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135 Cards in this Set
- Front
- Back
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What future interests can the grantor retain?
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- reversion
- possibility of reverter - right of re-entry |
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future interests: grantee - list
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+ remainders
- vested - subject to complete divestment - subject to open - contingent remainders + executory interests - springing - shifting |
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future interest rules
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- Doctrine of Merger
- Shelly Rule (abolished in most states) - Doctrine of Worthier Title - RAP <shudder> |
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easements: what type?
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- easement appurtenant vs. gross
- dominant vs. servient tenement - affirmative vs. negative easement |
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easements: types
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- express grant or reservation
- implied grant or reservation - estoppel - necessity - dedication - prescription |
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easements: termination
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- abuse (landowner can obtain injunction)
- terms of agreement - agreement - merger - ending of necessity - abandonment - changed circumstances - estoppel |
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does interest run with the land: CHECKLIST
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- benefit or burden?
- touch & concern? - intended to be binding on later owners? - notice or privity requirements? talk about INTENT |
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real property issues checklist
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- type of ownership interest
- limitations? - land sale contracts issues |
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types of ownership interest checklist: presently owned/possessed land
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- fee simple absolute
- fee simple defeasible - fee tail - life estate |
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adverse possession
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- hostile
- adverse - notorious - open - actual - continuous - exclusive - tacking & tolling |
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limits on ownership: checklist
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- eminent domain
- zoning power - exceptions to zoning ordinances |
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covenants of title: list
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Covenant of:
- seisin - right to convey - against encumbrances - quiet enjoyment - warranty - further assurances |
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recording acts: types
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- notice: last BFP has priority
- race-notice: first BFP to record wins - race statute: first person to record wins |
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types of ownership interest checklist: leasehold
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- tenancy for years
- periodic tenancy - tenancy at will - tenancy at sufferance - no lease agreement |
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fee tail
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land which passes by descent only to lineal descendants
Modern: ABOLISHED. Turns into fee simple absolute! |
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life estate: types
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- simple life estate
- pur autre vie - dower & curtesy - abolished; now it's just intestate |
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fee simple defeasible: types
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- fee simple determinable on a special limitation
- fee simple defeasible subject to a condition subsequent |
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no lease agreement: what happens?
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tenancy at will which may transmute into a periodic tenancy. CA requires 60 days notice to terminate.
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tenant's rights & duties
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DUTY TO PAY RENT.
ISSUE: landlord substantially interfered with tenant's beneficial enjoyment of the land? EVICTION: - actual - partial - constructive EFFECT: Tenant must vacate & sue for damages |
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Tenant defenses
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- purpose becomes IMPOSSIBLE
- lease involves ILLEGAL purpose - EMINENT DOMAIN - landlord's breach of implied covenant of quiet enjoyment - L's breach of implied covenant of habitability - retaliatory eviction - complete destruction of the premises (modern law) |
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Tenant duty to avoid waste (types)
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VOLUNTARY WASTE: T's negligent/intentional conduct
PERMISSIBLE WASTE: T's omission to act AMELIORATORY WASTE: T substantially alters premises |
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landlord's rights & duties
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- can evict for non-payment
- no self-help! - no duty to mitigate - if L accepts surrender, no more payment! - don't have to refund advance rent, but must refund security deposit! - maintain common areas (hallways, driveways) - repairs: liable for injury - make premises comply with all codes - implied covenant of habitability - assignment & sublease: assignor-T still secondarily liable! - covenants against assignments & subletting strictly construed ("he only said no assignment!") |
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concurrently owned estates: types
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- joint tenancy
- tenancy by the entirety (husband & wife) - tenancy in common |
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joint tenancy: requirements
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"Four Unities:"
- time - title - interest - possession May be severed. |
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tenancy by the entirety: requirements
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"Four Unities:"
- time - title - interest - possession Limits on severability |
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co-tenants' rights & duties
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- demand partition
- possess all parts of the property - retain profits without sharing - can compel payment for preservation but not improvements - must pay taxes & interests on mortgages |
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executory interests: list
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SPRINGING INTEREST: condition will definitely be fulfilled
SHIFTING INTEREST: future interest UNLESS something happens |
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Merger Doctrine:
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If you have multiple interests, they merge.
