Real Property Flashcards
1
Q
Adverse Possession
A
- Open & notorious
- Actual and exclusive possession
- Continuous
- Hostile
- For the statutory period
Easement by Prescription = same EXCEPT no requirement of exclusivity
*On essay, use if mentions limitations period for recovery of real property
2
Q
Estates in Land
A
- Fee Simple
-
Fee Simple Determinable (FSD)
-
Possibility of Reverter in Grantor
- ”To A so long as . . .”
-
Possibility of Reverter in Grantor
-
Fee Simple Subject to Condition Subsequent (FSSCS)
-
Right of Re-Entry in Grantor (must be exercised)
- ”To A . . .; but if property is used as / A does x . . .”**
-
Right of Re-Entry in Grantor (must be exercised)
-
Life Estate
- Followed by Remainder or Reversion
-
Executory Interest
-
Follows a defeasible fee, such as FSD or FSSCS
- ”To A so long as the property is used for resdidential purposes; then to B”
- “To A and his heirs; but if hte property ceases to be used as residential property, then to B.”
-
Follows a defeasible fee, such as FSD or FSSCS
-
Vested Remainder
- No condition required to vest
- “To John and his heirs”
-
Contingent Remainder
- Remainderman must fulfill a condition
- “To John, so long as he attains the age of 35.”
- Remainderman must fulfill a condition
3
Q
Merger / Class Gifts
A
- Merger
- Same person acquires present and future estates = fee simple
- Rule of Convenience
- “To all the children of X.”
- Class closes when a class member can call for distribution.
4
Q
Rule Agianst Perpetuties
A
-
RULE:
- Future interest must vest, if at all, within the lives in being + 21 years
- Applies only to:
- Contingent remainders
- Executory Interests
- Class Gifts
- Options and rights of first refusal
- And Powers of Appointment
- Validity of interest is determined at the time the interests are created.
- Will = date of T’s death
- Revocable trusts = date trust becomes irrevocable
- Irrevocabl trusts = date created
- Deeds = date the deed is dleivered with intent to pass title.
- Measuring Life (life in being) =
- Must be connected to the vesting of the gift
- Person who biologically produces the beneficiaries of the gift in question
5
Q
Concurrent Estates
A
- Joint Tenancy
- 4 Unities and Right of Survivorship
- JTs must take their interest:
- At the same TIME
- by the same TITLE (same instrument)
- IDENTICAL equal INTERST, and
- Identical right to POSSESS the hwole
- JTs must take their interest:
- Severance of JT = TIC in grantee
- Severance where multiple JT’s = TIC in grantee; remaining contenants still hold JT among themselves
- Severance by liens and mortages
- Majority = No severance on formation
- Minority = Severance on formation
- 4 Unities and Right of Survivorship
- Tenancy in Common
- 2 or more own with NO right of survivorship
6
Q
Rights of Co-Tenants
A
-
Posession and profits from Operations on Property:
- Each co-T has a right to possess all of the property, but a co-T not in possession cannot bring a possessory action, or claim rent from a possessing co-T unless there has been OUSTER
- Co-T in possesion has right to retain profits gianed by use of property, ano no need to share with other co-T’s or reimburse for rent, absent a written tagreement to the contrary or if use depletes property.
-
Rental Income/Expense
- __Co-T out of possession has the right to share in rents from 3rd parties and in profits from uses that deplete the property’s value
- Pro-rata apportionment = right of contribution for necessary repairs, taxes, payments on mortages, not for improvements
- Co-T in sole possession who pays taxes and mortages is only entiteld to reimbursement in the amount that exceeds the fair rental value of the property.
7
Q
Landlord / Tenant - Types
A
- Periodic
- Only terminated by written notice
- Term of Years
- Automatic Termination unless notice to renew
8
Q
Landlord / Tenant - Termination
A
- Notice required - lease will control
- Often 30 days in periodic leases
- Can be more in a term for years
9
Q
Assignments
A
- Absent an express restriction in the lease, T is free to transfer their leasehold interest in whole or in part.
- Assignment = a complete transfer of the entire remainig term of the lease.
- An assignee stands in the shoes of the original T in a direct relatinoship with the LL, A and LL are in “privity of estate“ and each is liable to the other on all the covenants in the lease that “run with the land”
- Original T and L remain in “privity of contract”
10
Q
Subleases
A
- T retains some part of the remaining term of the lease.
- A sublessee is not personally liable to L for rent, or for performance of any of the covenants in the main lease unless the sublessee expressly assumes covenants.
- Both the sublessee and the original T remain liable on the covenant to pay rent
11
Q
Landlord’s Implied in Law Covenants
A
- Duty to Deliver Posession
- Includes timely possession
- Quiet enjoyment and non-disturbance
- Applies to all leases
- Actual evitction
- Partial eviction
- Constructive Eviction
- Landlord breach of duty AND
- Breach susbtantially and materially deprived tenant of use and enjoyment of premises
- REMEDY = move out if done in timely manner; otherwise waived
- Warranty of Habitability
- Applies only to residential leases
- Property is reasonably suitable for human residence.
-
REMEDY
- Move out and terminate lease
- Make repairs and deduct expenses from rent
- Sue for damages
- Reduce rent in amount reduced by issue
12
Q
Tenants’s Implied in Law Covenants
A
- Pay Rent
- Repair any damage caused
- T must maintain premises and make ordinary repairs
- Not to commit waste
- Affirmative
- Permissive
- Ameliorative
13
Q
Express Lease Covenants that Run with the Land
A
- Only relevant to Assignments of Leases
- On Essay, will be specifically identified clause in lease obligating a party
- Two ReQUIREMENTS:
- Intent
- Touch and Concern
14
Q
Express Lease Covenants that Run with the Land – Dependence of Covenants
A
-
Traditional Rule
- Lease covenants other than rent are independent; breach of covenant does not allowe tenant to refuse to pay rent
-
Modern Rule
- Contract Theory = lease covenants are dependent;
- Tenant can temrinate lease if landlord’s breach is material, but cannot stay and refuse to pay rent.
15
Q
Waste
A
- Voluntary
- Deliverate Destructive Acts
-
REMEDY:
- Damages – diminution in value or cost of repairs
- Injunction
- Permissive
- Acts of OMmission or Neglect
-
REMEDY:
- Damages - diminution in value or cost of repairs
- Ameliorative
- Alter the property but result in increase value
-
REMEDY:
- Cost of restoring to prior condition.
