Real Property Flashcards
(280 cards)
1
Q
ownership
what are the ways to transfer a property?
A
- sale
- gift
- devise (will)
- intestate succession (dies without will)
2
Q
ownership
when is a gift in a will effective?
A
when decedent dies
3
Q
ownership
how do you divide up ownership interests in time?
A
present interests + future interests
key distinction is timing of the possession
4
Q
ownership / present estates
what are the types of present estate interests?
A
- fee simple absolute
- fee simple determinable (defeasible)
- fee simple subject to a condition subsequent (defeasible)
- fee simple subject to an executory interest (defeasible)
- life estate
defeasible = may be terminated by the occurrence of an event, can last forever or terminate early
5
Q
magic words - what type of interest is this?
” and her heirs”
A
fee simple absolute
6
Q
magic words - what type of interest is this?
O conveys to CK while she uses it as a garden
A
fee simple determinable
7
Q
magic words - what type of interest is this?
O conveys to CK, but if the land no longer is a garden, O may re-enter and re-take the property.
A
fee simple subject to condition subsequent
8
Q
what is the default present estate?
A
fee simple absolute
9
Q
ownership / present estates
fee simple absolute
A
- capable of lasting forever, no associated future interest
- inheritable
- transferable
- “my hope and wish” are not enough to show intent of FSA
10
Q
ownership / present estates
fee simple determinable
A
- limited by durational language
- “so long as”
- “while”
- “during”
- “until it is no longer used as a basil garden”
determinable = durational
11
Q
ownership / present estates
fee simple subject to condition subsequent
A
- limited by specific conditional language
- grantor must exercise a right in order to take possession (grantor holds)
- “but if”
- “provided that”
- “on the condition that”
if 3p has the future interest (not the grantor), then it’s FS subj to EI
12
Q
ownership / future interests
what are the types of future interests?
A
- possibility of reverter (defeasible fees)
- right of entry (defeasible fees)
- reversion
- remainder
- executory interest
13
Q
ownership / future interests
possibility of reverter
A
- future interest is held by grantor after fee simple determinable
- interest vests automatically after durational period
14
Q
ownership / future interests
executory interest
A
- future interest that will terminate (divest) an earlier interest
- future interest is held by 3p following fee simple determinable
two types
* springing EI - divests the grantor
* shifting EI - divests a prior grantee
15
Q
ownership / future interests
right of entry
A
- future interest held by the grantor following fee simple subject to condition subsequent
- doesn’t vest automatically, must be reclaimed
also called power of termination
16
Q
ownership / future interests
fee simple subject to executory interest
A
- future interest is held by a transferee (3p) not grantor
- ends upon happening of an event + future interest vests in 3p
17
Q
ownership / present estate
life estate
A
- possession by a life
- look for “for life”
- if ambiguous, look at grantor’s intent to create an estate that will end upon the death of the measuring life
- ends naturally when measuring life ends
- transferable (but still focus on measuring life)
- can’t pass the property by will
- no intestate succession
18
Q
ownership / future interests
reversion
A
if possession goes back to grantor after life estate ends, grantor retains a reversion
if contingent remainder doesn’t vest becomes it becomes possessory, grantor has a reversion
19
Q
ownership / future interests
remainder
A
- if possession goes back to a 3p after life estate ends, 3p has a reminder
- no reminder after vested fee simple
- can be vested or contingent (two types)
20
Q
ownership
Doctrine of Waste
A
- more than one party has an interest in the same piece of property
- affirmative waste - waste caused by voluntary conduct which causes a decrease in value
- permissive waste - waste caused by neglect of property which causes decrease in value
- ameliorative waste - person in possession changes use of property and increases its value (ex. renovation, construction of dam, fixing a fence)
key situations:
- landlord / tenant
- co tenant out of possession / tenant in possession (concurrent state)
- mortgagee / mortgagor
21
Q
tip
How do you spot a waste problem?
A
- do multiple parties have simultaneous interests?
- is there a change in value of the property due to actions/inactions of the party in possession?
- will the waste substantially change the interest taken but the party out of possession?
22
Q
ownership / future interests
vested remainder vs. contingent remainder
A
interest that is
1. given to an ascertained grantee (you can ID them) AND
2. not subject to a condition precedent
if 1 + 2 met, vested remainder
if fails, contingent remainder
23
Q
ownership / future interests
vested remainder subject to open
A
- class gift
- full class membership is unknown
- at least one person in the class must be vested for it to be vested subject to open; if not, contingent remainder
- class closes when all members of the class are identified
24
Q
ownership / future interests + RAP
Rule of Convenience
A
way to close a class to avoid application of RAP to a class gift
if no express closing date, this rule closes the class when any member of the class becomes entitled to immediate possession
interpretative rule
25
# ownership / future interests
Doctrine of Worthier Title
prevents remainders in a grantor's heirs
creates a presumption of a reversion to the grantor
rebuttable by showing of contrary interest
A conveys “to B for life, remainder to A’s heirs.”
With Doctrine: B has life estate, A has reversion (unless contrary intent is established)
W/o Doctrine: B has life estate, A's heirs have contingent remainder
26
# ownership / future interests
Rule of Shelley's Case
prevents reminders in a grantee's heirs
uses doctrine of merger to create a fee simple
changes the remainder of heirs from fee simple absolute to contingent remainder
A conveys “to B for life, remainder to B’s heirs.”
With Shelley's Case: B has life estate, heirs have FSA
Without: B has life estate, heirs have contingent remainder
27
# tip
what's an easy (not perfect) way to tell if springing or shifting executory interest?
two parties (grantor + grantee) --> likely springing b/c grantee will divest the grantor
three parties (grantor + two grantees) --> likely shifting b/c a grantee will divest another grantee
28
# RAP
what is the context for RAP?
* prevents remote vesting
* testing for certainty
29
inter vivios transfer
interests created at time of the grant
30
devise
will
interests created at testator's death NOT when will is drafted
31
# RAP
what are the steps to a RAP analysis?
1. when - ID when interests are created
inter vivos - time of transfer
devise - testator's death
2. what - are the interests subject to RAP; RAP applies to these
contingent remainders
executory interests
class gifts subject to open (only vested remainders subject to open not closed ones)
3. who - ID relevant and validating lives
validating lives - look at whether interest vests within lifetime + 21 years
if no validating life, interest is bad so get to stick
if validating life, interest is okay
4. strike out the violating interest as if it was never created
32
relevant life
person who affects vesting, usually mentioned or implied by the grant
33
validating life
person who tells us whether or not the interest vests within the perpetuities period (lifetime + 21 years)
must have been alive when interests were created
can validate her own interest
34
# RAP
what is the special rule for RAP and class gifts?
if gift to **any** member of the class is void under RAP, THEN the gift is void to **all** members of the class
all or nothing rule
35
# RAP
what are exceptions to the class gift rule
all or nothing doesn't apply
* transfers of a specific dollar amount to each class member
* transfers to a subclass that vests at a specific time
36
# RAP
exceptions to RAP
1. charities - doesn't apply to a gift from one charity to another charity
2. options - doesn't apply to option held by a current tenant to purchase a fee interest in a leasehold property
3. options - doesn't apply to option or right of first refusal in a commercial transaction
37
# RAP
what is the modern approach to traditional RAP?
