Real Property Concepts and missed Real property questions Flashcards

Question

What does defeasible mean?

Answer 1

Defeasible means to be capable of forfeiture. So think of the three types of defeasible fees as fee simple ("To A") with a catch or condition attached that renders the estate subject to the risk of forfeiture.

Answer 2

If the stated condition is violated, A suffers defeasance, forfeiture of the estate.

Answer 3

A fee simple determinable is a fee simple WITH A CATCH.

Answer 4

The only future interest that accompanies the fee simple determinable is - The possibility of reverter! The possiblity of reverter back to the grantor IF the condition is violated. So "A" has a fee simple determinable and the grantor has the possibility of reverter. Those are the interests each individual has.

Answer 5

``` #1 - you need clear durational language and #2 - you need a clear statement of the right of re-entry. ``` So you get something like this: "To A, but if X event occurs (#1), grantor reserves the right to re-enter and retake (#2). A good real life example - "To Selena, but if Selena every serves alcohol on site (#1), then Britney reserves the right to re-enter and retake (#2). So here, Selena has a Fee simple subject to a condition subsequent and Britney has the right of reentry, synonymous with the power of termination. Britney could terminate, or not, it is up to her.

Answer 6

With a fee simple subject to condition subsequent, the estate is not automatically terminated, unlike with the fee simple determinable, where it is automatically terminated. The grantor has the prerogative to terminate it or not with a fee simple subject to condition subsequent.

Answer 7

"To A, but if X event occurs, then to B." So B takes if A forfeits.

Answer 8

Perry has a fee simple subject to Tina's shifting executory interest. Tina has a shifting executory interest.

Answer 9

The estate is just like the fee simple determinable, only now, if the condition is broken, the estate is automatically forfeited in favor of someone other than the grantor.

Answer 10

the shifting executory interest.

Answer 11

Words of mere desire, hope, or intention are insufficient to create a defeasible fee. COURTS WILL NOT FIND A defeasible fee unless CLEAR DURATIONAL language is used. Why? Because courts despise restrictions on free land use. They prefer land not to be tied up with retraints so courts won't construe in favor of defeasible fees unless clear language exists like the examples we went over.

Answer 12

"To A, for the purpose of constructing a day care center." or "To A with the hope that he becomes a lawyer" or "To A with the expectation that the premises will be used as a hardware store."

Answer 13

SECOND IMPORTANT rule for defeasible fees - absolute restraints on alienation are void.

Answer 14

An absolute restraint on alienation is an absolute ban on the power to sell or transfer, that is not linked to any reasonable time limited purpose. Example - O conveys: "To A so long as she never attempts to sell." What is the problem with the grant? It contains an absolute restraint on alienation and absolute restraints on alienation are void. So this looks like a fee simple determinable BUT IT IS NOT because condition is void. THUS, what A has is a fee simple absolute. And what O has is nothing.

Answer 15

This language is okay because here the restraint is linked to a reasonable, time limited purpose. Restraints that are linked to a reasonable, time limited purpose are okay. Here, A has a fee simple determinable. O has a possibility of reverter.

Answer 16

A life estate is an estate that must be measured in explicit lifetime terms, and NEVER in terms of years. For example, O conveys "To A for life."

Answer 17

A has a life estate. A is known as a life tenant. O has a reversion - at the end of A's lifetime, the estate goes back to O or O's heirs.

Answer 18

A life estate pur autre vie is a life estate measured by a life other than the grantee's. For example, "To A for the life of B."

Answer 19

Madonna has a life estate pur autre vie. O has reversion. The estate reverts back to O or O's heirs when David Letterman dies.

Answer 20

If it is held by O, it is called a reversion. If it is held by a third party, it is called a remainder.

Answer 21

The life tenants entitlements are rooted in the important doctrine of waste. Note two general rules: The life tenant is entitled to all ordinary uses and profits from the land. AND The life tenant must not commit waste.

Answer 22

Voluntary, permissive, and ameliorative.

Answer 23

Voluntary waste (also known as affirmative waste) is actual, overt conduct that causes a drop in value. You are liable for voluntary waste damages.

Answer 24

Permissible waste occurs when land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land. That is why permissive waste is synonymous with neglect. You can be liable for pattern of neglect that results in damages.

Answer 25

The life tenant msut simply MAINTAIN the premises in reasonably good repair. IN ADDITIOn - the life tenant must pay all ordinary taxes on the land, to the extent of any income or profits that the life tenant is living on the land. If there is no income or profit, the life tenant is required to pay all ordinary taxes only to the extent of the premises' fair rental value.

Answer 26

The life tenant must not engage in acts that will enhance the property's value, unless all future interest holders are known and consent. Why? Because property law honors the future interest holders' reasonable expectations and sentimental value.

Answer 27

