Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
117 Cards in this Set
- Front
- Back
|
When does zoning constitute a taking? Exception?
|
When it takes away all economic value. Total wipeout doctrine.
EXCEPTION: If the ordinance regulates activity that would be considered a NUISANCE under common law. |
|
|
What is landowner liability w/re to lateral support and land vs buildings?
|
LAND: Strict liability for damages IF excavation causes adjacent land to subside
BUILDINGS: STRICT liability IF land would have collapsed in is natural state; OR NEGLIGENCE otherwise |
|
|
What is landowner liability w/re to subjacent support for buildings?
|
Negligence
|
|
|
What are the surface water doctrines?
|
Riparian: natural flow OR reasonable use
Prior appropriation |
|
|
What are the four groundwater doctrines?
|
Absolute ownership
Reasonable use Correlative rts Appropriative rts |
|
|
Mortgages
What is the best method to transfer a note related to a mortgage? |
Indorsement and delivery to transferee
|
|
|
Mortgages
If indorsement and delivery is used to transfer note, what does the transferee become? Why is that important? |
Holder in due course
Important b/c they take notes free of any personal defense of the note-maker...though NOT of real defenses like incapacity |
|
|
Mortgages
To be holder in due course of a note, what are the elements? (5) |
Note must be negotiable in form
Note must be delivered to transferee Note must be indorsed and signed by named payee Transferee must take note in good faith Transferee must pay for note |
|
|
Mortgages
What is a due on sale clause? |
Allows lender to demand full payment of loan if mortgagor transfers property interest w/o lender's consent
|
|
|
Mortgages
Unless and until foreclosure, what property interest does a debtor-mortgagor have? Creditor-mortgagee? |
Debtor-mortgagor: title AND rt to possession
Creditor-mortgagee: lien |
|
|
Mortgages
When mortgagor transfers mortgage, what is the difference if transferee assumes mortgage vs takes subject to mortgage? |
Assuming the mortgage means BOTH are liable; transferee primarily, transferor/mortgagor secondarily
Taking subject to mortgage means ONLY transferor/mortgagor is liable (not so good for transferee cuz if he doesn't pay, lender forecloses and wipes out his investment) |
|
|
Mortgages
Depending on jurisdiction and theories, when can and can't a mortgagee have possession before foreclosure? |
Lien theory: NO pre-foreclosure possession
Title theory: YES |
|
|
Mortgages
What are the two possibilities for redemption in a foreclosure? |
Redemption in equity: mortgagor can redeem PRIOR TO sale; this canNOT be waived in the agreement creating the security interest
Statutory redemption: allows post-sale redemption |
|
|
Mortgages
For creditor priority, what must creditor do? |
Record
|
|
|
Mortgages
In foreclosure, if all creditors have properly recorded, how to determine order or priority? Exception? |
First in time
EXCEPTION: Purchase money mortgages |
|
|
Land conveyancing
What are the two steps in any real estate conveyance? |
Land K
Closing |
|
|
Land conveyancing
What important K doctrine applies to all real estate Ks, and how to avoid violating it? (4) |
SOF
K must: 1 Be in writing 2 Signed by party to be bound 3 Describe land adequately 4 Consideration |
|
|
Land conveyancing
What is buyer entitled to when land recited in K is more than actual size of parcel? |
Specific performance with pro rata reduction in price
|
|
|
Land conveyancing
SOF exception w/re to part performance requires 2 of the following 3 |
Possession
Part or all of purchase price Substantial improvement |
|
|
Land conveyancing
What is the doctrine of equitable conversion? How does it relate to risk of loss? |
After K is signed, B owns in equity
B bears risk of loss should something happen btw signature and closing |
|
|
Land conveyancing
How do zoning regulations affect marketability? |
They do not UNLESS there is an existing zoning violation
|
|
|
Land conveyancing
What implied warranties come and do not come with sale? Exception? |
Implied warranty of marketability
BUT NOT implied warranties of fitness or habitability EXCEPTION: Implied warranty of fitness for sale of NEW home by builder-vendor |
|
|
Land conveyancing
Re implied warranty of marketability, what would make title not marketable? (3) |
Adverse possession
Encumbrances (NOT mortgage lien, which seller can satisfy at closing) Zoning violations (NOT mere existence of zoning regs) |