Eg. life estate + remainder = fee simple absolute |
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Doctrine of Worthier Title
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Cannot give a remainder to your own heirs. They get it anyway.
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easement appurtenant v. gross
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appurtenant: runs with the land
gross: attached to the use (ie. taking gravel) - commercial: runs with the land - non-commercial: doesn't! |
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dominant vs. servient tenement
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dominant: owner is benefited
servient: owner is burdened |
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affirmative vs. negative easement
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affirmative: gives holder of benefit the right to do something
negative: prevents owner of servient estate from doing something |
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negative easement: types
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- air
- light - lateral support - subjacent support - artificial stream control |
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implied grant
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Created when common ownership is split. If there was a quasi-easement, it becomes an implied easement.
Requirements: - APPARENT from a reasonable inspection of the land - used CONTINUOUSLY - REASONABLY necessary |
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implied reservation
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Created when common ownership is split. If there was a quasi-easement, it becomes an implied reservation
Requirements: - APPARENT from a reasonable inspection of the land - used CONTINUOUSLY - STRICTLY necessary! |
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easement by prescription
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Easement by adverse possession!
Same requirements as normal AP: - hostile - adverse - notorious - open - actual - continuous - exclusive - statutory period (Common Law: 20 yrs) |
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Rights & duties of easement holder: location of easement
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- Location cannot be changed except by mutual agreement
- General grant: servient tenement decides exact location (must be REASONABLE) |
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rights & duties of easement owner
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- can only use for ACTIVITIES reasonably contemplated at creation
- SCOPE not specified: reasonable scope implied - change from family to commercial USE overburdens the easement - should make REPAIRS, but can't use that as an excuse to substantially change nature of easement |
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Rights & duties of servient tenement holder
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- can make any use of his property which does not interfere with easement holder's rights
- no duty to maintain easement! |
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when easements may terminate, cease, or expire
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- abuse
- terms of agreement - agreement - merger - ending of necessity / abandonment - changed circumstances - estoppel |
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does the easement/covenant/profit/equitable servitude run with the land? checklist
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- does the covenant involve a benefit/burden?
- does the interest "touch and concern" the land? - original intent - what type of non-possessory interest? - notice |
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"touch and concern"
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Affects the quality or value of the property
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requirements for running with the land: covenant or agreement
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BURDEN:
- horizontal privity - vertical privity BENEFIT: - vertical privity |
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rights in land: party walls
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adjoining owner is granted appurtenant easement to use wall for support.
Promise to maintain or pay for the wall runs with the land. |
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rights in land: water
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WATERCOURSES:
- right to use - can't alter natural flow GROUND WATER: - common law: any purpose - modern law: only for use on the overlying land SURFACE WATER: - common law: anything you want - modern law: cannot block drainage from higher land |
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how to tell if it's a fixture
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- intention
- degree of actual physical annexation - extreme weight? - ease of removal without damage to property - peculiarly adapted to the realty - essential to building's use - local customary items - when landowner defaults: trade fixtures belong to tenant, not mortgagee |
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adverse possession: requirements
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- hostile
- adverse - notorious - open - actual - continuous - exclusive |
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land sale contracts: issues
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- statute of frauds
- essential terms - implied covenant of marketability - risk of loss - deed - presumptions - conditional delivery |
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land sale contracts: statute of frauds
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Must be written & signed by seller
- OR - Part performance |
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land sale contracts: essential terms
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- description
- parties - price - manner of payment |
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land sale contracts: parol evidence
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Admissible?
latent ambiguities: yes essential terms: no |
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land sale contracts: risk of loss
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MAJORITY: buyer
UNIFORM ACT: seller (unless buyer has possession or title) |
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land sale contracts: deed requirements
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- in writing & signed by grantor
- parties - shows intent to transfer - description of land - delivered during lifetime! |
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land sale contracts: description of land to be conveyed is inconsistent or conflicting
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Priority:
- natural monuments - artificial monuments - courses - distances - name - quantity |
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land sale contracts: presumptions
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Whoever has the deed, there is a rebuttable presumption that they own the land.
