Real Property (DONE) Flashcards
What is a fee simple determinable, and how is it created?
FSD ends automatically upon the occurrence of a stated event.
Makes the grantor a holder of a future interest of possibility of reverter.
Created by DURATIONAL words: “so long as”, “during”, “while”, “until”
What is a fee simple subject to condition subsequent?
FSSCS does not end automatically, but gives the grantor the right of reentry to reclaim the land upon the occurrence of a stated condition.
Created by CONDITIONAL words: “but if”, “provided”, “however”, and “upon condition that”.
What is a fee simply subject to executory limitation?
FSSEL ends automatically on the happening of some condition but it is different because possession will then pass to ANOTHER GRANTEE giving them the future interest, rather than the grantor.
Life estate
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What is a life estate pur autre vie?
A life estate where the measuring life is the life of someone other than the life tenant.
If the life tenant dies before the measuring life dies, life estate passes to the life tenant’s estate until the measuring life dies.
What are the rights and duties of the life tenant?
All the life tenant can do is maintain the estate, and that means continues the normal use of the land in its present condition.
If the life tenant does more than or less than merely maintaining the estate, then the life tenant is guilty of waste.
What is voluntary waste?
Any AFFIRMATIVE ACT beyond the right of maintenance that causes harm to the premises.
Life tenant can only continue the normal use; any change of use is voluntary waste, and life tenant is liable to the holder of the future interest.
What is permissive waste?
Where tenant has failed to maintain the estate. This involves INACTION, NOT ACTION.
What are the three things a tenant can do to avoid permissive waste?
1) Repair: Life tenant must keep property in repair, but is only responsible for ordinary repairs, not improvements or replacement.
2) Taxes: Life tenant pays all taxes on the property. (Note: holder of future interest must make sure taxes get paid, because a tax sale terminates the future interest)
3) Interest on a Mortgage on the entire property: Life tenant pays any interest on any mort- gage that encumbers the entire fee simple. For example, the life tenant takes title to property already subject to a mortgage when held in Fee Simple. Does the holder of the future pay anything?
What is the “changed conditions” exception to the waste rule?
If changed conditions have made the property relatively useless in its current use, the life tenant can tear it down without liability to the holder of the future interest.
What are the classifications of future interests?
1) Reversion
2) Possibility of Reverter
3) Right of Entry (or Power of Termination)
What is the reversion interest?
The interest kept by the Grantor then he gives a Grantee LESS than the durational estate the Grantor had (
e.g.,:
O to A for life. A has life estate, O has a reversion in fee simple.
Is the reversion interest ever subject to RAP?
No
What is the possibility of reverter interest?
Whenever Grantor gives a fee simple determinable, Grantor keeps a Possibility of Reverter. That present possessory estate and future interest always go together.
Remember, the Fee simple determinable ends auto- matically when the condition happens. This means that the Possibility of Reverter does not have to do anything to be entitled to take possession.
Is the possibility of reverter subject to RAP?
No
What is the right of entry?
This interest is labeled the Right of Entry or the Power of Termination. Both labels refer to the same future interest.
Whenever Grantor gives a fee simple subject to a condition subsequent, Grantor keeps a Right of Entry. That present possessory estate and future interest always go together.
Grantor must EXPRESSLY reserve a right of entry, and a failure to do so results in the condition being ignored.
Is the right of entry subject to RAP?
No
What effect does the language “for the purpose of” have on a conditional conveyance?
No effect, because these are not magic words indicating a desire to forfeit title. This will be construed as creating a covenant rather than a condition.
What is a vested remainder interest?
Nothing stands in the way of its becoming possessory on the expiration of the estate that comes before it. We have an ascertainable person and there is no express condition precedent.
What is a vested remainder subject to open?
There is no condition to be satisfied before taking possession, but this remainder is conveyed to a class of people. There is at least one member who will take, but the size of his share is unknown because the class remains open and future persons may qualify as members of the class (e.g., future children).
What is a contingent remainder?
Something has to happen or be known before the remainder can become possessory.
What is a vested remainder subject to divestment?
A future interest is vested subject to divestment if something could occur that would divest the remainder of an interest. For example, “From O to A for life, then to B, but if A stops growing corn, then to C”: B would have a vested remainder subject to divestment because he could be divested of his interest by an act of A before the interest becomes possessory.