* Uniform Statutory Rule Against Perpetuities
* wait and see approach
* wait and see if an interest is subject to RAP within the perpetuities period
* some states use vesting period of 90 years
38
cy pres
equitable doctrine that allows a court to reform a transfer to avoid RAP
| trusts
39
# concurrent estates
what are concurrent estates - definition + basic rule
ownership or possession of real property by 2+ people simultaneously
concurrent owners each have right to use/possess **the entire property**
BUT can contract out of the basic rule
40
# concurrent estates
types of concurrent estates / concurrent ownership
which one is the default?
1. tenancy in common (default)
2. joint tenancy
3. tenancy by the entirety
41
# concurrent estates / tenancy in common
tenancy in common
* default
* concurrent owners have separate but undivided interests in the property
* no right of survivorship
* each co-tenant can transfer the property freely during life or at death
42
# concurrent estates / joint tenancy
joint tenancy - definition / key characteristic
**right of survivorship** - surviving joint tenant(s) automatically take the deceased tenant's interest
43
# concurrent estates / joint tenancy
how do you create a joint tenancy?
1. grantor must make clear expression of intent AND
2. must be survivorship language ("as joint tenants with a right of survivorship")
3. four unities
44
# concurrent estates / joint tenancy
what are the four unites?
PITT
1. possession - each JT has an equal right to possess the whole of the property
2. interest - JTs must have an equal share of the **same type** of interest
3. time - must receive their interests at the same time
4. title - must receive their interests in the same instrument of title
45
# concurrent estates / joint tenancy
how do you sever a joint tenancy?
* if one of the four unities is lost, JT is severed and becomes tenancy in common
* inter vivos transfers - transfer during life will sever the right of survivorship and convert to tenancy in common
* mortgages (see other flashcard)
* leases (see other flashcard)
46
# concurrent estates / joint tenancy
does a lien against a joint tenant's interest sever the joint tenancy?
no b/c the lien terminates upon tenant's death so surviving tenants' interests are not encumbered
47
# concurrent estates / joint tenancy
does a mortgage sever a joint tenancy?
| JT grants a mortgage interest in the JT to a creditor
**majority**: lien theory --> mortgage is treated as a lien, doesn't destroy JT
**minority**: title theory --> mortgage severs title, tenancy b/c JT and creditor is converted to tenancy in common
48
# concurrent estates / joint tenancy
does a lease sever a joint tenancy?
| JT leases her share in the property to a tenant
**some juris**: lease severs the JT
**other juris**: treat the lease as temporary suspension of JT
49
# concurrent estates / tenancy by the entirety
tenancy by the entirety
* JT b/t married people (marriage is the fifth unity)
* right of survivorship
* can't alienate or encumber their shares without consent of spouse
* need clear expression like "as tenants by the entity, with a right of survivorship"
* if grant is ambiguous, cts presume it's JT or tenancy in common
50
# concurrent estates / rights and obligations
what is the tenant's right to possess the property?
each co-tenant has right to possess **all** of the property, regardless of their share and type of co-tenancy
EXCEPT if co-tenants entered into an agreement to contrary
51
# concurrent estates / rights and obligations
what is ouster?
co-tenant in possession denies another co-tenant access to the property
52
# concurrent estates / rights and obligations
what remedies are available for ouster? (for the ousted tenant)
* injunction granting access to the property
* recover damages for value of use while they were unable to access the property
53
# concurrent estates / rights and obligations
how is rent from a 3p divided?
subtract operating expenses
divided based on ownership interests of each co-tenant
54
# concurrent estates / rights and obligations
how are operating expenses divided?
necessary charges are divided based on ownership interests
can collect contribution from other co-tenants for payments in excess of their share
55
# concurrent estates / rights and obligations
how are the costs of repairs and improvements divided?
no right to reimbursement for necessary repairs or improvements
BUT can get credit in a partition action
56
# concurrent estates / rights and obligations
what is partition? what type of holders is it available to?
* equitable remedy
* available to tenancy in common OR joint tenancy (NOT tenancy by the entirety)
* unilateral right
57
# concurrent estates / rights and obligations
what is the effect of partition?
court will divide the property into distinct portions
1. physical partition / partition in kind (preferred)
2. partition by sale - if physical partition is not practical OR not fair to all parties
58
# concurrent estates / rights and obligations
how are the proceeds from a partition divided?
divided among co-tenants based on ownership interests
59
# concurrent estates / rights and obligations
can you agree not to partition a property?
yes, can agree not to partition
it is enforceable IF (1) agreement is clear AND (2) time limitation is reasonable
60
# discrimination / FHA
Fair Housing Act (FHA)
FHA prohibits discrimination in the sale, rental, and financing of dwellings
prohibits advertising that states a discriminatory purpose
61
# discrimination / FHA
what is covered and not covered by FHA?
(types of housing)
* includes multi-family residential housing
_exemptions:_
* single-family housing without a broker
* owner-occupied buildings with 4 or fewer living units
* religious organizations and private clubs
62
# discrimination / FHA
what traits are protected?
* race, color, religion, national origin, sex (sexual orientation + gender identity), disability, familial status
* families with children under 18 + pregnant
special exemptions for senior living
reasonable accommodations for people with disabilities
63
# discrimination / FHA
what actions are prohibited?
* refusing to rent, sell, or finance a dwelling
* requiring different rents
* falsely denying that a unit is available
* providing different services to facilities (except making reasonable accommodations for disability)
* stating a discriminatory preference in an ad (doesn't apply to single-fam w/o broker + boarding house unless shared living areas and restriction is sex-based)
64
# discrimination / FHA
what intent is required?
disparate treatment (intent) + disparate impact (effect)
65
# discrimination / FHA
what causation is required?
prohibited behavior must be linked to the protected basis
66
# conflict of laws
for property, what is the controlling law (baseline rule)?
based upon where the property is located (law of the situs)
applies to these cases:
* foreclosure
* land contract dispute
* equitable interests
* intestate succession
* interpretating conveyances
67
# conflict of laws
what are the exceptions to the baseline rule (law of situs)?
* choice of law provision
* cases involving marriage, especially classifying property as marital or separate --> domicile of party may override law of the situs
* mortgages: mortgage docs may require repayment to be made in another state
68
# landlord + tenant
what does a lease create?
contract interest + property interest
69
# landlord + tenant / tenancies
what are the four tenancies that govern the landlord-tenant relationship?
1. tenancy for years
2. periodic tenancy
3. tenancy at will
4. tenancy at sufferance
| how is each created? how is each terminated?
