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Bar Prep > Property > Flashcards

Property Flashcards

1
Q

Concurrent Estates

A

The Joint Tenancy
Two or more own with the right of survivorship

The Tenancy by the Entirety
A protected marital interest between spouses with the right of survivorship

The Tenancy in Common
Two or more own without the right of survivorship

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2
Q

Joint Tenancy

A

Right of survivorship
Deceased JT’s share goes automatically to surviving JT

Alienable inter vivos? Yes
Devisable? No
Descendible? No

Attempt to dispose of the property by will is void.
Multiple survivors, only part of interest gets severed if sold

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3
Q

Creation of JT (4 Unities)

A

Time
Title
Identical Interests
Right to Possess Whole

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4
Q

Severance of JT

A

Sale: JT sells/transfers during lifetime even without others knowledge or consent

Partition:
Voluntary: amicable end
Judicial: in Kind (physical division); forced sale (division of proceeds)

Mortgage
Majority of states (lien theory): no severance
Minority (title theory): severance

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5
Q

Tenancy by the Entirety

A

Between married partners only
No unilateral transfer or encumbrance
Severance: divorce, death, execution of lien

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6
Q

Tenancy in Common

A

No right of survivorship
Co-tenant owns individual part + right to possess whole
Devisable, descendible, alienable
Presumption favors TiC

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7
Q

Rights and Duties of Co-Tenants: Possession

A

No ouster (wrongful exclusion from part/whole)

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8
Q

Rights and Duties of Co-Tenants: Rents and Profits

A

None from co-tenant in exclusive possession (unless ouster)
Fair share if leased to third party

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9
Q

Rights and Duties of Co-Tenants: AP

A

Not unless ouster

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10
Q

Rights and Duties of Co-Tenants: Carrying Costs

A

Each pay fair share
Taxes, mortgage interest payments

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11
Q

Rights and Duties of Co-Tenants: Repairs

A

Contributions for reasonable, necessary repairs with notice

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12
Q

Rights and Duties of Co-Tenants: Unilateral Improvements

A

No contribution (credit at partition equal to increases in value)
So-called improver also suffers a debit if value decreases

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13
Q

Rights and Duties of Co-Tenants: Waste

A

Voluntary: willful destruction
Permissive: negligence
Ameliorative: Unilateral changes increasing value

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14
Q

Rights and Duties of Co-Tenants: Judicial Partition

A

Partition in kind preferred
Forced sale allowed if fair division not possible

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15
Q

Rights and Duties of Co-Tenants: Temporary restraint on partition

A

must be reasonable in nature and duration

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16
Q

Tenancy for Years

A

Known, fixed period of time
Termination automatic (on end date)
No notice to terminate needed
Writing typically needed if > 1 year

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17
Q

Periodic Tenancy

A

Continues for successive intervals until properly terminated

Creation:
Express
Implication

No mention of duration but rent at set intervals
Oral term of years violating statute of frauds
Holdover tenant after lease ends

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18
Q

Periodic Tenancy: Notice of Termination

A

Common law: At least equal to length of period
Year to year: Six months under common law
Except year-to-year which is 1 month under restatement
^Preferred approach

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19
Q

Tenancy at Will

A

No fixed duration
Terminable at will of either party (“To T for as long as L or T desires”)

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20
Q

Tenancy at Sufferance

A

T wrongfully holds over past lease expiration
L proceeds to recover rent
Terminates when L moves to evict or holds T to new tenancy

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21
Q

T’s Duty to Repair if Lease Silent

A

Maintain premises
Make routine repairs
Not ordinary wear and tear repairs
Don’t commit waste

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22
Q

T’s Duty to Repair with Express Covenant

A

Maintain in good repair/condition

Residential vs. Nonresidential Contexts
If a residential tenant covenants to repair, the landlord usually remains obligated to repair (except for damages caused by the tenant) under the nonwaivable “implied warranty of habitability”. However, a nonresidential tenant’s covenant to repair is enforceable, and a landlord may be awarded damages for breach based on the property’s condition when the lease terminates compared with its condition when the lease commenced. In the absence of a specific reference to ordinary wear and tear, a covenant to repair usually includes such repairs. However, repair covenants frequently exclude ordinary wear and tear.

