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109 Cards in this Set
- Front
- Back
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What causes a remainder to be vested? |
It is given to an ascertained grantee (someone who can be identified) and is not subject to a condition precedent .
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What is a class gift that is vested subject to open?
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A vested remainder in a class gift in which the full class membership is unknown.
e.g.: "to Anna for life, then to Anna's children who reach 21." Anna has three kids - Ben (25), Carmen (18), and David (15). |
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Rule of Convenience
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A rule that prevents classifying an interest as vested subject to open and therefor avoids RAP.
If the grant doesn't have an express closing date, the Rule of Convenience closes the class when any member of the class becomes entitled to immediate possession. |
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Doctrine of Worthier Title
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prevents against remainders in grantor's heirs; creates presumption in a reversion to the grantor
e.g.: Oliver conveys "to Anna for life, then to my heirs." Oliver retains a reversion under the Doctrine of Worthier Title. |
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Rule in Shelley's case
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Prevents against remainders in grantee's heirs. Uses doctrine of merger to create a fee simple.
e.g.: Oliver conveys "to Anna for life, then to Anna's heirs." Anna has a fee simple absolute under the Rule in Shelley's Case. |
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What future interests does RAP apply to?
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Contingent Remainders
Executory Interests Will also apply to vested remainders subject to open if remainder is not closed by the rule of convenience. |
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What happens when a gift to any member of a class is void under RAP? What are the two exceptions?
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The gift is void as to all members of the class.
The "all or nothing rule." Two exceptions: transfers of a specific dollar amount to each class member and transfers to a subclass that vests at a specific time (e.g. "to the children of B, and upon the death of each, to that child's issue." -- Both are tested separately under RAP |
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What is the "Wait and See" Approach?
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Courts will wait and see if the interest subject to RAP vests within the perpetuities period. (90 years)
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Three situations in which the tenant's duty to pay rent is suspended:
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Premises are destroyed, so long as tenant did not cause the damage
The landlord completely or partially evicts the tenant The landlord materially breaches the lease |
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Implied Covenant of Quiet Enjoyment
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the tenant can withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for their intended purposes and the tenant is constructively evicted
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Elements of a Constructive Eviction
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Premises were unusable for their intended purposes
The tenant notifies the landlord of the problem The landlord does not correct the problem The tenant vacates the premises after a reasonable amount of time has passed |
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Implied Warranty of Habitability
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The landlord has an obligation to maintain the property such that it is suitable for residential use. Concerned with conditions that threaten tenant health and safety.
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What may a tenant do if the premises are not habitable?
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Refuse to pay rent
Remedy the defect and offset the costs against the rent Defend against eviction |
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If a tenant refuses to withhold rent because the premises are not habitable, what must the tenant do?
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Notify the landlord of the problem and give the landlord a reasonable opportunity to correct the problem. Does not require the tenant to vacate the premises.
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Three types of waste and their definitions
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Affirmative waste: waste caused by voluntary conduct, which causes a decrease in value
Permissive waste: waste caused by neglect toward the property, which causes a decrease in value Ameliorative waste: special situation in which a tenant or other person in possession changes the use of the property and actually increases the value of the property |
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Who holds the duty of repairing a leased property?
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In a residential lease, the landlord is presumed to be responsible for repairs and the tenant must notify the landlord of any repairs needed.
In a commercial lease, the landlord can place the duty to repair on the tenant. |
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Majority and Minority Rules for landlords mitigating damages when a tenant abandons property
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Majority: landlord must make reasonable efforts to re-rent the property
Minority: landlord does not have to mitigate (most commercial leases) |
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What duty does a landlord have to deliver possession?
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Majority Rule: landlord must deliver actual possession (physical possession) (VA for residential leases)
Minority Rule - landlord only required to deliver legal possession (VA for commercial leases) |
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Landlord owes a tenant the duty of quiet enjoyment by controlling which two things?
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Common areas (such as lobby, hallway, etc.)
Nuisance like behavior of other tenants |
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What is a tenant's tort liability?
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Tenant owes a duty of care, extended to invitees, licensees, and foreseeable trespassers.
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What is the landlord's tort liability?
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Liable to invitees, licensees, and foreseeable trespassers for the following:
negligence for latent or hidden defects about which the tenant has not been warned faulty repairs completed by the landlord or the landlord's agent negligently negligence that causes injuries in common areas of the property |
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Assignment v. Sublease
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an assignment is a complete transfer of the tenant's remaining term
a sublease is a transfer for less than the entire duration of the lease |
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What does the Fair Housing Act restrict?
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A landlord's liability to choose tenants based on race, color, religion, national origin, sex, disability, and familial status
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Adverse Possession
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allows a person in unlawful possession to acquire good title to a piece of property
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Two basic rationales for the doctrine of adverse possession:
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punish a true owner for sleeping on her rights
rewarding an adverse possessor for earning good title |
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Four elements of adverse possession
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hostile, open, notorious, exclusive, continuous
(house on every corner) |
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When will the statute of limitations not run against a true owner in an adverse possession claim?
