Property Definitions Flashcards
(107 cards)
1
Q
Four Unities Required for Joint Tenancy
A
PITT
- Possession
- Interest
- Title
- Time
2
Q
Tenancy in Common
A
Each co-tenant is the owner of an undivided interest in the whole. The only unity that is required is possession.
3
Q
Tenancy by The Entirety
A
Similar to joint tenancy except for created only between Husband and Wife.
4
Q
Present Interest
A
An interest that can be possessed immediately.
5
Q
Fee Simple Absolute
A
An estate which has the possibility of enduring forever with no limitations on inheritance.
Common law requires words of limitation (“and heirs”) to be a fee simple. Otherwise, it is a life estate.
Modern law does not require words of limitation.
6
Q
Fee Simple Defeasible
A
An estate, which has the potential of infinite duration but which the interest can be terminated on the happening of some event.
7
Q
Fee Simple Determinable
A
A present fee simple estate that is limited by specific durational language (i.e. unless, until, during, while,, so long as) such that it terminates automatically upon the happening of a stated condition and full ownership is returned to the grantor.
8
Q
Fee Simple Subject to Condition Subsequent
A
A present fee simple that is limited in duration by specific conditional language (upon condition that, but if, if it happens that, by the order of) and which will terminate at the grantor’s election only if the grantor affirmatively demonstrates intent to terminate (not automatic).
9
Q
Alienable
A
Capable of being conveyed.
10
Q
Devisable
A
Capable of being passed at death by will.
11
Q
Descendable
A
Capable of being passed at death to heirs.
12
Q
Fee Simple Subject to Executory Interest
A
A present fee simple that is limited in duration by specific conditional language or durational language such that it will terminate automatically upon the occurrence of the specified condition and title will pass to a third party (i.e. someone other than the grantor).
13
Q
Executory Interest
A
The future interest held by a third party.
14
Q
Life Estate
A
An estate for life that is not terminable at any fixed or comparable period of time, but cannot last longer than the life or lives of one or more person. It can also be absolute or defeasible (determinable, subject to a condition subsequent or subject to an executory interest).
15
Q
Life Estate pur autre
A
A life estate measured by the life of another.
16
Q
Fee Tail
A
A freehold estate that limits the estate to the grantee’s lineal descendants (direct blood line) by specific words of limitation (i.e. heirs of my body).
Most states do not recognize this and the result of attempting to create a fee tail is a fee simple absolute or life estate in the grantee with a fee simple remainder in the descendants.
17
Q
Seisin
A
Having both possession and title in real property. The possession of an estate in freehold.
18
Q
Covenant
A
A promise to do something. If breach, there is a right to an action for damages but the grantee still owns the land.
19
Q
Future Interest
A
An estate that does not entitle the owner to possession immediately. An interest capable of becoming a present possessory interest at some point in the future.
20
Q
Three Future Interests in the Grantor
A
- Reversion
- Possibility of Reverter
- Right of Entry
21
Q
Reversion
A
A future interest held by the Grantor who grants a life estate or estate for years but does not convey the remaining future interest to a third party.
22
Q
Possibility of Reverter
A
A future interest retained by the grantor when a fee simple determinable is conveyed.
23
Q
Right of Reentry
A
A future interest held by the grantor after a fee simple subject to a condition subsequent is granted.
24
Q
Two Future Interests in Grantees
A
- Remainder
2. Executory Interests
25
Remainder
A future interest created in a grantee that is capable of becoming possessory immediately upon the natural termination of the preceding freehold estate. Remainders always follow life estates.
26
Vested Remainder
An interest in an ascertained grantee which is not subject to any conditions precedent. However, there may be a condition subsequent.
27
Vested remainder subject to open (partial divestment)
A vested remainder created in a class of persons that is certain to take on termination of the preceding estate but which is subject to diminution by reason of other persons becoming entitled to share in the remainder (i.e. children, brothers and sisters).
28
Vested Remainder Subject to Total Divestment
Arises when the remainderman is in existence and ascertained and his interest is not subject to any condition precedent, but his right to possession and enjoyment is subject to being defeated by the happening of some condition subsequent.
