Study Set Real Property

Front 1

4 Requirements of Land Sale K

Back 1

1) writing, signed by both buyer and seller
2) Details: property description, ID of parties, location, price. Collateral details may be brought in via parol
3) Presumably marketable title
4) Tx usually requires deed

Front 2

6 Exceptions of Zoning Ordinance

Back 2

1) Legislative change
2) Zoning variance: hardship, no substantial harm to public
3) Development K
4) Conditional Use Permits
5) Floating zones: allows landowners to replace existing zoning restrictions with uses permitted under specific circumstances.
6) PUD: to permit housing developments to be more self-sufficient

Front 3

7 Elements Balancing Test for Fixtures

Back 3

1) Degree of annexation
2) Weight
3) Probability of damage with removal
4) Local custom
5) Peculiar adaptation to building
6) Necessity to building's use
7) Intent of parties

Front 4

3 Types of Water

Back 4

Water courses: Those whose land touches the watercourse has right to use water

Surface water: CL landowner could use it for whatever he wished. ML, landowner can use it for land.

Ground water: Subject to permit/license under ML,

Front 5

4 Rights in Real Estate

Back 5

Party walls
Lateral and subjacent support
Right to water
Fixtures

Front 6

4 Tests of whether use rights "run with the land

Back 6

1) Benefit / Burden
2) Touch and Concern
3) Intent
4) Type of non-possessory interest with required notice and privity requirements met.

Front 7

2 Types of Profits

Back 7

Profit Appurtenant: Attached to dominant estate, may be exclusive or non-exclusive

Profit in Gross: Unrelated to any land owned by profit holder, assignable but not divisible where non-exclusive.

Front 8

Easements Terminate on 8 Conditions

Back 8

1) Terms of Agreement
2) Agreement
3) Abuse
4) Changed Circumstances
5) Abandonment
6) End of Necessity
7) Merger
8) Estoppel

Front 9

(1) Right and (1) Duty of Servient Tenement Holder

Back 9

1) Right to any use of land that doesn't interfere with easement holder's rights
2) No duty to repair / maintain easement

Front 10

4 Rights and Duties of Easement Holder

Back 10

1) Repair/maintain easement
2) Use easement only for use reasonably contemplated at creation
3) May not overburden
4) If scope not specified, reasonable scope implied.

Front 11

7 Elements of Prescription

Back 11

1) Notorious
2) Open
3) Adverse
4) Hostile
5) Actual
6) Continuous
7) Exclusive

Front 12

Implied Grant: 3 Factors

Back 12

Split of two formerly commonly held parcels, owner used quasi easement, easement awarded to grantee based on reasonable necessity.
1) Apparent from reasonable inspection
2) Continuously used
3) Reasonably necessary

Front 13

Implied Reservation: 3 factors

Back 13

Parcels formerly under common ownership, transfer of a parcel to another with strictly necessary reservation of a formerly quasi-easement.
1) Apparent from reasonable inspection
2) Used continuously
3) STRICTLY necessary

Front 14

Easements 7 Ways

Back 14

1) Prescription
2) implied grant
3) implied reservation
4) Express grant/reservation
5) Estoppel
6) Necessity
7) Dedication

Front 15

Easements: 2
2
2

Back 15

1) Appurtenant 2) Gross
1) Dominant 2) Servient
1) Affirmative 2) Negative

Front 16

6 Incorporeal / Use Rights

Back 16

1) Easements
2) Profit
3) License
4) Covenant
5) Equitable servitude
6) Implied Reciprocal servitude

Front 17

5 Defenses to Enforcement of Equitable Servitudes

Back 17

1) Unclean hands
2) Acquiescence/ Consent
3) Estoppel
4) Laches (owner of dominant estate permits the violation of the covenant to continue without protest)
5) Changed Conditions (no longer reasonable or practical to enforce covenant)

Front 18

Rule Against Perpetuities
2 Elements

Back 18

1) Executory interest OR contingent remainder
2) Will the interest be owned by an existing, ascertained person within 21 years of a life in being at the time of creation of the interest?

Front 19

Four Future Interest Rules:
two docs, two rules

Back 19

1) Rule Against Perpetuity
2) The Rule in Shelly's Case
3) Doctrine of Worthier Title
4) Doctrine of Merger

Front 20

Doctrine of Worthier Title

Back 20

Abolished in most J's:
Grant of X to Y for life and then to X's heirs.
Results in a life estate for Y with a reversion to X.

