Real Property Flashcards
Indefeasible life estate
one that will end only when the life tenant dies
Contingent Remainder
A remainder is contingent if it is created in favor of unborn or unascertained persons. It is a future interest created in a transferee that is capable of taking in possession on the natural termination of the preceding estate
Vested Remainder
Absolute right to receive title when a presently existing interest in real property ends. It is certain to transfer after the existing interest expires, and is not dependent on any conditions (precedent) or other events occurring.
Vested remainders may be subject to total divestment if possession is subject to being defeated by the happening of a condition subsequent
Contingent Remainder
The holder has not been identified, or for which a condition precedent must be satisfied.
RAP— Exceptions
FS subject to executory interest (void) because could vest too remotely. But “for so long as” —FSD and niece holds possibility of reverter (not subject to RAP)
Charity exception only applies charity-to-charity.
RAP does not apply to right of reentry (right of first refusal is subject to RAP)
Life Tenant
A life tenant is entitled to all ordinary uses and profits of the land, but he cannot lawfully do any act that would injure the interests of the remainderman. A grantor intends that the life tenant have the general use of the land in a reasonable manner, but that the land pass to the owner of the remainder, as nearly as practicable, unimpaired in its nature, character, and improvements.
Can substantially alter or even demolish existing buildings if (i) the market value of the future interests is not diminished and either (ii) the remainderman does not object, or (iii) a substantial and permanent change in the neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness.
LL/T Assignment vs. Sublet
Assignment is when a T transfers possession for remaining balance of the lease. When T transfers possession it doesn’t mean T is off the hook, still on the hook because POE—they are always JSL and assignee.
• But when assignee assigns/sublets then they are no longer on the hook.
A sublessee is not personally liable to the landlord for rent or for the performance of any other covenants made by the original lessee in the main lease (unless the covenants are expressly assumed) because the sublessee does not hold the tenant’s full estate in the land (so no privity of estate).
When a tenant makes a complete transfer of the entire remaining term of his leasehold interest, it constitutes an assignment. The assignee and the landlord are then in privity of estate, and each is liable to the other on all covenants in the lease that run with the land.
Condemnation
In partial condemnation cases, the landlord-tenant relationship continues, as does the tenant’s obligation to pay the entire rent for the remaining period of the lease. The tenant is, however, entitled to share in the condemnation award to the extent that the condemnation affected the tenant’s rights under the lease.
Holdover Doctrine
Proper rent will be new terms if LL notified T of rent increase prior to lease expiring then T on the hook of the new amount. If not, then not.
Commercial lease will follow old terms (years then Year-year) / residential then month-month
Covenants
An assignment, making all covenants in the lease that run with the land enforceable by the assignee as long as not meant to be personal.
A covenant runs with the land to a subsequent purchaser with notice of the covenant if it touches and concerns the land and is intended to run. Notice may be actual or constructive (notice statutes don’t protect donee, heir, devisee—only BFP)
For successors of the original promisee and promisor to enforce an equitable servitude, both the benefit and burden of the servitude must run with the land.
[R]eal (damages) Covenants: (run with the land at law); written; notice depends on recording statute (may not protect non-BFPs); notice can come from chain of title deed mentioning covenant
• Burden to run to later grantees: Intent, Notice, Horizontal and Vertical privity, touch & concern [HINTV]
• Benefit to run: Intent, Vertical privity, Touch & concern [ITV]
[E]quitable Servitudes: common scheme for development exists (equitable remedies)
• Burden to run: Touch & concern, Intent, Notice [NIT]
• Benefit to run: Intent, Touch & concern [IT]
Fixtures
Residential: nature of the chattel—heirloom or toilet? Intent of annexor (attached the chattel; did they intend for it to be part of real property?) How much damage caused to real property if chattel removed?
Commercial: Trade Fixtures Doctrine—commercial T can remove all trade fixtures PRIOR to lease expiring
Implied Covenant of Marketable Title
Absent a provision to the contrary, a contract for the sale of land contains an implied promise by the seller that she will deliver to the buyer a marketable title at the time of closing. This promise imposes on the seller an obligation to deliver a title that is free from reasonable doubt; i.e., free from questions that might present an unreasonable risk of litigation. Title is marketable if a reasonably prudent buyer would accept it in the exercise of ordinary prudence.
If the buyer determines, prior to closing, that the seller’s title is unmarketable, he must notify the seller and allow a reasonable time to cure the defect. If the seller is unable to acquire title before closing, so that title remains unmarketable, the buyer can rescind, sue for damages caused by the breach, or obtain specific performance with an abatement of the purchase price. However, the buyer cannot rescind prior to closing on grounds that the seller’s title is unmarketable
When a seller of land breaches the implied covenant of marketable title, closing date may be extended to allow seller time to cure
Quitclaim deed still contains this covenant
Installment Land K
The seller’s obligation is to furnish marketable title when delivery is to occur, e.g., when the buyer has made his final payment. Thus, a buyer cannot withhold payments or seek other remedies on grounds that the seller’s title is unmarketable prior to the date of promised delivery.