70
# landlord + tenant / tenancies
tenancy in years
* measured by a fixed and ascertainable amount of time
* created by agreement by landlord and tenant
* need to demonstrate intent to create the leasehold
* if longer than 1 year, needs to be in writing (SOF)
* automatically ends at expiration of term (no notice require)
* can end early if tenant surrenders the lease OR if tenant or landlord commits a material breach
71
# landlord + tenant / tenancies
periodic tenancy
* estate that is repetitive and ongoing for a set period of time
* renews automatically at end of each period until one party gives proper notice of termination
* must intend to create this
* intent can be express (signed lease) or implied (payment of rent)
* old approach to termination: must give 6 month notice for year-to-year lease
* new approach to termination: shorter notice requirements
* proper notice = gives notice before start of last term (generally written)
72
# landlord + tenant / tenancies
tenancy at will
* may be terminated by either landlord or tenant at any time for any reason
* created by express agreement or implication
* can be terminated by either party without notice
* if agreement gives ONLY landlord right to terminate at will, tenant gets right too by implication
* if agreement gives ONLY tenant right to terminate, landlord does NOT get the right too
* terminates at death of landlord or tenant
73
# landlord + tenant / tenancies
what is the only tenancy that ends automatically when landlord or tenant dies?
tenancy at will
74
# landlord + tenant / tenancies
tenancy at sufferance
* created when tenant holds over after lease ends
* temporary tenancy exists before landlord evicts the prior tenant OR re-rents the property to the tenant (creates a new tenancy with holdover tenant)
* tenant owes landlord reasonable value of their daily use + reasonably foreseeable special damages
* created by actions of tenant alone
* termination if (1) tenant voluntarily leaves, (2) landlord evicts tenant, or (3) landlord re-rents to tenant
75
# landlord + tenant / tenant duties
what are the tenant's two basic duties?
1. pay rent
2. avoid waste
76
# landlord + tenant / tenant duties
in what situations is the duty to pay rent suspended?
1. premises are damages (as long as tenant didn't cause the damage)
2. landlord completely or partially evicts the tenant
3. landlord materially breaches the lease
| partial eviction is when they're removed from part of the property
77
# landlord + tenant / tenant duties
implied covenant of quiet enjoyment
tenant can withhold rent when landlord takes actions that makes the premises wholly or substantially unstable for their intended purposes + tenant is constructively evicted
78
# landlord + tenant / tenant duties
constructive eviction
1. premises were unstable for their intended purposes (breach of covenant of quiet enjoyment)
2. tenant notifies landlord of the problem
3. landlord doesn't correct the problem AND
4. tenant vacates the premises after a reasonable amount of time has passed
79
# landlord + tenant / tenant duties
implied warranty of habitability
* landlord has an obligation to maintain the property such that it is suitable for residential use
* conditions that threaten tenant's heath and safety
* can't waive
* residential only, not commercial
* if premises are not habitable, tenant may (1) refuse to pay rent, (2) remedy the defect and deduct costs from rent, or (3) defend against eviction
* can use offensively or defensively
* does not require tenant to move out
80
# landlord + tenant / tenant duties
what is the major different between implied warranty of habitability vs. quiet enjoyment and constructive eviction?
habitability does NOT require tenant to move out
81
# landlord + tenant / tenant duties
duty to avoid waste
* background rule, doesn't need to be expressed in lease
* tenant has duty not to commit affirmative (voluntary) or permissive (neglectful) waste
82
# landlord + tenant / tenant duties
duty to repair
in residential lease: landlord is presumed to be responsible for repairs
tenant must notify landlord of any needed repairs
83
# landlord + tenant / landlord duties
duty to mitigate damages
if tenant abandons property early or is evicted, does the landlord have an obligation to mitigate damages by re-renting the property?
**majority rule:**
* landlord must make reasonable efforts to re-rent the property
* must treat property as if it were vacant stock
* tenant is relieved from obligation to continue paying rent if landlord doesn't make diligent efforts to mitigate
* landlord gets different between original rent vs. rent received from replacement tenant
**minority rule:**
* landlord doesn't have to mitigate damages
* more common in commercial leases
84
# landlord + tenant / landlord duties
how can the landlord deal with a holdover tenant?
* evict them
* continue the relationship by treating them as a periodic tenant (accept rent)
rent is amount under old lease UNLESS landlord notified tenant of increased rent before expiration of old lease
85
# landlord + tenant / landlord duties
duty to deliver possession
**majority:**
landlord must deliver actual (physical) possession of leasehold premises
**minority:**
landlord is only required to deliver legal possession (right of possession)
86
# landlord + tenant / landlord duties
how does quiet enjoyment apply?
landlord can't deny the tenant quiet enjoyment --> violated when landlord (or agent) renders the premises unstable for intended purpose
87
# landlord + tenant / landlord duties
what does the landlord control on the leased premises?
common areas and nuisance-like behaviors of other tenants
does NOT control
* off-premises actions of 3p beyond landlord's control
* in residential lease, landlord must provide habitable premises
can't retaliate by evicting tenant if tenant complains
88
# landlord + tenant / tort liability
what duty does the tenant owe?
duty of care
extends to invitees, licensees, and foreseeable trespassers
89
# landlord + tenant / tort liability
who does landlord owe duty to?
liability to invitees, licensees, and foreseeable trespassers
**common law:**
responsible for negligent for latent (hidden) defects in which tenant hasn't been warned
responsible for faulty repairs completed by landlord negligently
responsible for negligence that causes injuries in common areas (NOT inside your apt)
**modern trend:**
landlords have general duty of reasonable care
90
# tip
if conveyance is ambiguous, discuss fee simple determinable + fee simple subject to condition subsequent
:)
91
# landlord and tenant / subleases and assignments
what is an assignment
complete transfer of the tenant's remaining term
92
# landlord and tenant / subleases and assignments
what is a sublease
transfer for less than the entire duration of the lease
tenant retains a **reversionary interest** in the leasehold
93
# landlord and tenant / subleases and assignments
in an assignment, who can landlord collect rent from?
tenant (b/c of privity of contract) OR subsequent tenant (b/c of privity of estate)
94
# landlord and tenant / subleases and assignments
in a sublease, who can the landlord collect rent from?
only the tenant (they have privity of contract + privity of estate)
95
# landlord and tenant / subleases and assignments
if a lease is silent on assignment and subleases, what is the default rule?
may assign or sublet freely
96
# landlord and tenant / subleases and assignments
if lease requires landlord's permission to transfer but doesn't provide a standard, what is the default standard?
**majority:** landlord may deny only for a commercially reasonable reason
**minority:** landlord may deny at their discretion, reason isn't required
97
# land sale contracts
what are the two stages of land sale contracts?
1. contract stage - negotiate terms
2. deed stage - transfer property
covenants under contract are merged into the deed and any remedy flows from the deed
98
# land sale contracts
what is liability based on in the two stages?