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23
Q

T’s Duty to Pay Rent: If T breaches and remains on premises

A

Evict
Continue relationship and sue for rent
No self-help

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24
Q

T’s Duty to Pay Rent: If T breaches and is out of possession

A

S - Surrender: End lease
I - Ignore: Do nothing (hold T liable for rent)
R - Relet: New Lease (hold T liable for deficiency)
Majority view says LL must at least try to relet

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25
Q

T’s Duty to Pay Rent: Rent Deposits

A

Most states restrict the amount of security deposits to one month’s rent, require landlords to pay interest on security deposits, and allow statutory or punitive damages for a landlord’s improper refusal to return a security deposit

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26
Q

LL’s Duties: Duty to Deliver Possession

A

Duty to place T in actual, physical possession

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27
Q

LL’s Duties: Implied Covenant of Quiet Enjoyment

A

T has right to quiet use and enjoyment without interference from L (residential and commercial)

Breached by:
Wrongful eviction
Constructive eviction

T can:
Stop paying rent

Sing Elements for Constructive Eviction:
Substantial Interference
—Chronic or permanent problem
Notice
—T must notify L
Goodbye
—Get out, must vacate

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28
Q

LL’s Duties: Implied Warranty of Habitability

A

Residential only
Premises must be fit for basic human habitation
Standard: case law and housing code

Triggered by:
No heat in winter, no working plumbing, no running water, etc

T’s Options if L breaches:
Move
Repair and deduct
Reduce or withhold rent
Remain and seek damages

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29
Q

LL’s Duties: Distinguish Implied Promises

A

Covenant of quiet enjoyment: T must vacate
Warranty of habitability: T may vacate (doesn’t have to)

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30
Q

LL’s Duties: Retaliatory Eviction

A

L can’t terminate/penalize T in retaliation for T’s exercise of legal rights
Applies to any harassment or raising rent etc

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31
Q

Fair Housing Act

A

No housing discrimination on basis of race, color, religion, sex, disability, familial status, national origin

Prohibited Actions:
Refusing to negotiate, rent, or sell housing, or give mortgage
Providing different terms for sale/rental
Falsely representing dwelling unavailable
Reasonable accommodations for tenants w/disabilities

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32
Q

Fair Housing Act Exemptions

A

Owner-occupied buildings with 4 or fewer units

Single family homes if owner has no more than 3

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33
Q

Assignment vs Sublease

A

Assignment: Transfer of entire remaining term of lease
Sublease: Transfer of part of remaining term of lease

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34
Q

Assignment

A

Assignee T in privity of estate with L
—-Liable on covenants that run with the land
Original T in privity of contract (but not estate) with L
—-Remains liable for original lease obligations
LL and T2:
—-In privity of estate after assignment
——–Because in possession, liable to each other for those that run with the land
—-T1 no longer in privity of estate
Not in privity of contract
—-No original promissory words
—-T1 remains in privity of contract
——–Secondarily liable to each other
——–T1 can be held liable if T2 doesn’t pay

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35
Q

Sublease

A

T2 has no privity (estate or contract) with L
T1 and T2 responsible to each other
Relationship between L and T1 remains intact
T2 has issues, they can go to T1 who goes to L

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36
Q

Caveat Lessee (tenant beware)(common law)

A

L has no duty to make premises safe.

Exceptions:
Common areas
Latent defects (L must warn)
Assumption of repairs (L is liable if negligent)
Public use (short lease, significant defect)
Short term lease of furnished dwelling (defective conditions)

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37
Q

Easements

A

Grant of a nonpossessory property interest entitling holder to use/enjoyment of another’s land

Affirmative: Right to go on to and do something on another’s land
Negative: Right to prevent landowner from doing something (light, air, support, stream water from artificial flow)

Creation of negative easement:
Can only be created expressly

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38
Q

Easement Appurtenant

A

Benefits holder in use/enjoyment of own land

Dominant: derives benefit
Servient: bears burden

Easement appurtenant to B’s dominant tenement
Two parcels involved

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39
Q

Easement in Gross

A

Confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land.

Servient land is burdened.