What is an executory interest?
The executory interest operates to divest or cut short the estate that comes before it; it does not come into possession at the natural expiration of the earlier estate.
If a future interest in a grantee is not a remainder, it must be an executory interest.
If a future interest in a grantee cuts short an earlier estate, it must be an executory interest.
Holder of an executory interest cannot sue life tenant for waste.
What is a shifting executory interest?
If an executory interest operates by taking title from one grantee and giving it to another grantee, it is called a shifting executory interest.
What is a springing executory interest?
If an executory interest operates by taking title from the grantor and giving it to a grantee, it is called a springing executory interest.
What is the rule against perpetuities?
No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.
This is a rule about time. If there is any chance that an interest might vest outside of a life-in-being + 21 years, that interest is void.
What are the exceptions to RAP?
1) Charity-to-charity exception: RAP is never violated if the gift over is from one charity to another charity
What are the characteristics of a joint tenancy?
Right of survivorship. The surviving JT’s take automatically on the death of a JT (but not inherit).
How is a joint tenancy created?
Requires “four unities”: time, title, interest, and possession
1) Time: all interested must have vested at the same time
2) Title: the grant to all JTs must be by the same instrument of title
3) Interest: all JTs must take the same type and same size interest (all get 1/4, etc.)
4) Possession: all must have identical rights of possession
Must be created by CLEAR LANGUAGE. Otherwise a tenancy in common is created
How is a joint tenancy destroyed?
Severance: Involuntary destruction caused by conveyance of one JT interest, mortgage (title theory), contract of sale, judicial sale by a creditor.
What is the lien theory?
Majority of states. No severance when a mortgage is executed on a JT interest, the lien merely attaches to the title.
What is the title theory?
Minority of states. Mortgages on a JT interest sever the joint interest and create a tenancy in common.
How does a contract of sale affect a joint interest?
Severance occurs on the date the contract is signed, rather than the date of closing, under the doctrine of equitable conversion (split in the equitable and legal property right at the time of formation of a contract)
What are the elements of a tenancy in common?
There is no right of survivorship, and only one unity is required: possession. All tenants in common must have equal rights of possession.
How is a tenancy in common created?
This is the default tenancy. If a JT isn’t properly created, it’s a TIC. In a common law jurisdiction, if the 4 unities are not present, or if the right of survivorship is unclear, then a Tenancy in Common is created.
What are the rights and duties between and among co-tenants?
Possession, accountability, sharing necessary expenses, and right to partition.
What are the different types of tenancies in landlord-tenant law?
Tenancy for Years: tenancy for a specified time, created with specific language (does not have to be for “years”, but any TFY over one year must be in writing under SOF)
Periodic Tenancy: Repeating terms - ongoing, continuing, repetitive estate, until one party gives valid notice (e.g., month-to-month, week-to-week, year-to-year)
How is a periodic tenancy created?
There are three ways to create them: by express agreement, implication, or operation of law.
What is the effect of a holdover tenant sending a check to the landlord, and the landlord accepts it?
This creates a new periodic tenancy by operation of law.
How is a periodic tenancy terminated?
Termination only occurs by giving proper notice. It can be terminated by either the landlord or tenant if proper notice is given. If there is no statute given, the following rules must be followed for valid notice:
Proper length of notice: 6 months for y2y, length of the period up to 6 months for tenancies less than a year.
What is the statutory notice requirement to end a periodic tenancy in Texas?
30 days, and the notice does not have to be given so that it will end on the ending date. The statute allows for proration of rent.
What is a tenancy at will?
A tenancy that either party can terminate at any time, without notice.
Can be terminated by: waste, death of either party, assignment by the tenant, transfer of title by landlord, lease by landlord to someone else.
What is a tenancy at sufferance?
Not a true tenancy! This is the bare possession of a holdover tenant. At Landlord’s sole option, Landlord can either:
- hold tenant as a wrongdoing trespasser
- impose new periodic tenancy on tenant
What type of tenancy can be imposed during a tenancy at sufferance?
Residential: always month-to-month
Commercial: if tenancy was for more than a year, then new tenancy is y2y. If old tenancy was less than a year, then measured by rent period of old tenancy.
If the old, expired tenancy was for a year or more, the new tenancy is year-to-year.
