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Flashcards in Property 2015 Deck (140):
1

RAP and Class Gifts Special Rule

If the gift to ay member of the class is void under RAP, then the gift is void as to all members of the class

2

Rule of Convenience

The rule of convenience closes the class when any member of the class becomes entitled to immediate possession of the property.

3

Four Types of Estates that govern Landlord-Tenant relationship

Tenancy for years(term of years); Periodic Tenancy; Tenancy at will; Tenancy at Sufferance

4

Tenancy for Years(term of years)

Measured by a fixed and ascertainable time

5

Term of Years (creation)

Creation: an agreement by landlord and the tenant with the intent to create agreement, if more than a year must be in writing because of SOF

6

Term of Years (termination)

Termination occurs automatically upon the expiration of the term

7

Periodic Tenancy

An estate that is repetitive and ongoing for a set period of time, and it renews automatically at the end of each period until one party gives notice of termination

8

Periodic Tenancy (creation)

Parties must intend to create a periodic tenancy it can be express or implied

9

Periodic Tenancy (termination)

Proper notice means that terminating must give notice before the start of the last term

10

Tenancy at Will

A tenancy at will is an estate that does not have a specific term and continues until terminated by either the landlord or tenant.

11

Tenancy at Will (creation)

Can be created by express agreement or implication

12

Tenancy at Will (termination)

Can be terminated by either party without notice

13

Tenancy at Sufferance

A tenancy at sufferance (holdover tenancy) is the period of time after the expiration of a lease during which the tenant remains on the premises.
During a tenancy at sufferance, the tenant is bound by the terms of the lease that existed before expiration, including payment of rent.

14

Tenancy at Sufferance (creation)

Created by actions of the tenant alone

15

Tenancy at Sufferance (termination)

A tenancy at sufferance can be terminated if the tenant vacates the premises, the landlord evicts the tenant, or the landlord binds the tenant to a new periodic tenancy.

16

Tenant Duties

Pay rent and Avoid waste

17

Duty to Pay Rent suspended

Premises are destroyed; Landlord completely or partially evicts the tenant; Landlord materially breaches the lease

18

Implied Covenant of Quiet Enjoyment

Tenant can withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for their intended purposes, and the tenant is constructively evicted

19

Constructive Eviction

1. Premises were unusable for their intended purpose; 2. the tenant notifies landlord of the problem; 3. the landlord does not correct the problem; 4. the tenant vacates the premises after a reasonable amount of time has passed

20

Implied Warranty of Habitability

the landlord has obligation to maintain the property such that it is suitable for residential use. We are concerned with conditions that threaten tenant health and safety

21

Implied Warranty of Habitability (if premises are not habitable)

Tenant may: refuse to pay rent; remedy the defect and offset the costs against the rent or defend against eviction

22

Implied Warranty of Habitability (if tenant withholds rent)

tenant must notify the landlord of the problem; give the landlord a reasonable opportunity to correct the problem

23

Landlord Duty to Mitigate

Majority rule: the landlord must make reasonable efforts to re rent the property if tenant abandons; Minority Rule the landlord does not have to mitigate damages

24

Landlord Duty to Deliver Possession

Majority Rule: the landlord must deliver the actual possession of the leasehold premises, this means physical possession of the property; Minority rule the landlord is only required to deliver legal possession

25

Tenant Tort Liability

Tenant owes a duty of care to invitees, licensees, and foreseeable trespassers

26

Landlord Tort Liability

Responsible in negligence for latent or hidden defects about which the tenant has not been warned; Responsible for faulty repairs completed by the landlord negligently; Responsible for negligence that causes injuries in common areas of the property

27

Assignment Rent Responsibility

In an assignment the landlord can collect rent from the tenant (privity of contract) or the subsequent tenant (privity of estate)

28

Sublease Rent Responsibility

In a sublease the landlord can collect rent from the tenant (privity of contract and estate)

29

Landlord Permission to Transfer

Majority Rule: a landlord may deny permission to a transfer only for a commercially reasonable reason
Minority Rule: a landlord may deny permission at her discretion which means for any reason at all

30

Adverse Possession

The doctrine of adverse possession allows a person in unlawful possession to acquire good title to a piece of property, until the person acquires good title the person is a trespasser

31

Adverse Possession (elements)

Actual possession, Hostile: possession must be adverse to the owner's interest, use must be Open & Notorious, Exclusive: adverse possessor cannot share possession with the true owner, Continuous: use must be continuous

32

Doctrine of Merger

Covenants under the contract are merged into the deed and therefore can't be enforced unless the covenant is also in the deed

33

Exceptions to the Statute of Frauds

Part Performance and Detrimental Reliance

34

Part Performance

Under the doctrine of part performance, either party may seek specific performance when the acts of performance constitute persuasive evidence of the existence of a contract.