|
|
Land conveyancing
At what point in transaction must seller ensure marketable title? |
Closing
|
|
|
Land conveyancing
What remedies are available to buyer if title is not marketable? |
Damages
Quiet title suit Specific performance w/price abatement Rescission |
|
|
Land conveyancing
Seller will be liable for property defects IF... (4) |
Seller is builder and home is new
Misrepresentation by seller AND buyer relied Active concealment of defects Failure to disclose latent SERIOUS defects |
|
|
Land conveyancing
What are the elements of a valid deed? |
In writing
Signed by grantor Identifies parties Describes, identifies land reasonably |
|
|
Land conveyancing
Does title pass upon deed delivery? |
YES, so grantee canNOT just give it back
|
|
|
Land conveyancing
When is a deed delivered? |
NOT physical possession, but rather grantor's intent to make deed presently effective
|
|
|
Land conveyancing
What happens if deed is delivered with extra oral condition upon delivery? |
Deed good, NO condition
|
|
|
Land conveyancing
What is delivery by escrow? What is required for delivery to 3rd party non-escrow? |
Where deed grantor delivers deed to escrow agent with instructions to eventually deliver to grantee
Grantor MUST RELINQUISH POSSESSION OF DEED |
|
|
Land conveyancing
What are the differences btw general warranty deed, special warranty deed, and quitclaim deed? |
General warranty deed warrants against ALL defects in title, both present and future covenants: seisin, convey, no encumbrances; warranty, quiet enjoyment, further assurances (STOP CARING EDDIE; WHY QUESTION FATE?)
Special warranty deed contains present covenants ONLY: seisin, rt to convey and against encumbrances Quitclaim deed has NO covenants |
|
|
Land conveyancing
What is the connection btw BFPs and recording jurisdictions? |
BFPs ALWAYS win in notice jurisdictions
BFPs win in race-notice jurisdictions ONLY IF they record first |
|
|
Land conveyancing
What are the two elements of a BFP? |
Purchaser for value
WITHOUT notice AT TIME OF CONVEYANCE (notice after is okay) |
|
|
Land conveyancing
Which transferees are NOT protected by recording acts? (3) Exception? |
Donees
Heirs Devisees EXCEPTION: shelter rule for grantees of BFPs |
|
|
Land conveyancing
What is the shelter rule? |
Transferees from BFPs prevail against anyone whom BFP would have beat out
|
|
|
Land conveyancing
What are the forms of notice w/re to BFPs? (3) |
AIR
Actual Implied Record or constructive notice |
|
|
Land conveyancing
What is estoppel by deed? |
If O conveys something he has NO property interest in, he canNOT deny that conveyance IF he later does acquire the property
|
|
|
Adverse possession
What are the elements of adverse possession? (4) |
COAH
Continuous (for statutory period, usually 20 yrs) Open and notorious (owner's constructive notice) Actual and exclusive (NOT sharing with owner OR public) Hostile (NO permission from owner) |
|
|
Adverse possession
What is required for subsequent adverse possessor to tack on previous adverse possessor's time? |
Privity
|
|
|
Adverse possession
What is effect of disability of true owner? |
Statute of limitations will NOT run against true disabled owner IF true owner was affected by disability AT THE INCEPTION of the adverse possession
|
|
|
Easements, profits, covenants, servitudes
What are the kinds of easements? (2) |
Negative
Affirmative |
|
|
Easements, profits, covenants, servitudes
What are the negative easements? (5) |
LASSS
Light Air Stream flow from artificial stream Subjacent support Scenic view |
|
|
Easements, profits, covenants, servitudes
Easement appurtenant vs in gross? |
Appurtenant involves TWO parcels: dominant and servient tenements AND dominant tenement is benefited
In gross when there is ONLY a servient tenement burdened and NO dominant tenement benefitted |
|
|
Easements, profits, covenants, servitudes
Appurtenant vs in gross and conveyance issues |
Appurtenant: easement passes with transfer of benefited land; burden of easement passes with transfer of servient estate UNLESS new owner is BFP
In gross: Transferable if economic/commercial; NOT transferable if personal enjoyment |
|
|
Easements, profits, covenants, servitudes
Ways to create an affirmative easement? (4) |
PING
Prescription Implication Necessity Grant |
|
|
Easements, profits, covenants, servitudes
How to create express grant? |
