Real Property Flashcards
Übersicht
I. Land Interests
II. Non-possessory interests
III. Conveyancing
Conflict of laws: Welches Recht gilt? Will court of forum jx apply its laws or those of another interested jx?
Situs rule: For real property (immovables), law of the situs (state where property is situated) governs its disposition, If applied, the forum uses the (possibly foreign) jx’s whole law; the law ultimately used may be from anywhere
I. Land interests
Arten
1. Present possessory estates: someone has the right to land now; someone may get the right to land later in some cases
2. Future interests: someone may get right to land later in some cases
3. Concurrent estates and interests (co-tenancy)
4. Adverse possession
5. Landlord-tenant non-freehold estates
6. Zoning
I. Land interests
- Present possessory estate
1. Fee simple absolute: Largest possible estate in land, indefinite duration (“to A [and his heirs]”)
2. Fee simple determinable: Terminates automatically after a duration, grantor has possibility of reverter (“so long as”)
3. Fee simple subject to condition subsequent: Can terminate after a named event, grantor has right of reentry (“but if”)
Abgrenzung: If ambiguous whether FSD or FSSCS (contains both language), treat as if FSSCS (grantor may elect forfeiture)
4. Fee simple subject to executory interest: Automatically divests in a third party on the happening of a named event, Invalid conditions: violate public policy, penalize marriage, promote divorce (OK to support until marriage/divorce) , Restraint on alienation: Public policy favors free alienability of property. Courts generally uphold reasonable
conditions and restraints. Any unreasonable language (e.g., indefinite restraint) are struck from the instrument
5. Life estate: Lasts for duration of grantee’s life (life estate transferred to someone else lasts for named grantee’s life)
a) Life tenant (LT) duties: Maintain the property in reasonable state; pay mortgage interest only; pay ordinary taxes
b) Remainderman is free of encumbrances by LT, has right to immediate possession from any lessee on LT’s death
c) Life estate pur autre vie (life of another): Measured by life other than grantee’s (“to A for life of B”), May also result when LT conveys its life estate to another (B has a life estate for the life of A (LT))
I. Land Interests
P: Waste
Grds. Grantee of less than fee (life, term) cannot adversely injure future interest of remainderman or reversioner, future interest holder may seek damages or injunction, or reimbursement if $ spent to perform LT’s obligations
Differenziere:
a) Voluntary waste: Volitional act that decreases value of estate, intentional/negligent damage
aa) Exploitation of natural resources by LT limited to PURGE: prior use of land for exploitation before grant, necessary for repair or maintenance of land, express/implied grant to exploit, suitable only for exploitation
bb) Open mines doctrine: LT can continue mining existing resources; remainderman can enjoin if new mines
b) Permissive waste: Failure by LT to take reasonable steps to preserve land, or pay taxes or interest (not principal)
c) Ameliorative waste: Change that benefits property.
CL: Prohibited
Modern: Allowed if FMV not impaired and either remaindermen consent or substantial, permanent change in neighborhood deprived property of reas. value
I. Land interests
- Future interests
In grantor:
1. Possibility of reverter: A type of right that is automatically in effect when a grantor creates fee simple determinable
2. Right of reentry (power of termination): Must expressly state in conveyance of FSSCS and affirmatively exercised
3. Reversion: Created when grantor transfers less than a fee interest to 3P (“to A for life, then to B for life” → O)
In transferee:
4. Executory interest: Created in favor of 3P, cuts short previous estate before its natural termination
a) Shifting executory interest: Future interest in 3P that divests preceding freehold estate (3P1 → condition → 3P2)
b) Springing executory interest: Follows a gap or cuts short grantor’s estate (O → condition → 3P, 3P → O → 3P)
5. Remainder: Future interested created in 3P (remainderman), to be taken after natural termination of previous estate (“to A for life, then to B”—B has remainder), thus cannot follow a fee simple (but executory interest can cut it short)
**a) Vested remainder: **Created in ascertained person + not subject to a condition precedent (other than termination)
aa) VR subject to open (partial divestment) (class gift): Interest subject to diminution due to new class members (birth of additional persons who will share in the remainder as a class) (“to A for life, then to children of B”), Class closes when at least one member of the class becomes entitled to distribution, per rule of convenience
