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Flashcards in Property Deck (94):

Fee simple absolute

Absolute ownership of potentially infinite duration; freely alienable


FS determinable

limited by specific durational language; alienable; grantor retains possibility of reverter


FS subject to condition subsequent

limited by specific conditional language; alienable; grantor must specifically retain right to re-enter


FS subject to executory interest

limited by specific durational/conditional language; title passes to third party who holds executory interest


Life estate

present possessory estate fully transferable during measured life


Rights of life tenant

right of possession, collect rents/profits, lease/sell/mortgage, must pay taxes on income or rental value of land and interest on mortgage; duty to not commit waste

no obligation to insure land; not responsible for damage caused by third party tortfeasor


Affirmative waste

overt conduct causes a decrease in property value


Permissive waste

tenant permits the premises to deteriorate through neglect, failure to preserve or failure to reasonably protect the property


Ameliorative waste

change in use of property increases its value; life tenant may alter structures on property when substantial and permanent change in neighborhood makes it necessary in order to continue reasonable use of property


Tenancy in Common

2 or more grantees with unity of possession; undivided interest with unrestricted right to possess the whole; interest freely devisable/transferable


Joint tenancy

Requires express language creating JT; right of survivorship; alienable (not devisable/descendible); four unities


Four unities

Equal right to possess the whole; with identical equal interests; created at the same time; by the same title


Severance of JT

Sale: severs JT as to seller but not JT of non-transferors

Mortgage: severs JT under title theory; not lien theory (sever after foreclosure); intermediate title state (severance on default)

Judicial lien: does not sever JT; levy and sale will sever JT


Tenancy by the entirety

JT between married persons with right of survivorship; neither party can alienate or encumber property without consent of other


Rights of co-tenants

Rent: no need to pay rent to other co-tenants (unless ouster)

3rd party rent: liable to other co-tenants

Operating expenses (taxes, mortgage interests): can collect contribution from other co-T

Repairs and improvements: can't collect (unless accounting/partition action)



TC/JT has right to unilaterally partition property; partition in kind is physical division; partition by sale (distribute proceeds)



held by grantor who transfers LE without conveying remaining future interest to third party


Vested remainder

not subject to conditions precedent; ascertainable grantee


Contingent remainder

subject to condition precedent or unascertainable grantee


Rule of convenience

absent a closing date, the rule of convenience closes the class when any member of the class becomes entitled to immediate possession of the property


Rule in Shelley's case

destroys remainders in grantee's heirs


Doctrine of Worthier title

destroys reminders in grantor's heirs


Shifting executory interest

cuts short a prior estate, shifts from one grantee to another upon happening of a condition


Springing executory interest

divests grantor's interest, or fills a gap in possession in which estate reverts back to grantor



follows an estate of fixed duration


Vested remainder subject to complete

the occurrence of a condition subsequent will completely divest the remainder interest ("to B for life, then to C; but if C has no children then to D")


Common violations of RAP

(1) survival beyond age 21; (2) fertile octogenarian; (3) unborn spouse; (4) defeasible fee followed by executory interest


Tenancy for years

any fixed period of time; express agreement; automatically terminates


Periodic tenancy

repetitive, ongoing estate by set periods of time with no predetermined termination date; automatically renews unless valid termination; created by express agreement, implication (no mention of duration), or operation of law (holdover T)


Periodic tenancy- termination notice

must be given before last period begins


Tenancy at will

no specific term; continues until terminated by L or T; express agreement or implication


Tenancy at sufferenace

T wrongfully remains in possession after the expiration of a lease; bound by terms of lease before expiration; lasts until T vacates, L evicts T, L elects to hold T to periodic tenancy


Duty to repair

Non-residential: T liable for all damages, unless L caused damage; but if structural damage and not caused by T, then L must repair

Residential: L liable for repairs except damages caused by T, but T must notify L


Duties of tenant

(1) pay rent unless premises destroyed or material breach; (2) avoid waste; (3) repair (non-residential leases


Landlord's remedy for tenant's breach

Failure to pay rent --> sue for damages or evict

Abandonment --> retake premises, but must mitigate by re-renting

Anticipatory repudiation --> sue for rent as it comes due, but not for future rent


Warranty of habitability

residential lease only; LL must maintain property such that it is reasonably suited for residential use (health/safety); failure to comply with housing codes = breach; cannot be waived


Breach of warranty of habitablity

T must notify L of defect and give reasonable time to repair AND T may choose to (1) refuse to pay rent; (2) remedy defect and offset cost against rent; (3) remain in possession, pay rent, seek damages


Covenant of quiet enjoyment

T has right to right to quiet use and enjoyment of premises without interference from LL; LL not liable for acts of other tenants, but has duty to take action against T's nuisance-like behavior and control common areas; breach = constructive eviction


Constructive eviction

(1) LL substantially interferes with T's use and enjoyment by breaching a duty to T; (2) T gives notice, LL fails to respond; (3) T must vacate premises within reasonable amount of time after LL fails to fix problem



