Tx Bar Exam Spring 2013 - Real Property

Front 1

two present freehold estates

Back 1

fee simple absolute

life estate

Front 2

fee simple absolute

Back 2

runs forever and is fully alienable

conditions on the exercise of a fee simple are ok, but any attempt to limit the right of transfer is void

a right of first refusal is not an invalid restraint on alienation

Front 3

creation of a fee simple

Back 3

courts will presume a fee simple unless language shows a clear intent to create another estate

Front 4

life estate

Back 4

never measured by time, but only life

can have life estate by implication

if life tenant dies before the measuring life dies, life estate passes to the estate of the life tenant until measuring life dies

forfeiture restrictions on life estate are ok

Front 5

life estate pur autre vie

Back 5

measuring life is the life of someone other than the life estate holder

Front 6

rights and duties of life tenant - waste (generally)

Back 6

all life tenant can do is maintain the estate, and that means continuing the normal use of the land in its present condition

if life tenant does more than or less than merely maintain the estate, then life tenant is guilty of waste

Front 7

rights and duties of life tenant - voluntary waste

Back 7

affirmative action beyond the right of maintenance causing harm to the premises

life tenant can only continue the normal use; any change of use is voluntary waste, and life tenant is liable to the holder of the future interest

depletion of natural resources is waste unless the normal use of the land was to deplete them (open mines doctrine)

Front 8

rights and duties of life tenant - permissive waste

Back 8

where tenant has failed to maintain

tenant must do three things to avoid permissive waste: (1) ordinary repairs (not replacement); (2) pay all taxes; (3) pay any interest on mortgage ... **life tenant's liability is limited to the amount of income received from the land or if life tenant is personally using the property then to the reasonable rental value of the land**

life tenant does not have to insure the property

Front 9

rights and duties of life tenant - ameliorative waste

Back 9

special type of voluntary waste that occurs when the affirmative act alters the property substantially but increases the value of it

RULE: 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

Front 10

class gifts

Back 10

gifts to a class of unnamed persons

members of a class who predecease the T are eliminated and do not recover; their gift lapses

once the class is established when the will is executed, the class stays open to accommodate those who later meet the definition of class member

Front 11

class gifts - rule of convenience

Back 11

class closes when any one of the class is entitled to a distribution

this is a rule of construction, not a rule of law

Front 12

future interests

Back 12

the interest exists now, but possession will not come until later, if at all

Front 13

future interests - classification rules

Back 13

estates grantor keeps when grantor gives less than the full interest held by grantor: reversion, possibility of reverter, right of entry (or power of termination)

those given to grantee: remainder, executory interest

Front 14

future interest retained by grantor - reversion

Back 14

interest kept by grantor when grantor gives less than whole estate

reversion is not certain to send property back to O, it may or may not go back depending on the circumstances set in the grant

never subject to RAP

can be transferred freely

Front 15

future interest retained by grantor - possibility of reverter

Back 15

whenever grantor gives a fee simple determinable, grantor keeps a possibility of reverter

fee simple determinable end automatically when condition happens

never subject to RAP, freely transferable

key language: for so long as, while, during, until

Front 16

future interest retained by grantor - right of entry

Back 16

when grantor gives a fee simple on a condition subsequent, grantor keeps a right of entry

grantor must expressly reserve right of entry

key language: provide however, but if, on condition that

ambiguous language is construed in a way that will not bring automatic forfeiture, choose fee simple on a condition subsequent over fee simple determinable

not subject to RAP, but cannot be transferred inter vivos

Front 17

future interest given a grantee - remainder - vested

Back 17

nothing stands in the way of its becoming possessory on the expiration of the estate that comes before it; we know who will take and there are no conditions to taking

Front 18

future interest given a grantee - remainder - vested subject to open

Back 18

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

also called vested remainder subject to partial divestment

Front 19

future interest given a grantee - remainder - contingent

Back 19

something has to happen or be known before the remainder can become possessory: (1) condition, (2) grantee not in existence yet, (3) identity of exact taker unknown

Front 20

future interest given a grantee - executory interest

Back 20

operates to cut short the estate that comes before it; it does not come into possession at the natural expiration of the earlier estate

holder of executory interest cannot sue life tenant for waste

if an executory interest operates by taking title from one grantee and giving it to another grantee, it is called a shifting executory interest

if an executory interest operates by taking title from the grantor and giving it to a grantee, it is called a springing executory interest

Front 21

RAP

Back 21

RULE: 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

only applies to: contingent remainders, executory interest, and vested remainder subject to open

Front 22

RAP - perpetuity savings clause

Back 22

saves a grant from being voided by RAP by making sure vesting must occur within time period of the rule