1. contract sage - any liability must be based on a contract provision
2. deed stage - . . . deed warranty
99
# land sale contracts
what is the statute of frauds for land sale contracts?
they are subject to SOF
1. must be in writing
2. must be signed by party to be charged
3. must include essential terms - parties (seller + buyer), description of the property, price and payment info
100
# land sale contracts
what are the two main exceptions to SOF?
1. part performance by either buyer or seller
basically need 2/3
(a) payment of all or part of purchase price
(b) possession by purchaser
(c) improvements by purchaser
2. detrimental reliance / estoppel
party has reasonably relied on the contract and would suffer hardship if the contract were not enforced
101
# tip
"FP orally agrees to purchase CK's home for $1.6mm"
what is this a flag for?
SOF for land sale contracts
102
# land sale contracts
what does every land sale contract include?
implied covenant of marketable title
103
# land sale contracts
what is the implied covenant of marketable title?
marketable title --> title is free from an unreasonable risk of litigation
* title acquired by adverse possession that hasn't been quieted
* private encumbrances (mortgage, convent, easement)
* violation of zoning ordinance
| applies to quit claim deeds too (PQs Set 1)
104
# land sale contracts
when does a defect in the marketable title need to be cured by?
needs to be cured or fixed **before closing**
closing is when deed and contract merge and deed controls
105
# land sale contracts
what is the standard to determine whether title is unmarketable? what is the remedy?
standard is of a reasonable buyer
if seller cant' deliver marketable title, buyer's ready is rescission of the contract
106
# land sale contracts
what is the basic rule for delays?
unless the contact or parties notify, time is NOT of the essence (rip)
failure to close on the closing date may be a breach, but NOT grounds for rescission
specific performance is still available
107
# land sale contracts
implied warranty of fitness or suitability
applies to defects in new construction
most jurisdictions: both initial homeowner/purchaser and subsequent purchasers may recover damages
minority: only OG buyer can enforce
suit must be brought within reasonable time after discovery of the defect
108
# land sale contracts
duty to disclose defects
duty on the seller to disclose to the buyer all known, physical and material defects
materially defect must substantially affect the value of the home, health and safety of occupants, or desirability
general disclaimers ("as is") don't satisfy seller's duty
109
# land sale contracts
seller's remedy if buyer breaches
* damages - difference b/t contract price and market price
* rescission - seller can sell to someone else
* specific performance
110
# land sale contracts
buyer's remedy if seller breaches
* damages - difference b/t contract price and market price on date of breach
* if seller breaches and acted in good faith, can only recover out of pocket expenses
* rescission - return payments to buyer and cancel contract
* specific performance
111
# land sale contracts
who bears the risk of loss if there is damage to or destruction of the property?
**majority:**
buyer holds equitable title b/t execution of contract and closing/delivery of deed
buyer is responsible for damage during that period
seller has right to possess the property (they hold legal title)
**minority:**
risk of loss on seller until closing and delivery of deed
112
# adverse possession
what are the basic rationales for adverse possession?
* punish true owner for sleeping on their rights
* reward adverse possessor for earring good title
when they get the property via AP, new title relates back to date of the person's entry on the property
property owned by govt can't be AP
113
# adverse possession
elements of adverse possession
OCEAN
1. _O_ pen
2. _C_ ontinous
3. _E_ xclusive
4. _A_ ctual
5. _N_ on-permissive (hostile)
114
# adverse possession
what are the stages of adverse possession?
1. entry phase - AP enters the land, triggers cause of action
2. end phase - SOL runs out so AP is now the legal owner
3. middle - AP makes use of the property
115
# adverse possession
what is required for (2) continuous?
* seasonal or infrequent use may be okay if use is consistent with type of property being possessed
* tacking - can tack on predecessor's time on the property to meet SOL; current AP must be in privity with prior AP
* SOL will not run against a true owner who has a disability at the time AP begins
* true owner can eject AP (stops the clock)
116
# adverse possession
what is required for (1) open?
use would put a reasonable true owner on notice of AP
can't be hidden
must use property as if they were the true owner
117
# adverse possession
what is required for (5) non-permissive (hostile)?
possession must be adverse to owner's interest
three frameworks
1. **majority:** ignores AP's state of mind
2. **minority / good faith:** AP's claim is hostile if they think land is unowned or that they are the rightful owner, based on a mistake
3. **minority / bad faith:** AP knows the land is not theirs and try to acquire title by AP, based on aggressive trespass
118
# adverse possession
what is required for (3) exclusive?
can't share possession with true owner
if multiple people possess together via AP, can acquire title and become tenants in common
119
# adverse possession
what is the scope of AP?
generally traces legal boundaries of the property, including subsurface rights (unless those belong to 3p)
easements can be acquired by AP
EXCEPTION: constructive AP - AP enters under color of title from an invalid instrument and occupies a portion of the property described in the instrument; in actual possession of the occupied land and gets constructive possession for the rest of the land on the deed
120
# deeds
what is a deed? what is needed for it to be valid?
legal instrument that transfers ownership of real property
1. must be delivered (includes intent)
2. must be accepted
121
# deeds
what is required for delivery?
* whether the grantor had the present intent to transfer the property
* physical transfer is NOT required
122
# tip
what to look for with deeds
whether delivery is incomplete or seemingly revocable
123
# deeds
what is required for acceptance?
presumed if the transfer is for value
124
# deeds
what is required for the contents of a deed?
**PTSD**
1. parties identitifed (grantor + grantee)
2. transfer (words of transfer - any words that evdience a present intent to transfer)
3. signed by grantor (SOF)
4. description of the property (doesn't need to be a legal description, just sufficient)
125
# deeds
what is required for execution of a deed?
* only grantor needs to sign
* doesn't need to be witnessed or notarized
* deed is void if signature is forged (even if bona fide purchaser)
* **equal dignities rule:** if agent is required to sign, then agency relationship must be created in writing
126
# deeds
when is a deed valid?
at delivery
127
# deeds
what is the common law recording rule?
deed does not have to be recorded to be valid
first in time, first in right principle
this rule controls if state doesn't have their own recording statute
128
# recording acts
what interests are covered in recording acts?
* deeds
* mortgages
* leases
* options
* judgments affecting title
* other instruments creating an interest in land (easements, convent)
* NOT title by adverse possession
129
# recording acts
who is covered/not covered by recording acts?
* subsequent purchasers (someone who has acquired an interest in land)
* NOT grantees who acquire title by gift, intestacy, device
protecting those with economic investments
130
# recording acts
what are the three kinds of notice?