Front 21

Rule in Shelly's Case:

Back 21

Grant creates freehold in grantee, and a remainder in grantee's heirs: Grantee takes in fee simple absolute.
"From Y to X for life, and then to X's heirs."

Front 22

Doctrine of Merger

Back 22

Where grantee has subsequent interests in the estate. (e.g. a present estate and a future estate)
"To X, remainder to Y." and Y sells her remainder to X. The interests merge giving X fee simple absolute.

Front 23

Two Executory Interests

Back 23

Shifting and Springing:
Shifting terminates one grantee's interest in favor of another;
Springing terminates grantor's interest

Front 24

4 Types of Remainder

Back 24

-Vested Remainder
-Vested Remainder subject to divestment
-Vested subject to open
-Contingent (unborn ascertainable person, OR subject to condition precedent)

Front 25

Grantee's Future Interests:

Back 25

Remainder
Executory Interest

Front 26

Grantor's Future Interests

Back 26

Right of Re-entry
Reversion
Possibility of reverter

Front 27

Co-Tenants Rights and Duties: 3 & 3

Back 27

1) Rt. to demand partition
2) Rt to possession of whole property
3) Rt. of possessing tenant to retain proceeds from his use of the land.

1) Fiduciary duty
2) Duty to Contribute to mortgage interest and taxes
3) Duty to contribute to preservation of property

Front 28

Tenancy in Common

Back 28

-Each tenant has an interest in an undivided, fractional part of the whole
-Doesn't have to be equally held
-Passes by succession
-Freely alienable intervivos
-Accessible to T's creditors.

Front 29

Tenancy by the Entirety

Back 29

Married couples:
1) Time, Title, Possession, Interest

a) Mutual Agreement,
b) Death or Divorce,
c) Joint conveyance,
d) Execution by joint creditor of H & W,
e) Conveyance by one spouse to the other.

Front 30

Joint Tenancy

Back 30

4 Unities: Time, Title, Possession, Interest.
Right of survivorship, Equal rights to possession of land, each party owns equal share.
Conveyance of property subject to joint tenancy destroys the joint tenancy

Front 31

3 Concurrently Owned Estates

Back 31

Joint Tenancy
Tenancy in Common
Tenancy by the Entirety

Front 32

4 Remedies for L's Breach of Implied Covenant of Habitability

Back 32

-Vacate, sue
-Remain, abate rent
-Remain, repair and deduct
-Stay and not pay.

Front 33

L's 5 Duties

Back 33

1) Maintain common areas
2) Implied warranty of habitability
3) Warranty of Quiet Enjoyment
4) If makes repairs, liable to any foreseeable P.
5) Responsible for hidden defects

Front 34

L Rights

Back 34

-Evict for non-payment
-Decide on permitting sublet
-No duty to mitigate if T abandons
-L can accept surrender and T's duty to pay rent ceases
-L can retain T's advance rent if T defaults, but must refund security deposit minus damages.

Front 35

3 Types of Waste

Back 35

-Voluntary
-Permissive
-Ameliorative

Front 36

5 Leasehold Estates

Back 36

Periodic Tenancy
Tenancy for years
Tenancy at will
Tenancy at sufferance
No Lease

Front 37

Termination timelines for 5 LH estates

Back 37

1) Periodic: CL 6 mo for year lease, 1 mo for mo-to-mo. Current: 30 days.
2) Tenancy for years: None required. Terminates automatically.
3) At will: CL = none, ML = reasonable.
4) Tenancy at sufferance: None, and L can evict T OR bind him to a periodic tenancy of up to a year.
5) No lease: CL = none, ML: some J's 30 days.

Front 38

Two duties of T

Back 38

Pay rent
Not commit waste, and pay for damages

Front 39

T's 6 defenses to non-payment of rent

Back 39

1) Impossibility
2) Illegality
3) Breach of Quiet Enjoyment
4) Retaliatory eviction
5) Destruction of premises
6) Eminent domain.

Front 40

6 Deed Requirements

Back 40

1) In writing and signed by both parties.
2) Identifies parties
3) Description of land
4) Must show intent to transfer
5) Delivered (requires objective manifestation of grantor's intent that the instrument of conveyance take immediate effect. If grantor does not deliver deed in her lifetime, the title does not pass.
6) Deed must be accepted by grantee.

