Quick RP Flashcards
What is a Fee Simple Determinable and how is it created?
“To A so long as”….or until…or while” - potentially infinite, Possibility of Revertor held by grantor
What is a Fee Simple Subject to Condition Subsequent and how is it created?
To A, but if X occurs, grantor reserves right to reenter”…Grantor has right of re-entry/power of termination
What is Fee Simple Subject to Executor Limitation and how is it created?
“To A, but if x occurs, than to B”…Third party (B) holds executory interest
Executory Interest, Springing v. Shifting?
Springing EI, cuts short grantors possession. Shifting EI, cuts short someone other than the grantors possession.
What are the two important rules of construction of deafeasble fees?
1) Words of mere desire, hope or intention are insufficient to create a defesasible fee (for the purpose, wiht the hope, with the expectations etc)
2) Absolute restraints on alieanation are void ( ie “To A so long as A never attempts to sell”)
When is a life tenant permitted to commit waste?
PURGE:
PU- Prior Use - prior to the grant land was used for epxloitation
Repairs - LT may consume natural resources for repairs and maintenance
Grant - May exploit if granted that right
Exploitation - land is suitable ONLY for exploitation - like a quarry.
What are the 4 types of remainders and what do they follow?
1) Indefeasibly Vested Remainder (IVE) - No strings attached. “To A for life remainder to B” A and B are alive
2) Vested Remainder Subject to Complete Defeasence - Follows condition subsequent - “To A for life, remainder B, if however, B dies under the age of 25 to C” A is alive B is 20.
3) Vested Remainder Subject to Open - If class is still open “to A for life, then to Bs children” A is alive, B has two children. Class is open until B dies.
4) Contingent Remainder - Follows condition precedent -
What are the 2 bright line rules of Common Law RAP and what is the big RAP exception?
1) a gift to an open class that is conditioned on the members surviving to an age beyond 21 violated common law RAP (however under Cy Pres doctrine, court may amend to language to comply with RAP)
2) Many shifting EIs violate RAP. An EI with no limit on the time within which it must vest violates the RAP.
3) Charity to Charity exception
How do you create a JT?
T-TIP and ROS JT's must take their interests T- By same TIME T- BY same TITLE I- With Identical Interests P- Rights to Possess the whole Grantor must clearly express right of survivorship!
How can you terminate a periodic tenancy?
Must give Notice - at least equal to the period iteslef, unless otherwise agreed. one execption if tenancy is year to year, 6 months notice is OK. - Periodic tenancy must end at conclusion of natural lease period. i.e. If notice given May 15, T is bound until June 30.
What is the important point about fixtures?
T must not remove a fixture, no matter that T insalled it. Fixtures pass with ownership of the land.
What is the implied covenant of quiet enjoyment?
T has the right to quiet use and enjoyment without interference from L, applies to both residential and commercial leases.
How do you get a constructive eviction?
SING - Substantial Interference, Notice (must give L notice and he must not fix it), Goodbye (must vacate the property)
Implied Warranty of Habitability
Applies only to residential - premises must be fit for basic human dwelling. When breached, what are Ts options
MR3
Move out and end lease
Repair and deduct
Reduce or withold rent until court determines fair value (hold excluded rent in escrow to show good faith)
Remain in possession, pay rent and affirmatively seek money damages)
When would a Landowner be liable under tort theory?
CLAPS
- Common Area - must maintain (hallways stairs)
- Latent Defects Rule - Must WARN T of hidden defects that L knows or shold know about (duty to warn only not repair)
- Assumption of Repairs - When L voluntarily makes repair must complete them with reasonable repair.
- Public Use Rule - L who leases public space an who should know, because of nature of defect and length and T will not repair, is liable for any defect on the premises.
- Short term lease of furnished dwelling - L is liable for any defects on site
What are the Affirmative Easements?
P-I-N-G
Prescription - use obtained through elements of AP
Implication - implied from prior use
Necessity - division of tract deprives one lot of means out
Grant - wirting signed by grantor
PARTIES BOUND
Easement Appurtnant is transferred automatically with dominant tenement
Easement in Gross for commercial purposes is assignable
What are the Negative Easements?
