Property Flash Cards

Front 1

CONTINGENT REMAINDERS

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5. A condition precedent is a condition expressly stated in the document creating the remainder which must be satisfied before the remainder interest can become possessory.

The termination of the previous estate is not a condition precedent

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THE VESTING OF REMAINDERS

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1. A contingent remainder becomes vested when there are no remaining conditions precedent and when the holder of the remainder can be ascertained.

Front 3

Remainder Subject to Open

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“Rule of Convenience” allows courts to close a class when any member becomes entitled to distribution or possession of property interest

Front 4

Remainder Subject to Divestment

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a. O to A for life, then to B, but if B drops out of Law School, then to C.
b. B has a vested remainder subject to divestment

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THE DESTRUCTIBILITY OF CONTINGENT REMAINDERS

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1. Under the traditional rule of the destructibility of contingent remainder, all contingent remainders were required to vest at or before the termination of the preceding estate or else they were destroyed.
2. Today most (though not all) states have abolished the destructibility rule.
a. In those jurisdictions, a contingent remainder that has not yet vested when the estate preceding it has come to an end will not be destroyed.
b. Instead, it will remain a valid future interest and will vest in possession when the condition is satisfied.
c. This will mean that the right of present possession will revert to the holder of the reversion, but that interest will be divested if the condition precedent is later fulfilled.

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The Rule in Shelley’s Case

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a. It provided that if O conveyed or devised a life estate in land to A with a remainder in the heirs of A in fee simple, the remainder interest went to A, not A’s heirs.
b. Consequently A’s life estate and remainder then merged into a present estate in fee simple absolute, and A was able to transfer complete title if he chose to do so.

No Longer Applicable

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The Doctrine of Worthier Title

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1. Like the rules in Shelley’s Case, the doctrine of Worthier Title prohibited devises of land to those who would otherwise inherit the property.
2. Today, the doctrine of worthier title is only a rule of construction; if the evidence shows that O intended to created a remainder which would vest in possession with his heirs upon the death of A, it will be so interpreted.

Also not applicable

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Rule Against Perpetuities

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Invalidates future nonvested interests unless they are certain to vest or fail within 21 years of the death of someone who is alive (“in being”) at the “creation of the interest.”

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The Uniform Statutory Rule Against Perpetuities

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has been less adopted in approximately half of the state, retains the common law rule against perpetuities, but imposes a 90 year waiting period before any interest may be destroyed

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Wait and See exception

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If a contingent interest vests within the perpetuity period, it is deemed to be valid, regardless of what could have happened (which was the test under the traditional rule).

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The Fertile Octogenarian

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a. O to A for life, remainder to A’s grandchildren
i. A has a life estate
ii. O and A are the measuring lives
iii. Assumes that A can have more children until she dies, even if she is 100 years old
iv. A could have child after creation of interests and that child could have a child more than 21 years after the death of A

Front 12

Which three contingent future interests does RAP apply to?

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vested remainder, contingent remainder and the executory interest

Front 13

Which three contingent future interests does RAP not apply to?

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Reversion, possibility of revert and right of re-entry were always considered to be vested RAP does not apply

Front 14

Servitudes

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1. Servitudes are land use agreements between private parties in residential and/or commercial contexts that:
a. Authorize a non-owner to enter your property for a specific purpose,
i. e.g.: right of way easement or utility company’s right to lay power lines on one’s parcel
b. Embody property owner’s promise to do or not to do some particular act on her own property
i. e.g.: Maintain exterior condition of structures on parcel or not build a fence around perimeter

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Easements

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1. An easement is the limited right to use or control the use of someone else’s property.
a. Easements are irrevocable by grantor
i. Licenses are revocable, but easements are not
c. Easements are generally transferable during life and upon death
2. It requires a servient and a dominant
a. Servient estate/tenement
i. Property burdened by the easement
b. Dominant estate/tenement
i. Property benefited by easement

