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Flashcards in Real Property Deck (136)

Present Possessory Estate: Fee Simple Absolute

Infinite present possession

"To A and his heirs" "To A"
Grantor has no future interest


Present Possessory Estate: Fee Simple Determinable

Limited present possession, and AUTOMATICALLY reverts back to grantor upon specified event

"To A and his heirs, until..."
Grantor has possibility of reverter (REVERTER ONLY FOR FEE SIMPLE DETERMINABLES)


Present Possessory Estate: Fee Simple Subject to a Condition Subsequent

Limited present possession until the happening of a named event. However, it will NOT AUTOMATICALLY revert to grantor - grantor must take an additional step

"To A and his heird, but if..."
Grantor has right of entry (ONLY IF HE EXERCISES IT)


Executory interest

Possibility of reverter only in grantor, not a third party. But if grantor puts it in a third party then that third party has an executory itnerest.

"To A and his heirs for so long as liquor is not sold, in that event, to B."
Third party is executor interest and can reenter on the stated event, grantor cannot.
Subject to RAP (whereas possibility of reverter is not)


Life Estate

Estate measured by the life of one or more persons

"To A for life" or "To A for the life of B"
Grantor has reversion

Subject to the same rules as fee simple determinable, condition subsequent, exec interest


Rights and duties of a life tenant

Entitled to
(1) ordinary uses and profits of the land

(1) injure interests of remainderman or reversioner


Types of life tenant waste

Affirmative Waste - Natural Resources
Permissive Waste
Ameliorative Waste


Affirmative Waste

Can exploit natural resources if
(1) necessary for repair and maintenance
(2) land suitable for such use
(3) permitted by grantor


Permissive Waste

Obligated to
(1) preserve land and structures
(2) pay interest on mortgates (not principal)
(3) pay ordinary taxes
(4) pay special assessments


Ameliorative Waste

Change that benefits property economically - can do it if
(1) market value of the future interests is not diminished, AND EITHER
(1) remaindermen do not object, OR
(2) substantial change in neighborhood conditions has deprived property in its current form


Future interests

Possibility of FUTURE possession, but it is a present, legally protected right in property.


Whats a reversion?

estate ends and no one else entitled to it because there is no other future interest (ex. To A for life.), grantor has a reversion.

NEVER subject to Rules Against Perpetuates
Reversion is alienable, inheritable, devisable


What is a remainder?

It's the third party who has the estate after a life estate. There can be no gaps between grantee and remainder.

Remainders CAN NEVER follow a fee simple since fee simples are indefinite, and remainders cannot cut short the preceding estate


Four types of remainders

(1) Vested remainder
(2) Vested remainder subject to open
(3) Vested remainder subject to total divestment
(4) Contingent remainder


vested remainder

It's an existing person - has immediate possession upon normal termination of preceding estate



Vested remainder subject to open

Remainder created in a class of persons (children)

Subject to RAP as long as class stays open


Vested remainder subject to total divestment

remainder subject to a condition SUBSEQUENT

"to A for life, then B, but if B never marries then to C"
If the action in the future happens then it goes to C so B has a remainder subject to total divestment



Contingent remainder

Created in unborn or unascertained persons, OR, it's a remainder subject to a condition PRESCEDENT

"To A for life, then to B IF he marries C."
Subject to RAP


Two types of executory interests

Shifting exec interest - shifts from transferee to executor interest (cuts short prior estate)

Springing exec interest - follows a gap (goes to transferee, then back to owner, then to exec interest after a gap in time)


Class Gifts - Rule of convenience

Class will close once a member of the class can call for a distribution


Rule Against Perpetuities

No interest in property valid unless it vests within 21 years after some life in being. Only effects violating circumstance - rest is OK


When does RAP period begin?

Will: Testator's death
Irrevocable Trust: date it is created
Revocable Trust: date it becomes irrevocable


Rule Against Restraints on Alienation

Cannot restrain transferability of legal interest in property


Joint Tenancy

Each tenant has an undivided interest in the whole estate, and the surviving co-tenant has a right to the whole estate (right of survivorship).

Must have and take interest as to the same (EVERYTHING MUST BE EQUAL!)
(1) time
(2) title
(3) interest
(4) possession


How do you terminate a joint tenancy?

