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Bar Exam > Property > Flashcards

Property Flashcards

1
Q

Defeasible Estate

A

An estate that may terminate upon some happening or event before its max duration has run

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2
Q

Fee Simple Determinable

A

Created by durational language (i.e. for so long, during, until, while). Terminates automatically on happening of a named future event, the estate returns to grantor.

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3
Q

Fee Simple Subject to Condition Subsequent

A

Created by conditional language (i.e. provided however, but if, on condition that, in the event). Power to terminate must be expressly reserved to the grantor. Default classification if ambiguous.

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4
Q

Fee Simple Subject to Executory Interest

A

Created by either conditional or durational language. Termination occurs on the happening of an even that terminates the state and the property passes to someone other than grantor.

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5
Q

Possibility of Reverter

A

Future interest in the grantor. It is freely transferable, devisable, and descendible under modern law.

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6
Q

Power of Termination (Right of Reentry)

A

A future interest in the grantor. It must be spelled out in the conveyance or it doesn’t exist. The property doesn’t automatically revert, the grantor must exercise the right of reentry and take affirmative steps to retake property. It is descendible and devisable under modern law, but isn’t transferable inter vivos.

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7
Q

Reversionary Interest

A

Future interest in grantor when the grantor transfers less than a fee interest to a 3rd party. Under modern law it is transferable, devisable, and descendible.

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8
Q

Contingent Remainder

A

Any remainder that isn’t vested.

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9
Q

Vested Remainder

A

A remainder that is:

  1. created in an ascertainable person AND
  2. not subject to any condition precedent, other than termination of the preceding estate
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10
Q

Vested Remainder Subject to Total Divestment

A

A remainder that is presently vested but may be terminated on the happening of a future event.

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11
Q

Vested Remainder Subject to Open

A

A remainder to a class with at least one ascertainable member who has satisfied any conditions precedent to vesting, but other members may join the class.

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12
Q

Class Opening

A 
Inter vivos: class opens at the time of conveyance
Testamentary: class opens at the death of testator
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13
Q

Class Closing

A

RAP can void a future interest. If any member of a class could potentially claim in a way that violates the RAP, the entire class gift fails.

Rule of Convenience: Class closes as soon as one member of the class becomes entitled to immediate possession of the property

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14
Q

Shifting Executory Interest

A

Interest passes from one grantee to another. Subject to RAP.

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15
Q

Springing Executory Interest

A

Interest transfers from a grantor to a grantee. Subject to RAP.

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16
Q

Voluntary Waste

A

Life tenants cannot intentionally or negligently damage property. If they do they are liable for the damages

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17
Q

Permissive Waste

A

A life tenant must take reasonable steps to avoid damage. Failure to do so constitutes waste, and the life tenant will be liable

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18
Q

Ameliorative Waste

A

A life tenant makes improvement to the land. Under common law, a tenant could be liable for costs of restoring the land to its previous condition. Modern law a tenant is allow to make waste if:

  1. market value of remainderman’s interest is not impaired AND
  2. permitted by the remainderman OR
  3. a substantial and permanent change in the neighborhood that justifies the improvement
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19
Q

Remainderman’s Standing

A

Standing to sue for past and future waste.
Vested remainderman can sue for damages or an injunction to stop the waste from occurring.
Contingent remainderman cannot sue for damages and can only sue for an injunction to stop the waste from occurring

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20
Q

Rule Against Perpetuities

A

Applies to:

  1. executory interests
  2. contingent remainder
  3. vested remainder subject to open
  4. purchase option AND
  5. right of first refusal

If it possible for someone to claim an interest more than 21 years after everyone currently alive is dead, then the interest is wiped out and interpreted according to the rest of the grant

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21
Q

Tenancy in Common

A

Each co-tenant owns a undivided interest in the whole of the property. Requires unity of possession. No right of survivorship.

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22
Q

Joint Tenancy

A

Requires unity in:

  1. time
  2. title
  3. possession
  4. interest

Severance can be done by inter vivos act or one of the parties. Right of survivorship.

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23
Q

Lien Theory

A

Mortgage is viewed as a lien on the property and will not sever joint tenancy.

