Property Flashcards
(121 cards)
1
Q
What are present estates
A
possessory estates (duration estates: infinite and limited) & non-possessory estates (interest in estate)
2
Q
What are infinite duration estates
A
life estate, and the fee estates( fee tail, fee simple, fee absolute fee defensible, fee simple defeasance, fee simple determinable, condiition subsequent
3
Q
What are limited duration estates
A
Tenancy’s (years, periodic, will, sufferance, tenancy)
4
Q
What are the non possessory interests
A
given use of the estate (profit, easement, license, covenant)
5
Q
How are estates held?
A
Individually (alone) and concurrently ( with a partner or partners ie. jointly, entirely, tenants in common)
6
Q
How are estates granted?
A
Agreement ( grant/deed), adversity( adverse possession), necessity, legal concepts(eminent domain/gov taking inheritance, marriage)
7
Q
How are estates transferred ?
A
Contracts to sell, deeds, mortgages, recording acts
8
Q
Rights of the parties to the estate?
A
Right’s to waste (good waste), rights to support the land, operation rights, rights to enjoy land (no nuisance or trespass)
9
Q
Waste
A
- affirmative waste(voluntary purposeful waste)- messing with land unless necessary to maintain (don’t dig mines unless was already there)
-permissive waste- Neglect property (must pay taxes, interest , not principal, not responsible for harm by ouster) - ameliorative waste (CL)- change that enhance property w/o others consent
10
Q
What is a future estate
A
a present possessory estate and a future holder (ie. fee simples)
11
Q
Future interest analysis 1. Identify the estate created, who and what interest does a particular party hold? does the interest violate perpetuities (life in being, plus 21 years)? and/or the remoteness of the vesting of the interests created?
A
who and what interest does the party hold? does the interest violate perpetuities (life in being, plus 21 years)? and/or the remoteness of the vesting of the interests created?
12
Q
In what ways can you give possessory estates (fee simple absolute?
A
Divisible(vis)- by will
Descendible(decendents/children/family)- intestacy
Alienable(allenate/leave/sell)- intervivos(can transfer during lifetime )
13
Q
what are the condition interests?
A
Fee simple determinable - terminate automatic and back to grantor
“While” “during” “until” “so long as”
Fee simple subject to condition subsequent - grantor option to re enter
words that show grantor can re enter
Fee simple subject to an executory interest - automatic transfer to TP
“to A, but if A gets married, then to B
14
Q
What are the Duties of Life Estate :
A
-Ordinary uses and profits
-don’t commit affirmative waste(voluntary purposeful waste)- messing with land unless necessary to maintain (don’t dig mines unless was already there)
-don’t commit permissive waste- Neglect property (must pay taxes, interest , not principal, not responsible for harm by ouster)
-don’t commit ameliorative waste (CL)- change that enhance property w/o others consent
- Have to pay the interest and taxes on the property not the principal
15
Q
What does it mean to have a Future interest
A
interest goes back to grantor or to TP
16
Q
What are the ways to get a interest back to a grantor?
A
Possiblity of revertor (possible the remainder interest will revert back to the grantor)
Right to re entry (grantor has a right to re entry and get the property back)
Reversion (property reverts back to the grantor)
17
Q
what is the name of the next interest after a life estate
A
-Vested Remainder (automatically will get the property)
-Indefeasibly vested remainder -becomes automatic after life estate expiration. “ To A for life, then to B”
-Vested remainder subject to total divestment
TP gets a condition that another TP can come and take the vested remainder interest
“To A for life, remainder to B, but if B get married, to C”
-Vested remainder subject to open (class gift)
-Vested remainder executory limitation
-Contingent Remainder (get property if something happens)
18
Q
Fee simple determinable
A
terminate automatic and back to grantor
“While” “during” “until” “so long as”
19
Q
Fee simple subject to condition subsequent
A
grantor option to re-enter
words that show grantor can re enter
20
Q
Fee simple subject to an executory interest
A
- automatic transfer to TP
“to A, but if A gets married, then to B
21
Q
-Vested Remainder
A
(automatically will get the property)
22
Q
-Indefeasibly vested remainder
A
becomes automatic after life estate expiration. “ To A for life, then to B”
23
Q
Vested remainder subject to total divestment
A
TP gets a condition that another TP can come and take the vested remainder interest
“To A for life, remainder to B, but if B get married, to C”
24
Q
Vested remainder subject to open (class gift)
A
Remainder to a prescribed class and at least 1 can take
“To A for life, remainder to children of B and their heirs”
*B have at least 1 child
*it close end life tenant dies or any member can call for their distribution
25
Vested remainder executory limitation
TP cut off a remainder by shifting or springing
Shifting- if Life estate don’t fulfill condition, TP cuts off life estate interest
Springing- Granter cuts off Life estate interest if life estate don’t fulfill condition
26
Contingent Remainder
(get property if something happens)
- Unascertainable taker (unborn) or
“To A for life, then to heirs”
- Conditional precedent to the future interest becoming holder
“To A for life, then B if B graduate from H.S”
27
What does rap mean and when is it triggered RAP
does it seem like person is every going to get it, w/in 21 years don’t do math)
- gift has to vest or fail within rap time (21 years) .