35

Detrimental Reliance

An estoppel doctrine that applies where a party has reasonably relied on the contract and would suffer hardship if the contract is not enforced

36

Marketable Title

Title that is free from an unreasonable risk of litigation

37

Implied Warranty of Fitness or Suitability

Applies to defects in new construction

38

Seller's Remedies for Buyer's Breach

Damages(measure is the difference between the K price and market price;
Recission(seller can sell the property to someone else);
Specific Performance

39

Buyer's Remedies for Seller's Breach

Damages(measure is the difference between K price and market value on date of breach;
Recission(returns payments to the buyer and cancels the K;
Specific performance

40

Equitable Conversion (majority rule)

Majority Rule: Buyer holds equitable title during the period between the execution of the K and the closing and delivery of the deed--buyer is responsible for any damages to the the property during that period

41

Equitable Conversion (minority rule)

Place the risk of loss on the Seller until the closing and delivery of the deed

42

Mortgage

Security device used to secure repayment of a debt

43

Purchase money mortgage

Person takes out a loan for the purpose of purchasing property

44

Future advance mortgage

A line of credit used for home equity, construction, business, and commercial loans (often referred to as a second mortgage)

45

Lien States (majority--joint tenancy)

Treats a mortgage as a lien that does not sever a joint tenancy

46

Title States (minority--joint tenancy)

A mortgage does sever a joint tenancy and converts it into a tenancy in common

47

Deed of Trust

Operates like a mortgage but uses a trustee to hold title for the benefit of the lender

48

Installment land contract

Seller finances the purchase and seller retains title until the buyer makes final payment on an installment plan

49

Absolute Deed

Mortgagor transfers the deed to the property instead of conveying a security interest in exchange for the loan

50

Conditional Sale and Repurchase

Owner sells property to the lender who leases the property back to the owner in exchange for a loan. Lender gives the owner the option to repurchase, after the loan is paid off

51

Due on Sale Clause

Gives lender option to demand immediate full payment upon transfer

52

Acceleration Clause

Allows the lender to speed up the payment when the property is transferred

53

Due on Encumbrance Clause

Acceleration when mortgagor obtains a second mortgage or otherwise encumbers property

54

Assumption of Mortgage

Transferree assumes mortgage and original borrower is secondarily liable

55

Taking Subject to Mortgage

Transferee is not personally liable upon default

56

Lien Theory State (mortgage foreclosure)

Mortgagee/Lender cannot take possession prior to foreclosure because lender has a lien until foreclosure is complete

57

Title Theory State (mortgage foreclosure)

Lender technically has the right as the holder of title to possess the property at any time

58

Intermediate title theory state

Minority of jurisdictions modify the title theory the mortgagor retains title until default at which point the lender can take possession

59

Equity of Redemption

A common law right held by the mortgagor to reclaim title and prevent foreclosure upon the full payment of the debt (must exercise before foreclosure of sale)

60

Foreclosure

A foreclosure is a forced sale of an asset to pay off a debt

61

Judicial Sale

Sale under the supervision of a court

62

Power of Sale (Private Sale)

Sale is held by the lender

63

Priorities (foreclosure)

General rule: interests acquired before the interest that is being foreclosed (senior interest) survive the foreclosure; interests acquired after the interest is being foreclosed (junior interest) are extinguished by the foreclosure; surviving debts are satisfied chronologically

64

Exceptions to chronological order (foreclosure)

Purchase money mortgage; Recording acts exception; Subordination agreement between mortgages; mortgage modification; future advances mortgage

65

Purchase money mortgage exception (foreclosure)

Has priority over all other mortgages even those earlier in time

66

Recording act exception

A senior mortgage may sometimes not get recorded, a junior mortgage that satisfies the requirements of the state recording act may take priority over the unrecorded senior mortgage if it satisfies the elements of the state's recording act

67

Subordination agreement between mortgages

A senior mortgagee can agree to subordinate its interest to a junior interest

68

Mortgage modifications

a senior mortgage who enters into an agreement with the mortgagor/landowner to modify the mortgage by making it more burdensome subordinates its interest but only as to the modification, the original mortgage will otherwise remain superior

69

Future advances mortgages

Line of credit: a mortgage given by a borrower in exchange for the right to receive money from the lender in the future