bb) VR subject to total divestment: Vested interest subject to condition subsequent (“to A for life, then to B and heirs, but if B dies unmarried, then to C and heirs”; B has VR subject to divestment by C’s executory interest), If ambiguous, construe as subject to divestment rather than contingent remainder or executory interest
b) Contingent remainder: Remainder not yet vested in unborn/unknown person, or subject to condition precedent (“To A for life, then to children of B”: Remainder is contingent if B has no children (cf. VR subject to open))
I. Land interests
Regeln für future interests:
1. Transferability
2. Shelley’s rule
3. Doctrine of Worthier TItle
4. Rule against perpetuities
1.Transferability: Remainders and executory interests are transferable, descendible, and devisable inter vivos
2. Shelley’s rule: Modernly, if life estate in A with remainder to A’s heirs only, heirs get contingent remainder
3. Doctrine of Worthier Title: Remainder in grantor’s heirs (“to A for life, then O’s heirs”) is invalid and becomes reversion in grantor (O’s heirs get contingent remainder)
4. Rule against perpetuities: An interest is valid only if it must vest or fail within 21 years after the death of any measuring life in being (someone who existed when the deed or will takes effect) at the creation of the interest
- Applies to FSSEI, Executory interest, VR subject to open and contingent remaineder and to rights of first refusal, options to buy, but NOT charity-to-charity gifts
I. Land interests
- Concurrent estates and interests (co-tenancy)
A.
Joint tenancy/joint tenants (Sonderfall tenancy by the entirety)
v.
Tenancy in common
B. Position des Co-tenants
C. Communities
I. Land interests
A. JT v. TIC
JT: (wegen gleicher Teilung idR bei Eheleuten etc.)
a) 4 unities of time, title, interest, possession: JTs must take identical interests at same time by same instrument w/ same right to possession
**b) Right of survivorship: **Upon death of a joint tenant, property interest automatically passes to surviving joint tenants (reduces JTs by 1)
c) Ownership interests are equally divided
d) Severance by JT creates TIC for the severed interest. Transferee becomes TIC; others still own one interest as JTs (if 2+ JTs remain), JT may be severed by: inter vivos conveyance/transfer/sale, partition action (to make TIC), mortgage taken on JT interest under title theory jx (no severance under lien theory—majority view), NOT by will
Sonderfall: tenancy by the entirety: (+ 5th unity of marriage): Only between legally married parties at time of grant, Conveyance needs both spouses (ineffective if by one spouse). Severed by death, divorce, mutual agreement
TIC: (insb. wenn co-owners unrelated sind)
a) Unity of possession required only: Each TIC is entitled to possess and control the whole property
b) Presumed form of co-tenancy unless grantor had clear intent/language for rt of survivorship. No such rt for TIC
c) Ownership interests are static and not necessarily equal
d) Termination: Any tenant in common has a right to judicial partition of the property (e.g., if they’re having a disagreement), TIC may be terminated by partition
I. Land interests
B. Position des Co-tenants
1. Possession: Right to possess the whole property. If ousted from any portion, can sue for $ and/or ejectment
2. Partition: Right to demand (bring action) to physically divide if feasible, or seek to sell and divide proceeds
3. Profits: Entitled to 3P rent and profit from land proportionally. Profits belong to CT if brought by own efforts
4. Contributions for preservation of property: Entitled to taxes, mortgages, necessary repairs shared proportionally
a) Extraordinary repairs: No duty w/o agreement, but can offset with any rent collected and split rest of rent
b) Improvements: No duty w/o agreement, but difference from increased price created goes to improving CT
5. Waste: CT can bring an action for waste against another CT during life of the tenancy
6. Duty of fair dealing: If a CT gets title or lien in the property, other CTs may join and pay share or forfeit interest
I. Land interests
C. Communities
Bsp. property owner (homeowner) associations (HOAs), cooperative apartments (co-ops), condominiums
- Each homeowner is under overarching covenants & restrictions (incl. fees) that govern whole community
- HOA may apply to planned unit developments (PUDs) or common interest developments (CIDs)
- Each shareholder of co-op is tenant of corp. that holds title to land; co-op board decides who can occupy
- Each condo owner owns fee simple to unit interior; all owners own walls, land, common areas as co-tenants
I. Land interest
- Adverse possession
Def. A trespasser may acquire title to real property by AP. Possessor must show actual entry giving exclusive possession that is open and notorious, hostile, and for the statutory period. Gov’t land not subject to AP
Vorauss.