- [ ] If it not certain to tell if will vest or fail in 21 years then violate rap rule and cant happen EXCEPTION wait and see rule; wait to the even actually happen and see if the gift will vest or fail in 21 years
- [ ] (Example settle say estate to grandkids when will probate …it will fail rap because he probably won’t probate will in another 21years but wait and see would wait to see when he die and see if will actually probate in 21 years)
- [ ] Subsequent grantees and not to revert back to grantor = executory interest that is a violation of RAP
- [ ] What is the Reformed Rap -Merger (shelly rule)- instead of trying to figure out measuring life , wait and see.
- [ ] US rap- provides an alt. 90 years to the 21 years of grant creation
28
Rap analysis
Rap analysis - 1. Depending on the type of conveyance the rap date will run if real prop, its the date of the creation of the estate (the date the deed was delivered), if a inter vivid trust (the date the trust was created), if a testimony trust (the date of death), power of appointment (if given to donee of 1st prop then measure the suspension from the date of the second property to the date of excursive of power), or if the power to donee is given in the future then( measure the suspension date from the date of the second prop to the first property )2. who is the measuring life? (This person’s death triggers the next estate) if property its the person that’s the ;life tenant…if trust it’ the person who is getting the income (pay too) 3. Was the measuring life alive on the date the power was created 4. Is there additional suspension/a pause beyond the measuring life? Okay just cant be more than 21 years 5. At the end of suspension, where does the prop go? (What kind of
29
Tenancy of years
a created agreement (lease) for a specfic duration *dont need to be for years, expires at the end
30
Periodic tenancy
term to term, created by an expressed or implied agreement (implied is from tendernce and acceptance of the rent and is renewed by the continuing acceptance of the rent until terminated by notice (by agreement or written notice in the time period of the time of tenancy)
31
Tenancy by sufferance or a hold over tenant
stayed longer than agreement, LL can not accept rent, otherwise will turn into a month to month tenancy
32
Tenancy at will-
is a expressed or implied agreement that it can be terminated at anytime….don’t need notice but a reasonable time to vacate…created when a person gets permission from owner to stay and does not pay rent….once pay rent to is a periodic tenancy
33
What is termination by operation of law-
Death of either party, sale, re-lease by the LL to 3rd party, assignment by tenant, tenant commits waste
34
Landlord implicit covenants to tenants (tenant rights)-
possession, quiet enjoyment, no eviction (actual or constructuial)
35
Residential Owners liability
owners are liable to tenants and their guest in common areas
36
boards and associations
the board and members of the association are not jointly and severally liable to torts that occur in a common area (ind. owners are not personally liable)gotta sue the association
37
Rights of the life estates
Life estate duties and exception- They must pay the taxes and interest on the principal if they are living on the property or collecting rent only ..exception: if the land is vacant then no duty so if the remainder pay the taxes or interest on the principal and try to sue the life estate talent ..they will be unsuccessful and will receive nothing,
38
Rights of the bank
money received from a property that has a judgement lien gos straight to the holder of the judgement lien. Not to the debtor first because they may spend the money
39
Shelter rule-
40
Color deed
-out of the chain of title -not in the index system(given to a person that did not acquire title the right way) therefore will not find deed and have not
41
Wild deed -
ild deed, a person who obtained a deed not knowing that the original grantor also gave the property to another person who gave the property to another person. That other person may have been a bona fide purchaser however they saying the deed out of chain of title
42
\What areas is LL liable for
Common areas (walkway stairs),Latent defects (disclose defects), Assumption of repairs (negligent repairs), public use(public use property), seasonal or short term lease of furnished dwelling (air bib)(vacation home)(hotels)
43
Rights of co-tenancy’s to property
cant seek contribution on the repairs from co .. unless the repairs were necessary and requested it and co refused),Improvements- one co cant seek improvements unless they increase the rents or the property), Co tenant that pays the mortgage or taxes may seek contribution by other tenant but if tenant is in sole possession then can only recover the amount that exceeds the market value of the property
44
Difference between actual and contractual eviction-
actual is oust directly from LL, contractual is oust by a act or condition under the LL control. Tenant must alert the ll…..