If the old tenancy was for less than a year, new tenancy is measured by the rent period of the old tenancy.
What are the limitations of the types of tenancies that can be imposed under sufferance?
A LL cannot impose a new tenancy on holder tenants if it is not REASONABLE. If there is a holdover T of just a few hours, or if T was holding over due to circumstances beyond T’s control, then L cannot impose new tenancy.
How may a LL remove a holdover tenant?
Most statues by statute prohibit forcible entry (self-help) by the landlord. A landlord must not use force or self-help to remove a tenant.
When can a forcible eviction proceeding begin in Texas?
The justice courts have jurisdiction here.
The eviction cannot proceed until the landlord gives at least 3 days notice to vacate, unless the lease agreement calls for a longer or shorter time.
What are the general duties of a tenant to a landlord?
If lease is silent on tenant’s duties, tenant must pay rent and not commit waste.
What happens when a tenant commits waste?
The present possessory estate will come to an end and the future interest (landlord) is entitled to protection. `
What happens if the premises is destroyed not by fault of the tenant?
Tenant can terminate the lease if it results in complete or partial eviction (?)
What happens if tenant fails to pay rent?
Landlord can sue both for damages and to evict the tenant
What choices does the landlord have if the tenant unjustifiably abandons the leasehold?
1) Treat abandonment as an offer to surrender and accept the offer by retaking the premises; thus ending T’s liability as of that date.
2) Re-let the premises on Tenant’s account, and hold Tenant liable for any deficiency (mitigation of damages)
What are a landlord’s duties to the tenant?
1) Implied Covenant of Quiet Enjoyment: Implied promise that she will not breach this covenant. Can be breached by actual eviction, particularly actual eviction, or constructive eviction.
2) Condition of the Premises: The landlord must deliver residential premises in a habitable condition. A majority of states apply an implied warranty of habitability for residential tenancies. Breach of the warranty grants tenants several remedies.
What is the result of an actual eviction by the landlord? By a paramount title holder?
In both cases, the tenant is freed from the obligation to pay rent.
What is the result of a partial actual eviction by the landlord? By a paramount title holder?
Landlord: Tenant can stay and not pay rent.
Paramount title holder: Tenant’s rent is apportioned to reflect the amount of property taken.
What is the result of a constructive eviction?
Occurs when a landlord’s breach of duty renders the premises unsuitable for occupancy.
1) LL or LL’s agents must have caused the injury
2) The breach substantially and materially deprived the tenant of the use and enjoyment of the premises
3) The tenant must give the landlord notice and a reasonable time to repair/respond within a reasonable time after the breach or will otherwise lose the right to do so.
4) After a reasonable time, the tenant must vacate the premises.
The remedy is for the tenant to either 1) terminate the lease or 2) sue and seek damages
What is the Texas rule for the covenant of quiet enjoyment ?
The covenant of quiet enjoyment does not apply to physical repair issues. The statutory warranty supersedes the common law. However, the covenant can still be used for non-physical repair issues like noisy neighbors and criminal activity by other tenants.
What remedies are available to a tenant for a landlord’s breach of the warranty of habitability?
1) Tenant may move out and terminate the lease
2) T may make repairs directly and offset the costs from future rent obligations
3) Tenant may reduce or rebate rent to an amount equal to FMV in light of the defects
4) Tenant may remain in possession, pay full rent, and seek damages.
NOTE: This warranty only applies to RESIDENTIAL properties
What is the Texas statutory warranty of habitability?
In Texas, the Texas Property Code requires that the landlord must make repairs to conditions that materially affect the health and safety of an ordinary tenant.
WAIVER: Can only be waived if the property is the landlord’s only owned rental dwelling, is not in need of repair, and the LL does not know or have reason to now of any problems the would occur during the lease.
What is the waiver requirement for the Texas statutory warranty of habitability?
1) If a LL owns only one rental dwelling
2) The property is not in need of repair at the beginning of the leasehold
3) The landlord does not know or have reason to know of any problems that would occur during the lease or an extension or renewal
4) The lease is in writing, with a provision that is in bold type or underlined that is clearly, voluntarily, and knowingly made for consideration
If these are satisfied, then the tenant can be required to make and pay for all repairs to the leased premise.
What is the notice requirement for a tenant to avail themselves of the available remedies under the Texas statutory warranty?
