Real property Flashcards
(131 cards)
1
Q
What is a fee simple absolute?
A
A conveyance of absolute ownership of real property with no conditions.
2
Q
What is a fee tail?
A
A conveyance of real property to a person and their heirs. It is abolished in most jurisdictions.
3
Q
What is a fee simple defeasible?
A
A conveyance of real property with conditions. It is created with express conditional language. Ownership may be terminated on the occurrence or non-occurrence of an event or condition.
4
Q
What is a fee simple determinable?
A
A conveyance that reserves a future interest in the grantor. It is created with words of duration, such as, so long as, during, while. The conveyance is auto-terminated if the specific condition occurs.
5
Q
What is a fee simple subject to a condition subsequent?
A
A conveyance of real property that reserves a future interest in the grantor. It is created when a conveyance is subject to grantor’s right of re-entry if a specific condition occurs. It only terminated with grantor affirmatively exercises his right of re-entry.
6
Q
What is a fee simple subject to executory interest?
A
A conveyance of real property that reserves a future interest to a 3rd party.
7
Q
What is a life estate?
A
a conveyance of real property where the life tenant is entitled to possession during their lifetime. Upon their death, the interest in transferred to another party.
8
Q
What is a life tenant responsible for?
A
They are responsible for ordinary expenses and taxes of the property during their life. They are not allowed to commit waste that causes the property to decrease in value.
9
Q
What is a possibility of a reverter?
A
If the condition of a conveyance occurs then the grantee’s interest auto-terminates and vests in the grantor.
10
Q
What is a right of re-entry?
A
If a specified condition of a conveyance occurs then the grantor may re-enter & take the property.
11
Q
What is a vested remainder?
A
It is a future interest in land given to an identifiable person with no conditions.
12
Q
What is a contingent remainder?
A
It is a future interest in land conditioned upon the occurrence or non-occurrence of a specified event.
13
Q
What is a remainderman?
A
Upon a life tenant’s death, ownership of the property transfers to a specified person.
14
Q
What is a tenancy in commons?
A
It is the default estate created when land is conveyed to 2+ people unless: 1. express language states that the parties have a ROS (joint tenancy) or 2. conveyed as “husband and wife” (tenancy by the entirety). Each owner has an undivided interest in the property and has the right to use and enjoy the entire property. The interest passes either by bequest or intestacy.
15
Q
How do you create a joint tenancy?
A
You need the 4 unities. Time, Same Title, Same Interest and Possession. There must be clear & express intent to create a JT with ROS.
16
Q
HOW DO YOU SEVER A JOINT TENANCY?
A
One way is if 1 JT unilaterally transfers his ownership interest. If there are more than 2 people in JT then JT remains but only among JT. A second way is if one JT takes out a mortgage in a title theory jx. In a lien theory jx taking out a mortgage doesn’t sever the JT.
17
Q
What is the co-tenant’s entitlement to rent or reimbursement?
A
An out of possession co-tenant doesn’t have right to rent unless it is agreed on or if they were wrongfully ousted?
18
Q
Is a co-tenant entitled to rent from a 3rd party?
A
Yes. A co-tenant is entitled to a fair share of rent.
19
Q
Is a co-tenant entitled to reimbursement repair costs?
A
Yes, for necessary repairs, unless there was a wrongful ouster.
20
Q
Is a co-tenant entitled to improvement costs?
A
No, unless otherwise agreed. However, the improving tenant is entitled to the downside risk or upside gain.
21
Q
WHAT IS A LEASEHOLD INTEREST?
A
A lease that grants a tenant the present possessory interest in real property for a limited period of time.
22
Q
WHAT IS A TENANCY FOR YEARS?
A
A lease that lasts for a fixed period of time and which auto-terminates when the period ends.
23
Q
WHAT IS A PERIODIC TENANCY?
A
A lease thats lasts for an initial period then auto continues for additional equal periods (wkly/monthly) until it is terminated by proper notice. Proper notice requires at least full period in advance. (if yrly need 6 month ntc).
24
Q
HOW IS A PERIODIC TENANCY CREATED?
