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Property Flashcards

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1
Q

Fee Simple Absolute

A

largest estate recognized by law. May be sold, divided, devised, or inherited and has an indefinite or potentially infinite duration.

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2
Q

Fee Tail

A

an estate where inheritability is limited to lineal heirs. Created by the words “to A and the heirs of his body.”

Most jurisdictions have abolished the fee tail and any attempt to create on results in a fee simple.

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3
Q

Defeasible Fees

A

fee simple estates that can be terminated upon the happening of a stated event.

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4
Q

Fee Simple Determinable

A

terminates upon the happening of a stated event and automatically reverts to the grantor. Created by durational language, “for so long as …while…during…or until.”

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5
Q

Fee simple subject to a condition subsequent

A

an estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event. (estate does not automatically terminate) Created by, “upon condition that, provided that, but if, and it it happens that.”

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6
Q

Fee simple subject to executory limitation:

A

estate that terminates upon the happening of a stated event and then passes to a third party rather than reverting to the grantor or giving the grantor a right to terminate, the third party has an executory interest.

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7
Q

Life Estate

A

usual life estate is measured by the life of the grantee. “To B after the life of A”

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8
Q

Life Estate Pur Autre Vie

A

A life estate measured by a life other than the grantees

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9
Q

Two general rules for life estate:

A

(1) Life tenant is entitled to: all ordinary uses and profits from the land
(2) The life tenant must not do anything to hurt the future interest holder.

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10
Q

Voluntary or affirmative waste:

A

This is overt conduct that causes willful destruction and a drop in value.

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11
Q

Life tenant MUST NOT consume or exploit natural resources on the property (such as timber, oil, or minerals), unless

A

PURGE
PU: Prior Use: Prior to the grant, the land was used for exploitation.
R: Repairs: The life tenant may consume natural resources for repairs and maintenance.
G: Grant: The LT may exploit if granted that right
E: Exploitation: This land is suitable only to exploit.

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12
Q

Permissive waste

A

Neglect- must maintain the premises in reasonably good repair.
LT obligated to:
1. Preserve the land and structures in a reasonable state of repair;
2. pay interest on mortgages
3. Pay ordinary taxes on the land and
4. Pay special assessments for public improvements of short duration.

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13
Q

Ameliorative Waste

A

The LT must not engage in acts that will enhance the property’s value unless all future interest holders know and consent.

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14
Q

Ameliorative Waste Rules Common law/ Modern Law

A

Common Law: was actionable at common law
Modern Law: LT may alter or even demolish existing buildings if:
1. MV of the future interests is not diminished; and either
2. The remaindermen do not object; or
3. A substantial and permanent change in the neighborhood condition has deprived the property in its current form of reasonable productivity or usefulness.

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15
Q

What is the life estate’s accompanying future interest?

A

If held by O, the grantor, it is called a reversion. If held by a third party, it is called a remainder.

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16
Q

The possibility of reverter:

A

accompanies only the:

1. Fee Simple determinable

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17
Q

The right of entry accompanies only:

A

subject to the condition subsequent

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18
Q

The reversion

A

the future interest that arises in a grantor who transfers an estate of a lesser quantum duration than she started with, other than a fee simple determinable or a fee simple subject to condition subsequent.

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19
Q

What are the future interests capable of creation in the grantor:

A
  1. Possibility of Reverter
  2. The right of entry
  3. The reversion
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20
Q

Future interests in transferees

A
  1. Vested Remainder
  2. Contingent remainder
  3. Executory interest
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21
Q

What is a remainder?

A

a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.

Remainder man always accompanies a preceding estate of known fixed duration. That preceding estate is usually a life estate or a term of years.

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22
Q

A remainder is vested if:

A

it is both created in an ascertained person and is not subject to any condition precedent.

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23
Q

A remainder is contingent if:

A

it is created in an unascertained person or is subject to a condition precedent, or both

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24
Q

What is a Contingent Remainder subject to a condition precedent?

