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Flashcards in Property 2015 Deck (140):

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


Rule of Convenience

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


Four Types of Estates that govern Landlord-Tenant relationship

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


Tenancy for Years(term of years)

Measured by a fixed and ascertainable time


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


Term of Years (termination)

Termination occurs automatically upon the expiration of the term


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


Periodic Tenancy (creation)

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


Periodic Tenancy (termination)

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


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.


Tenancy at Will (creation)

Can be created by express agreement or implication


Tenancy at Will (termination)

Can be terminated by either party without notice


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.


Tenancy at Sufferance (creation)

Created by actions of the tenant alone


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.


Tenant Duties

Pay rent and Avoid waste


Duty to Pay Rent suspended

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


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


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


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


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


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


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


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


Tenant Tort Liability

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


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


Assignment Rent Responsibility

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


Sublease Rent Responsibility

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


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


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


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


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


Exceptions to the Statute of Frauds

Part Performance and Detrimental Reliance


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.


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


Marketable Title

Title that is free from an unreasonable risk of litigation


Implied Warranty of Fitness or Suitability

Applies to defects in new construction


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


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


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


Equitable Conversion (minority rule)

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



Security device used to secure repayment of a debt


Purchase money mortgage

Person takes out a loan for the purpose of purchasing property


Future advance mortgage

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


Lien States (majority--joint tenancy)

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


Title States (minority--joint tenancy)

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


Deed of Trust

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


Installment land contract

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


Absolute Deed

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


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


Due on Sale Clause

Gives lender option to demand immediate full payment upon transfer


Acceleration Clause

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


Due on Encumbrance Clause

Acceleration when mortgagor obtains a second mortgage or otherwise encumbers property


Assumption of Mortgage

Transferree assumes mortgage and original borrower is secondarily liable


Taking Subject to Mortgage

Transferee is not personally liable upon default


Lien Theory State (mortgage foreclosure)

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


Title Theory State (mortgage foreclosure)

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


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


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)



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


Judicial Sale

Sale under the supervision of a court


Power of Sale (Private Sale)

Sale is held by the lender


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


Exceptions to chronological order (foreclosure)

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


Purchase money mortgage exception (foreclosure)

Has priority over all other mortgages even those earlier in time


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


Subordination agreement between mortgages

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


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


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


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


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


Notice Types (deed)

Actual, Constructive and Inquiry


Actual Notice (deed)

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


Constructive Notice (deed)

When prior interest is recorded


Inquiry Notice

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


Race Statute

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


Notice Statute

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


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)


Shelter Rule

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


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


Kinds of Deeds

General, Special, Quit Claim


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


Present Covenants

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


Covenant of Seisin

Warrants that the deed describes the land in question


Covenant of the Right to Convey

Warrants that the grantor has the right to convey the property


Covenant against Encumbrances

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


Future Covenants

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


Covenant of Quiet Enjoyment

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


Covenant of Warranty

Grantor promises to defend against future assertions of encroachment


Covenant of Further Assurances

Grantor promises to fix future title problems


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)


Quitclaim Deed

Grantor makes no warranties as to the health of the title


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



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


Gifts in a Will

Specific Gift; General Gift; Demonstrative Gift; Residuary GIft


Specific Gift

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


General Gift

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


Demonstrative Gift

A general devise that is satisfied from a particular source


Residuary Gift

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


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


Ademption by Satisfaction

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


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)


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



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



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


Servient Estate

Land burdened by the easement


Dominant Estate

Land benefitted by the easement


Affirmative Easement

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


Negative Easement

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


Easement Appurtenant

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


Easement in Gross

Benefits the holder personally


Ways to Create Easement

Express or Implied


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.


Express Easement by Reservation

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


Implied Easements

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


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


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


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)


Easement by Estoppel

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


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



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



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


Real Covenant

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


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)


Negative Covenants

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


Affirmative Covenant

Covenant to pay money


Horizontal Privity

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


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


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


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


Changed Circumstances Doctrine

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


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


Prior Appropriation

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


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


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



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


Exemptions and Variances



Eminent Domain



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


Public Nuisance

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