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Flashcards in Real Property Deck (50):

Implied Easement

Easement Implied by operation of law rather than written document (Quasi Easement). Exception to Statute of Frauds.
i. Easement implied from Existing Use - intended easement based on use that existed when dominant and servient estates were severed, intended to continue
-1. Apparent and continuous at the time the tract is divided.
2. & Reasonably necessary for enjoyment of dominant part depending on cost and difficulty of alternatives

ii. Easement implied from a recorded subdivision
or iii. easement by necessity (owner sells part of his land and it lacks access to public road)


easement appurtenant

right of special use benefits easement holder in her physical use or enjoyment of another tract of land (servient and dominant tenenment);

Benefit passes regardless of whether easement is mentioned in conveyance; Recording is not essential either - notice for burdened party;


equitable servitude

a convenant that regardless of whether it runs with the land at LAW or not, Equity will enforce against the assignees of the burdened land who have Notice of the covenant

Benefit runs to successors if:
1. parties so intend (COMMON PLAN/SCHEME)
2. servitude touches and concerns land

Burden runs to successors if 1, 2 and
3. subsequent purchaser has actual or constructive Notice of covenant

-if violation of ES occurs, and P does not complain. He may be deemed to acquiesce and abandon the ES for future violators.


horizontal privity

at the time they entered into covenant, they shared an interest in land independent of the covenant (grantor/ee)


vertical privity

requires that the successor in interest to the covenanting party hold the entire durational interest held by the covenantor at the time he made the covenant.


doctrine of worthier title

invalidates remainders that are limited to the grantor's heirs.


Holdover - Tenant fails to vacate after termination: landlord may

1. treat hold over tenant as trespasser and evict
2.bind tenant to new periodic tenancy. old terms apply to new tenancy. if commercial (+1 yr) will become 1 year lease


equitable mortgage

give lender absolute deed, rather than acquiring mortgage; court concludes deed is for security purposes really and will require foreclosure sale in case of default.
Factors: 1.existence of a debt or promise of payment by deed, 2. grantee's promise to return land if debt is paid, 3. fact that the amount was lower than value of property 4. degree of grantor's financial distress, 5. parties' prior negotiations


delivery of deed =

words or conduct evidencing grantor's intention that deed have some present operative effect
1) handed to grantee
or 2. acknowledged by grantor before a notary and recorded.

MUST ACCEPT, if rejected deed is not delivered or transferred.


valid deed requires consideration. T/F



A forfeiture restraint

provides that if the grantee attempts to transfer the property, it is surrendered to another person. A conveyance from “O to A, but if A attempts to transfer the land or any interest therein during her lifetime, to B” contains a forfeiture restraint. Reasonable (i.e., limited in time and purpose) forfeiture restraints on legal interests generally are valid.


A disabling restraint

provides that any attempted transfer of the property is ineffective. A conveyance from “O to A, and neither A nor her heirs shall have the right to transfer the land or any interest therein” contains a disabling restraint. Disabling restraints on any legal interest are void.


A promissory restraint

provides that the grantee covenants not to transfer the property. A conveyance from “O to A, and A hereby covenants not to transfer the land or any interest therein without O’s consent” contains a promissory restraint. Reasonable promissory restraints on legal interests generally are valid.


Land sale not in writing?

Court may award the buyer specific performance in equity if the buyer has performed 2 of the 3 following acts:
1. Taken possession of the land;
2. Made substantial improvements to the land, and/or
3. Paid all or part of the purchase price.


Land Sale - time is of the essence

closing date is absolutely binding in equity), a party who fails to tender performance on the closing date is in total breach and loses her right to enforce the contract.


seller’s liability for defects in the improvements to real property may be based on the seller’s

(i) misrepresentation, (ii) active concealment, or (iii) failure to disclose serious defects known to her and which the buyer is not likely to discover.


doctrine of equitable conversion

the buyer of land is considered to own (i.e., hold equitable title to) the real property once the contract is signed. (in relation to risk of loss, or death of seller, NOT breach of closing date K)


Essay Approach Real Property

1. Classify and Validate Interest (ownership, non possessory)
2. State characteristics of Interest
3. State Limitations to the Interest
4. Any Conveyancing Issues?
5. Remedies


Lease defn

An estate in land in which tenant has present possessory interest and landlord has future interest.


Tenancy for years

continues for fixed period of time (anywhere from 2 days); usually written if +1 year; ends automatically at end of period;
LL reserves right of entry if tenant breach (surrender of +1 yr must be in writing)


Tenant Duties

Pay Rent; to Repair (waste); Not to use for illegal purpose;


LL duties

Deliver possession of premises, quiet enjoyment, implied warranty of habitability; Tort duty to make certain areas safe;


periodic tenancy

continues for successive periods until terminated by proper notice on either party; can be made by express agmt, implication, or operation of law

TO TERMINATE - if monthly lease, must give 30 days notice (full period in advance) ;
if yearly lease, must give six months


tenancy at will

terminable at will of either party, non assignable/sublettable;
in absence of agmt to create at will Ten, monthly rent payments will lead to periodic tenancy.