1. Actual and exclusive: Physically occupied portion, not shared with the true owner or the public at large
(If reasonable portion of parcel actually occupied, under color of title (document purporting to give title but does not actually do so), may be deemed to possess entire parcel as if actually occupied)
2. Open and notorious: Plainly apparent occupation of land so as to put the true owner on notice of use upon inspection
3. Hostile: Contrary to true owner’s intent (regardless of possessor’s intent). Owner’s permission destroys hostility
4. Statutory period: Continuity of stay is a QOF based on circumstances (e.g., leaving for a year breaks continuity)
a) May be tolled if disability (insanity, jail, non-age) already exists at the time of entry until disability is removed
b) May tack periods of AP by privity. Requires intentional transfer. Combine to meet statutory requirement
c) CA 5 years?
5. Rights: Same as true owner (remainder, life estate, etc.) at time of entry. Must quiet title to make marketable
I. Land interest
- Landlord-tenant non-freehold estates: Def., Arten und Übertragbarkeit
Def. A nonfreehold estate is an estate which gives the right to possess the property but not title to hold the property. Nonfreehold estates are often called leaseholds or tenancies, as they are often occupied by tenants under leasing contracts (= Besitz)
Arten:
1. Tenancy for years: For fixed period. Terminates automatically. Created by express agreement (writing > 1 yr)
2. Periodic tenancy: Created by express or implied agreement (LL leases at monthly rent), or operation of law (T stays after lease expires). For fixed period that self-renews until notice equal to length of period, up to 6 months
3. Tenancy at will: No stated duration. Lasts until termination, death, or transfer. Created by express agreement
4. Tenancy at sufferance: T occupies after lease expires. Terminates when LL evicts or holds T to another term
Übertragbarkeit:
a) Assignment: T transfers entire remaining lease. T1 is in privity of estate with LL; covenants can be enforced against assignee (T1). T and LL remain in privity of K. LL can sue T or T1, e.g., for rent for period each owes
b) Sublease: T transfers part of remaining lease. T1 is not in privity of estate with LL; covenants not enforceable against sublessee. LL can sue only T, e.g., for rent (absent agreement). LL can evict T1
aa) Restriction: Lease may prohibit assignment or sublease only if reasonable, but is narrowly construed against LL
bb) Rule in Dumpor’s Case: Once waived (e.g., consent, accepting rent), an anti-assignment covenant is unenforceable for the lease duration (implicit consent to future assignments by T) unless stated otherwise
I. Land interest
- Landlord-tenant non-freehold estates: Rechte und Pflichten
A. Tenant duties
1. Duty to pay rent: Duty to pay rent ends when T surrenders leasehold interest back to LL
DEFENSES:
a) failure to deliver actual possession of premises (LL duty)
b) eviction
c) LL accepts surrender of
premises
d) LL duty to mitigate damages
e) offsets for warranty of habitability (residential only)
f) impossibility
2. Duty to avoid waste: No waste if premises damaged without fault of LL or T
B. Landlord duties
1. Duty to deliver actual possession of premises at beginning of lease term (breach if holdover T not been evicted)
2. Implied covenant of quiet enjoyment and possession of premises Eviction breaches this covenant
a) Actual eviction: T physically excluded from entire premises by LL or holdover T → T may stop rent
b) Constructive eviction: LL renders property uninhabitable + T vacates w/in reasonable time → T may stop rent and terminate lease. 3P interference is constructive eviction if LL knew or should have known about it
c) Partial (actual/constructive) eviction → T may abate rent to reasonable rental value of partial portion
3. Implied warranty of habitability: (residential only) to make reasonably suitable for human dwelling (CL: N/A)
4. LL generally has no express duty to repair or maintain the premises. If LL assumes duty to perform minor repairs (e.g., keep wind- and water-tight) or repair damages caused by T, and is negligent, LL may be liable
SonderP: Latent defects: If LL leases knowing about defects not readily apparent, may be liable in tort to T or guests
I. Land interests
- Landlord-tenant non-freehold estates: Leistungsstörungen und andere Probleme
a) If T materially breaches lease: LL can retake by legal process (sue for rent) or eviction
b) If LL breaches, T may self-help: Terminate lease; abate rent to fair value; repair and offset future rent; seek damages
c) Security deposits for T’s lease: LL must return deposit on termination, unless T’s obligations extend beyond termination. If LL fails to pay back T, LL is in default; T can then recover amount + damages
d) If property condemned by gov’t, award will be allocated b/w LL’s interest in ownership and T’s interest in leasehold
e) Fixtures: Chattel (personal property) affixed to land so that considered part of the realty. T must remove his fixtures by end of lease term (or w/in reasonable time after indefinite tenancy); T must repair any damage from removal
- Factors: Objective intent to affix a chattel can be determined by nature of item, manner of attachment, amount of damage to chattel or real estate, appropriateness with use of property, permanence of T’s interest in real estate. Would a purchaser or mortgagee (who has priority) expect the fixture to be part of the property?
