Real Property Flashcards
1
Q
What are 4 types of present possessory estates?
A
- Fee simple absolute;
-
Defeasible estate;
- fee simple determinable;
- fee simple subject to condition subsequent; and
- fee simple subject to executory limitation
- Life estate;
- Non-freehold estates (leasehold estate)
2
Q
What are the duties/obligations of a life tenant?
A
- Pay property taxes & mortgage interest;
- Make reasonable repairs;
- Not commit waste; and
- Pay insurance premiums (some jurisdictions)
3
Q
What is the doctrine of waste and the 3 types of waste?
A
Life tenant must keep property in the same condition as when she took ownership.
3 types:
- Affirmative (“voluntary”) waste
- Permissive waste
- Ameliorative waste
4
Q
What are defeasible fees and what are the 3 types?
A
A fee estate of potentially infinite duration that can be terminated upon the occurrence of a specified event
- Fee simple determinable
- Fee simple subject to condition subsequent
- Fee simple subject to executory interest
5
Q
What is a fee simple determinable?
What type of language creates it?
A
Property interest that terminates automatically upon the happening of a named future event.
Created with specific durational language (“until,” “while,” “so long as”)
6
Q
What is the future interest in a fee simple determinable?
A
Possibility of reverter: automatically reverts back to the grantor if condition happens
7
Q
What is a fee simple subject to a condition subsequent?
What type of language creates it?
A
Gives grantor power/right to terminate interest upon occurrence of a specific event.
Created with specific, conditional language: “on condition that,” “provided,” “if”
8
Q
If language identifying the type of defeasible fee is ambiguous, then what is the default treatment?
A
- Fee simple subject to a condition subsequent is preferred over fee simple determinable (because there is no automatic forfeiture)
- Covenant is preferred over a defeasible estate
9
Q
What is a fee simple subject to an executory interest?
What type of language creates it?
A
An estate that is subject to a future interest by a third party, and upon occurrence of an event, the estate will automatically divest in favor of the third party.
Created with specific conditional language: “To A, but if A doesn’t finish law school, then to B and B’s heirs”
10
Q
What types of future interests can a grantor have?
A
- Reversion (O conveys life estate);
- Possibility of reverter (O conveys fee simple determinable);
- Right of entry
11
Q
Differentiate between the power of termination and possibility of reverter
A
Power of termination:
- Must be expressly retained by grantor in the conveyance
- When the event happens the property does not automatically revert back to the grantor, the grantor must re-take the property
- Descendable; devisable, not transferrable inter vivos (majority rule)
Possibility of reverter:
- Automatically created whether or not grantor expressly reserves the right in conveyance
- When the event happens the property automatically reverts to the grantor
- Descendible, devisable, transferrable
12
Q
Define
contingent remainders
A
Remainders that are either:
- Created for an unknown beneficiary (“To A for life then to B’s heirs” if B has no children yet); or
- Subject to a condition precedent (“To A for life then to B and her heirs if B passes the bar”)
13
Q
What is a vested remainder and what are the 3 types?
A
Interest that is:
- Created in an ascertainable grantee; and
- Not subject to any condition precedent other than termination of the preceding estate
Types:
- Indefeasibly vested
- Vested remainder subject to total divestment
- Vested remainder subject to open
14
Q
What types of future interests are retained by third parties?
A
-
Remainder
- Vested
- Contingent
-
Executory interest
- Shifting
- Springing
15
Q
What is an indefeasibly vested remainder?
A
Grantee takes possession upon termination of prior estate, no conditions attached
16
Q
Distinguish a shifting vs. springing executory interest
A
Shifting: cuts short a third party’s interest (“To A and her heirs but if B passes the bar, then to B)
Springing: cuts short the grantor’s interest (“To A if she passes the bar”)
💡Memory tip:
ShifTing (divests third party)
SprinGing (divests grantor)
17
Q
What are the main qualities of a tenancy in common?
A
- No right of survivorship;
- Freely devisable, transferrable, alienable;
- Right to possess the whole; and
- Right to partition
18
Q
How is a joint tenancy created?
