Property

Front 1

The present estates

Back 1

- fee simple absolute
- fee tail
- defeasible fees (different types)
- life estate

Front 2

language of "to A" creates

characteristics

Future interest

Back 2

fee simple absolute

Devisable, descendible, alienable

None

Front 3

Language of "to A and the heirs of A's body" creates

characteristics

Future interest

Back 3

Fee tail

historically it would pass directly to descendants
Now - converted to fee simple absolute

If to O = reversion
If to 3rd party = remainder

Front 4

Types of defeasible fees

Back 4

Fee simple determinable

Fee simple subject to condition subsequent

Fee simple subject to executory limitation

Front 5

language of "to A for so long as", "to A during", "to A until" creates

characteristics

Future interest

Back 5

Fee simple determinable
(must have clear durational language)

if stated condition is violated forfeiture is automatic
- subject to the condition this is devisable, descendible, alienable

FSDPOR - possibility of reverter

Front 6

language of "To A, but if (event) occurs, grantor may reenter and retake" creates

Characteristics

Future interests

Back 6

Fee simple subject to condition subsequent
(grantor must use clear durational language and carve out right to reenter)

requires action of the grantor and the conditions occurence to terminate

Right of entry - power of termination

Front 7

language of “To A but if X event occurs then to B” creates

characteristics

future interest

Back 7

fee simple subject to executory limitation

if condition occurs estate is terminated automatically but does not go back to the grantor - but a 3rd party

executory interest

Front 8

language of "to A for the purpose of..." creates

characteristics

Future interest

Back 8

Fee simple absolute (precatory language - not sufficient for fee simple determinable)

Front 9

language of "O to A for life"

characteristics

Future interest

Back 9

life estate (never measured in term of years - this is a leasehold)

A is life tenant
- has right to all ordinary uses and profits of land
- life tenant cannot commit waste

O (or O's heirs) has a reversion or if held by third party then remainder

Front 10

3 types of waste

Back 10

Voluntary and affirmative waste - overt action of destructiveness
Ameliorative waste
Permissive waste (neglect)

Front 11

Exceptions to restrictions on use or exploitation of natural resources of life estate holder on land

Back 11

PURGE
PU - prior usage - prior to life tenancy the land was used for exploitation (open mines doctrine)
R - Repairs - tenant can use resources for reasonable repairs and maintenance
G - Grant - expressly granted right to expoit from grantor
E - Exploitation - the only reasonble use of the property is for exploitation

Front 12

Types of future interests

Back 12

Future interest capable of creation in the grantor
1. possibility of reverter
2. right of entry (power of termination)
3. reversion

Future interests in transferees
4. Vested remainder
5. Contingent remainder
6. Executory interest

Front 13

types of vested remainders

Back 13

1. indefeasibly vested remainder
2. vested remainder subject to complete defeasance (a/k/a subject to total divestmeent)
3. vested remainder subject to open

Front 14

A remainder is vested if it is...

Back 14

created in an ascertainable person and not subject to a condition precedent

Front 15

A remainder is contingent if it is...

Back 15

created in an unascertainable person or subject to a condition precedent (or both)

Front 16

rule of destructibility of contingent remainders

Back 16

Common law - remainder is destroyed if still contingent at the time the preceeding estate ends

Modern view - the grantor (or the grantor’s heirs) hold the estate subject to a springing executory interest (completion of the condition)

Front 17

rule in shelly’s case

Back 17

Common law - the present and future interests merge - resulting in fee simple absolute for grantee

Modern view:
grantee has a life estate
grantee’s as yet unknown heirs have a contingent remainder

Front 18

when ... O conveys “to A for life, then, on A’s death, to A’s heirs” – where A is alive ... what is implicated

Back 18

The Rule in Shelley's case

Front 19

What is applicable when O who is still alive, tries to create a future interest in his heirs whom are not yet ascertainable
"To A for life, then to my heirs"

Back 19

doctrine of worthier title

Without doctrine... grantee has a life estate and grantor's heirs have contingent remainders because O is still alive and a living person has no heirs

With the doctrine... the contingent remainder in O's heirs is void - thus A has a life estate and O has a reversion

Front 20

Types of vested remainders

Back 20

indefeasibly vested - remainderman will definitely get interest

vested remainder subject to complete defeasance (known as vested remainder subject to total divestment) - remainderman exists and can take now- but his right could be cut short b/c of a condition subsequent

Front 21

condition precedent creates...

Back 21

contingent remainder

Front 22

condition subsequent creates...