A

A condition is precedent if it must be satisfied before the remainderman has a right to possession.

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25
When is a contingent remainder created in an unascertained person?
Remainder created in unborn or unascertained persons is contingent because until the remainderman is ascertained, no one is ready to take possession if the preceding estate ends.
26
The Rule of Destructibility at common Law:
At common law, a contingent remainder was destroyed if it was still contingent a the time the preceding estate ended.
27
The Rule of Destructibility at Modern Law:
The destructibility rule has been abolished. **Thus if B has not met the condition by the time of A’s death O or O’s heirs hold the estate subject to B’s springing executory interest.**
28
Does MD follow the rule of destructibility?
No, it has been abolished. Follows the Modern Law.
29
The rule in Shelly's Case at common law:
At common law, if the same instrument created a life estate in A and gave the remainder only to A’s heirs, the remainder was not recognized, and A took the life estate and the remainder.- The present and future interests merge giving A a fee simple.
30
The rule in Shelly's Case at Modern Law:
Rule has been virtually abolished. Thus when O conveys "To A for life, then to A's heirs" O has a life estate and A's yet unknown heirs have a contingent remainder. O has a reversion, since A could die without heirs.
31
Doctrine of Worthier Title
Doctrine is viable in most states. Applies when O who is alive, tries to create a future interest in his heirs. Ex: O who is alive, conveys, “To A for life, then to O’s heirs.” o If Doctrine did not apply: • A has a life estate • O’s heirs have a contingent remainder because O is still alive and a living person has no heirs. o If Doctrine does apply: • The contingent remainder in O’s heirs is void • A would have a life estate an O has a reversion.
32
What is an indefeasibly vested remainder?
The holder of this remainder is certain to acquire an estate in the future, with ____
33
What is a vested remainder subject to complete defeasance?(vested remainder subject to total divestment)
Vested remainder with strings attached... His taking is not subject to any condition precedent however, his right to possession could be cut short because of condition subsequent.
34
What is a vested remainder subject to open?
A remainder is vested in a group of takers, at least one of whom is qualified to take. **Each class member's share is subject to partial diminution because additional members can join.
35
What are the two executory interests?
1. Shifting executory interest: Always follows defeasible fee and cuts short someone other than grantor. 2. Springing executory interest: Ex: O conveys “To A if and when he marries. A is unmarried • A has a springing executory interest • O has a fee simple subject to A’s springing executory interest.
36
What is the Rule Against Perpetuities? (RAP)
Certain kinds of future interests are void if there is any possibility, however remote, that given interest may vest more than 21 years after the death of a measuring life.
37
Does MD apply RAP?
No, MD does not test on the RAP
38
What is the four-step technique for assessing potential RAP problems?
1. Classify the interest 2. What are the conditions precedent to the vesting of the future interest? 3. Find a measuring life 4. Will we know, with certainty, within 21 years of the death of our measuring life, if our future interest holder(s) can or cannot take?
39
Two bright line rules of common law RAP:
1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP. 2. Many shifting executory interests violate RAP. An executory interest with no limit on the time within which it must vest violates the RAP.
40
Charity to charity exception:
Rule does not apply to any disposition over from one charity to another
41
Wait and see or second look doctrine. (Reform of the RAP)
Under this majority reform effort, the validity of any suspect future interest is determined on the basis of the facts as they now exist at the end of the measuring life.
42
The Uniform Statutory Rule Against Perpetuities (USRAP)
codifies common law RAP and in addition provides alternative vesting periods
43
Both wait and see and USRAP reforms embrace
The Cy press doctrine: “as near as possible”  If a given disposition violates the rule, a court may reform it in a way that must closely match grantor’s intent while still complying with the RAP.
44
What are the three forms of concurrent ownership?
1. Joint tenancy 2. Tenancy by the entirety 3. Tenancy in common
45
What is a Joint tenancy?
