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What are the 3 types of Defeasible Fees (that can divest and go to another person)
- 1. Fee Simple Determinable
- 2. Fee simple Subject to a condition Subsequent
- 3. Fee Simple Subject to an Executory Interest
What happens on a stated event to a Fee Simple Determinable, what language do you need to create a FSD
- Automatically Reverts
- Durrational Language:
- " So long as", "Durring", "Until"
What happens on a stated event to a Fee Simple Subject to Condition Subsequent, what language do you need to create a FSSCS
- Must reserve the Right of Re-entry and use Conditional Words:
- "Upon condition that", "Provided that", "but if"
What 2 fee interests can be subect a Fee Simple Subject to Executory Interest (deed written to give a 3rd a possible future right)
- Can be either:
- Fee Simple Determinable or
- Fee Simple Subject to a condition subsequent
What 3 types of waste are life and other tenants prevented from doing under the Doctorine of Waste - APA
- Permissive Waste
- Ameliorative Waste
When does a Tenant commit Affirmative Wast?
Exploitation of Natural Resources
When does a Tenant commit Permissive Waste? What are the 3 things a life tenant must do while living on the property?
- Tenant Obligated to:
- 1. Reasonable state of repair
- 2. Pay Interest on Mortgage
- 3. Pay Taxes
- (limited to rental value)
What are the two types of Reversionary Interests that a Grantor can keep when he transfers property. RR
- Possibility of Reverter
- Right of Re-entry
What kind of a fee is subject to a Possibility of Reverter. How did the grantor create this right?
Fee Simple Determinable may automatically revert back to Grantor (Durrational Language)
What does a Right of Re-Entry give the ability for the Grantee or a 3rd party to do? How is the right created?
Grantor may re-enter and take back property after a specified event. Must have specific language to re-enter.
What are the 3 things required to create a Remainder, to a 3rd party, in property that has been transferred?
- 1. Future interest given to a 3rd person
- 2. Must be expressly created in deed
- 3. Cannot divest a prior estate
What are the 3 Types of Vested Remainders?
- Vested Remainder
- Vested Remainder Subject to Open
- Vested Remainder Subject to Divestment
- Contingent Remainder
What 2 things are needed to create a Vested Remainder that will not be subject to divestment?
- 1. Known Person
- 2. Not Subject to a condition precedent
Like to A for life, then to B
What is a Vested Remainder Subject to open?
Class of persons like "the children of B"
When can a Vested Remainder become Subject to total Divestment?
Condition Subsequent may divest. Like to A for life then to B but if B dies unmarried then to C.
What are the two unknown factors that make a remainder a Contingent Remainder?
- 1. Unascertained Person or
- 2. Subject to a Condition Precedent
According to the Rule In Shelley's Case, when does a life estate merge with the remainder?
If life Estate to A then to A's heirs - Merges A gets Fee Simple
According to the Doctrine of Worthier Title, what is grantor not able to do with the remainder after his life estate?
A remainder in Grantor's heirs is invalid and becomes a reversion in Grantor. (only intervivos transfers)
What 2 fees are subject to an Executory Interests?
- Future Interests in 3rd Parties that divests another party through:
- Fee Simple Determinable or
- Fee Simple Subject to a Condition Subsequent
Can a 3rd party transfer his Remainder or Executory Interests?
At common law, only vested was transferable. Now the majority allows transfer, devise of contingent remainders
In regards to a Class, what is the Rule of Convenience?
A class closes when any person in the class can take possession of property
What is the Rule Against Perpetuities?
Must vest within 21 years after some life in being or the interest is void
What are the only 5 property interests that are subject to the Rule of Perp?
- 1. Contingent Remainders
- 2. Executory Interests
- 3. Vested Remainders Subject to Open (class)
- 4. Options to Purchase
- 5. Rights of First Refusal
What type of Restraint On a Fee Simple is valid/void?
- 1. Absolute Restraints are Void.
- 2. But reasonable restraints as to time and purpose are enforceable.
Are Restraints of Alienation on Life Estates and Future Interests valid?
Generally valid. But, disabling restraints (where attempted transfers are ineffective) are void.
What 4 unities are required to create a Joint Tenancy?
- Right of Survivorship
- 1. Time
- 2. Title
- 3. Interest
- 4. Possession
What is a Tenency by Entirety and what are its benefits?
A marital estate like Joint Tenant only one spouse cannot destroy the estate unilaterally
What unity is required to create a Tenancy In Common?
No right of survivorship. Only Unity is possession
When is a Lease considered a Tenancy for Years?
A Fixed period of time. Must have a start date and an end date.
When is a Lease considered a Periodic Tenancy?
Continues for Successive periods, like Month to Month. There is no termination date.
What is a Tenancy At Will?
No start or finish date. Either Can terminate at any time.
What are Tenancies at Sufference?
When T wrongfully stays on the property after a lease term has expired.
How does the Holdover Doctrine apply to commercial/residential tenants?
If T stays in possession then L can bind him to a new term. Commercial Tenants can be held to a year-to-year lease and residential to a month-to-month.
What is the Tenants basic Duty to Repair?
Tenant cannot damage (Commit Waste)
Does the law relieve the LL of his duties to repair if the Tenant signs a Covenant to Repair?
In a residential, the LL is still liable for repair even if a covenant. In commercial the covenant to repair is enforceable.
Lease - What is Actual, partial and constructive eviction? Does T need to pay rent?
- 1. Actual Eviction - Does not get possession (no rent)
- 2. Partial Eviction - Physically excluded from a piece of the premises, like the garage (no rent)
- 3. Constructive Eviction - Makes the premise uninhabitable
If LL fails to make sufficient repairs, breaching his Implied Warranty of Habitability, what are T's remedies?
