Real Property - Essay rules Flashcards
(35 cards)
- Fee Simple Absolute
-
Fee Simple Determinable
- Possibility of Reverter
- Fee Simple Subject to Condition Subsequent
- Right of Re-entry
- Fee Simple Subject to Executory Interest
- Remainderman
- Life Estate
FE Absolute: FSA is a PPE that does not term (unless O dies intestate w/out heirs; prop escheats to state) & gives a prsn all prop rights, incl. unimpeded rights to (1) sell or convey all or part, & (2) devise. FSA is freely A by O during life, & upon death, D & D.
FS Det: A FSD is a present FS limited by specific durational langge sch tht it termintes auto upon the happnng of a statd condition, and full prop o/ship reverts to the g/or. A FSD is freely A, D, & D, bt always sbjct to stated condition.
Possibility of Reverter: A Poss of Rev’r is a FI that arises auto in the g’or as a consequece of conveying a FSD. Upon the occ of the stated cond, the estate auto reverts to the g’or.
- Fee Simple Absolute
- Fee Simple Determinable
- Possibility of Reverter
-
Fee Simple Subject to Condition Subsequent
-
Right of Re-entry
- Waiver
- SoL
-
Right of Re-entry
- Fee Simple Subject to Executory Interest
- Remainderman
- Life Estate
FSSCS: is a present FS in whch g/or reserves, thrgh conditional words, right to terminte upon happening of a stated event. The FS does not auto term. upon occurence of event, bt whn g’or acts to recover poss. Feely A by O during life, & upon death, D & D.
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Right of Re-entry: A RoRE is a FI g’or expressly reserves after granting a life estate or fsscs.
- Failure to Assert RoRE:
- Waiver: Rght to term a fsscs is D & D. Failure to assert the RoR does nt constitute a waiver.
- The SoL limits th time a P may bring a claim to encourage resolving claims w/in a reas time, and prevent stale claims from arising after ev has been lost or facts become unclear through time passage, defective memory, death, or witness disappearance.
- Failure to Assert RoRE:
- Fee Simple Absolute
- Fee Simple Determinable
- Possibility of Reverter
- Fee Simple Subject to Condition Subsequent
- Right of Re-entry
- Waiver
- SoL
- Right of Re-entry
-
Fee Simple Subject to Executory Interest
- Remainderman (WHERE DOES THIS FIT?)
- Life Estate
FS Sbjct to Exec Intrst: is a present FS in whch a 3P will be entitled to prop upon occ of a specified cond. Created whn G’or uses words such as “to person X, so long as/but for, … to person Y”.
- A reversion is a FI the g’or retains whn g’or tfrs less than a FSA to a 3P. (CHECK THIS IS CORRECT!)
Life Estate: is a present poss interest ltd in duration by a life.
- Fee Simple Absolute
- Fee Simple Determinable
- Fee Simple Subject to Condition Subsequent
- Fee Simple Executory Interest
- Life Estate
- Restraints on Alienation
A restraint on A occurs when G’or attempts to restrict the alienability or transferability of the land.
Forfeiture restraints on alienation (g’or may term estate if conveyance made) on fee simples’s are void, unless for a limited time and reas purpose. All absolute restrictions on alienation or transferability on fee simple estates are void and unenforceable. H,T,
3 types of restraints exist:
- Disability: all transfers are void
- Forfeiture: land is forfeited if a transfer is attempted
- Promissory Restraint: an attempted transfer breaches a covenant
FUTURE INTERESTS
Remainder
Rule Against Perpetuities
A Remainder is a FI created in a g’ee that takes effect after the expiration of a prior possessory estate. A remainder can be [vested or contingent].
A vested remainder is (1) an interest not subject to any cond precedent and created in (2) an ascer grantee.
A remainder is contingent if (1) interest subject to a condition precedent or (2) unascertained taker.
Rule Against Perpetuities: No interest in prpty is valid unless it must vest, if at all, not later than 21 years after some life in being (measuring life) at the creation of the interest.