A
Must have the Four Unities (“PITT”):
- Unity of Possession: equal right of possession;
- Unity of Interest: equal interest with co-tenants;
- Unity of Title: same conveyance; and
- Unity of Time: interests created at the same time
19
Q
What are two key differences between joint tenancy and tenancy in common?
A
- A joint tenancy creates a right of survivorship and a tenancy in common does not
- Tenancy in common only requires unity of possession (not the 4 unities like a JT)
20
Q
Define
tenancy by the entirety
A
A joint tenancy between a married couple that has:
- Right of survivorship
- No right to partition
21
Q
What happens when a joint tenant transfers the interest?
A
The joint tenancy remains intact between remaining joint tenants and the interest sold is held as a tenancy in common between all parties
22
Q
If one joint tenant mortgages their interest in land, what happens in a lien theory vs. a title theory state?
A
Lien: JT is not severed
Title: JT is severed
23
Q
What is a leasehold (landlord/tenant) estate and what are the 4 types?
A
Estate created & governed by a lease signed between the parties.
Types:
- Tenancy for years;
- Periodic tenancy;
- Tenancy at will; and
- Tenancy at sufferance
24
Q
What are the 4 basic duties of a tenant?
A
- Pay rent;
- Not commit waste (affirmative/voluntary, ameliorative, or permissive);
- Not use the premises for an illegal purpose; and
- Protect third party invitees from foreseeable dangers on the premises
25
If the tenant abandons the property, is the landlord required to **mitigate damages**?
**Majority**: Yes, should make good faith effort to rent to other tenants and can seek damages from tenant for losses.
**Minority**: No, landlord can seek damages for **all** unpaid rent
26
What are a **landlord's tort liabilities**?
Landlords have a duty of reasonable care → can be liable for injuries:
* In **common areas** & non-common areas if defect is hidden;
* From **existing defects** that landlord knew of and failed to notify tenant about;
* From **negligent repairs** made by landlord; and
* From failure to make repairs required by **housing code**
27
What is an **assignment** and **to whom** is the assignee liable?
Transfer of the **entire lease** to new tenant (assignee)
Assignee is in **privity with landlord** and liable for all rent owed to the landlord
28
If the property is **condemned**, does the tenant need to continue making rent payments?
**If partial** (tenant still has partial use of the property) **or temporary**: Yes, but tenant is entitled to compensation for dispossession from condemnation
**If full condemndation:** No
29
Can you transfer:
1. An easement appurtenant?
2. Easement in gross?
1. Yes, transferred **automatically** b/c attached to the dominant estate. Does not need to be explicitly stated in the transfer.
2. Not transferrable unless for **commercial purpose**
30
What are **4 ways** in which an easement can be created?
1. Expressly (signed in, writing);
2. Prescription;
3. Implication; or
4. Necessity
31
What is an **easement by implication** and how is it created?
Easement **implied by prior use.**
Exists when:
1. Easement **existed on a single tract** of land that was **subsequently severed** into the servient and dominant estate;
2. Prior use was **continous and apparent**;
3. Parties **intended** the easement to continue; and
4. Easement is **reasonably necessary** for enjoyment of dominant estate
32
When can an easement be **implied without prior use**?
* If lots are sold in a **subdivision** with a recorded plat or map
* If holder has a **profit-à-prendre** that makes it necessary to use the land to extract materials
33
What is an **easement by necessity** and how is it created?
Easement is **absolutely necessary** to access the property
Created if:
1. Dominant and servient estates were **once a single parcel** under common ownership; and
2. Severance of the parcel made the easement **absolutely necessary**
34
What happens if property is sold to bona fide purchaser **without notice** **of the easement**?
Easement is **unenforceable** against the BFP
35
8 ways to **terminate** an easement
1. Destruction of servient estate;
2. Release;
3. Abandonment;
4. Estoppel;
5. Severance;
6. Prescription;
7. Merger;
8. Expiration; or
9. End of necessity
36
Differentiate between a **license** and an **easement**
**Licenses:**
* Freely revocable (unless detrimental reliance or coupled with interest)
* Privilege, not an interest in land
* Can be created without consideration or writing (no SOF requirement)
**Easements:**
* Last for specific period or indefinitely
* Interest in land
* Must satisfy SOF
37
Elements for an **equitable servitude**
1. **Writing**: original agreement in writing;
2. **Intent**: original parties must intend to bind successors;
3. **Touches and concerns** the land;
4. **Notice:** burdened party had actual, record, or inquiry notice (not required for benefit to run)
38
What is required for the **benefit** of a covenant to run with the land?
