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43 Cards in this Set

  • Front
  • Back
How do you create a fee simple on condition subsequent?
the instrument must contain either
1. an express right of entry/power of termination or
2. language providing the estate will be 'forfeited' or will become 'null and void' upon the happening of the specified condition or event.
What is the rule for liability of waste for a contingent remainder?
a contingent remainderman who sues a life tenant for waste is only entitled to injunctive relief.
What are the concurrent estates recognized in NC?
1. Joint tenancy

2. Tenancy by Entireties

3. Tenants in common
What are the rules for creating a joint tenant?
Never presumed, the deed or will must contain express language showing the transferor's intent to create a joint tenant
What is the presumption for tenancy by the entirety?
A conveyance in real property to a married couple is presumed to vest title in them as tenants by the entirety even if it does not identify them as husband and wife.

Note: a married person who owns real property can create a tenancy by entirety with their spouse in a direct conveyance.
How can one sever a joint tenancy?
a conveyance by one of the holders will sever the joint tenancy and create a tenancy in common with the buyer.
What are the rights of creditors under a Joint tenancy?
Individual interest are subject to the creditors
What are rights of creditors under a tenancy by the entirety?
must be joint judgment based on ajoint obligation
When can partition occur?
For a joint tenancy and tenant in common
What are the types of Partitions?
1. partition in kind- when you divide up the property and each owner gets a piece of their own

2. partition by sale--when a partition in kind can't be held without a substantial injury to the property the land will be sold
What is the statute of frauds limitation for a tenancy for years?
In order for a tenancy for years to be enforcable, a lease agreement must meet the statute of frauds writing requirement if it can exceed 3 years from the time of its making.
What is an assignment?
the transfer of the entire interest for the balance remaining its an assignment.
What are the notice requirements for termination of a Periodic tenancy?
1. month for a year to year tenancy

2. 1 week for a month-to-month tenancy

3. 2 days for week to week tenancy
What is the statutory limitation for prescriptive easement?
20 years
How to create a restrictive covenant?
A restrictive covenant is a real covenant that runs with the land of the dominant and servient estates only if (1) the subject of the covenant touches and concerns the land, (2) there is privity of estate between the party enforcing the covenant and the party against whom the covenant is being enforced, and (3) the original covenanting parties intended the benefits and the burdens of the covenant to run with the land
What does T.I.P.'N mean?
This is a Mnemonic device for restrictive covenant that means:

T = touches and concern the land

I = Intent

P = privity (vertical and horizontal

N = notice
What is notice for a restrictive covenant?
a purchaser for value is not bound by a restrictive unless they had notice

Note: a purchaser is deemed to have notice of everything affecting his title that could be discovered by a "prudent" title serach (inquiry notice)
What is Warranty of Usability/Fitness for Purpose Implied From Restriction?
when land cannot be used for the purpose to which it was restricted due to a defect unknown to the parties at the time of the sale, the purchaser is entitled to the remedy of recission and restitution.
What is the statute of limitations for adverse possession for the government?
30 years.
What is the statute of limitations for adverse possession against the government with color of title?
21 years
What is the statue of limiations for adverse possession for private property with color of title?
7 years.
What are the two types of ouster for cotenants?
actual--clear and unequivocal act that amounts to a denial of the rights of the co-owners

2. constructive-co-tenant claiming title by adverse possession must prove exclusive, continuous possession for a period of 20 years, during which the other co-owners claimed no rights in the property and the possessor did nothing to acknowledge their title.
How is eminent domain delegated in NC?
Power of Eminent Domain can be delegated by statute to public and private corporations when needed to provide a public benefit.
What is the risk of loss in NC?
NC follows Uniform Vendor-Purchaser Act:

If the property is destroyed and its not the seller's fault, if the buyer has either legal title or possession, the seller can enforce the sale

If the buyer has neither possession or legal title and the property is destroyed at no fault of the buyer, then seller cannot force the sale.
What is the residential disclosure act?
owner to disclose

1. diclose of its existence

2. state that he has actual knowledge of the conditoin

3. state that he makes no representation with respect to it

Note: if the statement is delivered after the buyer makes an offer or enteres the conract, the buyer may withdraw the offer or terminate the contract without penalty by given written notice no later than 3 days after receiving the statement
What is the implied warranty of workmanlike construction?
1.contract for the sale of recently completed dwelling or one that is stil under construction

2. Vendor/seller is in the business of buildings such dwellings

3. vendee/buyer is the initial purchaser of the dwelling

Note: coverage at the time buyer takes title or possession the dwelling and its fixtures are free from major structural defects and constructed in a workman like manner.