CO-TENANCY
- JT Formation
- JT Severance
- Tenants in Common
JT Formation: A cnvynce of r.p. to 2> persons creates a JT whn 4 unities are present: (1) time (all intrsts were received at the same time), (2) title (all intrsts were acquired by same instrument), (3) intrst (all o/ship intrsts are equal), AND (4) possession (all intrsts have equal rights of poss).
Mst be clear express intent to create JT. A RoS means tht whn 1 JT dies his intrst in land is auto tfr’d to other JT(s).
JT Severance: JTs cn convey all or part of their indvdual intrst during their lifetimes (inter vivos) to a 3P. Gnrly, whn 1 JT unilaterally tfrs his o/ship intrst in the r.p., JT is severed and Ts thn hld prop as TiC.
[Whn a JT takes out a motg on her intrst, mtge’s effect on JT depends on jx.]
- Lien Theory Jx – U/ maj, mtg intrst is a lien, & does nt sever a JT until prop is sold at a foreclosure.
- Title Theory Jx– U/ min, a mtg intrst severs a JT upon the granting of a mtg & converts it to a TIC.
TiC: Default estate created unless express intent to create a JT or conveyance to a “h and w”. In a TIC each T has an undivided interest w/ unrestricted rights to possess th whole prop w/ no RoS. Each T cn devise or tfr his/her intrst to anyone.
[A TIC can bring an action for partition. In doing so, the ct will require an accounting b/w the TICs relating to the prpty. One TIC cannot bind another TIC to an a/ment to which they weren’t a part.]
CO-TENANTS
Rent from Co-Tenants
Ouster
Rent frm C-Ts: A c-t cannot collect rents frm another c-t who is in exclusive possesion of th premises, unless (a) a/ment to contrary, or (b) c-t seeking rent ws wrongfully ousted. H,T,
Ouster: All c-ts hve equal rights to possess entire prop. An ouster occurs when a c-t excludes another c-t from possessing prop. Party wrongfully excl. frm prop may bring an action to recover possession and dgs. [Ouster is required for a c-t to obtain title through adverse possesion]. H,T
Co-Tenancy
- Operating Expenses a c-t can
- Rents from Third Parties a c-t must
- Repairs
Op Exp: A c-t cn collect contribtion frm other c-ts for paying mre thn his portion of nec. or beneficially spent op expenses (taxes or mrtgge intrst), unless he is only 1 in phys poss of prop and his use is equal to or outweighs overpayment.
Rents from 3Ps: A c-t mst account to other c-ts for rent received frm 3Ps, but he cn deduct op expenses whn calculating net proceeds. 3P rents are divided based on o/ship intrst of each tenant.
Repairs:A c-t does nt hve a right to be reimbursed by other c-ts for repairs made to prop, even whn thse repairs are nec. H/e, maj view is tht contribution for nec. repairs cn be compelled in actions for accounting or partition. A c-t may, in some jxs, maintain a separate action for contribution, ala other c-ts have been notified of repair needs.
LANDLORD-TENANT
- Type of Tenancy
- Valid Lease
- [Assignment | Sublease]
- [Breach of Lease | Anticipatory Repudiation]
- Tenant Defenses
- Covenant
- Waste
- Fixtures
A Tenancy for yrs is a LE measrd by a fixed and ascertainable amnt of time.
A Periodic Tenancy is a repetitive, ongoing LE measured by a set period of time, but with no predetermined term. date. May be created by express a/ment, implication (if rent is paid at specific periods), or by law when a tenant-for-yrs remains after termination of the period or when a lease a/ment is invalid.
[Term. Notice: B/c it auto renews, notice is required to terminate. Notice (1) must be given before the beginning of the intended last period of the periodic tenancy, and (2) is generally effectively only as of the last day of the period. The SoF does not apply to a period tenancy b/c it is for a non-fixed term. Trad view was that notice had to be sufficient to show intent; mod no writing is required for term, unless a statute requires it.]
A Tenancy at will is a LE w/out a specific term & continues until LL or T terminates. Usually created by express a/ment.