1. actual - subsequent grantee has real, personal knowledge of a prior incident
2. constructive - recorded
3. inquiry - reasonable investigation would have disclosed existence of prior claims
inquiry notice ex. --> dude on the land, mentioned interest
131
# recording acts
"first recorded"
what type of recording statute is this?
race
132
# recording acts
"first recorded"
what type of recording statute is this?
race
133
# recording acts
"in good faith"
what type of recording statute is this?
notice
134
# recording acts
"without notice"
what type of recording statute is this?
notice
135
# recording acts
"in good faith and first duly recorded"
what type of recording statute is this?
race-notice
136
# recording acts
notice statute
subsequent purchaser wins if they acquired without notice of prior, unrecorded conveyance
"in good faith"
"without notice"
_flowchart_
X gives to A, then to B
1. did A record before mortgage to B? if yes, A wins.
2. did B know of mortgage to A? if yes, A wins. If no, B wins.
137
# recording acts
race-notice statute
subsequent purchaser wins if (1) acquired without notice of prior unrecorded conveyance and (2) records first
"in good faith" + "first recorded"
_flowchart_
1. did A record before mortgage to B? if yes, A wins
2. did B know of mortgage to A? if yes, A wins.
3. who filed first after mortgage to A? if A, A wins. if B, B wins.
138
# recording acts
what are the special rules to be aware of?
1. Shelter Rule
2. Estoppel by Deed
139
# recording acts
Shelter Rule
person who takes from a bona fide purchaser proceed by recording act has the **same rights** as the grantor
140
# recording acts
Estoppel by Deed
grantor conveys land they don't own
if a grantor subsequently acquires title to the land, the grantor is estopped from trying to repossess on grounds that they didn't have title when they made the original conveyance
141
# deeds
what are the kinds of deeds? which offers the most protection?
1. general warranty deed (most protection)
2. special warranty deed
3. quit claim deed (least)
142
# deeds
general warranty deed
grantor warrants against **all** defects even if they didn't cause the defect
6 implied covenants (first 3 = present convents, last 3 = future)
1. covenant of seisin
2. covenant of the right to convey
3. covenant against encumberances
4. covenant of quiet enjoyment
5. covenant of warranty
6. covenant of further assurances
| first you've gotta "SCE" (sick) it then F with queens (FWQ)
143
# deeds
covenant of seisin
warrants that the deed describes the land in question
144
# deeds
covenant of the right to convey
warrants that the grantor has the right to convey the property
145
# deeds
covenant against encumberances
warrants that there are no undisclosed encumbrances on the property that could limit its value
146
# deeds
covenant of quiet enjoyment
grantor promises that the grantee's possession will not be disturbed by 3p claim
147
# deeds
covenant of warranty
grantor promises to defend against future **valid** claims of title by 3p
148
# deeds
covenant of further assurances
grantor promises to fix future title problems
149
# deeds
special warranty deed
grantor warrants against defects **only caused by the grantor**
includes the six covenants but only apply to acts/omissions of grantor
150
# deeds
quitclaim deed
grantor makes **no warranties** as to the health of the title
151
# deeds
when does a breach of a present covenant occur?
at the conveyance
152
# deeds
when does a breach of a future covenant occur?
after the conveyance, once there is interference with possession
153
# deeds
what is the remedy for breaches?
damages
154
# wills
what is the guiding principle in interpretation of wills?
testator's intent
if they die without a will, estate is distributed by intestate succession
155
# wills
heirs
people who take decedents intestate estate
have to survive the dead person
156
# wills
devisee
person who takes a devise by will
| legatee
157
# wills
escheat
if decedent dies without a will and without heirs, decedent's property goes to the state
158
# wills
ademption
device of property that fails (adeems) b/c it is not in testator's estate at death
basic rule: gift fails and intended recipient gets nothing
satisfaction: if testator gives the promised gift during life, beneficiary keeps the gift (ademption by satisfaction)
159
# wills
lapse
intended beneficiary predeceases (dies before) testator
gift fails and would fall to the residuary gift
160
# wills
anti-lapse
every state has an anti-lapse statute to prevent a gift from failing b/c intended recipient dies before testator
to qualify, predeceasing beneficiary must be a relative of testator
the intended beneficiary (dead now) is replaced with a family member to take the gift
161
# trusts
definition of trust
device for managing property with bifurcated ownership
trustee owns the property (legal title) for the benefit of another person (beneficiary) who holds equitable title
162
# trusts
who has legal title?
trustee
163
# trusts
who has equitable title
beneficiary
164
# trusts
res
property that is subject to the trust
generally trust can't be empty
165
# trusts
bifurcated transfer
ownership is divided
one person gets legal title to act as owner
and someone else gets equitable title to benefit from that ownership
166
# restraints on alienation
what is a restraint on alienation?
restriction on transferring property
167
# restraints on alienation
situations where there are restrictions on transferring property
* inter vivos grant of an estate smaller than fee simple
* devise of an estate smaller than fee simple
* co-tenant agreement
* covenants that run with the land
* easements
168
# restraints on alienation
can you have an absolute restraint on alienation?
nope, void
169
# restraints on alienation
can you have a partial restraint on alienation?
valid if it is (1) for a limited time and (2) reasonable purpose
170
# restraints on alienation
can you have a restriction on use?
yep, generally permissible --> these are covenants
171
# restraints on alienation
what is the effect of the restraint on alienation?
if restraint is valid: any attempt to alienate will be null and void
if restraint is invalid: restraint is rejected and property can be alienated in violation of the restraint
172
# mortgages
what are the components of a mortgage?
1. note - borrower's promise to repay the loan/debt
2. mortgage - instrument that provides security for the note
173
# mortgages
what are the kinds of mortgages?
1. purchase money mortgage - person takes out a loan to buy property
2. future advance mortgage - line of credit for home equity
174
# mortgages
what is the majority rule for how mortgages are treated with joint tenancies?
lien state
treats mortgage as lien that does NOT sever a joint tenancy
175
# mortgages
what is the minority rule for how mortgages are treated with joint tenancies?
title state
mortgage DOES sever a joint tenancy and converts it to a tenancy in common
176
# mortgages / equitable mortgages
list the equitable mortgages (alternatives to mortgages)
* deed of trust
* installment land contract
* absolute deed
* conditional sale and repurchase
177
# mortgages / equitable mortgages
deed of trust
operates like a mortgage but uses a trustee to hold title for the benefit of the lender
178
# mortgages / equitable mortgages
installment land contract
seller finances the purchase, seller retains title until buyer makes final payment on installment plan
traditional rule: if buyer breaches (missing payment), seller keeps all payments made and the property
modern approaches: some treat installment contracts as mortgage requiring seller to foreclose
some give buyer equitable right to redemption to stop FCL
some allow seller to retain ownership, but require some restitution for what's been paid
| feels like rent to own
179
# mortgages / equitable mortgages
absolute deed
mortgagor (borrower) transfers the deed to the property instead of conveying a security interest in exchange for the loan
if this is a mortgage disguised as a sale, borrower must prove a mortgage-like agreement by clear and convincing evidence
parol evidence is admissible
SOF doesn't bar oral evidence
180
# mortgages / equitable mortgages
conditional sale and repurchase
sale lease back
owner has option to repurchase after loan is paid off
181
# mortgages / transfers
transfer by mortgagor/borrower - what is the liability of the mortgagor/borrower?