Complete transfer for remaining lease term

T2 liable to LL for rent/covenants running with lease (privity of estate); T1 and T2 (privity of K); T1 still liable to LL (privity of K unless novation)



Transfer for less than entire duration
T2 not liable for rent/covenants in lease to LL (no privity of estate or K) but liable to T1 (privity of K and estate); can enforce covenants made by original lessee in sublease, but not covenants made by LL; T1 and LL (privity of K and estate)


Landlord assignment

L can assign lease rights to third party (e.g., part of transfer of ownership) but L remains liable to T for all covenants in lease; T must pay rent to LL2 and obey lease covenant; LL2 must perform lease covenants


Prohibition on assignment and subletting

Can generally still do it, but LL can terminate lease for breach of covenant and recover damages


Landlord's permission for assignment/sublet

Can withhold permission on commercially reasonable grounds; traditional rule is at LL's discretion



taking of land for public use/it is unfit for use; If partial condemnation, T must continue to pay rent, but can recover compensation for condemned portion; if complete condemnation, release from rent obligation and entitled to compensation for taking


Adverse possession

(1) continuous (seasonal use okay, tacking allowed if there's privity and no gaps); (2) actual, open and notorious (true owner would be aware of claim); (3) hostile (without owner's permission and with intent to claim land against others; (4) exclusive (cannot be shared with true owner, 2 people can AP and be TIC)

Note: does not run against future interest holders that exist at time AP begins, but applies to future interests created after AP begins


Land sale contract (statute of frauds)

(1) in writing; (2) signed by party to be charged; (3) contain essential terms (parties, property description, terms of price and payment)

Exceptions: (1) full or partial payment; (2) possession by purchaser; (3) substantial improvement by purchaser


Marketable title

Free from defects/unreasonable risk of litigation upon closing; must give sufficient time to cure dfect

Defects include: (1) unquieted title; (2) future interest holders who have not agreed to transfer; (3) private encumbrance; (4) violation of zoning ordinance; (5) significant physical defect (i.e., encroachment on land that's incurable)


Time of essence

Not enforced unless part of K, but party failing to perform on closing is in breach (liable for damages) but recession is not usually allowed if party can still perform within reasonable time


Implied warranty of fitness

only for new homes; seller asserts he used adequate materials and good workmanship; covers latent construction defects (not readily observable); buyer has duty to inspect for patent defects


Duty to discloser defects (all homes)

Duty to discloser all known material (substantially affect value of residence) physical defects to buyer; not readily observable or known to buyer


Equitable conversion

Seller retains legal title to real property during pendency of land sales K, equitable title passes to buyer;

In interm: buyer bears risk of loss if land is destroyed; judgements not enforceable against seller; seller does not have duty to carry insurance, but if seller has insurance must give buyer credit against purchase price from insurance proceeds in event of loss


Mortgagor's liability

Unless lender agrees to release mortgagor from liability, mortgagor remains personally liable after transfer of property; if transferee assumes mortgage, mortgagor becomes secondarily liable as surety


Transferee-mortgagor liability

If transferee assume mortgage (can be oral), transferee becomes personally liable to lender; if transferee take title "subject to" mortgage, not personally liable


Equity of redemption

After default on obligation, prior to foreclosure sale, mortgagor may regain clear title to property under doctrine of equity of redemption by paying full amount of outstanding debt


Deed in lieu of foreclosure

Mortgagor may convey all interest in property to mortgagee; mortgagee can take immediate possession of property without further legal formalities


Clogging equity of redemption

May waive right to redeem after mortgage is executed in exchange for consideration



A person who pays off another person's mortgage obligation may become the owner of the obligation and mortgage to extent necessary to prevent unjust enrichment

Appropriate when payor is under legal duty to pay; does so to protect his own interests; or on account of misrepresentation, fraud, mistake, duress


Intent to transfer

At time of transfer, grantor must intend to make present transfer of property interest to grantee; intent is usually manifested by delivery of deed

Rebuttable presumption of delivery/intent: physical transfer of deed, drafts and recording of deed


Transfer of deed (grantor/grantee)

Retention of deed by grantor: intention to transfer not presumed

Transfer to grantee: presumed intent


Valid deed

Identified parties; grantor's signature; words of transfer; reasonably definite property description


Notice recording

Need only purchase without notice of prior interest to prevail; must record to prevail over subsequent purchasers


Race recording

Purchaser who records first prevails


Race-notice recording

Subsequent purchaser must take without notice of prior interest and be first to record


Actual notice

actual, personal knowledge of prior interest


Inquiry notice

if reasonable investigation would disclose prior claims


Constructive notice

properly recorded and appears in chain of title


Estoppel by deed

a grantor who conveys an interest by warranty deed before actually owning it is estopped from later denying the effectiveness of deed; but subsequent purchaser from same grant who takes without notice can obtain good title in notice/race-notice jurisdictions


