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103 Cards in this Set
- Front
- Back
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Alienating Property |
1. Sale 2. Gift 3. Devise (upon death in a will) 4. Intestate succession (without a will upon death) to heirs at law |
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Estate in Land |
Ownership interest In time between present and future. Someone must be in possession of the property at all times. |
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Fee simple |
Largest possessory estate. Capable of lasting forever. Inheritable and fully alienable Default estate |
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Defeasible Fees |
May be terminated by the occurrence of an event. Capable of lasting forever but also of being terminated early. Condition will cut it short. |
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Fee Simple Determinable |
Limited by specific durational language: "so long as," "while the land is used," "until it is no longer used." After the durational period (i.e. when the land is no longer being used for the specific purpose) the land automatically reverts back to the grantor or his devisee. |
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Fee Simple Subject to Condition Subsequent |
Limited by specific conditional language, such as: "but if the land isn't used. . ." or "on the condition that it isn't used. . ." After the condition is met, the grantor must act to reclaim possession (it is no automatic). |
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Possibility of Reverter |
Future interest held by a grantor following a fee simple determinable. Interest vest automatically after the durational period. Freely transferrable. |
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Right of Entry |
Future interest held by the grantor following a fee simple subject to condition subsequent. Does not vest automatically, the right must be exercised. Cannot be transferred inter vivos (during life, only upon death in will or intestate). |
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Fee Simple Subject to Executory Interest |
Will end upon the happening of an event and the future interest will vest in a third party. Someone other than the grantor and grantee. |
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Executory Interest |
Future interest that will divest or terminate an earlier interest. |
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Life Estate |
Present estate that is limited by a life. The measuring life does not have to be present possessor. Must use the language "for life." Ends when the measuring life dies. Transferable, but cannot pass rights on through will or intestate because rights cease upon death. |
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Future Interests Following a Life Estate |
Reversion: possession goes back to the grantor or his heirs. Remainder: possession goes to a third party after the estate ends. |
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Waste |
Affirmative waste: voluntary decrese in value Permissive waste: non-conduct creates decrease in value Ameliorative waste: conduct creates increase in value |
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Concurrent Estates |
Ownership or possession of real property by two or more persons simultaneously. Concurrent owners each have the right to use and possess the entire property. |
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Tenancy in Common |
Any conveyance to more than one person is presumed to be a tenancy in common. Concurrent owners have separate but undivided interests in the property. No right of survivorship (property will not go to other tenant upon death). Freely transferable. |
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Joint Tenancy |
Right of survivorship (surviving joint tenants automatically take the deceased tenant's interest). Must be created by clear expression of intent by the grantor, must have survivorship language. Four Unities: Possession (equal right to possess the whole) Interest (equal share and same type) Time (created at the same time) Title (received in same instrument of title) |
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Severance of Joint Tenancy |
1. Inter vivos transfer 2. Conveyance of only one of more than two joint tenants does not destroy the joint tenancy of the other tenants. 3. Any lien terminates upon death and does not sever. Does not continue to encumber the land. 4. Mortgages: most jurisdictions follow a lien theory and it is treated as a lien. Other jurisdictions follow a title theory that states that a mortgage severs the title, making it a tenancy in common. 5. Leases: some jurisdictions say it severs, others treats it as a temporary suspension of the joint tenancy. |
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Tenancy by the Entirety |
Joint tenancy between married spouses. Has the right of survivorship. Cannot alienate or encumber their shares without the consent of the spouse. Grant must be explicit, otherwise considered tenants in common. |
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Ouster |
If co-tenant in possession denies another co-tenant access to the property, then the ousted tenant can get an injunction granting access and/or recover damages for the value of the use while co-tenant was unable to access the property. |
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Third Party Rents and Operating Expenses with Co-Tenants |
Rents received, minus operating expenses, are divided based on the share of each co-tenant. Taxes and mortgage should be divided based on ownership interest. Can collect amount from other co-tenants for payments in excess of her share. No right to reimbursement for repairs or improvements unless there is a partition (then tenant will receive credit. |
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Partition |
Equitable remedy abailable to all holder or a tenancy in common or a joint tenancy. Courts have preference for physical division, partition in kind. Partition by sale will be ordered if physical partition is: not practical OR not fair to all parties. Proceeds from a partition sale are divided based on ownership interests. (can make an agreement not to partition) |
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Spring Executory Interest |
Divests the grantor |
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Shifting Executory Interest |
Divests prior grantee |
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Remainders |
Follows a life estate. Cannot follow a vested fee simple. |
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Vested Remainder |
Given to an ascertained grantee. Not subject to a condition precedent. RAP applies. |
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Contingent Remainder |