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Easement Appurtenant

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1. Appurtenant easements as seen in Cushman Virginia Corp. v. Barnes (1963)
a. Requires a dominant and subservient tenement or estate – “it takes two”
b. Attached to dominant land, not to any particular owner of that land
c. Automatically transferred with transfer of dominant tenement
d. Cannot be expanded unilaterally to benefit non-dominant parcel[s]
e. Look for language such as “heirs and assigns,” “appurtenant,” or “runs with the land”

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Easements in gross

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a. Owned personally, not attached to land
b. Involves only servient land
c. Xcel’s easement to maintain power lines that cross O’s land.
d. Benefits Xcel regardless of whether it owns any land at all
e. Easement in gross are assignable and divisible if they result in economic benefit rather than personal satisfaction
i. Yet, they need to be used as “one stock” (unanimous consent and approval of all).

Front 18

Cushman Virginia Corp. v. Barnes

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Where the width of a right of way is not specified in a grant, it is limited to the width as it existed at the time of the grant.

Front 19

Miller v. Lutheran Conference & Camp Ass’n

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The two brothers worked hard and capitalized on the boat and bath houses they built. These privileges are easements in gross and may be assigned but only with the consent and joinder of the present owners who must act as one stock. Thus Rufus's estate didn't have a right by them to grant a license to D.

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Role of Intent in Easement Appurtenant and Easement in Gross

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a. Language is probably the most important. Failure to use words such as “heirs and assigns,” “appurtenant” or “runs with the land” often creates a presumption that the easement is in gross.

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5 types of Easements

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Express
Implied from Prior Existing Use
Necessity
Prescriptive
By Estoppel

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Implied from Prior Existing Use

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Hellberg v. Coffin Sheep Co. (1965)

d. visible/apparent/obvious,
e. continuous; and
f. permanent; and
The use is “reasonably necessary” at time of severance.

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Necessity

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a. Almost all cases involve road easements to reach landlocked parcels

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Prescriptive as seen in

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MacDonald Properties, Inc. v. Bel-Air Country Club

a. Closely related to Adverse Possession
i. Actual
ii. Open and Notorious
iii. Non-permissive
 Need to have a clear at that this is non-permissive – post a sign
iv. Under a claim of right
v. Exclusive [minority of courts]
vi. Continuous and uninterrupted for the statutory period.

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By Estoppel

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a. Arises when:
An owner fraudulently represents that an easement exists over his/her land, and
A person reasonably relies on this representation to his/her detriment
b. Though separate common law doctrines, many courts make no distinction between easements by estoppel and irrevocable licenses

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Terminating Easements (6)

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1. By Agreement in writing
2. By their own terms
3. By merger
4. By abandonment
5. By adverse possession or prescription
6. Marketable Title Acts

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Affirmative Easements

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1. P – prescription
2. I – implication
3. N – necessity
4. G - Grant

Front 28

Hellberg v. Coffin Sheep Co

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Easement by Implication

At common law where land is sold or leased and has not outlet, the lessor by implication of law grants ingress and egress over the parcel to which he retains ownership.

Front 29

MacDonald Properties, Inc. v. Bel-Air Country Club

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EASEMENT BY PRESCRIPTION

The continuous use of the easement over a long period of time without interference was presumptive evidence of the existence of a prescriptive easement to use the property.

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fee simple determinable

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“so long as,” “until,” “while,”

d. The interest retained by the grantor is known as the possibility of reverter

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fee simple subject to condition subsequent

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differs from the fee simple determinable in that it does not automatically terminate upon breach of the stated restriction, called a “condition.”

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fee simple subject to executory limitation

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differs from the preceding estates in that it is accompanied by a future interest in a third party rather than the grantor.

a. In regard to whether the forfeiture is automatic or elective, the fee simple subject to an executory limitation is like the fee simple determinable.

Front 33

Storke v. Penn Mutual Life Insurance Co.