(1) Severance - convereted to tenancy in common (unless more than three - then only terminated as to that conveyor)
(2) conveyance by one joint tenant
(3) death of co-tenant
(4) voluntary/involuntary partition


Tenancy by the Entirety

Husband and wife each has an undivided interest in the whole estate and a right of survivorship.


How do you terminate a tenancy by the entirety?

(1) Death
(2) divorce
(3) mutual agreement
(4) joint creditor

NO involuntary partition


Tenancy in Common

Each tenant has a distinct, proportionate, undivided interest in the property - NO RIGHT OF SURVIVORSHIP


How do you terminate a tenancy in common?



Rights and duties of cotenants

(1) possession
(2) No need to share profits of own making unless agreement otherwise. MUST share profits if rents from third parties or exploitations of land/mining.
(3) Not encumber other's interest (mortgate example - mortgage only applies to your interest, not others)
(4) Partition


Transactions that won't destroy joint tenancy

(1) mortgage
(2) Judgment liens
(3) Leases - although states are split


Cotenants responsibilities with expenses

(1) Repairs - can be reimbursed for NECESSARY reparis
(2) Improvements - no right of contribution
(3) Taxes and mortgages - if paid on entire property UNLESS co-tenant in sole possession, then only entitled to expenses that exceed rental value of her use


Tenancy for Years

Tenant has present possessory interest and landlord has a future interest (reversion)
Ends automatically at termination date (or surrender, failure to pay rent)


Periodic Tenancy

Tenancy continues for successive periods. Created by
(1) express agreement (agree month to month)
(2) implication (Lease only payable monthly - silent on time frame)
(3) Operation of law (tenancy in years ends and tenat keeps leasing)



Tenancy at Will

Termiable at will of either landlord/tenant - must be created by written agreement. Give notice and reasonable time to quit


Tenancy in Sufferance

Tenant WRONGFULLY remains in possession - tenant can stay until landlord evicts tenant


Hold Over Doctrine

If tenant continues in possession after his right has ended, landlord may:
(1) Evict
(2) Bind to new periodic tenancy
(3) If commercial - hold to year to year if previous lease was year or more
(4) If residential - month to month

DOESN'T APPLY IF (1) seasonal lease, (2) severe illness, (3) hold for only a few more hours, (4) landlord gives notice that he doesn't want it to continue


What can landlord do if tenant on premises and fails to pay rent

Evict or sue for rent


What can landlord do if tenant abandons?

Do nothing or repossess


Landlord dutes to tenant

(1) Deliver premises on starting of lease
(2) Quiet enjoyment


Partial Eviction by landlord

Tenant released from paying rent, even if tenant continues in possession of the remainder


Partial Eviction by third person

Tenant liable for the reasonable rental value of the portion she possess


Constructive Eviction

Landlord's breach of duty renders premises unsuitable for occupancy, tenant must prove
(1) landlord breached duty
(2) breach material to tenant's enjoyment
(3) Tenant gave landlord notice and time to repair
(4) Tenant vacated premises


Implied Warranty of Habitability

ONLY RESIDENTIAL TENANTS - NONWAIVABLE - landlord duties tied to local housing codes. At breach tenant may:
(1) Terminate lease
(2) Make repairs and offset cost against future rent
(3) Abate the rent
(4) remain in possession, pay full rent, sue for damages


Can a tenant freely transfer leasehold interest?

YES - unless express restriction

Complete transfer is an assignment
If tenant retains any part then it's a sublease


Consequences of lease assignment

Assignee and landlord are in "privity of estate" - each responsible for all convents that run with the land (touches and concerns)


How does assignment impact rent payments between transferor and assignee?

Assignee owes rent directly to landlord
Transferor no longer in privity of estate with landlord
Transferor remains obligated on original contractual obligation to pay rent (privity of contract)


How does subless impact rent payments between original lessee and sublessee?

Sub pays original lessee rent, who pays to landlord
Sub not personally liable to landlord
Sub cannot enforce main agreement (except warranties of habitability)


Does assignment or sublease make lease void?

NO, but landlord may terminate lease or sue


Condemnation of leases

If entire lease taken - rent extinguished and lessee is entitled to compensation

If partial lease is taken - not discharged from rent but lessee is entitled to compensation for the taking


Landlord's tort obligation

Modern trend is will be held liable for injuries resulting from ordinary negligence if he had notice of a defect and an opportunity to inspect it



chattel that is affixed to land and has ceased being personal property but is now part of the real property


How to determine whether an item is a fixture

Look at
(1) nature of the article
(2) manner of attachment
(3) amount of damage it would cause removing it


Are annexed chattels from lessee fixtures?