70

Effect of Foreclosure

Foreclosure sale eliminates the mortgagors interest in the property--statutory redemption is a statute that enables the homeowner to effectively nullify the foreclosure

71

Contents of a Deed

A valid deed must identify the parties, it must be signed by the grantor, it must include words of transfer with a present intent to transfer, and must include a sufficient description of the property

72

Notice Types (deed)

Actual, Constructive and Inquiry

73

Actual Notice (deed)

when the subsequent grantee has real personal knowledge of a prior interest

74

Constructive Notice (deed)

When prior interest is recorded

75

Inquiry Notice

When a reasonable investigation would have disclosed the existence of prior claims

76

Race Statute

First to record wins even if subsequent purchaser had notice of a prior unrecorded conveyance (first recorded or first to record)

77

Notice Statute

Subsequent purchaser has good title if she buys without notice of a prior unrecorded conveyance (in good faith or without notice)

78

Race-Notice Statute

Subsequent purchase has good title if they purchased without notice of a prior unrecorded conveyance and they record first (both in good faith or without notice and first duly recorded or first recorded)

79

Shelter Rule

A person who takes from a bona fide purchaser protected by the recording act has the same rights as his grantor

80

Estoppel by Deed

Arises when a grantor conveys land the grantor does not own--if a grantor subsequently acquires title to the land the grantor is estopped from trying to repossess on grounds that he didn't have title when he made the original conveyance

81

Kinds of Deeds

General, Special, Quit Claim

82

General Warranty Deed

Provides the greatest amount of title protection; grantor warrants title against all defects even if the grantor didn't cause the defects

83

Present Covenants

Covenant of Seisin, Covenant of the Right to Convey, Covenant against Encumbrances

84

Covenant of Seisin

Warrants that the deed describes the land in question

85

Covenant of the Right to Convey

Warrants that the grantor has the right to convey the property

86

Covenant against Encumbrances

Warrants that there are no undisclosed encumbrances on the property that could limit its value

87

Future Covenants

Covenant of Quiet Enjoyment, Covenant of Warranty, Covenant of Future Assurances

88

Covenant of Quiet Enjoyment

Grantor promises to defend against future challenges to the grantees title to the property

89

Covenant of Warranty

Grantor promises to defend against future assertions of encroachment

90

Covenant of Further Assurances

Grantor promises to fix future title problems

91

Special Warranty Deed

Grantor warrants against defects caused by the grantor. This type of deed provides a lesser amount of title protection than a general warranty deed--includes all six covenants but apply to the acts or omissions of the grantor (grantor has to create the defect)

92

Quitclaim Deed

Grantor makes no warranties as to the health of the title

93

Breach of Covenants

Breach of present covenants occurs at time of the conveyance; breach of future covenants occurs after the conveyance once there is interference with possession

94

Fixtures

Tangible personal property that is attached to real property in a manner that is treated as part of the real property

95

Gifts in a Will

Specific Gift; General Gift; Demonstrative Gift; Residuary GIft

96

Specific Gift

A devise of property that can be distinguished from the rest of the testators estate

97

General Gift

A devise of personal property that will be satisfied from the general assets of the estate

98

Demonstrative Gift

A general devise that is satisfied from a particular source

99

Residuary Gift

The balance of the estate after all the general and specific gifts have been made

100

Ademption (by Extinction)

Devise of property that falls (or is adeemed) because it is no longer in the testators estate at the testator's death

101

Ademption by Satisfaction

If the testator gives the property to the beneficiary while the testator is alive, the gift is adeemed by satisfaction

102

Lapse Statute

A devise of property can also fail (lapse) if the beneficiary dies before the testator dies, and alternate beneficiary is named in the will (lapsed gift becomes apart of residuary)

103

Anti-Lapse Statute

All jurisdictions have statutes that are designed to prevent gifts from lapsing. Satisfied when: a lapsed gift was made to a party in the statute (almost always a family member); and deceased beneficiary survived by issue

104

Trust

Device for managing property whereby on person (trustee) owns property for the benefit of another person (beneficiary)

105

Easement

Right held by one person to make use of another person's land

106

Servient Estate

Land burdened by the easement

107

Dominant Estate

Land benefitted by the easement

108

Affirmative Easement

Gives the holder the right to do something on someone else's property

109

Negative Easement

Gives the holder the right to prevent someone from doing something on her land (must be express cannot be created by implication)

110

Easement Appurtenant

Is tied to the land, the holder is benefitted in her use of the land

111

Easement in Gross

Benefits the holder personally

112

Ways to Create Easement

Express or Implied

113

Express Easements

An express easement by grant arises when it is affirmatively created by the parties in a writing that is in compliance with the Statute of Frauds.