45
Eviction my paramount title-
oust by someone who has title superior then LL
46
Eviction by eminent domain-
eviction is by gov exercise of eminent domain…ll and tenant but split what was taken under eminent domain
47
Retalitory eviction
evicting tenant by not providing rights that the tenant is entitled
48
Warranty of habitability
must be in livable conditions (housing code)
49
Difference between habitability and quiet enjoyment-
habititablity is to live up to standards and enjoyment is no nusciance
50
Repairs
duty is on tenant except if the landlord assumes the duty to lease or if a state statute says LL assume the duty
51
Destruction or substantial injury the premises (security deposit)
LL have the right to get the premises how it was
52
Duties of a Tenant
-pay rent un less LL violation of a duty or property is destroyed)
-Ordinary duty to repair unless lease states other
-Dont commit waste (voluntary, permissive, ameliorative)
-destruction of unit
53
what are the options a LL have when a Tenant Breach (terminating agreement or creating waste)
Tenant still in possession Landlord can:
go to court for eviction, continue lease and sue for breach
54
what can LL do if Tenant abandon unit
LL Can
Surrender: accept abandon and release Tenant from lease
Ignore:hold tenent liable for unpaid rent
Re-let: lease premise to new tenant and hold breaching tenant liable for any loses
55
Retaliatory eviction
LL has housing code violations
56
How to tell if something is fixture?
chattels firmly embedded or connected to sailor a pre-existing structure, is it adopted or fitted to the premise, removal of the chattel will destroy the chattel or premise, the person who attached the chattel have a substantial and permanent interest in the land
57
What fixtures may be removed
trade fixtures (things for $ use) while tenancy however must restore premise back to original use
58
What is assignment vs sublease
primary tenant gives entire interest (no reversion) in lease to new tenant. But will be liable still unless novation. Sublease leaves reversion primary tenant is liable to LL and not sub tenant.
59
What do assignment and sublease determine
who owes LL rent
60
Exceptions that make primary T not liable to LL-
if novation or lease say subject to LL approval, LL can decide not to approve even if for a unreasonable reason
61
What are the concurrent estates
joint tenancy, tenancy by entirety, tenancy in common
62
Joint tenancy- ‘as joint tenants” “jointly”
survivorship and TTIP, (same time, same title, same interests, all have whole possession)
63
How to severe joint tenancy
mutually (parties agree) or unilaterally (court ordered)
64
Minority title vs majority lien
minority title can sever a joint tenancy
65
Tenancy by the entirety
property conveys by husband and wife, there is no unilateral severance. Right of survivorship is automatic dont need to be conveyed
66
Termination of tenancy by entirety
a divorce, death, a mutual agreement by the parties, joint creditors bankruptcy,
67
Tenancy in common
property owned by 2 or more tenants with undivided interest, created by possession,
68
Terminate tenancy in common-
merger- one person has all of the interest, death - interest pass to heirs, partition (\voluntary or involuntary)
69
Interests in estates
ppl rights in land - profit, license, easement,
70
What are the types of easements
What are the types of easements: easement in gross and easement appurentant, Easement in gross- benefit by easement on the land…not the land itself (economic or commercial purpose)Easement appurentant- 2 adjoining tracts of land, one dominant and one servant (servant has the easement), can transfer the easement however for one to use but will be no conveyance unless control of dominant estate and all who have dominant estate will be entitled to itHow to create a easement- expressly grant(conveyance by deed), express reservation (conveyance of deed with restrictions on use), a written agreement, orally/license, easement implied by prior use(new person but intend for them to use), easement by strict Nec. (No way to access the dominant land w/o passing servant land), easement by prescription (adverse p but no hostility/exclusiveness), condenation, destruction of servant estate, prescription
71
How terminate a easement
How terminate a easement-(end cramp) express terms that say when to terminate, release by a written agreement that satisfy sof, abandonment (words and conduct), merger (two estates owned by 1 person), ending of necessity,
72
what is the merger exception
Merger does not apply if a person gets ownership of two properties but the ownership is not the same in both properties equally. Ex: the son owned the east parcel in fee simple but owned only a life estate in the servient estate, the west parcel. Therefore, because the duration of the servant estate was shorter, no merger
73
License/oral easement-
A license is a privilege to enter onto another's property. It may be revoked at any time merely by a manifestation of the licensor's intent to end it. ..best way to get a tenant out
74
Profit
right to enter a land and take substance from the soil of the land
75
Convenant v. Equitable servitude
Covenants running with the land: says what to do and what not ,The covenant in the original deed from the owner to the buyer will be enforceable against the buyer's successor, if the covenant runs with the land, either at law or as an equitable servitude- [ ] Equitable servitude - seek injuction
76
-What is adverse possession
- (E-COAH) exclusive, continuous(can tack with privity of estate), open and notorios, actual, hostile(w/o permission)
Privity is satisfied if the first adverse claimant purports to transfer the land to the next/cant be that the 1st claimant abandoned and then the next took over
77
adverse possession exception
Disability/minors
the disability must have been in existence on the day the adverse possession began.