Transfer entire estate; steps into shoes of original lessee and has privity of estate with lessor as long as she is in possession and has same defenses as original lessee; Absent any express restrictions in a lease, a lessee may freely transfer;
Orig lessee keeps privity of K



transfer of lesser estate; Absent any express restrictions in a lease, a lessee may freely transfer;

Unless expressly assumed, NOT personally LIABLE for to LANDLORD for rents/covenants bc no privity of contract or full estate, (VS an Assignee IS LIABLE)


Implied Warranty of Habitability

Reasonably suitable for human residence and cannot be waived.

Remedy for breach: MRRR
1. Lessee may move out and terminate lease; 2. make repairs and offset cost against future rent;
3. abate the rent in sum equal to
fair rental value in view of defects;
4. or remain in full possession, pay full
rent, and sue for damages.


Implied Covenant of Quiet Use and Enjoyment

lessor/title holder will not interfere with lessee’s quiet use/enjoyment of premises. Breached by:
1. actual (entire premises), 2. partial, or 3. constructive eviction.


Constructive Eviction:

Occurs when landlord does something, or fails to do something, that renders property uninhabitable/unusable;
Lessee must vacate within reasonable time, may terminate lease and seek damages.


Tenancy at Sufferance

Tenant wrongfully holds over after termination of tenancy; terminates when LL evicts or elects to hold tenant to new term


CL Property Breach of Covenant

all duties were independent and a breach by one party would not suspend the duty of the other party


MODERN Property Breach of Covenant

covenants deemed dependent, such that one party’s breach of a duty suspends the other party’s duty under the corresponding covenant


life tenant is obligated to

pay all ordinary taxes on land to extent of income or profits from land


Fee Simple Determinable expires when

condition occurs automatically


Fee Simple subj to Condition subsequent expires when

when condition is violated and person exercises right of entry


RAP does NOT apply to

Rights in Grantor; Charity to Charity, most vested remainders, Options and Rights of First Refusal when connected to LEASEHOLDS


RAP DOES apply to

contingent remainder, vested remainder subject to open, executory interests...

Contingent remainders / class gifts(Vested remainders subject to Open)
Options to purchase
Power of appointment
Executory interests
Right of first refusal


Defeasible Fee

Fee simple that is of potentially infinite duration, but which may terminate on happening of a specified event
(Fee simple owner (even if subj to divestment) can do whatever he wants on land unlike life estate holder who is subject to concerns of future interests)


Right of Redemption

Statutory power to redeem property AFTER foreclosure sale has occurred. 1/2 the states give borrower STATUTORY right to redeem for some fixed period AFTER sale has occurred -generally at sale price, not debt.

All states Provide borrower w/ equitable right, to redeem land PRIOR to sale by paying off amount due, or if acceleration applies the whole amount.


Marketable title

implied promise by seller to deliver to buyer marketable title at time of closing. title free from reasonable doubt; free from questions that might present unreasonable risk of litigation.

Marketable = if reasonably prudent buyer would accept it in exercise of ordinary prudence.

if not marketable prior to closing, buyer must give seller reasonable time to cure. If seller is unable to cure BY CLOSING buyer can rescind, sue for damages caused by breach, or obtain specific performance w/ abatement of purchase price. BUT BUYER CANNOT PULL OUT EARLY!!! Only at Time of Delivery

Unmarketable IF

1. title rests on Adverse Possession (need to quiet title

2. Encumbrances (ES, Easements, Mortgates) Unless easement BENEFICIAL and KNOWN; (only Significant encroachments that could interfere w/ enjoyment)

3. Zoning Violations


Joint Tenancy


Lien on 1 Tenant's prop stays with land, but expires once JT takes w/ right of survivorship. Debt goes to estate.


Modification of Mortgate

orig deal is still SENIOR, but modification will be junior to loans made after orig and before mod must be joined or stays alive


General Warranty Deed

@ Delivery:
1. Seisin (Grantor owns land)
2. Right to convey (power to sell)
3. No encumbrances (no visible or invisible servitudes/liens/mort/easements)

Future, disturbed in possession - Continuous
4. Quiet Enjoyment (only claim to land)
5. Warranty (defend against TP lawful or reasonable claimants, compensate grantee for any loss sustained)
6. Further Assurances (do what is reasonably necessary to perfect title if turns out to be imperfect)



like an easement, profit is a non-possessory interest in land Entitles holder to enter servient tenement and take soil or substance of soil.
-Has value apart from land itself and is alienable.
-may be in gross or appurtenant

-if appurtenant, can ONLY be transferred w/ the dominant estate
-if in gross, may be transferred separate and apart from dominant estate



revocable, unless coupled with an interest.


share and share alike

equal shares


share undivided interest

share 1/2 interest as to the ENTIRE tract; NOT 1/2 each separately. (Tenants in common or JT)


undue influence

K voidable if executed by minor or incapacitated person or obtained through fraud in the inducement, duress, undue influence, mistake or breach of fid duty.

Undue influence exists where
1. influence is exerted on grantor
2. effect of influence is to overpower mind and free will of the grantor
and 3. product of influence is a deed that would not have been executed for the influence


title by adverse possession

possessor must show
1. actual entry giving exclusive possession that is
2. open and notorious
3. adverse/hostile
and 4. Continuous for whole statutory period.


easement and running w/ land

if servient parcel is transferred, its new owner takes it subject to the burden of the easement, UNLESS she is a bona fide purchase with NO notice of the easement. (AIR)