Property Flashcards
(95 cards)
1
Q
10 Present Possessory Estates (Freehold Estates)
[present and future interests]
A
- Fee Simple Absolute
- Fee Tail
- Fee Simple Determinable
- Fee Simple Subject to a Condition Subsequent
- Fee Simple Subject to an Executory Limitation
- Life Estate
- Life Estate Determinable
- Life Estate Subject to a Condition Subsequent
- Life Estate Subject to an Executory Limitation
- Lease (Non-Freehold)
2
Q
Future interests created in Fee Simple Absolute
[present and future interests]
A
Future interests in grantor: none
Future interests in grantee: none
3
Q
Future interests created in Fee Tail
[present and future interests]
A
Future interests in grantor: none
Future interests in grantee: none
4
Q
Future interests created in Fee Simple Determinable
[present and future interests]
A
Future interests in grantor: Possibility of Reverter
Future interests in grantee: none
5
Q
Future interests created in Fee Simple Subject to a Condition Subsequent
[present and future interests]
A
Future interests in grantor: Right of Entry (i.e., Power of Termination)
Future interests in grantee: none
6
Q
Future interests created in Fee Simple Subject to an Executory Limitation
[present and future interests]
A
Future interests in grantor: none
Future interests in grantee: Executory Interest
7
Q
Future interests created in Life Estate
[present and future interests]
A
Future interests in grantor: Reversion
Future interests in grantee: Remainder
8
Q
Future interests created in Life Estate Determinable
[present and future interests]
A
Future interests in grantor: Possibility of Reverter/Reversion
Future interests in grantee: none
9
Q
Future interests created in Life Estate Subject to a condition Subsequent
[present and future interests]
A
Future interests in grantor: Right of Entry/Reversion
Future interests in grantee: none
10
Q
Future interests created in Life Estate Subject to an Executory Limitation
[present and future interests]
A
Future interests in grantor: none
Future interests in grantee: Executory Interest/Remainder
11
Q
Future interests created in Lease (non-freehold)
[present and future interests]
A
Future interests in grantor: Reversion
Future interests in grantee: Remainder
12
Q
Alienability
[present and future interests]
A
All present possessory interests and future interests are transferrable inter vivos and at death (testate and intestate), except for rights of entry, which are not transferable inter vivos in a majority of jurisdictions. In addition, all present and future interests are subject to the claims of creditors.
13
Q
Rules of Construction
[present and future interests]
A
- No new (or hybrid) estates will be recognized.
- A deed conveys the grantor’s entire estate, unless expressly limited.
- A grantor may not convey a greater estate than he or she possesses.
- If a conveyance is ambiguous and may reasonably be construed as more than one estate, there is a presumption in favor of the larger possessory estate and a presumption against finding a future interest
- Read and analyze the interests in a conveyance in sequence—from left to right
14
Q
If a conveyance could be construed as both a Fee Simple Absolute or Defeasible Fee Simple, what is the preferred estate?
[present and future interests]
A
Fee Simple Absolute
15
Q
If a conveyance could be construed as both a Fee Simple Absolute or Life Estate, what is the preferred estate?
[present and future interests]
A
Fee Simple Absolute
16
Q
If a conveyance could be construed as both a Fee Simple Determinable or Fee Simple Subject to a Condition Subsequent, what is the preferred estate?
[present and future interests]
A
Fee Simple Subject to a Condition Subsequent
17
Q
If a conveyance could be construed as both a Contingent Remainder or Vested Remainder Subject to Total Divestment, what is the preferred estate?
[present and future interests]
A
Vested Remainder Subject to Total Divestment
18
Q
Present Interest Flowchart
[present and future interests]
A
- Does the present interest—by its terms—last indefinitely? If so, it’s a FSA.
- Does it potentially last forever but may be cut short by an event? If so, it’s a defeasible fee simple (FSD, FSSCS, or FSSEL).
- Does the present interest end at someone’s death? If so, it’s a life estate.
- Is the present interest measured by a calendar period (e.g., one year)? If so, it’s a lease.
