Property Law Flashcards
(137 cards)
1
Q
What is a fee simple determinable?
A
A fee simple determinable terminates upon the happening of a stated event and automatically reverts to the grantor.
2
Q
How is a fee simple determinable created?
A
By durational language, such as “for so long as,” “while,” “during,” or “until.”
3
Q
Can a fee simple determinable be conveyed?
A
Yes, but the grantee takes subject to the state’s being terminated by the specified event
4
Q
What is the correlative future interest in grantor in a fee simple determinable?
A
Possibility of reverter
5
Q
What is a fee simple subject to a condition subsequent?
A
It’s an estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event. The estate does NOT automatically terminate; the grantor must take some action.
6
Q
What is the language that creates a fee simple subject to condition subsequent?
A
Conditional words, such as “upon condition that,” “provided that,” “but if” and “if it happens that.”
7
Q
What is the correlative future interest created by a fee simple subject to a condition subsequent?
A
Right of entry. Must be expressly reserved
8
Q
What is a fee simple subject to an executory interest?
A
Fee simple estate that terminates upon the happening of a stated event and then passes to a third part rather than reverting to the grantor or giving the grantor the right to terminate.
9
Q
Effect of conditions of limitations that violate public policy?
A
The are struck down and the grantee takes free of interest.
10
Q
What is a fee tail and how created?
A
An estate where inheritability is limited to lineal heirs. Created by words “to A and the heirs of his body.”
11
Q
What is a life estate?
A
A life estate is one measured by the life or lives of one or more persons. It may be created by operation of law, e.g., dower, or by conveyance.
12
Q
What is a life estate pur autre?
A
life estate measured by a life other than the grantee’s, e.g., “to A for the life of B.”
13
Q
What is the doctrine of waste?
A
A life tenant is entitled to any ordinary uses and profits of land but cannot do anything that injures the interests of a remainderman or reversioner.
14
Q
What is affirmative or voluntary waste?
A
Is exploitation of natural resources by a life tenant. Generally limited to situations where: (i) necessary for repair or maintenance of the land, (ii) the land is suitable only for such use, or (iii) it is explicitly permitted by the grantor
15
Q
What is the open mines doctrine?
A
If mining was done on the land prior to the life estate, then the life tenant can continue mining but is limited to mines already open.
16
Q
What is permissive waste?
A
A tenant is obligated to (i) preserve the land and structures in a reasonable state of repair, (ii) pay interest on mortgages (not principal), (iii) pay ordinary taxes on the land and (iv) pay special assessments for public improvements of short duration. Permissive waste occurs when the tenant fails to do those things. Duty is limited to to the extent of the total income or profits generated from teh land.
17
Q
What is ameliorative waste?
A
a change that benefits the property economically. The waste was actionable at common law but now a life tenant may alter or even demolish existing buildings if (i) the market value of the future interests is not diminished and EITHER (ii) the remaindermen do not object or (iii) a substantial and permanent change in the neighborhood has deprived the property in its current form of reasonable productivity or usefulness.
18
Q
Are reversions subject to the rule against perpetuities?
A
No, because they are vested.
19
Q
What is a reversion?
A
Estate left to a grantor who conveys less than what he owns, e.g., “to O for life.” It automatically reverts to the grantor and doesn’t need to be expressly stated in the conveyance.
20
Q
What is a remainder?
A
It’s a future interest in a third person that can become possessory on the natural expiration of the preceding estate.
21
Q
Difference between remainder and executory interest?
A
A remainder cannot “cut short” a preceding estate; executory interests are the future interests that cut short preceding estates or follow a gap after them.
22
Q
What is an vested remainder?
A
One created in an existing and ascertained person, and not subject to a condition precedent. The remainderman has a right to immediate possession upon normal termination of the preceding estate.
23
Q
What is an indefeasibly vested remainder?
A
vested remainder not subject to divestment or diminution
24
Q
What is a vested remainder subject to open?
A
A vested remainder created in a class of persons, e.g., “children” that is certain to become possessory but is subject to diminution, e.g., by the birth of additional persons who will share n the remainder as a class.
25
What is a vested remainder subject to total divestment?
Vested remainder subject to a condition subsequent, e.g., A to life then to B and his heirs but if B does remain unmarried then to C and his heirs.