NO, unless agreement existed. Annexed chattels must be removed by end of lease term


What are the nonpossessory interests in land?




Right to use another's land for a special purpose - assumed to be of PERPETUAL duration unless stated otherwise


Easement Appurtenant

Benefits holder in his physical use or enjoyment of another tract of land. There must be a dominant tenement and the servient tenement.

Passes with BENEFITED land REGARDLESS IF IN DEED, unless bona fide purchase of servient estate had no notice of easement


Easement in Gross

Acquire right to use servient tenement independent of possession of another tract of land (ex. swim in my pool)Not transferrable unless commercial


Ways to create an easement

Express grant or reservation (writing)
Implication (no writing)
Prescription (no writing)


Easement by Express Grant of Easement requirement (writing required unless under one year)

(1) Writing (unless its under one year)
(2) signed by grantor
(3) identifies parties
(4) identifies land


Easement by Express Reservation (writing required)

Grantor conveys title of land to someone else but reserves the right to continue to use the tract for a special purpose. GRANTOR CANNOT RESERVE IT FOR ANYONE BUT HIMSELF!


Easement by Implication (no writing required)

Created by operation of law and an exception to statute of frauds
(1) Easement implied from existing use
(2) Easement implied without any existing use
(3) Easement by necessity


Easement implied from existing use (no writing required)

(1) Prior to division of tract
(2) Apparent and continuous use exists on the "servient" part
(3) Reasonably necessary for enjoyment of "dominant" part
(4) Parties intended the use to continue after division of land


Easement implied without any existing use (no writing required)

Subdivision plat - buyers have implied easements to use the streets to access their lots IF THERE WAS A RECORDED PLAT OR MAP REFERENCED AT SALE


Easement by Necessity (no writing required)

Sale deprives another of utility or access


Easement by Prescription (no writing required)

Adverse possession, must show
(1) open and notorious
(2) Adverse
(3) Continuous and uninterrupted
(4) Statutory period


Misuse of easement

DOES NOT TERMINATE easement - get an injunction
Split costs except if only one party using the easement


How to terminate an easement

(1) Stated conditions satisfied
(2) Merger (same person gets servient and dominant)
(3) Release
(5) Estoppel
(6) Prescription
(7) Necessity ends
(8) Condemnation/destruction


Easement vs. License

Failed easement results in a license. Licenses are revocable at will by licensor Cannot transfer


When does a license break the general rule that they are revocable and become irrevocable?

(1) Estoppel
(2) License coupled with an interest


Profits definition

Right to take resources from another's land. All easement rules govern. Can also be extinguished by surcharge (misuse that burden servient estate). WRITING REQUIRED



A WRITTEN promise to do something on land or promise not to do something on the land. Usually in the deeds and run with the lands if requirements met. WRITING IS ALWAYS REQUIRED.


When will a covenant run with the burdened estate?

(1) intent to be bound
(2) notice of covenant
(3) Horizontal privity (original parties shared interest together)
(4) Vertical privity
(5) Touch and concern the land


When will a covenant run with the benefited estate?

(1) Intent
(2) Vertical privity
(3) touches and concerns land


Termination of Covenant

(1) Release
(2) Merger
(3) Condemnation of burdened property


Equitable Servitude

A type of covenant that runs with the land, and equity will enforce against assigness who have notice of the covenant.


Difference between equitable servitude and covenant?

Look at remedy sought
Money damages - Real covenant
Injunction - equitable servitude


REquirements for equitable servitude burden to run (successor of promisor)

(1) Intended
(2) notice
(3) touches and concerns


Requirements for equitable servitude benefit to run (successor of promisee)

(1) Intended
(2) Touches and concerns


Adverse possession elements

Possessor must show
(1) actual entry
(2) exclusive possession
(3) open and notorious
(4) adverse
(5) Continuous


Disability for Adverse possession purposes

SOL does not begin to run if true owner was under some disability when the cause of action first accrued


Conveying Land Elements - Land Sale Contract Requirements

Contract must state
(1) Parties
(2) Price
(3) Description of Land
(4) Must have marketable title


What happens after a contract for sale of land is signed?

(1) Buyer regarded as owner of real property
(2) Seller interest considered personal property
(3) Title remains with seller in trust for buyer


Risk of loss of property - who bears?

