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Bar Prep > Property > Flashcards

Property Flashcards

1
Q

GENERAL WARRANTY DEED & COVENANTS FOR TITLE

A

PRESENT (BREACHED AT TIME OF DELIVERY):

  1. SEISIN - GRANTOR IS RIGHTFUL OWNER
  2. RIGHT TO CONVEY - GRANTOR HAS RIGHT TO CONVEY TITLE
  3. AGAINST ENCUMBRANCES - LAND IS FREE FROM ENCUMBRANCES

FUTURE COVENANTS (BREACHED AFTER DELIVERY):

  1. QUIET ENJOYMENT - NO 3RD PARTY CLAIM TO TITLE
  2. WARRANTY - GRANTOR WILL DEFEND AGAINST LAWFUL CLAIMS BY 3RD PARTIES
  3. FURTHER ASSURANCES - GRANTOR WILL TAKE REASONABLE STEPS TO PERFECT TITLE
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2
Q

REAL COVENANT

A

REMEDY: MONEY DAMAGES

BURDEN RUNS WITH LAND: W-I-T-H-N

BENEFIT RUNS WITH LAND: W-I-T-V

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3
Q

EQUITABLE SERVITUDE

A

REMEDY: INJUNCTION

RUNS WITH THE LAND: W-I-T-N-E-S

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4
Q

RECIPROCAL NEGATIVE SERVITUDE

A

LAND DIVIDED IUNDER A COMMON DEVELOPMENT SCHEME WITH ONLY SOME PARCELS HAVING NEGATIVE SERVITUDE. IMPLIED BINDING OF OTHER PARCELS IF:

  1. COMMON SCHEME (I.E. RECORDED PLAT, PATTERN OF RESTRICTION, OR ORAL REPRESENTATION TO EARLY BUYERS); AND
  2. NOTICE (ACTUAL, INQUIRY, RECORD)
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5
Q

DEFEASIBLE FEES

A

PRESENT ESTATES:

  1. FEE SIMPLE DETERMINABLE
    DURATIONAL LANGUAGE / REVERSION TO GRANTOR
  2. FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT
    CONDITIONAL LANGUAGE / RIGHT OF RE-ENTRY BY GRANTOR
  3. FEE SIMPLE SUBJECT TO EXECUTORY INTEREST
    INTEREST CUTTING LANGUAGE / AUTOMATIC FORFEITURE TO 3RD PARTY

** ABSOLUTE RESTRAINTS ON ALIENATION ARE VOID **

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6
Q

ALIENABLE, DIVISIBLE, DESCENDIBLE

A

ALIENABLE = TRANSFERABLE

DIVISIBLE = LEFT BY WILL

DESCENDIBLE = INTESTATE DISTRIBUTION

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7
Q

VESTED REMAINDER

A

A REMAINDER THAT AUTOMATICALLY BECOMES POSSESSORY UPON THE NATURAL TERMINATION OF THE PRECEDING ESTATE.

  1. INDEFEASIBLY VESTED (NO STRINGS)
  2. VESTED SUBJECT TO TOTAL DIVESTMENT (CONDITION SUBSEQUENT AFTER POSSESSION).
  3. VESTED REMAINDER SUBJECT TO OPEN (CLASS GIFT WITH AT LEAST 1 PERSON CAPABLE OF TAKING). CLASS MAY CLOSE WHEN ANY MEMBER CAN CALL FOR DISTRIBUTION OF SHARE. REMEMBER BABIES IN WOMB ARE PEOPLE.
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8
Q

FUTURE INTERESTS RETAINED BY GRANTOR

A
  1. REVERSION: LESS THAN FULL DURATIONAL ESTATE GIVEN (L.E., TERM OF YEARS)
  2. POSSIBILITY OF REVERTER (FOLLOWS FEE SIMPLE DETERMINABLE)
  3. RIGHT OF RE-ENTERY (FOLLOWS FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT)
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9
Q

RULE AGAINST PERPETUITITES

A

NO PROPERTY INTEREST IS VALID UNLESS IT MUST VEST, IF AT ALL, NO LATER THAN 21 YEARS AFTER THE DEATH OF A LIFE IN BEING AT THE TIME THE INTEREST WAS CREATED.