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1. As the court in Storke stated, when the language of the instrument creating a defensible estate is unclear, it will be presumed that the grantor intended to create subject to a condition subsequent rather than a determinable fee.
a. This presumption also is a product of the prejudice against forfeiture.

Front 34

Defeasible Fees and Adverse Possession

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1. If the estate was one of fee simple determinable, the previous estate holder’s interest is hostile to that of the holder of the possibility of reverter form the moment the limitation is violated.
a. The clock begins to run of the purposes of adverse possession.

For subject to a condition subsequent, since the holder of the right or entry is not required to immediately enter and reclaim the property,

Front 35

When is a transfer at death difficult?

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2. When there is neither a will nor a probate proceeding, the heir sometimes has difficulty establishing ownership when he or she attempts to sell the property.

Front 36

EQUITABLE CONVERSION

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1. Equitable conversion is a doctrine of the law of real property under which a purchaser of real property becomes the equitable owner of title to the property at the time he signs a contract binding him to purchase the land at a later date.

Front 37

Equitable Conversion: Uniform Vendor & Purchaser Risk Act/Massachusetts

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a. Risk of loss due to physical destruction or eminent domain remains with seller until either possession or title is transferred to the buyer

Front 38

To become a fixture, what must an item be:

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an item must be intended to become a permanent part of the land; it must be actually annexed to the land or to something appurtenant to it (ex. Furnace); and it must be specially adapted to the use of the land.

Front 39

The Different Conceptions of Title
(4)

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1. Record – that in which a person who registered their property with the county
2. Good and Indefeasible
3. Marketable – no reasonable doubt about the title
4. Insurable

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What does it mean to have marketable title?

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4. So long as a purchaser would accept the seller’s title and so long as there is no reasonable probability that the buyer will be subjected to a lawsuit from another claiming an interest in the land, the title is said to be marketable.

Front 41

Curative Acts

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Validates deeds that were technically deficient but otherwise reflective of the intentions of the buyer and the seller.

Front 42

Marketable Record Title Acts

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i. If an owner has a clear record chain of title back to a root of title (commonly 20-40 years), then title is free from all rights or interests that were recorded before the root of title.

Front 43

Marketable Title and Adverse Possession

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1. Some jurisdictions require more than just evidence that an adverse possession has been successfully completed - often a formal court action to quiet title is necessary.

Front 44

Marketable Title and Zoning Restrictions

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The existence of zoning laws and building codes that affect the use of land do not affect marketable title, even if they severely restrict the uses to which the land may be put.

Front 45

THE DEED

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1. The vendor must not only have and convey marketable title, but vendor must convey that marketable title by general warranty deed.
2. The deed is the name given to the document that is used our system to transfer title from land vendor to purchaser.

Front 46

What are the components of the deed?

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all deeds must be in writing and include the names of the grantor and grantee, words indicating an intention to transfer, a description of the land, the grantor’s signature, and in some states, the signature of two witnesses.

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The traditional deed is composed of the following parts:

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the premises, the habendum, the reddendum, warranties of title, signature, and acknowledgement.

Front 48

The habendum is

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used for declarations of trust in those situations where the grantee is to hold the land for the benefit of someone else.

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The reddendum is

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an exceptions and/or reservations clause and is used to retain or create an interest in the land for the grantor.
i. An exceptions excepts some existing interest from the grant
ii. A reservation creates a new real property interest, like an easement of right of way, for the grantor.

In most jurisdictions a reservation cannot be made in favor of a third party

Front 50

In the warranties of title pledge the

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The seller pledges to the grantor to support the grantee if his title to the land is challenged

Front 51

Define General Warranty Deed

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a. Covenant promising that the grantor is able to and does convey good title
b. The seller generally holds themselves liable
c. The grantor warrants all 6 of our common law title covenants.

