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Bar Exam Cards > Real Property Cards > Flashcards

Real Property Cards Flashcards

1
Q

Deed Requirements

A

To be valid, a deed conveying real property must (1) be in writing, (2) be signed by the grantor, (3) identify the land to be transferred, (4) identify the grantee, (5) contain language of the grantors present interest to transfer, and (6) be delivered to and accepted by the grantee.

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2
Q

Adverse Possession

A

An individual may acquire ownership of land through AP if 1) their possession of the land is exclusive, 2) their possession is continuous for the statuary period, 3) their possession is hostile under a claim of right, and 4) their possession is open and notorious. The AP must be for the statutory period, if none is presented, it is presumed to be 7-10 years.

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3
Q

Joint Tenancy

A

Is a form of ownership of property. To create a joint tenancy, the tenants must have the unities of possession, interest, time, and title. The deed conveying the property must also state that it is with the right of survivorship. Unity of possession exists when all joint tenants have an equal right to possess the land.

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4
Q

Joint Tenancy: Unity of Interest

A

Means that all joint tenants have the same interest in the land.

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5
Q

Joint Tenancy: Unity of Time (and Title)

A

Requires that the joint tenants’ interests must have been created at the same time and in the same conveyance.

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6
Q

Ouster

A

Tenants may commit ouster when they take possession of the entire property that was once in common ownership with an intent to oust the other tenants. Ouster requires notice to the ousted tenants, whether that be constructive or actual notice, and intent to oust the other parties, and the taking of full possession of the property. Once ousted, the ousted parties may seek partition, while losing their right to possession of the property.

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7
Q

Joint Tenancy Severance

A

A joint tenancy is severed as to a joint tenant whenever that joint tenant conveys his interests to a third party. At that point, the third party becomes a tenant in common.

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8
Q

Tenant in Common

A

A joint tenancy is terminated and replaced by a tenancy in common upon the severance of the joint=tenancy arrangement, such as by the conveyance of a joint tenants possession to another. A tenancy in common exists when multiple parties hold equal interests to a property and have the right to possession of the entire property. The interests can be freely transferred.

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9
Q

Self-conveyance of Deed

A

Some jurisdictions allow for an individual to convey land to themself via a deed. This would allow for joint tenant to become a tenant in common by self-conveyance.

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10
Q

AP: Exclusive

A

To be exclusive, the possession cannot be shared with the rightful owner.

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11
Q

AP: Continuous

A

“Adversely” lives on the area for the statutory period.

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12
Q

AP: Hostile

A

To be hostile, the possession must be made under a claim of right or showing that they had used the land for their own interest.

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13
Q

AP: Open and Notorious

A

During the time frame of “adversely” possessing the land, the AP’er does not hide the fact they are living/using the property and a reasonable owner of the property would frequently check on the land to make sure no one is using it for their own gain.

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14
Q

AP: Tacking

A

A court adds the time of possession of the original AP’er to a descendent that is also attempting to AP the same property to meet the statutory period.

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15
Q

Joint Tenant Taxes and Fees on Land

A

Joint tenants are all responsible for payment of taxes and entitled to the profits on the land they jointly hold. Tenants will not be reimbursed for improvements made to the property, though they may recover the increase in value from those improvement if the property is sold.

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16
Q

Tenancy in Common Taxes and Fees on Land

A

A tenant in common is entitled to possession of the premises. However, a tenant in sole possession of the land is required to pay taxes on the land to the extend that the land produces income. Tenants will not be reimbursed for improvements made to the property, though they may recover the increase in value from those improvement if the property is sold.

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17
Q

Partition in Kind

A

An action for a physical division of the property, if in the best interests of all parties.

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18
Q

Partition by Forced Sale

A

An action when, in the best interests of all parties, the land is sold and the sale proceeds are divided up proportionally.

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19
Q

Landlord Duty of Possession

A

In general, landlords owe tenants a duty to deliver possession. Following the modern rule, a landlord must deliver actual, physical possession of the property. Meaning, evicting holdover tenants to allow for the new tenant to take possession.

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19
Q

Landlord Duty to Repair

A

Landlords in residential leases generally have a duty to make repairs. Even if a lease places this duty on the tenant, courts will still find that it rests with the landlord. Landlords are permitted to engage professionals to make repairs, but there is no obligation for the landlord to do it themselves.