DOES NOT APPLY TO CHARITY TO CHARITY CONVEYANCES.

MODERN REFORM:
WAIT & SEE; 90 YEAR VEST PERIOD; CY PRES (AS NEAR TO GRANTOR’S INTENT AS POSSIBLE).

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10
Q

EXECUTORY INTEREST

A

A FUTURE INTEREST IN A 3RD PARTY THAT TAKES EFFECT BY CUTTING SOME INTEREST SHORT. IF THERE IS NO TIME LIMIT ON THE EXECUTORY INTEREST, IT VIOLATES THE RULE AGAINST PERPETUITITES.

  1. SHIFTING: SOMEONE OTHER THAN GRANTOR GETS INTEREST CUT SHORT.
  2. SPRINGING: THE GRANTOR OR HEIRS GET INTEREST CUT SHORT.
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11
Q

CONTINGENT REMAINDER

A

A REMAINDER THAT BECOMES POSSESSORY UPON TERMINATION OF PRECEDING LIFE ESTATE THAT IS CONTINGENT IF EITHER:

  1. INTEREST IS SUBJECT TO CONDITION PRECEDENT; AND / OR
  2. INTEREST VESTS IN FAVOR OF UNBORN OR UN-ASCERTAINED PERSON
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12
Q

DOCTRINE OF WASTE

A

AFFIRMATIVE (VOLUNTARY) : CANNOT EXPLOIT NATURAL RESOURCES UNLESS (1) NECESSARY; (2) CONSENSUAL; (3) PRIOR ACTIVITY (OPEN MINES DOCTRINE).

PERMISSIVE (NEGLECT): INCLUDES PAYING PROPERTY TAXES OR MORTGAGE INTEREST. DOES NOT HAVE TO PAY INSURANCE OR MORTGAGE PRINCIPLE.

AMELIORATIVE (BENEFITS): PROHIBITED UNDER COMMON LAW BUT NOW ALLOWED IF (1) THERE IS NO DIMINISHED MARKET VALUE; (2) THE REMAINDER-MEN DON’T OBJECT; OR (3) IF A CHANGE IN THE NEIGHBORHOOD HAS DEPRIVED IT OF ITS USE.

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13
Q

TITLE THEORY VS. LIEN THEORY

A

TITLE THEORY GIVE MORTGAGEE THE TITLE IMMEDIATELY (MAY SEVER PROPERTY INTERESTS UNILATERALLY & CAN BE DONE SECRETLY)

LIEN THEORY ALLOWS MORTGAGOR TO HOLD TITLE (MAJORITY - ASSUME THIS APPLIES UNLESS TOLD OTHERWISE)

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14
Q

FOUR UNITIES REQUIRED FOR JOINT TENANCIES WITH RIGHTS OR SURVIVORSHIP OR TENANCY BY THE ENTIRETY

A
  1. TIME
  2. TITLE
  3. INTEREST
  4. POSSESSION
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15
Q

TYPES OF LEASEHOLD ESTATES

A
  1. TENANCY FOR YEARS (FIXED PERIOD OF TIME)
  2. PERIODIC TENANCY (REPEATS UNTIL TERMINATED)
  3. TENANCY AT WILL (EITHER PARTY CAN TERMINATE WITHOUT NOTICE)
  4. TENANCY AT SUFFERANCE (HOLDOVER TENANT) - LANDLORD CAN EVICT OR SUE FOR RENT.

If Tenant Abandons: Landlord can end lease; do nothing and hold tenant liable for rent; or re-lease and hold tenant liable for deficiency in rent.