Front 41

Presumptions re: Deed and Transfer

3 Presumptions

Back 41

1) if Grantee has the deed, rebuttable presumption of delivery. IF grantor has the deed, then contra presumption
2) Acknowledgement and recording of a deed creates presumption that deed has been delivered
3) Dating of the deed is irrelevant, however, there is a presumption that the deed was delivered ON that date.

Front 42

Conditional Delivery of Deed

3 Conditions for Delivery

Back 42

1) Delivery may be subject to condition precedent
2) IF grantor conditions on death, Grantor has a life estate and grantee has a vested remainder.
3) Grantor may deliver deed in escrow to a third person with instructions that the deed be delivered to the grantee when the conditions occur.

(Date that title passes relates back to time deed is delivered to escrow person.
Grantor can recover deed from escrow agent prior to condition precedent, provided there is a WRITTEN K.)

Front 43

Six Covenants of Title:

Back 43

1) Covenant of seisin (Grantor promises he has estate he is conveying)
2) Covenant of right to convey (Grantor promises he has authority to make the grant)
3) Covenant against encumbrances (no physical or title encumbrances)
4) Covenant for Quiet Enjoyment (Grantor promises that Grantee's possession will not be disturbed by another party's claim)
5) Covenant of warranty: Grantor agrees to defend against reasonable claims of title by 3rd party.
6) Covenant of Further Assurances: Grantor promises to perform acts reasonably necessary to perfect title conveyed.

Front 44

Breach of Covenants:

Back 44

Breach of Seisin, Right to Convey, or Against Encumbrances: Breached at time of conveyance, do not run with the land.

Quiet enjoyment, Warranty and Further Assurances: Not breached until someone interferes with possession of grantor. These run with the land, Grantor must have notice to be liable and need not defend against wrongful claims. Remote grantee can sue anyone up the line, but her recovery is limited ot the extent of $ received by the grantor.

Front 45

Recording Act: Required for 4 types of transactions

Back 45

1) any conveyance
2) transfer
3) mortgage
4) leases for over a year (so long as not created by implication of operation of law.)

Front 46

5 Elements of Grantee Recording

Back 46

1) Grantee records in property county.
2) Deed copied and indexed (grantor-grantee index and alphabetical index)
3) Acknowledged or witnessed if required
4) Deed must comply w/ formalities to give BFP notice.
5) Failure to record relates only to rights of subsequent purchasers--doesn't affect transfer between grantor and grantee.

Front 47

3 Major Types of Recording Act

Back 47

1) Notice statute: BFP has priority
2) Race-Notice: First BFP to record wins.
3) Race Statute: First person to record wins, regardless of BFP status.

Front 48

6 Groups Protected by Recording Acts

Back 48

1) BFPs: protected under both notice and race notice statutes.
2) Creditors: those who become purchasers by buying at judicial sale are protected, but not general creditors.
3) Mortgagees:
4) Buyers from heirs: Protected from unrecorded prior conveyances of the ancestor.
5) Takers from BFPs: will prevail against any interests that BFP would have prevailed againts, even if BFP's transferree has acutal notice of prior, unrecorded transfer. If Transferee previously held title, this rule does not apply,since transferees could "wash" title.

Front 49

5 Effects of Mortgages on Mortgagor-Mortgagee rights;

Back 49

1) Lien theory, title theory (mortgagee has lien, vs. mortgagee has title) Treatment of parties does not vary.
2) Mortgagor entitled to possession until foreclosure
3) Foreclosure by judicial sale
4) Mortgagee has statutory right to redeeem
5) Deficiency judgment possible where proceeds of sale are less than debt, if statutes permit.

Front 50

4 Rules of Selling Mortgaged Property

Back 50

1) Sale to BFP cuts off mortgagee's interests (but mortgages are usually recorded, so no BFP's--notice!)
2) Grantee who takes subject to mortgage is not PERSONALLY LIABLE on the mortgage note, but the mortgage is satisfied out of land as between mortgagor and grantee.
Grantee who ASSUMES mortgage IS personally liable on mortgage debt, as is original mortgagor on promissory note, absent novation.
4) If deed is silent, transfer is treated as SUBJECT to mortgage, if purchase price reflects existence of mortgage debt.