Writing IF within SOF; otw, some other way
|
|
|
Easements, profits, covenants, servitudes
How to create an implied easement? Main way (3 elements) and alternative ways |
Main use:
Previous use: IF before division uses exists on servient tenement that is REASONABLY NECESSARY for enjoyment of dominant tenement, AND use is APPARENT, implied easement Alternative ways: Profit a prendre Subdivision plat |
|
|
Easements, profits, covenants, servitudes
How to create easement by prescription? (4) Exception? |
COAH
Same as adverse possession EXCEPTION: NO application to public land |
|
|
Easements, profits, covenants, servitudes
Ways to terminate an easement? (8) |
END CRAMP
Estoppel Necessity Destruction Condemnation Release Abandonment (MORE than mere non-use) Merger Prescription |
|
|
Easements, profits, covenants, servitudes
What is a license? |
Mere privilege to enter another's land for some specified purpose
|
|
|
Easements, profits, covenants, servitudes
Are licenses irrevocable or revocable? Exception? |
Generally revocable UNLESS estoppel due to substantial detrimental reliance
|
|
|
Easements, profits, covenants, servitudes
What is a profit? How can holder terminate? |
Entitle holder to the benefit of taking some resources from servient estate
Holder can terminate through surcharge (over-use) |
|
|
Easements, profits, covenants, servitudes
What is a covenant? |
Written promise to do something on land or to NOT do something on land
|
|
|
Easements, profits, covenants, servitudes
What is required for covenant's burden to run? |
WITHN
Writing Intent Touch and concern the land Horizontal AND vertical privity Notice |
|
|
Easements, profits, covenants, servitudes
How to tell an equitable servitude from a covenant? |
REMEDY
Damages: covenant Injunction: equitable servitude |
|
|
Easements, profits, covenants, servitudes
What is horizontal privity? Vertical privity and exception? |
Vertical is any transfer of a property interest EXCEPT adverse possession
Horizontal requires original parties to be in succession, e.g. grantor-grantee or landlord-tenant or mortgagor-mortgagee |
|
|
Easements, profits, covenants, servitudes
What is required for covenant's benefit to run? |
WITV
Writing Intent Touch and concern the land Vertical ONLY |
|
|
Easements, profits, covenants, servitudes
What is required to create an equitable servitude that will bind successors? |
WITNES
Writing Intent Touch and concern the land Notice Equitable Servitude NO PRIVITY NEEDED |
|
|
Easements, profits, covenants, servitudes
What is required for an implied or negative equitable servitude? What are the elements? |
Common scheme doctrine
Requires: Subdivider had a general scheme of residential development that included D's lot AND D had notice of promise contained in prior deeds |
|
|
Easements, profits, covenants, servitudes
Equitable defenses to equitable servitudes (4) |
Unclean hands
Laches Estoppel Changed conditions in neighborhood that are substantial |
|
|
Landlord/tenant
What is a fixture? |
Once movable chattel that has been so affixed to land that is has become part of the realty
|
|
|
Landlord/tenant
What ways can chattels become fixtures? (2) |
Become part of the land so that they lose their identity (e.g. bricks)
Still identifiable chattels which removal would cause serious harm (e.g. plumbing) |
|
|
Landlord/tenant
What kinds of waste should tenant not commit? |
Voluntary
Permissive Ameliorative |
|
|
Landlord/tenant
When does tenant have a duty to repair? |
Express promise
|
|
|
Landlord/tenant
What are tenant's duties? (3) |
Duty to repair, or NOT commit waste
Duty to not use premises for illegal acts Duty to pay rent |
|
|
Landlord/tenant
What are landlord's remedies for tenant who doesn't pay rent but is still in apt or who abandons? |
Non-payment: Evict OR sue; NO self-help
Abandonment: SIR Surrender Ignore and hold tenant responsible for rent Re-let |
|
|
Landlord/tenant
What are the varieties of leasehold estates? (4) |
Tenancy for years: Fixed period of time
Periodic tenancy: Regular intervals Tenancy at will: NO fixed period of duration and NO notice Tenancy at sufferance: Holdover tenants until eviction OR binding them for new term |
|
|
Landlord/tenant
How to create a period tenancy by implication? (3) |
Lease w/o duration, but provision for rent at set intervals
Oral term of years in violation of SOF Holdover |
|
|
Landlord/tenant
What is common law rule on notice for termination periodic tenancy? |