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19
Q

Covenant of Quiet Enjoyment

A

Landlords also generally are required to comply with the covenant of quiet enjoyment. This doctrine requires that landlords not interfere, or permit others to interfere, with one’s right to use, possess and enjoy their possessory interest. A tenant that has suffered a breach of this covenant must give notice to the landlord to take remedial action. Failing any remedial action, the tenant is permitted to give notice of her constructive eviction and cease paying rent.

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19
Q

Implied Warranty of Habitability

A

Residential leases only are subject to an implied warranty of habitability. This requires that the landlord deliver the property in a condition fit for ordinary residential use. A tenant must give notice to the landlord if a breach has occurred, and they may either refuse rent during the period of breach, make repairs and deduct the costs from their rent, or vacate the premises until remedied.

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19
Q

Affirmative Waste

A

When a tenant intentionally destroys or reduces the value of the property

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20
Q

Permissive Waste

A

When a tenant’s negligence causes damage or otherwise reduces value of property

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21
Q

Ameliorative Waste

A

When a tenant alters the property, even in an economically valuable way, without landlords permission

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22
Q

Tenant Duties

A

A tenant has a duty to pay rent and not commit waste. There are three kinds of waste: Affirmative, Permissive, and Ameliorative.

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23
Q

Tenancy for Years

A

Also known as an estate for years. Is for a fixed, determined period of time. Continued tenancy following the termination of the lease can give rise to a periodic tenancy or a holdover tenancy.

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24
Q

Periodic Tenancy

A

Is a lease which continues for successive intervals (eg, month to month) until either the landlord or the tenant gives proper notice of termination.

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25
Q

Tenancy at Will

A

This is a tenancy of no fixed period of duration. It is terminable at the will of either the landlord or the tenant.

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26
Q

Tenancy at Sufferance

A

Is created when a tenant wrongfully holds over, meaning they remain in possession past the expiration of the lease.

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27
Q

Termination of Lease

A

Generally, a lease terminates through an action for eviction or by mutual agreement by parties.

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28
Q

Tenancy Damages

A

A tenant/landlord may seek damages from the opposing party when there has been breaches to the duties owed by either side. A tenant may seek damages when they have been constructively evicted by the landlord, when there has been a breach of quiet enjoyment, and a breach of warranty. A landlord may be entitled to damages for unpaid rent if the tenant improperly or fails to raise a breach.

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29
Q

Constructive Eviction

A

Occurs when the landlord’s breach of duty renders the premises unsuitable for occupancy, whether it is through a hazard or a holdover tenant. There must be a showing of some substantial interference and notice of it.

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30
Q

Surrendering Lease

A

When a tenant breaks a lease and surrenders, it generally must be in writing if the lease term was over 1 year. When a tenant surrenders the lease, and the landlord accepts, the landlord owes a duty to mitigate losses.

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31
Q

Private Nuisance

A

Is any substantial and unreasonable interference with the use and enjoyment of property

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31
Q

Private Nuisance: Substantial

A

An interference is substantial if it would be offensive or annoying to an average member of the community. This is an objective standard, there is no requirement that the plaintiff actually be annoyed nor is there any special allowance if they are actually annoyed or offended.

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31
Q

Private Nuisance: Unreasonable

A

The activity causing the nuisance must be unreasonable. This is a balancing test. If the utility of the activity outweighs its interference with the plaintiff’s property rights, it is reasonable. Otherwise, it is unreasonable.

31
Q

Private Nuisance: Interference

A

The activity must actually interfere with the use of land. Generally, this has been expressed as requiring that the activity have a trespass component.

31
Q

Private Nuisance: Use and Enjoyment of Property

A

The substantial and unreasonable interference must directly interfere with the use of private property. Interfering with public spaces does not create a private nuisance.

31
Q

Remedy for Private Nuisance

A

Generally, the remedy for a private nuisance is an injunction. If the activity is essential to a community’s economic health or otherwise of exceptional utility, money damages may be awarded instead.

31
Q

Public Nuisance

A

Is any activity that interferes with the health or safety of the public at large.

32
Q

Public Nuisance: Standing

A

Public Nuisance has strict standing requirements. In order to collect under public nuisance, a private individual must demonstrate that they have suffered a harm that is different in kind than the general public. A harm different in degree is insufficient.

33
Q

Public Nuisance: Statute of Limitations

A

Serves as an absolute bar to legal action. For most causes of action, the statute of limitations is one year from the time the cause of action arises. However, continuous actions can be recovered for any violation within the previous year.

34
Q

Trespass

A

AA trespass is any physical occupation of real property without permission

35
Q

Trespass: Intent

A

A trespass only occurs if the trespasser actually intended to occupy the land. The trespasser’s knowledge about the ownership of the land is irrelevant. A mistaken belief that they had the right to enter the land is not a defense.