Unknown grantee(s). Dependent on a condition precedent (natural termination of a present interest). RAP applies. |
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Class Cift - Vested Subject to Open |
Vested remainder in a class and full class membership is unknown. At least one person must be vested to open the class, if there is no one than the remainder is contingent. RAP applies. When all members of the class are known, class "closes." |
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Rule of Convenience |
Will close the class if there is not an express closing date when any member of the class becomes entitled to immediate possession in order to save the class from RAP. |
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Doctrine of Worthier Title |
Prevent against remainders in the grantor's heirs. Creates a reversion to the grantor instead. |
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Rule in Shelley's Case |
Prevents against remainders in grantee's heirs and instead creates a fee simple. |
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Rule Against Perpetiuties |
1. Prevents remote vesting. 2. Measured by a life plus 21 years. 3. Strikes a grant if it is invalid. |
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RAP and Class Gift |
If gift is void to any member, then the gift is void to all members of the class. |
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Exceptions to RAP |
RAP does not apply to one gift from one charity to another. RAP does not apply to an option held by a current tenant to purchase a fee interest in the leasehold property. If also does not apply to interests belonging to grantors. Some jurisdictions now have the wait and see approach to determine if an interest vests in place of common law RAP. |
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Lease |
Creates both a contract interest and a property interest. |
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Tenancy for years |
Measured for a fixed and ascertainable amount of time (any aount of time). An agreement is necessary to demonstrate intent. If the term is longer than one year, must be in writing (Statute of Frauds). Termination occurs automatically upon the expiration of the term. No notice required. |
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Periodic Tenancy |
Estate that is repetitive and ongoing; renews automatically at the end of each period unless one party gives notice. Must intend to create. Proper notice before the start of what will be the last period. Notice effective the last day of period. |
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Tenancy at will |
May be terminated by either landlord or tenant at any time for any reason. Express agreement or implication, do not need notice to terminate. If agreement states that only landlord has right to tenant, tenant is still given right to terminate. If landlord dies, tenancy is terminated. |
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Tenancy at sufferance |
Created when a tenant holds over after a lease has ended. Temporary that exists before landlord either evicts tenant or re-rents the property to the tenant. Terms of the prior lease control. Terminated if: 1. tenant voluntarily leaves 2. landlord evicts the tenant 3. landlord re-rents to tenant If landlord accepts rent, becomes periodic tenant. (same as old rent unless had notified otherwise) |
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Tenant Duties |
1. Pay rent 2. Avoid waste |
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Do not have to pay rent when: |
1. premise is destroyed 2. landlord completely or partially evicts tenant 3. landlord materially breaches the lease |
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Implied covenant of quiet enjoyment (Landlord) |
Landlord makes the premises wholly or substantially unsuitable for intended purpose and the tenant is constructively evicted. |
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Constructive Eviction |
Premise unusable for intended purpose Tenant notifies landlord Landlord does not correct the problem Tenant vacates the premises after a reasonable amount of time has passed. |
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Implied Warranty of Habitability (landlord) |
Obligation to maintain that is suitable for residential use. Concerned with conditions that threaten tenant health and safety. This cannot be waived. Applies to residential properties. Tenant may withhold rent, remedy defect and offset costs against the rent, and use as a defense against eviction. Does not require the tenant to vacate the premise, but the tenant must notify the landlord and give the landlord reasonable opportunity to vacate the premises. |
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Duty to Avoid Waste |
Does not need to be express. Changes usually require permission prior to change. |
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Duty to repair |
Residential lease, the landlord is presumed to be responsible, tenant must notify. Commercial lease, landlord can place duty to repair on tenant. Not responsible to make repairs to damage caused by tenant. |
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Duty to Mitigate Damages (landlord) |
Majority: landlord must make reasonable efforts to re-rent the property. Minority: do not have to mitigate |
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Duty to Deliver Possession (landlord) |
Majority: Actual possession Minority: only required to deliver legal possession |
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Landlord Controls |
Common areas. Nuisance like behavior of other tenants. Does not have to control off premises actions of third parties. |
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Tort liability for Landlords/Tenants |
Tenant owes duty of care which extends to invitees, licensees, and foreseeable trespassers.
Landlord liability is as follows: responsible in negligence for latent or hidden defects that have not been warned responsible for repairs completed by the landlord responsible for negligence that causes the injuries in common areas of the property |
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Assignment |
Complete transfer of the tenant's remaining term. The landlord can collect rent fromthe tenant (privity of contract) ORsubsequent tenant (privity of estate) |
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Sublease |
Transfer of less than the entire duration of the lease. Landlord can only collect rent from the first tenant because of privity of contract and estate. |
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Permission for Transfer of Leases |
Majority Rule: A landlord may deny permission to a transfer only for a commercially reasonable reason.