Back 22

vested remainder subject to complete defeasance

Front 23

shifting executory interest

Back 23

future interest created in transferee that takes effect by cutting short some interest in another person - always follows a defeasible fee

Front 24

springing executory interest

Back 24

future interest created in transferee that takes effect by cutting short some interest in grantor or grantor's heirs

Front 25

4 steps to RAP problems

Back 25

- Identify which future interests have been created
- Identify conditions precedent to the vesting of suspect future interest
- find a measuring life (LIB)
(must be someone that is relevant to the occurence of the condition)
- Ask the question "Will we know with certainty, within 21 years of the death of the LIBs if our future interest holder can or cant take
If so conveyance is good
If not (if there is any possibility, however remote, that the condition precedent could or could not occur more than 21 years after the death of the LIB) the interest is void

Front 26

Future interests that RAP applies to

Back 26

contingent remainders
executory interests
certain vested remainders subject to open

Front 27

Future interests that RAP does not apply to

Back 27

any future interest in O, the grantor
indefeasibly vested remainders
or vested remainders subject to complete defeasance

Front 28

Joint tenancy

Back 28

Automatic surviorship

alienable, but not devisable or descendible

Creation
4 unities
right of survivorship must be stated with clarity

Front 29

4 unities

Back 29

T-TIP
- Time - joint tenants must take at the same time
- Title - joint tenants must take with the same title
- Interests - joint tenants must have equal interests
- Possess - joint tenants must have identical rights to posses the whole

Front 30

Severance of a joint tenancy

Back 30

SPaM -
Sale - disrupts joint tenancy as to sellers interest (equitable conversion)

Partition -
a. agreement
b. in kind
c. by sale

Mortgage -
- under title theory (minority) - mortgage on one part of property will sever J/T of that part
- under lien theory (majority) - mortgage does not sever

Front 31

Formation of periodic tenancy

Back 31

Express

By implication
- where lease does not mention duration but rent is due in successive intervals
- where tenancy for years is violative of SOF (measured by how rent is tendered)
- holdover tenant (residential) (measured by tender of rent)

Front 32

T's tort liability to 3rd parties

Back 32

T is obligated to keep the premises in reasonably good repair
- will be liable for any injuries to 3rd party (T invited) on premises even if L promised to repair(but T may be able seek indemnity)

Front 33

T's duty to repair

Back 33

T must maintain property and repair it and cant commit waste (cant screw with fixtures)

Front 34

Where T has expressly covenanted in the lease to maintain the property in good condition

Back 34

Common law - he is responsible for any natural damage to the property (ie. earthquake)

Modern - now T has right to terminate the lease if property is destroyed by natural occurence with no fault of T

Front 35

L's remedies when T breaches and is no longer in possession

Back 35

SIR
- Surrender - T gives up the lease (SOF if > 1 year)
- Ignore - continue to charge rent (minority)
- Relet - Majority remedy; must try to re-let and sue T for deficiency

Front 36

L's duties to T

Back 36

L must put T in possession (majority/English rule); Amercian rule - L just needs to give up legal possession

Implied Covenant of quiet enjoyment - (applies to residential/commercial)- cant exclude T from premises usually via constuctive eviction or nuisance of other T's that L permits

Warranty of habitability (residential only) - non-waivable - premises fit for basic human habitation

No retaliatory evictions - for report of housing violations

Front 37

elements of Constructive eviction (required to recover for breach of implied covenant of quiet title)

Back 37

SING -
- Substantial interference - attributable to L's actions or failure to act; chronic condition
- Notice to L of condition
- Get out - T actually leaves the premises b/c of condition within reasonable time

Front 38

T's entitlements when there is a breach of implied warranty of habitability

Back 38

M & 3R's

Move
Repair (and deduct costs from rent)
Reduce or withhold(reduce rent by amount of dimunition in value due to breach) - keep rent in escrow
Remain & sue for damages

Front 39

relationship of L and T2 when there has been an assignment

Back 39

privity of estate
- liable to each other for covenants that run with the land

(L and T1 are still in privity of contract) - so are secondarily liable to one another

Front 40

Liability on a sublease

Back 40

T2 is liable to T1
T1 is liable to L

Front 41

Tort liability of landlord

Back 41

Generally no liability (let T beware)

But CLAPS
- common areas
- latent defects - L has duty to warn
- assumption of repair - has a duty to do repairs assumed with reasonable care
- Public use - short term lease where tenant is not expected to maintain
- short term lease of furnished dwelling