No benefited or dominant tenement (because the easement benefits the holder rather than another parcel)

Ex, The right to place a billboard on another’s lot, The right to swim in another’s pond, The utility company’s right to lay power lines on another’s lot

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40
Q

Transfer of Easements

A

Easement Appurtenant
transfers with the dominant tenement, even with no notice
The burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice of the easement.

Easements in Gross
Not transferable unless for commercial purposes

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41
Q

Creation of Affirmative Easements

A

Prescription
Implication
Necessity
Grant

Signed writing unless outside SoF (deed of easement)

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42
Q
A

Prescription
Continuous
Open and notorious
Actual
Hostile

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43
Q

Creation of Affirmative Easements: Prescription

A

Continuous
Open and notorious
Actual
Hostile

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44
Q

Scope of Easements

A

The scope of an easement is determined by the terms of the grant or the conditions that created it
If not, will be implied by sufficiency
No unilateral expansion
remember that such use does not terminate the easement. The appropriate remedy for the servient owner is an injunction against the misuse.

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45
Q

Termination of Easement

A

Estoppel (servient owner materially changes position in reliance on easement holders assurances that easement will no longer be enforced)

Necessity (expires when need ends unless reduced to an express writing)

Destruction (of servient land, other than through willful conduct of servient owner)

Condemnation (of servient land by government eminent domain)

Release (by holder to servient owner)

Abandonment (physical action, ie. building a wall blocking road; never good enough to just express potential interest in abandonment)

Merger (when title of easement and title of servient land held by the same person, easement ends and merges)

Prescription (by servient owner, similar to AP)

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46
Q

License

A

Mere privilege to enter another’s land for narrow/delineated purpose
—Not an interest
No writing required
Freely revocable at will of licensor (unless estoppel applies)

Note: neighbors talking by the fence
—Violates statute of fraud if oral easement
—But creates freely revocable license
Estoppel applies if relied upon and investments made

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47
Q

Profit

A

Entitles holder to enter servient land and take some resource
All of the rules governing creation, alienation, and termination of easements are applicable to profits.

A profit may be extinguished through surcharge (misuse that overly burdens the servient estate).

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48
Q

Covenant

A

Promise to do or not to do something

Negative/Restrictive:
Refrain from doing something (ie. “not to build for commercial purposes”)

Affirmative
Do something related to land (ie. “maintain fence”)

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49
Q

Covenant vs Equitable Servitude

A

Money damages: construe as covenant at law

Injunction: Construe in equity as equitable servitude

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50
Q

Requirements for Burden to Run with the land

A

Writing
Intent
Touch and Concern
Horizontal and vertical privity
Notice

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51
Q

Horizontal and Vertical Privity

A

Horizontal:
Nexus between original promising parties (succession of estate)

Vertical:
Nexus between successor and original covenanting party (non-hostile)

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52
Q

Requirements for Benefit to Run

A

Writing
Intent
Touch and Concern
Vertical privity

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53
Q

Equitable Servitudes

A

Injunctive relief
Promise equity will enforce against successors of burdened land (regardless of whether it runs with the land)

Creation of ES:
Writing
Intent
Touch and Concern
Notice
Equitable Servitude (not factor just for acronym)

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54
Q

Common Scheme Doctrine

A

If a developer subdivides land, and some deeds contain restrictive covenants while others do not, the restrictive covenants will be binding on all parcels provided there was a common scheme of development and notice of the covenants.

Elements:
Scheme of development (including D’s lot) when sales began
D had notice of promise when they took

Important:
If the scheme arises after some lots are sold, no implied servitude can arise with respect to the lots already sold without express covenants

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55
Q

Notice

A

Actual (literal knowledge)
Inquiry (lay of the land, may reveal common scheme)
Record (public docs)

56
Q

Defense to ES

A

Court won’t enforce if surrounding neighborhood has changed to obviate the purpose for the restriction

57
Q

Adverse possession

A

Continuous
—Uninterrupted, as owner might use
Open and notorious
—Apparent to put owner on notice
Actual and exclusive
Hostile
—Permission defeats

58
Q

Tacking

A

AP may tack predecessor’s time so long as they have privity, any non-hostile relationship (defective deed, etc)

If ousted, no tacking

59
Q

Defense to Tacking

A

The statute of limitations will not run against a true owner who is afflicted by a disability at the inception of the adverse possession (meaning, when the cause of action first accrued).