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Special Warranty Deed

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a. Grantor warrant against title defects caused or created by grantor, but not others
b. Often the most common
c. The grantor undertakes the obligation that only he has done nothing that would be inconsistent with the title covenants. He does not warrant that his predecessors in title did nothing that would constitute a violation of the covenants.
i. Gives less protection to the grantee than does general warranty deed
ii. Usually only used when the grantor is a fiduciary – a trustee or guardian

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Quitclaim Deed

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a. Grantor makes no representation that he/she has title to the property being conveyed or the right to convey title to the grantee
b. Common in divorce
c. Contains no title covenants and simply states that the grantor is conveying all title he has if any.
d. A quitclaim deed transfers only the grantor’s interest in the property conveyed (whatever that may be) and makes no representations as to the quality of the title transferred.
e. Absent a statute imposing warranties, a deed that includes no warranties is presumed to be a quitclaim.

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There are 6 traditional title covenants which appear in warranty deeds

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three are classified as present covenants, and three as future covenants.

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b. Present covenants are breached, if at all, at the time the deed is accepted and the Statute of Limitations begins to run at that time.

What are the three present covenants?

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Right to convey – is a promise that the grantor has the right to transfer title to the property

iii. Covenant against encumbrances – promises that there are no interests in third parties which would qualify, but not negate, the title being transferred (such as easements, profits, leases, restrictive covenants, mortgages, and other liens)

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More on Covenant against encumbrances

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1. In general an encumbrance is said to be any outstanding legal interest with diminishes the value of the land or restricts its use.
a. Easements, profits, judgment liens and dower rights.
2. The general rule is that there can be no recovery more than nominal damages unless there is an actual showing of a breach, if there is then there was an ouster – someone claiming under the encumbrance and then the amount of loss is measured by how much it has cost to remove that encumbrance.
3. If the grantee knows or should have known that there was an easement across the land the general rule is that the covenant against encumbrances should not apply to visible encumbrances
4. Zoning ordinances, housing codes, and other land use regulations are not subject to this promise.

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c. Future covenants are breached only when the grantee is actually challenged by a third party with a superior legal interest to the property (often referred to as eviction, although loss of possession is not actually required).

What are the future covenants?

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ii. Covenant of Warranty - Promise to warrant and defend the grantee against any attack on the grantees title

iii. Covenant of Quiet Enjoyment - Promise that the grantee’s possession will not be disturbed, and that, it if its, the grantor will compensate for the disturbance.

iv. Covenant of Further Assurances - Promise to execute any documents needed to clear the grantee’s title. This covenant, unlike others, may be enforced by specific performance as well as damages.

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Non Freehold estates at common law?

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term of years or estate for years, the periodic tenancy or periodic estate, tenancy at will and tenancy for estate at sufferance

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A Term of Years

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a. Tenant owns a present possessory estate for a determinate period
b. Nonfreehold or landlord and tenant estate for a fixed set period of time.
c. It has a certain starting date and termination date
d. It does not have to have a duration for a year or more. It can be for three days, the key is not the length of time but the certainty of the commencement and termination date
e. It is created through a writing and terminates automatically at the time specified for its termination
i. If it is uncertain when it terminates then it can’t be a tenancy or estate for years
f. L leases to T for seven months beginning on a certain day and ending at the end of those seven months

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Periodic Tenancy

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a. Tenant owns a present possessory estate for an indeterminate period, usually characterized by periodic rent payments
b. L leasing to T for a stated period (frequently one month is a stated period) and for repeated similar periods of time unless the lease is terminated at the end of a given period by proper notice being given by either the landlord or the tenant
c. State of automatic renewal – automatically renewed unless and until one of the parties serves notice of terminated
d. They are created by express agreement or by implication when the duration of the lease is unclear in the lease itself or the lease is silent on the exact period for which it is to be valid
e. They can be created by operation of law when we have the situation of the holdover tenant
f. The common law rules about termination were strict and clear, either party could terminate by giving notice, the notice periods for a year to year tenancy there had to be 6 months notice given, for month to month tenancy there had to be one month notice given and for week to week one week had to be given.
i. Most jurisdictions have changed by statute the length of the notice to make it longer for the shorter periods of time to give greater protection to the tenants.