A
It is created by express agreement or by implication if rent is paid or by law when a tenant for years remains after termination of the period or lease is invalid.
25
WHAT IS A TENANCY AT WILL?
It is a lease that continues until either party terminates it. Termination requires notice and rx time to quit the premises. Only in some states in notice not required.
26
What is the tenant's duty to pay rent?
It is a duty that runs with the land. If the tenant remains on the land and doesn't pay then the LL can evict the tenant or allow the tenant to remain and sue for damages.
If the tenant abandons w/o paying rent LL can mitigate damages in some states.
27
Who is a hold-over tenant?
A tenant that stays after the lease ends. A LL can evict the tenant or hold the tenant over if this happens. An implied month-to-month tenancy is created with identical terms as the prev. lease.
Modern view is that the the lease is month to month. The common law says the lease is for the same period as the original lease.
28
Does a hold-over tenant have to pay higher rent?
Only if they were informed of the higher rent before the end of their lease.
29
What is the implied warranty of habitability?
A warranty that states that the LL must provide something that is habitable. In some states this duty is imposed on commercial leases.
30
What does habitable mean?
Rx suitable for human needs.
31
What happens if there is a breach of the implied warranty of habitability?
The tenant may move out and terminate lease or withhold or reduce rent or repair issue and deduct cost or remain and sue.
32
WHEN DOES A CONSTRUCTIVE EVICTION OCCUR?
1) Landlord breached a duty to tenant;
2) The breach caused a loss of the substantial
use and enjoyment of the premises;
3) Tenant gave landlord notice of the condition;
4) Landlord failed to remedy the condition within
a reasonable time; AND
5) Tenant vacated the premises.
33
WHAT LL DUTIES EXIST IN A RESIDENTIAL LEASE?
LL has a duty to repair common areas and warn of latent defects that create a risk of serious harm that the LL knows or should have known.
34
What is the implied covenant of quiet enjoyment?
It prevents a LL from interfering with the tenant’s quiet
| enjoyment and possession of the property, which is breached when a tenant is constructively evicted.
35
WHAT LL DUTIES EXIST IN A COMMERCIAL LEASE?
No duties to repair unless specified in lease.
36
DOES THE LL HAVE A DUTY TO MITIGATE DAMAGES?
Under the CL the LL does not have a duty to mitigate but in most states there is a duty for a LL to take rx steps to mitigate losses.
37
WHAT IS AN ASSIGNMENT OF A LEASE?
It is when a tenant transfers their interest to a 3rd party. A lease may freely be assigned unless the lease states otherwise. An assignment cannot last longer than the lease.
38
WHAT IS AN ASSIGNEE'S LIABILITY FOR RENT OR BREACH?
An assignee is liable to the LL for rent and all covenants that run with the land.
39
WHAT IS THE ASSIGNOR'S LIABILITY?
Original lessee, aka assignor, is liable to LL for rent.
40
WHAT IS THE LL'S LIABILITY?
LL has maintenance obligation.
41
DOES LL HAVE TO CONSENT TO ASSIGNMENT?
If lease requires owner's consent consent must be obtained. LL waives this right if he accepts rent from Assignee. If lease is silent LL may withhold consent for any reason in most states. In some states LL must have a rx basis for withholding consent.
42
WHAT IS A SUBLEASE?
A sublease is when a tenant only transfers some of his interest. Tenant may do so unless lease says no but it cannot be for longer than the lease. Sublessee isn't liable to LL for rent or other covenants.
43
WHAT IS A SURRENDER OF A LEASE?
It is an agreement to end a lease early. The LL must clearly accept surrender (unless otherwise agreed). If LL accepts then no more rent but if LL rejects and tenant abandons then liable for damages.
44
What is a real covenant?
A non-possessory interest in land that obligates the holder to do nro not do something. The remedy is damages.
45
How do you enforce the benefit of a covenant?
It must have:
1) a writing satisfying the statute of frauds,
2) intent that the covenant runs with the land,
3) vertical privity – when a successor holds the
entire interest held by a predecessor, AND
4) the covenant touches & concerns the land
(makes the land more useful or valuable).
