant touch and concern the land?
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Promise must affect parties obligations as landowners and not just as members of the community at large.
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When is there horizontal privity for a covenant?
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Original parties were in succession of estate
1. Landlord - tenant 2. Grantor - grantee 3. Mortgagor - mortgagee |
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When is there vertical privity for a covenant?
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There is a non-hostile nexus between A and B
(only time there isn't is with adverse possession) |
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When has there been notice for the purposes of a covenant?
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Original grantee had notice when they took
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What are the elements necessary for the benefit to run with the land?
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1. Writing
2. Intent 3. Touch and concern 4. Vertical Privity |
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Define equitable servitude
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Promise that equity will enforce against successors accompanied by injunctive relief.
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What are the elements of a valid equitable servitude?
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1. Writing
2. Intent 3. Touch and concern 4. Notice |
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When will an Implied Equitable Servitude be found?
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In a common scheme where developer had a general scheme that included D's lot and D had notice, D's non conforming use will be found to be barred by an IES
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What are the types of notice that put D on notice in the Implied Equitable Servitude context
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1. Actual
2. Inquiry (neighborhood conforms) 3. Record Notice |
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Name a valid defense to the imposition of an Implied Equitable Servitude?
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Changed conditions (must be pervasive)
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What is another name for an Implied Equitable Servitude?
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Reciprocal Negative Servitude
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What are the elements of adverse possession? COAH
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1. Continuous (10 years in NY)
2. Open and Notorious 3. Actual 4. Hostile (GF in ny but not in MR) |
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What three elements must be present for a land contract to conform to the statute of frauds?
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1. Must be in writing ans signed by bound party
2. Must describe the land 3. There must be consideration |
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What is the remedy when the land in the contract is larger than the actual land?
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Specific performance
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What is an exception to the SOF requirements for land contracts?
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Doctrine of past performance. (need 2 of 3)
1. B takes possession of land 2. B pays all or part of purchase price 3. B makes substantial improvements land |
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Where does the risk of loss lie under a land contract?
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CL - buyer owns property once he signs
NY - risk of loss stays with seller until buyer takes possession or has title (assuming no fault on B) |
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Name two implied promises in every contract for land
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1. Marketable title
2. No material misrepresentations |
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What is marketable title?
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Title is free from reasonable risks of lawsuits
1. No encumbrances 2. No Adverse possession 3. No zoning violations |
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Does a contract for land include any warranties of habitability or fitness?
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No
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What is needed for lawful execution of a deed?
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Must be in writing and signed by grantor (no consideration needed)
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What is needed for legal passing of a deed? (LEAD)
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1. Lawful Execution
2. AND 3. Delivery |
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If O conveys blackacre to A (who records) and then later to B (who records), and we are in a notice jurisdiction, who has title?
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B if he is a BFP regardless of when B recorded.
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How is a party placed on record notice?
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Buyer is on record notice if at the time B takes, the deed was properly recorded.
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If O conveys blackacre to A who doesn't record and then to B who also records, and we are in a race notice jurisdiction, who has title to blackacre.
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B because B recorded first.
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What is a bona fide purchaser?
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1. Purchased something for value
2. Without notice that someone got there first |
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How is a party placed on inquiry notice in the deed context?
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1. Buyer has duty to inspect before transfer to see if anyone else is in possession
2. If the recorded instrument makes reference to an unrecorded transaction, B is on record notice. |
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What is the shelter rule?
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States that any person that takes from a BFP will prevail against any party the transferor BFP would have prevailed against
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What is estoppel by deed.
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Rule that states, anyone who transfers property to which they have no interest cannot argue the invalidity of that transfer if they later acquire title.
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Define legal mortgage.
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Conveyance of a security interest in land as collateral for the repayment of a debt
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Define equitable mortgage.
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Conveyance of a security interest in land as collateral for the repayment of a debt is the deed to the land itself.
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When a mortgagor (debtor) sells the house, the mortgage passes with the house, T/F?
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True
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When the mortgagee sells their interest, the lien they have on the house passes as well, T/F?
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True
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Once a transferee takes title to a house with a mortgage on it, he becomes a ____________.
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Holder in due course
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A holder in due course takes free from _________.
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Any personal (consideration, unconscionability) but not real defenses that could be brought against the mortgagee
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Is a later buyer who assumes a mortgage personally liable for the mortgage?
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Later buyer is primarily liable and the original buyer is secondarily liable
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Is a later buyer who takes "subject to the mortgage" personally liable for it?
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No. Only the earlier buyer is.
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A foreclosure action where the proceeds of the foreclosure are less than the amount owed is called a ________.
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Deficiency Action
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When there is a surplus after the amount due is paid in a foreclosure action _______.
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Junior liens are payed off in order of priority and the remainder goes to the debtor
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Generally what effect does a foreclosure have on various interests?
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The foreclosure only effects mortgages that are junior to it. Senior ones are not effected.
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Creditors with interests junior to foreclosing party are ________ and must be joined, if not, the mortgage remains on the land
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Necessary Parties. So is the debtor.
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What is a purchase money mortgage and what is its priory?
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Creditor takes interest in the land it enabled debtor to be able to buy.
Takes priority above all others. |
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What is debtor's right to redeem?
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Debtor has a right to redeem property at any time before foreclosure.
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What is statutory redemption?
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Allows debtor to redeem 6 months after foreclosure (Not recognized in NY)
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What is the riparian doctrine?
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States that those who own the land bordering water also own the water. (cannot reasonably interfere with use of another riparian)
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What is the doctrine of prior appropriation?
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States that water initially belongs to the state but belongs to a person once the person diverts it for their own use. (first in time, first in right)
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After a deed has been conveyed, the _________ not the __________ is the controlling document.
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1. Deed
2. Contract of sale |
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May an easement in gross for commercial purposes be transferred?
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Yes
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May and easement in gross for non-commercial purposes be transferred?
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No
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