Front 23

RAP - options and rights of first refusal

Back 23

do violate RAP if they could be exercised outside the time period

Front 24

RAP - charity to charity exception

Back 24

RAP never violated if the gift over is from one charity to another

Front 25

RAP - class gifts - gift over to a class following an earlier estate

Back 25

situations to look for: (1) age contingency in an open class, (2) fertile octogenarians, (3) unborn spouse

if transfer is by will, look at situation as of time of testator's death; if by deed, look at situation at time of deed

Front 26

joint tenancy

Back 26

right of survivorship

right to partition: can come by agreement of parties or court can draw the lines; if lines can't be drawn, court can sell property and divide proceeds

Front 27

joint tenancy - creation

Back 27

requires the four unities: (1) time, (2) title, (3) interest, (4) possession (TTIP)

time: all interests must have vested at same time

title: the grant to all JTs must be by same instrument

interest: all jts must take same kind and amount of interest

possession: all must have identical rights of possession

language needed: must clearly make intention known, because if intent of grantor is unclear the court construes the interest to be a tenancy in common; right of survivorship must be stated expressly in the grant

Front 28

joint tenancy - destruction

Back 28

partition: voluntary

severance: involuntary, four ways...

(1) conveyance - one JT's transfer of his or her interest creates a severance that destroys just the seller's joint tenancy, turning it into a tenancy in common in the buyer, with the other JTs continuing to hold their interests in joint tenancy

(2) mortgage - in a title theory state (minority)

(3) contract of sale - doctrine of equitable conversion means severance occurs when a contract of sale is signed

(4) creditors sale - creditor's judgment lien is not enough, there has to be an actual judicial sale

Front 29

joint tenancy - TX CL

Back 29

CL joint tenancy does not exist, but right of survivorship can be had by contract between parties

Front 30

tenancy in common

Back 30

right to partition

no right of survivorship

only one unity is required: possession - all tenants in common must have equal rights of possession

TIC is default tenancy; if a JT isn't properly created, it's a TIC

Front 31

rights and duties of co-tenants

Back 31

possession

accountability

contribution

Front 32

rights and duties of co-tenants - possession

Back 32

each co-tenant has the right to possess all the property consistent with the other co-tenants' rights to also possess it all

Front 33

rights and duties of co-tenants - accountability

Back 33

requirement that one co-tenant may have to account to another for a share of profits the co-tenant received

RULE: one co-tenant does not have to account to another co-tenant for a share of the profits

four exceptions: (1) ouster, (2) agreement to share, (3) lease of the property by co-tenant to third party, (4) depletion of natural resources

Front 34

rights and duties of co-tenants - contribution

Back 34

right of one co-tenant to force others to pay their share of some expenditure co-tenant made

no contribution for improvements or non-necessary repairs, but money spent may later be recouped at partition or sale of property

contribution is available for any mortgage on the property (signed by all co-tenants), or any government imposed obligation (taxes, assessments for streets, sewers, etc.)

Front 35

non-freehold (landlord-tenant) estates

Back 35

tenancy for years

periodic tenancy

tenancy at will

tenancy at sufferance

Front 36

tenancy for years

Back 36

specified time (doesn't have to be for years)

SOF: any tenancy for years over 1 year must be in writing

Front 37

periodic tenancy

Back 37

key word is repeating - an ongoing, continuing, repetitive estate, until one party gives valid notice (month-to-month)

three ways to create: (1) express agreement, (2) implication (where lease is silent as to its duration, measured by the rent payment), (3) operation of law (oral lease violation SOF but LL accepts rent, hold-over lease and LL accepts rent)

termination by proper notice

Front 38

tenant duties

Back 38

if lease is silent, tenant must pay rent and not commit waste

if lease says tenant must repair and maintain then tenant is liable for all damage to the property, including even ordinary wear and tear unless that is specifically excluded from the promise to repair

tenant can terminate lease if the premises are destroyed without tenant's fault

Front 39

landlord remedies

Back 39

if T fails to pay rent, L can sue both for damages and to throw T off the property

if T unjustifiably abandons the leasehold L has two choices: (1) treat abandonment as an offer of surrender and accept the offer by retaking the premises; thus ending T's liability as of that date, (2) re-rent the premises on T's account and hold T liable for any deficiency

Front 40

landlord duties

Back 40

give T possession when lease begins

deliver residential premises in habitable condition: implied warranty of habitability in residential property (if not, T can move out and end the lease or stay and sue for damages) **no such warranty in TX, but a similar statutory requirements**

implied covenant of quiet enjoyment: three ways for L to breach (total eviction, partial eviction, constructive eviction)

Front 41

assignments and subleases - TX

Back 41

in TX there is no right to assign or sublet unless the landlord gives permission

Front 42

assignments - landlord sues tenant...