Two or more own with right of survivorship In addition to the four unities, the grantor must clearly state the right of survivorship.
46
What are the four unities needed to create a Joint Tenancy?
``` T-TIP • Time (same time) • Title (same instrument) • Interest (identical interests) • Possession (same right of possession) ```
47
What is a Tenancy by the entirety
marital interest between 2 parties with right of survivorship
48
What is a Tenancy in Common
Two or more own with no right of survivorship. | o Interests are alienable, devisable, and inheritable.
49
In MD does the grantor need to use the magic words "right of survivorship" to create a JT?
No, the magic words are are not needed. "As Joint tenants is sufficient" as long as grantor had intentions of creating a JT.
50
Severance of a JT- what will sever it?
``` SPAM (1) Severance and Sale: A joint tenant can sell or transfer her interest during her lifetime but it will sever the JT. (2) Severance and Partition: o 3 Variations: (3) Severance and Mortgage: Minority and Majority View ```
51
What is the doctrine of equitable conversion?
equity regards as done what ought to be done.
52
3 Variations of Severance and Partition:
• Voluntary Agreement: peaceful way to end the relationship. • Partition in Kind: Court action for physical division of the property if in the best interest of all parties. (average works best) • Forced Sale: Court ordered sale if in the best interest of all the parties- land is sold and proceeds are split proportionally.
53
Severance and Mortgage Minority and Majority view as it applies to JT.
o One JT’s tenant’s execution of a mortgage r a lien on his or her share will sever the JT as to that now encumbered share in the minority of states who follow the title theory of mortgages o Majority: follow the lien theory of mortgages, whereby a JT execution of a mortgage on his or her interest will not sever the JT.
54
Does MD follow the title theory or the lien theory of mortgages?
MD follows the minority of states in it's application of the title theory of mortgages.
55
What are the four leasehold Estates
1. Tenancy for years 2. Periodic Tenancy 3. Tenancy at Will 4. Tenancy at Sufferance
56
What is a tenancy for years? and how is it terminated?
A tenancy that continues for a fixed period of time...writing is required if the lease is for more than one year. Termination: ends automatically
57
What is a Periodic Tenancy?
Continues for successive periods (ex. month to month) until terminated by proper notice by either party
58
Periodic Tenancy may be created by:
1. Express Agreement 2. Implication: Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals. or An oral term of years in violation of the SOF creates and implied periodic tenancy measured by the way rent is tendered 3. Operation of Law: hold- over tenant measured by the way rent is now tendered.
59
In common law, can the parties lengthen or shorten the notice provision for a periodic tenancy? What about MD?
Yes, because of freedom of contract. MD- parties may lengthen but not shorten the notice provisions.
60
What is a tenancy at will?
tenancy for no fixed duration | Ex: "To T for as long as L or T desires"
61
How may a tenancy at will be terminated?
Can be terminated at any time by either party but a reasonable demand to vacate is usually needed.
62
How much notice must be given to terminate a tenancy at will in MD?
1 month’s notice must be given to terminate tenancy at will.
63
Tenancy at Sufferance:
Created when T has wrongfully heldover past the expiration of the lease.
64
Tenancy at sufferance lasts only until L either:
1. evicts T or | 2. elects to hold T to a new tenancy
65
Generally, the terms and conditions of the expired tenancy govern the new one- what happens in a commercial lease and residential?
Commercial Tenants may be held to a new year-to-year tenancy if the original lease was for one year or more Residential Tenants are generally held to a month-to-month tenancy regardless of the original term.
66
What happens if landlord notifies tenant before the lease expires that occupancy after termination will be increased rent?
the tenant, by holding over, is held to have acquiesced to the new terms (even if the tenant actually objected to the new terms).
67
What are tenant's liability to third parties?
o T is responsible for keeping the premises in good repair | o T is liable for injuries sustained by 3rd parties T invited to the premises even where L promised to make repairs.
68
What is T’s duty to repair when the lease is silent on the point?
T must maintain the premises and make routine repairs other than those due to ordinary wear and tear. T must not commit waste