[Term Notice: Trad., either party may terminate a TatW w/out notice, but the T must be given a reas time to vacate. Modern majority, either party may terminate with notice. H,T]
Tenancy at Sufferance (Holdover): A T who remains in poss on premises after lease expiration is a holdover T.
LANDLORD-TENANT
- Type of Tenancy
- Valid Lease
- [Assignment | Sublease]
- [Breach of Lease | Anticipatory Repudiation]
- Landlord and Tenant Duties
- Tenant Defenses
- Covenant
- Waste
- Fixtures
Valid Lease: A LE is a K’ual r/ship gov’d by a lse tht contains the parties’ covents. The SoF requires a lease for > year to be in writ to be enforceable. [Gnrly, a T covenants to pay rent and not commit waste in exch. for LL delivring actual poss of, and repairing, the leasehold premises]. H,T
SoF Exception - Part Perf: Part Perf is an exc to the SoF. A ct may enforce an a/ment whr thr hs been payment and partial perf ev’ing condct unequiv and exclusvly referrable to the K.H,T
Ass/ment: Absent cont langge, a lse is freely assigned. An ass is a complete tfr of a T’s remaining lse term. Assignee Ts are in priv of estate with the LL and liable to th LL for rent and other lease covs that run with the lease. Non-ass restrictions are valid, but narrwly construed against the LL. A n-ass provisn may be waived if LL knws of th ass and does nt object.
[Original T Rights and Liabilities]: Absent a novation, the original T in an assign/t remains in privity of K with LL, and is liable for rent and all other covenants in lse for lse duration. H,T
Sublease: Absent cont langge, a lse can be freely sublet. A tfr for less than the entire lse duration is a sublease. Non-sublse restrictions valid, but narrowly construed against LL. A sublse may be waived if LL knws of sublease and does nt object. H,T
LANDLORD-TENANT
- Type of Tenancy
- Valid Lease
- [Assignment | Sublease]
- [Breach of Lease | Anticipatory Repudiation]
- Landlord and Tenant Duties
- Tenant Defenses
- Covenant
- Waste
- Fixtures
Bch of Lease: Promises of LL & T are gnrly indep of each other; each pty mst perf promises regardless of whether other pty perf’s. [T hs a duy to pay rent as a consequence of a lease. If a T fails to pay rent, the LL can sue for damages, and remove the T from the prop.] H,T
Antic Rep: occurs where a promisor, prior to the time to perform arrives, unequivocally indicates s/he will not perform when the time occurs. AR gives the non-repudiating party 4 options: (1) treat the K as totally repudiated and sue imm., (2) suspend own perf. and wait until perf. is due to sue, (3) treat the rep. as an offer to rescind, and K discharged, or (4) ignore the rep. and urge perf. H,T
LANDLORD-TENANT
- Type of Tenancy
- Valid Lease
- [Assignment | Sublease]
- [Breach of Lease | Anticipatory Repudiation]
- Landlord and Tenant Duties
- Tenant Defenses
- Covenant
- Waste
- Fixtures
Possession The minority rule req the LL to deliver the legal right to possesssion. The maj rule req the LL to deliver actual poss. H,T
Rent The promises of the LL and the T are generally independent of each other; each party must perform promises regardless of whether or not the other party performs. H,T
LANDLORD-TENANT
- Type of Tenancy
- Valid Lease
- [Assignment | Sublease]
- [Breach of Lease | Anticipatory Repudiation]
- Tenant Defenses: (SoF_,_ MAISE)
- Covenant
- Waste
- Fixtures
- Mitigation: A pty to a K hs oblgtion to use reas efforts to avoid dgs. H,T
- Abandonment: If T fails to pay rent, and abndns premis by vacating w/out intent to return, LL may (1) retake premis, (2) ignore abndnmnt and contnue to hold T liable for rent, or (3) reenter and relet the premises. H,T
- Implied W of Habit: With reg to resi leases, IWoH req a LL to maintain prop sch tht it is reas suited for resi use. If premis are not habitable, T may (1) refuse to pay rent, (2) remedy the defect and offset cost against rent, or (3) defend against eviction. B4 T w/holds rent or remedies defect, T usually mst notify LL of problem and give LL a reas opp to correct problem. H,T
- Surrender: A lse may term whn, b4 expir, T surrenders the l-hold. LL accepts = T’s duty to pay rent ends; LL does nt accept = T deemed to have abandoned the lse and is liable for dgs. A LL’s acceptance must be clear, must show intent to accept the surrender. H,T
- Quiet Enjoyment (see flashcard)
Quiet Enjoyment
- Actual Eviction
-
Constructive Eviction
- Substantial Interference
- [Situation 1] (If nuisance, insert here)
- Notice
- Vacate
- Substantial Interference
Retaliatory Eviction
Evry lse contains an imp cov. of QE, whch is brched whn the LL, someone claiming through LL, or someone w/ sup title disrupts T’s possession. Any acts (except for temp or de minimis acts) by LL tht brch this cov. amount to an A or C eviction of T.