L-A-S-S Lights Air Support Steamwater (and sometimes scenic view)
Same parties bound requirement as Affirmative easements
What are Real Covenants?
Writing signed by grantor - REMEDY DAMAGES
BURDEN of promise runs with successor if WITHN - Writing, Intent, Touch & Concern, Horizontal (hardest to show)+ vertical privity, Notice (can be constructive)
BENEFIT of promise runs with successor when WITV
Writing, Intent, Touch & Concern, Vertical Privity
What are Equitable Servitudes?
Writing signed by Grantor - REMEDY INJUCTION (look for enjoin)
Successors bound if WITNes
Writing, Intent, Touch and concern, Notice (no privity required)
How are easements terminated?
END CRAMP
Estoppel - servient holder changes position on reliance of easement holders assurances
Necessity - Ends when needs ends
Destruction of servient land, ends easements
Condemnation of servient land by eminent domain, ends easement
Release - written release, given by easement holder
Abandonment - must be demonstrated by physical action of intent to never use easement again. (railroad pulling up tracks)
Merger doctrine - easement extinguished when title to the easement and servient land becomes vested in same person.
Perscription - AP (COAH)
Elements of Adverse Possession?
Possession for a statutorily prescribed period of time can, if certain elements are met, ripen into title
COAH
CONTINUOUS uniterupted possiession for statutory period (15 years in Virginia)
Open and Notorious
ACTUAL and exclusive possession
HOSTILE - Doesn’t have owners permission to be there. UNder CLAIM OF RIGHT (or previously had owners permission, but at some point communicated hostility)
Every conveyance of real property has a two step process:
1) The Land Contract (passing of equitable title), which endures until…
2) The Closing (passing of legal title), where the deed becomes our operative document.
What are the two implied promises in every land contract?
1) seller promises to provide marketable title (at closing, free of resonable doubt, lawsuits, threat of litgation)
2) seller promises not to make any false statements of material fact (most states hold seller liable for failure to disclose latent material defects)
What three circumstances will render title unmarketable?
1 Advers Posession (even in part)
2 Free of Encumbrances (servitudes and mortgages) - unless waived
3 Zoning violation
How does a Land Contract pass SoF?
Must be in writing, signed by the parties to be bound, must reasonably describe the land, must date some consideration.
How does the deed pass legal title from seller to buyer?
Must LEAD
1) Lawful Execution of deed (in writing signed, unambiguous description)
And
2) Delivery - can be mailed or through courirer - BUT, does not require physical delivery of document, look to present intent to be bound - rejection of deed defeats delivery.
What’s a quitclaim deed?
Deed that contains no covenants. Grantor is not even promising that has title to convey. (however, still prmising to provide marketable title at closing) - any problems post closing and grantor is off the hook
What is a general warranty deed?
Warrants against all defects in title, including due to predessosrs defects. Contains 6 covenants at the moment of delivery
What are the general warranty covenants?
Present Covenants
1) Seisin - Grantor owns the estate
2) Right to Convey
3) Against Encumbrances - no servitudes, no mortgages
Future Covenants
4) Quiet Enjoyment - grantee won’t be disturbed be 3Ps claim of possession
5) Warranty - grantor will defend against lawfult title claims brought by others
6) Future Assurances - grantor will do whats needed in the future to prove title
What is the Shelter Rule?
Somebody who takes title from a BFP will prevail against any entity that the transferor/BFP would have prevailed against. Even if would have failed as a BFP
What is a notice statute?
a conveyance of an interest in land shall not be valid against any subsequent purchaser for value without notice thereof, unless the conveyance is recorded.
Race-Notice Statute?
Must be a BFP+ record first
Equitable Mortgage v. Purchase Money MOrtgage
PMM= money borrowed to purchase a property
EM=Money borrwed against an already owned property.
How can creditor/mortgagee transfer his interest?
1) endorse and deliver the note
OR
2) Execute a seperate document of assignment
How does one become a Holder in Due Course?
1) note must be negotiable
2) original note must be endorsed
3) original note must be delivered (no photcopies)
4) transferee must take in good faith without notice on illegality
5) and transferree must pay value
What defenses does a holder in due course have?