114

Express Easement by Reservation

Created when a grantor conveys land but reserves an easement right in the land for the grantors use and benefit

115

Implied Easements

Are not formal and arise out of factual circumstances, four kinds: Necessity, Implication, Prescription, Estoppel

116

Easement by Necessity

An easement by necessity is generally created only when property is virtually useless (e.g., landlocked) without the benefit of an easement across neighboring property, and it ends when it is no longer necessary

117

Easement by Implication

An easement by implication is created by an existing use on a property: a large estate owned by one owner (common ownership), before division the owner of the large tract uses the land as if there's an easement on it (quasi easement), Use must be continuous and apparent at the time of severance, use must be reasonably necessary to the dominant estate's use and enjoyment

118

Easement by Prescription

Easements can be obtained by prescription similarly to the way land can be acquired by adverse possession. There must be continuous, actual, open, and hostile use for a specific period (use need not be exclusive)

119

Easement by Estoppel

Good-faith, reasonable, detrimental reliance on permission by a servient estate holder

120

Termination of and Easement

Release (holder expressly releases it in writing);
Merger (if the owner of the easement acquires fee title to underlying estate, it merges into title);
Abandonment (owner acts in an affirmative way that shows a clear intent to relinquish the right );
Prescription (holder fails to protect against a trespasser for the statutory period);
Sale to a bona fide purchaser;
Estoppel (servient owner changes position to his detriment in reliance on statements/conduct of the easement holder that the easement is abandoned);
End of necessity (easement by necessity last as long as the easement is necessary

121

Profit

Right to enter another's land and remove a specific natural resource

122

License

A revocable permission to us another's land (easements are not revocable but licenses are)

123

Real Covenant

A promise concerning the use of the land that runs to successors to the promise

124

Real Covenant Elements

Writing (subject to SOF); Intent (original parties must intend for covenant to run with the land); Touch and Concern(must touch and concern the land in order to run):Notice(actual or constructive notice--inquiry notice is ok for equitable servitude); Privity(horizontal and vertical)

125

Negative Covenants

A restriction on use will usually touch and concern because they restrict what you can do with your land

126

Affirmative Covenant

Covenant to pay money

127

Horizontal Privity

Horizontal Privity refers to privity of estate, where the estate and covenant are contained in the same instrument

128

Vertical Privity

Vertical privity refers to the relationship between the original party to the agreement and his/her successor to the property; to run the burden of the covenant to the successor the successor must take the original party's entire interest

129

Equitable Servitude (steps)

To bind a successor: it must be in writing, must have been intent to run with the land, must touch and concern with the land, successor must have notice, no privity requirement

130

Implied Reciprocal Servitude

Equitable servitude is implied and need not be in writing; must be an intend a covenant on all plots in the subdivision; must be reciprocal; must be negative; successor must be on notice of the restriction; must be a common plan or scheme

131

Changed Circumstances Doctrine

Where a restriction no longer makes due to drastic changes in the surrounding area since the restriction was put in place

132

Riparian Rights

Doctrine of riparian rights holds that landowners who border a waterway own the rights to the waterway; riparian a share the right to a reasonable use of the water, such that one riparian is liable to another for interference with the other's use

133

Prior Appropriation

The first person to use the water regardless of where their land is located has the rights to the water

134

Lateral Support Rights

Neighboring landowner cannot excavate so as to cause a cave in on a neighbors land: Negligence liability when the actions caused subsidence on a neighbors land and the neighbors surface buildings contributed to subsidence; strict liability when the actions caused subsidence on a neighbors land and the neighbors surface buildings did not contribute to the subsidence

135

Subjacent support

Rights of surface landowners not to have their land subside from the activities of the owners of the underground rights: owner of mineral rights is strictly liable for any failure to support the land any buildings on it that existed before the rights were created

136

Zoning

State and local governments may regulate the use of land through zoning laws which are enacted for the protection and safety of the community

137

Exemptions and Variances

F

138

Eminent Domain

F

139

Private Nuisance

A substantial and unreasonable interference with another individuals use or enjoyment of his property. Substantial: one that would be offensive, inconvenient, or annoying to an average person in the community. Unreasonable: the injury outweighs the usefulness of the defendants actions

140

Public Nuisance

Unreasonable interference with the health, safety, or property rights of the community