Front 42

categories of negative easements

Back 42

LASS
- Light
- Air
- Streamwater from an artificial flow

+ (minority rule) scenic view
- Structural support

Front 43

Creation of an affirmative easement

Back 43

PING
- Prescription - COAH
- Implicaton - easement implied from existing usage
- Necessity
- Grant - if > 1 year = deed of easement

Front 44

Creation of an affirmative easement by prescription

Back 44

COAH
- Continuous usage of the land - for statutory period
- Open and notorius usage
- Actual usage
- Hostility (without the servient owners consent)

Front 45

Formation of an Affirmative easement by implication

Back 45

results from previous use and then division of property
- previous use must be apparent
- parties must expect that the use would survive division because it is reasonably necessary to the dominant lands use and enjoyment

Front 46

Termination of an easement

Back 46

END CRAMP
- Estoppel
- Necessity (cessation of necessity)
- Destruction of servient property
- Condemnation of servient estate via eminent domain
- Release
- Abandonment (physical conduct, more than mere non-use)
- Merger
- Prescription - interference with COAH requirements

Front 47

Elements necessary for burden to run

Back 47

WITHN
- Writing - original promise from A to B (horizontal) must be in writing
- Intent - must have intended the covenant to run with the land
- Covenant must Touch and concern land (must be related to interest in land)
- Horizontal and Vertical privity
- Horizontal - A and B's relationship must have been - grantor - grantee; mortgagor - mortgagee; lessor - lessee
- vertical - A1 must have taken from A via contract, descent, or devise (no AP)
- Notice - A1 must have notice of burden

Front 48

Elements necessary for the benefit to run

Back 48

WITV
- Writing – original promise from A to B must be in writing
- Intent - original parties intended that the benefit would run
- Touch and concern land - promise affects the parties as landowners
- Vertical privity (as long as not taken by AP) - requires non-hostile nexus between B and B1

Front 49

Requirements for equitable servitude to run

Back 49

WITNES
- Writing - original promise must be in writing
- Intent - parties must have intended promise to go to successors
- Touch and concent - must relate to parties position as landowners
- Notice - new party must have had notice of the promise to be bound by it
- Equitable Servitude - no privity required; implied equitable servitued (common scheme doctrine)

Front 50

ELements of the common scheme doctrine (reciprocal negative servitude)

Back 50

When the sales began the subdivider had a common scheme for the development AND
Buyer had notice of the common scheme

Front 51

3 forms of notice required for application of reciprocal negative servitude

Back 51

AIR
- Actual notice
- Constructive notice
- inquiry notice - where it Should have occurred to D that he was purchasing into a restricted neighborhood
- record notice - notice just because it was in prior deeds (split as to whether this is sufficient)

Front 52

Equitable defenses to reciprocal negative servitude

Back 52

Changed conditions - changed conditions must be so pervasive that the entire area has changed

Front 53

What occurs if mortgagee transfers interest in property to a holder in due course transferee

Back 53

Transferee (if HIDC) takes free of personal defenses:
- fraud in the inducement
- lack of consideration
- unconscionability
- waiver and estoppel

Front 54

What can a holder in due course of property transfered from mortgagee do

Back 54

Foreclose free from personal defenses (not free from real defenses)

Front 55

Real defenses

Back 55

– MAD FIF(I4)
MA - Material Alteration
D - Duress
FIF - Fraud in the factum
I - Infancy
I - Incapacity
I - Illegality
I - Insolvency

Front 56

Requirements of a holder in due course

Back 56

Note must be negotiable and name the original mortgagee
Original Note must be indorsed by the original mortgagee
Original note must be delivered to the transferee
Transferee must take in good faith without notice of illegality (claims or defenses)
Must take for value (must be real value, not nominal)

Front 57

Methods for mortgagee to transfer interest

Back 57

Indorsing and delivering the note to transferee

Or

Or execute a separate document of assignment

Front 58

When Mortgagor sells property under mortgage who is liable on mortgage

Back 58

If B has assumed the mortgage:
- Both O and B are personally liable
- B is primarily liable
- O is secondarily liable

If B takes subject to:
- B is not liable but O remains liable
- BUT, if the mortgage is recorded it remains with the land and Mortgagee can still foreclose if O does not pay

Front 59

If mortgagee forecloses and the sale proceeds do not cover the underlying debt - what result

Back 59

mortgagee seeks defeciency judgment against debtor

Front 60

If mortgagee forecloses and the sale proceeds exceed the underlying debt - what result