Back 42

T is liable to LL if there is either POE or POC

POE exists only between the present LL and present T

POC exists where there is an agreement between the parties or where assignee expressly assumes the obligations under the lease

certain covenants will run with the land if they touch and concern the land (if performance of the covenant makes the land more valuable or more useful)

Front 43

assignments - tenant sues landlord...

Back 43

original LL continues to be liable to T because of POC

successor LL is also liable, provided lease covenant runs with the land and there is either POC or POE

Front 44

subleases

Back 44

sublessee not liable to LL because no POC or POE

Front 45

non-assignment clause or non-sublease clause

Back 45

valid and enforceable even though a restraint on alienation

violation of such clause only makes the attempted transfer voidable at the option of LL, nothing happens if LL does nothing

permission given by LL once means the non-assignment or non-sublet clause is waived for all time unless LL states otherwise at the time of giving permission (acceptance of rent by LL gives permission)

courts do enforce non-assignment clauses but do not like them and are very quick to find waiver

Front 46

condemnation - partial taking

Back 46

does not release T from obligation to pay full rent, but T gets an amount equal to the rent that will have to be paid over the remainder of the lease for the property taken

Front 47

condemnation - full taking

Back 47

extinguishes the lease and T is excused from paying rent

T shares in the condemnation award only to the extent that the fair rental value of the lease exceeds the rent due under the lease

Front 48

landlord tort liability

Back 48

RULE: no duty of LL to T or T's invitees for injuries on the premises during the life of the lease

5 exceptions!!

Front 49

landlord tort liability - latent defects

Back 49

L under a duty to disclose latent defects which L either knows or has reason to know of

latent defect is defect that T does not know of and a reasonable person in T's position would not discover

LL doesn't have to repair only to disclose

Front 50

landlord tort liability - short term lease of a furnished dwelling

Back 50

LL liable for defects even if LL neither knows nor has reason to know of them

short term = 3 mos or less

Front 51

landlord tort liability - common areas under landlord control

Back 51

if injury is in an area subject to LL's control then LL is liable if LL failed to use reasonable care

Front 52

landlord tort liability - negligent repairs

Back 52

LL liable for injury resulting from LL's repair of a defect in the premises, even if LL used all due care in making the repair

LL created the deceptive appearance of safety for which he is liable

TX only: because landlord has statutory duty to repair the LL can be liable in tort if the injured person is in the class of persons protected by the statute

Front 53

landlord tort liability - public use exception

Back 53

LL liable for injury from defects in the premises if... (1) LL knew or should have known of major defects, (2) LL knew or should have known that T would not fix the defect, (3) LL knew or should have known the public would be using the premises

Front 54

tenant tort liability

Back 54

always liable to third party invitees for negligent failure to correct dangerous conditions on the premises

Front 55

fixtures

Back 55

if attached item became a fixture, chattel cannot be removed by either seller or tenant

key to fixture determination = intent

an agreement controls, but if no agreement then look at 4 facts: (1) degree of attachment, (2) general custom with this item, (3) degree of harm to premises on removal, (4) trade fixtures which are chattels used in a trade or business are not fixtures.

washers and dryers are never fixtures

if tenant can remove the chattel, it must be removed before the end of the lease

if owner can remove the chattel, it must be removed before closing

Front 56

easement

Back 56

non-possessory interest in land involving a right of use

Front 57

easement - appurtenant

Back 57

when the easement directly benefits the use and enjoyment of a specific piece of land

Front 58

easement - in gross

Back 58

no dominant estate

example - utility easement

Front 59

creation of easements

Back 59

express easement

easement by implication

easement by prescription

Front 60

creation of easement - express easement

Back 60

arises with an express grant of an easement to someone else, or the reservation of an easement when land is sold to another

easement is an interest in land, and must comply with the statute of frauds and with all the deed formalities (in writing, signed by the holder of the servient estate, and executed like a deed)

Front 61

creation of easement - easement by implication

Back 61

previous use by a common owner: continuous, apparent, and reasonably necessary

absolute right of access: implied easement by necessity exists when property is landlocked (owner of servient estate can choose the location of the easement so long as the location is a reasonable one)

Front 62

creation of easement - easement by prescription

Back 62

arises like title by adverse possession

four requirements: (1) use must be adverse to owner, (2) use must be continuous and uninterrupted (20 yrs or 10 in TX), (3) use must be either visible and notorious or with the owner's knowledge, (4) use must be without the owner's permission

Front 63

transferring the benefit of the easement

Back 63

if the easement is appurtenant, it goes automatically along with the dominant estate, whether it is mentioned or not in the conveyance, and it cannot be transferred separately from the dominant estate

if the easement is in gross, then easements in gross that are commercial can always be transferred, but easements in gross that are personal cannot be transferred

TX only: easements in gross cannot be transferred unless the language of the easement says so (exception - conservation easements can be transferred)