Note: duration 10 years

Note: Measure of damges for breach--cost of repair, however, if the nature of the defect cannot be remedied without having a desroy a substantial protion fo the work already completed, the court may apply the diminution in value measure.
What is required in a Deed?
1. Competent Grantor

2. Grantee must be a existing person

3. Description adequately describing the land

4. Delivery

(i) no delivery by words alone-must be transmutation of process

(ii) Same presumptions of delivery as multi-state

(iii) conditional delvery-same as multi-state
What is the statute of limitations of deed covenants?
10 years
What is the rule for deeds of gift?
unless recorded within 2 years of when it is made, a deed of gift (grantee is not a purchaser for value) automatically becomes absolutely void even as between the grantor and grantee
What is the rule for the presumption of a fee?
when real estate is conveyed the same shall be held and construed to be conveyed to be conveyance in fee, whether the word "heir" is used or not, unless such conveyance in plain and express words shows, or it is plainly intended that the grantor meant to convey an estate of less dignity
What is the rule for an infant taking?
infant unborn, but in esse, deemed person capable of taking by deed or other writing, in same manner as if he were born.

Note: in esse already in existence

Note: infant who is unborn when instrument takes effect can still take as long as already in gestation/in conception and subsequently born alive
What is the rule of convenience?
class closes when biologically or when any member of class entitled to present possessory interest (as soon as any member)
What is the Rule in Wild's Case
1. Interpretation in instruments in which given to "A and his children"

2. under the Rule in Wild's Case kind of estate A took would depend on whether had children when instrument took effect

(a) 2 possibilities rule wild case has two parts called

(i) A has no children when instrument took effect at common law property

(ii) resolution 2 when A has one or more children in existence when instrument takes effect, A and child share equally as tenants in common
What is the resolution one for the rule in Wild's Case?
1. If A does not have children when instrument takes effect then A takes a Fee Tail in NC converts to a Fee Simple
What is the second resolution under the Rule in Wild's Case?
If A has 1 or more children when instrument takes effect then A and his children take equal shares
What is the rule in Shelley's case?
when life estate given to someone and in same instrument remainder is given immediately to heirs or heirs of body of life tenant's life estate also takes the remainder

Note: the effect of rule of shelley's takes away the remainder and gives life tenant person has two interest life estate and future interest remainder in fee simple

Ex. A for life then to A's heirs.

Note: NC abolished the rule in Shelley's case.
What is the doctrine of merger?
person has two interest in property and no intervening estate, larger estate swallow smaller one

Note: only applies if no intervening vested estate
How is the conveyance labled?

"To A for life then A to A's heirs"
A = life estate

A's Heirs = remainder in life estate

Doctrine of merger applies A = estate in fee
How is the words heirs construed?
in certain limitations 41-6 a limitation by deed will, or other wirting, to the heirs of a living person, shall be construed to be to the children of such person, unles a contrary intention appear by the deed or will
What is the statutory abrogation of the rules against perpetuities?
NC follows the wait and see--interest either vests or terminates within 90 years after its creation
What is the general rule for chaning restrictive covenatns?
A developer can reserve the right to unilaterally amend restrictive covenants.Thus, in one North Carolina Supreme Court decision, the court held that the developer was not required to obtain the consent of all of the lot owners prior to amending a restrictive covenant to allow a setback of 12 feet rather than 15 feet for a lot owner whose home was constructed only 12.5 feet from the adjoining lot
What is the general rule for changes in restrictive covenants?
the general rule in North Carolina is that changes in the character or use of land adjacent to but outside the area of a subdivision restricted to residential purposes do not affect the validity and enforceability of the residential restrictions if there has been no change in use within the covenanted area
What is the rule for changes in the circumstances of a restrictive covenant?
Where there is a restrictive covenant without any limitation as to how long it will endure, equity may refuse to enforce the covenant when there has been a change of circumstances in the restricted area or a change in the character of the neighborhood to such an extent that the objectives of the covenant have in fact been frustrated or made impossible or impracticable of accomplishment.The burden of showing that changed conditions and changes in the character of the property have been so substantially changed as to make enforcement of the restrictions inequitable and unjust is on the party contending that the restriction should not be enforced.All persons who may have a right to enforce the covenants inter se or otherwise should be made parties in any action to declare restrictive covenants unenforceable by reason of changed circumstances