Acknowledgement & recording of a deed creates presumption that deed was delivered. If there is a date, presumption that deed was delivered on that date. |
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covenants of title: list
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General warranty deed: covenants of
- seisin: grantor has the land - right to convey - against encumbrances - quiet enjoyment - warranty - optional: covenant of further assurances |
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If grantor doesn't have title, grants to grantee, then later sells to BFP
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MAJORITY RULE: BFP gets it
MINORITY RULE: grantee gets it |
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recording acts: types
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- notice statute
- race-notice statute - race statute |
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Notice Statute
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Last BFP has priority
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Race-Notice Statute
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First BFP to record wins
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Race Statute
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First PERSON to record wins, irrespective of notice!
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Sale to BFP where mortgage not recorded
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sale cuts off mortgagee's interests! (But mortgages are usually recorded)
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Sale "subject to mortgage"
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Grantee not personally liable, but grantee must satisfy the mortgage.
If deed is silent, this is the default rule! |
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Grantee who assumes mortgage
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Personally liable. So is original mortgagor on promissory note, unless there was novation
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Transfer of land with mortgage, but silent as to what to do with mortgage
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If purchase price reflects existence of mortgage debt, transfer is treated as "subject to mortgage."
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remainders: list
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- vested
- subject to complete divestment - subject to open - contingent remainders |
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executory interests: list
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- springing
- shifting |
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Adverse possession: what does hostile mean?
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- without permission
- in derogation of owner's rights That's it! Doesn't matter if it was unintentional |
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Zoning violation: is the property still marketable?
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NO.
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Housing subdivision violation: is the property still marketable?
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YES.
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Housing code violation: is the property still marketable?
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YES.
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Building code violation: is the property still marketable?
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YES.
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Vested remainder: requirements
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- beneficiaries ascertainable
- not subject to condition precedent |
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subject to open
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If there's a class of persons for the vested remainder and the class might increase in size (eg. siblings)
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subject to total divestment: definition
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Possession is subject to being defeated by the happening of a condition subsequent
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Title theory jurisdiction
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Mortgagee (creditor) is entitled to possession upon demand at any time.
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Lien theory jurisdiction
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Title remains in the mortgagor (debtor) and mortgagee (creditor) holds only a security interest in the property
CALIFORNIA |
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fee simple determinable on a special limitation
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Estate automatically reverts to grantor upon occurrence of contingency.
AUTOMATIC reverter. |
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fee simple defeasible subject to a condition subsequent
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Estate is subject to grantor's right of reentry upon occurrence of contingency.
OPTIONAL reverter (not automatic!) |
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tenancy at will
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"either party may terminate"
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remainders: list
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- vested
- subject to complete divestment - subject to open - contingent remainders |
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exceptions to zoning ordinances: list
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- local legislature amends ordinance
- conditional use permits (provided specified conditions exist) - grant zoning variance - contract zoning - floating zones - planned unit development |
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contract zoning
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city can contract with developers to rezone land if the land is developed a certain way
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difference between implied grant and implied reservation
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implied grant: REASONABLY necessary
implied reservation: STRICTLY necessary |
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horizontal privity
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- privity of estate between original contracting parties
OR - both parties hold interests in the same piece of land - the covenant touches & concerns the land |
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vertical privity
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covenant accompanies a conveyance of land interest
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rights in land: watercourses
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- right to use
- can't alter natural flow |
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rights in land: ground water
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- common law: any purpose
- modern law: only for use on the overlying land |
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rights in land: surface water
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- common law: anything you want
- modern law: cannot block drainage from higher land |
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When a commercial lease for more than 1 year ends what will it be if L renews?
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Year-to-year tenancy
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Landlord options when the lease ends
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Evict or bind tenant to a new period tenancy
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If you have a fee simple defeasible are you liable for waste?
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No!
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RAP: how to cheat
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last named party & all prior parties take next non-named party takes all subsequent parties lose
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Does subsequent buyer need notice of an easement in order to be valid?