There are six categories of future interests. We classify them based on whether they are retained by the grantor, or instead, by a transferree.

Answer 28

1. The possiblity of reverter 2. The right of entry (also known as the power or termination) 3. The Reversion

Answer 29

The possibility of reverter accompanies the fee simple determinable.

Answer 30

It accompanies the fee simple subject to condition subsequent.

Answer 31

A reversion is the future interest that arises in a grantor who transfers an estate of lesser duration than she started with, other than a fee simple determinable or a fee simple subject to condition subsequent.

Answer 32

1. O, the holder of a fee simple absolute (which can endure forever, conveys "To A for life." O has conveyed less than what she started with. O has a reversion. 2. O, the holder of a fee simple absolute, conveys "To A for life." O has still conveyed less than what she started with. O has a reversion. 3. O, the holder of a fee simple absolute, conveys "To A for life, then to B for 99 years." O has still conveyed less than what she started with. O has a reversion.

Answer 33

1. A contingent remainder or 2. A bested remainder or 3. An executory interest

Answer 34

1. the indefeasibly vested remainder. 2. the vested remainder subject to complete defeasance. 3. the vested remainder subject to open.

Answer 35

1. the shifting executory interest and | 2. the springing executory interest.

Answer 36

A remainder is a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior posessory estate created in the same conveyance in which the remainder is created.

Answer 37

A remainder is contingent if 1. It is created in an unascertained or unknown person or 2. it is subject to an unmet condition precedent, or both

Answer 38

"To A for life, then to B's first child." A is alive. B, as of yet, has no children. "To A for life, then to B's heirs." A is alive. B is alive. Because a living person has no heirs, while B is alive, his heirs are unknown. "To A for life, then to those children of B who survive A." A is alive. We don't yet know which, if any, of B's children will survive A.

Answer 39

B has a contingent remainder. O has a reversion - if B never graduates then O or O's heirs will take. If B graduates during A's lifetime, the remainder is no longer contingent on B's graduation so now this is an indefeasibly vested remainder.

Answer 40

A remainder is vested when it is created in a known taker who is not subject to a condition precedent.

Answer 41

1. indefeasibly vested remainder. 2. vested remainder subject to complete defeasance 3. vested remainder subject to open.

Answer 42

The indefeasibly vested remainder - the holder of this remainder is certain to acquire an estate in the future, with no strings or conditions attached. Hypo - "To A for life, remainder to B." A is alive. B is alive. What does A have? An indefeasibly vested remainder. Why? B exists with no strings attached on his interest. What if B predeceases A? Common law result - B future interest passes by will or intestacy.

Answer 43

Here, the remainderman exists. His taking is NOT subject to any condition precedent. However, his right of possession could be cut short because of a condition subsequent. Here, it is important to know the difference between a condition precedent, which creates a contingent remainder, and a condition subsequent, which creates a vested remainder subject to complete defeasance. To tellt he difference, apply the comma rule. When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent, and you ahve a vested remainder subject to complete defeasance.

Answer 44

A covenant against assignment does NOT prevent the tenant from subleasing her interest. Covenants against assignment or sublease are strictly construed against the landlord. Thus, a covenant prohibiting assignment does not prohibit subleasing and vice versa.

Answer 45

If a tenant transfers her interest in violation of a covenant against assignment or sublease, the transfer is NOT void. However, the landlord usually may terminate the lease under the lease terms or a statute or sue for damages.

Answer 46

If a landlord consents to one transfer that violates a covenant against assignment or sublease, he waives his right to avoid future transfers.

Answer 47

C is correct. If one year into a five-year tenancy for years, T transfers his interest "to T2 for four years; however, if T2 breaches the original lease terms, T may reenter and retake the premises," the effect of the transfer is an assignment of the lease from T to T2. A complete transfer of the entire remaining lease term constitutes an assignment of the lease. If the tenant retains any part of the remaining lease term, other than a right of reentry for breach of the original lease terms, the transfer is a sublease. Here, T transferred the remaining four years of the lease to T2. By the slight majority view, T's reservation of a right of reentry does not result in a sublease, but rather is still an assignment

Answer 48

By the slight majority view, a reservation of a right of reentry does not result in a sublease, but is still an assignment.

Answer 49

If six months into a tenancy at will, T transfers "my entire interest to T2," the attempted assignment is void and terminates the tenancy at will by operation of law. A tenancy at will is a leasehold estate that is terminable at the will of either the landlord or the tenant. Such a tenancy terminates by operation of law if: 1. Either party dies; 2. The tenant commits waste; 3. The tenant attempts to assign his tenancy; 4. The landlord transfers her interest in the property; or 5. The landlord executes a term lease to a third person.