Only the disability of the owner existing at the time the cause of action arose is considered.

60
Q

Conveyancing: 2-step process

A
  1. Contract (conveys equitable title)
  2. Closing (deed passes legal title)

Space between is known as the escrow period

61
Q

Land Sale Contracts Requirements

A

Statute of Frauds Applicable
Contract must be in writing
Signed by party against whom enforcement is sought

Must also:
Identify parties
Describe property
State consideration

62
Q

Inaccurate description of land remedy

A

Remedy: specific performance with a pro rata reduction in price

63
Q

Doctrine of Part Performance in Land Sale Contracts

A

Allows a buyer to enforce an oral real estate contract by specific performance if:
The oral contract is certain and clear, and
The acts of partial performance clearly prove the existence of a contract

This second requirement is usually satisfied if the buyer can prove two of the following three actions:
Buyer has taken possession of the property
Buyer has paid the purchase price or a significant portion of the purchase price
Buyer has made substantial improvements to the premises

64
Q

Equitable Title and Risk of Loss

A

Legal title: Deed

Equitable title: Contract (risk of loss)

Buyer bears risk unless contract says otherwise

Risk of loss:
Buyer’s risk of loss from moment contract signed
Unless contract says otherwise

65
Q

Marketable Title

A

Seller’s implied promise to provide title reasonably free from doubt/threat of litigation on closing

The common defects that render title unmarketable are:
Defects in record chain of title—most often, adverse possession
Encumbrances (mortgages, liens, easements, restrictive covenants)
Zoning violations

66
Q

Marketable Title: Defects in record chain of title

A

Need good record title.

Title acquired by AP is unmarketable without a quiet title

67
Q

Defects in record chain of title

A
68
Q

Marketable Title: Encumbrances

A

Must be protected against unless the buyer has waived them

69
Q

Marketable Title: Zoning Violations

A

Zoning restrictions do not affect marketability, but an existing violation of a zoning ordinance does render title unmarketable

70
Q

Land Sales: No False Statements of Material Fact

A

Seller liable for failure to disclose latent material defects
General disclaimers are no good
But if specific and particularized, likely upheld

71
Q

Land Sales: No Implied Warranty of Fitness or Habitability

A

Buyer beware (except for sale of new home by builder)

72
Q

The Land Sale Closing

A

Deed becomes operative
To pass title, must be LEAD: Lawfully executed and delivered

Requires:
Writing signed by grantor
Unambiguous description
Identification of parties
Words of intent
No consideration needed

73
Q

The Land Sale Closing: Oral Conditions

A

Oral conditions drop out

74
Q

Escrow

A

Grantor may deliver an executed deed to a third party, known as an escrow agent, with instructions that the deed be delivered to the grantee once certain conditions are met.
This typically is related to the purchase of property and the condition typically is the payment of the purchase price.
What happens once the conditions are met?
If the escrow agent is given written instructions, the grantor is bound by the delivery to the agent.
But, if the grantor gives the escrow agent oral instructions, the grantor may change the instructions and recall the deed while it’s still in the agent’s hands, unless there is a written contract of sale.

75
Q

Quitclaim

A

Quitclaim deed contains no covenants for title

76
Q

General Warranty Deed

A

Willingly assumes responsibility for predecessors
Warrants against all defects in titles (including by grantor’s predecessors)
Six covenants

77
Q

General Warranty Deed: Covenants

A

Present Covenants (breached at delivery)
Seisin: Grantor owns
Right to convey: Grantor can transfer
Against encumbrances: No servitudes or liens

Future covenants (breached if grantee disturbed in possession)
Quiet enjoyment: No 3rd party lawful claims
Warranty: grantor will defend
Further assurances: grantor will be perfect

78
Q

Special Warranty Deed

A

Warranty against all defects in title (only for grantor themselves)
Statutory has two promises:
Grantor has not conveyed title
Free from encumbrances made by grantor

79
Q

Recording System Types

A

Race: First to record wins

Notice: Last BFP to take wins; regardless of recording first

Race-notice: BFP and properly recorded first

80
Q

BFP

A

Purchaser (didn’t take by gift, will, inheritance)
Pay valuable consideration
Take without notice of prior conveyance