* mortgagor may transfer by deed (sale), will, intestate succession
* retains personal liability after transfer unless (1) mortgagee releases mortgagor or (2) lender modifies the transferee's obligation
* **due-on-sale clause**: lender has option to demand immediate full payment upon transfer; acceleration clause
* **due-on-encumbrance clause**: mortgagor obtains a second mortgage encumbers the property; acceleration clause
182
# mortgages / equitable mortgages
transfer by mortgagor/borrower - what is the liability of the subsequent transferee?
1. assumes the mortgage
upon default, transferee is personally liable for the mortgage + original mortgagor
doesn't need to be in writing
2. takes subject to the mortgage
transferee is not personally liable upon default
if deed is silent or ambiguous, subject to is default
183
# mortgages / equitable mortgages
transfer by mortgagee/lender - what happens?
mortgage follows the note
if bank transfers mortgage but not the note --> transfer is either (1) void b/c note is evidence of the debt or (2) note and mortgage are considered single entity so note follows the mortgage
| banks can transfer mortgages ofc
184
# foreclosure / before foreclosure
when can mortgagee/lender take possession in a lien theory state?
| three types of jurisdictions - lien theory state, title theory state, intermediate title theory state
can't take possession prior to FCL b/c lender has a lien until FCL is complete
mortgagor is owner until FCL
185
# foreclosure / before foreclosure
when can mortgagee/lender take possession in a title theory state?
| three types of jurisdictions - lien theory state, title theory state, intermediate title theory state
lender specifically has the right to possess the property at any time (b/c they hold the title)
186
# foreclosure / before foreclosure
when can mortgagee/lender take possession in an intermediate title theory state?
| three types of jurisdictions - lien theory state, title theory state, intermediate title theory state
mortgagor retains title until default, then lender can take possession
minority of juris
187
# foreclosure / before foreclosure
what is the rule for homeowners and waste?
homeowner can't commit waste that will impair lender's security interest
any type of waste except ameliorative waste
188
# foreclosure / before foreclosure
what is the equity of redemption?
common law right held by mortgagor to reclaim title and prevent FCL upon full payment of the debt
mortgagor must exercise **before** FCL sale
* deed in lieu of FCL
* clogging equity of redemption concerns
189
# foreclosure / foreclosure methods
is notice required for a foreclosure?
mortgagee must give notice before FCL
190
# foreclosure / foreclosure methods
what are the methods for foreclosure?
1. judicial sale
2. power of sale (private sale)
proceeds are used to pay off the debt
extra proceeds will satisfy other creditors
191
# foreclosure / foreclosure methods
is mortgagor responsible if the sale produces less than they owe?
yep, court can issue deficiency judgment for remaining balance
192
# foreclosure / priorities
what type of interests survive / don't survive after FCL?
1. senior interests survive
2. junior interests are extinguished
193
# tip
how to analyze priority of foreclosure claims
classify interest as junior or senior
apply rules to determine whether interest survives FCL
194
# foreclosure / priorities
what it the basic rule for FCL priority?
first in time rule
surviving debts are satisfied chronologically # foreclosure / priorities
195
# foreclosure / priorities / exceptions
list exceptions to basic priority rule
* purchase-money mortgage exception
* recording act exception
* subordination agreement between mortgages - agree to lower priority
* mortgage modifications
* future-advances mortgage - line of credit
* after-acquired property
196
# foreclosure / priorities / exceptions
what is the exception for purchase-money mortgages?
mortgage given to lender in exchange for a loan to buy real property
has priority over mortgages/liens created by/against mortgagor **prior** to mortgagor's acquisition
197
# foreclosure / priorities / exceptions
what is the recording act exception?
junior mortgage that satisfies recording statute may sometimes take priority over unrecorded senior mortgage
198
# foreclosure / priorities / exceptions
what is the rule for mortgage modifications?
if mortgage is more burdensome --> the modification is subordinate, OG mortgage stays superior
replace with a new mortgage --> get same priority except if the change is materially prejudicial to junior mortgage holder
199
# foreclosure / priorities / exceptions
what is the rule for after-acquired property?
mortgage must clearly state that it applies to after-acquired property
upon FCL, interest in after-acquired property is junior to purchase-money mortgage
200
# foreclosure / effects after FCL
what happens to mortgagor after FCL?
eliminates their interest in the property
EXCEPTION: statutory redemption - some states allow mortgagor to redeem property even after FCL sale, will restore title to homeowner
201
# foreclosure / effects after FCL
what happens to the purchaser of property at a foreclosure sale?
take the property fee and clear of any junior mortgage + subject to any senior mortgage
BUT
may be subject to mortgagor's statutory right of redemption (if it exists)
202
# foreclosure / effects after FCL
what happens to senior and junior interests after a foreclosure sale?
* senior interests aren't affected
* junior interests are destroyed
203
# easements / terms
easement
rights held by one person to make **use** of another person's land
204
# easements / terms
servient estate
land burdened by the easement
205
# easements / terms
dominant estate
land benefited by the easement
206
# easements / terms
affirmative easement
holder has the right to do something on someone else's property
207
# easements / terms
negative easement
holder has the right to prevent someone from doing something on their land
208
# easements / terms
easement appurtenant
easement is tied to the use of the land
fully transferable, goes with the land
209
# easements / terms
easement in gross
easement benefits the holder personally
only servient estate, no dominant estate
210
# easements / creation
what are the two ways to create an easement?
express or implied easement
211
# easements / creation
express easement
* subject to SOF (must be in writing)
* can be treated by grant or reservation
* subject to recording statutes
* negative easement must be express
212
# easements / creation / implied easements
implied easements
* informal, arise out of facts
* transferable
* not subject to SOF
* not subject to recording statues UNLESS subsequent purchaser had notice of the easement
213
# easements / creation / implied easements
what are the types of implied easements?
1. easement by necessity
2. easement by implication (easement by prior use)
3. easement by prescription
4. easement by estoppel
214
# easements / creation / implied easements
implied easement by necessity
* created only when property is **virtually useless** (like it's landlocked)
* (1) common ownership (dominant and servant estates were owned in common by one person) AND (2) necessity at severance (when it was severed, one of the properties became virtually useless w/o easement)
* strictly necessary
* ends when no longer necessary
215
# easements / creation / implied easements
implied easement by implication / prior use
created by an existing use on a property
1. common ownership - land owned by one person
2. before severance, owner uses land as if there's an easement on it (quasi-easement)
at this point, the land is split up
3. after severance, use must be continuous and apparent
4. necessity - use must be reasonably necessary to dominant estate's use and enjoyment
216
# easements / creation / implied easements
implied easement by prescription
* like acquiring via adverse possession, but this is about use (not possession)
* same elements as adverse possession **except exclusivity**
217
# easements / creation / implied easements
implied easement by estoppel
1. permission - permissive use (license)
2. reliance - second neighbor relies on the first neighbor's promise --> must be reasonable + in good faith
3. permission withdrawn by first neighbor
if reliance was detrimental to second neighbor, first neighbor is estopped from withdrawing permission (creates an easement)
218
# easements / scope
what is the scope of express easement?