46
How do you enforce the burden of a covenant?
It must have:
1) a writing satisfying the statute of frauds,
2) intent that the covenant runs with the land,
3) vertical privity – when a successor holds the
entire interest held by a predecessor, AND
4) the covenant touches & concerns the land
(makes the land more useful or valuable).
PLUS: 5) horizontal privity between the original parties, AND
2) the new owner must of had notice of the
covenant.
47
What notice is required for a real covenant?
Actual (knowledge), constructive (covenant is recorded), or Inquiry (inspection would reveal it).
48
What is an equitable servitude?
a covenant that equity will enforce if the burdened estate had notice of the covenant (regardless of whether it runs with the land). The remedy is injunctive relief.
49
How do you enforce the benefit of an equitable servitude?
It must have:
1) a writing satisfying the statute of frauds,
2) intent for the servitude to be enforceable, AND
3) the servitude touches and concerns the land
(makes the land more useful or valuable).
50
How do you enforce the burden of an equitable servitude?
It must have:
1) a writing satisfying the statute of frauds,
2) intent for the servitude to be enforceable, AND
3) the servitude touches and concerns the land
(makes the land more useful or valuable). PLUS
4) the new owner must of had notice of the servitude (actual, constructive, or inquiry).
51
What is the common scheme or plan doctrine?
Courts will imply reciprocal restrictive covenants on land parcels in a
subdivision sold by a developer ONLY IF:
1) Developer had a common scheme or plan that
ALL parcels would be subject to the restriction at
the time sold; AND
2) Land owner had notice of the restriction.
Reciprocal negative servitudes only apply to negative
covenants and equitable servitudes.
52
What is a common interest community?
A development of individually owned lots which have an obligation to:
a) pay for maintenance of the property held in common; OR
b) pay dues to an association
that maintains the properties.
53
Do restrictive covenants run with the land in a CIC?
Yes. Residents and successive owners are subject to
recorded obligations (restrictive covenants) that run with
the land.
54
WHAT IS AN EASEMENT?
A non-possessory interest in the use of someone else's land.
55
WHAT IS AN EASEMENT IN GROSS?
An easement that benefits a specific owner's enjoyment and that does not pass down to subsequent owners unless it is for commercial activity.
56
WHAT IS AN EASEMENT APPURTENANT?
An easement that benefits any owner's enjoyment and that passes to subsequent owners if the owner had notice.
57
HOW IS AN EASEMENT CREATED?
4 ways: Easement by Grant, Easement by Prescription, Easement by Implication, and Easement by Necessity.
58
WHAT DOES AN EASEMENT BY GRANT REQUIRE?
1) a writing signed by the grantor;
2) identify the land and parties involved; AND
3) indicate grantor’s intent to convey the easement.
* Scope = the use agreed upon.
59
WHAT DOES AN EASEMENT BY PRESCRIPTION REQUIRE?
Created when a possessor’s use of the land is:
1) open and notorious;
2) continuous;
3) hostile (without permission from the land owner);
AND 4) for the statutory period (i.e. 10 years).
*Scope = actual usage during statutory period.
60
WHAT DOES AN EASEMENT BY IMPLICATION REQUIRE?
1) a single tract of land is divided by a common
owner;
2) a pre-existing use by the grantor is established
prior to the division;
3) use was continuous and apparent indicating
that it was meant to be permanent; AND
4) the use is reasonably necessary for the
owner’s use and enjoyment of the land
conveyed.
*Scope = the prior use.
61
WHAT DOES AN EASEMENT BY NECESSITY REQUIRE?
Created if:
1) land owned by one owner is subdivided; AND
2) the easement (access of land) is essential to the
use because no other ingress/egress is
available.
*Scope = is limited to remedying the necessity.
62
HOW IS AN EASEMENT TERMINATED?
An easement may be terminated by:
a) Estoppel – when the servient estate owner
reasonably relies (or materially changes
position) on an assurance that the easement will
not be enforced;
b) Termination of the necessity;
c) Involuntary destruction of the servient estate;
d) Condemnation of the servient estate;
e) Written release;
f) Abandonment – a physical action showing an
intent to never use the easement again;
g) Merger of the properties (if land is separated
again, it does not revive the easement); OR
h) Prescription.
