Flashcards in PRE Property Deck (40):
4. Defesable fees
1.Fee simple determinable (durational)
2. Fee simple subject to a condition 3. subsequent
4. Fee simple subject to executory interest
Fee simple determinable
Language used, future interest
O to A and her heirs
for so long as
(all words relate to durational time)
If duration is broken it goes to O or her heirs through a possibility of reverter. (automatic on duration being broken)
Fee simple subject to a condition subsequnet
O to a and her heirs
on condition that
If conditional language broken, O and O's heirs maintain a right of reentry back to the property (not automatic, have to file action of ejectment)
Fee simple subject to an executory interest
O to A and her heirs provided that (state condition) if it is then B
(can use fee simple determinable language or fee simple subject to condition subsequent to create.)
Conceivably O and O's heirs could never get property back, it will go to 3rd party B.
Subject to RAP
Restraint on alienation
Absolute restriction on the free transferability of property. A direct restraint on a fee is void as a matter of public policy.
"if you ever try to sell" -->void. Will delete bad part of conveyance.
Encumberances by life tenant
They will cease at the death of the life estate holder. Includes mortgages, easements etc.
Life estate per autre vie
life estate per the life of another
In a life estate who is responsible for property taxes?
whoever has present possessory interest of the property is responsible for property taxes.
How can you end life estate?
Future interest can show that life tenant committed waste
Open mines doctrine
Life tenant may engage in already existing activities on the property. But cannot engage in new activities
Rule for life estates for property
Cannot alter structures on property unless changed conditions have rendered a property uninhabitable you will allow a life tenant to tear down that structure and erect another structure in its place.
Class gifts. Class member pre-deceases the testator. what happens?
If you have a will making a class gift and a class member pre-deceases the testator that member of the class and all of her heirs are shut out.
When does a class close?
The moment any member of the class has a present possessory interest in the property the class closes. (when they can take)
Tenancy in common
Default. look for this if other ones fail.
Joint tenancy with right of survivorship
Must use precise language. Same in time, interest, and possession. ****
Tenancy by the entirely
Only applies to spouses. No unilateral severing of a tenancy by the entirety.
Only death and divorce can end a tenancy by the entirety.
What are the 4 ways a joint tenancy can be severed?
1. Death of the second to last joint tenant. (then there is only 1 person left)
2. Conveyance inter vivos unilaterally. (goes to tenancy in common)
3. Final partition decree. When joint tenants can't stand each other, ask court of equity to partition the property. Filing law suit is not enough, you need the order.
4. In a lien theory if a joint tenant mortgages their interest in the property it will not sever the joint tenancy so long as mortgage payments are made. (majority)
In a tittle theory jurrisdiction if a joint tenant mortgages their interest in their property, it severs the joint tenancy (minory rule).
If you convey together, the remainder stays intact as a joint tenancy.
When are Landlord liable for latent defects?
Landlords are not liable for latent defect unless they know of them or should have known of them.
Exception for short term (less than a year) lease of furnished premises landlords are liable for latent defects.
When a tenant stays beyond expiration of a lease.
1. Determine if it is a commercial tenant or a residential tenant. If residential tenant they are locked into a periodic month to month tenancy. Commercial tenant is locked into a periodic tenancy reflective of the previous lease (up to one year).
2. Determine what the rent amount will be. If the tenant prior to the expiration of the written lease was notified there would be a rent increase, they have to pay the new amount. If they were not notified, they pay the old amount.
What do you need to evict a tenant?
Tenants require notice to evict.
When is a license revocable?
Even if you pay value for licenses are revocable.
Interest in land, usually in writing to comply with statute of frauds. The easement allows the easement holder to enter another's land for coming and going form their property. You should record it.
When does a merger extinguish an easement?
For merger to extinguish an easement both parcels must be owned by the same party in the same manner
Doctrine of abandonment of an easement
Mere non-use of the easement is never enough to constitute abandonment. You need an affirmative act to show intent to abandon.
Easement by prescription
Easement by adverse possession. Only difference don't need exclusivity.
continuously, openly, notoriously, hostilely.
Starts when you start adversely using it.
Covenant running with the land: 5 things to look for.
1. Grantor intent
2. Grantee acceptance (common way by recording deed)
3. Look for a writing
4. Does the covenant touch and concern for how the land is used?
5. Privity, is there a relationship between the parties?
Common development scheme
Arise when you have a huge parcel of land being subdivided into smaller parcels usually with a covenant. In order to void a restrictive covenant contained within a common development scheme there must be changed conditions which have made the covenant to cause the property to be unusable for all the parcels.
How do you have a valid conveyance?
In order to have a valid conveyance the deed must adequately describe the land being conveyed. Have to enclose the land.
An address will save a deed and a technicality.
Chattel that has become attached the to real property.
Residential rule for removal of fixtures
If residence, a tenant cannot remove the fixture if there would be damage if the fixture is removed, the more damage, the less likely you can remove it.
Commercial rule for removal of fixtures
If a commercial piece of property trade fixtures doctrine, a commercial tenant prior to an expiration of a lease is entitled to remove all trade fixtures form the property.
If the statute does not mention "first" then you are in a notice jurisdiction and the winner is always the last bona fide purchaser for value.
Race notice jurisdiction
Allows a purchaser to assume the status of a bona fide purchaser.
Foreclosure with multiple mortgages and encumbrances.
Mortgagee is always the lender, the mortgagor is always the borrower. Make a line with the encumbrances in order, circle the forecloser, make sure they give notice of foreclosure to everyone.
The foreclosing party gets paid first then to all parties to the right of the foreclosing part on the horizontal timeline. The ones to the left stay on the property and whoever purchases is responsible for those payments.
If it it isn't enough to cover the mortgagor, then you go after the person, deficiency judgment.
When you buy a mortgaged piece of property subject to the mortgage
The buyer is not personally liable for the mortgage debt the person who originally took the mortgage is. But the bank can still foreclose.
If the third party assumes the mortgage
They are personally liable for the mortgage debt, origianl borrower is secondarily liable.
Can you sell property you got though adverse possession?
No you must first get judgment for quiet tittle. They don't have good and marketable tittle to convey yet.