78
Color of title
Color of title is a document that purports to give title, if possession of the portion was sufficient to put the owner or community on notice of the fact of possession.
However, if the parcel consists of two lots separated by a road, so it is unlikely that it constitutes a unitary tract no possession.
79
When is a deed validly executed and delivered
execution and delivery
80
What is execution of a deed
-a writing signed by the seller and contain adequate description of the parcel. The seller must lose legal control of the deed
81
liquidated damages/breach of land sale k
The non breaching party may keep if the other party breaches and the deposit is less than 10 percent of the sales price of the property if more than 10 percnt the court will look into the reasonableness ..mostly likely will be invalid if it is unconscionable , a penalty, or gives one party a remedy and not the other
82
Battle of deed vs will
Deeds over wills because transfer is present. Transfer occur once the giver have the intent (words) and physical give to person or the agent of the person.
Acceptance is presumed if the gift is benifical.
83
Title companies on home
insure the person named on the insurance and any heir, and devisees so long as the named insured or his heirs or devisees own the insured property.
84
race/notice statutes:
Notice-subsequent buyers for value Without notice (bfp) recording dont matter
-Race- subsequent buyers for value Without notice (bfp) records first
-Race/notice-subsequent buyers for value Without notice (bfp) and first recorded
85
what is a b f p
purchaser with value
86
Exceptions to the value bfp’s
1. Common law first in time rule- if both given to ppl who are not bf’s because no value, then its the first in time first in right rule (who ever got it first) will go for value
2. color title -was given by a person who out of the chain of title(wasn’t allowed to give title yet) so not in the index system ..new person gets title once the giver gets title by estoppel deed
3. shelter rule- transfer status of bfp from previous giver
4. Wild deed
Rightfully recorded a deed just not valid because the person who gave you the deed was not the valid owner
87
Zoning violation
changes don’t make title unmarketable it’s zoning violations. If zoning states certain requirements its okay to be more restrictive just need to comply
88
Hardship variance
asking the zoning board to allow you to violate the zoning law because you will suffer hardship and there will be a public benefit….not granted if you knew this before the hardship occurred..you are the reason for your hardship
89
Deeds
just need to be in writingwhich shows grantors intent to convey a descriptive property to the name of the grantee and signed by the grantor ….acceptance is presumed when its a benifical gift …and delivery is when given to the party or a agent of the party.
90
quitclaim deeds
state that you are okay with a title that may not be marketable …it does not apply to house sold “as it” because that has to go to the structure of the house not the title
91
right to redeem vs statutory right to redeem
Right to redemption is b4 foreclosure sale and statutory right to redeemption is after foreclosure sale.
92
Exorneration
is when a debtor dies with a mortgage…it allows the mortgage company to get the money due on the mortgage from the residue of the estate.
93
Caveat emptor
means buyer takes property as is condition
94
Rights of an oust joint tenant
-If one co-tenant wrongfully ousts another co-tenant from possession of the whole or any part of the premises, the ousted co-tenant is entitled to receive her share of the fair rental value of the property for the time she was wrongfully deprived of possession.
95
Terminating an easement
that’s violating sof (not written) : Although an oral release is ineffective because it does not comply with the Statute of Frauds, it may become effective by estoppel. For an easement to be extinguished by estoppel, there must be (i) some conduct or assertion by the owner of the easement, (ii) a reasonable reliance by the owner of the servient tenement, coupled with (iii) a change of position.
96
Time of essence and closings
In general, courts presume that time is not of the essence in real estate contracts. Thus, the closing date stated in the contract is not absolutely binding in equity, and a party, even though late in tendering his own performance, can still enforce the contract if he tenders within a reasonable time. (One to two months is usually considered reasonable.) Time will be considered of the essence only if: (i) the contract states, (ii) the circumstances indicate it was the parties' intention, or (iii) one party gives the other notice that he desires to make time of the essence. The contract in this case made no mention that time was of the essence.