63
What is is a license?
the privilege to use another’s land in a
particular way.
− Doesn’t need to be in writing.
− May be revoked at any time by the licensor, BUT
licensor may be estopped from revoking if
licensee invested substantial money/labor in
reasonable reliance.
*A license is NOT an interest in land.
64
What is a profit?
gives the holder the right to take natural resources such as petroleum, minerals, timber, and wild game from the land of another.
65
HOW TO DETERMINE A FIXTURE?
Courts consider the (1) nature of the item, (2) way it is attached, (3) damage that would result if removed, and (4) extent to which the item is adapted to the property.
− The more the item is incorporated into the
property, the more likely it’s a fixture.
66
WHAT IS THE TRADE FIXTURE EXCEPTION?
An item attached for a tenant’s trade or business is NOT a fixture UNLESS removal causes substantial damage to the property.
– But, the item may become a fixture if it’s not removed before the end of the lease term.
67
WHAT ARE THE ELEMENTS OF ADVERSE POSSESSION?
The possession must be:
1) Continuous for the statutory period;
2) Open and notorious – use that would put a true
owner on notice;
3) Exclusive;
4) Actual – possess the land as a true owner
would; AND
5) Hostile and under a claim of right (without the
true owner’s consent).
68
WHAT IS AGGRESSION/TACKING?
Adverse possessors in privity may aggregate their years spent possessing the property to meet the statutory period.
− Privity → exists when the land is voluntarily
transferred to another (i.e. deed or bequest).
69
WHAT KIND OF TITLE IS ACQUIRED WITH ADVERSE POSSESSION?
The same title that the previous owner possessed.
70
WHAT IS A CONSTRUCTIVE ADVERSE POSSESSION?
If a person takes possession of a portion of land under color of title
(invalid deed), the adverse possession extends to the entire portion of land described in the deed/title.
71
What are the requirements of a land sale contract?
It MUST:
1) Be in writing (satisfy the Statute of Frauds);
2) Describe the property;
3) Identify the parties;
4) Contain the purchase price; AND
5) Be signed by grantor/grantee (depending on
whom the contract is being enforced against).
72
What is the merger doctrine?
Once the deed is delivered & accepted, the land sale contract merges with the deed. Result is that rights to sue under the contract are EXTINGUISHED, and a buyer may only sue upon the deed.
Some Courts → will NOT apply the merger doctrine if it
doesn’t carry out the probable intent of the parties.
− Examples: mutual mistake, scrivener’s error.
73
What is the warranty of marketable title?
Seller has the duty to convey marketable title to a buyer. Marketable Title = title must be free from any cloud and not subject to any adverse claim.
74
What makes a title unmarketable?
if the property has a substantial defect, such as:
a) Defect in the record chain of title; and/or
b) Encumbrances → mortgages, liens, restrictive
covenants, easements, a claim of adverse
possession, or zoning violations.
75
Do zoning restrictions make a title unmarketable?
No
76
What if seller can't convey marketable title at closing?
The buyer may withdraw without penalty. A buyer MAY waive the defect. If the buyer waives, seller cannot cancel the contract.
77
How are damages for breach of warranty of marketable title measured?
measured by the reduced value of land. Courts are divided on whether damages are recoverable if the encumbrance is known or
obvious.
78
What is the doctrine of equitable conversion?
Split ownership between the buyer and seller once the land sale contract is signed. Buyer has equitable title of the property and the seller has the legal title and holds the property in trust for the buyer.
79
Who bears the risk of loss in a land sale?
Most States → risk of loss transfers to the buyer upon signing the contract.
Minority States → Seller bears the risk of loss UNLESS buyer has possession or title to the property at the time of loss.
80
What is the time of performance for a land sale?
Even though a land sale contract may specify a closing date, the time for performance may be changed if requested by one of the
parties.
81
What is an exception to the time of performance?
If the contract contains a “time is of the
essence” clause. If buyer fails to perform on the closing date, it’s
deemed a material breach and the seller may keep the down payment as liquidated damages.