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Yes!
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types of notice for violation of land sale contract
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record notice actual notice inquiry notice common development scheme
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Does mortgage interest attach to all fixtures on the real estate?
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Yes!
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Does a mortgage interest attach to things that didn't exist on the land when the mortgage was formed?
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NO.
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If you own based on adverse possession can you sell?
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NO - you don't have marketable title! Need to get quiet title from the court!
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If original owner goes insane does that interrupt tolling of adverse possession?
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NO.
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Variance in a purchace contract: is it still valid?
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As long as it's NOT MATERIAL and NOT AN EXCESSIVE VARIANCE.
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Mortgage transfers "subject to" - what does that mean?
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New owner is now primarily liable for the mortgage but the original owner is still personally liable (privity of contract).
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Second person to take / issue a mortgage in a notice jurisdiction:
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Wins! When they took / issued mortgage there was no notice!
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Riparian doctrine of reasonable use:
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Natural use wins over non-natural use
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Using water for agricultural purposes: what type of use?
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Artificial use
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Using water for domestic use: what type of use?
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Natural use
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Is a deed to a dead person valid?
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No.
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If one conveyance in a chain violates the RAP what about subsequent conveyances?
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One violation cuts the chain; no subsequent conveyances are valid.
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Does a title based on adverse possession count as good and marketable title?
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NO (unless the seller already sued for clear title and won)
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Can you sue if your co-tenant violates a nonassignment provision?
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NO; you're not the beneficiary of the nonassignment provision!
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Attractive nuisance:
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(1) dangerous condition that the owner should be aware of (2) owner knows/should know that young people frequent the vicinity of this dangerous condition (3) condition is likely to cause injury because of the child's inability to appreciate the risk (4) expense of remedying the situation is slight compared to the magnitude of the risk
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Doctrine of Equitable Conversion:
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A deceased seller's interest passes as personal property not real property even if it's an interest in land!
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Can one co-tenant adversely possess against another co-tenant?
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Yes it's called ouster. More demanding than normal AP!
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If you successfully adversely possess from someone and then pay them rent who owns the land?
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You do!
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Title theory of mortgages:
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When you take out a mortgage the bank gets title. This severs joint tenancy and right of survivorship!
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"Specific performance" answer on MBE
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It's probably the right answer!
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Restrictions on alienation of property
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Can't interfere with basic functions of property
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Rule Against Perpetuities: if you see it in the answer choices
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Stop and look!
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What is this?
A conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded. |
Notice statute
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Notice statute
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A conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.
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What is this?
Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded. |
Race-notice statute
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Race-notice statute
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Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded.
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Foreclosure: which bank takes first?
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The foreclosing party gets paid first. Original order of mortgages doesn't matter.
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Does charring count as arson?
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yes
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Does blackening count as arson?
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no (it's smoke damage)
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Does blistered paint count as arson?
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no (it's heat damage)
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Landowner right to lateral support
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Right to lateral support of the land in its NATURAL CONDITION. Does not include weight of artificial structures!
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Can you get a negative easement for light/air/view?
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Not in most jurisdictions! It would hamper growth. (Eg. San Francisco)
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Independence of covenants
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Common law: duty to pay rent is not connected to duty to maintain property. It's a separate action.
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Is change in the character of the neighborhood enough to extinguish an equitable servitude?
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YES.
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Can the dominant tenement holder use an easement appurtenant for the benefit of a different property?
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NO - neither party can change the servient tenement or the dominant tenement!
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Covenant of seisen, right to convey and against encumbrances: do they run with the land?
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NO - they are personal covenants and do not run with the land.
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Common law: where must a common plan/scheme be noted?
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At common law, pretty much anywhere as long as it's clear what's intended!
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Covenant running with the land: requirements
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- in writing
- touch & concern the land - privity of estate between covenantor and covenantee - intent that covenant run with the land |
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Does easement by necessity also arise by implication?
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Yes
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Inverse order of alienation rule
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When land has been subdivided and sold, mortgagee proceeds first against land still owned by mortgagor, then proceed against other parcels in inverse of the order in which they were sold
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