19
Q
Required language to create Fee Simple Determinable
[present and future interests]
A
“Durational” language, such as:
- So long as (or as long as)
- During
- While
- Unless
- Until
20
Q
Required language to create Fee Simple Subject to a Condition Subsequent
[present and future interests]
A
“Conditional” language, such as - But if - On the condition that - Provided that - If it happens that - If, however (or however, if) PLUS express re-entry/termination language
21
Q
Required language to create Fee Simple Subject to an Executory Limitation
[present and future interests]
A
Durational language OR conditional language (any language sufficient to create Fee Simple Determinable or Fee Simple Subject to a Condition Subsequent)
22
Q
Future Interests in a Grantee—Flowchart
[present and future interests]
A
- Does the future interest follow immediately after the natural termination of a life estate or a lease (i.e., a tenancy for years)? If so, it is a remainder.
- If not, is it an executory interest (i.e., a future interest that cuts short a fee simple subject to an executory limitation, life estate subject to an executory limitation, or vested remainder subject to total divestment).
- If the defeasing event causes the property to pass from the original grantor to a grantee, it is a springing executory interest.
- If the defeasing event causes the property to pass from one grantee to another grantee, it is a shifting executory interest.
23
Q
Duties/Rights of a Life Tenant
[present and future interests]
A
LT is entitled to all ordinary uses and profits from land (e.g. LT may live on the property and continue to operate a business or farm on the property)
But LT must not commit WASTE. Remaindermen (and holders of reversions) may sue for waste; holders of executory interests may not. Vested remaindermen may obtain equitable relief and/or damages; contingent remaindermen may only obtain equitable relief. There are three types of waste.
- Voluntary Waste
- Permissive Waste
- Ameliorative Waste
24
Q
Voluntary waste
[present and future interests]
A
“Voluntary Waste” is affirmative or overt conduct that causes damage to the property
- Examples: breaking a window playing baseball; hitting the garage wall with a vehicle
—
It is also considered voluntary waste for a life tenant to consume or exploit natural resources (oil, gas, coal, timber, etc.) on the property, except in the following situations:
1. Prior Use Doctrine (subject to the Open Mines Rule)
- If the prior use exploited natural resources (e.g., operated two coal mines), the LT may continue to operate these two mines but may not open any new mines
2. Resources needed to repair property (e.g., timber for a log home)
3. Specific grant in deed or will for LT to exploit resources
4. Exploitation of resources is only suitable use of property (e.g., life estate in rock quarry)
25
Permissive waste
[present and future interests]
“Permissive Waste” is neglect; LT has duty to make ordinary repairs, but not capital improvements
---
In addition, LT is required to pay ordinary expenses (or otherwise will be liable for waste), including:
1. Mortgage interest payments
2. Annual real estate taxes
3. Home Owner Association (HOA) dues
---
But NOT: mortgage principal or property insurance (the remainderman must pay these)
---
BUT: LT’s obligation to make repairs and to pay taxes and mortgage interest is limited to amount of income received from the land or, if none, the land’s fair rental value
26
Ameliorative waste
[present and future interests]
“Ameliorative Waste” is a change to the property that increases its value
Rule: An action may NOT be brought for ameliorative waste if the remainderman does not timely object or the neighborhood has changed so much that the prior use deprived the property of reasonable value.
27
Remainder Flowchart
[present and future interests]
1. Is the remainderman known and are all conditions for taking satisfied? If so, it is an indefeasibly vested remainder.
2. Is the remainder given to an open class in which at least one class member has satisfied all conditions of taking? If so, it is a vested remainder subject to open.
3. Is the remainderman known but the taking subject to a condition subsequent (i.e., one that follows the grant to the remainderman and is separated from the grant by punctuation)? If so, it is a vested remainder subject to total divestment.
4. Is the (a) remainder subject to a condition precedent that must be satisfied prior to vesting; (b) taker not in existence; or (c) exact taker unknown? If so, it is a contingent remainder.
28
The Rule Against Perpetuities (“RAP”)
[rule against perpetuities]
Common Law: An interest is void if there is any possibility, however remote, that the interest may vest more than 21 years (plus a gestation period) after some life in being at the “creation” of the interest.
1. For wills, an interest is created at the testator’s death.
- On the UBE, a grantor transfers property by will if she “devises” the property.
2. For deeds, an interest is created at the time the deed is delivered.
- On the UBE, a grantor transfers property by deed (inter vivos) if she “conveys” the property.