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24
Q

Title Theory

A

Mortgage is viewed as a title to the property and will sever joint tenancy

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25
Q

Rights of Co-Tenants to Profits

A

If profit is produced by one co-tenant’s efforts, then the other co-tenants have no right to share in the profits unless they’ve been ousted from the property.

If profit is generated by 3rd party (i.e. rents), then all co-tenant are entitled to a proportionate share of the profits.

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26
Q

Co-Tenants and Expenses

A
  1. taxes/mortgage-each co-tenant must pay a proportionate share
  2. repairs-no direct duty of repair imposed on any co-tenant, but a tenant who makes repairs may be compensated for the amount by a set-off against any 3rd party rents received or from proceeds in a partition
  3. improvements-no duty imposed on any tenant to improve the property. If one tenant chooses to improve the property they cannot get contribution. If the property is sold, any amount attributable to the improvement goes to the tenant who made the improvement.
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27
Q

Term of Years

A

Lease has a definite beginning and end. Created by express agreement between LL and T for a term specified in the lease. If longer than a year, it must be in writing. Automatically ends at the specified date, no notice is required.

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28
Q

Periodic Tenancy

A

Lease has a set beginning and continues from period to period. The LL or the T must give appropriate notice of intent to terminate.

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29
Q

Notice

A
  1. in writing if statute specifies, otherwise oral
  2. equal to rental period, but max 6 months
  3. notice is good whenever given but doesn’t take effect until the start of the new rental period
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30
Q

Tenancy At Will

A

Created by an express agreement of the parties. It terminates:

  1. free as soon as either party decides
  2. if wither the LL or the T dies OR
  3. if either party attempts to transfer their interest
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31
Q

Tenancy at Sufferance

A

A holdover situation. A holdover T becomes either a period or tenant at sufferance. If the LL wants the T to remain on the land, he becomes a period tenant. If the LL wants the T to leave, he becomes a tenant at sufferance. If LL accepts rent, this is evidence that he wants T to stay.

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32
Q

How Much Rent Can LL Get

A
  1. Tenancy for years: all unpaid rent, LL has a duty to mitigate
  2. Periodic: rental obligation up until proper notice is given to terminate
  3. Tenancy at will: amount of rent stated in agreement that is already owed
  4. Tenancy at sufferance: reasonable rental value
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33
Q

Constructive Eviction

A

LL has allowed the condition of the premises to deteriorate to the point that the T is essentially being forced out. The use and enjoyment of property is substantially interfered with.

Total constructive eviction is a defense to payment of any rent. Partial constructive eviction is a defense to reduction of rent.

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34
Q

Warranty of Habitability

A

Tenant must:

  1. provide the LL with notice AND
  2. all the LL reasonable time to repair the problem
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35
Q

Fight Over Possession

A

The LL can retake the property if the T has committed a material breach of the lease. The majority of jurisdiction no longer allow the LL to use reasonable force to retake possession. The LL has to give the T notice to either cure or vacate. There will then be a judicial hearing to determine whether the T has committed a breach, and if so the T will be evicted.

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36
Q

Fixture

A

Can be removed unless removal would cause substantial damage to the property.

37
Q

Assignment

A

T transfers all the remainder of interest. Assignee can be liable to LL for rent, unless she reassigns. Tenant is liable unless there is a novation.

38
Q

Sublease

A

T transfers only a portion of the time left on the rental obligation. Sublessee not liable to LL.

39
Q

Covenants that Run with the Land (PINT)

A

Privity: horizontal (relationship between the original covenantor and covenantee) and vertical (relationship bettwen an original party and the successor in interest to the original party)
Intent: Statue of frauds applies so there needs to be a writing with the intent for the covenant to bind successors
Notice: Current owner of the servient estate must take with notice of the restriction
Touch and Concern the Land: Reduce enjoyment of servient estate and increase use and enjoyment of dominant estate.