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Tenancy at Will

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a. Tenant owns a present possessory estate that is terminable at the will of either party
b. An estate terminable at will by either landlord or tenant.
c. No set period of time for the estate to endure, it can be terminated at any time by either party and at common law the notice of termination was effective immediately unless stated in the contrary
d. Sometimes hard to discern a life estate from a tenancy at will.
i. The landlord seems to have given the tenant the right to remain on the property as long as tenant wants to.
1. If this is a life estate it’s a defeasible life estate – meaning it would terminate when the tenant no longer wants to life there
2. If only the tenant is given the right to terminate the tenancy at will then that same right will be implied on behalf of the landlord and it works vice versa
e. If only one has the right to terminate it may be a defeasible life estate rather than a tenancy at will

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Tenancy at Sufferance

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a. Tenant who continues to possess real estate after right to possession has terminated
b. Created when a tenant holds over after the expiration of her lease
c. L to T for one year (tenancy for years) – if T does not move out at the end of the lease she is a holdover tenant and at common law when a tenant held over this meant that the landlord could treat that tenant as a tenant at sufferance.
i. The landlord has an option to treat the tenant as a trespasser and bring an eviction action or treat the holding over tenant as offering to renew the lease for another term.

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THE DUTY TO PUT THE TENANT INTO POSSESSION: American Rule

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b. Under the American rule the only duty of the landlord is to give the legal right to possession to T. Then it becomes T’s responsibility to bring an action for eviction to get rid of the holdover tenant.
i. Minority view but it is continued to be used.

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THE DUTY TO PUT THE TENANT INTO POSSESSION: English Rule

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a. Under the English rule landlord does have an obligation to deliver physical and legal possession to the tenant. Landlord has the obligation to get the holdover tenant out.
i. Majority view

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2 ways that a tenancy can be transfered?

Back 65

sublease or an assignment

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An assignment creates

Back 66

privity of estate between the assignee and the landlord, whereas a sublease does not.
a. This means a landlord has a legal cause of action against an assignee but not against a sublessee, because he has privity only with the assignee. (he remains in privity of contract with the assignor)

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A subtenant, by contrast, is

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insulated from the original lease between the landlord and the original tenant.
a. She cannot enforce the covenants in the original lease, and the original landlord cannot enforce them against her.
b. These rules do not apply if the subtenant specifically agrees to fulfill the tenant’s duties to the landlord.

Front 68

Assignment or Sublease
1. The majority describes the “English doctrine” which has a relatively simple rule.

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a. If the tenant reserves some interest in the property it is a sublease
b. If the tenant conveys the entire interest to the subtenant, it is an assignment

Front 69

At common law do tenants have a presumptive right to transfer interest to a third person?

Back 69

Yes, This means that unless a landlord specifically restricts a tenant’s transfer rights, that tenant may sublease or assign the premises to anyone she chooses.

Front 70

The Uniform Residential Landlord and Tenant Act § 4.204 and many courts hold what view about a tenants right to trnasfer?

Back 70

state a landlord waives an objection to transfer if she knows of the transfer and continues to accept rent form the transferee.

Front 71

ABANDONMENT AND CONSTRUCTIVE EVICTION

Back 71

1. A tenancy is entered into in the expectation that the tenant will pay rent and remain in the tenancy until it terminates.
2. Problems arise, however, and the tenant may come to believe that she has to abandon the premises; either because she no longer wishes to continue the tenancy, or because she has found problems on the premises that she believes makes it uninhabitable.
a. There is a remedy of constructive eviction that is available when the tenant has cause to abandon

Front 72

“Surrender and Acceptance”

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A tenant, who surrenders premises to landlord before a lease term expires and the landlord accepts, has no obligation to pay rent accruing after acceptance.