Notice in writing for AT LEAST length of rental period itself
E.g., month to month requires a month's notice at least Month to month periodic tenancy where notice is sent on May 15 does NOT end until June 30 |
|
|
Landlord/tenant
Distinction btw residential and nonresidential tenants w/re to binding them to new periodic tenancy |
Residential: new term is ONLY month to month
Nonresidential: CAN be year to year if that's what original agreement said |
|
|
Landlord/tenant
What are the exceptions to the notion that landlords and bind holdover tenants to new intervals? (3) |
Seasonal leases
Delay NOT tenant's fault Holdover period is ONLY a few hours |
|
|
Landlord/tenant
Are covenants in a lease dependent on lease or independent of it? |
Independent
|
|
|
Landlord/tenant
What are the landlord's affirmative duties? (3; mnemonic sentence) What can landlord NOT do? What does landlord NOT HAVE to do? |
Deliver possession
Quiet enjoyment Implied warranty of habitability [DAIRY QUEEN ICECREAM] CanNOT retaliatorily evict Does NOT HAVE TO repair premises EXCEPT common areas |
|
|
Landlord/tenant
What is the covenant of quiet enjoyment? How can a landlord breach the covenant of quiet enjoyment? (3) |
Covenant of QE is no interference with tenant's enjoyment of possession of the premises
Actual eviction Partial eviction Constructive eviction |
|
|
Landlord/tenant
What are the elements of constructive eviction? (3) Acronym |
SING
Substantial Interference Notice (tenant notices landlord) Goodbye (tenant vacates reasonable time after landlord fails to fix problem) |
|
|
Landlord/tenant
Majority vs minority rule for landlord's duty to deliver possession |
Majority: Landlord MUST put tenant in actual physical possession
Minority: NO need for physical, only legal possession |
|
|
Landlord/tenant
To what kind of leases is the implied warranty of habitability limited? |
RESIDENTIAL
|
|
|
Landlord/tenant
What are the standards for satisfying the implied warranty of habitability? Acronym What are tenant's entitlements if it is breached? |
Standards usually are necessaries and housing code regs
Entitlements: MAST Make repairs and offset rent Abate the rent Sue for damages while paying rent Terminate lease |
|
|
Landlord/tenant
What is the privity status w/re to assignments and subleases and commitment to lease covenants? |
Assignees ARE in privity with landlords
Sublessees are NOT in privity with landlords UNLESS expressly assumes the covenants |
|
|
Landlord/tenant
After assignment, is assignor still liable to landlord? If assignee assigns to another, is former assignee still liable? |
YES
NO |
|
|
Landlord/tenant
What do landlord's tort liabilities extend to? (5) |
CLAPS
Common areas Latent dangerous condition KNOWN to landlord Assumption of repairs Public use Short-term residence AND furnished |
|
|
Landlord/tenant
What is required for landlord to be liable for public use? (3) |
Constructive KNOWledge of dangerous condition
Constructive KNOWledge that tenant may admit public before repairs Failure to repair |
|
|
Estates in land
What are the present possessory estates? (6) |
Fee simple absolute
Fee simple determinable Fee simple subject to an executory interest Fee simple subject to condition subsequent Fee tail Life estate |
|
|
Estates in land
What accompanies: Fee simple determinable? Fee simple subject to condition subsequent? |
FSD: possibility of reverter
FSSCS: right of entry |
|
|
Estates in land
What are the correlative third-party future interests for the following: FSA? FSD? FSSCS? FSSEI? Life? |
FSA: NONE
FSD: FSSCS: FSSEI: Executory interest Life: Depends; none, remainder or executory interest |
|
|
Estates in land
What is the alienability of: Possibility of reverter? Right of entry? |
POR: Transferable, descendible, devisable
ROE: Descendible, devisable, NOT transferable |
|
|
Estates in land
What is a remainder? What two things can NOT occur with remainders? |
Future interest in a third person that can become possessory on the natural expiration of the preceding estate
NO gap after preceding estate NO divestment of preceding estate |
|
|
Estates in land
What are the varieties of remainders? (4) |
Indefeasibly vested remainder
Vested remainder subject to open Vested remainder subject to total divestment Contingent remainder |
|
|
Estates in land
What are the three elements of an indefeasibly vested remainder? |
Vested, so existing and ascertained person