40
Q

Equitable Servitude (TIN)

A

Touch and Concern the Land
Intent
Notice

41
Q

Implied Reciprocal Servitude

A
  1. restriction is part of common scheme or plan for development of the area AND
  2. current owner of the servient estate takes with notice of the restriction
42
Q

Easement Appurtenant

A

benefits a parcel of land (i.e. dominant estate)

43
Q

Easement in Gross

A

benefits a person or entity

44
Q

Easement Implied by Prior Use

A
  1. severance of title to land held in common ownership
  2. the use giving rise to the easement was in existence at the time of the severance
  3. the use was apparent and could be discovered upon a reasonable inspection AND
  4. at the time of severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract
45
Q

Easement by Necessity

A
  1. common ownership of the dominant and the servient estate, then severance AND
  2. strict necessity for the easement at the time of severance
46
Q

Easement by Prescription (Adverse Possession)

A

Someone actually, openly, notoriously, and exclusively uses land with hostile intent for the statutory period

47
Q

Scope of Easement

A

If it states a particular use, then it is only allowable for that use. But an easement can be used to the extent that is reasonably necessary to do so.

48
Q

Surcharging the Easement

A

Going beyond what is reasonable. Servient estate can sue for an injunction or damages.

49
Q

Destruction of the Servient Estate

A

Will terminate the easement unless the owner of the servient estate intentionally caused the destruction

50
Q

Termination by Easement Holder

A
  1. merger of title
  2. written release (statute of frauds)
  3. abandonment (proof of intent to abandon plus affirmative action)
  4. estoppel (owner of servient estate foreseeably and detrimentally relies on the holder’s action/abandonment)
  5. severance (owner of dominant estate tries to sever the easement from the dominant estate-only happens with easement appurtenant)
51
Q

Termination by Servient Estate

A
  1. Prescription
  2. The Servient Estate is Sold to a Bona Fide Purchaser
  3. End of Necessity
52
Q

Profits

A

The holder of the profit has the right to go on someone else’s land and take something off it. Can only be created expressly or by prescription. Termination is same as easements

53
Q

Licenses

A

License is a privilege to do something on someone else’s land. Not transferable and terminates on the death of licensor. It is freely revocable at any time for any reasonable, unless the licenses is

  1. coupled with an interest: the licensee purchases personal property that is located on the licensor’s property and is given permission to come onto the land to claim the property OR
  2. executed: the licensee expends money or labor in reliance on the licenses
54
Q

5th Amendment Takings

A

It denies an owner all reasonable, economically beneficial uses of the land. Balancing test:

  1. economic impact on regulation
  2. extent regulation has interfered with distinct investment-backed expectations and
  3. character of gov action
55
Q

Lateral Support

A

If the land would have subsided anyway due to its natural state the adjoining landowner is strictly liable.

If the weight of the improvement caused the land to subside, the adjoining landowner is liable only if there was negligence in depriving the neighboring property of lateral support.

56
Q

Subjacent Support

A

The right of support extends to land in its natural state and buildings existing on the date when the subjacent estate was severed from the surface. The underground landowner is liable for damages to subsequently erected buildings only if he is negligent.

57
Q

Riparian View

A

Anyone who is within the watershed had a right to make reasonable use of the water.

58
Q

Prior Appropriation/Use View

A

The right to use the water to the first person to take the water for beneficial purposes.
Common Enemy Rule: floodwater can be diverted by any method onto another’s land
Civil Law Rule: no interference with any surface water is allowed
Reasonable Use Rule: surface water can be diverted onto another’s land if using reasonable means to do so.

59
Q

Statute of Frauds

A

Requires the writing to be signed by the party to be charged and:

  1. description of the property
  2. description of the parties
  3. price
  4. any conditions of price or payment, if agreed on
60
Q

Doctrine of Part Performance

A

Land sale can be enforced without a written agreement if:

  1. payment of all or part of the purchase price is made
  2. possession is taken
  3. substantial improvements were made
61
Q

Promissory Estoppel

A

May be used to prove an oral contract for the sale of land. Based on a promise.

62
Q

Equitable Conversion

A

When a land sale contract is formed, at that point there is bifurcation of title. Equitable title passes to the buyer and legal title remains with the seller until deal closes.