Back 60

FIrst deduct: attorney fees, expenses of foreclosure, and interest on foreclosing lienholders mortgage
Surplus
- proceeds go to satisfy the junior debt (in order of priority)
- then the rest goes to debtor

Front 61

Necessary parties to foreclosure action

Back 61

- Holders with interests subordinate to foreclosing holder
- Mortgagor (debtor)

Front 62

Failure to join necessary subordinate lienholder - results in

Back 62

preservation of lienholders claim - morgage remains on the land

Front 63

Is the right of equitable redemption waivable by the mortgagor

Back 63

NO - this is clogging the equity of redemption

Front 64

Amount to be paid under statutory redemption for mortgagor to redeem and retake property

Back 64

Amount property is sold for in the foreclosure sale

Front 65

if land is improved by buildings and an adjacent landowners excavation causes this improved land to cave in the excavator will be liable

Back 65

Only if negligent = this is lateral support

Or - if P can show that the land would still have still collapsed if he had not even made improvements to it

Front 66

prior appropriation doctrine

Back 66

i. water belongs to the state initially – but an individual can acquire the right to divert it and use it even if not a reparian owner
- rights are determined by priority of beneficial use (whoever uses the water in a beneficial way will have rights to use)

Front 67

Common enemy rule

Back 67

Landowner can change drainage or make any other changes on his land to combat the flow of surface water (and even waste it - contrary to rights dealing with groundwater)

Many courts have modified the common enemy rule to prevent unnecessary harm to others’ land

Front 68

For a variance to be proper - Proponent must show

Back 68

- that compliance with the zoning scheme would work a hardship on the owner
And - that a variance would be detrimental to property values of adjacent owners

Front 69

Unconstitutional exactions

Back 69

Exactions are amenities that government seeks in exchange for granting permission to build - must be reasonably related to the proposed government development

Front 70

Adverse possession

Back 70

COAH
i. Continuous – uninterrupted for the statutory period
ii. Open and Notorious – kind of possession that a usual owner would make under the circumstances
iii. Actual – entry must be actual, cant be hypothetical or fictious
iv. Hostile – possessor does not have consent of owner

Front 71

Requirements of the land contract

Back 71

(Only effective until closing - then deed is effective)
1. Must be in writing signed by the party to be bound(SOF)
2. Must state consideration
3. Must describe land
- UNLESS EXCEPTION TO SOF FOR LAND CONTRACT

Front 72

When the amount of land in contract recited is more than the actual size of the parcel - what is the Buyers remedy

Back 72

specific performance with pro rata reduction in purchase price

Front 73

part performance

Back 73

Need 2 out of 3:
- B takes possession
- B makes improvements on land
- B pays part of purchase price

Front 74

Implied promises in land contract

Back 74

Seller promises to deliver Marketable title - title is free from reasonable doubt
Seller promises not to make any false statements of material fact - no failure to make disclosures of latent material defects on the property

Front 75

Circumstances that result in unmarketable title

Back 75

- Adverse possession
- Encumbrances
- Zoning violations

Front 76

Requirements of a deed

Back 76

LEAD
- LE - Lawful execution
- consideration not required
- description must be included - only required to give a lead so that research would find right property
- A - And
- Delivered - where grantor physically delivers deed to grantee; does not have to be physical (tested by intent); delivery by escrow will suffice

Front 77

Quitclaim deed

Back 77

deed lacks covenants - doesnt even warrant that the grantor has title to the property; but does promise that they will deliver marketable title at closing

Front 78

General warranty deed

Back 78

best deed for buyer
6 covenants

Present covenants - breached, if ever, at the time of delivery
- covenant of seisen - promise that grantor owns the property
- covenant of right to convey - promise that grantor has the power to convey the property (no temporary restraints on power)
- covenant against encumbrances - title is free from liens/servitudes

Future covenants - will only be breached after conveyance (where grantees possession is disturbed)
1. covenant for quiet enjoyment - that grantee wont be disturbed in possession by a 3rd parties lawful claim of title
2. covenant of warranty - grantor promises to defend grantee against any claims against title
3. covenant for future assurances - that grantor promises to do whatever is necessary to perfect title in the future if it turns out to be imperfect

Front 79

Statutory special warranty deed

Back 79

Contains only 2 covenants from grantor
a. grantor promises that he has not conveyed this estate to anyone other than the grantee
b. estate is free from encumbrances made by the grantor

Front 80

BFP is one who...

Back 80

purchased property for value

and

without notice of someone elses current interest