36
Q

Trespass: Physical Presence

A

The trespasser must be physically present on the property.

37
Q

Trespass: Without Permission

A

The property owner must not have consented to the trespass, impliedly or expressly.

38
Q

Trespass: Damages

A

There is no requirement of actual harm. Nominal damages are recoverable.

39
Q

Defense: Private Necessity

A

Exists when exigent circumstances cause the trespass. Allows the avoidance of nominal damages and ejectment.

40
Q

Private Necessity Limitations

A

Involves a balancing of the risk of not trespassing and harm inflicted by trespassing. The trespasser has the ultimate decision on the balance of these factors. As such, the trespasser is traditionally held responsible for any actual damages that occur as a result of the trespass.

41
Q

Defense: Public Necessity

A

Exists when the trespass is necessary to prevent harm to the public at large. Unlike private necessity, the landowner cannot collect actual damages from public necessity.

42
Q

Easement by Prescription (EbP)

A

Functions similarly to adverse possession of a property, but only for a limited use. In order to establish that there is an easement by prescription, the seeker of the easement must demonstrate 1) continuous use of the subservient estate, 2) for a statutory period, 3) that was open and notorious, and 4) hostile. Unlike in AP, there is no requirement that the easement holder have had exclusive use over the property, since the easement does not eliminate the property owners rights entirely.

43
Q

Easement

A

Grant the dominant estate the right to use the subservient estate for limited purpose. Can be in writing or implied, which has no writing requirement.

44
Q

EbP: Continuous Use

A

The use must have been continuous throughout the statutory period. It need not have been constant, but must have been reliable enough for the scope of the easement sought.

45
Q

EbP: Statutory Period

A

The use must have lasted for the statutory period stated by the fact pattern. If no period is mentioned, it is presumed around 7-10 years.

46
Q

EbP: Open and Notorious

A

The use must have been such that an observant landowner would be aware of it. In essence, the landowner must have been put on inquiry notice of the use.

47
Q

EbP: Hostile

A

The use must have been without the permission of the landowner. Otherwise, there is a freely revocable license.

48
Q

Government Taking “Eminent Domain”

A

Government entities have the right to “take” property, providing that “just compensation” is provided. In order to take, the government must merely show that the taking is rationally related to a legitimate government interest.

49
Q

Eminent Domain: Legal Taking

A

A taking must be rationall

50
Q

Eminent Domain: Relocation Costs

A

A government may be liable for losses resulting from reliance on the assumption that there would be no taking. However, the government is not responsible for other costs, such as the cost of finding a replacement property.

51
Q

Express Easement

A

An express easement by deed must meet the deed formalities to be valid, including a valid writing, and other statute of fraud requirements . Moreover, easements are deemed to be perpetual in nature unless otherwise indicated.

52
Q

Easement Scope

A

An easement must usually be used reasonably within the scope of the granting instrument if an express easement. This typically allows the holder of the easement to improve the land where the easement lies and to enter on to it to repair it.

53
Q

Easement Termination

A

Termination of an easement may occur where the easement is abandoned, where the granting instrument states a specific condition to occur, or where the properties that the easement lies on and the adjacent property holder are merged. Typically easements are perpetual in nature unless stated otherwise.

54
Q

Transfer of Land with Easement

A

Generally when land that is burdened by the easement, the servient estate, transfers title the easement runs with the land. However, a bona-fide purchaser (unknowing new purchaser) that had no knowledge of the easement upon purchase generally terminates the easement.

55
Q

Recording Act

A

Under the common law, title in land was measured by first in time, first in right. However, under the modern law, people who record their interest in land can preserve their title by putting the world on notice of that interest in land. There are three kinds of notice: race, race-notice, and notice.

56
Q

Race State

A

Notice of a prior conveyance by the grantor doesn’t matter. The first party to record wins. A very small amounts of jurisdictions follow this notice method.

57
Q

Notice Statute

A

A subsequent purchaser who had no notice of a prior conveyance by the grantor will prevail over a prior grantee who failed to record.

58
Q

Race-Notice Statute

A

To be protected under a race-notice statute, the subsequent purchaser must not have any notice of the prior grant and must record first.

59
Q

Subsequent Bona Fide Purchaser

A

In order to actually argue that one did not have notice to the easement, they must be a SBP. Typically, a SBP is someone who took title to land subsequently to the current holder of the land and they did so for value.

60
Q

Shelter Rule

A

Anyone who takes from a BFP will prevail against any interest the BFP would have prevailed against.

