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137 Cards in this Set

  • Front
  • Back
What language do you use to make a fee simple determinable?
To A so long as, during, until...
What's the future interest tied with a FSD?
Possibility of reverter
What is a Fee Simple Subject to Condition Subsequent
Includes clear durational language + a right (option) to reenter and retake by O
What is the future interest in a Fee Simple Subject to Condition Subsequent
Termination/Power of Entry
How do you create a Fee Simple Subject to Executory Limitation?
O to A, but if X occurs, to B
What future interest is created by To A for life to B and her heirs, but if B predeceases A, then C and her heirs? (Interest for C)
Shifting executory interest
What the rule regarding restraints on alienation?
Restraints on alienation must be for a reasonable, time-limited purpose
What interest does a grantor have in a life estate?
Reversion
What is a life estate pur autre vie
It's when the life estate is measured by life other than a grantee?
What is the most common way a life estate pur autre vie is formed?
When someone with a life estate sells her life state to another
What is the Life Tenant not allowed to do?
Engage in WASTE
What is voluntary or affirmative waste? What is its consequence?
It's overt conduct that causes a decrease in value, and if it's done WANTONLY she is to pay DOUBLE damages.
What's the rule regarding natural resources for a life tenant?
Life Tenant cannot exploit UNLESS PURGE
PRIOR USE (including open mines doctrine)
Reasonable REPAIRS and maintenance
GRANT -- if explicitly granted the right
EXPLOITATION -- if the land is only valuable for exploitation
What is the open mines' doctrine?
Life Tenant can use already open mines, but cannot open any new ones
What is Permissive Waste or Neglect
When neglect causes property to fall into disrepair
Do Life Estate holders have a duty to repair? What does that duty contain?
They do have the duty and they must
1) maintain premises in reasonably good repair
2) Must pay ordinary taxes on the land based on income or profits OR fair rental value if no income/profits
Can life estate holders engage in ameliorative waste?
NO, unless ALL FUTURE INTEREST holders are KNOWN and all CONSENT
What are the four types of remainders
1) Indefeasibly vested remainder
2) Vested Remainder Subject to Complete Defeasance or Vested Remainder Subject to Total Divestment
3) Vested Remainder Subject to Open
4) Contingent Remainder
In O to A, unless X happens, then to B. What interest does B have?
B has an EXECUTORY interest. There is NO REMAINDER in defeasible fee.
When is a remainder VESTED?
IF it is created in an ascertained person, and not subject to any condition precedent
When is a remainder CONTINGENT?
If it is created in a person 1)unborn or unascertained or
2) subjection to condition PRECEDENT
What happens in a O to A for life, then to A's heirs
O has reversion
A has life estate
A's heir have contingent remainder if they are born before A's death.
What is the Doctrine of Worthier Title? Effect in Virginia?
It eliminates O's attempt to create a future interest in her heirs (O To A Life for Life, then to O's heirs).

BUT IT IS ABOLISHED IN VIRGINIA. Therefore it is a contingent remainder to be determined at O's death.
What is an indefeasibly vested remainder?
When someone will
1) Definitely acquire estate
2) With no conditions attached
What is a vested remainder subject to compleate defeasance?
When there is a remainderman and NO condition precedent, but interest could be cut short by condition SUBSEQUENT.
What is a vested remainder subject to open?
When a remainder is vested to a group and at least one of whom is undetermined
What is the rule of convenience?
Class closes when ANY member can demand possession
What's the Womb Rule?
Persons in gestation when the class closes are INCLUDED
When are you MOST LIKELY to see a remainder?
After a Life Estate or Term of years
What's a shifting executory interest?
Follows a defeasible fee and cuts short someone's interest OTHER than a grantor
What's a springing executory interest?
Follows a defeasible fee and cuts short interest of grantor/heirs.
What is the Rule Against Perpetutities (exact language)
No interest in property is valid unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest
What are the two bright line rules for RAP?
1)A gift to an open class that has a condition on the members surviving to age beyond 21 violates RAP.
2) A shifting exectuory interest with no limit on time
What does descendible mean?
Able to pass through intestate succession
What is main characteristic of Joint Tenancy?
Right of survivorship (share goes to other tenant at death)
In what ways can an interest in a joint tenancy be transfered?
Only through an inter vivos transfer! (Alienable only)
What are the requirements to create a co-tenancy?
T-TIP
At same TIME
With same TITLE
IDENTICAL interest
Right to POSSESS the whole
What does one have to make your fee simple into a joint tenancy?
Use a straw. Transfer property to straw who transfers it to you as joint tenant
How can a Joint Tenancy be severed?
SPAM
1) Severance and SALE (buyer becomes tenant-in-common). (Happens AT SALE)
2) Severance and PARTITION (through contract or legal process)
3) Severance and MORTGAGE (Only in Title theory states -- NOT VIRGINIA)
In a tenancy in the entirety, what happens if a husband transfers interest to 3rd party without wife's knowing?
It does not DEFEAT right of survivorship. Wife keeps her right to land.
What are duties of co-tenants? (5)
1) Can't interfere with full possession of another
2) If leases out, must account to other by paying FAIR SHARE of rental income
3) Must pay CARRYING COSTS (taxes, mortgage interest payments)
4) Pay CONTRIBUTION for any reasonable/necessary repairs if given notice of need of repairs
5) No committing waste
If tenant just pays rent every month without formal written agreement, what time of lease is formed?
Month to Month periodic tenancy
What notice is required to terminate a lease of years? What is effect of staying over?
NO NOTICE and staying over creates a YEAR-TO-YEAR periodic lease
What notice is required to terminate a periodic tenancy?
Commercial Lease= Written notice equal to the period of time. Year to Year = 6 months.