26
What is a contingent remainder?
It's a reminder created (1) in unborn or unascertained persons, e.g., to A to life then to the children of B where B is childless, or (2) a remainder created subject to condition precedent, e.g., "to A to life then to B and his heirs if B marries C." B's remainder is contingent because he must marry C before he can take possession.
27
What is the destructibility of contingent remainders?
At common law, a contingent remainder was destroyed if it failed to vest before or upon the termination of the preceding freehold estate, e.g., O conveys to A for life and then to B if she reaches age 21; if A dies before B reaches 21, then B's remainder is destroyed. (Most states have abolished it)
28
What is the doctrine of merger?
When one person aquires all of the present and future interests in land except a contingent remainder, under common law, the contingent remainder is destroyed, e.g., "to A for life then to B's children. If, before B has any children, grantor purchase's A's life estate, O will have a life state pur autre vie and a reversion. These interests merge and the contingent remainder in B's unborn children is destroyed
29
What is an executory interest?
A future interest in third parties that either divests a transferee's preceding freeholding estate (shifting interests) or follow a gap in possession or cut short a grantor's estate (springing interests)
30
What is Shelley’s Rule?
Usually just the wrong answer on the MBE
31
What is the rule against perpetuities?
No interest in property is valid unless it must vest, if at all, not later than 21 years after some life in being (“measuring life”) at the creation of the interest.
32
What kinds of estates does the rule against perpetuities apply to? (5 major ones)
Contingent remainders, executory interests, vested remainders subject to open (class gifts), options to purchase, rights of first refusal
33
When does the perpetuities time begin to run on wills?
From the date of the testator’s death
34
What happens as a consequence of violating the rule against perpetuities?
It destroys only the offending interest
35
Application of rule against perpetuities to class gifts
“Bad as to one, bad as to all”: if the interest of any class member may vest too remotely, the whole class gift fails.
36
What are the three types of restraints on alienations and which ones are automatically void?
1) disabling restraints (attempted transfers are ineffective)
2) forfeiture restraints (an attempted transfer forfeits the interest)
3) promissory restraints (an attempted transfer breaches a covenant)
A disabling restraint in any legal interest is void
37
What is a joint tenancy and what is its distinguishing feature?
Estate owned by several persons concurrently, all of whom have the right to enjoyment and possession of the land and the joint tenancy’s distinguishing feature is the right of survivorship. When one property owner dies, the property is freed from her concurrent interest and her survivors do not inherit it.
38
How do you create a joint tenancy under common law?
Requires four unities: time, title, interest, possession. Interests of joint tenants must be equal in every way
39
How can a joint tenancy be severed?
Inter vivos conveyance (conveying undivided interest destroys the joint tenancy). Transferee takes as a tenant in common
40
What is a tenancy by the entirety?
Marital estate akin to joint tenancy.
41
What is effect of mortgage or sale by one spouse in a tenancy by the entirety?
It’s invalid. An individual spouse cannot convey or encumber tenancy by the entirety property.
42
How do courts prefer to partition land?
They prefer to partition in kind (split up the land)rather than by sale and division of the proceeds.
43
How do you terminate a periodic tenancy?
It’s automatically renewed until proper notice is given. Usually the notice must be one full period in advance.
44
How do you create a tenancy at will?
Generally it must be created by an express agreement that the lease can be terminated at any time. Absent such an agreement, periodic rent payments will be interpreted as a periodic tenancy.
45
What is the hold over doctrine?
If a tenant continues to be in possession after his right of possession ends, the landlord can either evict the tenant or bind him to a new periodic tenancy. Generally the terms of the old lease govern the new lease except for residential tenants. They are generally held to a new month to month tenancy. If landlord notified them if raised rent and they stayed on, reissued rent applies, even if they objected.
46
What are exceptions to the common law rule that covenants in the lease are independent? (3)
1) constructive evictions and
2) implied warranty of habitability
3) eviction for nonpayment of rent
47
What are the three duties of tenants?
