Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
73 Cards in this Set
- Front
- Back
|
Present Estates: Fee Simple
|
(1) Language: To A
(2) Characteristics: Absolute ownership (3) Future Interests: None |
|
|
Present Estates: Fee Tail
|
(1) Language: To A and the heirs of his body
(2) Characteristics: Passes directly to lineal blood descendants of grantee (3) Future Interests: Reversion (grantor), or remainder (3rd party) |
|
|
Present Estates: Defeasible Fees - Fee Simple Determinable
|
(1) Language: Durational language
(2) Characteristics: forfeiture automatic (3) Future Interests: Reverter |
|
|
Present Estates: Defeasible Fees - Fee Simple Subject to Condition Subsequent
|
(1) Language: durational language and right to reenter
(2) Characteristics: grantor may not must cut short if condition occurs (3) Future Interests: Right of reentry & termination |
|
|
Present Estates: Defeasible Fees - Fee Simple Subject to Executory Interest
|
(1) Language: "To A, but if..., to B"
(2) Characteristics: forfeiture automatic in favor of 3rd party (3) Future Interests: Shifting Executory Interest |
|
|
Present Estates: Defeasible Fees - Rules of Construction
|
(1) Words of mere desire or hope are insufficient to create a defeasible fee
(2) Absolute restraints on alienation are void |
|
|
Present Estates: Life Estate
|
(1) Language: "To A for life"
(2) Characteristics: (A) Waste: entitled to ordinary uses/profits from land (I) Affirmative waste: overt conduct that cuases drop in value except prior use, reasonable repairs, grant, exploitation (PURGE) (2) Permissive waste: land allowed to fall into disrepair (A) Must maintain property (B) Must pay ordinary taxes to extent of profits from it and if none to extent of fair rental value (3) Ameliorative waste: cannot enhance property's value unless all FI holders are known and consent (3) Future Interests: reversion (grantor) or remainder (grantee) |
|
|
Future Interests: Grantor
|
(1) Possibility of Reverter - only for fee simple determinable
(2) Right of Reentry - only for see simple subject to condition subsequent (3) Reversion - arises when grantor transfers estate less than all grantor has |
|
|
Future Interests: Transferees - Remainders Generally
|
(1) Remainder - possessory only upon natural termination of prior estate (never follows determinable fee)
(2) Vested - created in ascertainable person and not subject to any condition precedent (3) Rule of Destructibility of Contingent Remainders (A) Historically - destroyed if was still contingent at the time of the ending of preceding estate (B) Present - If still contingent, O hold's estate subject to springing executory interest (4) Rule in Shelley's Case (A) Historically - Present and future interests merge when A has life estate and heirs have future interest (B) Present - grantee has life estate and heirs have contingent remainder (6) Doctrine of Worthier Title - If O while alive creates a future interest in his heirs, remainder is void and O has reversion unless contrary intent |
|
|
Future Interests: Transferees - Vested Remainders
|
(1) Indefeasibly Vested Remainder - certain to acquire estate with no conditions attached
(2) Vested Remainder Subject to Total Divestment - Right of possession can be cut short due to condition subsequent (A) Comma Rue - conditional language follows language that creates vested remainder (and setoff by commas) than condition subsequent (3) Vested Remainder Subject to Open - Remainder is in group of takers at least one of whom is qualified to take (A) Class closes whenever any member can demand possession |
|
|
Future Interests: Transferees - Executory Interests
|
(1) Shifting Executory Interest - follows defeasible fee and cuts short someone else than O
(2) Springing Executory Interest - Cuts short O's interest |
|
|
Rule Against Perpetuities: Rule
|
Certain kinds of future interests are void if there is any possibility that interest may vest more than 21 years after death of a measuring life
|
|
|
Rule Against Perpetuities: Checklist
|
(1) Ensure that FI is not in O, indefeasibly vested remainder or vested remainder subject to condition subsequent
(2) Identify conditions precedent to vesting (3) Find a measuring life that is relevant to condition's occurrence (4) See if future interest will vest within 21 years of that life |
|
|
Rule Against Perpetuities: Bright Line Rules
|
(1) A gift to an open class that is conditioned on the members surviging to an age beyond 21 years violates RAP
(2) An executory interst with no limit on time within which it must vest violates RAP (A) After stricking offending language conveyance is no longer gramatically sound, entire conditional clause is stricken (B) Gift from charity to charity does not violate RAP |
|
|
Rule Against Perpetuities: Reforms
|