69
What is the MD rule for T's duty to repair when the lease is silent on the point?
In a residential lease it must specify each parties obligations as to repair of the premises.
70
What is the law of fixtures?
Fixture is a once movable chattel that, by virtue of its annexation to realty OBJECTIVELY shows the intent to permanently improve the realty.
71
MD Rule: Where a T commits waste in MD after being enjoined?
L is entitled to double damages
72
MD Rule: In a residential lease it must specify each parties...
obligations as to repair of the premises.
73
T’s duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease:
* At common law: T was liable for any loss of property, including loss due to force of nature. * Majority view: T is off the hook when the premises are destroyed without T’s fault (MD follows this rule)
74
What are landlord's options when T breaches the duty to pay rent and is in possession of the premises?
1. Evict through the courts or | 2. Continue the relationship and sue for rent due
75
What are landlord's options when T breaches this duty but is out of possession?
Landlord’s Options: SIR 1. Surrender 2. Ignore 3. Re-let
76
Majority Rule for re-letting
L must at least try to re-let the premises (reasonable good faith effort)
77
MD rule: for reletting the premises:
Residential leases: follows the majority rule | Commercial leases: No duty to mitigate
78
MD and Majority Rule (English Rule) for Landlord's duty to deliver possession:
requires that L put T in actual possession of the premises. Thus, if at the start of T’s lease a prior holdover T is still in possession, L has breached and the new T gets damages.
79
Minority Rule (American Rule) for Landlord's duty to deliver possession:
L need only give T legal possession, not actual possession.
80
What is the duty of Implied covenant of quiet enjoyment
T has the right to quiet use and enjoyment of the premises without interference from L. **Applies to both residential and commercial leases
81
What is breach by actual wrongful eviction?
This occurs when L wrongfully evicts T or excludes T from premises- L has inferred with the T quiet enjoyment
82
What is breach by constructive eviction?
Elements of constructive eviction- SING  S &I: Substantial Interference:  N: Notice- T must notify L of the problem and L must fail to fix the problem.  G: Goodbye/Get out: T must vacate within a reasonable time after L fails to correct the problem. T MUST LEAVE!
83
The Implied Warranty of Habitability (IWH)
Applies only in RESIDENTIAL LEASES! • Standard: premises must be fit for basic dwelling- bare living necessities must be met o IWH is NON-WAIVABLE
84
MD rule for Implied warranty of habitability.
• MD Rule: No IWH it is instead referenced as L’s duty in residential leases to eliminate serious defects.
85
What are T’s entitlements when IWH is breached?
MR^3: Move, Repair, Reduce, Remain  M: Move: Move out and end the lease (but T does not have to)  R: Repair and deduct: allowable by statute in a growing number of jurisdictions. T may make the reasonable repairs and deduct their cost from future rent.  R: Reduce Rent: or withhold all rent until the court determines fair rental value.  R: Remain in Possession: pay rent and affirmatively seek money damages.
86
In MD, for a Implied Warranty of Habitability breach that must the tenant do with surplus rent?
MD Rule: T must place rent in an escrow action of rent escrow.
87
What is an assignment?
When T transfers all of his or her interest | o Creates privity of estate between assignee and L
88
What is a Sublease
When T transfers part of his or her interest | o Neither privity of estate or privity of K between T2 and L- they share no nexus.
89
Exceptions to The common law of caveat lessee
When T learns of these exceptions to the harsh common law he or she CLAPS: • C: Common areas: Even in tort, L must maintain all common areas (hallways and stairwells) • L: Latent defects rule: L must warn T of hidden defects that L knows about or should know.  Merely a duty to warn NOT REPAIR! – Tested • A: Assumption of repairs: A Landlord who makes repairs negligently is liable  L who voluntarily makes repairs must make them completely and not negligently. • P: Public use rule: L who leases public space (such as a convention hall or museum) and who should know, because of the notice of defects and the length of the lease that T will not repair, is liable for any defects on the premises. • S: Short term lease of furnished dwelling: L is liable for any defect on site

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