2) duty to repair - tenant cannot damage or commit waste in leased premises
48
Effect of covenant to repair, residential v commercial tenant
Under modern doctrine if implied warrant of habitability, residential landlord will still be required to repair; a nonresidential tenant’s covenant to repair is enforceable. Usually doesn’t require rebuilding after structural damage
49
Majority / minority rule of landlord duty to mitigate when tenant unjustifiably abandons property
Majority: has a duty to mitigate by re-letting. So long as landlord doesn’t accept surrender of property, tenant is responsible for the difference between promised rent and what it is rented for.
Minority/CL: landlord can do nothing and tenant just owes all the rent
50
What are the modern landlord duties?
1) duty to deliver possession of premises - put tenant in actual possession of the premises
2) quiet enjoyment
3) implied warranty of habitability
51
What is a constructive eviction? How does tenant prove (4)
When landlord’s breach of duty renders property unsuitable for occupancy.
1) landlord breached a duty
2) breach substantially and materially deprived the tenant if he ride and enjoyment of the premises, e.g., flooding, no heat in the winter, loss of elevator service in a warehouse
3) tenant gives landlord notice and opportunity to repair
4) after a reasonable period of time, tenant vacated the premises.
NB: tenant must vacate the premises in order to claim constructive eviction
52
Six modern exceptions to the common law rule that a landlord has no duty to make the premises safe
One. Concealed dangerous condition two. Common areas three. Public use for. Furnished short term residence pies. Negligent repairs six. Landlord contracts to repair.
53
what is the implied warranty of habitability?
Nonwaivable warranty written into residential leases tied to standards of local housing codes.
54
Tenant's remedies in the event that landlord breaches the implied warranty of habitability?
1) terminate the lease; 2) make repairs and offset the cost against future rent; 3) abate the rent to an amount equal to the fair rental market in view of the defects, 4) remain in possession, pay full rent, and sue for damages.
55
assignment versus sublease
assignment = complete transfer of a tenant's leasehold interest. If tenant retains any part of the remaining term, then it' a sublease.
56
Consequences of assignment for original tenant, assignee, and landlord
Original tenant remains responsible for original contractual terms, e.g., rent payment. They are NOT in privity of estate with the landlord anymore.
Assignee and landlord are in "privity of estate" and each is liable to the other on all covenants of the lease that run with the land
57
Which covenants run with the land?
Runs with the land if the original parties intended it to and if the covenant "touches and concerns" the land, i.e., benefits one party and burdens the other.
58
Does a covenant to pay rent run with the land?
Yes.
59
is a subleasee responsible to a landlord for payment of rent?
No.
60
Can a subleasee enforce any covenants made by the landlord in the main lease?
No, except they can enforce the implied warranty of habitability.
61
What is a fixture?
Something that has been so incorporated into the realty that the chattel loses its separate identity and becomes a fixture.
62
What's an easement?
a nonposessory interest in land, that creates the right to use land possessed by another.
63
What's an easement appurtenant?
An easement that benefits the holder in his physical use or enjoyment of another tract of land. Thus there must be two TWO tracts -- the dominant tenement (the estate benefited by the easement) and the servient tenement (the estate subject to the easement right).
64
Does an easement appurtenant pass with the transfer of benefited land?
Yes.
65
Does an easement appurtenant pass with the transfer of the servient estate?
Yes, unless the new owner is BFP with no actual or constructive notice of the easement.
66
What is an easement in gross?
It's a right to use the servient tenement independent of the ownership of a benefited tract of land. The easement benefits the person not the land.
67
How do you create an easement (3)?
1) Express grant (meeting requirements of the state's statute of frauds)
2) Express reservation (grantor conveys title to land but reserves certain rights of continued use).
3) Implication -- created by operation of law and it's an exception to the statute of frauds
68
What are the three kinds of easements by implication?
1) easement implied from existing use, i.e., "quasi-easement."
2) Easement implied without existing use
30 Easement by necessity
69
How is an easement implied by existing use?
1) prior to the division of a single piece of land, (2) an apparent and continuous use exists on the servient part, that (3) is reasonably necessary to benefit the dominant part and (4) the court determines that the parties intended the use to continue after the division of the land.
70
What are the two ways an easement can be implied without any existing use?
1) subdivision plat (lots sold with reference to a map or plat with streets leading to them
2) profit a prendre --
71
When does an easement by necessity occur?
When a landowner sells a portion of his tract of land and by this division deprives one lot access to public road or utility. The servient parcel has the right to determine the location.
72
What is the scope of an easement?