82
What is an action for specific performance?
If real property is unique then specific performance is adequate remedy.
83
What is the exception to the remedy of specific performance?
If the property has been sold to a Bona Fide Purchaser without notice.
84
WHAT IS THE HOMEBUILDER'S IMPLIED WARRANTY?
Warranty that protects buyers of newly built homes against latent defects and warrants the home is safe and fit for human habitation at the time of sale.
85
WHAT IS A LATENT DEFECT?
a defect that could not have been discovered by a rx inspection.
86
WHAT HAPPENS IF THE HOMEBUILDER'S IMPLIED WARRANTY IS BREACHED?
It allows a buyer to recover damages discovered within a rx time for a) defective construction or b) construction not performed in a workmanlife manner.
87
ARE SUBSEQUENT PURCHASERS PROTECTED BY THE HOMEBUILDER'S IMPLIED WARRANTY?
In some states → requires privity of contract with
the home builder. In other states → warranty applies because a
subsequent buyer is in the same vulnerable
position.
88
What are the requirements for a deed?
A valid deed MUST:
1) be in writing;
2) signed by the grantor;
3) identify the parties (grantor & grantee);
4) describe the property; AND
5) indicate the grantor’s intent to convey the land.
89
How does a grantor convey land?
Using any words indicating grantor’s intent to immediately convey the land such as grant, convey, give, transfer.
− BUT, intent will not be found if: (a) grantor expressly reserves the right to revoke the deed; OR (b) gives an instruction to only deliver the deed upon grantor's death.
90
What happens when a deed is unconditional on its face and given to the grantee?
Any additional oral conditions are not valid. But if the same deed is given to a 3rd party, the additional conditions create a conditional delivery.
91
WHAT IS A GENERAL WARRANTY DEED?
Present Covenants (only breached at the time of conveyance):
1) Seisin – rightful owner;
2) Right to convey; and
3) Covenant against encumbrances.
Future Covenants:
1) Warranty – to defend against any third-party
claims to title;
2) Quiet enjoyment – to not be bothered by a
third-party’s claim to title; and
3) Further assurances – to do whatever is
reasonable to perfect title.
92
HOW TO ENFORCE A PRESENT COVENANT?
Under common Law → present covenants are NOT
enforceable by remote grantees.
In some states → will enforce the covenant
against encumbrances if the remote grantee did
not have notice of the encumbrance.
93
WHAT IS A SPECIAL WARRANTY DEED?
Warrants that seller has not breached the covenants of title during the ownership:
1) Seller has not previously conveyed the property; AND
2) No encumbrances against title made by seller.
94
WHAT IS A QUITCLAIM DEED?
An "as is" deed, which contains no deeds/warranties.
95
What is estoppel by deed?
If grantor conveys title to real property before he owns it, the title will auto verst in the grantee as soon as the grantor acquires title.
96
WHAT IS CHAIN OF TITLE?
An index that show all transfers for a piece of land. Two different indexes - one organized by grantor, the other by grantee.
97
What is a wild deed?
A deed no recorded properly and this not discoverable in the dane of title.
98
What kind of deed doesn't put subsequent purchasers on constructive notice of land transfers?
A wild deed.
99
Define a notice statute jx.
A subsequent bona fide purchaser will prevail over a prior grantee that failed to record.
100
Who is a bona fide purchaser?
A purchaser that has no notice of defect in title and who pays the value of property.
101
Define a race statute jx.
Whomever records first prevails. Notice is irrelevant.
102
Define a race-notice statute jx.
A subsequent bona fide purchaser is protected only if he records prior to grantee.
103
WHAT IS THE SHELTER RULE?
Anyone who purchases land from a bona fide purchaser receives the same status and rights as the bona fide purchaser.
104
What are mortgage requirements?
To be valid, the mortgage MUST:
1) be in writing,
2) be signed by the party to be charged, AND
3) reasonably identify the parties and the land.
105
WHAT IS A FUTURE-ADVANCED MORTGAGE?
It is a loan in which the lender may provide future payments under the original loan. The lender secures the mortgage for the entire loan amount, including the future advances.
