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94 Cards in this Set
- Front
- Back
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What are the two present freehold estates?
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Fee simple absolute & Life estate.
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What is a fee simple absolute?
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Runs forever and is fully alienable. Courts presume the creation of one unless language shows clear intent otherwise.
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What is a life estate?
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Measured by life, and can be created by implication.
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What is a life estate pur autre vie?
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Person in possession of the estate for the life of another.
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Are forfeiture restrictions on life estates ok?
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Yes.
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What is voluntary waste?
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Any affirmative action by a life tenant beyond the right of maintenance causing harm to the premises.
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Is depletion of natural resources waste?
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Yes, unless the normal use of the land was to deplete them.
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What is permissive waste?
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Where tenant has failed to maintain.
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What 3 things must tenant do to avoid permissive waste?
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1. repair.
2. pay taxes. 3. pay interest on mortgage. |
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What is ameliorative waste?
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Occurs when affirmative act alters the property substantially but increases the value of it -- if changed conditions have made the property relatively worthless in its current use, the life tenant can tear it down without liability to the holder of the future interest.
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What is the rule of convenience and who does it apply to?
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A class closes when any one of the class is entitled to a distribution (class gifts).
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What are the 5 future interests?
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Reversion
Possibility of reverter Right of Entry Remainder Executory Interest |
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What is a reversion & is it subject to RAP?
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Interest kept by the grantor when grantor gives less than the durational estate he had. Not certain to send property back. Never subject to RAP and freely transferable.
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What is a possibility of reverter?
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Whenever grantor gives a fee simple determinable, grantor has this. The fee simple determinable ends automatically when the stated condition occurs. Never subject to RAP & freely transferable.
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What is the language associated with a possibility of reverter?
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"so long as" "while" "during" "until"
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What is a right of entry (power of termination)?
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When grantor gives a fee simple on a condition subsequent and retains a right of entry. Not subject to RAP, but cannot be transferred inter vivos.
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What three types of remainders are there?
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Vested, vested subject to open, and contingent
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What is a vested remainder?
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Nothing stands in the way of its becoming possessory on the expiration of the estate that comes before it.
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What is a vested remainder subject to open?
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Where the remainder interest is to a class whose members are not yet fully known the class remains open to allow for future persons who qualify as members of the class.
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What is a contingent remainder?
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Something has to happen or be known before the remainder can become possessory.
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What are the three types of contingent remainders?
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1. Condition
2. Grantee not in existence 3. Identity of exact taker unknown (can't identify by name) |
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What is an executory interest?
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Operates to cut short the estate that comes before it; it does not come into possession at the natural expiration of the earlier estate.
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What is a shifting executory interest?
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If an executory interest operates by taking title from one grantee and giving it to another grantee.
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What is a springing executory interest?
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If an executory interest operates by taking title from the grantor and giving it to a grantee.
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What estates does the RAP apply to?
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Contingent Remainders
Executory Interests Vested Remainders Subject to Open |
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What is the RAP?
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No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest?
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What is the question for the RAP in normal person terms?
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Could everyone alive at the time of hte grant die, and 21 years pass, before the interest might vest? If yes, it's void.
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What is the exception to the RAP?
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Charity to Charity exception.
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What are two characteristics of a joint tenancy?
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Right of survivorship
Right to partition |
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What is required to create a joint tenancy?
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Four unities:
1. time 2. title 3. interest 4. possession |
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What is a partition of a joint tenancy?
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Voluntary destruction
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What is a severance of a joint tenancy?
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Involuntary destruction
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How does a severance of a JT occur?
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whenever one of the 4 unities is disturbed
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When doesn't a mortgage disturb a JT?
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In a lien theory state. Title theory = disturbs.
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What are the characteristics of a tenancy in common and how is it created?
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Right to partition. NO right to survivorship. Created by possession of all tenants.
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What 3 aspects of rights and duties are there among co-tenants?
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Possession
Accountability Contribution |
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What are the non-freehold estates?
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Tenancy for years
Periodic tenancy Tenancy at will Tenancy at sufferance |
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What is a tenancy for years?
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A tenancy over a specified period of time. Any tenancy > 1 year must be in writing.
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What is a periodic tenancy?
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Ongoing, continuing, repetitive estate, until one party gives valid notice.
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What is a tenancy at will?
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Either party can terminate at any time, without notice.
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What is a tenancy at sufferance?
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Bare possession of a holdover tenant, landlord has two options.
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What are the landlord's two options in a tenancy at sufferance?
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1. hold as trespasser and sue to toss them and get damages.
2. impose a new periodic tenancy |
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If a new periodic tenancy is imposed, what is it's duration?
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For residential - month to month
For commercial - - if old was 1+ years, then new is year to year. - if old was less than 1 year, new measured by rent period of old. |
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What are a tenant's duties?
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If lease is silent, pay rent, and don't commit waste.
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What are the landlord's remedies?
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sue for damages and to toss tenant.
if abandonment, either retake or re-rent and sue for deficiency. |
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What are the landlord's duties?
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1. give tenant possession
2. deliver residential premises in habitable condition 3. Implied covenant of quiet enjoyment |
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What is an assignment of a lease?
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When tenant transfers everything, holding nothing back.
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When are successive tenants liable to the landlord?
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If there is EITHER POE or POC.
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When does privity of estate exist?
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Between the present landlord and present tenant.