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When the true owner has a disability at the time the adverse possession begins (insanity, infancy, imprisonment)
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"Open and Notorious"
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An adverse possessor's use must be open and notorious, such that the use would put a reasonable true owner on notice of the adverse use.
(cannot be a hidden use) |
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"Hostile"
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possession must be adverse to the owner's interest
does not mean unpleasant Majority Rule: does not inquire into the adverse possessor's state of mind Minority Rule: inquires into the adverse possessor's state of mind (some require good faith, others require that the person try to acquire by adverse possession) |
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"Exclusive"
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an adverse possessor cannot share possession with the true owner but can share with another adverse possessor (would become tenants in common)
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Two stages of a Land Sale Contract
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Contract Stage then Deed Stage
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When you in the contract stage, any liability must be based on what?
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a contract provision
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When you are in the deed stage, any liability is based on a what?
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deed warranty
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Doctrine of Merger
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Covenants under the contract are merged into the deed and therefore can't be enforced unless the covenant is also in the deed.
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What does the Statute of Frauds require?
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a writing
signed by the party to be charged including the essential terms (the parties, description of the property, and the price and payment info) |
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What are two main exceptions to the statute of frauds?
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Part Performance
Detrimental Alliance |
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What must you do with a land sale contract?
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Put it in writing because it is subject to the statute of frauds (unless an exception applies)
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Part Performance
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partial performance by either the seller or the buyer is treated as evidence that the contract existed (look for payment of all/part of purchase price or possession by the purchaser)
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detrimental reliance
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an estoppel doctrine that applies where a party has reasonably relied on the contract and would suffer hardship if the contract is not enforced
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What does every land sale contract include?
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An implied covenant of marketable title
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What is the implied covenant of marketable title?
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Guarantee that title is free from an unreasonable risk of litigation
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When must defects in title be cured or fixed?
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Before closing, at which point the contract and deed merge and the deed controls
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What is the buyer's remedy if a seller cannot deliver marketable title?
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Rescission of the contract
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Implied warranty of fitness or suitability applies to what?
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defects in new construction
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When must a claim for breach of implied warranty of fitness or suitability be brought? Who can recover?
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within a reasonable time after discovery of the defect; in most jurisdictions,, both the initial homeowner-purchaser and subsequent purchasers can recover; in other jurisdictions, only the original buyer
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Duty to Disclose Defects is imposed when and what does it require?
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Most jurisdictions impose a duty on the seller to disclose to the buyer all known, physical material defects. Material defect must substantially effect the value of the home, health and safety of its occupants, or the desirability.
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What are seller's remedies on a buyer's breach?
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-Damages (difference between contract price and market price)
-Rescission (can sell to someone else) -Specific performance |
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Buyers remedies on breach of seller include...
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-damages (difference between contract price and market value on date of breach... but if seller breaches but acted in good faith, only out of pocket expenses)
-rescission (returns payments to buyer and cancels contract) -specific performance |
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Equitable conversion and risk of loss
Majority & Minority Rules |
Majority: buyer holds equitable title during the period between execution of contract and the closing/delivery of deed; buyer holds risk of loss, seller holds legal title and can possess the property
Minority: places the risk of loss on the seller until the closing and delivery of the deed |
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What items must a valid deed include?
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1.) must identify the parties
2.) must be signed by the grantor 3.) must include words of transfer (any words that evidence a present intent to transfer) 4.) must include a sufficient description of the property |
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When is a deed valid?
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at delivery
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What is the baseline rule for recording?
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first in time, first in right
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What six types of interests are covered by the recording statutes?
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deeds
mortgages leases options judgments affecting title other instruments creating an interest in land, such as easements or covenants |
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Who is not covered by recording acts?