81
Q

Notice in Recording

A

Actual (literal knowledge)
Inquiry (what inspection would’ve revealed)
Record (on notice of deeds properly recorded in chain of title)

82
Q

Simple Recording System Explanation

A

In a race state, conveyance of an estate in land shall not be valid against any subsequent purchaser unless the conveyance is first recorded.
First to record, irregardless of BFP status

In notice state, last BFP to enter the fact pattern wins

Race-notice, BFP and records first

83
Q

Chain of Title

A

Sequence of recorded documents capable of giving record notice to later takers

84
Q

Shelter Rule

A

Anyone who takes from a BFP will prevail against any interest the BFP would have prevailed against

85
Q

Wild Deed

A

Recorded deed not connected to the chain of title and therefore incapable of giving constructive notice

Same as never recording, incapable of record notice

86
Q

Estoppel by Deed

A

Grantor purports to convey to grantee realty they don’t then own
Grantor later acquires title to the property
Title automatically vests in grantee
Grantor is estopped from denying validity of pre acquisition conveyance

BUT: watch out for BFP: early recording is outside of chain of title
—A deed recorded after the grantor parts with title through a subsequent deed is not —constructive notice in most states (but is in some “race-notice” jurisdictions)

REMEMBER: Once closing happens, contract ends and those promises aren’t necessary

87
Q

PROMISSORY NOTE AND MORTGAGE

A

The note is the mortgagor’s personal obligation.
This means that the mortgagee is not limited to the land when seeking a remedy for default. If the mortgagor quits paying, in addition to foreclosure, the mortgagee has the option to sue the mortgagor personally for payment of the note.

The mortgage is the agreement that says that if the mortgagor quits paying, the land can be sold to pay the mortgagee.

88
Q

Purchase-Money Mortgage

A

Lender’s security interest in real estate that their loan enables debtor to acquire, ie youre using the mortgage to buy a house youre also collateralizing

89
Q

Creation of a mortgage

A

Debt (note) + lien in land to secure debt (mortgage)
In writing (legal mortgage)

90
Q

Transfers by Mortgagor

A

Recording statues protect mortgagees
If recorded, mortgage sticks with the land

Generally, when a mortgagor transfers title to the property, the grantee automatically takes the property subject to the mortgage.

91
Q

Subject to the Mortgage

A

Transferee assumes no personal liability

But, the mortgage remains on the land as long as the mortgage instrument was properly recorded

92
Q

Assumes the Mortgage

A

Transferee also assumes personal liability

93
Q

Defaulting on Mortgage

A

Foreclosure through proper judicial action

If not enough proceeds cover debt: creditor can proceed against the debtor in a “deficiency action”

If surplus: junior liens paid off in priority, remaining goes to debtor
All satisfaction in full in order, remainder can go for deficiency judgment
Last amount to debtor

94
Q

Effect of foreclosure on interests

A

Junior interests terminated (paid in descending order from sale proceeds)

Necessary parties: all junior lienholders + debtor
—Failure to include necessary party results in preservation of the given party’s claim
—Their mortgage would remain on the land despite foreclosure and sale
Senior interests unaffected (buyer takes subject to them)
—Not personally liable but still on the land

Note: junior debt foreclosure will not affect senior mortgage, and buyer not personally liable on debtor

95
Q

Priority of Interests in debt

A

Creditors must record
First-in-time, first-in-right

Purchase-money mortgage: first priority in parcel financed if recorded properly

96
Q

Subordination Agreements

A

By private agreement, a senior creditor may agree to subordinate its priority to a junior creditor. Subordination agreements are permissible.