Generally, courts assume an easement was intended to meet current and future needs, e.g., widened cars requires widened road.
73
What is the relief if an easement is being abused?
remedy is to sue for injunction against misuse of easement, NOT termination of easement.
74
Who has duty to make repairs on an easement?
If easement holder is the sole user, then he has responsibility to make repairs; if both parties use the easement, then the court will aportion repair costs.
75
How can easement be terminated?
1)The original easement may state when it will terminate
2) merger -- same person acquires both the easement and the servient estate. Even if there is later separation, the easement will not be automatically revived.
3) deed of release
4) abandonment -- but only when its holder demonstrates by physical action an intent to permanently abandon the easement, e.g., building a building that blocks the structure.
76
What's a license?
It's a privilege that entitles their holder to go upon the land of another. But unlike an easement it is not an interest in the land. It is revocable at the will of the licensor.
77
What happens if you make a failed attempt at creating an easement?
You get a license, e.g., tries to make an easement for more than year but doens't put it in writing, then you have a license.
78
What's a real covenant?
It's a promise to do something on the land, e.g., maintain a fence, or a promise NOT to do something on the land, e.g., not build a multifamily dwelling.
79
Requirements for burden of a covenant to run with the land
1) Intent -- covenanting parties must have intended successors in interest be bound by the promise
2) Notice (if it's a subsequent purchaser for value).
3) Horizontal privity, i.e., at the time of the promising, the promisor and the promisee must have shared some interest in the land independent of the covenant, e.g. grantor-grantee, landlord-tenant, mortgagee-mortgagor)
4) Vertical privity, i.e., the successor in interest to the covenanting party must hold the entire durational interest held by the covenantor at the time he made the covenant.
5) Covenant must touch and concern the land, i.e., restrict the holder of the servient estate in his use of the land or require the holder of the servient estate to do something.
80
Requirements for the benefit of a covenant to run with the land
1) Intent of the covenanting parties
2) vertical privity, i.e., ANY succeeding possessory estate, even a lesser estate
3) Covenant must touch and concern the land
81
When is horizontal privity required?
Only for the burden to run, not the benefit. SO, a promisee's successors can enforce the covenant against the promisor but not against the promisor's sucessors.
82
WHat's the remedy for breach of a covenant?
Damages.
83
What's an equitable servitude?
a covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. The remedy is an injunction.
84
When will a reciprocal negative servitude be implied?
If, at the time that sales in the subdivision began, the developer had a plan that all parcels would be subject to the restriction. The scheme may be evidenced by 1) recorded plan, (2) a general pattern of restrictions, or (3) oral representations to early buyers.
85
What happens if a common scheme develops AFTER some lots are sold?
If the scheme arises after some lots are sold, no implied servitude can arise with respect to the lots already sold without express covenants.
86
What kind of a notice must a buyer have a reciprocal negative servitude?
1) actual
2) inquiry (neighborhood appears to conform to common restrictions)
3) record (prior deed with covenant in grantee's chain of title.
87
Requirements for burden of an equitable servitude to run
1) Covenanting parties intended that the servitude be enforceable by and against assignees
2) the successor of the promisor had actual, inquiry, or record notice of the servitude and 3) the covenant touches and concerns the land
88
Requirements for the benefit to run
1) Covenanting parties intended that the servitude be enforceable;
2) the servitude touches and concerns the land.
89
What are the two major differences between real covenants and equitable servitudes?
1) the remedy -- real covenants = money damages and equitable servitudes = injunction
2) The requirement of privity of estate. Real covenants require vertical and horizontal privity of estate for the burden to run and vertical privity for benefits to run, but no privity of estate is required for an equitable servitude to be enforceable by and against assignees.
90
What are five equitable defenses to enforcement of an equitable servitude?
1) Unclean hands -- person violating a similar restriction on his own land
2) benefited party acquiesced in violation of the servitude by one burdened party
3) estoppel -- benefited party acted in such a way that a reasonable person would believe the covenant had been abandoned or waived
4) laches -- benefited party failed to bring suit in a timely fashion
5) Neighborhood has changed in such a way that enforcement would be inequitable.
91
How can an equitable servitude by terminated?
Like other nonposessory interests 1) written release, 2) merger of the properties, 3) condemnation of the burdened property
92
How to establish title by adverse possession?
