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78 Cards in this Set

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What is fee simple absolute?
the largest estate that can be owned
Under the common law how do you create a fee simple absolute?
"To B and her heirs."
Modernly, how do you create a fee simple absolute?
"To B."
What are the defeasible estates?
1. fee simple determinable

2. fee simple condition subsequent

3. fee simple subject to executory limitation
What is a fee simple determinable?
fee simple estate created unitl the happening or nonhappening of an event.
How do you create a fee simple determinable?
Language- "so long as" "during" "until" while"

Note: Possibility of Reverter--if the stated event occurs the estate will revert back to the grantor

Ex-"X conveys Blackacre to A so long as the property is used as a school."
What is fee simple condition subsequent?
fee simple estate that may be terminated by upon the happening of a stated event.
How do you create a fee simple condition subsequent?
Language "provided that" "but if" "on condition that"

Note: Right of re-entry the grantor has the option of reacquiring possession.

Ex. X conveys Blackacre to A, but if the land is not used as a Farm, then X may reenter the land.
What is fee simple subject executory interest?
fee simple estate where upon happening of an event, ownership passes to one grantee to another grantee.

Ex--X conveys Blackacre to A and his heirs so long as the land is used as farm, if the land is not used as a farm then to B.
What are the two types of executory interests?
1. shifting--grantee cuts off the interest of another grantee

2. springing--a grantee cuts off the interest of the grantor
What is a fee tail?
"To B and the heir of his body."
What is a life estate?
a freehold estate where the duration is measured by the life or lives of one or more human being.

Ex "X conveys Blackacre to A for life."
What is life estate pur autre vie?
duration is measured by the life of another person?

Ex--X conveys Blackacre to B for the life of A.
What is special about purchase money mortgage?
purchase money mortgages are iven priority over other mortgages executed at about the same time, even if other mortgages get recorded 1st.
What is the general rule for mortgages at foreclosure sale?
if there are multiple mortgages priorities are first in right, unless recording act changes priorities
What is a mortgage?
an interest in land created by a written instrument providing security for an outstanding debt.
What is an installment land contract?
the buyer makes monthly mortgage payments to the seller and does not become the owner to all the payments are made
What is a purchase money mortgage?
where a mortgagor takes out a loan in order to buy property, this type of mortgage, called a "purchase money mortgage," take spriority over other types of mortgages, even if those other types of mortgages were recorded.
What is a junior interest?
a junior encumbrancer can be made an involuntary aparty to a foreclosure action by a senior encumbrancer?
What is the equitable right of redemption?
the mortgagor must redeem before the foreclosure sale.
What is clogging?
a mortgage may not contain provision that the mortgagor waives the right to redeem.
Are mortgages assignable?
Yes, mortgages are assignable.
What is lien theory?
a mortgage creates a lien on the land regardless of the operative words of the mortgage instrument. Under lien theory the mortgagor remains the owner of the land, and the lender holds only a security interest in the land.
What is title theory?
the mortgage operates as a conveyance of the legal title to the mortgagee/lender. Under title theory, the mortgagee/lender is actually entitled to possession of the land at any time.
What are three types of devises that secure a loan on real property?
1. deed of trust

2. installment land contract

3. mortgage
What is race/notice?
subsequent purchaser will have priority of title over a prior unrecorded instrument if the subsequent purchaser has no knowledge of the prior purchaser and records first
What is a pure notice?
the subsequent BFP who pays valuse without notice of any prior conveyances prevails whether or not he records
What is a Race/Notice
the subsequent BFP who paid value without notice of any prior conveyance who records first.
What is a wild deed?
deeds recorded outside the chain of title and they don't give notice.
What is the equitable conversion doctrine?
Applies during the executory stage of a land sale agreement the risk of loss is on the buyer absent controlling provision. The buyer will still be liable if property is destroyed
What is the executory stage under equitable conversion doctrine?
the time between signing of the contract and the closing date
What if the vendor dies during the executory stage?
General rule when the vendor of a specifically enforceable contract the beneficial interest the proceeds of the sell would go to the vendor's estate.
What is the general rule for delivery of a deed?
a deed is not effective to transfer property unless it has been delivered.
Is parol evidence admissible to show intent for delviery?
Yes, parol evidence is admissible to show intent.
What is conditional delivery of a deed?
the grantor gives the deed to a 3rd party with no conditions except for giving it to the grantee.
In conveyances of freehold estates what must be in the deed or other instrument, to satisfy the statute of frauds?
1. identification of the parties

2. sufficient description of the land

3. purchase price

4. interest being conveyed

5. signature of party being charged.
What is the exception to the statute of frauds for interests in land?
Doctrine of substantial peformance
1. buyer pays part or all of the purchase price and the buyer takes the possession of the property
In a title theory, can a mortgage sever a joint tenancy?
yes
In a lien theory, can mortgage sever joint tenant?
no
What is fructus industrales?
things thats are planted and harvested.

Note: must be removed before closing (by the end of the tenancy or closing on the sale of a house)

Note: tenancy at will--the tenant is permitted to remove plants within a reasonable time after the termination of the tenancy if they are planted in the ground at the notice of termination.
What are fructus naturales?
ex--trees, bushes, grass shrubs are grown without the help of man

Note: if they are located on the property line of adjoining landowners then the adjoining landowners own the trees as tenants in common.