97
Q

Equitable Redemption

A

Debtor can redeem land prior to foreclosure sale by paying
Cut off by foreclosure sale

No clogging equity of redemption:
Debtor cannot waive right to redeem in mortgage itself

98
Q

Acceleration clause

A

Entitles lender to call in all debts

Equitable Redemption without: Pay off missed payments, plus accrued interest and costs

Equitable Redemption with: Debtor must pay entire balance owed, plus accrued interest and costs

99
Q

Zoning: Variance

A

Permission to depart from zoning restriction
Show undue hardship and no diminution to neighboring property values

100
Q

Zoning: Nonconforming Use

A

Previously allowed in use, cannot be eliminated all at once unless just compensation paid

101
Q

Cumulative Zoning

A

Land ranked and categorized to create hierarchy of uses (single-family home is highest use)

Land zoned for a particular use may use that land for that use and any higher use

102
Q

Non-Cumulative Zoning

A

Land may only be used for particular purpose for which the land is zoned

103
Q

Zoning: Special Use Permit

A

Must be obtained even though zoning proper for intended use (e.g. hospitals, drive-ins)

Usually to indicate certain safety standards met

104
Q

Condominiums and HOAs

A

Holds both fee simple and tenancy in common with other residents in the condominium association

105
Q

Home Owner’s Association

A

Each condo owner is a member
Oversee common elements
Board enforces covenants, conditions, restrictions
Special assessment = one-time fee if dues don’t cover an expense

106
Q

Rights Incident to Ownership of Land: Lateral Support

A

Right to have land supported in natural state (unadorned, pristine)

If landowner causes adjacent land to subside:
Land in natural state: strict liability
Land improved: liability if negligent

107
Q

Water Rights: Riparian Doctrine

A

Water belongs to those who own land bordering watercourse
Riparians share right of reasonable use
Can’t interfere with other reasonable use

108
Q

Water Rights: Prior Appropriation Doctrine

A

Water belongs to state
Right to divert/use can be acquired through actual use

109
Q

Water Rights: Surface Waters and Common Enemy Rule

A

Hasn’t reached natural water basin

Common enemy rule:
Owner can take any protective measures to get rid of surface water/combat its flow
Still, must not unreasonably harm or interfere with others use of their own parcels

110
Q

Remedies of Possessor for Trespass

A

The possessor of real property has the right to exclude others.

Their remedies for invasions include actions for:
a. Trespass (land invaded by tangible physical object);
b. Private nuisance (land invaded by intangibles such as odors or noise);
c. Continuing trespass (land repeatedly invaded by trespasser); and
d. Ejectment or unlawful detainer to remove a trespasser or tenant. This action can be joined with a demand for money damages

111
Q

Present Estates and Future Interests: Terms

A

Devisable: Capable of passing by will
Descendible: Capable of passing by intestacy (no will)
Alienable: Capable of transfer inter vivos (during life time)

112
Q

Fee Simple Absolute

A

“To A” or “to A and his heirs”
Potentially limitless duration
Deviseable, descendible, alienable

No heirs
No heirs, always “heirs apparent”

113
Q

Defeasible Fees

A

Fee simples with condition attached (defeasance = forfeiture)

114
Q

Fee Simple Determinable

A

Terminates automatically on happening of stated event
Created by clear durational language: “so long as,” “while,” “during,
“Until”
Devisable, descendible, alienable
Creates possibility of reverter

115
Q

Fee Simple Subject to Condition Subsequent

A

Use of conditional language + explicit right to re-enter
“But if… reserves the right to re enter”
Creates the right of entry and power of termination (grantor’s prerogative)

Court usually weighs in favor of FS/CS due to draconian nature of FSD

116
Q

Fee Simple Subject to Executory Interest

A

To A, but if X event occurs, then to B
Third party, not grantor, takes if condition betrayed
3P gets shifting executory interest
Forfeiture automatic

117
Q

Rules of Construction for Defeasible Fees

A

Words of mere, desire, hope, intention don’t create a defeasible fee
Absolute restraints on alienation are void
Void conditions are removed from grant
However, reasonable time limited restraints are fine
Can’t be discriminatory or encourage marriage/divorce, but support until marriage is fine

118
Q

Life Estate

A

Measured in lifetime terms (not in term of years)
“To A for life” (A = life tenant)
Note: if limited, then leasehold not grant of fs
Pur Autre Vie:
For the life of another
Grantor holds a reversion

119
Q

Reversion vs Remainder

A

Reminder:
Life estate future interest held by O: reversion
Someone else: remainder

120
Q

Life Tenant’s Rights and Duties

A

All ordinary uses and profits from land
Don’t commit waste

121
Q

Waste Types

A

Voluntary: overt conduct causing drop in value

Permissive: Failure to take reasonable measures to protect land (neglect)

Ameliorative: Unilateral change that enhances value

122
Q

Natural Resources and Life Estates

A

Exploitation of natural resources (for example, minerals) by a life tenant is generally limited to situations when:
(1) necessary for repair or maintenance of the land;
(2) the land is suitable only for such use; or
(3) it’s expressly or impliedly permitted by the grantor.