Front 73

CONSTRUCTIVE EcvITATION

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2. Constructive Eviction is based on implied covenant of quiet enjoyment, the rule finds an eviction when conditions on the premises interfere with the beneficial use of the property.
a. Tenant needs to quit possession

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What is Necessary to Prove a Constructive Eviction

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1. The acts or omissions that give rise to claims of constructive eviction vary slightly from one jurisdiction to the next, but generally include problems with such “essential” services as heat, gas or electricity, running water, hot water, and waste disposal.

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ULTRA does what?

Back 75

Codifies the remedy of constructive evictions.

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What the Implied Warranty Means

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1. A tenant’s obligation to pay rent is no longer independent of the landlord’s duty to keep and maintain the premises in a habitable condition

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The effect of the implied warranty

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2. Since landlords cannot rent substandard units, even for substandard rents, they are forced to maintain or abandon their buildings.

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LANDLORD RESPONSIBILITY FOR CRIME

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1. Generally no duty to provide security except:
a. A special relationship exists
b. Landlord knows of a physical defect on premises and should have known that this would have enhanced risk of attack
c. Overriding foreseeability
d. Landlords who provide security has a duty to act with reasonable care

Front 79

Bertley v. Sweetser, explains why courts do not find a special relationship between landlords and tenants.

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Bertley v. Sweetser, explains why courts do not find a special relationship between landlords and tenants.

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el/la dependiente

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salesclerk; dependent

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a. Both are forms of ownership in which the property is undivided, but a joint tenancy differs from a tenancy in common in two important respects.

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i. The joint tenancy includes a right of survivorship while the tenancy in common does not.
ii. All joint tenants have identical fractional interests in the property while the interests of tenants in common need not be identical.

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As far as interest in the property, tenancy in common:

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a. Two or more persons who own a fractional interest in property, but have the right to possess the entire property
b. An "undivided" interest
1. Everyone gets to use it equally
c. Alienable and inheritable

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4. Joint Tenancy

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a. Generally, two or more persons who own an equal interest to the property and who have the right to possess the entire property
b. Four Unities
i. Time, title, interest, and possession
ii. Required at the same time
c. Not inheritable or devisable
d. Joint Tenants have right of survivorship
i. A & B own property, and A dies before B, A's interest immediately passes to B
ii. Children don’t necessarily get to right of survivorship if there are other joint tenants
e. Severed when one of the joint owners transfers his/her interest during lifetime

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The Creation of Joint Tenancies

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1. A joint tenancy can be created by deed, by will, or by joint adverse passion.
2. It cannot, however, be created by inheritance.
3. Those who take property when the owner dies intestate (without a will) take as tenants in common.
4. Where the nature of the estate to be created is ambiguous, American law traditionally presumed that the grantor had intended a joint tenancy.
5. At common law for there to be joint tenancy there had to be four unities
a. The unity of time – tenants receive interest in the property at the same time
b. The unity of title – the interest had to be created by the same instrument
c. The unity of interest – the shares had to be equal
d. The unity of possession – each joint tenants rights of enjoyment had to be exactly the same

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Terminating Joint Tenancies

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1. Any transfer by a joint tenant will ordinary result in a severance of the joint tenancy.
a. This is true whether the joint tenant transfers all or only a portion of his interest.
2. Jurisdictions also divide on the effect of a joint tenant leasing her interest to a third party.
3. The common law rule was that the lease severed the joint tenancy; the modern trend has been to hold that it does not.
4. In some circumstances, the joint tenancy is severed even when the four unities are preserved.
a. If all joint tenants voluntarily agree to convert their ownership arrangement into a tenancy in common, their wishes will usually be honored without the necessity of formal transfer.
b. Likewise, the divorce of husband and wife joint tenants will ordinarily produce a tenancy in common, and the murder of one joint tenant by another will sever the tenancy.