3. For revocable trusts, an interest is created at the settlor’s death, unless—before death—the settlor amended the trust making it irrevocable.
4. For irrevocable trusts, an interest is created on the date the trust is created.
29
Common law RAP flowchart
[rule against perpetuities]
B. Common Law (MBE) RAP Flowchart
1. QUESTION ONE: Is this a RAP question? There will be one or two RAP questions on the MBE. In most of the MBE RAP questions, the question will state: “The common law Rule Against Perpetuities is unmodified in the jurisdiction” (or similar language). But beware: this statement is often provided when there are no RAP issues in the question.
2. QUESTION TWO: Are any of the interests involved in the question subject to RAP? Only five interests are subject to RAP:
- Contingent Remainders
- Vested Remainders Subject to Open
- Executory Interests
- Option Contracts (and Rights of First Refusal) to purchase real property (except options to extent the lease or purchase the property exercisable by a tenant during the leasehold)
- Powers of Appointment (unlikely to be tested on MBE)
3. QUESTION THREE: If there is an interest subject to RAP, what condition must be met for that interest to vest?
- Executory Interests vest in possessor when the event that terminates the prior estate occurs.
- Contingent Remainders vest when they become remainders or vest in possession, whichever is earlier.
- Vested Remainders Subject to Open vest when all of the class members have indefeasibly vested interests.
- Option Contracts vest when the option to purchase becomes exercisable.
4. QUESTION FOUR: Whose life is most relevant to the condition? If you are unable to determine the measuring life, assume all persons alive at the time of conveyance will die within one year of the conveyance. Tip: members of open classes (e.g., children with living parents) and widows and heirs of a living person cannot be measuring lives.
5. QUESTION FIVE: Is the interest sure to vest or not vest within 21 years (plus a gestation period) of the death of the measuring life?
30
Uniform Statutory RAP Flowchart
[rule against perpetuities]
1. STEP ONE: If an interest is valid under common law RAP, it is automatically valid under USRAP.
2. STEP TWO: If an interest is invalid ab initio under common law RAP, USRAP adopts a wait-and-see approach to such interest and it will become invalid only if it actually fails to vest within 90 years of its date of creation.
- Under USRAP, courts also have cy pres power (i.e., if a conveyance violates RAP, the court may reform the conveyance to comply with RAP)
- Most jurisdictions have adopted USRAP (or similar rules).
- Option contracts and rights of first refusal are exempt from USRAP.
31
Concurrent Estates: general rule
[concurrent estates]
Only one present possessory interest may exist at a time, but multiple people may share that interest.
32
3 types of concurrent ownership
[concurrent estates]
The law recognizes three types of concurrent ownership:
1. Tenants in Common
2. Joint Tenants with Right of Survivorship (JTROS)
3. Tenants by the Entirety (Minority of States)
33
Tenancy in common
[concurrent estates]
A tenancy in common is created by any language that does not create a joint tenancy with right of survivorship; if language is ambiguous, the law favors a tenancy in common (unless the conveyance is to a married couple in a tenancy by the entirety state).
If two or more people inherit property from a decedent who dies intestate they own as Tenants in Common.
O transfers Blackacre “to my sisters, A and B.” A and B own Blackacre as Tenants in Common.
34
Tenancy in common - unity of possession
[concurrent estates]
A tenancy in common is the most favored concurrent estate at law. Each co-tenant owns an individual part with the right to possess 100% of the property (i.e., unity of possession), regardless of that tenant’s proportional share or contribution to the purchase price.
35
Tenancy in common - equal shares of ownership interest
[concurrent estates]
Equal shares are not necessary for a tenancy in common. For example, one tenant may hold a 75% interest and the other a 25% interest. However, unless the grant clearly specifies unequal shares, the law presumes equal shares.
36
Tenancy in common - transferability of ownership interest
[concurrent estates]
Each tenant may transfer his or her interest during life and at death because there are no survivorship rights.
Each tenant’s creditors may attach his or her portion and force a partition and sale.