Before closing - buyer (but seller must credit insurance proceeds he receives)


What is a seller or buyer dies before closing?

Seller dies - legal title passes to his heirs and give up to buyer at closing
buyer dies - heirs can demand conveyance of land at closing


Marketable title definition (implied covenant of marketability)

Doesn't mean perfect title - just enough that there is not an unreasonable risk of litigation

This theory only exists before closing - after closing remedy is against express promises in deed


What makes a title unmarketable?

(1) Defects in record chain
(2) Encumberances (but if seller can satisfy mortgage or lien at closing then it isn't unmarketable)
(3) Violation of zoning ordinance

REMEMBER: Seller has till time of closing to make title marketable


Is time of the essence in contract sales of property?

NO, unless stated in contract, parties intent, or notice that time is of the essence


Remedies for breach of sale of land

(1) Damages (Contract price - market value + incidentials)
(2) And if land is unique - specific performance


Seller liable for what in a contract sale of land

(1) fraud
(2) active concealment
(3) failure to disclose (knows or has reason to know and not apparent and defect is serious)

But specific disclaimers allowed, general disclaimers are not


Deed formalities

Transfers title to an interest in real property.

(1) writing
(2) signed by grantor
(3) reasonably identifies parties and land
(4) delivered (intention to make deed presently effective)
(5) accepted


Defective deeds

Void - fraud, forged, never delivered
Voidable - minors, incapacitated persons


Desription of Land in deeds

If land description too indefinite, grantor retains title but court may step in and reform. Rules of construction apply in following order:
(1) natural monuments
(2) artificial monuments
(3) courses
(4) distances
(5) name
(6) quantity


Boundary case issues with land rights

(1) Title to land goes to center of water boundary
(2) Slow and imperceptible change changes legal boundary
(3) Accretion (slow deposit of soil) belongs to owner
(4) Avulsion (sudden change in water course) does not change ownership rights


When will court always reform a deed?

(1) mutual mistake
(2) Scrivener's error
(3) unilateral mistake caused by mispresentation


Transfer of deed

Grantor must intend to make a deed presently effective even if possession is postponed


Trasnfer of deed for commercial transaction (escrow)

Valid conditional delivery when grantor gives it to third party to hold until condition occurs.


Covenants for title (title assurances) - three types

(1) general warranty deed
(2) special warranty deed
(3) quitclaim deed


Covenants for title vs. Real covenants

Totally different - real covenants are written promises to do or not do something, they have nothing to do with title.


What are the covenants in a general warranty deed?

(1) Seisin (grantor has title and possession at time of grant)
(2) Right to convey (title alone satisifies this)
(3) No encumberances
(4) Quiet enjoyment
(5) Warranty (grantor will defend against superior claims)
(6) Further assurances (grantor will perfect title conveyed)


Special warranty deed assurances

(1) grantor has not conveyed to anyone else
(2) estate is free of encumbrances


Quitclaim deed

Releases whatever interest grantor has - no covenants of title are included


Recording Rule

If grantor conveyed same proprety to more than one person, first to record prevails, except depending on the jurisdiction you're in
(1) Notice
(2) Race Notice


Notice Jurisdiction

Subsequent BFP prevails over prior grantee who failed to record. Subsequent BFP can have no constructive or actual notice of prior sale at time of conveyance.

REMEMBER - protected regardless of whether subsequent BFP records or not.

"Any conveyance of an interest in land, shall not be valid against any subsequent purchase of value, without notice, unless the conveyance is recorded."


Race Notice Jurisdiction

Subsequent BFP protected only if she takes without notice AND records before prior grantee


Race Jurisdiction

Whoever records first wins - notice is irrelevant


Who do notice and race notice jurisdictions apply to?

BFPs - purchaser, without notice, pays valuable consideration

Without notice only applies at the time of conveyance - doesn't matter what they learned after conveyance but before recording



Lender can realize mortgaged real estate by having a judicial foreclosure sale conducted by the sheriff


Deed of Trust

Debtor is trustor and gives deed to a third party trustee. Third party trustee closely connected with lender/beneficiary


Installment land contract

Purchaser obtains legal title only when full contract price paid off

Therefore, only receives interest in estate to the extent that they paid value if they are not sheltered by BFP rule.. Court can divide up many ways.


Can mortgagee transfer mortgage?

YES - note and mortgage must pass to same person. Note can transfer without the mortgage but mortgage follows automatically UNLESS mortgagee-transferor reserves right to mortgage.