Minority Rule: A landlord may deny at her discretion (any reason/no reason) Transferring a landlord's interest: does not need tenant's permission but bound by terms of the existing lease. |
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Fair Housing and Discrimination |
Restricts a landlord's ability to choose tenants. Focuses on multi-family residential housing. Protects: race,color, religion, national origin, sex, disability, and familial status |
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Adverese Possession |
Elements: 1. Continuous for statutory period2. open and notorious 3. hostile 4. exclusive Cannot adversely possess government land |
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Adverse Possession: Continuous |
Does not have to be literal, just consistent with the type of property being used. |
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Tacking |
Adverse possessor cannot satisfy continuity requirement on her own, she can tack on her predecessor's time on the property to satisfy the statute of limitations, and in order to tack, need privity of contract.
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Defenses to Adverse Possession |
1. Permission 2. Disability of owner 3. Interruption of continuous use |
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Hostile |
1. majority rule: does not inquire into the adverse possessor's state of mind
2. minority rule: inquires into the adverse possessor's state of mind Two camps: Good faith- some require that land is unowned or she is rightful owner (based on mistake) Bad faith- require that tries to acquire - agressive trespass |
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Land Sale Contracts |
Contract stage: Liability based on contract provision Deed stage: Liability based on deed warranty Doctrine of merger: covenants under the contract are merged into the deed and therefore can't be enforced unless the covenant is also in the deed. |
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Statute of Frauds |
1. must be in writing
2. must be signed by the party to be charged 3. must include essential terms: parties (seller and the buyer), description of the property, payment information Exceptions: part performance or detrimental reliance |
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Implied Covenant of Marketable Title |
Marketable title: title that is free from an unreasonable risk of litigation Defects: adverse possession, private encumbrance, violation of zoning ordinance. Defect must be cured or fixed before closing. Remedy for defect is recession, will not be granted until closing/reasonable time given after closing. |
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Implied Warranty of Fitness or Sutiability |
Applies to defects in new construction
Adequate materials and good workmanship Suit for breach must be brought within a reasonable time after the discovery of the defect |
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Duty to Disclose Defects |
All known physical material defects and latent defects. |
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Risk of Loss |
Buyer has risk of loss after creation of contract. Minority: risk of loss is on seller until the closing and delivery of the deed. |
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Mortgage |
Security device used to secure repayment Note: borrower's promise Mortgage: instrument that provides security to the note. Default results in foreclosure or suing for personal liability. |
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Relase |
Personally liable on mortgage until release. |
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Due-on-sale |
Acceleration is acceptable. |
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Assumption of mortgage. |
If transferee assumes loan, then secondarily liable . Both transferee and original borrower are liable. Default is obtain property "subject to" mortgage, which does not make transferee personally liable. |
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Pre-Foreclosure Rights: Possession |
Lien theory: cannot take possession prior to foreclosure because lender has a lien until foreclosure is complete
Title theory: lender technically has the right as the title holder to possess the property at any time intermediate title theory: the mortgagor retains the title until default at which point the lender can take possession |
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Equity of redemption |
A common law right held by the mortgagor to reclaim title and prevent foreclosure, must exercise before the foreclosure sale
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Foreclosure methods |
Mortgagee must give notice before foreclosing
Two common methods: judicial sale: under the supervision of a court power of sale: sale is held by the lender Proceeds of the sale are used to pay off the debt, mortgagor is responsible if sale produces less than owed, lender can issue a deficiency judgment |
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Priorities in Foreclosure |
Senior interest, interest acquired before the interest being foreclosed, is not destroyed. Junior interest, interest acquired after interest that is being foreclosed, is destroyed (if notice of proceeding) Purchase money exception: priority over all mortgages. If a mortgage is modified to make it more burdensome, then that modification is subordinate. |
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Statutory Redempetion |
Enables homeowner to nullify foreclosure for certain period of time. |
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Recording of Deed |
In order to be valid, a deed must be delivered and accepted. Controlling: intent. Physical transfer of deed not required. |
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Common Law of Recording |
A deed does not need to be recorded to be valid. First in time, first in right. |
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Recording Acts |
Covers: deeds, liens, judgments affecting tile, leases, easements, and covenants. Notice: must buy without notice of prior interest Race-Notice: must buy without notice of prior interest and record first. Race: must record first. |
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Notice |
Actual notice- when the subsequent knowledge- real personal knowledge of prior interest
Constructive notice- record notice, prior interest is recorded inquiry notice- when a reasonable investigation would have disclosed the existence of prior claim. |
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Shelter Rule |
Shelters a person who takes from bona fide purchaser protected by recording act because has same rights as grantor. |
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Estoppel by Deed |
Arises when a grantor conveys land that the grantor does not own. |
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General Warranty Deed |
Present covenants:covenant of seisin- warrant that the deed describes the land in question
covenant of the right to convey- warrants that the grantor has the right to convey covenant against encumbrance warrants that there are no undisclosed encumbrances on the property that could limit its value Future covenants:covenant of quiet enjoyment covenant of warranty- promises to defend against future assertions of encroachment covenant of further assurances- grantor promises to fix future title problems |
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Special Warranty Deed |
Grantor warrants against defects caused by the grantor.