The T must send a written notice to the landlord by certified mail return receipt requested, by registered mail, or by another mail service that allows tracking of delivery.
The notice must be given to the person to whom or the place where the tenant’s rent is normally paid, and the tenant must be current on rent.
After proving notice, the landlord must be given a reasonable time to repair/respond.
What remedies are available to a tenant for a breach of the Texas statutory warranty?
1) Choose to terminate the lease and obtain judicial remedies
2) Choose to stay and sue for judicial remedies, including damages and an order for the landlord to make repairs, or
3) Choose to repair and deduct the cost from the next month’s rent if specific procedures are followed.
What is the effect of retaliatory eviction?
If the T exercises a legal right to report violations of the building code, the landlord is not permitted to terminate the tenant’s lease in retaliation (includes other penalties like raising rent or reducing services)
What constitutes a retaliatory eviction?
If the action by the landlord is taken within 90 to 180 days, the landlord is presumed to be retaliating and will have the burden to prove a valid, non-retaliatory reason for his actions.
What is the general rule behind the Fair Housing Act?
Bars discrimination based on race, ethnicity, religion, national origin, gender, and disability in the sale or rental of a dwelling. Discrimination against families with children is also barred except in senior citizen housing.
What is an assignment?
When the T transfers all of his rights, holding no rights for himself.
What is a sublease?
When T transfers a portion of the lease period, holding some time back for himself.
What is the Texas rule for assignment or subleasing?
In Texas, by statute there is no right to assign or sublet unless the landlord gives permission.
How does liability transfer between an original tenant and assignee tenant?
A lease is both a conveyance and a contract, and these are separate and independent grounds for liability.
When T assigns the leasehold, T2 now has the present estate, and the LL still has the reversion.
ASK: Is there privity of estate between L and whichever T is being asked about? If yes, then there is liability on the conveyance. Privity of estate exists only between present L and present T.
Does T2 “expressly assume” any of the covenants in the lease? If yes, then there is privity of contract between the landlord and T2.
“Assignee stands in the shoes of the original tenant in a direct relationship with the landlord; i.e., the assignee and the landlord are in PRIVITY OF ESTATE, and etc hs liable to the other on all covenants in the lease that run with the land. After assignment, the original tenant is no longer in privity of estate with the landlord, her her lease contract remains in effect and enforceable. (Remains in privity of contract)”
When does a covenant run with the land?
When the covenants touch and concern the land (including covenant to pay rent)
If performance of covenant makes the land more valuable or more useful, then it touches and concerns the land.
How does liability transfer between an original L and a successor L?
Original L is still liable to T for any contracts with privity, but successor L AND original L are liable if the lease covenant runs with the land and there is either privity of contract or privity of estate.
RIGHTS AGAINST TENANT: “Once tenants are given reasonable notice of the assignment, they must recognize and pay rent to the new owner as their landlord. The benefit of all tenant covenants that touch and concern the land runs with the landlord’s estate to the new owner.”
LIABILITY TO TENANT: “The burden of the landlord’s covenants that touch and concern the land runs with the landlord’s estate to the assignee, thus, the assignee is liable for the performance of those covenants. The original landlord also remains liable on all of the covenants he made in the lease”
How does liability transfer for subleases?
Sublessee is not liable to L because there is no POC and no POE (the sublessor is deemed to have kept the estate).
The original tenant is still connected to the landlord on estate principles because the sublease happens during part of the T’s leasehold and the T’s present possessory estate is what is connected to the landlord on the timeline.
If a sublessee doesn’t pay rent to a landlord, who is held liable?
Sublessee is not liable because there is no privity relationship. The promise to pay rent comes from the original tenant, so that tenant would have to go after the sublessee for the rent on their own.
What are non-assignment and non-sublease clauses, are how are they waived?
Restricts assignment or sublease entirely or without permission.
These are restraints on alienation, but are permissible on leasehold estates. Violation of these clauses merely makes the transfer “voidable”, but requires direct action of L to actually reverse. If nothing is done by L, nothing happens.
These clauses are waived by L’s permission. Permission given once means the clause is waived for all time, regardless of time passed.
WATCH OUT: Courts do enforce non-assignment clauses, but do not like them and are very quick to find waiver.