* determined by the terms
* if terms are ambiguous, ct considers intent of OG parties
* changes in use are tested under **reasonableness standard** (reasonably foreseeable)
* if use exceeds the scope, dominant estate is trespassing on servient estate
219
# tip
fact patterns where a person with easement and holder of easement wants to redevelop or subdivide the property
considerations:
can the easements be transferred to the new holders of the estate?
was the new use an ordinary foreseeable development?
220
# easements / scope
is the holder of the dominant estate entitled to use the easement to access property acquired after the easement is created?
nope
221
# easements / scope
what is the scope of implied easements?
determined by nature and scope of prior use or necessity
222
# easements
who has the duty to maintain?
owner has the duty to maintain the property subject to an easement
unless parties contract out of this
223
# easements / termination
what are the methods to terminate an easement? (list)
* release - holder expressly releases it + in writing (SOF)
* merger - owner acquires the other land so it merges into the title
* abandonment - (1) non-use + (2) act demonstrating intent to abandon
* prescription - fail to protect against adverse possessor
* sale to purchaser
* estoppel
* end of necessity - easement is no longer needed
224
# easements / termination
what is needed for abandonment?
owner acts in an affirmative way to show a clear intent to relinquish the right
usually need (1) non-use + (2) act demonstrating intent to abandon
225
# easements / other interests that aren't easements
profit
right to enter another's land and remove a specific natural resource
operates similarly to an easement but can't be created by necessity
226
# easements / other interests that aren't easements
license
revocable permission to use another's land
can't revoke if detrmintal reliance (PQs Set 2)
| elements aren't revocable // easements bind successors, license only binds licensor
227
# real covenants
what is a real covenant?
promise conquering the use of the land that runs to successors to the promise
covenant includes interest in the land
228
# real covenants
what are benefits and burdens?
* benefit of the convent is the ability to enforce the covenant
* burden is being subject to it
229
# real covenants
what are the requirements for real covenants?
**TWIN-P** (almost like wimy)
1. touch and concern the land - benefit or burden must affect both parties
2. writing (SOF)
3. intent - OG parties must intend for the covenant to run with the land (look for express language)
4. notice - actual or constructive, maybe inquiry if equitable servitude
5. privity
230
# real covenants
what is required for (3) touch and concern the land?
benefit or burden must affect both parties
negative covenant - restriction on use will touch and concern b/c restrict what you can do
affirmative covenant - covenant to pay money (modern trend says that these do touch and concern)
231
# real covenants
what is horizontal privity? what is vertical privity?
* horizontal privity is about the transfer of property b/t original parties
* vertical privity is about an original party and their successor to the property
* horizontal refers to privity of estate where covenant and estate are in the same instrument
* only need horizontal privity for burdens
* strict vertical privity - successor must take the original party's **entire** interest
* relaxed vertical privity - takes only an interest that is **carved out** of the original party's estate
232
# tip
how to analyze real covenants
1. does this run the benefit or the burden
2. if benefit, you need relaxed vertical privity only (horiz privity doesn't matter)
3. if burden, you need horizontal privity + strict vertical privity
233
# real covenants
what is the remedy for breach of a real covenant?
damages
234
what are the two ways to bind a successor to an original party's promise?
1. real covenant
2. equitable servitude
235
what are the main differences b/t real covenant and equitable servitude?
* equitable servitude doesn't have privity requirement (privity required for real covenant)
* remedy for equitable servitude is inductive relief (real covenant is damages)
236
# equitable servitude
what is required to bind a successor?
1. writing
2. intended to run with the land
3. must touch and concern the land
4. notice (actual, record, or inquiry)
| same standards as real covenant BUT no privity
237
# equitable servitude
implied reciprocal servitude
* equitable servitude that is implied, writing not required
* usually come up in planned communities
1. developer must intend to create a covenant to all plots in subdivision
2. promises must be reciprocal (benefits and burdens on each and every parcel equally)
3. successor must be on notice of the restriction (at least inquiry notice)
4. must be a common plan or scheme --> look for recorded map, marketing or ads, oral or written mention that the lots are burdened by common restriction
238
# equitable servitude
what is the remedy for a breach?
injunctive relief
239
# tip
if I see a planned community (suburbia), what should I think of?
implied reciprocal servitude
240
# equitable servitude
changed circumstances doctrine
look for situations where the restriction no longer makes sense due to drastic changes in the surrounding area since the restriction was put in place
does the property subject to the restriction still retain some benefit from the restriction?
241
# equitable servitude
what equitable defenses are available?
* unclean hands (P not acting in good faith)
* laches (unreasonable delay)
242
what are common interest communities?
like condos, cooperatives, owners' associations
243
what is a fixture?
tangible personal property that is attached to real property in a manner that is treated as part of the real property
244
what are the two basic approaches to water rights?
1. riparian rights - landowners who border a waterway own the rights to the waterway, share the right to reasonable use of the water
2. prior approbation - first in time, firs tin right; first person gets the rights; must put water to beneficial use
245
what are the two basic approaches to support rights?
1. lateral support rights - neighboring landowner can't excavate as to cause a cave in on an adjacent owner's land; strict liability standard (neighbor's buildings didn't contribute to cave in) or negligence standard (did contribute)
2. subjacent support - like mineral rights, surface landowners have the right not to have their land subside from the activities of owners of underground rights
246
does a life estate tenant have to pay ordinary taxes on the property?
| PQs Set 1
yes, but only to the extend that the life tenant receives a financial benefit from the property
if they occupy the property --> financial benefit is fair market rent
if they don't occupy --> measured by income derived from the land
247
what is the doctrine of equitable conversion?
| PQs Set 1
when land-sale contract is silent about risk of loss
* **majority apply this doctrine - risk of loss is placed on party with equitable title at time property was destroyed UNLESS other party is at fault for the loss**
* Uniform Vendor and Purchaser Risk Act (minority) - seller retains risk of loss unless and until buyer takes possession or title is transferred
* applies to events that occur during the executory time period (b/t signing and closing)
* determination of who will receive proceeds depends on who had equitable title
248
what happens to junior interests if there's a deed in lieu of foreclosure?
| PQs Set 1
junior interests remain attached
mortgagee's interest is extinguished unless it was reserved
249
if there are 3 joint tenants, what happens if there's a sale of one interest? after the sale, what is one of the OG JTs dies?
| PQs Set 2
after sale: the new owner is tenant in common (1/3), other two are joint tenants (1/3 each)
after one of the JTs dies: there is a right of survivorship so the remaining JT gets 2/3
250
what is the rule for withdrawal of lateral and subjacent supports?
| PQs Set 2
if land is in its natural state: strict liability
if land is in improved state (like a house): if damage would have occurred in land were in natural state, SL
if not, liable if negligent
251
what is the common law exoneration-of-liens doctrine?
| PQs Set 2
applies when a devisee receives a specific devise of real property that is subject to an encumbrance
devisee is entitled to pay off any encumbrances on that property from the remaining assets of testator's estate
252
in installment land contracts, what are the ways to handle a buyer's failure to pay?
| PQs Set 2
1. allow seller to retain ownership but require some form of restitution to the buyer
2. offer the buyer an equitable right of redemption
3. treat as a mortgage, so seller must FCL to gain property + buyer has equitable right of redemption, etc.