NOT subject to condition precedent NOT subject to divestment or diminution |
|
|
Estates in land
What is a vested remainder subject to total divestment? |
Vested remainder subject to a condition subsequent
|
|
|
Estates in land
A contingent remainder can occur if one of two things... |
Created in unborn or unascertained person
Subject to condition precedent |
|
|
Estates in land
For contingent remainders, when is a condition precedent? |
If it must be satisfied before the remainderman has a right to possession
|
|
|
Estates in land
What is the destructibility of contingent remainders doctrine? |
Contingent remainder destroyed IF it failed to vest before or upon termination of the preceding freehold estate
|
|
|
Estates in land
What is the rule in Shelley's case? |
E.g. O to A for life, then to B for life, then to A's heirs
Remainder to A's heirs is destroyed |
|
|
Estates in land
What is the doctrine of worthier title? |
E.g. O to A for life, then to heirs of O
Rule of construction means O should get the reversion |
|
|
Estates in land
What are the two varieties of executory interests? |
SHIFTING: divest a transferee's preceding freehold estate
SPRINGING: follow a gap in possession OR cut short a grantor's estate |
|
|
Estates in land
What is the definition of the RAP? |
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
|
|
|
Estates in land
Doctrine of voluntary waste prohibits life estate from consuming/exploiting natural resources on property UNLESS (4) |
PURGE
Prior Use Repairs Grant Exploitation |
|
|
Estates in land
What are the two bright line rules for RAP? |
Gift to an open class that is conditioned on members surviving to an age beyond 21 violates common law RAP
Executory interest with NO limit on the time within which it must vest violates RAP |
|
|
Estates in land
What are the concurrent estates? (3) |
Joint tenancy
Tenancy in common Tenancy by entirety |
|
|
Estates in land
What are aspects of the joint tenancy? |
Right of survivorship
Alienable, but NOT devisible or descendible |
|
|
Estates in land
How to create a joint tenancy? |
T-TIP: the four unities
Same: TIME TITLE INTERESTS Identical rts to POSSESS |
|
|
Estates in land
How to sever a joint tenancy? Acronym |
SPaM
Sale Partition and Mortgage |
|
|
Estates in land
What are the aspects of sale to sever a joint tenancy? |
NO notice needed
Equitable conversion means severance occurs opon mere act of entering into a K for sale of interest |
|
|
Estates in land
What are the two ways a mortgage can affect severance of joint tenancy? |
Lien theory: severance ONLY if joint tenant fails to pay mortgage
Title theory: automatic severance |
|
|
What is an equitable mortgage? How can a creditor get possession of property in that situation?
|
Equitable mortgage is implied whenever a deed is used as debt collateral, it's an equitable mortgage.
Creditor, holder of collateral deed, must FORECLOSE to gain possession. |
|
|
As to description of property and quantity (acreage) listing in a deed, which takes precedence if there is a mistake?
|
Physical description takes precedence over quantity UNLESS reformation is possible. Reformation possible ONLY when there is mutual mistake or scrivener's error.
|
|
|
Under what circumstances can chattels be removed and not considered fixtures?
|
Can remove IF:
-NO intent to benefit landlord -NO intent for chattels to remain (often the case with trade/business chattels) -Repair any damages from removal |
|
|
When can someone remove non-fixture chattels during lease period?
|
ONLY during lease period; NOT after
|
|
|
As to validity of notice, what is necessary for title search to be complete?
|
INSPECTION
|
|
|
When is accretion valid? (2)
|
Slow AND imperceptible
|
|
|
Majority rule for risk of loss in land K? Repercussions for spec perf?
|
Risk of loss on BUYER
Seller gets spec perf at full K price; NO abatement |
|
|
What is constructive annexation w/re to fixtures?
|
Object that would otw be removal chattel CAN be considered fixture IF it's inextricably linked to fixture/realty
|
|
|
Trespassers' annexations
|
Lost to trespasser AND trespasser owes reasonable rent
|
|
|
In lien theory jurisdiction, w/re to severance of joint tenancy, when is earliest point of severance?
|
Foreclosure sale; NOT before
|
|
|
What is doctrine of waste?
|
Where there is life estate and remainderperson, life estate pays interest on land and remainderperson pays principal
|