37
Joint Tenants with Right of Survivorship
[concurrent estates]
Creation (and continuance) of a JTROS requires the four unities (“TTIP”):
1. Unity of Time (interests were acquired at the same time)
2. Unity of Title (interests were acquired by the same title (e.g., deed or will)
3. Unity of Interest (each tenant holds the same proportional interest—e.g., 50/50 or 1/3-1/3-1/3)
4. Unity of Possession (each tenant has the right to possess 100% of the property)
38
Conversion of ownership interest into a JTROS at common law
[concurrent estates]
At common law, if an owner of land wished to convert individually-owned land into a JTROS with another person, the owner was required to use a strawperson so as to establish the four unities; by statute in most states, an owner may convert individually-owned land into a JTROS with a direct conveyance (i.e., no strawperson required).
39
JTROS precision of language
[concurrent estates]
Joint tenancy language must be precise. In some states, it must include “survivorship” language. Joint tenancies are not favored; thus, the granting language must be very clear.
1. “to A and B, jointly (or as joint owners)” creates a Tenancy in Common
2. “to A and B, concurrently and together” creates a Tenancy in Common
3. “to A and B, as joint tenants with a right of survivorship” creates a Joint Tenancy with Right of Survivorship
4. If the MBE refers to co-tenants as “joint tenants” with no survivorship language, the co-tenants own the property as Joint Tenants with Right of Survivorship
40
Effect of one owner dying in JTROS
[concurrent estates]
Joint tenants own by the whole and by part with right of survivorship. When one tenant dies, that tenant’s share passes automatically to the surviving joint tenants, assuming there has been no severance event.
41
How a JTROS is severed
[concurrent estates]
A JTROS is severed by:
1. An inter vivos transfer by one joint tenant (but only that tenant’s share is severed)
2. A valid contract of sale by one joint tenant
3. A voluntary or judicial partition. Tenants in common and joint tenants have a right to a partition (and an accounting). If a judicial partition is sought, the law favors a partition in-kind over a forced sale, but only if an in-kind partition is fair to all parties.
4. A creditor’s sale, including a foreclosure sale by mortgage or lien creditor.
5. Intentional and felonious homicide of one joint tenant by another joint tenant.
6. Simultaneous deaths of co-tenants (by statute).
42
Things that do not severe a JTROS
[concurrent estates]
A JTROS is NOT severed by:
1. A mortgage by one joint tenant, except in a title theory state (minority view)
2. A lease by one co-tenant (a co-tenant has the right to lease her interest in the property, even over the objection of the other co-tenants; however, a lease by one joint tenant is not considered a severance event)
3. A creditor’s lien against one joint tenant’s share
4. The execution of a will by one joint tenant devising her interest in the joint tenancy
43
Tenants by the Entirety (Minority of States)
[concurrent estates]
A tenancy by the entirety requires the four unities (TTIP) of a JTROS, plus one additional unity: unity of person. To satisfy unity of person, the co-tenants must be a validly married couple. In most tenancy by the entirety states, the estate is presumed unless the conveyance clearly provides otherwise. Tenants by the entirety have rights of survivorship.
44
Mortgages on an individual spouse's share of a tenancy by the entirety
[concurrent estates]
An individual spouse may not convey or mortgage his or her share of a tenancy by the entirety. Such conveyances are void.
45
Creditors of one spouse attaching that spouse's portion of a tenancy by the entirety
[concurrent estates]
The creditors of one spouse cannot attach that spouse’s portion of the tenancy or sever the tenancy, except for the Internal Revenue Service.