Majority: Risk of loss is on buyer
Uniform Vendor and Purchaser Act: Risk of loss remains with the seller

63
Q

Marketable Title

A

The seller must deliver a title at closing that is reasonably free from defects in both fact and law. Defects may include:

  1. unpaid mortgage or lien
  2. covenant or easement that restricts use of the land
  3. title acquired by adverse possession until the adverse possessor quiets title OR
  4. existing condition on the land that violates a zoning ordinance
  5. a seller may use the proceeds of the sale to remove a cloud on title and make it make
64
Q

Quitclaim Deed

A

The buyer cannot sue because this is an as-is deed

65
Q

General Warranty Deed

A

The seller warrants there are no defects in the chain of title. All 6 covenants.

66
Q

Special Warranty Deed

A

Seller warrant there were no defects during his ownership.

67
Q

Present Covenants

A

Do not run with the land and can be breached only at the time of closing

  1. Seisin: the grantor promises he owns the property
  2. Right to convey: grantor promises he has the power to convey the property
  3. Covenant against encumbrances: grantor promises there are no encumbrances
68
Q

Future Covenants

A

Run with the land and breach can be at the time of closing or afterwards

  1. Quite enjoyment: grantor promises that the grantee will not be disturbed by a 3rd party asserting a valid claim to the land
  2. Warranty: grantor promises to defend the grantee against any 3rd party claim
  3. Further assurances: grantor promises to do everything reasonable necessary to perfect the grantee’s title
69
Q

Fitness and Suitability

A

Applies to commercial builder and developers of new homes. Duty to disclose material latent defects known to the seller but not readily observable and not known to the buyer

70
Q

Implied Warranty of Quality

A

Applies to the sale of new or remodeled homes by builders and developers, doesn’t apply to commercial structures. Defects must be discoverable within a reasonable time after construction or remodeling.

71
Q

Purchase Money Mortgage

A

A mortgage that covers all or part of the purchase price. A PMM that is recorded has priority over other types of mortgages.

72
Q

Vendor Purchase Money Mortgage

A

Buyer borrows money from a 3rd party to pay off the purchase price and gives a mortgage.

73
Q

Lien Theory

A

The mortgagee receives a lien on the property, the mortgagor retain the right to possess the property and the right to rents and profits from the mortgaged property.

74
Q

Title Theory

A

Mortgagor retains possession until default, the mortgagee has the right to rents and profits produced by the mortgaged property.

75
Q

Intermediate Theory

A

Lien theory deemed to apply until default, then upon default title theory is applied.

76
Q

Subject to the Mortgage

A

Buyer has no responsibility to pay on it. Default rule.

77
Q

Assumes the Mortgage

A

Buyer becomes personally liable for it along with the original borrower. Grantee primarily liable and grantor secondarily liable.

78
Q

Assumes the Mortgage Plus Novation

A

Buyer alone is personally liable for paying the mortgage.

79
Q

Prepayment of Mortgage

A

There is no right to prepay mortgage debt unless the terms of the mortgage expressly authorize payment. If prepayment is permitted, it is usually accompanied by prepayment fees, which are upheld.

80
Q

Equitable Right of Redemption

A

Exists any time up until there has been a foreclosure sale. Until that time, the debtor can redeem by paying off the debt or brining current, if allowed.

81
Q

Statutory Right of Redemption

A

Debtor has a limited time (6-12 months) following foreclosure to go to buyer and force them to sell the property at the foreclosure price.

82
Q

Transfer by Deed

A
  1. Donative intent
  2. Delivery of the deed
  3. Acceptance by the buyer
83
Q

Seller Dies Before Closing

A

Decedent’s personal representative must complete the transaction. Money goes to the party who inherits personal property, not real estate.

84
Q

Exoneration

A

Inherited property is taken subject to all outstanding lies and mortgages

85
Q

Race Statute

A

Person who records first prevails

86
Q

Notice Statute

A

Purchaser or value who takes without notice prevails

87
Q

Race Notice Statute

A

An unrecorded conveyance is invalid against a subsequent bona fide purchaser who takes without notice and records first

88
Q

Estoppel by Deed

A

Someone transfers title to property that he doesn’t have but then later acquired title to. If the grantor transfers title before the grantor has title and then attempts to transfer to another, the first grantee may go to court to estop the grantor from denying title to him.

89
Q

Shelter Rule

A

A subsequent take who doesn’t satisfy the applicable recording statute is protected by the recording statute if success in interest was protected.

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