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grantees who acquire title by gift, intestacy, or devise
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Three types of notice & definitions
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actual notice - when the subsequent grantee has real, personal knowledge of a prior interest
constructive notice (record) - when prior interest is recorded inquiry notice - when a reasonable investigation would have disclosed the existence of prior claims |
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Race statutes
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first to record wins, even if subsequent purchaser had notice of a prior, unrecorded conveyance
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Notice statutes
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subsequent purchaser has good title if she buys without notice of a prior, unrecorded conveyance
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Race-Notice Statute
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subsequent purchaser has good title if two requirements are met:
purchase without notice of a prior unrecorded conveyance and record first |
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Shelter Rule
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a person who takes from a bona fide purchaser protected by the recording act has the same rights as his grantor
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Estoppel by Deed
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arises when a grantor conveys land that the grantor does not own. If he subsequently acquires title to the land, he is estopped from trying to repossess on the grounds that he didn't have title when the made the original conveyance
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Fixture
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tangible personal property that is attached to real property in a manner that is treated as part of the real property
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Specific Gift
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a devise of property that can be distinguished from the rest of the testator's estate
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General Gift
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a devise of personal property that will be satisfied from the general assets of the estate
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Demonstrative Gift
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a general devise that is satisfied from a particular source
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Residuary Gift
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the balance of the estate after all the general and specific gifts have been made
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Ademption by Extinction
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devise of property that fails (is "adeemed") because it is no longer in the testator's estate at the testator's death; the beneficiary receives nothing
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Ademption by Satisfaction
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If the testator gives the property to the beneficiary while the testator is alive the gift is adeemed by satisfaction and the beneficiary's gift is completed during the testator's lifetime
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Lapse
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A devise of real property will lapse (fail) if the beneficiary dies before the testator dies and no alternative beneficiary is named
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Anti-Lapse Statutes
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all jurisdictions have statutes that are designed to prevent gifts from lapsing. These statutes apply when two elements are satisfied:
the lapsed gift was made to a party specified in the statute (usually a family member) and the deceased beneficiary is survived by issue. If these two requirements are met, the gift goes to the issue and does not lapse |
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Settlor
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person who creates the trust
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beneficiary
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Person who has the benefit of the trust
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Trustee
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person who has the responsibility of managing the property and holds legal title
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Bifurcated transfer
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Trustee holds legal title while the beneficiary holds equitable title
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Easement
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right held by one person to make use of another person's land
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serviant estate
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land burdened by an easement
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dominant estate
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land benefited by the easement
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Affirmative easement
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gives the holder the right to do something on her land
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Negative easement
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gives the holder the right to prevent someone from doing something on her land
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Easement appurtenant
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An easement that is tied to the land
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Easement in gross
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An easement that benefits the holder personally
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Two ways to create an easement
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express or implied
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Must an easement be in writing?
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An express easement must be in writing
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How is an Easement by Reservation created?
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Created when a grantor conveys land but reserves an easement right in the land for the grantor's use and benefit
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Are easements subject to recording statutes?
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Express easements are
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Can negative easements be created both expressly and by implication?
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No, only expressly.
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Four types of implied easements
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Easement by necessity
by implication by prescription by estoppel |
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Requirements for creating easement by necessity
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only when the property is virtually useless and only when the dominant and servient estates were owned by one person and necessity arose when the estates were severed into two separate estates.
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When does an easement by necessity end?
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when it is no longer necessary
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Requirements for easement by implication
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1.) large estate owned by one owner
2.) before division owner of the large tract uses the land as though there's an easement on it (quasi-easement) 3.) use was continuous and apparent at time of severance 4.) use was reasonably necessary to the dominant estate's use and enjoyment |
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requirements for implied easement by prescription
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continuous for statutory period
open and notorious hostile (house on corner) |
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how to create an implied easement by estoppel
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starts with a permissive use then the second neighbor relies on the first neighbor's promise, then the first neighbor revokes the permission
first neighbor is estopped from withdrawing permission if second neighbor relied to his detriment |
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7 ways to terminate an easement
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1.) express release (requires for express easement that it be in writing)
2.) merger - occurs when owner of easement acquires fee simple in underlying estate 3.) abandonment (requires act plus intent) 4.) prescription (fails to protect against trespasser for statutory period) 5.) sale to bona fide purchaser 6.) estoppel 7.) end of necessity |
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profit
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right to enter another's land and remove a specific natural resource (cannot be created by necessity)
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license
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a permission to use another's land (revocable)
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real covenant
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a promise concerning the use of the land that runs to successors to the promise
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five elements for requiring that something run with the land (binds successor)
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writing, original parties' intent, touch & concern, actual or constructive notice, privity
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Remedy for breach of real covenant
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damages
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requirements for Equitable servitude
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in writing, original parties' intent, touch & concern, and actual, record, or inquiry notice (note difference here)
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Two ways to bind a successor to an original party's promise
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real covenant
equitable servitude |
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remedy for breach of equitable servitude
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injunctive relief
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Implied Reciprocal Servitude - requirements
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usually comes up in planned communities; requires intent of a covenant on all plots in subdivision, reciprocal (benefits and burdens every parcel), that it is negative (a restriction on owner's use), successor must have at least inquiry notice, and must be a common plan or scheme
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Riparian rights
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doctrine that holds that landowners who border a waterway own the rights to the waterway; share the right to reasonable use of water and may be liable to another for interference with that right
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Prior Appropriation
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First in Time, First in Right rule for water rights
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Support Rights - Lateral Support
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Neighbor cannot excavate so as to cause a cave-in.
Negligence liability when the actions caused a cave-in and the neighbor's surface buildings contributed Strict liability when there was a cave-in and the other buildings did not contribute |
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Support Rights - Subjacent Support
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owner of mineral rights is strictly liable for any failure to support the land and any buildings that existed when the rights were created
owner of mineral rights liable for negligence for damage to any building built after the rights were created |
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1 sentence description of Eminent Domain
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When the gov't takes property, the gov't receives title to the property and pays the landowner just compensation.
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Regulatory Taking
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When a gov't regulates a piece of property and the regulation reduces its economic value to the point where the gov't must pay just compensation
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Private Nuisance
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a substantial and unreasonable interference with another individual''s use or enjoyment of his property
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Public Nuisance
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unreasonable interference with the health, safety or property rights of the community; requires a private party to show she suffered a different harm that the rest of the community to recover
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