General warranty deed

(1) seisein (grantor owns land as described in deed); (2) right to convey (grantor has right to transfer title); (3) against encumbrances (no undeclared encumbrances against land); (4) quiet enjoyment (grantee not disturbed in possession by third party claim); (5) warranty (grantor will defend grantee against third party claims); (6) further assurances (grantor will do whatever future acts reasonably necessary to pass title if later determined title is imperfect)


Special warranty deed

same covenants of title as general warranty deed, but only warrants against defects arising during time grantor has title


Quitclaim deed

No covenants of title



Structures built on real property and items incorporated into structure become part of realty, but can be removed if: seller reserves right to remove fixture upon sale K; leased property can be restored to former condition without damage in reasonable time


Restraint on alienation

Restriction on transferring property is generally void as against public policy; a restraint that is limited in time and purpose may be valid


Express easement

affirmatively created by parties in writing that satisfies SOF; scope defined by terms, or what is reasonable if terms are ambiguous; can thwart change in scope that conflicts with terms of easement


Easement by necessity

(1) property is virtually useless without benefit of easement; (2) both dominant/servient estates must be under common ownership in past; (3) necessity arose when estate was severed

Ends when necessity ends


Easement by implication

(1) easement previously used on servient estate by earlier owner; (2) prior use was continuous, apparent and reasonably necessary to dominant estate's use/enjoyment; (3) estates were once under common ownership

Scope: determined by prior use
Change: if changes are reasonably foreseeable at time of conveyance


Easement by prescription

continuous, actual, open and notorious, hostile use

Scope: extent and nature of adverse use
Change: reasonableness standard in light of purpose of easement


Easement by estoppel

good faith, reasonable, detrimental reliance on permission by servient estate holder, issued to prevent unjust enrichment


Easement appurtenant

Tied to the land; benefits of easement correspond directly to use and enjoyment of possessor of dominant estate; benefit transfer automatically with transfer of dominant estate; burden transfers automatically with transfer of servient


Termination of easement

(1) release (writing that satisfies SOF); (2) merger (when owner of easement acquires servient estate-does not apply if owner acquires less than fee title); (3) severance (attempt to convey appurtenant easement separate from land); (4) abandonment (affirmative act + clear intent); (5) Destruction; (6) sale to bona fide purchaser (if easement was not recorded and purchaser has no notice)



(1) writing (comply with SOF); (2) intent (rights/duties run with land); (3) touch/concern; (4) notice (burden only, constructive or actual); (5) horizontal privity (burden only); (6) vertical privity (need entire interest for burden, only partial interest for benefit)


Equitable servitude

(1) writing; (2) intent for restriction to be enforceable by and against successors; (3) touch and concern; (4) person against whom the servitude is to be enforced must have notice (actual, record or inquiry)


Implied reciprocal servitudes

(1) intent to create servitude on all plots (common scheme); (2) negative servitude (promise to refrain from doing something); (3) notice (person against whom enforcement is sought must have actual, record or inquiry notice)


Change circumstances

If a restriction on property no longer makes sense to enforce due to drastic changes in surrounding area, the restriction will not be enforced



If an owner can demonstrate that a particular zoning ordinance exacts a unique hardship, then may be able to request a variance if not contrary to public welfare


Shelter rule

Grantors who are protected by the recording act protect their grantees who would otherwise be unprotected; exception: purchaser who is not a bona fide purchaser


Transfer of deed to grantor/grantee agent

Grantor's agent: treated as if grantor retained deed even if grantor instructed agent to deliver need on happening of some event

Grantee's agent: treated as transfer to grantee

To independent third party: not delivery if grantor keeps absolute right to recover deed, but if not, treated like future property interest if grantor intended to make present gift of property interest


Transfer of deed to independent third party

not delivery if grantor keeps absolute right to recover deed

treated like future property interest if grantor intended to make present gift of property interest

if conditioned on death of grantor, depends on if intent is to make present gift (creates future interest) or if only effective on grantor's death (testamentary transfer, need to comply with statute of wills)


Transfer of real property

Grantor must demonstrate the intent to make a present transfer of the interest and grantee must accept the interest. Must be evidenced in writing (valid deed)


Remedies for unmarketable title

may rescind and recover out of pocket costs; sue for breach; breach action for specific performance with abatement of purchase price

must wait until closing


Breach of land sale K

Damages: expectation damages, if breach resulted from inability to deliver marketable title but seller acted in good faith then buyer's damages are limited to buyer's out of pocket expenses (half of the jurisdictions); can also recover incidental damages

Specific performance


Easement in gross

Granted to benefit a particular person (as opposed to the land);

Traditionally could not be transferred, most courts now allow transfer if it is for commercial use or if parties intended it to be transferrable



right held by one person to make specific, limited use of land owned by another


Real covenant and equitable servitude

Restrict the right to use land; real covenant -> damages; equitable servitude -> injunction