Note: Crops will pass with the mortgage.
What are riparian water rights?
all tracks of land which abuts lakes or streams
What is natural flow theory for riparian rights?
a minority rule each owner is entitled to the natural flow of the water. If one owner uses of the water reduces or interferes with the use of the natural flow the other owners would have a claim against him
What is the reasonable use theory under riparian water rights?
must show that the water is being used in an unreasonable manner.
What is the general rule for riparian rights?
domestic use of water superior to and takes precedence over agriculture/commercial use
What is the doctrine of Prior Appropriation?
prior beneficial use of water take predence over subsequent use.

Note: 1st in time wins
What is the common enemy rule for surface water?
a landowner has unlimited discretion in dealing with surface waters regardless of the affect on other land owners.
What is the general rule for lateral support?
a right of landowner to have his land supported laterally by the neighboring land is an absolute right inherent in land itself
Under lateral support, what is the general for land in its natural condition?
a land in its natural condition one by excavation or otherwise, withdraws lateral support that person is absolutely liable, regardless of negligence
Under lateral support what is the English (minority rule) for lateral support for artificial structures?
the recovery will include both the damage to the land and the damage to the artificial structures
Under lateral support what is the American (majority rule) for lateral support for artificial structures?
Recovery is limited to damage to the land in its natural condition and does not include any damage to the artificial structures on the land.
What is the general rule for negligent excavation for the american and english rule for lateral support?
both under American and English negligence upon the excavator, the wrongdoer is liable for all damages which naturally and proximately flow from his negligence including damages to both land and artificial structures
What is the general rule for subjacent support?
arises when holder of mineral rights removes minerals and the surface collapses, holder of mineral rights is strictly liable
What is the general rule percolating waters/underground waters?
subject to the absolute control of the owner. If withdrawal affects a neighboring land owner that land owner has no claim
How do you create an equitable servitude?
a common development scheme--a restriction on the use land that's enforceable in equity. These are the following requirements:
1. must be in writing
2. Intention of the parties
3. Notice transferee must take the land with either actual or constructive notice of the servitude
What are the types of notices under equitable servitude?
inquiry notice-new owner should be aware of the common development scheme based on the fact that every other lot is based on the same scheme

record notice-where the restriction is in the direct chain of title

actual notice
How is an equitable servitude extinguished?
Changed neighborhood conditions

Note: zoning changes will not distinguish the equitable servitude.
How do you create a covenant running with the land?
1. covenant must be in writing that complies with the SOF

2. Intention

3. covenant must touch and concern the land

4. privity of estate between the parties
(i) horizontal privity--refers to the orignal parties

(ii) vertical privity--refers to those who subsequently obtain the property subject to the covenant (successor in interest) and the original party from whom they got the property
What is a profit pendre?
the right of one person to go onto the land of another to extract or remove something there from
How do you create a fixture?
1. intention by the annexer that the chattel become a fixture

2. chattel must be annexed to the realty either actually or constructively

3. chattel must be appropriated for the purpose for which the land is used.
What is a trade fixture?
chattel annexed to the land by a teant for pecuniary gain during his tenancy--allows removal of trade fixtures from the premises before the expiration of the lease
What are the two types of easements?
1. easement appurtenatn

2. easement in gross
What is an easement appurtenant?
requires 2 adjoining tracts of land the easement runs across one property to get to the other

(i) dominant tenament--has the right to enter onto the servient tenament

(ii) servient tenament--the land that is burden
What are the two types easements that are not in writing?
1. easements by implication or necessity

(i) an owner owns a large track of land he subdivides the property into separate lots and sells them of to individual lot owners

(i) unity of ownership
(ii) easement is apparent at the time of the conveyance
(iii) continuous of the easement

(iv) must be reasonable necessity

2. prescriptive easement
What is an easement by prescription?
similar to adverse possession
What is an assignment?
tenant transfers entire remaining estate
What is a sublease?
where the tenant retains any part of the estate

Note: there is no privity of estate or contract between the landlord and the subtenant
What is the effect of an assignment?
the tenant is still in privity of k with the landlord; no privity of estate

Note: if the assignee fails fails to make the rent payments, the landlord coudl still collect from the tenant because he has privity of k with the tenatn.

assignee vs. landlord-there is privity of estate and privity of contract only if the assignee and the landlord entered into an agreement
What is the effect of a second assignment?
where an assignee assigns her privity of estate ends, and unless he assumes the covenants under the lease, there is no further liability.
Can the landlord give assignments?
landlords can assign their revisionary interest
What is Holder in Due Course Rule?
a HDC is not bound by payments to an old mortgagee/lender not even if mortgagor knew nothing of the transfer.
During foreclosure what happens to all junior interests?
protections to holders of junior interests--they have the right to pay off any mortgage being foreclosed in order to keep their junior interests from being wiped out, and thus they are not necessary parties to any foreclosure, and if they are not made a party to a foreclosure then their interests are not wiped out by it.
What is ameliorating waste?
a change in the physical characteristics of the occupied premises by an unauthorized act of the tenant which increases the value of the land.
What is permissive waste?
injury to the premises caused by the tenant's failure to act when a tenant is under a duty to act
What is equitable waste?
injury to the reversionary interest in land, which is inconsistent with good husbandry.
What is the Rule Shelley's Case?
If in a conveyance or will a free hold estate is given to a person and in the same conveyance, a remainder is limited to the heirs or to the body of that person, the person takes both the freehold estate and the remainder
What is the doctrine of worthier title?
a grator may not limit a fee simple to his own heirs
What is the Rule Against Perpetuities?
no interest is valid unless it vest if at all within 21 years fater a life in being from the time of its creation.