Answer 50

If two years into a four-year tenancy for years, T "assigns my entire interest to T2 for one year," the effect of the transfer is to create a sublease between T and T2. The label given to the transfer by the parties does not determine whether the transfer is an assignment or a sublease. The nature of the transaction is determined by what interest, if any, the tenant retains. Here, although T "assigned" his interest to T2, he transferred only one of the remaining two years of the lease. Thus, the transfer is a sublease rather than an assignment.

Answer 51

If four years into a six-year tenancy for years, T orally transfers his entire interest to T2 for two years, the attempted assignment is ineffective under the Statute of Frauds. Most states require that a lease creating a tenancy for more than one year, including an assignment of an interest in a lease for more than one year, be in writing to satisfy the Statute of Frauds.

Answer 52

Generally, if a tenant transfers (assigns or sublets) in violation of a prohibition in the lease against transfers, the transfer is not void. However, the landlord usually may terminate the lease under either the lease terms or a statute.

Answer 53

The correct answer is C. The auctioneer may recover the cost of repair from either the landlord or the buyer. A landlord's promise in a lease to maintain the property does not terminate because the property is sold. Although no longer in privity of estate, the original landlord and tenant remain in privity of contract, and the original landlord remains liable on the covenant unless there is a novation. A novation substitutes a new party for an original party to the contract. It requires the assent of all parties and completely releases the original party. Because neither the auctioneer nor the buyer has agreed to a novation, the landlord remains liable for the covenant because he and the auctioneer remain in privity of contract even after the sale. Thus, the promise to repair can be enforced against the landlord. When leased property is sold, the purchaser may be liable for his predecessor's promises if the promise runs with the land. A covenant in a lease runs with the land if the parties to the lease so intend and the covenant touches and concerns the land. Generally, promises to do a physical act, such as maintain or repair the property, are considered to run with the land. Thus, the buyer is liable because he is in privity of estate with the auctioneer and the covenant to repair runs with the land. Consequently, both the landlord and the buyer are potentially liable to the auctioneer for the repairs. While it is true that the sale/assignment to the buyer did not sever the landlord's obligation to the auctioneer, as explained above, the landlord is not the only person who is liable to the auctioneer.

Answer 54

Yes. Generally, promises to do a physical act, such as maintain or repair the property, are considered to run with the land.

Answer 55

If an easement is said to be surcharged, this means the easement's legal scope was exceeded. The holder of an easement has the right to use another's land (i.e., the servient tenement), but has no right to possess the land. The scope of an easement is determined by the reasonable intent of the original parties, and when the scope has been specified, these specifics will govern. However, when an easement's scope has been set out only in general language, courts will interpret it to accommodate the holder's present and future reasonable needs. In either event, if the easement holder uses the easement in a way that exceeds its legal scope, the easement is surcharged. The servient landowner may enjoin the excess use and possibly sue for damages if the land has been harmed. However, the easement does NOT terminate by operation of law, nor does such use give the servient owner a power of termination.

Answer 56

if the easement holder uses the easement in a way that exceeds its legal scope, the easement is surcharged. The servient landowner may enjoin the excess use and possibly sue for damages if the land has been harmed. However, the easement does NOT terminate by operation of law, nor does such use give the servient owner a power of termination.

Answer 57

Condemnation of the servient estate will terminate an easement. The easement holder may be entitled to compensation for the value lost.

Answer 58

a long period of nonuse is sufficient to terminate an easement if it is accompanied by other evidence of intent to abandon the easement (e.g., the easement holder erects a permanent structure blocking off the easement). However, a long period of nonuse on its own, even if it continues for the statutory period, is insufficient to constitute abandonment.

Answer 59

The correct answer is B. If the brother is successful in preventing the daughter from removing the power lines, it will be because the brother's alternative access to power is much less convenient and would cost 100 times as much as the current arrangement. This helps to prove that there was an easement implied by operation of law ("quasi-easement"). An easement may be implied if, prior to the time the tract is divided, a use exists on the "servient part" that is reasonably necessary for the enjoyment of the "dominant part," and a court determines that the parties intended the use to continue after division of the property. To give rise to an easement, a use must be apparent and continuous at the time the tract is divided. In this case, the landowner used the servient part of his property (the southern parcel) to run an overhead power line to the dominant part of his property (the northern parcel). Overhead wires are clearly visible and would be readily discoverable on reasonable inspection. The lines are, therefore, apparent. The use must also be reasonably necessary. Whether a use is reasonably necessary depends on many factors, including the cost and difficulty of the alternatives. This use was reasonably necessary to the enjoyment of the dominant parcel because electricity is important to the enjoyment of the property, and the cost (100 times as much) and difficulty of the alternatives are excessive. Thus, the fact that the use of the southern parcel is reasonably necessary would bolster the brother's case.