Residential
Year to Year = 3 months
Month to Month 30 days
Week to Week = 7 days
What termination notice is required for a tenancy at will?
Any time, but a reasonable demand to vacate is required.
What is a tenancy sufferance?
When tenant wrongfully holdsover.
What are tenant's duties?
1) Keep property in reasonably good repair for 3rd party visitors
2) Duty to Repair
3) Duty to Pay Rent
How do you determine if property is a fixture?
1) Express Contract
2) Examine if objectively shows intent to improve realty.
3) 9/10 times examining whether removal will cause substantial harm will determine if it's a fixture
What happens if property is destroyed and it not Tenant's fault when lease says Tenant responsible for keeping property in good condition.
Majority: Tenant can terminate lease if property destroyed and not her fault
What is statute of limitations for unlawful detainer action?
3 years
What can L do if T refuses to pay rent but remains in possession?
Action for unlawful detainer which leads to eviction and back rent
What can L do if T is out of possession but does not pay rent?
SIR
1) Treat as surrender (but must first try and send notice that she is taking this option
2) Ignore and hold T responsible for rent
3) First must try and RE-LET and hold tenant for any deficiency
What is maximum amount of security deposit?
2 months
When must landlord return security deposit?
45 days
What are the landlords duty? (4)
1) Duty to deliver possession under English Rule (Majority)
2) Quiet Enjoyment
3) Residential Warranty of Habitability
4) Disclose mold
What are the elements of constructive eviction?
SING

SUBTANTIAL INTERFERENCE by LANDLORD'S actions/failure to act
NOTICE from tenant to landlord and L refuses to respond
GOODBYE T vacates in reasonable amount of time
When is L responsible for acts of other tenants?
ONLY when Landlord permits nusiance on premises, or she does not control common areas
What are Tenant's options in breach of warranty of habitability?
MR3

Move out and end lease
Repair and Deduct from rent
Reduce Rent and whithold all rent (and put in escrow) until court determines fair rental value
Remain and pay rent, and seek damages
What protections does T have for reporting violations of housing code?
L cannot evict or retaliate by law
What is the warranty of habitability?
Premises must be fit for basic human habitation
If you are in privity of estate with a landlord what are you liable?
All covenants in original lease that RUN WITH THE LAND
If you are privity of contract with a landlord what are you liable for?
Secondarily liable for all obligations of the contract (unless also in privity of estate)
What are the exceptions to Caveat Lessee?
CLAPS
1) Duty to maintain COMMON AREAS
2) Landlord must warn of LATENT defects
3) If L ASSUMES repairs, must complete them with reasonable care
4) PUBLIC space rentals where tenant would not repair defects (short-term)
5) SHORT term lease of furnished dwelling
What are the four categories where negative easements are allowed?
LASS
1) Light
2) Air
3) Support
4) Stream water from artificial flow
Four Ways of Creation of Affirmative Easements?
PING
1) Prescription (Adverse Possession)
2) Implication
3) Necessity
4) Grant (contract)
What are elements of creation of easement by implication?
1) Apparent previous use
2) Use would survive division because it is NECESSARY to DOMINANT lands use and enjoyment
What leads to termination of easement? (9)
END CRAMP OP
1) Estoppel
2) Necessity ends
3) Destruction of servient land
4) Condemnation of servient estate
5) Release through Contract
6) Abandonment (only PHYSICAL -- clear intent of never using agian)
7) Merger (when dominant/servient owned by same person)
8) Prescription
9) Original Purpose of easement ends (Virginia)
When is license not revocable?
If estoppel applies (invested substantial money or labor in reasonable reliance)
When will a covenant run with the land?
When the burden and benefit run with the land?
When does the burden run with a land for purposes of a covenant binding a successor?
If WITHN
1) Writing
2) Intent
3) Touch and Concern the Land
4) Horizontal AND Vertical Privity
5) Notice
What is horizontal privity?
It's the relationship between the ORIGINAL parties who must be in succession of estate (grantor/grantee relationship, landlord/tenant relationship or mortgagor/mortgagee relationship)
What is vertical relationship?
Any kind of legal transfer between original owner and new owner
How do you determine if BENEFIT runs with the land for purposes of a covenant to bind successor?
WITV
1) Writing
2) Intent
3) Touch and Concern
4) Vertical Privity
What are the requirements for an Equitable Servitude?
WITN(ES)