123
Q

Open Mines Doctrine

A

if mining was done on the land prior to the life estate, the life tenant can continue mining—but they’re limited to the mines already open.

124
Q

Life Tenant’s Obligations

A

Reasonable state of repair
Taxes
When no income or profits are coming in from the land, the life tenant’s tax liability for the parcel will be computed not on the basis of Blackacre’s fair market value but instead on the basis of its mere fair rental value (a considerably lesser sum).

Life tenant pays interest on mortgage
Principal paid by owner

Life tenant is not obligated to insure the premises for the benefit of remaindermen and is not responsible for damages caused by a third-party tortfeasor.

125
Q

Ameliorative waste

A

The life tenant can’t engage in acts that will enhance the property’s value, unless all future interest holders are known and consent.

Today a life tenant may alter or even demolish existing buildings if:
(1) The market value of the future interests is not diminished; and either
(2) The remaindermen do not object; or
(3) A substantial and permanent change in the neighborhood conditions (for example, change from residential to 90% industrial) has deprived the property in its current form of reasonable productivity or usefulness.

126
Q

Future Interests in Grantor

A

Possibility of reverter: Accompanies fee simple determinable

Right of entry/power of termination: Accompanies fee simple subject to condition subsequent

Reversion: Accompanies when grantor conveys estate of lesser duration (other than above)

127
Q

Future Interests in 3rd Parties: Remainders

A

Possession on natural expiration of preceding estate for 3P (e.g., life estate)
Exists mostly with LE’s and terms of years
Does not apply to defeasance
Ex. To A for life, then to B (A = life tenant, B = remainderman)

128
Q

Contingent Remainder

A

Taker as yet unascertainable or subject to condition precedent
“To A for life, then B’s heirs”

Condition precedent: prerequisite for eligibility, yet unmet prerequisites

Destructibility of contingent remainder:
Abolished usually
Shelly’s case = wrong mbe answer

129
Q

Vested Remainder

A

Condition met

130
Q

Indefeasibly Vested Remainder

A

An indefeasibly vested remainder is a vested remainder that is not subject to divestment or diminution.
The holder of this remainder is certain to acquire an estate in the future, with no strings or conditions attached.

131
Q

Vested Remainder Subject to Complete Defeasance

A

Subject to condition subsequent

Condition Precedent: Appears before language introducing remainderman

Subsequent: Appears after language that, alone and set off by commas, creates remainders

132
Q

Vested Remainder Subject to Open

A

Class of takers, at least one already qualified to take
Each possible taker presents a diminution in possession

Closed when:
Rule of convenience: When any member can demand possession

Womb rule: Child in womb will get to share

133
Q

Executory Interests

A

Cut short prior taker
Shifting: Follows defeasible fee, cuts short someone other than grantor
Springing: Cuts short grantor

134
Q

Rule Against Perpetuities

A

Certain future interests are void if there’s any possibility they might vest more than 21 years after a person alive at the time of the grant has died

4-step technique for RAP:
1. Determine the future interest
—Only applies to contingent remainders, EIs, and vested remainders subject to open
2. What has to happen for future interest holder to take?
3. Find measuring life
4. When will we know if future holder can take?

RAP strikes void interests from grant

135
Q

EI without Time Limit

A

=Violates RAP
An executory interest with no limit on time before vesting (“so long as used for”)

136
Q

Reform of the RAP

A

Wait and see: validity determined per facts as they come to be

USRAP: Provides alternative 90-year vesting period

Cy pres: Court can redraft “as near as possible” to grantor’s intent

137
Q

The Rule Against Restraints on Alienation

A

Disabling: absolute ban (void)

Forfeiture: attempted transfer forfeits interest (valid if reasonable/time limited)

Promissory: Attempted transfer breaches covenant (valid if reasonable/time limited)

Discriminatory: Based on race, religion, ethnicity (void)

Bar Prep (18 decks)

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