46
The only 4 things that sever a tenancy by the entirety
1. Divorce or annulment
2. Voluntary partition
3. Intentional and felonious homicide of one tenant by the other
4. Simultaneous deaths of co-tenants (by statute)
47
indefeasible interests
[what interest is involved? // freeholds - present possessory interests // barbri overview outline]
not subject to early termination
1. fee simple absolute ("to A and his heirs" or "to A")
2. life estate ("to A for life" or "to A for the life of B")
48
defeasible interests
[what interest is involved? // freeholds - present possessory interests // barbri overview outline]
allows a fee simple or life estate to be terminated if a stated event occurs
1. determinable ("for so long as," "until," "while," "during") - automatically reverts to the grantor
2. subject to condition subsequent ("but if," "upon condition that," "provided that") - subject to the grantor's right of entry, which must be exercised
3. subject to an executory interest ("to A for so long as...and if not...to B," "to A, but if...to B") - divests in favor of a third party
49
interests retained by the grantor
[what interest is involved? // freeholds - future possessory interests // barbri overview outline]
1. reversion - grantor transfers a shorter estate than she owns (grantor with a fee simple transfers a life estate)
2. possibility of reverty - grantor transfers a determinable estate
3. right of entry (power of termination) - reserved on the grant of an estate subject to a condition subsequent
50
Interests created in a transferree
[what interest is involved? // freeholds - future possessory interests // barbri overview outline]
1. executory interests - cut short the prior estate
2. remainders - possessory only on the natural termination of the prior estate (e.g., death of the life tenant)
- remainders are vested if made in an ascertained person and with no conditions precedent; otherwise are contingent
3. class gifts - remainders in a class are contingent if no member of the class yet exists, vested if all possible members exist, and vested subject to open if more members might come to exist
- under the rule of convenience, an open class closes when any member can demand possession
(NOTE: rule against perpetuities may apply)
51
rule against perpetuities generally
[what interest is involved? // freeholds - future possessory interests // barbri overview outline]
any future interest that is not certain to vest or fail within a life in being plus 21 years is void
52
rule against perpetuities application
[what interest is involved? // freeholds - future possessory interests // barbri overview outline]
1. applies to contingent remainders, executory interests, class gifts (even if vested remainders), options and rights of first refusal, and powers of appointment
2. does not apply to vested interests, grantors' reversionary interests, or gifts between charities
3. only the interest that violates the Rule is stricken (severed from the disposition)
53
cases that always violate the common law rule against perpetuities
[what interest is involved? // freeholds - future possessory interests // barbri overview outline]
1. executory interest following a defeasible fee - executory interest is stricken
2. gift to an open class conditioned on members surviving to an age beyond 21 - entire class gift stricken ("bad as to one, bad as to all")
3. remainder to A's children living at his widow's death ("unborn widow" problem) - contingent remainder is stricken
4. gift conditioned on an administrative contingency is stricken
5. options or rights of first refusal that extend to the holder's heirs and assigns are stricken
54
rule against perpetuties - fertile octogenarian
[what interest is involved? // freeholds - future possessory interests // barbri overview outline]
at common law, a woman is conclusively presumed capable of bearing children
55
departures from the common law rule against perpetuties
[what interest is involved? // freeholds - future possessory interests // barbri overview outline]
1. "wait and see" statutes - validity of interest determined by actual future events
2. uniform statutory rule against perpetutites - 90 year vesting period, "wait and see" approach
3. cy pres approach - invalid interests reformed to match grantor's interest
56
types of tenancies
[what interest is involved? // leasehold interests (landlord and tenant) // barbri overview outline]
1. tenancy for years - for a fixed period of time (e.g., 10 days, 10 years) - created expressly, ends automatically on its termination date (no notice)
2. periodic tenancy - for a fixed period that continues for succeeding periods (e.g., month to month) - created expressly or when a lease draws periodic rent payments, terminated on proper notice (appropriate time period)
3. tenancy at will - no stated duration, as long as parties desire - created expressly, terminated on proper notice
4. tenancy at sufferance (hold-over doctrine) - tenant remains in possession after tenancy expires - landlord may evict tenant or create a periodic tenancy by accepting rent
57
rights and duties of landlord and tenant
[what interest is involved? // leasehold interests (landlord and tenant) // barbri overview outline]
1. governed largely by the lease and tort law
2. tenant must pay rent and may not commit waste
3. landlord generally must repair, must deliver habitable premises, and may not interfere with tenant's possession
58
assignment of interests in leaseholds