Elements to transfer a mortgage by mortgagee and make transferee a HOLDER IN DUE COURSE

(1) Must be in negotiable form
(2) original note indorsed and signed by named payee
(3) delivered to transferee
(4) transferee takes in good faith AND pay value


Benefits of holder in due course

Takes note free of personal defenses (fraud, waiver, payment) of maker, but still subject to real defenses (infancy, incapacity, duress)


Transfer by Mortgagor

If assumption agreement signed: grantee becomes primarily liable and original mortgagor secondarily liable as surety (original mortgagor released if grantee

If NO assumption agreement signed OR transferee takes "subject to" the mortgage: grantee not personally liable and original mortgagor remains primarily liable.

Any modification after grantee takes mortgage releases original mortgagor of liability.


How does mortgagee take possession if mortgagor fails to pay?

Lien theory - mortgagee considered holder of a security interest only and therefore cannot have possession until after foreclosure

Title theory - legal title in mortgagee and can take possession at any time

Intermediate theory - legal title in mortgagor until default, and then in mortgagee. mortgagee may demand possession when default occurs (little difference between title and intermeidate theory)


Redemption before foreclosure

Anytime before foreclosure, mortgagor may redeem the property by paying the amount due. Some states allow for statutory redemption (6 months after foreclosure sale has occured)


Purchase Money Mortgage

Mortgage given in exchange for funds used to purchase the property.

PMMs have priority over mortgages, liens, and other claims that arise PRIOR to mortgagor's acquisition of title


Priority of interests during foreclosure

Priority among mortgages generally determined by chronological order due to recording requirements, but it can be changed if

(1) failing to record
(2) subordination agreements
(3) PMM
(4) modification of senior mortgage
(5) Subrogation

(3) Two PMMs - Seller's mortgage has priority over third party's mortgage


Proceeds of sale - priority of who gets funds

(1) expenses of sale, atty's fees, court costs
(2) principal and accrued interest on foreclosed loan
(3) junior interests in order of priority
(4) mortgagor


Water courses - Riparian Doctrine - Reasonable Use Theory

Water belongs to those who own the land bordering the watercourse

Follows reasonable use doctrine - riparians share the right of reasonable use. Look at alteration of flow, pollution, purpose of use, extent of use, destination of water taken to determine if unreasonable


Riparian Doctrine - Natural vs. artifical use theory

Natural uses prevail over artifical uses


Riparian Doctrine - Prior Appropriation Doctrine

Individuals acquire rights by actual use


Groundwater doctrines

Absolute ownership - can take all the water you want
Reasonable Use - like absolute, but exporting cannot harm other owners who have same rights
Appropriative rights - Priority of use (not ownership) is determinative
Restatement Approach - can pump unless it harms neighbors or exceeds share


Surface waters

Anyone can grab it - just know the theories below

natural flow theory - cannot alter natural drainage patterns
common enemy theory - can take any protective measure to get rid of water
Reasonable use theory - balance utility of use against gravity of harm


Rights in airspace

Not exclusive, but entitled to freedom of excess noise


Zoning restrictions

Can enact to protect health, morals, safety, welfare of citizens.

CANNOT enact if no reasonable relationship to these elements above, too restrictive, discriminatory


Zoning - Noncomforing use

Passage of a zoning where actor does not conform does not have to eliminate at once - amortization is the gradual elimination of such use


Zoning - Special use permit

Need permit for proper intended use


Zoning - Variance

Departure from zoning ordiance


What happens to the itnerests in a foreclosure

foreclosure wipes out all junior mortgages (those that came after the foreclosing party), but does not wipe out senior mortgages.


Shelter Rule

once BFP enters, subsequent transferees get protection regardless of their notice.


Bonafide Purchaser

(1) purchaser
(2) without notice
(3) pays valuable consideration


First in time notice for conveyance

Common law theory - whoever got conveyance first wins regardless of notice or recordation. This is the default rule if the subsequent purchaser is NOT a BFP


Equitable Conversion

Once contract to sell is signed, purchaser is considered owner of REAL PROPERTY, seller's right in proceeds considered PERSONAL PROPERTY


Tract index

reveal all recorded deeds - even wild deeds where there are gaps


Grantor-grantee index system

Only records interested granted by the first owner and down the line - so if first owner never recorded then you'd never find the subsequent conveyancs and not have record notice.