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16
Q

LANDLORD DUTIES TO TENANT

A
  1. DELIVER ACTUAL POSSESSION
  2. IMPLIED COVENANT OF QUIET ENJOYMENT - RIGHT TO QUIET USE AND ENJOYMENT.
    - - - ACTUAL EVICTION: WRONGFULLY EVICTS/EXCLUDES FROM PROPERTY
    - - - CONSTRUCTIVE EVICTION REQUIRES (SING): SUBSTANTIAL INTERFERENCE; NOTICE; AND GET OUT (VACATE IF FAILURE TO REPAIR).
  3. IMPLIED WARRANTY OF HABITABILITY: REMEDIES INCUDE (MOVING; REPAIR AN DEDUCT FROM RENT; REDUCE/WITHHOLD RENT IN ESCROW; REMAIN & SEEK MONEY DAMAGES)
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17
Q

LANDLORD TORT LIABILITY

A
  1. COMMON AREAS MUST BE MAINTAINED
  2. LATENT DEFECTS MUST BE DISCLOSED IF HE KNEW OF THEM
  3. ASSUMPTION OF REPAIRS IF HE CHOSE TO DO THEM HIMSELF
  4. PUBLIC USE IF TENANT IS UNLIKELY TO REPAIR
  5. SEASONAL/SHORT-TERM LEASES OF FURNISHED DWELLINGS PRESENT LIABILITY IF ANY DEFECTS CAUSE HARM TO TENANT
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18
Q

TERMINATION OF EASEMENTS

A
  1. ESTOPPEL (INTENT TO ABANDON)
  2. NECESSITY ENDS
  3. DESTRUCTION OF SERVIENT TENEMENT
  4. RELEASE
  5. ABANDONMENT (PHYSICAL)
  6. MERGER
  7. PRESCRIPTION
  8. EXPIRATION
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19
Q

PROFIT

A

A NON-POSSESSORY PROPERTY INTEREST THAT ENTITLES HOLDER TO ENTER SERVIENT ESTATE TO REMOVE RESOURCES. GOVERNED BY RULES OF EASEMENTS.

EXTINGUISHED BY MISUSE OR OVERUSE OF RESOURCES ON SERVIENT ESTATE.

20
Q

DEFENSES TO ENFORCING AN EQUITABLE SERVITUDE

A
  1. PERVASIVE CHANGES TO NEIGHBORHOOD (ALL!!)
  2. ESTOPPEL (INTENT TO ABANDON)
  3. ACQUIESCENCE
  4. UNCLEAN HANDS (ENFORCER IS ALSO VIOLATING)
  5. LATCHES (BENEFIT PARTY FAILS TO BRING SUIT)
21
Q

ADVERSE POSSESSION

A

A TRESPASSER MAY ACQUIRE TITLE TO ANOTHER’S PROPERTY WITHOUT COMPENSATION BY POSSESSING THE PROPERTY FOR A SPECIFIED PERIOD IN A MANNER CONFLICTING WITH THE TRUE OWNER’S RIGHTS.

REQUIRES:
CONTINUOUS FOR STATUTORY PERIOD
OPEN AND NOTORIOUS
ACTUAL AND EXCLUSIVE
HOSTILE

** TRUE OWNER CAN TOLL STATUTE OF LIMITATIONS ONLY IF DISABLED WHEN ADVERSE POSSESSION BEGAN (INSANITY / INFANCY / IMPRISONMENT).

22
Q

LAND SALE CONTRACTS REQUIRE:

A

SUBJECT TO STATUTE OF FRAUDS WRITING:

  1. IDENTIFY PARTIES
  2. DESCRIBE LAND;
  3. SIGNED BY PARTY TO BE CHARGED
  4. PRICE / ESSENTIAL TERMS

EXCEPTION: PARTIAL PERFORMANCE (NEED 2 OF 3 TO BE OUTSIDE SOF):

  1. PAYS ALL OR SUBSTANTIAL PART OF PURCHASE PRICE;
  2. TAKES POSSESSION; AND/OR
  3. MAKES SUBSTANTIAL IMPROVEMENTS.
23
Q