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When does privity of contract exist?
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Where there is an agreement between the parties, or where assignee "expressly assumes" the obligations under the lease.
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Is a sublessee liable to the landlord, why or why not?
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No, because no POE and POC
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How are non-assignment and non-sublease clauses viewed?
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Construed narrowly.
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When is a landlord liable in tort?
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Latent defects
Short term lease of a furnished dwelling Common areas under landlord's control Negligent repairs Public use exception |
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What is the key to determining whether something is a fixture? What are the factors considered?
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Intent of the tenant.
1. degree of attachment 2. general custom as to the item 3. degree of harm to premises on removal 4. trade fixtures |
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What is an easement?
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A non-possessory interest in land involving a right of USE.
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What is an easement appurtenant?
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When easement directly benefits the USE and enjoyment of a specific piece of land.
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What is an easement in gross?
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Where there is no dominant estate (utility easements).
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What are the 3 ways to create an easement?
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Express
Implication Prescription |
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What is required for an express easement?
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Must comply with Statute of Frauds and all deed formalities.
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How do easements by implication arise?
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Previous use by common owner
- continuous, apparent, and reasonably necessary. - implied easement by necessity. |
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What are the 4 requirements for an easement by prescription?
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1. Use adverse to owner.
2. Continuous and uninterrupted for statutory period. 3. Open and notorious or with owner's knowledge. 4. Without owner's permission. |
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How is an easement terminated?
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1. Unity of ownership
2. Valid release complying with SoF 3. Abandonment - intent evidenced by physical act on the property. 4. Termination by estoppel 5. Termination by prescription 6. End of necessity |
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What does a profit do?
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Gives a right to go onto land and take a natural resource away.
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In order for a covenant to run with the land at law, what 4 requirements must be met?
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1. Intent that it run with the land.
2. Notice to person against whom enforcement is sought. 3. Covenant touches and concerns the land. 4. Privity |
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What does horizontal privity refer to?
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The original parties to the covenant.
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What does vertical privity refer to?
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those who subsequently obtain the property subject to the covenant and the original party from whom they got the property.
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If a successor in interest is a defendant, then for plaintiff to get damages the burden must run and...
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you need both vertical and horizontal privity.
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If the defendant is not a successor in interest, then for the benefit to run to a successor in interest plaintiff and let plaintiff get damages, you need...
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vertical privity only.
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What are 3 requirements for equitable servitudes?
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1. intent that the restriction be enforceable by successors in interest.
2. notice to the subsequent purchaser, and 3. restriction touches and concerns the land. |
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What are the 6 elements for adverse possession?
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1. hostile
2. exclusive 3. lasting 4. uninterrupted 5. visible 6. actual |
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What are the two requirements of the Doctrine of Constructive Adverse Possession?
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1. the amount actually possessed must bear a reasonable relation to the whole, and
2. the property must be unitary. |
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What is necessary for a contract of sale of land?
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1. Description of the property.
2. Names of parties 3. Price |
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What is the Doctrine of Part Performance?
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An exception to the SoF -
1. oral contract must be certain and clear AND 2. the acts of part performance must clearly prove up the contract. |
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Who bears the risk of loss at common law, buyer or seller?
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Buyer
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In order to give marketable title, what must seller give buyer?
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1. proof of title
2. title free of defects 3. valid legal title on DAY OF CLOSING |
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What is caveat emptor?
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Where land is not fit for ordinary purposes and buyer wants to rescind, but can't.
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What are the two requirements of passage of legal title from seller to buyer?
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Execution and delivery.
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What does execution of a deed require?
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Meet SoF, describe land (ID the property).
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What does delivery of a deed require?
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Intent to pass title.
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What do notice acts do?
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Protect subsequent grantees who are BFPs, those who give value and take without notice of earlier transactions.
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What do race-notice acts do?
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Protect subsequent grantees who are BFPs for value who take without notice AND record first.
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What are pure race acts?
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Notice is irrelevant, whoever records first wins.
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Who is a Bona Fide Purchaser?
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Purchaser for value, without notice.
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What is a purchaser for value?
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Gives any consideration out of pocket (one dollar is not enough). Heirs/donees cannot be purchasers for value.
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What is the Shelter Rule exception?
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Anyone (including heir/donee) can shelter under the rights of a BFP.
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What are the three types of potential notice?
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Actual Notice
Record Notice Inquiry Notice |
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What is the right to lateral support?
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Support from all sides - adjacent landowner strictly liable for support of adjacent land, and for damage to improvements if the weight of the improvements didn't cause the collapse.
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What is the right to subjacent support?
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Support of the surface from the bottom - strict liability if not supported.
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What improvements don't receive strict liability for subjacent support?
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Buildings built after mineral rights were severed from surface rights.
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What do Riparian rights refer to?
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Landowner can use all the water it wants from lakes/streams for domestic purposes. Non-domestic use is limited to reasonable use.
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What does Prior Appropriation refer to?
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First in time to a lake/stream, who makes beneficial use, has the right to continue to use it as they want.
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What are rights concerning water under ground (percolating water, well water)?
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Landowner is entitled to reasonable use. Landowner must use it on the property.
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What is the Natural Flow approach of surface water?
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Reasonable steps to deal with flood water are ok.
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What is the Common Enemy approach of surface water?
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Can do anything with the floodwater, whether reasonable or not.
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