Lesser amount of title protection. Same six covenants- but they only apply to the acts or omissions of the grantor. |
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Quitclaim deed |
The grantor makes no warranties as to the health of the title. Least amount of protection.
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Wills |
Real property can be transferred by devise. Guiding principle: testator's intent. If dies without will, intestate succession to heirs. |
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Types of gifts in a will |
Specific gift- a devise of property that can be distinguished from rest of testator's estate
General gift -personal property that will be satisfied from the general assets of the estate Demonstrative - general devise that is satisfied from a particular source Residuary - the balance of the estate after all the general and specific gifts have been made |
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Ademption |
Gift is no longer in the estate, and beneficiary will receive nothing. |
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Lapse and Anti-Laspe Statutes |
Lapse occurs when beneficiary dies before the testator dies. Anti-Lapse Statute will prohibit lapse when the gift was made to specified family member who has a child, then the gift will go to the child(ren). |
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Trust |
Device for managing property whereby one person (trustee) owns propety the benefit of another person (beneficiary)
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Easement |
Right held by one person to make use of another person's land.
Land burdened by the easement: servient estate. Land benefitted by the easement: dominant estate. |
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Affirmative and Negative Easements |
Affirmative- give the holder the right to do something on someone else's property
Negative- gives the holder the right to prevent someone from doing something on her land. |
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Appurtenant or in gross easements |
Appurtenant is tied to the land. Holder of an easement is benefitted in her use of the land. Easement in gross benefits the holder personally.
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Types of Easement |
Express Implication Necessity Perscription Estoppel |
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Express easement |
Subject to Statute of Frauds (must be in writing) Negative easement must be express. |
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Necessity Easement |
Easement by necessity is creaed when property is virtually useless. 1. Dominant and servient estate were owned by one person at some point in the past 2. Arose when estates were severed into separate estate 3. Ends when no longer necessary |
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Easement by Implication |
Created by existing use on property. 1. owned by one owner- common ownership 2. before division, uses the land as if there is an easement on it- quasi-easement 3. use continuous and apparent at time of severance. 4. use must be reasonably necessary to the dominant estate's use and enjoyment |
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Easement by Perscription |
Like adverse possession, but about use. Continuous Open and Notorious Hostile |
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Easement by Estoppel |
Permission Neighbor makes reasonable promise that is relied upon by other neighbor. An improvement or investment occurs, and neighbor is estopped from withdrawing. |
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Termination of Easement |
1. Release- in writing for express easement. 2. Merger- terminated if owner of easement acquires fee title to underlying estate. 3. Abandonment- Owner acts in an affirmative way that shows a clear intent to relinquish the right (intent + action) 4. Perscription, does not protect against a trespasser for statutory period. 5. Sale to bona fide purchaser 6. End of Necessity |
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License |
Revokable, permission to use another's land. |
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Real Covenant |
Promise concerning the use of the land that runs to successors to the promise. Requirements: 1. Writing 2. Intent to bind future parties 3. Touch and concern the land 4. Notice 5. Privity: need horizontal privity (estate and covenant are contained in the same instrument and transfer of property) and vertical privity (take original party's entire interest) |
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Equitable Servitude |
Operates like a real covenant but with easier requirementsto bind a successor:
1. it must be writing. (exception - implied reciprocal servitude) 2. must have been intent to run with the land 3. must be touch and concern the land 4. successor must have notice (actual, record, or inquiry) NO PRIVITY Remedy for breach is injunctive relief. |
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Implied Reciprocal Servitude
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Intent to create a covenenat on all plots Planned community Must be reciprocal (benefit and burden every person) Negative Successor must be on notice of restriction Common plan or scheme |
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Water Rights |
Riparian Rights: landowners who border a waterway own the rights.
Riparians share the right to reasonable use of the water, such that one riparian is liable to another for interference with the other's use. Prior Appropriation: First in Time First in Right - first to use the water regardless of where their land is located. Beneficial use: in a prior appropriation jurisdiction, must be put to beneficial use- productive use satisfies Groundwater: majority view allows the surface owner to make reasonable use of the groundwater. |
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Support Rights |
Negligence liability when actions cause cave in (subsidience) on a neighbor's land and buildings contribute. Strict liability when actions caused subsidence but building did not contribute. |