- Trespasser or adverse possessor has no right to take back what he didn’t have right to affix in the first place
I. Land interest
- Zoning
Grds. Gov’t may reasonably control the use of land to protect the health, safety, welfare, or morals of citizens (police power), but this zoning power is limited by (1) due process clause, (2) equal protection clause, and (3) takings clause.
Vorauss. Specifically, zoning ordinances are generally valid as long as (1) reasonably related to public welfare, (2) not too restrictive,
and (3) not discriminatory as to race or a particular parcel.
Ausnahmen/Besonderheiten
1. Variance: Gov’t permission to depart (or vary) from the literal restrictions of a zoning ordinance as an exception to the ordinance,
a) Area variance: An exception that allows a building to exist in dimensions that slightly violate zoning ordinance
b) Use variance: A permit that allows operation of a structure for a purpose not permitted by the ordinance.
Vorauss. Applicant must show (1) undue hardship but for the variance, (2) that the variance would not harm the
community, (3) there is no fault in seeking the request (not a bad actor)
- Nonconforming use: A preexisting use of the land that now does not conform to ordinance at time of enacting. Such a use already in effect cannot be eliminated, unless it (a) causes harm to the community, or (b) just compensation is paid, aber: Amortization (payments over time) may be provided to landowner to gradually eliminate nonconforming use
- Special use permit: A permit required even if the zoning is proper for the intended use, e.g., hospitals, funeral homes
- Exaction: Gov’t may seek payment for permission to build (e.g., seek exaction payment from developer if gov’t has to install new traffic lights around new housing development), only if exaction is reasonably related to impact of dev
- Takings clause: If zoning reduces property value, gov’t must pay damages to owner.