What are the limitations on an L deducting from a T’s security deposit?
L cannot deduct charges from a security deposit for normal wear and tear, and must account for any money that is withheld from the deposit.
Generally, a tenant is required to obtain his security deposit within 30 days of providing the landlord with his forwarding address (this applies to residential cases - in commercial leases, the time limit is 60 days).
What is a fixture?
A fixture is a chattel that has been so affixed to the land that it has ceased being personal property and has become part of the realty.
When removal is possible, but doing so would cause considerable loss or destruction to the property, the items are considered fixtures.
How does common ownership affect fixtures?
Common ownership of fixtures occurs when the person installing the fixtures owns both the land and the fixtures.
A buyer of this land would be entitled to enjoin the seller from removing the fixtures, even though it used to be their property.
INTENT: If the chattel is not incorporated into the structure, classification as a fixture will depend on the objective intent o the party who installed them.
How does divided ownership affect fixtures?
Divided ownership occurs when the person who owns installs the chattel does not own the land. A tenant installs a furnace in the home she rents which belongs to the landlord.
Ownership of the chattel depends on the nature of the tenancy, otherwise by express agreement between the parties.
TRADE FIXTURES: An item used in the tenant’s trade or business if usually able to be removed unless removal would cause substantial damage to the premises.
When must chattel be removed from a property?
If tenant can remove the chattel, it must be removed before the end of the lease.
If owner can remove the chattel, if must be removed before closing.
The party removing the chattel is responsible for damages caused by removal.
What is an easement appurtenant?
When the easement directly benefits the use and enjoyment of a specific piece of land.
Appurtenant easements create a dominant estate (right to use) and a servant estate (obligation)
What is an easement in gross?
The easement does not benefit the land. There is only a servant estate, no dominant estate. Generally applies to utility easements.
What is an express easement?
An interest in land, which must comply with the SoF and formalities of a deed.
These easements may be created by an express grant of an easement to someone else, or the reservation of an easement when land is sold to another.
Note: Easements of a year or less do not have to be in writing but most easements are perpetual in nature and require a writing.
What is an implied easement by prior use?
The implied easement by prior use is recognized because we assume that the parties intended the prior use to continue but did not reduce it to writing.
Implied easement by prior use exists if commonly owned land is severed, and during the time of common ownership there was a use by the common owner who sells off a piece of is property to someone else, and the previous use is apparent and continuous, and its use is reasonably necessary for the continued enjoyment of the now dominant estate.
What is the Texas application for implied easements by prior use?
If impliedly reserved, the use must be strictly necessary for the continued enjoyment of the now dominant estate.
If the implied easement by prior use is impliedly granted, then only reasonable necessity is required. (minority approach)
What is an implied easement by necessity?
Exists when property is landlocked.
1) Common ownership of the land that was severed,
2) At time of severance, the dominant estate became more landlocked and there is a strict necessity for access to a public road.
TEXAS NOTE: Implied easements by prior use are not available for landlocked property. An implied easement by necessity is the proper means to obtain access here.
What is an easement by prescription?
Like adverse possession, but only in rights to use, not possession.
Creation:
There must be actual use of the land of another and that use must be:
1) Visible and notorious: so that the landowner could discover the use; cannot be hidden or undiscoverable
2) Adverse: or without the permission of the owner
3) Continuous and uninterrupted
Seasonal use can be OK if appropriate under the circumstances.
What is the time period for prescriptive easements on the MBE?
20 years, unless another period is given in the problem
What is the time period for prescriptive easements on the Texas?
10 years
How is the benefit of an easement transferred?
If the easement is APPURTENANT, the benefit goes automatically along with the dominant estate, whether it is mentioned or not in the conveyance, and cannot be transferred separately from the dominant estate.
If the easement is IN GROSS, then benefits of easements in gross that are commercial can always be transferred, but benefits of easements in gross that are personal cannot be transferred.
How is an easement in gross transferred in Texas?
No easement in gross can be transferred unless the language of the easement says so.
The one exception is the conservation easement because the language of the statute creating such easements allows for transfers.
How is the burden of an easement transferred?
Easements are always binding on subsequent holders of servient estates, even if the easement is not in their deeds, providing the subsequent holder had NOTICE of the easement.
What is the scope of an express easement?
The terms of the easement control on questions of use.