- Actual: If LL removs T frm premiss, totl evic terminates lse & T’s obs to pay rent.
- Constructive: If LL (1) sub interferes w/ T’s u&e of l-hold, T’s ob to pay rent is excused due to CE if T gives (2) notice and (3) vacates prop w/ reas time.
Retaliatory Eviction: A LL may nt evict a resi T for failure to pay rent as retaliation for the T reporting a housing code violation to the appropriate authorities. H,T
WASTE
Affirmative
Permissive
Ameliorative
A [LL/remainder interest] may bring suit for dmgs when a [T/LE holder] commits [(1) A (vol), (2) P (invol), or (3) A waste].
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Affirmative results from intentional or neg acts that cause a prop value decrease. H, T.
- Exceptions exist for exploiting minrals and timber if (1) a g’or auth exploitation at the begning of the tenancy, or (2) exploitation is nec to maintain the prop. H,T.
- Permissive results from (1) neglect, or (2) failure to reas protect prop. H, T
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Ameliorative results from acts that change or enhance prop value, w/out the conset of future interest holders. H,T
- Exceptions: Mod majority allows phys altering structures on the prop when nec to make reas use of the prop. H,T
Fixtures
[Trade Fixtures]
Fixtures: A chattel intended to be part of the land is converted from personal to real prop when it attaches to the land. The chattel is then a fixture, becomes part of the land, and passess with the land o/ship. H,T
Trade Fixtures: are items attached to real property for carrying on a business and may be removed by a T at the lease conclusion. H,T
Valid Deed
- Formalities
- Delivery
- Acceptance
A deed trfs a r.p. intrst if it complies w/ (1) F, (2) D, & (3) A.
- Formalities A deed mst be W, ~ by Gor, ID pties, & describe land.
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Delivery Gor mst, at time of tfr, manifest intent to deliver a present prop intrst to Gee by deed. Del may be (1) completed by phys handing or mailing deed to gee/agent, or (2) implied frm words & conduct of g’or (ie, whn Gor drafts & records a deed).
- Exc: Express Condition of G’ors Death: Whre thre is a properly executed & delivered deed tht provides title will not pas unitl the g’or’s death, delivery valid & creates a FI in Gee & a present life intrst for Gor.
- [Retention of Deed by G’or] Whn g’or keeps deed, no intent to tfr is presumed. Whn g’or tfrs deed to agent, tfr treated as if g’or retained deed, even whre g’or instructs agent to deliver deed to g’ee at a future time. Until Gor’s agent delivers deed to g’ee, g’or cn demand agent ignore prior instruction and return deed to g’or.
- [Tfr of Deed to G’ee] A deed tfr to g’ee creates a presumption g’or intends to make a present prop interest transfer. H,T
- Acceptance is required to complete a tfr. Unless a g’ee rejects a deed, acceptance is generally presumed.
In conclusion,
Warranty Deed
The g’or of a gnrl wrrnty deed guarantees 6 covnnts of title, incl. a present cov against encumb, during prop o/ship & in chain of title. The g’or of a special warranty deed guarantees the same 6 covenants of title, h/e only during prop o/ship. The covenant against encumbrances guarantees the deed contains no undisclosed encumbrances.