He takes free of ANY personal defenses (lack of consideration, fraud in inducement, unconscionability, waiver, estoppel) STILL SUBJECT TO REAL DEFENSES MadFifi4 Material Alteration Duress Fraud In the Factum Incapacity Illegality Infancy Insolvency
Who is personally liable on debt if the debtor sells property to B?
If B has “assumed the mortgage” = B is primarily liable, O remains secondarily liable
If B takes “subject to the mortgage”, b assumes no responsibility, o is personally liable.
What are the two major sustems for determining allocation of water (streams, reivers and lakes?
1) Riparian Doctrine = water belongs to those who own the land bordering the watercourse. Riparians are liable if their use unconsionably interferes with others use
2) Prior Appropriation doctrine= water belongs to the state, but the right to divert it and us it can be acquired by an individual regardless of whether or not you are a riparian owner.
VA Distinctions: What are the present possessory estate differences?
SoL on possibility of reverter and right of reentry: after breach of condition, 10 year SoL
VA allows double damages for acts of waste committed wantonly by Life tenants.
VA has abolished the fee tail.
VA has abolished Dower and Curtesy for life estates by marital right.
VA Distinctions: What are the future interest differences?
Destructibility of Contingent Remainder rule has been abolished, contingency remains after end of estate. Rule in Shelley’s case abolished. Doctrine of worthier title abolished.
All future interests can be transferred inter vivos or by will, even rights of entry.
VA Distinctions: RAP?
USRAP = RAP + Must vest within 90 years after its creation.
VA Distinctions: Concurrent Estates
Joint Tenancy Creations= must expressly specify the right of survivorship
Tenancy by the Entirety = Right of surviorship does not need to be expicitly stated.
VA Distinctions: Land lord Tenant Nature of LEaseholds differences? VRLTA
In VA, a tenant who is a victuim of family abuse, sexual abuse, or sexual assault may terminate an residential lease with 30 days notice.
LL/Tenant may terminate a periodic teanancy by serving written notice on the other in accordance w/the following time frams:
Year to Year/3 months
Month to Month/30 days
week to week/7 days
VA Distinctions:
Under VRLTA LL may not require a security deposit in excess of _________. LL has ____days after term of possession to return security deposit (less deductions) + any accrued interest.
An unlawful entry or detainer action must be brought withing _________from the unlawful entry.
2 months rent; 45; 3 years
VA Distinctions: LL/Tenant duties and tenant remedies differences? VRLTA
LL must disclose any visible evidence of mold. If the mold condition materially affects the health or safety of any tenant or authorized occupant, the LL may require tenant to temporarily vacate for up to 30 days (at no cost to tenant) while the problem is fixed)
VA Distinctions: Rights in land differences?
time period for creation of prescriptive easement is __years. ___years for actions involving water and sewer systems
An easement will be terminated in VA (in addition to the usual ways) once ____________________________
VA calls Oral easements ______________ the rest of the country calls them “irrevocable licenses”
In VA a covenant not to compete, does not _____________ (unlike a majority of jdxs)
20; 10
the original purpose no longer exists
equitable easments
run with the land
VA Distinctions: Adverse Possession
Time Period:
Mineral Rights: if mineral rights have been severed from the surface rights, ____________
Hostile requirement:
Disability: if one co-tenant is under ___ it will not prevent the statute from running against the other co-tenant. No disability is allowed to extend the stat period beyond _____________
Time Period: 15 years (25 years for church property)
Mineral Rights: ….AP will not give title to the mineral rights underground
Hostile requirement: family members cannot meet the hostility requirement, as it is always assumed they have permission
Disability: 18; 25 years after AP begins
VA Distinctions: Conveying Marketable Title
If vendor does not own the amount of acreage specified in contract, buyers right to claim breach of contract depends on whether sales was:
IN Gross, no breach, acreage named in contract is ignored
or
Per Acre, then covenant is breached if seller cannot deliver on contract.
VA Distinctions: Sellers Liability for Defects on Property -
A seller of 1-4 dwelling units must disclose the physical condition of the property under contract, or must say that the property is being conveyed “as is”