106
WHAT ARE THE 2 TYPES OF FUTURE-ADVANCED MORTGAGES?
Obligatory and optional future payments.
107
WHAT IS AN OBLIGATORY FUTURE-ADVANCED PAYMENT?
The lender has a duty to advance funds regardless of the situation. If obligatory then all payments are considered part of the original loan and have priority over later liens.
108
WHAT IS AN OPTIONAL FUTURE PAYMENT?
The lender has discretion to advance funds. If optional then the future payments DON'T have priority over liens recorded before the payment is made.
109
What is a deed of trust?
Similar to mortgage except it involves 3 parties - the borrower, the lender and the 3rd party trustee. The trustee holds title to the property until the loan is paid off then title is transferred to the purchaser.
110
What is an express mortgage assumption?
It occurs if there is an express agreement for grantee to take the real property and to continue to make mortgage payments.
111
What is an implied mortgage assumption?
Only allowed in a few states. It occurs if there is no express agreement, when grantee pays only the equity in the home and grantee continues to make payments to the lender for the balance of mortgage.
112
What if a buyer “assumes” the mortgage?
Buyer is primarily and personally liable on the mortgage, while the seller remains secondarily liable.
113
What if If a buyer takes real property subject to a seller’s mortgage?
Buyer is NOT personally liable on the mortgage. BUT, a duly recorded mortgage remains on the land, and mortgagee (lender) may foreclose on
the mortgage.
114
What is a foreclosure?
It destroys all junior mortgages, but all senior (prior recorded) mortgages are NOT affected.
115
What is the order of preference in a foreclosure?
1. Attorney fees and costs associated with sale, 2. debts owed to the lender, 3. any money left over goes to the mortgagor (debtor).
116
What is a deficiency judgment?
The mortgagee (lender) may seek a deficiency judgment against the debtor if the proceeds of a sale are insufficient to satisfy the mortgage of debt.
117
How do you transfer a mortgage note?
In some states → require that the mortgage note be assigned along with the mortgage. While other states → the note automatically follows
the mortgage when it’s properly assigned (even without notice to the mortgagor).
118
When is a mortgagor not liable to an assignee of the mortgage note?
If, 1) mortgagor pays assignor, AND 2) never received notice of assignment.
119
Are zoning regulations allowed?
Yes if they rx protect the health, safety, morals, or general welfare of the community.
120
What is a variance?
A variance is an exception to a zoning ordinance. It may be granted if: 1) Property owner shows he will suffer hardship because of the ordinance; AND2) Variance will not damage or harm the public
welfare.
121
What are the two type of variances?
Use variance and area variance.
122
What is previous non-conforming use?
It allows a landowner to continue to use his land in violation of a later enacted statute.
123
What if you make a change to a non-conforming use property?
If it is an unsubstantial chance or a rx alteration to repair the property then it is permitted. However, if it is a substantial change that either enlarges, alters, or extends the non-conforming use then the change is not permitted.
124
What do you do if there is a conflict of laws?
You apply the state law for where the real property at issue is located (the situs rule) for cases involving the title/sale of real property.
125
What is the Rest. 2nd approach to conflict of laws?
It is presumed that the situs state has the most significant relationship.
126
What is the Rest. 1st approach to conflict of laws?
It applies the state law where the real property is located the situs rule.
127
What is the interest analysis approach?
It applies the state law of where real property is located unless another state has a greater interest in having their law applied.
128
What if the land is merely incidental to a contract (brokerage contract, mortgage, agreement)?
Apply the choice of law rules for contracts.
129
What is the discrimination and fair housing act?
The FHA prohibits discrimination in house related activities based on a person's race/color, religion, sex, national origin, disability and or familial status.
130
What is exempted to the FHA?
1. Religious orgs, 2. private clubs that limit occupancy to members, 3. owner occupied building with no more than 4 units occupied by persons living independently of each other, 5. single family houses sold or rented by the owner, as long as the owner doesn't own more than three houses.
131
What is a discriminatory advertisement?
An ad that violates the FHA. No exemptions.