(1) Wait and See - Validity of future interest is determined on basis of the facts as they exist at the conclusion of the measuring life
(2) Uniform Statutory RAP - alternate 90 year vesting period (3) Cy pres - if RAP violated, court may reform it that matches grantor's intent but complies with RAP & reduce any offensive age contingency to 21 years |
|
|
Concurrent Estates
|
(1) Joint Tenancy - 2+ owners with right of survivorship; must take interest in same time, same title, identical interest, possession to the whole
(A) Must be clearly stated (B) Severance - Sale, partition, mortgage (SPAM) (I) Lien Theory (Majority) - mortgage will not sever (II) Title Theory (Minority) - mortgage will sever (2) Tenancy by the Entirety - Between married partners with right of survivorship (A) Creditors of only one does not reach tenancy (B) Neither one by themselves can defeat survivorship rights by unilateral conveyance (3) Tenancy in common - each owns individual, devisable part, and right to possess the whole |
|
|
Concurrent Estates: Rights & Duties of Cotenants
|
(1) Possession of the whol
(2) No rent due from one's exclusive possession unless ouster (3) Rent from third parties shared (4) Cannot acquire title by adverse possession (5) Contribution for repairs if told other of need (6) No contribution for improvement but credit at partition (7) No waste |
|
|
Landlord/Tenant: Leasehold Estates
|
(1) Tenancy for Years: fixed period of time (termination date) and no notice to terminate
(2) Periodic Tenancy - successive intervals until notice of termination (holdover, no duration mentioned, violation of SOF) notice equal to term but 6 mo for 1 year (3) Tenancy at Will - no fixed duration but payment of rent at regular intervals interprited as periodic tenancy (4) Tenancy at sufferance - created by wrongful holdover and lasts until eviction or new tenancy |
|
|
Landlord/Tenant: Tenant Duties
|
(1) Liability - responsible for keeping premises in good repair and liable for injuries those sustained by invited
(2) Duty to Repair - unless otherwise noted, mantain premises and make ordinary repairs (A) No waste (B) Removal of any fixutres is voluntary waste (C) Fixtures - when removal causes substantial damge ot premises (3) Duty to pay rent - if not paid, may evict sue for damages but no self-help (A) If tenant no longer inpossession, landlord can treat as surrender, ignore and hold for rent, re-let premises (SIR) |
|
|
Landlord/Tenant: Landlord Duties
|
(1) Duty to deliver actual physical possession
(2) Implied covenant of quiet enjoyment - wongful evicion or SING (substantial interference, notice, goodbye) (3) Warranty of habitability - for residential leases, fit for human dwelling (A) If breach, can MR3 (Move, repair, reduce rent, remain) |
|
|
Assignment vs. Sublease
|
(1) transfer of entire interest vs. part
(2) If assigned, T2 is in privity of estate with L and liable for covenants that run with land but not privity of K unless assume all promises in lease (3) T1 is in privity of K with L and is secondarily liable |
|
|
Landlord Tort Liability
|
(1) L not required to make safe except
(A) Common areas (B) Latent defects - must warn of hidden defect that L should know about (C) Assumption of Repairs (D) Public use - public space and should know because of nature of defect and lease that T will not repair, liable for any defect on premises (5) Short term lease of furnished dwelling |
|
|
Servitudes: Types
|
(1) Affirmative Easement
(2) Negative Easement (3) Real Covenants (4) Equitable Servitudes |
|
|
Servitudes: Easements
|
(1) Grant of a nonpossessory property interest that entitles holder use of servient estate
(2) Affirmative - right to do something (3) Prevent servient landowner from doing permissible thing - MUST BE EXPRESS (A) Light (B) Air (C) Support (D) Stream water from artificial flow (4) Appurtenant/gross - two parcels rather than 1 |
|
|
Servitudes: Easements Creation
|
(1) Creation (PING)
(A) Prescription - COAH (I) Continuous use for statutory period (II) Open Use (III) Actual Use (IV) Hostil Use (no permission) (B) Implication - previous use apparent and parties expected use to survive division because reasonably necessary to use and enjoyment (C) Necessity - grantor conveys portion of land with no way out except grantors remaining land (D) Grant - must be in writing if 1+ year |
|
|
Servitudes: Easements Transfer
|
(1) Appurtenant easement pass automatically with dominant tenement and sometimes with servient unless bona fide purchaser without notice
(2) Gross not transferable unless for for commercial purpose |
|
|
Servitudes: EasementsTermination
|
(1) Termination - END CRAMP