1) Writing
2) Intent
3) Touch and Concern
4) Notice for successors of BURDENED land of the promise
What are the privity requirements for an equitable servitude?
NONE!
How can you distinguish an equitable servitude and a covenant?
Plaintiff seeks injunction to enforce equitable servitude while covenant would be for money damages
What are the requirements for an IMPLIED equitable servitude?
A General or Common Scheme

1) Originial subdivider had scheme that included defendant's lot
2) Defendant had NOTICE OF PROMISE contained in prior Deed
What kind of notice is needed for an implied equitable servitude in a general scheme?
1) Actual
2) Inquiry -- Lay of land conforms to common scheme
3) Record Notice -- split on whether prior deeds provides notice
What's a defense to an implied equitable servitude?
Changed conditions = changes so invasive that the entire area is changed
What are requirements for Adverse Possession?
COAH
1) Continuous for 15 YEARS (in VA)
2) Open and Notorious
3) Actual
4) Hostile
Does adverse possession of land above minerals grant title to minerals below land?
Not necessarily in Virginia
What happens if a child claims she adversely possesses a family member's land?
For the hostile element, there is a PRESUMPTION it was not hostile.
When can tacking occur for adverse possession? What is tacking?
Tacking is adding someone else's AP period. They can tack if there is privity (a non-hostile nexus between parties)
What effect does an owner of land having a disability on adverse possession?
If it happens BEFORE start of AP, it TOLLS possession. But only if before.
What if one co-tenant is a minor, but the other is not? Is the SOL tolled?
NO!
What is the maximum period of SOL + tolling for adverse possession in VA?
25 years
What triggers SOL for adverse possession involving a fee simple subject to condition subsequent?
When the event occurs, NOT when right of entry exercised.
What are requirements for land contract? (4)
1) In writing
2) Signed by party to be bound
3) Must reasonably describe the land
4) State consideration
When will SOF equitably not apply to the purchase of land?
If Buyer does 2/3
1) Takes possession
2) remits all/part of purchase price
3) Makes substantial performance
What happens if contract states property larger than actual parcel?
1) Order specific performance with pro rata reduction in purchase price
Who bears risk of loss after the land contract is signed?
The BUYER (unless k says otherwise)
What are the implied promises that are included in ALL land contracts (not only residential)? (3)
1) Promise of marketable title at closing
2) Not to make false statements of material fact
3) Duty to disclose latent material defects (MAJORITY)
What does marketable title mean?
Title free from reasonable doubt (or free from law suits)
When are circumstances when title unmarketable?
1) Adverse Possession (without ct order)
2) Encumbrances of any kind (need fee simple) (can pay mortgages at closing
3) Zoning Violations'
4) If land contract sale was PER ACRE, there is a breach of warranty if proper number of acres not delivered (Virginia Only)
What are implied promises for land contract for a NEW DWELLING? (5)
1) Marketable Title
2) Not to make false statement of material facts
3) Duty to disclose latent defects
4) Warranty of Fitness or Quality for New Construction
5) Duty to disclose IN WRITING all MATERIAL DEFECTS that would violate building codes
What does Warranty of Fitness or Quality for New Construction Require? (3)
Warranty that is
1) Free of structural defects
2) Constructed in a workmanlife manner
3) Fit for habitation
How long does Warranty of Fitness or Quality for New Construction Last? What is the SOL?
1) One year or five years for foundation
2) There is a 2 year SOL once defect appears. If owner notifies vendoer of defect if claim arose after 1/1/09, then SOL tolled for 6 months.
What are special requirements for selling a dwelling in Virginia?(3)
1) Disclose physical condition of property or say 'as is''
2) Disclose any changes between closing/contract
3) Any misrepresentation allows buyer to terminate contract
What does the Warranty of Fitness or Quality for New Construction not apply to?
CONDOS
What are the requirements of a Deed?
LEAD