29
Contingent Remainder
A remainder will be classified as contingent if its taking in possession is subject to a condition precedent or if it is created in favor of an unborn or unascertained persons, because until the remainderman is ascertained, there is no one ready to take possession should the preceding estate come to an end. Can also have alternative remainders.
30
Executory Interest
Any future interest in a grantee that is not a remainder (i.e. not capable of taking on the natural termination of the preceding life estate). It is an interest that divests the interest of another.
31
Shifting Executory Interest
Divests the interests of the grantee by cutting short a prior estate created in the same conveyance. The estate shifts from one grantee to another by the happening of the condition.
32
Springing Executory Interest
Divests the interests of the grantor or fills a gap in possession in which the estate reverts to the grantor. Can also be alternative executory interests.
33
Rule Against Perpetuities
No interest is good unless it must vest, or fail to vest, if at all, within 21 years after some life in being at the creation of the interest. Prohibits remote vesting.
34
Adverse Possession
Occurs when a true owner of land fails to take legal action to eject a possessor who claims adversely to the owner's interest under circumstance where possession is hostile, open and notorious, actual and exclusive and continuous for the statutory period. (HOAC)
35
Two rules regarding Tacking
1. Privity is required (satisfied if subsequent possessor takes be descent, devise or deed appearing to convey title)
2. Tacking is not recognized where on e adverse possessor ousts a preceding adverse possessor or where one adverse possessor abandons and a new adverse possessor then goes into possession.
36
Color of Title
Adverse possessor entered pursuant to some written instrument that purported to convey title but, for some unknown reason and unknown to the claimant, was defective and does not convey anything.
Entrance under color of title is deemed adverse possession to the entire property described in the instrument.
37
Leasehold
A non-freehold estate in land.
38
Types of Leasehold Estates
1. Tenancy for Years
2. Periodic Tenancy
3. Tenancy at Will
4. Tenancy at Sufferance
39
Periodic Tenancy
Estate which continues from year to year, or for successive periods of a year until terminated by proper notice by either party. The beginning date is always certain but the ending date is always uncertain.
40
Tenancy at Will
Estate which is terminable at the will of either party.
41
Tenancy at Sufference
A tenant who rightfully entered into possession remains wrongfully in possession after the termination of the tenancy.
42
Covenant of quiet use and enjoyment
Implied in a lease that the landlord will not interfere with the possessory rights of the tenant.
43
Three elements to constructive eviction
1. Substantial interference of the covenant
2. Landlord or agents must be at fault.
3. Tenant must vacate the premises.
44
Implied Duty of Habitability
Imposes on landlord the affirmative duty to keep residential premises in a tenantable condition prior to leasing in regards to lighting, plumbing and heating.
45
Four Options that the Landlord has if Abandonment occurs
1. At common law, the landlord can let premises lay idle and sue for damages as it comes due.
2. Under modern law, landlord has a duty to mitigate.
3. Landlord can accept tenant's abandonment which usually requires a writing.
4. Landlord can sue under breach of contract.
46
Three types of waste and their definitions
1. Affirmative waste: Intentional/Negligent damage to property in the way of destruction, alteration or exploitation.
2. Permissive waste: Failure to take reasonable measures to protect the premises from damage. A duty of ordinary care is owed for preservations of premises.
3. Ameliorating waste: A tenant is not permitted to make substantial alterations to the leased structures even if the alteration increases the value of the property.
47
Assignment
A complete transfer of the entire remaining term in a leasehold.
48
Sublease
A partial transfer of the remaining term in a leasehold.
49
Three requirements for a Covenant to Run with the Land
A covenant may be negative or affirmative and 95% of covenants in a lease run with the land as opposed to personal.
1. Must be intent that the covenant run with the land.
2. Covenant must touch and concern the land.
3. Must have been privity of estate.
50
Marketable Title
Implied in every contract for the sale of land is a covenant that the title is reasonably free from title defects.