[what interest is involved? // leasehold interests (landlord and tenant) // barbri overview outline]
both parties generally may assign their interests (transferring the entire term), and tenants may also sublease (retaining part of the term)
59
affirmative easement
[what interest is involved? // nonpossessory interests // barbri overview outline]
right to use someone else's land
60
negative easement
[what interest is involved? // nonpossessory interests // barbri overview outline]
right to prevent something on another's land
61
easement appurtenant
[what interest is involved? // nonpossessory interests // barbri overview outline]
involves two tracts of land
1. dominant parcel has the benefit, which runs to grantees
2. servient parcel has the burden, which runs to grantees with notice
62
easement in gross
[what interest is involved? // nonpossessory interests // barbri overview outline]
involves one tract of land
63
creation of easements
[what interest is involved? // nonpossessory interests // barbri overview outline]
1. express grant or reservation (statute of fraud applies) - an oral grant creates a license, which is not an interest in land
2. implication - by operation of law
- by use existing before tract was dived
- by necessity for a landlocked parcel
3. prescription - acquired through adverse, open and notorious, and continuous use for the statutory period
64
termination of easements
[what interest is involved? // nonpossessory interests // barbri overview outline]
can end by stated condition, unity of ownership between easement and servient estate, abandonment, estoppel, prescription, necessity, release, or condemnation
65
profits
[what interest is involved? // nonpossessory interests // barbri overview outline]
right to enter another's land to remove products of the soil
66
real covenants (run with the land at law)
[what interest is involved? // nonpossessory interests // barbri overview outline]
1. written promises to do or refrain from doing something on land, with a usual remedy of money damages
2. requirements for burden to run to later grantees: intent, notice, horizontal privity, vertical privity, touch and concern
3. requirements for benefit to run: intent, vertical privity, touch and concern
67
equitable servitudes
[what interest is involved? // nonpossessory interests // barbri overview outline]
1. covenants with equitable remedies (i.e., injunction, specific performance
2. implied from a common scheme for development if notice exists
3. requirements for burden to run: intent, notice, touch and concern
4. requirements for benefit to run: intent, touch and concern
5. equitable defenses apply (i.e., unclean hands, estoppel, acquiescence, changed neighborhood conditions)
68
land sale contracts
[how is the interest being acquired? // conveyance (statute of frauds applies - requires writing signed by grantor) // barbri overview outline]
1. statute of frauds exception - no writing is required if buyer has partially performed through possession, improvement, or payment
2. time for performance presumed not of the essence
3. marketable title - contracts contain an implied covenant that seller will deliver title free from an unreasonable risk of litigation at closing (i.e., when purchase price and deed exchanged)
69
deeds generally
[how is the interest being acquired? // conveyance (statute of frauds applies - requires writing signed by grantor) // barbri overview outline]
1. must evidence an intent to transfer land and adequately describe the land and parties
2. effective on delivery (i.e., words or conduct showing the grantor's intent to immediately pass title) and acceptance (often presumed)
70
types of deeds
[how is the interest being acquired? // conveyance (statute of frauds applies - requires writing signed by grantor) // barbri overview outline]
1. general warranty deed - covenants against any title defects created by the grantor or prior titleholders
2. special warranty deed - covenants against title defects created by the grantor
3. quitclaim deed - no covenants; transfers whatever interest grantor has
71
wills
[how is the interest being acquired? // conveyance (statute of frauds applies - requires writing signed by grantor) // barbri overview outline]
1. effective on the testator's death
2. if, at the testator's death, she no longer owns property that was specifically devised, that gift fails (i.e., is adeemed)
3. if, at the testator's death, the beneficiary has already died, his gift fails (i.e., lapses) or might pass to the beneficiary's descendants under an anti-lapse statute if he and the testator were related
72
adverse possession requirements
[how is the interest being acquired? // conveyance (statute of frauds applies - requires writing signed by grantor) // barbri overview outline]
possessor must show:
1. actual entry giving rise to exclusive possession that is
2. open and notorious
3. adverse/hostile (i.e., lacking the owner's permission), and
4. continuous throughout the statutory period for an ejectment action (e.g., 20 years)
73
adverse possession - disability
[how is the interest being acquired? // conveyance (statute of frauds applies - requires writing signed by grantor) // barbri overview outline]
the statute does not begin to run if the owner is under a disability to sue (e.g., incapacity) when the possession begins
74
what do all co-tenants share
[who will hold the interests? // concurrent interests // barbri overview outline]