Front 64

transferring the burden of the easement

Back 64

easements are always binding on subsequent holders of servient estates, even if the easement is not in their deeds, providing the subsequent holder had notice of the easement

Front 65

use of easements

Back 65

terms of easement controls on questions of use

if easement is silent, there are 2 presumptions: (1) it is presumed that the easement is perpetual, (2) the use presumed is that of reasonable development of the dominant estate (the kind of use that would have been reasonably contemplated by the parties when the easement was created)

easement can be used to benefit only the dominant estate, not other property. use to benefit other property is excessive use; remedy is to enjoin that use

Front 66

repair of easements

Back 66

holder of easement must keep easement in repair and can always go on the servient estate to repair the easement even if the grant of the easement does not specifically provide the right to enter and repair

holder of easement must make reasonable restoration of servient estate after repairs

holder of easement is obligated to make necessary repairs; holder of servient estate has no obligation to repair (unless easement says otherwise)

Front 67

termination of easements

Back 67

six possible situations where an easement ends for reasons outside the terms of the easement: (1) unity of ownership or merger, (2) a valid release that complies with the SOF and all deed formalities, (3) abandonment with action showing intent to abandon, (4) termination by estoppel (representation of relinquishment by holder of dominant estate and change of position in reliance by holder of servient estate), (5) termination by prescription (owner of servient estate must stop the use of the easement and keep it stopped for statutory period), or (6) end of necessity.

Front 68

easement for light and air

Back 68

no implied easement for light and air

Front 69

licenses

Back 69

limited privilege of use and not a property interest; it is only a contract right, and it is revocable at the will of the licensor

licensor may have to pay contract damages for wrongful revocation, but there are no property rights

Front 70

licenses - tickets

Back 70

always licenses

tickets give no property rights, only contract rights

can always be revoked, but contract damages may be imposed

Front 71

licenses - irrevocable license

Back 71

license plus money spent on property furthering the license

any time an easement is attempted but fails due to the statute of frauds, there is a license

if money is spent on the property in furtherance of that oral license, the license becomes irrevocable and is just as good as an easement, and can be enforced under principles of estoppel

sometimes called an easement by estoppel

Front 72

profits

Back 72

gives the right to go onto land and take a natural resource away

along with a profit goes an implied easement to go on the land to get the resource and take it away

use easement rules

Front 73

restrictive covenants

Back 73

give the right to restrict someone else's use of their land

if plaintiff wants money damages, the restriction is called a covenant at law

if plaintiff wants an injunction, the restriction is called an equitable servitude

Front 74

restrictive covenants - covenants running with the land at law (plaintiff wants damages)

Back 74

four requirements: (1) intent that it run with the land, (2) notice to the person against whom enforcement is sought, (3) covenant must touch and concern the land, (4) privity

horizontal privity always refers to the original parties to a covenant

vertical privity refers to those who subsequently obtain the property subject to the covenant and the original party from whom they got the property

Front 75

restrictive covenants - covenants running with the land at law (plaintiff wants damages) - what kind of privity is needed?

Back 75

if the successor in interest is the defendant then someone is trying to have the burden of the covenant run to the successor

if the successor in interest is the plaintiff then that person is trying to have the benefit of the covenant run to them

for the burden to run against a successor in interest there must be both horizontal and vertical privity

for the benefit to run in favor of a successor in interest you need only vertical privity

Front 76

restrictive covenants - equitable servitudes

Back 76

to enforce you need: (1) intent that the restriction be enforceable by successors in interest, (2) notice to the subsequent purchaser, and (3) the restriction must touch and concern the land

no privity is required

Front 77

restrictive covenants - equitable servitudes in subdivisions

Back 77

also called reciprocal negative servitudes

two requirements: (1) intent to create servitude (found in common bldg plan), (2) notice (actual, record, or inquiry)

Front 78

restrictive covenants - equitable defenses to enforcement

Back 78

unclean hands

acquiescence (P let neighbor on other side do same thing)

laches (P sat by while D built the office bldg and only now after completion does P complain)

estoppel

Front 79

restrictive covenants - termination

Back 79

can always be done by release or by unity of ownership, but on exam look for termination by changed conditions

all or nothing rule: you cannot void a restriction because of changed conditions in the area unless all lots in the subdivision are affected

Front 80

adverse possession - elements

Back 80

hostile - being on the property with no right to be there

exclusive - X must be excluding others from possessing the property

lasting - possession must last for the statutory period (CL = 20 yrs) (TX = 3 yrs if there under color of title w/ only minor defects, 5 if there under color of title and pays taxes, 10 if bare possession, 25 if paid taxes and under color of title and true owner under a disability)

uninterrupted - must be the kind of continuous use an ordinary owner would make

visible - out in the open

actual - must actually possess the land to get title

**O doesn't have to know trespasser is on the land

**X doesn't have to think that O owns the property, no need for claim of right