51
Doctrine of Equitable Conversion
At the moment a contract occurs, equitable conversion will best equitable title of the land in the buyer, leaving the seller holding bare title as security for the buyer who holds the balance of the purchase price as security for the seller.
The effect is to transfer buyer's interest from personal to real and the seller's interest from real to personal.
52
Mortgage
A device to secure payment of a debt by the borrower to the lender.
53
Deed of Trust
A land security device in which the debtor transfers title to a third party typically designated by the lender.
54
Land Sales Contract
An installment land contract where the debtor is the purchaser of the land who signs a contract with the vendor agreeing to make regular installment payments until the full contract price accruing interest has been paid. The lender is the actual owner.
55
Four elements of an effective deed
1. Must be signed by the Grantor (Grantee's signature not required)
2. Must identify both the Grantor and Grantee
3. Must be conveyed by operative words (i.e. I hereby convey)
4. Must contain an adequate description of the land.
56
Bonefide Purchaser (BFP)
A subsequent purchaser who by acting in good faith purchases for valuable consideration without notice.
57
Three types of notices for subsequent purchasers and their definitions
1. Actual Notice: First-hand information of a prior purchaser.
2. Constructive Notice: If the prior purchaser records his deed and it falls within the chain of title, the BFP is charged with notice whether the recording instrument is searched or not.
3. Inquiry Notice: Activities on the particular land in question.
58
Four types of Notice Statutes and definitions
1. Notice: At the time BFP purchased, he was without notice as to any prior purchasers.
2. Race: Recording first takes priority irrespective of notice as to prior purchaser.
3. Race-Notice: All deed are invalid which are not duly recorded as to subsequent takers who purchase for valuable consideration and without notice and records first.
4. Common Law: First in time, first in right.
59
Wild Deed
A deed outside of the chain of title.
60
Three types of Deeds and definitions
1. Warranty Deed: Warrants against all title defects arising before and during the time grantor had title.
2. Special Warranty Deed: Only warrants the defects arising during the grantor's possession.
3. Quitclaim Deed: The vendor conveys only those rights he had at that particular point in time.
61
Six Types of Covenants of Title
1. Covenant of seisin
2. Covenant against encumbrances
3. Right to convey
4. Quiet use and enjoyment
5. Further assurances
6. General warranty
62
Covenant of Seisin
A present covenant whereby the grantor has an indefeasible estate both of quality and quantity and consisting of both title and possession.
63
Covenant of Encumbrances
A present covenant where the grantor has the power to make the conveyance.
64
Covenant of Use and Enjoyment
A future covenant where the grantor guarantees to the grantee the right to peaceful and quite possession without interference from the vendor or anyone else claiming paramount title.
65
Covenant for Further Assurances
A promise by the grantor that he will not make any future conveyance that would divest the title held by grantee.
66
Easement
A non-possessory interest in land.
67
Affirmative Easement
Entitle the holder to enter upon the servient tenement and make an affirmative use of the land.
68
Negative Easement
A restriction of the right to use his own land (i.e. light, view, etc.)
69
3 Types of Easements
1. Express
2. Implication
3. Prescription
70
Easement by Grant
Granted by conveyance.
71
Easement by Reservation
Arises when the owner of a tract of land conveys title but reserves the right to continue to use the tract for a special purpose after the conveyance. The possessor passes title but reserves an interest easement.
72
Easement by Implication
Created by Operation of Law rather than by written instrument; therefore the Statute of Frauds does not apply.
73
Easement by Prescription
Based on the theory of adverse possession but the emphasis is actually on adverse use. HOAC is still required.
74
Easement Appurtenant
When the right of special use benefits the holder of the easement in his physical use of enjoyment of another tract of land. Thus, there must be two tracts of land.
75
Two elements of an Easement Appurtenant
1. Must involve two pieces of land.
| 2. Intent to benefit the land, not the person individually.
76
Dominent Estate
Land that is benefited by the use of the easement.
77
Servient Estate
Land whose use is burdened by the easement.
78
Easement in Gross
An easement in gross is created when the holder of the easement acquires a right of special use in the servient land independent of his ownership or possession of another tract of land.