IMPLIED PROMISES IN LAN SALE CONTRACTS

A
  1. MARKETABLE TITLE: SELLER’S IMPLIED PROMISE THAT TITLE WILL BE REASONABLY FREE FROM RISK OF LITIGATION UPON CLOSING.
  2. PROMISE TO DISCLOSE AND MAKE NO MATERIAL FALSE STATEMENTS. NEW PROPERTIES HAVE IMPLIED WARRANTY OF HABITABILITY AND FITNESS/QUALITY OF CONSTRUCTION (NOT AVAILABLE FOR OLDER PROPERTIES).
24
Q

VALID DEEDS

A
  1. LAWFULLY EXECUTED (SIGNED BY GRANTOR; IDENTIFY PARTIES; IDENTIFY LAND);
  2. DELIVERED (INTENT TO BE BOUND)

TYPES OF DEED:

  1. GENERAL WARRANTY - 6 COVENANTS FOR TITLE
  2. SPECIAL WARRANTY - ASSURES THAT GRANTOR HAS NOT CONVEYED LAND TO ANOTHER; AND THE LAND IF FREE FROM ENCUMBRANCES MADE BY GRANTOR
  3. QUITCLAIM DEED - NO PROMISES INVOLVING TITLE
25
Q

TYPES OF NOTICE

A

ACTUAL NOTICE - KNOWLEDGE FROM ANY SOURCE

INQUIRY NOTICE - WHAT A REASONABLE INSPECTION OF LAND WOULD REVEAL

RECORD NOTICE - KNOWLEDGE FROM ROUTINE TITLE SEARCH

26
Q

SHELTER RULE

A

ONE WHO TAKES FROM A BFP WILL PREVAIL AGAINST ANY INTEREST THE TRANSFEROR-BFP WOULD HAVE PREVAILED AGAINST, EVEN IF THE TRANSFEREE HAD ACTUAL NOTICE OF A PRIOR CONVEYANCE.

  • PROTECTION OF DONEES / HEIRS / DEVISEES OF BFPS WHO CANNOT QUALIFY AS BFPS AND WOULD NOT RECEIVE PROTECTION UNDER MODERN RECORDING STATUTES.
27
Q

ASSUMING MORTGAGE DEBT VS. SUBJECT TO MORTGAGE DEBT

A

TAKING PROPERTY SUBJECT TO DEBT MEANS THE 3RD PARTY HAS NO LIABILITY FOR DEBT, BUT LAND CAN BE FORECLOSED ON.

TAKING PROPERTY AND ASSUMING THE DEBT MEANS 3RD PARTY HAS THE FIRST LIABILITY FOR DEBT NOW (AND ORIGINAL DEBTOR IS BACK-UP) AND CAN BE FORECLOSED ON.

28
Q

REDEMPTION IN EQUITY

A

MORTGAGOR CAN REDEEM PROPERTY ANY TIME PRIOR TO FORECLOSURE SALE BY PAYING THE AMOUNT DUE.

29
Q

STATUTORY RIGHT OF REDEMPTION

A

SOME JURISDICTIONS ALLOW MORTGAGOR TO BUY BACK PROPERTY AFTER THE FORECLOSURE SALE HAS TAKEN PLACE.

30
Q

JUNIOR INTEREST HOLDERS

A

JUNIOR LIENS ARE NECESSARY PARTIES AND MUST BE INCLUDED IN A SENIOR FORECLOSURE ACTION, OTHERWISE, THEIR INTEREST WILL REMAIN IN THE LAND.