(A) Estoppel - servient owner materially changes position in reliance on holders assurances will not enforce (B) Necessity - expires when necessity ends unless express grant (C) Destruciton of servient land (D) Condemnation through eminent domain (E) Release (F) Abandonment - demonstrate by physical action intent never use again (G) Merger (H) Prescription (COAH) |
|
|
Servitudes: License
|
(1) Privilege to enter for some delineated purpose
(2) Freely revokable unless estopped by expenditure of substantial money or labor (3) Example: ticket & neighbors talking by fence |
|
|
Servitudes: Covenant
|
(1) Promise related to land that is a K limitation not property interest
(2) Covenant vs. Equitable servitude - basis of relief P seeks, if money than covenant; if injunction, equitable servitude |
|
|
Servitudes: Covenant - Binding on Successors Checklist
|
(1) Burden passes to A1
(A) Writing (B) Intent of original parties to run with land (C) Touch and concerns land (affects legal relation as landowners) (D) Horizontal privity - succession of estate (grantor/leasor/mortgagor) (E) Vertical privity - non-hostile nexus (did not acquire interest in adverse possession) (2) Benefit passes to B1 (A) Writing (B) Intent of parties for benefit to run (C) Touch and concern land (D) Vertical privity |
|
|
Servitudes: Equitable Servitude
|
(1) Promise that equity will enforce against successors accompanied by injunction
(2) Creation (A) Writing (generally) (B) Intent (C) Touch and Concern (D) Notice to burdened landholder (3) Implied Equitable servitude (A) Subdivider had general scheme of residential development that included D's lot (B) D had notice of promise in other deeds (actual, inquiry, record) (4) Equitable Defense - changed condition so pervasive that entire area changed |
|
|
Adverse Possession - Elements
|
COAH - subjective state of mind irrelevant
(1) Continuous for statutory period (2) Open and notorious - use land as owner would (3) Actual - literal entry (4) Hostile - without consent |
|
|
Adverse Possession - Tacking & Disability
|
(1) Can tack if in privity (non-hostile nexus) - ouster does not count
(2) SOL does not run if disability at start of adverse possession |
|
|
Land Conveyance - Land Contract
|
(1) Satisfy SOF or part performance 2 of 3 (possession, payment, substantial improvement)
(2) Implied promises (A) Marketable title (no reasonable litigation); no adverse possession, encumbrance, zoning violation) (B) No false statements, no disclosure of latent defect (C) Warranty for fitness if new construction |
|
|
Land Conveyance - Deed
|
(1) Transfer - LEAD
(A) Lawful Execution - unambiguous description (B) Delivery - grantor had present intent to be immediately bound & no express rejection by grantee (2) Types (A) Quitclaim - still promise of marketable title in land K (B) Warranty (I) Present convenants - owns estate, power to transfer, no servitudes (II)Future covenants - quiet enjoyment (another doesnt have lawful claim of title), warranty (defend against claims), further assurances (fix defects to perfect) (C) Special warranty - grantor himself hasn't conveyed to anyone else and no encumbrances he made |
|
|
Recording System
|
(1) Bona fide purchaser - purchase for value without notice (record notice must be properly recorded)
(2) Shelter Rule - one who takes from BFP will win against anyone BFP would have prevailed against |
|
|
Equitable Mortgage
|
If mortgagee sells to bona fide purchaser, mortgagor can sue mortgagee and sale proceeds
|
|
|
Transfer of Mortgagee Interest
|
(1) If note endorsed and delivered, holder is HDC if takes in good faith without notice and with value
(2) Personal defenses (A) No consideration (B) Fraud in inducement (C) Unconciousability (D) Waiver (E) Estoppel (3) Real Defenses MAD FIFI4 (A) Material Alteration (B) Duress (C) Fraud in Fact (instrument itself) (D) Incompetency (E) Illegality (F) Infancy (G) Insolvency |
|
|
Lateral Support
|
Improved land = negligence unless improved land would have collapsed in natural state
|
|
|
Water Rights
|
(1) Riparian doctrine - water belongs to adjacent land owners and can make reasonable use of water
(2) Prior appropriation doctrine - first person who makes beneficial use of the water will trump subsequent users (3) Ground water - surface owner can make reasonable use if not wasteful (4) Surface waters - common enemy rule is that owner may make any changes that change flow of surface water that are not unnecessarily harmful to other land |
|
|
Tresspass/Nuisance
|
(1) Trespass - must be invasion of land by tangible object
(2) Nuisance - must be substantial and unreasonable but does not include hypersensitive plaintiff |
|
|
Zoning
|
(1) Variance
(A) Undue hardship (B) variance will not decrease surrounding property values (2) Lawful existing use cannot be deemed non-conforming immediately unless just compensation (3) Exactions - must be reasonably related in nature and scope to impact of proposed use |
|
|