[Esm 1] <em>H, C executed and delivered to P a wrrnty deed in 2014 tht contained a cov against all encumb except for esm to WC, and no other title cov. Regardles of whthr deed ws a GWD or SWD, C deeded farm to P encumbered by B’s esm. B’s esm existed b4 and during C’s prop o/ship.</em>
<em> </em>Notice: Maj view is tht covt against encumb is brched even if g’ee knws of an encumbrance. Min view is tht thr is no brch if g’ee knws of a physical encumbrance.
- Deed of Trust
- Mortgage
-
Foreclosure
- Priorities
- Recording Acts
- Proceeds of Sale
DofT: is a sec intrst in rp. Debtor is the trustor who gives a DofT to a 3P T’ee, a pty close to the lender (the ben). Shld the T’or default, lender instructs T’ee to foreclose DofT by sale.
Mortgage: A mtg is a sec intrst in rp. Debtor is the m’or; lender is the m’ee. Shld the m’or default, lender realizes the mtg’d r estate by a judicial forec sale.
Foreclosure
- Priorities : A mtg’s priority is usully det’d by time it was placed on prop. Forec does nt destroy intrst snr to intrst forec’d. Forec gnrly destroys jr intrst, bt failure to incl a jr intrst holder in a forec action preserves the pty’s intrst.
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Rec Acts prvde mech to assess priorty of intrst in rp. 3 types: R,N,R-N.
- R: U/ a pure R statte, a pty who recs 1st prevails, regardless of N.
- N: U/ a N statte, a pty w/out act or construc N of a prior interest prevails.
- A R-N statte req a subseq pty to take an intrst w/out N of prior intrsts, & rec first.
- Proceeds of Sale: Forec sales proceds applied in this order: (1) snr intrst, (2) sales $, L’s fees, ct $, (3) prin. & accrued intrst on forec’d loan, (4) jr intrsts in order of their priority, & (5) m’or. H, if P was a snr inttrst, a forec sale by D did not destroy her intrst. D had to first pay off P’s $ prom note and DoT. If P was a jr intrst, forec gnrly destroyed her intrst, but if D failed to incl her in forec action against X her intrst was preserved. P wld share in the sales proceds after sales $, L’s fees, ct $, p and a intrst on the forec’d $ loan. **T, P had an interest in the foreclosure sales proceeds, regardles of whether she was a sen or jr interest. The share she resveived depended on her priority.
Marketable Title
- Encumbrances
Merger
Marketable Title: Implied in evry lnd sale K is wrrnty to convey marktble title. MT is title reas free frm doubt in fact & law.
Encumbrances: Title nt reas free frm doubt if it contains encumbrances. Encumb incl. esm tht reduce prop value. U/ maj, an esm tht benefits the burdnd estate, and is visible or knwn to buyer, does nt render title unmarketable. An encumb excepted in K may nt be basis for finding title unmarketable. H, since B’s esm transferred to C whn A deeded farm to her in 2009, C transferred farm to P subject to B’s esm. In 1990, A, who owned burdndd estate, used road on B’s esm daily. During farm inspection, P observed Ben travel on road. B’s esm benefitied P’s burdndd estate, and road was visible or knwn to P. In 2013, C deeded an esm for water lines to WC. C transferred farm to P subject to WC esm. The WC esm ws nt a basis for finding title unmarketable b/c 2014 warranty deed excepted WC esm. Bs esm decreased value of farm by $5. WC’s esm increased FMV of farm by $10. P paid FMV for farm (($100 - $5 + $10 = $100).
Merger: Covenants in a lnd sale K merge into deed at closing. In absence of fraud, seller is no longer liable on the implied warranty to convey marktble title.H, even if C ws liable for nt cnvying MT to P, lnd sale K merged into 2014 wrrnty deed at closing. Since deed contained a cov against all encumb except for WC esm, C did nt commit fraud. T, imp wrrnty to cnvy MT merged into deed at closing.