Answer 60

(D) is wrong because the daughter's motive for removing the power line is also irrelevant. If no easement is established, the daughter may remove the lines for whatever reason she likes. If, however, the requirements for an implied easement are satisfied, the daughter may not remove the lines regardless of how good her reasons are.

Answer 61

(A) is wrong because the daughter's actual knowledge is irrelevant. The daughter need not be aware of the use; it need only be shown that the use was apparent (see above). (C) is similarly wrong. Oral statements made to the grantor after the northern parcel had been conveyed have little effect. They show the daughter's knowledge, but as discussed above, that has little relevance with respect to an implied easement.

Answer 62

An equitable servitude is a covenant (i.e., a promise to do or not to do something on the land) that, regardless of whether it runs with the land at law, can be enforced in equity against assignees of the burdened land who have notice of the covenant. The burden of an equitable servitude will run to successors in interest if: 1. The covenanting parties intended that successors in interest be bound by the covenant; 2. The successor in interest has notice of the covenant (if she has given value); and 3. The covenant touches and concerns the land (i.e., it benefits the covenantor and his successor in their use and enjoyment of the burdened land). Horizontal privity between the original covenanting parties and vertical privity between the covenantor and his successor in interest are not required.

Answer 63

A grantee may be bound by a covenant that does not appear in his deed or chain of title if there is a common scheme for development and the grantee had notice of the covenant. An equitable servitude is a covenant (i.e., a promise to do or not to do something on the land) that, regardless of whether it runs with the land at law, can be enforced in equity against successors to the burdened land who have notice of the covenant. Generally, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds. However, in the absence of a writing, negative equitable servitudes may be implied if (i) there is a common scheme for development (i.e., a plan existing at the time sales of the subdivision parcels began that all parcels be developed within the terms of the negative covenant), and (ii) the grantee had actual, record, or inquiry notice of the covenant. Except as explained above, a grantee may not be bound by a covenant that does not appear in his deed or chain of title even if the covenant touches and concerns the land. The burden of an equitable servitude will run to successors in interest if: (i) the covenanting parties intended that successors in interest be bound by the covenant; (ii) the successor in interest has notice of the covenant; and (iii) the covenant touches and concerns the land (i.e., it benefits the covenantor and her successor in their use and enjoyment of the burdened land). In the absence of a writing, however, the servitude will not be enforced unless there is a common scheme for development as explained above. A grantee may be bound by a covenant that does not appear in his deed or chain of title even if the deed contains a covenant against encumbrances. This is a covenant contained in a general warranty deed assuring that there are neither visible encumbrances (e.g., easements) nor invisible encumbrances (e.g., mortgages) against the title or interest conveyed. The presence of this covenant does not affect the ability of a successor in interest to the covenantee to enforce an equitable servitude. A grantee also may be bound by a covenant that does not appear in his deed or chain of title even if the deed is a quitclaim deed. This type of deed conveys whatever interest, if any, the grantor has in the property. It does not affect the ability of a successor in interest to the covenantee to enforce an equitable servitude.

Answer 64

The hostility element of adverse possession requires that the possessor lack the true owner's permission to be on the land.

Answer 65

The hostility element of adverse possession requires that the possessor lack the true owner's permission to be on the land. Also, it doesn't matter if the possessor knows if he is trespassing or not. To establish title by adverse possession, the possessor must show: (i) An actual entry giving exclusive possession that is (ii) Open and notorious, (iii) Adverse (hostile), and (iv) Continuous throughout the statutory period.

Answer 66

For purposes of determining title by adverse possession, tacking is not available when one adverse claimant ousts the other or the first claimant abandons and the next claimant goes into possession. 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.

Real Property Concepts and missed Real property questions Flashcards

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