Valid Conveyance
deed must adequately describe the land being conveyed. If not, fails for lack of definiteness. Deed controls over K.
Mistake or inconsistency in the description of property in the deed, one of the rules of construction is that the physical description takes precedence over the quantity description unless there are grounds for reformation of the deed
Reformation of Deed
An equitable action in which the court rewrites the deed to make it conform to the intention of the parties. It is granted when the deed does not express the agreement of the parties due to mutual mistake or a scrivener’s error, and may also be granted when there is a unilateral mistake if misrepresentation is involved
Multiple BFP of Land
If the grantor transfers his after-acquired title to an innocent purchaser for value, the bona fide purchaser gets good title. There is a split of authority as to whether the original grantee’s recordation of the deed imparts sufficient notice to prevent a subsequent purchaser from being a bona fide purchaser, but the majority view is that it does not because it is not in his chain of title. Thus, it is not the fact that the creditor recorded that prevents the investor from being a bona fide purchaser. The fact that the creditor built a home and was living on the property gave the investor constructive notice of her interest.
A title search is not complete without an examination of possession
AP
(i) An actual entry giving exclusive possession that is (ii) Open and notorious, (iii) Adverse (hostile), and (iv) Continuous throughout the statutory period.
Actual possession of a portion of a unitary tract of land is sufficient adverse possession as to give title to the whole of the tract of land after the statutory period, as long as there is a reasonable proportion between the portion actually possessed and the whole of the unitary tract, and the possessor has color of title to the whole tract
Tacking
Periods of adverse possession between two successive claimants may be tacked together to make up the full statutory period if there is privity of possession between the claimants. Privity is satisfied if the first adverse claimant purports to transfer the land to the next; i.e., the subsequent possessor takes by descent, by devise, or by deed purporting to convey title.
Color of Title
Document that purports to give title, but for reasons not apparent from its face does not. Usually, the proportion will be held reasonable if possession of the portion was sufficient to put the owner or community on notice of the fact of possession
AP and Covenants
If an adverse possessor uses the land in violation of a real covenant (i.e., a written promise to do or refrain from doing something on the land), she takes title free of the covenant EVEN IF she had knowledge of it. However, if she complies with the covenant for the statutory period, she takes title subject to the real covenant. In either case, if an adverse possessor uses land for the limitations period, she DOES take title to the land.
AP and Disability
For a disability, such as status as a minor, to stop the clock, the disability must have been in existence on the day the adverse possession began.
Anti-Lapse Statute
created to avoid common law result that if beneficiary predeceased will maker then gift would be void
General Warranty Deeds: 3 Present Covenant Titles
Present (breached at closing/conveyance; don’t run with land but can bring actions after closing) [SEC]
• Siesen— covenant that the grantor has the estate or interest that she purports to convey. Both title and possession at the time of the grant are necessary to satisfy this covenant.
• Encumbrances— a covenant assuring that there are neither visible encumbrances (easements, profits, etc.) nor invisible encumbrances (mortgages, etc.) against the title or interest conveyed.
• right to Convey—
General Warranty Deeds: 3 Future Covenant Titles
Future (run with land) [GQQ]
• Quiet Enjoyment—grantor indemnifies grantee against claims of title brought by 3rd
—does not require a perfect title, but rather one that is free from questions that might present an unreasonable risk of litigation. Title is marketable if a reasonably prudent buyer would accept it in the exercise of ordinary prudence. An inability to establish a record chain of title will generally render the title unmarketable.
—If the seller attempts to rely on adverse possession to show that defects have been cleared, courts traditionally do not favor such an argument, because proof of adverse possession normally rests on oral evidence, which might not be available to the buyer at a later time.
• General Warranty—Grantor agrees to defend, on behalf of the grantee, any lawful or reasonable claims of title by a third party, and to compensate the grantee for any loss sustained by the claim of superior title.
—If the buyer of land determines that the seller’s title is unmarketable, the buyer must notify the seller and give a reasonable time to cure the defects.
—Generally, encumbrances (i.e., mortgages, liens, easements, and covenants) render title unmarketable. However, a seller has the right to satisfy a mortgage or lien at the closing with sale proceeds (and can extend the closing date to allow for cure). Thus, if the purchase price is sufficient and this is accomplished simultaneously with the transfer of title, the buyer cannot claim that the seller’s title is unmarketable.
—Every land sale contract contains an implied covenant that the seller will provide marketable title at closing. Marketable title is title reasonably free from doubt, which a reasonably prudent buyer would accept. While it need not be perfect title, it must not present the buyer with an unreasonable risk of litigation. Generally, this means an unencumbered fee simple with good record title. The mere existence of a zoning ordinance does not constitute an encumbrance. However, title to land that currently violates a zoning ordinance would be considered unmarketable.
• Quiet/Further Assurances—Grantor will take necessary measures to perfect the grantee’s title.