253
“No conveyance or mortgage of real property shall be good against subsequent purchasers for value _and without notice unless_ the same be recorded according to law.”
what type of statute is this?
notice
254
“No conveyance or mortgage of real property shall be good against subsequent purchasers for value _and without notice who shall_ first record.”
what type of statute is this?
race-notice
254
“No conveyance or mortgage of real property shall be good against subsequent purchasers for value _unless the same be first recorded_ according to law.”
what type of statute is this?
race
255
When is an acceleration clause (due on sale) on residential property NOT enforceable?
| PQs Set 3
* devise, descent, or transfer to joint tenant upon death
* transfer to spouse or child
* transfer to ex-spouse in divorce
* transfer to borrower's living trust
* creation of subordinate lien w/o occupancy rights
* granting leasehold interest < 3 yrs w/o option to purchase
256
priority for mortgages with future advances
| Essay 2614
this is like an installment loan
if future advances are obligatory, then a senior future advance loan has priority over junior loans
even if some of the money was paid out after the junior loan was created
257
is a mortgage subject to the same defenses as the underlying obligations by that mortgage? what if the mortgaged property is transferred to a donee?
| PQs Set 4
A mortgage is subject to the same defenses (e.g., mistake, duress, fraud) as the underlying obligation or debt secured by that mortgage
when mortgaged property is transferred to a donee, the donee is entitled to assert the donor-mortgagor's defenses against the mortgagee-lender
purchaser who assumes an existing mortgage obligation as part of the purchase price may not assert the donor-mortgagor's defenses
258
future interests of grantor
| from Trusts Lecture Handout
* possibility of reverter (goes with FS determinable)
* right of entry (goes with FS subj to condition subsequent)
* reversion (goes with life estate)
259
future interests of transferees
| from Trusts Lecture Handout
* remainder (vested or contingent or vested subject to open / class gift)
* executory interest (springing or shifting)
260
what happens if class member dies
| from Trusts Lecture Handout
generally automatic right of survivorship
on death of class member, that member's share is automatically redivided among surviving class members
R3d - share of deceased class member goes to class member's surviving issue
261
"Trustee shall distribute support to son for life, then to my grandchildren, with the children of any deceased grandchild taking in their parent's place."
what happens if grandchild dies without issue before Son?
| from Trusts Lecture Handout
UPC: future interests under a trust are contingent on beneficiary surviving until distribution
grandchild takes nothing (gift fails)
common law: survival of child is not essential, deceased grandchild's estate takes the interest
| this is from an old MEE question, confusing
262
how to you validly escrow a deed?
| NCBE Simulated MBE 1
need to place the deed beyond your control - can't reserve power over it once given to the attorney
263
who is responsible for paying current charges (property taxes, mortgage interest, etc.) on a concurrent estate?
one party is life tenant, other is remainder
| UWorld
life tenant has duty to pay current charges up to the amount of income that can be generated from the land
264
is an easement for "CK and her heirs and assigns" an easement in gross or easement appurtenant?
| UWorld
likely appurtenant
b/c heirs and assigns are included, it's probs to benefit the land generally, not just CK
265
what happens if a 3p pays another's mortgage in full?
| MBE PQs
doctrine of subrogation
3p becomes owner of loan + mortgage
so they can seek reimbursement from debtor or enforce the mortgage
266
what changes can an owner make to a grandfathered prior nonconforming use?
| Essay 4945
**nature and character of use cannot be a substantial change**
owner may be permitted to increase the frequency of the nonconforming use to upgrade the means to accomplish the nonconforming use, so long as the nature and character of the use does not constitute a substantial change
267
# tip
new construction - which warranty is this a flag for?
| Essay 4843
implied warranty of fitness or suitability
268
delivery of a deed - what is the presumption? what happens if grantor dies?
| UWorld
* delivery presumed if recorded
* BUT can be rebutted by evidence that grantor didn't intend to presently transfer ownership
* IF deed is NOT delivered during grantor's lifetime, it is void + conveys no interest
269
what does warranty deed protect against?
| NCBE Simulated #2
remedies for breach of title matters
270
what does selling a house "as is" disclaim?
| NCBE Simulated #2
disclaims the seller's duty to disclose defects IF the disclaimer is **sufficiently clear and specific**
assuming no statutes require disclosure of known defects
271
when can a variance be granted? (what does the landowner have to show)
| UWorld Assessment #2
1. variance does NOT deviate from the comprehensive zoning plan
2. compliance with zoning ordinance would cause the landowner unnecessary hardship (can't be self-imposed)
272
doctrine of after-acquired title
| UWorld Assessment #2
applies when grantor coveys property to a grantee by warranty deed BEFORE acquiring title
once grantor receives title, the after-acquired title will automatically transfer to earlier grantee
273
# tip
if notice recording statute, at what point is notice relevant?
| MBE Practice Exam #4
when the person obtained the property (like did they have notice when they bought it NOT did they get notice later on)
274
can an easement be abandoned or terminated by non-use?
| MBE Practice Exam #4
nope, not by mere non-use
owner must affirmatively act in a way that expresses clear intent to terminate the easement
275
right of first refusal - what happens with RAP?
| UWorld
to comply with RAP, right of first refusal must be set to vest or fail within the perpetuities period
so probs fails unless there's an end date or it's tied to a life in being
276
when does a deed transfer ownership?
| UWorld
once delivered and accepted
* delivered - evidenced by grantor's intent to presently convey ownership (CAN'T be conditional delivery)
* accepted - presumed when transfer is beneficial to grantee
delivery presumed if recorded BUT can rebut if grantor did not intend to presently transfer ownership
277
title insurance policy - when is insurer responsible for title defects?
| UWorld
only responsible for title defects that
1. are not disclosed in the insurance policy AND
2. affect the named insureds
278
if no acceleration clause, what is mortgagee entitled to keep from a foreclosure sale?
| MBE Practice Set 5
only the amount of the obligation that is currently due and owing
279
equitable right of redemption vs. statutory right of redemption
| NCBE Simulated #3
* equitable right of redemption is before foreclosure
* statutory right is an additional time period after FCL sale for prior mortgagor and others have the option to pay a certain sum of money and redeem the title to the property