the right to possession and enjoyment of the property
75
joint tenants
[who will hold the interests? // concurrent interests // barbri overview outline]
two or more co-tenants with RIGHTS OF SURVIVORSHIP (i.e. the dead co-tenant's share passes to the remaining co-tenants)
created expressly, severed by a tenant's sale or suit for partition
76
tenants by the entirety
[who will hold the interests? // concurrent interests // barbri overview outline]
two SPOUSES with rights of survivorship
created expressly or presumed in some states by a grant to spouses, severed by divorce
77
tenants in common
[who will hold the interests? // concurrent interests // barbri overview outline]
two or more co-tenants, no right of survivorship
created by the severance of the other tenancies
default co-tenancy created if nothing else was specified
78
protection for bona fide purchaser
[who will hold the interests? // competing interests - grantor transfers same land more than once // barbri overview outline]
recording acts protect a bona fide purchaser for value without actual, inquiry, or record notice of the prior conveyance ("BFP")
79
types of notice
[who will hold the interests? // competing interests - grantor transfers same land more than once // barbri overview outline]
1. actual notice - what the grantee actually knows
2. inquiry notice - what a reasonable inquiry would have revealed
3. record notice - what a search of the real property records would have revealed
80
types of recording acts
[who will hold the interests? // competing interests - grantor transfers same land more than once // barbri overview outline]
1. notice statutes - later BFP wins if earlier grant was not recorded
2. race-notice statute - later BFP wins only if she records before the earlier grantee records
3. race statutes - first to record wins; actual notice is irrelevant
81
theories of title
[is the land subject to a security interest? // mortgages (land is collateral for a debt) // barbri overview outline]
1. lien theory - mortgagee holds a security interest
2. title theory - mortgagee holds title until mortgage is satisfied
3. intermediate theory - mortgagee holds title only after default
82
if mortgagor transfers mortgaged land
[is the land subject to a security interest? // mortgages (land is collateral for a debt) // barbri overview outline]
1. grantee may agree to assume the mortgage and become primarily liable to pay the mortgage loan
2. grantee who does not assume the mortgage is not personally liable for the lona but may lose the land if the transferor defaults
83
foreclosure
[is the land subject to a security interest? // mortgages (land is collateral for a debt) // barbri overview outline]
1. after default, property may be sold to satisfy the debt
2. does not affect senior interests
3. terminates junior interests (junior interests are entitled to any surplus remaining after the foreclosing mortgage is satisfied)
4. the mortgagor may redeem the land by paying the amount due
84
deficiency after foreclosure
[is the land subject to a security interest? // mortgages (land is collateral for a debt) // barbri overview outline]
if there is a deficiency - mortgagee can sue mortgagor if foreclosure sale proceeds do not satisfy mortgage debt
85
deed of trust
[is the land subject to a security interest? // other security interests // barbri overview outline]
similar to a mortgage, but a third-party trustee forecloses
86
installment land contract
[is the land subject to a security interest? // other security interests // barbri overview outline]
seller retains the deed until buyer pays in full
87
absolute deed
[is the land subject to a security interest? // other security interests // barbri overview outline]
treated as an equitable mortgage when given for a debt
88
sale-leaseback
[is the land subject to a security interest? // other security interests // barbri overview outline]
court may determine this was a disguised mortgage
89
fixture - definition
[does the land have special characteristics? // fixtures // barbri overview outline]
fixtures are items so affixed to land that they become part of the realty
90
constructive annexation
[does the land have special characteristics? // fixtures // barbri overview outline]
items not physically attached to land are fixtures if they are so uniquely adapted to the real estate that it makes no sense to separate them (e.g., keys to doors)
91
common ownership cases
[does the land have special characteristics? // fixtures // barbri overview outline]
landowner brings chattel onto land
annexor's objective intent determines whether items are fixtures
92
divided ownership cases
[does the land have special characteristics? // fixtures // barbri overview outline]
landowner does not bring chattel onto land
item's owner can remove it only if this would not leave unrepaired damage to the premises
93
types of water sources
[does the land have special characteristics? // water // barbri overview outline]
1. watercourses - rivers, streams, lakes
2. groundwater - percolating water from wells
3. surface waters - rainfall, melting snow, seepage
94
zoning definition
[does the land have special characteristics? // zoning // barbri overview outline]
governmental regulations that restrict the use of land
existing zoning violations render title to land unmarketable
95
variance definition
[does the land have special characteristics? // zoning // barbri overview outline]
permission to depart from zoning restriction