97
Time of essence and closings
In general, courts presume that time is not of the essence in real estate contracts. Thus, the closing date stated in the contract is not absolutely binding in equity, and a party, even though late in tendering his own performance, can still enforce the contract if he tenders within a reasonable time. (One to two months is usually considered reasonable.) Time will be considered of the essence only if: (i) the contract states, (ii) the circumstances indicate it was the parties' intention, or (iii) one party gives the other notice that he desires to make time of the essence. The contract in this case made no mention that time was of the essence.
98
Voiding gifts from tesatator
At common law, if a will beneficiary died before the testator, the gift to the beneficiary was void. However, this jurisdiction has an anti-lapse statute, which saves the gift for the predeceasing beneficiary's descendants if the beneficiary herself is a descendant of the testator.
99
Acceptance/delivery of deed
rejection of the deed is sufficient to rebut any presumption of acceptance. As a general rule, delivery of the deed is the final operative act to complete a conveyance of title to the grantee, because courts will infer the grantee's acceptance if the conveyance is beneficial to him. However, all courts will consider evidence that is contrary to the presumption or inference.
100
What are the 6 warranties-
101
What does a general deed cover? special deed, quit claim deed?
102
What does a quit claim deed cover?
title which quits responsibility of anything that happens to the title after the property is sold
103
What does a special deed cover?
covers some and basically says I am only responsible for what happens while I have the property
104
After acquire title,
-at the time when title was conveyed title was not actually conveyed by the rightful person in possession
-or By mistake (glitch in the system) however when the title is actually conveyed the person gets the real title.
105
Notice statue
any Subsequent purchase a full value without notice means The last purchaser so bad got the property using money and not have notice of any buyers the grantor so to
106
Race
-The first person to record they don’t have to be a bona fide purchaser
107
Race notice-
The first bona fide purchaser to record recorded
108
notice
Notice would be recording the deed or putting in the newspaper
109
What is actual, inquiry and record notice?
notice may be acquired through actual notice (direct knowledge of the covenants in the prior deeds); inquiry notice (the neighborhood appears to conform to common restrictions); or record notice (if the prior deeds are in the grantee's chain of title the grantee will, under the recording acts, have constructive notice of their contents).
110
When do a covenant touches and concerns the land
it benefits the covenantor and the covenantor's successor in their use and enjoyment of the burdened land).
111
Who can enforce a covenant of a equitable servitude- allowing
a covenantee, covenantor, or successor to enforce the covenant in equity by way of injunction
112
how do you know if there was intent for a covenant
The intention to create the servitude is established by the writing and can also be implied from the common scheme for development.
113
When is a covenant enforceable as an equitable servitude
when there is (i) a covenant in a writing satisfying the Statute of Frauds, that (ii) touches and concerns the land (i.e., the effect of the covenant makes the land more useful or valuable to the benefited party) and that (iii) indicates an intention that the servitude exists, and (iv) notice is given to future owners of the burdened land.
114
when can lot owners enforce covenants against other lot owners
if two things are satisfied: (i) a common scheme for development existed at the time that sales of parcels in the subdivision began; and (ii) there was notice of the existence of the covenant to the party sued. ie, evidenced by the recorded plan, and the fact that the covenant was in the architect's chain of title gave her constructive notice of the restriction.
115
What is reciprocal negative servitudes
When a developer subdivides land into several parcels and some of the deeds contain negative covenants but some do not, negative covenants or equitable servitudes binding all the parcels in the subdivision may be implied
116
When will a reciprocal negative servitudes will be implied:
(i) a common scheme for development, and (ii) notice of the covenants. The second requirement may be satisfied by actual notice, record notice, or inquiry notice. Here, the buyer has not been given actual notice, and the antenna restriction is not so obvious that the appearance of the neighborhood would provide the buyer with inquiry notice.
117
Exception to enforcing restrictive covenant
Changed neighbor hoods and restrictive covenants (the use of the land ..)can be voided if changed conditions have made the property unusable for the specified use, and this means that the entire subdivision must have changed so significantly that enforcement of the restriction would be inequitable. If some houses in the center of the subdivision are not affected then cant change
118
When in default of mortgage a buyer can avoid foreclosure by?
by paying full amount due (right of redemption,
Or Deed in lieu to foreclosure( buyer can give mortgagor the deed)
119
What happens If buyer cant satisfy debt
defaulted party can get a deficiency judgement against buyer to recover balance
120
Foreclosure process
Defaulted party gets judicial action to sell property, If excess proceeds of to junior mortgagors then goes to mortgagor (buyer),
121