1. **Writing**: original agreement in writing;
2. **Intent**: parties intended benefit to run;
3. **Touches and concerns** the land; and
4. Successor is in **vertical privity** with original parties
## Footnote
⚠️ Horizontal privity is **not required**
39
What is required for the **burden** of a covenant to run with the land?
1. **Writing**: original agreement in writing;
2. **Intent**: parties intended to bind successors (courts are liberal in finding requisite intent);
3. **Touches and concerns** the land;
4. **Horizontal and vertical privity**; and
5. **Notice**: successor had notice of the covenant when she took
40
# Define
lateral support rights
Landowners have the right to **lateral support** from **adjoining** land
41
# Define
subjacent support rights
Surface structures have the right to support from **underneath** the land.
Can arise if landowner allows another party mine, tunnel, or build an underground parking structure → party must ensure surface structures are adequately supported.
## Footnote
\*Subjacent means "underground"
42
What is **zoning** and from where is the power **derived**?
Governmental regulation and control of land use.
Derived from the **police powers.**
43
When does a zoning regulation constitute a **regulatory taking**?
When it deprives the owner of **ANY economically viable use**
## Footnote
See [Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978)](https://supreme.justia.com/cases/federal/us/438/104/)
44
What types of zoning regulations are **invalid/void**?
* Discriminatory against suspect class (must show discriminatory **purpose**, not just effect);
* Not rationally related to the general public welfare;
* Unauthorized or in excess of authority; or
* Too restrictive
45
# Define
mortgage
A security interest in real property between a borrower and lender that secures the performance of an obligation (typically repayment of a loan)
46
# Define
equitable mortgage
Lender secures the mortgage by taking possession of all the **original title documents** of the property. Lender has the right to sell the property, foreclose, and appoint a receiver if the borrower doesn't pay.
47
Who has the **title and right** to the property interest in a:
1. **Lien** theory jurisdiction (majority)
2. **Title** theory jurisdiction (minority)
1. Lien: **Mortgagor-borrower** has title and right to possession. Mortgagee-lender has a **lien** on the interest.
2. Title: **Mortgagee-lender** has title and right to possession
48
If a mortgagor **transfers** the property, who is liable upon default if the buyer:
1. **Assumes** the mortgage?
2. **Takes subject to** the mortgage?
If the buyer/transferee "**assumes"** the mortgage:
* **Buyer/transferee** is primarily liable for the loan
* Mortgagor is secondarily liable unless released by transferee
If buyer/transferee takes "**subject to"** the mortgage:
* **Mortgagor** is primarily liable
* Buyer/transferee incurs **no liability** to repay the loan
49
What is **foreclosure**?
When the borrower **fails to make timely** payments, the lender can foreclose on the property and **use the proceeds to satisfy the debt owed**
50
# Define
right of redemption
After default, at any time prior to the foreclosure sale, a debtor can **redeem title** to the property by **paying the full debt** amount
## Footnote
Note that this question refers to equitable rights of redemption, which are far more common than statutory rights of redemption, and more likely to be tested. For more info:* [Right of Redemption](https://www.law.cornell.edu/wex/right_of_redemption)
51
What is an **acceleration** clause?
Requires the borrower to pay the full amount owed upon default
## Footnote
*More info:* [Acceleration Clause](https://www.law.cornell.edu/wex/acceleration_clause)
52
What are the 3 **types** of foreclosure?
**Judical**
* ****Sale is supervised by the court
**Nonjudicial** ("power of sale")
* Property is sold without court supervision
* ****Common in deed of trust states
* Mortgage/deed of trust must contain a "power-of-sale" clause
**Strict**
* Lender seeks court order for borrower to pay within a specified time frame. If borrower cannot pay, lender takes title to the property
* Minority method
53
In a foreclosure sale, who gets **priority** for the proceeds?