61
Q

Land Sale contract- Marketable Title

A

A contract for the sale of land is required to be in a valid writing satisfying the statute of frauds. Generally, in every contract for the sale of land there is the doctrine of marketable title which ensures that there would be no encumbrances brought with the purchase of the land.

62
Q

Merger

A

Under the merger doctrine, the contract is said to merge into the deed and the buyer may not use the contract to recover for defects on the property.

63
Q

Types of Deeds

A

There are three kinds of deeds: general warranty deeds, special warranty deeds, and quitclaim deeds. Quitclaim deeds do not provide any relief under a covenant. General warranty deeds provide relief under several different kinds of covenants.

64
Q

Covenant against Encumbrances

A

States that at closing there will be no encumbrances on property. This is breached immediately at closing and is considered a present covenant on the property.

65
Q

Remedies

A

Typically the remedy for a defect in the title to land is the difference of the value of the land with the easement on it and the value of the land without the easement on it.

66
Q

Fee Simple Determinable

A

Is a fee simple interest that may be cut short by a subsequent event. When a fee simple defeasible contains terms of duration it is a fee simple determinable. It will be a fee simple until an event occurs inscribed in the conveyance, in which it will revert back to the original owner.

67
Q

Possibility of Reverter

A

The grantor of a fee simple determinable interest retains a possibility of reverter. Meaning, the fee simple automatically reverts to the grantor at the time the designated even occurs.

68
Q

Restraint on Alienation

A

A possibility of reverter may not be valid if it brought an undue restraint on alienation. Generally, courts do not allow conveyances that absolutely prohibit future transfer of the property. Restraints may be allowed if it is for a reasonable time period, but generally, absolute retraints are invalid. If a reverter is considered invalid, any language indicating such restraint will be struck from the instrument and only the resulting interest remains.

69
Q

Zoning Ordinances

A

Are an effective way for states and localities to regulate the land use of their jurisdiction. However, a person who seeks to violate a zoning ordinance may seek a variance that will be granted or denied in the form of a permit.

70
Q

Restrictive Covenants

A

Is a promise to refrain from doing something related to the land.

70
Q

Nonconforming Use

A

Uses that are in effect prior to an ordinance change are allowed to continue unless they cause harm to residents or adjoining property. This usually is allowed through “grandfathering” since the older use was in effect prior to the new ordinance.

70
Q

Deed of Trust

A

Is an arrangement where a third party holds a deed in a trust to stand as collateral for a debt owed. With a deed of trust, if the debtor fails to make payments and ends up in default on the loan, the party that made the loan can foreclose and execute a private sale of property.

70
Q

Mortgage

A

Is an arrangement where a party who has or is buying property gets a loan and has the property itself stand as security for the debt. If a debtor fails to make the loan payments and ends up in default, then the holder of the mortgage may initiate public foreclosure proceedings against the property.

70
Q

Priority of Creditor Interest

A

Upon a foreclosure sale, how proceeds from the sale are distributed is determined by the priority of the creditors interest. Priority is determined by 1) whether or not the loan was a purchase money security interest and 2) when the interest or mortgage was recorded. All purchase money security interests have priority over other creditor interests executed at the time.

70
Q

Order of Payment

A

Foreclosure proceeds are not distributed in proportion. When a foreclosure is executed, the priority of payment is 1) all fees are paid for the foreclosure, 2) senior creditor interests are paid first and in order to the junior interests, and 3) anything left over is given the debtor, or owner of the property.

71
Q

Fee Simple Subject to Condition Subsequent

A

Is an ownership interest in land whereby the present possessor owns the land until a specified condition occurs, whereby the grantor then has the option of exercising his right of reentry and re-taking possession of the land. There must be express conditional language in the conveyance and reserves a right of reentry using words like “but if” and “the grantor shall have the right to re-enter”

72
Q

Assignment

A

Occurs when a person who is in rightful possession of property transfers all of their rights to another. Is presumed valid, unless there is a no-assignment provision in the lease which is valid and has not been waived. The original assigning party remains in privity of contract, the new assignor is in privity of estate.

73
Q

Equitable Servitude

A

Is a promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is a bona fide purchaser. For an equitable servitude to be binding, must include: Writing, Intent, Touch and Concern, and Notice

74
Q

ES: Writing

A

Generally, but not always, the original promise was in writing

75
Q

ES: Intent

A

The original parties intended that the promise would be enforceable by and against successors.

76
Q

ES: Touch and Concern

A

The promise affects the parties as landowners.

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