1) Actual entry giving exclusive possession that is 2) open and notorious, 3) adverse (hostile), and 4) continuous throughout the statutory time period.
93
Requirement of actual and exclusive title
an adverse possessor will only take title to the land she actually occupies, but if person takes possession under color of title (a document that purports to give title but really does not), then deemed to occupy the whole parcel of land.
94
Continuous possession requirement
Intermittent periods of occupancy are not sufficient but claimant does not have to make constant use, as long as the possession is of a type that the usual owner would make.
95
Can adverse possessors tack their possession onto period of adverse possession by predecessors?
Yes, so long as there is privity between them.
96
What are the essential terms to a real property contract for the purposes of the statute of frauds?
Parties, description of the land, price.
97
What is the doctrine of equitable conversion?
Once a contract is signed, equity regards the buyer as the owner of the real property. The seller's interest (right to proceeds of the sale) is considered personal property, and they are just holding the land in trust until closing.
98
Who bears risk of loss after signing of contract and before closing under the majority rule?
The buyer, but the seller must apply the proceeds of any insurance.
99
On the bar exam, is title based by adverse possession marketable?
No. Even though in real life it is.
100
Does a quitclaim deed affect the implied covenant to provide marketable title?
No.
101
What's the remedy if title is not marketable
Before closing, rescission, damages, specific performance with abatement, and a quiet title suit. But once closing occurs, hte contract and deed merge and the seller's liability on the implied contractual covenant ends.
102
Presumption re: time of the essence and when it will be overcome
Courts presume that timing is NOT of the essence but the presumption can be overcome if the contract so state, the circumstances indicate that was the parties' intent or one party gives the other one notice.
103
What happens if neither party tenders performance?
The closing date is extended until one of them does so -- the buyer's obligation to pay and teh seller's obligation to convey are concurrent conditions and neither party is in breach until the other tenders performance.
104
When will sellers be held liable for defects on existing land and buildings? (3)
1) Misrepresentation -- seller knowingly makes misrepresentations and buyer relies on teh statement and misrepresentation materially affects the value of the property
2) active concealment, e.g., wallpapering over water damage
3) Failure to disclose -- seller knew or has reason to know of defect, the defect is not apparent and buyer unlikely to discover it on reasoanble inspection, and defect is serious and would probably make buyer reconsider purchase if they knew about it.
105
Real estate brokers -- agents of whom?
Agents of the seller but should disclose known material information.
106
Deed formalities -- requirements
in writing, signed by the grantor, and reasonably identify the parties and land.
107
Requirements for a deed to validly convey real property by inter vivos gift
1) donative intent, 2) delivery, 3) acceptance
108
Impact of blank name on a deed versus impact of blank land description
If name of grantee left blank, then the court presumes that the person taking delivery has authority to fill in the name of the grantee. If the person fills in a name, the deed is valid.
If, however, the land description is left blank, then the deed is void unless the grantee was explicitly given permission to write in the description
109
Effect of void deed
Will be set aside by a court even if purchased by a bona fied purchaser.
110
What are examples of void deeds?
forged deeds, deeds never delivered, deeds issued to a nonexistent grantee, or obtained by fraud in factum (grantor didn't know executing a deed).
111
What happens when a joint owner attempts to convey property by forging the signature of the other owners?
Conveyance is valid for the one owner's interest but void as to the other's. Conveyance works as a severance and buyer would hold as a tenant in common with the joint tenant whose signature was forged.
112
What is the impact of a deed to a dead person?
Deed is void and conveys no title.
113
What is the delivery of a deed?
It is the grantor's intention to make a deed presently effective, even if possession is postponed.
NB that title passes with delivery and it can't be canceled or taken back. If a grantee returns a deed to the grantor, it has no effect.
114
What are the three types of deeds used to convey property interests (other than leaseholds)?
1) general warranty deed, 2) special warranty deed, 3) quitclaim deed
115
What are the six usual covenants in a general warranty deed?