- Standing
- State Action
- 10th Amendment
- 11th Amendment
-
Zoning
- Nonconforming Use
- Variance
- 5th Amendment - Takings Clause
- Due Process Clause
- Standing & State Action
- 10A - pwrs nt grntd to FG or prhbtd to states by USCx are resrvd to states. H, no facts indcated the ord T adopted was not to control use of lnd for protec of the h, s, and welf of its citz. T, no 10A violation.
- 11A … Local gvs are nt immune frm suit.
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Zoning Th state may enct stattes to control lnd use u/ 10A. A state enabling act can auth cities n counties to exercise the zon powr. H, assum state’s enab act auth T to exerc this zon pwr, no fcts indicated it improp adopted a zon ord. T, T could enact an ord to control the use of land.
- A NCU tht exsts at time a zon act passes can b elimin by amortiz, not at once. H, T adopt zo tht did _. Thgh P’s shop was a n-c use, T did not eliminate it for yrs. Ts refusal for a permit was a gradual elimination.T, P’s shop was a n-c use tht cld be elim.
- A PO may obtain a variance by admin action if (1) ord imposes a hardship, & (2) var will not be contrary to public welfare.
In conclusion, P could/could not obtain a variance.
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5A-Takings (14) prohibits govt from T, PP, PU, w/out JC.
- Partial - Reg of prop x comp. Diff b/w reg & taking depends on degree of govt interference. Cts apply 3-factor bal test to determine if reg is a partial taking: (1) EI, (2) extent of inter w/ po’s reas I-B expect re prop use, & (3) character of reg: deg it bens society, hw reg bal bens & burdens, & whther reg violates an O’s prop o/ship attributes.
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DPC (5/14) provids govt shall not take a p’s LLP w/out DP of the law.
- PDP - Whn 1’s L or P intrst are adv affect by GA, ct asks 2 Qs’: (1) is TIP, (2) PD to P.
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SDP guarntees fairness of lw & tht laws will be reas & not arb.
- FR = SS / No FR = RBT
Public Nuisance
A public nuisance is (1) an unreas interference, (2) w/ the health, safety, or prpty rights, (3) of the community. To recover, injured party must show actual damages. To constitute p.n., the nuisance must affect a considerable num. of people or an entire comm or neighborhood.
Private Nuisance
List on own or under “Substantial interference” for a constructive eviction as per below:
Quiet Enjoyment
Actual Eviction
Constructive Eviction
Substantial Interference
Private Nuisance
[The situation with [_] constituted sub interference if it was p.n.]
A P.N is (1) sub and (2) unreas intrfrnce with another p’s use or enjoy of prop. Anyone with poss rights in prop may bring a N claim. Intrfrnce is subs if offensive, inconvenient, or annoying to an av reas person in the community. Intrfrnce is unreas if injury caused outweighs usefulness of D’s actions. H,T
In conclusion, P had a p.n. claim against D.
LIMITS ON LAND USE
Covenant
[Burden to Run] - WITH VN
[Benefit to Run] - WITV
A Covt is n-p intrst or promise obligating holdr to (1) do somthing (burden) or (2) refrain frm doing somthing (benefit) relating to land.
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Burd to Run: For covt burd to run, must be WITcH VN.
- W To enforce a cov, a writing must satisfy the SoF. .<em>(If no writing, apply K law (ie, prove covt through part perf or estop)</em>
- I Pties intend for the rights & duties to bind sucesor in intrst (run w/ the land).
- T n C The cov must T & C the land, which means the burd or ben must affect the p’ee & p’or as LO’s, & not merely as individs (ie, increase the land value or use to the benftd pty, or decrease the land rights or enjoyt to the burdnd pty). H,T
- HP The pties have priv of estate at the time the cov is imposed. H,T
- VP The sucesor to prop can be held to the cov (burden rns) only if title to the entire serv estate traces to the p’or. H,T
- N U/ the rec acts, a subsequent purchaser w/out N of a burdning cov is not bound by it. N must be construc (in chain of title) or actual. H,T
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Benefit to Run: For cov ben to run, there must be WITc V.
- VP The successor to the prop can enforce a covt (ben runs) ala the prop intrst possessed by the suc’or is at least some portion of the prop intrst held by the p’ee. H,T,