Holdover Tenant
|
(1) If L told the T that rent is more before expiration of lease, T must pay new amount
(2) Duration (A) Residential - Month to Month (B) Commercial - same period as written lease up to 1 year |
|
|
Fixture Filing
|
SI in a fixture prevails over prior recorded mortgage on land as long as SI is recorded within 20 days after chattel is affixed
|
|
|
Riparian Rights
|
domestic natural use trumps commercial and agricultural use
|
|
|
Landlord Sale of Leased Property
|
Buyer is liable to leasee for breaches of covenant that run with the land (lease agreements) even if he did not assume the lease
|
|
|
Holdover Tenant
|
(1) Commercial - Y to Y or more then bound to Y lease; rent same unless notified before holdover
(2) Residential - always M to M ; same rent unless notified before |
|
|
Reciprocal Negative Easement
|
Reciprocal negative easement for subdivided properties where
(1) Common development scheme (2) Notice of the covenants |
|
|
Deed Delivery Requirement
|
Delivery of a deed to an escrow without right to revoke is sufficient for delivery
|
|
|
Transfer of Mortgage without Informing Mortgagor
|
If an orginal morgagee transfer possession of a note without giving notice of the transfer to teh morgator, mortgagor's payment to the morgagee is effective even though they are not entitled to enforce instrument
|
|
|
Conveyance of Easement Appurtenant without Conveying Land
|
Does not void easement but ineffective, still passes with dominant estate
|
|
|
Underground Water Reasonable Use Doctrine
|
As long as not wasteful or malicious, ANY use for the land is ok
|
|
|
Right of First Refusal
|
Void, even if in grantor, if not limited to 21 years
|
|
|
Assignment of Lease
|
If assignee promises original tenant to pay all future rent, landlord can sue assign as third party beneficiary even if assignee later assigns himself
|
|
|
Closing Date in Closing
|
Seller has reasonable time after date set for closing to tender performance; Time of essance cluase note absolutely binding in equity if tender performance within reasonable time
|
|
|
Covenant - Passing the Burden
|
Must also have notice per the recording statute, and if no a purchaser for value, notice not required
|
|
|
Profit
|
An interest in land that must be compensated if land taken by eminant domain; includes nonexclusive profits
|
|
|
Horizontal Privity for Joint Maintenance of Road
|
Covenant of abutting landowners to jointly maintain driveway satisfies horizontal privity as they are mutual intersts in same proeprty
|
|
|
Sublease of a Lessees
|
Sublesee is not personally libable to landlord for performance of any other convenatns made by the orginal lessee in the main lease as the sublesee does not hold the tenants full estate in land as long as sublessee did not assume the covenants
|
|
|
RAP & Rights of First Refusal/Options
|
RAP does not appl when option or right of first refusal held by a current tentant or assignee but does apply to former tenant
|
|
|
Joint Tenants & Liens
|
Lien on joint tenant does not itself result in severance; upon death of debtor interest passses without encumberances to joint tenant
|
|
|
Easements & Marketable Title
|
Beneficial easement known to the buyer does not render title unmarketable
|
|
|
Loan Modification of Subsequent Assumption of Mortgage
|
If person assumes the mortgage, a modification of the loan terms by makign it more burdensome, senior loses priority and orginal mortgagor is relased from K
|
|
|
Multiple Assignments
|
If landlord grants consent to one transfer he waives his right to avoid future transfers unless he expressly reserves the right to do so
|
|
|
Deed Larger Conveyance than Owned
|
Deed purporting to convey more land than hte grantor own does not invalidate the deed
|
|
|
Admissibility fo Pleas in Civil Cases
|
If plea withdrawn, cannot be admitted
|
|
|
Deed Larger Conveyance than Owned
|
Deed purporting to convey more land than hte grantor own does not invalidate the deed
|
|
|
Restraint on Alienation
|
Construed strictly, therefore covenant prohibiting assignment does not prohibit subleasing and vice versa
|
|
|
Assignee
|
Liable for all convenants that touch and concern the land regardless of notice
|
|
|
Partial Condemnation of Leased Estate
|
Leasee must still pay full rental price although it is entitled to share in the condemnation award
|
|
|
Easement Holder
|
If excavate in the course of an easement, must reasonable restore the surface following the excavation
|
|
|
Life Tenant & Remandermen Regarding Encumbrances
|
Life tenant is obligated to pay interst on any encumberances on the land but does not have to pay the principal which the remaindermen or reversions must pay to protect their interest
|
|
|
Touch and Concern Land
|
Benefit landowners in the use and enjoyment of their land
|