79
Two elements of Easement in Gross
1. Must involve one piece of land.
| 2. Intent is to enhance the individual's rights rather than some specific piece of land.
80
Easement by Necessity
Involves a landlocked situation where there is no reasonable means of ingress or egress to the property.
81
Surcharge on Easement
When the owner of the easement uses it in a way that exceeds its legal scope, the easement is said to be surcharged. The remedy of the servient land owner is injunction of the excess use and possibly damages.
82
Abandonment of Easement
Owner must have manifested an intention never to make use of the easement again. Words alone or mere nonuse is insufficient. However, nonuse with intent to permanently abandon will suffice.
83
Adverse Use of Easement by Prescription
If an easement holder fails to protect his easement against a trespasser for the statutory period, the easement may be terminated by adverse use subject to HOAC.
84
Estoppel of Easement
If the servient estate has relied on the non-use to his detriment, the easement may be extinguished.
85
Profit
Right to go onto another's land and remove something therefrom (soil, fish, timber etc.). The holder of the easement has an implied easement to pass over the surface of the land and to use it as reasonably necessary to extract the product.
86
License
A non-possessory right to enter another's land for a specific purpose. It is a revocable privilege to go upon the land of the licensor. A license can be created where there is an unsuccessful attempt (oral or Statute of Frauds) to create an easement.
87
Covenant regarding a land use restriction
A real covenant is a written promise in a deed/lease to do or not to do something on the land. It can either be affirmative (maintain a wall) or negative (don't block neighbor's view).
88
Four elements to determine if a burden runs with the land.
1. Intent: The covenanting parties must have intended that successors in interest to the covenantor be bound by the terms of the covenant.
2. Notice: A subsequent purchaser (who pays value and records) without notice of the burdening covenant is not bound by covenants of which he has no actual or constructive notice.
3. Touch and Concern: The covenant must affect the legal relationship of the parties as to a specific tract of land and not as to the parties personally.
4. Privity of Estate: There must be either vertical or horizontal privity of estate
89
Three elements to determine if the benefit runs with the land.
1. Intent: The covenanting parties must have intended that successors in interest to the covenantee to be able to enforce the covenant. This can be express or implied.
2. Touch and Concern: The promised performance must benefit the covenantee and her successors in their use and enjoyment of the benefited land.
3. There must be vertical privity of estate.
90
Equitable Servitude
A covenant that, regardless of whether it runs with the land, equity will enforce against subsequent grantees of the burdened land who have notice of the covenant. The theory is that one who takes with notice of the restriction cannot in equity and good conscience violate that restriction. In equity, privity is substituted by notice. The remedy for violation of the covenant is injunction.
91
Three elements to determine if an equitable servitude burden will run with the land
1. Intent: The covenanting parties must have intended that the servitude be enforceable by and against subsequent grantees. This intent can be either express or implied.
2. Notice: The person against whom the servitude is to be enforced must have notice (actual, constructive or inquiry).
3. Touch and Concern: The burden of the equitable servitude will run with the land if the servitude touches and concerns the burdened property.
92
Two elements to determine if an equitable servitude benefit will run with the land
1. Intent: The original parties must have intended it to run.
2. Touch and Concern: The benefit must touch and concern the land.
93
Reciprocal Negative Servitude
When a developer subdivides land into several parcels and some of the deeds contain negative covenants but some do not, negative covenants or equitable servitudes binding all the parcels in the subdivision may be implied under the doctrine of reciprocal negative servitudes.
94
Four requirements for a Reciprocal Negative Servitude
1. Common grantor
2. Common plan or scheme including either a general pattern of prior restrictions or oral representations to early buyers that all parcels in the development will be restricted by the same covenants that appear in their deeds.
3. Must be other restricted lots
4. Buyers must have notice (Actual, Constructive or Inquiry)
95
Four Equitable Defenses to Enforcement of Negative Equitable Servitudes
1. Unclean Hands: If the person seeking enforcement is violating a similar restriction on his own land.
2. Laches: If I benefited party fails to bring suit within a reasonable period of time.
3. Acquiescence: If the benefited party is deemed to have abandoned the servitude as to other burdened parties. This defense will not work if the prior violation occurred in a location so distant from the complainant that it did not really affect his property.
