Real Property Flashcards
(14 cards)
Right of First Refusal & RAP
almost always violates RAP if the conveying instrument does not provide a termination date that falls within the perpetuities period.
Right of First Refusal
A right of first refusal is a contractual right to purchase property before any other person if the owner later decides to sell, so it must comply with RAP.
Right of First Refusal Example
If X decides to sell the property and obtain a purchaser ready, willing, and able to purchase, said property and improvements shall be offered to me, my heirs or assigns, on the same terms and conditions. I, my heirs or assigns, as the case may be, shall have ten days from said offer to accept said offer and thereby to exercise said option.
Restraints on Transferring (Alienation)
Direct restraints on alienation (eg, prohibitions on some or all types of transfers) are valid only if they are deemed reasonable. Total restraints on the alienability of fee simple estates are always unreasonable.
Transferring a Profit right
profit—ie, nonpossessory right to enter another’s land and remove specific natural resources—may generally be transferred unless the profit is personal or transfer would be contrary to the intent of the parties creating the profit.
Option to Purchase
An option to purchase gives the option-holder the exclusive right to purchase the property during a specified time. If the option is contains within a lease it cannot be assigned separately from the lease in most jurisdictions
Payment of Preexisting Mortgage Obligation
If a preexisting mortgage obligation requires the periodic payment of interest only, then the life tenant pays the interest and the future-interest holder pays the later-due principal.
But
If periodic payment of interest and principal is required, then both payments must be allocated between the parties basked in the present value of their respective interest
Accessions
Accessions are items that are so attached to other property that they cannot be removed without causing substantial damage. Removal is improper.
Trade Fixtures
Items attached to real property by a tenant for use in his/her trade or business can be moved without the landlord’s consent if
1) the removal occurs before, or within a reasonable time after, the lease ends
AND
2) the removal will not substantially harm the property
Profits (profit à prendre)
Nonpossesory right to enter another’s land and remove specific natural resources.
Profits can be created by:
-Implication of prior use
-Expressed grant
-Prescription
-Estoppel
Easements Holder Duty
An easement holder has a duty to repair and maintain the easement. If the easement is shared by other easement holders or the servient-estate owner, those parties are obligated to contribute to the reasonable costs of repairs and maintenance
Who benefited??
Specific Bequest Gifts
When the recipient of a specific bequest in a will dies before the testator, his gift will lapse, and the item will fall into the residuary estate. Unless there is an anti-lapse statute in the fact pattern.
Installment Contracts
An installment purchase contract protects the seller by not conveying the property to the buyer until the full amount of the purchase price is paid in full. The seller is not obligated to convey a clear marketable title to the property until after the last installment payment has been made.
Private Nuisance
Requires an act by a defendant that created an unreasonable, substantial interference with the plaintiff’s use or enjoyment of property.
It does not matter how feasible alternatives are. Once the nuisance is created, there is liability.
Focus on the damages to the plaintiff