1) Covenant of seisin -- grantor has both possession and title of the land she purports to convey
2) Covenant of the right to convey -- grantor has the authority to convey property (title alone is sufficient)
3) Covenant against encumbrances -- there are no physical or or title encumbrances
4) Covenant for quiet enjoyment -- grantee will not be disturbed in possession by a third party's lawful claim of title
5) covenant of warranty -- grantor agrees to defend against reasonable claims of title by a third party and to compensate the grantee for any loss sustained by the claim of superior title
6) covenant for further assurances -- grantor promises to perform acts reasonably necessary to perfect title conveyed.
116
Which of the covenants in a general warranty deed are present covenants, breached at the time of conveyance?
Seisin, right to convey, against encumbrances
117
WHich of the covenants in a general warranty deed are future covenants?
Quiet enjoyment, warranty, and further assurances. Breached only upon disturbance of the grantee's possession.
118
Which covenants can be enforced by remote grantees?
ONly the future covenants; they run with the grantee's estate.
119
What is a special warranty deed?
Same covenants as the general warranty deed but promises to warrant and defend the title only against claims arising by, through, or under the grantor. Doesn't warrant against defects in the title before the grantor was deeded the property.
120
What is a quitclaim deed?
It releases whatever interest the grantor has. No covenants of title are included or implied.
121
What was the common law rule if a grantor conveyed the same property twice?
The grantee first in time generally prevailed
122
What are the recording acts generally?
They protect bona fide purchasers (BFPs) from secret interests previously created and provide a mechanism for "earlier" grantees to give notice of their ownership through recordation.
123
What is the effect of proper recording?
It gives constructive notice of the conveyance to everyone, so there can be no subsequent BFPs.
124
What are the three types of recording acts?
Notice,
Race-notice
Race
125
What are notice statutes?
Under a notice statute, a subsequent BFP prevails over a prior grantee who failed to record. Key is that the subsequent purchaser had no notice, actual or constructive, at the time of conveyance.
NB: doesn't matter if the subsequent BFP records at all
126
What are race-notice statutes?
Under a race-notice statute, a subsequent BFP takes only if she purchased without notice AND she recorded her deed before the prior grantee. (So even if the subsequent purchaser didn't have notice at the time of purchase, if the first purchaser records first, then the first purchaser prevails).
127
What is ademption?
It's when a testator makes bequest of a specific item that can only be satisfied by the delivery of that particular item. When that happens, the gift fails
128
mortgage versus deed of trust security interest
Mortgage: on default, the lender can realize the mortgaged real estate only by having a judicial foreclosure sale conducted by the sheriff.
Deed of trust: Debtor is the trustor. He gives deed of trust to third party trustee, usually closely connected to the lender/beneficiary. On default the lender instructs the trustee to foreclose the deed of trust by sale
129
Two different means of transferring a mortgage note:
1) assignment
2) indorsing the note and delivering it to the transferee
130
How can a transferee become a holder in due course of a mortgage note?
1) the note must be negotiable in form (payable "to bearer" with a promise to pay a sum certain and no other promises)
2) the original note must be indorsed and signed by the named payee
3) the original note must be delivered to the transferee
4) the transferee must take the note in good faith and pay value for it.
131
What is the benefit of taking as a holder in due course?
They take the note free of any personal defenses of the maker, e.g., failure of consideration, fraud in the inducement, waiver, estoppel, and payment, but still subject to real defenses, e.g., infancy, other incapactiy, duress, illegality, fraud in the execution, forgery, etc.
132
What is the lien theory of title on mortgages?
Mortgagee is the holder of a security interest only and mortgagor is the possessor of the owner of the land until foreclosure. The mortgagee may not have possession before foreclosure.
133
What is the title theory on mortgages?
The mortgagee holds legal title until the mortgage has been satisfied and is entitled to possession upon demand at any time.
134
How do most state require foreclosures?
By sale, under which the property is sold to satisfy the debts.
135
Impact of purchase money mortgages
A purchase money mortgage is a mortgage given in exchance for funds used to purchase the property and they have priority over other mortgages, liens, and claims against the mortgagor that arise PRIOR to the mortgagor's acquisition of title.
136
When may states pass zoning laws?
to reasonably control the use of land for the protection of health, safety, morals, and welfare of the citizens.
137
When will zoning ordinances generally be invalid?
If they have no reasonable relation to public welfare, if they are too restrictive, if they are discriminatory to a particular parcel, are beyond the grant of authority, violate due process, or are racially discriminatory.