1) Lawful Execution
2) And Delivery
What does lawful execution of a deed require?
1) In Writing and Signed by Grantor
2) Describe Land so someone could figure out what the property is
What are delivery requirements for a deed?
1) Physical delivery
2) Present Intent to deliver to be immediately bound (includes delivery to escrow agent)
3) No REJECTION of deed
What happens if you delivery a deed to a dead person?
It is void but equitable conversion adds it to the estate
What are the three types of covenants in regards to a deed?
1) Quitclaim
2) General Warranty Deed
3) Statutory Special Deed
What warranties come with a quitclaim?
NONE! (But don't confuse this with covenants with CONTRACT)
What warranties come with a general warranty deed?
3 Present Covenants
1) Covenant of Seism (owns estate)
2) Covenant of Right to Convey (has power to make transfer)
3) Covenant against Encumbrances (no servitudes/liens)

Future Covenants
1) Covenants of quiet enjoyment
2) Covenant of Warranty (will defend if sued)
3) Covenant for Further Assistance (Will do what reasonably necessary to perfect title)
What does a statutory special deed promise in Virginia?
Seller warrants she has done nothing herself to create a title defect
What does a statutory special deed promise on the multistate?
1) Grantor hasn't conveyed Blackacre to anyone else
2) Blackacre is free from encumbrances
What kind of recording statute does VA have?
Notice Statute
What's the rule in a notice jurisdiction?
A BFP beats a previous purchaser, irrespective if she recorded or not
What the rule in a race-notice jurisdiction
A BFP beats a previous purchaser IF she records before previous purchaser
What are requirements to become a BFP?
Purchased for VALUE and without NOTICE
What types of notice is there for recording statutes?
Actual
Inquiry -- whether an examination would show someone else lived there
3)Record Notice if within the CHAIN OF TITLE
Is inquiry notice recognized in VA?
NO!
What words do you look for in a statute to determine if it's race-notice?
first recorded
What are the requirements to record deed in VA?
1) Acknowledged by grantor and proved by two witnesses

Has NO EFFECT on title. Only record.
What is the Shelter Rule?
Transferee takes shelter in status of transferor if transferor was BFP
What is estoppel by deed?
When one conveys property she does not own, but later receives it, she cannot deny validity of conveyance.
When will an equitable mortgage be formed?
When
1) Debtor hands deed to creditors
2) Parties understand intent to create a mortgage
How does one become a holder in due course of a mortgage?
1) Note payable to named mortgagee
2) Indorsed by mortgagee
3) Original note delivered
4) Take note in GOOD FAITH without notice of illegality
5) Transferee must pay value
What suits can be brought against a holder in due course?
REAL DEFENSES (MAD FIFI4)

MATERIAL ALTERATION
DURESS
FRAUD-IN-FACTUM
INCAPACITY
ILLEGALITY
INFANCY
INSOLVENCY
If buyer assumes a mortgage from debtor-mortgagor who is liable?
1) Buyer
2) Debtor-Mortgagor secondarily liable
If buyer takes Blackacre subject to mortgage who is liable?
1) O is personally liable
2) Mortgage remains with the land (if properly recorded)
What does the mortgagor have in Virginia in regard to the mortgaged property?
Only a lien (Security interest). No right of possession until foreclosure
In Virginia, how long can mortgage be enforced after date of last payment?
10 years, but death of mortgagee tolls SOL for a year
What effect does foreclosure have on junior and senior interests?
Terminates junior interests; senior interests remain with the land
Who must be joined to a foreclosure action?
1) Debtor-Mortgagor
2) Junior Creditors
What is the exception to the first in time first in right?
Purchase Money Mortgage if properly recorded
How can debtor redeem the land?
1) Paying missed payment +
2) Interests +
3) Costs

If NO acceleration clause. Otherwise whole thing.
Can you waive right of redemption?
NO! Clogs the equity of redemption?
What is Statutory Redemption?
Allowed to redeem 6 months after sale if
1) After foreclosure, debtor can buy at foreclosure sale price
2) Mortgagor has right of possession for 6 months
3) If redeemed, NULLIFIES foreclosure sale
When can excavator be liable for damage to plaintiff's land?
1) Negligent in excavation
2) Strict Liability if plaintiff made NO improvements on land so plaintiff's actions had no impact on property. (Not recognized in Virginia)
What does the riparian doctrine?
Water belongs to those who board water and can have REASONABLE USE of water
What does the prior appropriation doctrine require?
Water belongs to state but rights determined by priority of beneficial use
What are rights regarding ground water?
Owner of land above groundwater can engage in REASONABLE USE
What's the rule for surface waters?
The Common Enemy Rule (i.e. make changes to combat flow of surface water but can't unnecessarily harm others' property, including collecting water in artificial channel and dumping it on another)
What's a private nuisance?
Substantial and unreasonable interference with others enjoyment of land