1. Debts incurred by the foreclosure (attorney's fees, etc); then
2. Senior mortgages; then
3. Junior mortgages
54
How do you determine what **interests take priority** (i.e. which is senior and junior) in a foreclosure sale?
Generally, follow the "**first in time, first in right"** rule, unless an exception applies
55
What are the exceptions to the "**first in time, first in right**" rule?
1. **Purchase money mortgage**: Priority over all liens, regardless of when they were recorded
2. **Recorded mortgages** have priority over unrecorded mortgages;
3. **Non-guaranteed advances** from future-advance mortgages;
4. Subordination by senior mortgagee to subsequent interest;
5. Modification; and
6. After-acquired property
56
How are interests **affected** by a foreclosure sale?
* **Junior interests** are extinguished
* Buyer buys the property **subject to the senior interests**
57
What is the **Doctrine of Marshaling Assets**?
Holder of a senior security interest must proceed:
1. First, against property **without junior security** interests;
2. Second, against property that has whichever junior interest was more **recently created**; and
3. Lastly, against property that has whichever junior interest was more **remotely created**
58
Elements of adverse possession
Trespasser's possession is:
1. **Continuous** for duration of statutory period;
2. **Open and notorious**;
3. **Actual**;
4. **Hostile**; and
5. **Exclusive**
59
Requirements for a land sale contract to satisfy the SOF
1. In **writing;**
2. **Signed** by the parties to be bound;
3. Contain **essential terms** of the deal (description of the land, consideration to be paid, etc)
60
What defects render a title **unmarketable**?
1. **Encumberances**;
* Covenants
* Easements
* Mortgages
* Liens
2. Title acquired by **adverse possession**;
3. ****Zoning ***violations***;
4. **Incurable and undisclosed physical defects**; and
5. Future interests that have **not consented** to transfer
61
What can the buyer do if they **discover the title is unmarketable?**
Notify the seller **before the closing date** and give them a reasonable time to cure defects
## Footnote
If seller doesn't cure, buyer can seek specific performance, damages, and an action to quiet title
⚠️ If buyer doesn't notify seller beforehand, deed controls b/c of the merger doctrine and seller is not liable
62
What's the **doctrine of merger** and its effect?
Once the deed is transferred/conveyed to the buyer, the contract merges with the deed and the **deed controls**, not the contract.
## Footnote
⭐️ This means that whatever obligations the seller had under the contract are not enforceable unless they are **also contained in the deed.**
63
What is the **doctrine of equitable conversion**?
Helps determine who bears the risk of loss. Holds that once the buyer signs K to purchase land at a later date, but before closing:
* Buyer has **equitable** title; and
* Seller has **legal** title
64
Under the doctrine of equitable conversion, **who bears the risk of loss** if the property is destroyed prior to closing?
Holder of the equitable title (the **buyer**), regardless of whether buyer took possession yet
65
What's the **exception** to the doctrine of equitable conversion?
Buyer will not bear the risk of loss if loss is attributable to the **intentional or negligent acts** of the seller
66
What is required for a deed to be effective?
1. In **writing** and signed by grantor;
2. **Describe** the parties and the land;
3. **Delivered** (i.e. seller must have present intent to transfer the interest)
67
# Define
general warranty deed
Contains **6 present and future** **covenants of title** that cover the property's entire history
Present:
1. Seisin;
2. Right to convey; and
3. Against encumbrances
Future:
1. Quiet enjoyment;
2. Warranty; and
3. Further assurances
68
# Define
special warranty deed
Contains the **same covenants of title** as a general warranty deed, but only for the **period of the seller's ownership** of the land → does not contain any warranties for what happened before the grantor took ownership
69
# Define
bona fide purchaser for value (BFP)
Buyer who:
1. Purchases property for **value**;
2. Without **notice** of any prior claims
70
What are the 3 **types** of **notice?**
1. Actual;
2. Record (also called constructive notice); and
3. Inquiry
71
Who prevails in a **notice jurisdiction**?
Subsequent bona fide purchaser who **lacks notice of an earlier interest** will prevail
72
Who prevails in a **race-notice jurisdiction**?
**First BFP** to properly **record**