96
Four Ways an Equitable Servitude can be Terminated
1. The holder of the benefit executing a release in writing.
2. Merger of title.
3. Condemnation of the burdened property.
4. Sale to BFP.
Note: If the zoning laws change or the neighborhood changes, certain servitudes may be destroyed.
97
Four rules as to the use of Underground Water (percolating waters, underground streams)
1. Majority Rule: Surface owner has unqualified right to pump for own use.
2. Reasonable use (Modern trend): Use which is reasonable taking into consideration the effect upon neighbor.
3. Prior Appropriation: First in time, first in right and is protected against subsequent appropriator.
4. Correlative Rights Doctrine (CA): Landowner may divert water to own benefit but must take into consideration effect upon other property owners.
98
Three rules as to the use of Surface Water (rainfall, melting snow)
1. Common Law: Landowner has unlimited discretion as to reasonable diversion of water.
2. Natural Servitude Doctrine: Landowner cannot interfere with the natural flow of water but reasonable changes in the flow are permitted.
3. Reasonable Use (Modified Rule): Landowner may divert water to own benefit but must take into consideration effect upon other property owners.
99
Four Rules as to the use of Running Water (Lakes, Rivers Streams) (Don't need to memorize but just read this)
Land adjacent to streams or lakes have riparian rights. Riparian rights are annexed to the land and cannot be conveyed for the use of non-riparian land.
1. Majority Rule: Riparian owners are entitled to natural flow of water without material diminution in quantity or quality. The downstream owner can enjoin the upstream owner even if the upstream owner has plenty of water for his own use.
2. Reasonable Use: Riparian owner is entitled to a reasonable use of the water and downstream owners cannot enjoin him unless they are not receiving enough water for their needs, or the upstream owner substantially interfering with their needs.
3. Under either theory: The upstream owner can take whatever water is necessary for domestic purposes without regard for its effect on the natural flow or level of the water or the needs of lower riparian owners. The upstream owner has preferred status. The upstream owner cannot take for commercial purposes unless there is enough water for the domestic wants of all.
4. Prior Appropriation: First in time, first in right. The water can be used for riparian as well as non-riparian land. The only limitation is that the water is put to most beneficial use.
100
Lateral Support
Support land receives from adjacent land. The right to lateral support of unimproved land is absolute (strict liability) regardless of the fact the adjoining landowner was not negligent in excavating his land.
101
Subjacent Support
Support land receives from the underlying strata. Right not only extends to the land but also to all buildings existing on the date when the subjacent estate is severed from the surface (strict liability).
102
Zonings/Takings Approach
1. Source of Zoning Power-Tenth Amendment. General purpose is to segregate use and regulate density.
2. Cumulative (higher use permitted only) v. Non-cumulative (restricts to limited use).
3. Comprehensive Plan v. Spot Zoning
4. Variance
5. Constitutional Attacks
6. Modern Rule: Assumption of risk
103
Comprehensive v. Spot Zoning
1. Comprehensive Plan-A general plan which is internally consistent.
2. Spot Zoning-An amendment not in accordance with the comprehensive plan. Arbitrary rezoning
104
Five potential constitutional attacks on Zoning/Takings
1. Procedural Due Process
2. Substantive Due process
3. Equal Protection
4. Fifth Amendment (taking without just compensation v. regulation)
5. First Amendment
105
Inverse Condemnation
An ordinance is so oppressive in its regulation of the use of the subject land such as to make the ordinance a form of taking which entitles the plaintiff to payment of damages for the taking.
106
Four Requirements for Eminent Domain
1. Public use
2. Necessity
3. Just compensation and;
4. Procedural due process
107
Three types of takings by Government
1. Government takes title to property.
2. Physical Invasion of Property
3. Regulatory Taking-Land Use Regulation? Or Taking?