31
Q

LATERAL & SUBJACENT SUPPORT

A

LATERAL:

  • STRICT LIABILITY FOR EXCAVATION TO LAND IN NATURAL STATE DAMAGE; OR BUILDINGS WHOSE LAND WOULD HAVE COLLAPSED IN NATURAL STATE
  • NEGLIGENCE: BUILDING DAMAGE, EVEN IF NOT COLLAPSED IN NATURAL STATE

SUBJACENT:

  • STRICT LIABILITY FOR FAILURE TO SUPPORT SURFACE LAND / PRE-EXISTING SURFACE STRUCTURES
  • NEGLIGENCE IF FAILURE TO SUPPORT FUTURE STRUCTURES
32
Q

RIPARIAN DOCTRINE

A

WATER BELONGS TO THOSE WHO OWN LAND THAT BORDERS THE WATERCOURSE:

  1. REASONABLE USE THEORY (MAJORITY): LIABLE TO OTHER OWNERS IF THEIR USE INTERFERES WITH THEIR USE (UTILITY OF USE VS. GRAVITY OF HARM).
  2. PRIOR APPROPRIATION DOCTRINE: WATER RIGHTS BY ACTUAL USE AND PRIORITY TO THOSE MOST BENEFICIAL
33
Q

SPECIAL USE PERMIT

A

CERTAIN PROPERTY USE REQUIRES A SPECIAL USE PERMIT EVEN IF ZONING ALLOWS THE TYPE OF USE (LIKE HOSPITALS, DRIVE-THRUS)

EXACTIONS: A CONDITION THAT REQUIRES GOV’T APPROVAL TO DEVELOP - UNCONSTITUTIONAL UNLESS NEXUS AND PROPORTIONALITY.

34
Q

RIGHT TO EXCLUDE

A

OWNER OF LAND HAS THE RIGHT TO EXCLUDE:

  1. TRESPASS
  2. PRIVATE NUISANCE
  3. CONTINUING TRESPASS
  4. EJECTMENT
35
Q

Factors Court considers to determine if deed is mortgage

A
  1. The existence of a debt or promise of payment by deed’s grantor;
  2. the grantee’s promise to return land if debt is paid;
  3. The amount advanced to grantor/debtor was lower than property value;
  4. The degree of grantor’s financial distress; and
  5. the parties’ prior negotiations
36
Q

Estoppel by deed theory

A

If a grantor purports to convey an estate in property that she does not own, her subsequent acquisition of title to the property will automatically go to the grantee, but only against the grantee. If bad title was recorded, it will fail to give notice to subsequent BFPs.

37
Q

SOF Requirements for Land Sale Contract

A

A writing that contains:

  1. description of property;
  2. identification of parties;
  3. price and manner of payment, if agreed upon; and
  4. signature by party to be charged.
38
Q

Accretion

A

Causes the legal boundary of land to change due to the slow and imperceptible deposit of soil in a watercourse or body of water.

39
Q

Avulsion

A

A sudden change in a body of water that serves as a land boundary; does not affect the legal land boundary.

ALSO: encroachment does not change boundaries.

40
Q

Defense of Unclean Hands

A

Applies when benefited party to a equitable servitude violates a similar restriction on their own land.

41
Q

Defense of Latches

A

Applies when benefited party to an equitable servitude fails to bring suit against the burdened party within a reasonable amount of time.

42
Q

Profit

A

A non-possessory interest in land that allows a holder to enter into a servient tenement to remove minerals, soils, or substance.

Appurtenant: If the profit will benefit a dominant estate. Cannot transfer profit unless the dominant estate is transferred too.

In Gross: Can be transferred independent of transfer in land; does not exist to serve dominant estate.

43
Q

Fixtures (commercial vs. residential)

A

Commercial tenant can take trade fixtures UNLESS accessions (i.e. structural additions to the property).

Residential tenant may take trade fixtures depending on (1) nature of chattel; (2) intent of the tenant when fixture attached; and (3) damage that would be caused of removed.

44
Q

The Fair Housing Act

A

Prohibits advertisements that indicate preference, limitation or other discrimination based on race, color, religion, sex, disability, family status.

44
Q

The Fair Housing Act

A

Prohibits advertisements that indicate preference, limitation or other discrimination based on race, color, religion, sex, disability, family status.

45
Q

Doctrine of Equitable Conversion

A

Doctrine of equitable conversion holds that once an enforceable contract of sale is signed, the purchaser’s interest is in real property and the seller’s interest is in the personal property (the proceeds).

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