II. Non-possessory interests
Übersicht
- Eeasement
- Profit
- License
- Real co
II. Non-possessory interest
- Easement: Definition und Arten
Def. A non-possessory property interest that confers a right to use another’s land (quasi sowas wie Grunddienstbarkeit)
Example: owner uses a dirt road over a neighbor’s property to access a lake for years
Arten:
a) Easement appurtenant: Interest in use of land of another (servient estate) that attaches to and passes automatically with the benefited land (dominant estate)
- Burden of easement passes automatically with servient land, unless new owner is bona-fide purchaser w/ no notice of easement (gutgläubiger lastenfreier Erwerb)
- Holder of easement may reasonably inspect, maintain (duty to make repairs), and improve the easement
b) Easement in gross: Holder has right to use servient land without owning any land (does not attach to land)
- Transferable if easement serves economic interest (billboard). Not transferable if for personal enjoyment (swim)
II. Non-possessory interest
- Easement: Voraussetzungen
PINE:
1. Easement by prescription (analogous to adverse possession): Actual (no exclusivity requirement), open and notorious, adverse,
continuous use for statutory period. Public may gain easement in private land via public use
**2. Easement by implication: ** Division of a single tract, where open & continuous use of servient part exists prior to division, which is reasonably necessary to enjoy dominant part, and parties intend to continue use after division
3. Easement by necessity: Division of portion of land (e.g., by selling) + absolute necessity of access created by division (e.g., public road or utility line). Owner of servient portion may choose location of easement
4. Express easement by grant: Agreement in writing signed by grantor. A grant of easement must comply with deed formalities. Presumed to be of perpetual duration unless grant limits the interest
II. Non-possessory interest
- Easement: Beendigung
Achtung: Misuse of easement does not terminate an easement. Remedy for servient owner is injunction against misuse
END CRAMPS:
1. Estoppel: Servient owner justifiably relies on easement owner’s conduct or assurance that easement will no longer be enforced + materially changes position in reliance
2. Necessity ends (for easement by necessity)
3. Destruction of a structure on servient land involuntarily (willful destruction does not extinguish easement)
4. Condemnation (gov’t taking) of the servient land extinguishes all easements
5. Release by written deed of release from easement holder to servient landowner
6. Abandonment: Affirmative act or words showing intent for permanent non-use (building makes use impossible)
7. Merger of the dominant and servient estates when owned by the same person as the same type of estate
8. Prescription (reverse Adverse possession): Servient owner’s continuous interruption of use for the prescriptive period
9. Stated conditions: Original easement grant may specify conditions for terminating the easement
II. Non-possessory interest
- Profit (a pendre)
= Right to remove resources from land of another, created and terminated in same ways as easements
- A profit may be extinguished through surcharge, a misuse or overuse that unduly burdens the servient estate
- CL (MBE): Not transferable. Modern: May be transferrable if commercial, and may be subdivided if quantifiable
II. Non-possessory interest
- License
= Permission to use land (e.g., tickets). Revocable personal right, not transferable, not subject to SOF, can be oral, Estoppel: Irrevocable if, e.g., licensor allowed licensee to invest substantial money or labor in reliance on license
II. Non-possessory interest
- Real covenant
Written promise or contractual limitation to do or not do something on land, real covenant “runs with the land,” meaning a subsequent owner may enforce or be burdened by the covenant
Unterschied zum Easement: covenants sind nur promises, sind deswegen nicht considered “interest”, once in existence allerdings wenig praktische Unterschiede, termination wie bei Easement
Vorauss.:
A. For burden to run with the land and bind successor of burdened estate:
1. writing
2. intent (that the terms be enforceable by successors or assignees, implied when in writing)
3. notice of covenant by BFP of land (actual, inquiry, or constructive/record notice)
4. horizontal privity (Relationship b/w original covenanting pts who shared interest in land (e.g., grantor-grantee)
5. vertical privity (Relationship b/w covenanting pts and their successors in interest. Successor must take covenanting pt’s entire interest for burden to run (not a lesser estate such as life estate from fee simple absolute)
**6. touch & concern ** (Covenant directly reduces use or enjoyment of the servient land, or increases obligations)
B. For benefit to run to successor of benefiting estate and enforce the covenant
1. writing
2. intent
**3. vertical privity ** (benefit runs to assignees of original or any lesser estate; any successor may enforce benefit),
4. touch & concern (promised performance benefits use and enjoyment of benefited land)
II. Non-possessory interest
- Equitable servitude
Type of covenant where successors may be enjoined in equity, sehr ähnlich wie real covenant, termination ebenfalls wie bei easement
Vorauss.
A. For burden to run requires (1) writing, (2) intent, (3) notice, (4) touch & concern
B. For benefit to run requires (1) writing, (2) intent, (3) touch & concern
Besonderheiten:
(1) EXCEPTION to writing – implied reciprocal servitude: Negative restrictions part of a common scheme or plan (typically subdivisions) can be enforced even if not in the deed, if some other deeds have it and there was notice
(2) DEFENSES (ct will not enforce equitable servitude): (a) Changed neighborhood (change is so significant that enforcement would be inequitable; (b) unclean hands (party seeking enforcement is violating similar restriction on own land); (c) acquiescence to violation by benefited party; (d) estoppel (benefited party acted such that reasonable person would believe covenant was abandoned); (e) laches (benefited party didn’t sue within reasonable time)