- LL must abide housing codes. T can:
- 1. Terminate Lease
- 2. Make Repairs and offset rent
- 3. Abate rent to FMV
- 4. Sue for damages
What constitutes an Assignment of Lease?
Transfers entire remaining term
What constitutes a Sub-Lease?
Transfers less than full term
When property is assigned, what are the Assignee's Obligations to LL?
Assignee has privity of estate with LL and has to pay rent and honor covenants that run with the land.
Lease - To run with the land, what must a Covenant do to the land?
- A Covenant runs with the land if it "Touches and Concerns the land".
- T&C if it Benefits the LL and burdens the T or vice versa
Leasee - What happens to a T when Condemnation occures?
- If full condemnation - No Payments
- If Partial - Must pay rent but entitled to some of the condemnation award.
What are 5 things that could subject a LL to Tort Liability from both 3rd parties or T?
- 1. Make known: Concealed Dangerous Condition of Common Areas
- 2. Public Use: Make safe If he knows of condition and fails to repair
- 3. Furnished Residence: (strict liability for short time)
- 4. Negligent LL Repairs:
- 5. LL K to Repair:
Modernly, what is LL general duty of care?
LL Owes a general duty of reasonable care and is liable for injuries if he knew or should have known of danger
When do fixtures belong to T, what must he do?
W/O Agreement, fixtures deemed to be Tenants, but must be removed before lease term expires
What is the general right given through an Easements and when do they expire?
Right to use anothers land for a purpose, but not possess land. Deemed to last forever, unless limited in the grant.
What does an Affirmative Easement give the easment holder?
Right to do something
What does a Negative Easement give the holder?
Right to prevent a landowner from doing something. Today, these are just covenants.
What qualifies an easement as an Easement Appurtenant?
Benefits another tract of land. Runs with the land and passes to the new owner, unless new owner is a BFP.
What is an Easment in Gross, what are some examples?
- Benefits the holder, not other land. If for personal use, like accessing a lake, cannot be transferred.
- If commercial use, like mineral rights, it is transferrable.
What are the 3 ways that an easment can be created?
- 1. Express Grant: (statute of frauds)
- 2. Express Reservation: When S sells property, he retains a right
- 3. Implication: Created by operation of law
What ar the 3 ways a person can get an Easments by Implication?
- 1. Implied by Existing Use
- 2. Implied W/O Existing Use (plat map)
- 3. Easement by Necessity
What 4 elements do you need to have an Easement Implied from Existing Use?
- 1. Prior Division of Single Tract
- 2. An apparent and Continuous Use
- 3. Reasonably Necessary
- 4. Intended
What 2 ways can you acquire an Implied Easement were there has not been an existing use?
- 1. Subdivision - If plat map shows roads, you can use roads
- 2. Profit a Pendre - implied to let you get personable property
What are the 4 elements required to acquire an Easment by Prescription?
- 1. Open and Notorious
- 2. Adverse
- 3. Continuous and Uninterrupted
- 4. Statutory Period
What are the 8 ways an Easment can terminate?
- 1. Stated Conditions
- 2. Merger
- 3. Release
- 4. Abandonment (physical action and Intent)
- 5. Estoppel
- 6. Prescription
- 7. Necessity - Expire when necessity expires
- 8. Involuntary Condemnation or Destruction
What are Licenses as opposses to Easments?
A right to go on land, but not a grant. A failed Easement (SOF) may become a license. Freely revokable at any time
What 2 ways can a license become Irrevocable?
Estoppel - Invests substantial money/labor in reliance, becomes an easment for enough time to re-coup investment
License Coupled with Interest - Future interest holder may enter land to inspect for waste
What are Profits and how are they created?
Right to take resources, like minerals. Must be created like an easement (SOF). Terminates for misuse
What 5 elements are required for a Burden of a Covenant to Run?
- 1. Intent:
- 2. Notice: BFP must have notice of covenants
- 3. Horizontal Privity: Original promisors must have had some interest in land, like landlord/tenant
- 4. Vertical Privity: Successor must have entire durrational interest
- 5. Touch and Concern: Must burden one party to benefit the other party
What 3 elements are required for a Benefit of a Covenant to Run?
- 1. Intent:
- 2. Horizontal Privity: (Not Required)
- 3. Vertical Privity: Any succeeding Estate (does not need to be full durration)
- 4: Touch and Concern: Must benefit one and burden the other
Covenants - What does Horizontal Privity require?
At time the Covenant was made, the parties needed to share in an interest in the property, like LL/Tenant, Mortgagor/Mortgagee
Covenants- What does Vertical Privity require for buden/benefit?
- Burden - Must transfer full remaining durration
- Benefit - Must transefer smaller part of durration
Covenants - What is Touch and Concern?
Must burden one person and must benefit the other person
Covenants - What are covenants? How are they different from Easements?
A written promise to do something or not due something. Covenants are contractual, they are not granting use of someones land.
What is the typical remedy for a breach of a Covenant?
Damages only. Equitable servitudes provide for an injunction.
What is an Equitable Servitude and what are the damages for breach?
An equitable servitude is the same as a covenant, except the remedy for breach is an injunction. Courts will enforce even if it does not run with the land - usually by injunction
What is the difference between a Covenant and an Equitable Servitude?
- They are the same thing, created the same except:
- Covenant- Seeks money damages
- Equitable Servitude seeks injunction
How can an Equitable Servitude be implied from Common Scheme?
If Developer intended everyone in a development to abide a restriction and failed to put it on the deed of someone, then an equitable servitude is created to enforce the covenant in all property owners in the development
What 2 things are required for the benefit of an Equitable Servitude to run?
- 1. Intent
- 2. Touch and Concern
- No privity needed
What 3 things are required for the burden of an Equitable Servitude to run?
- 1. Intent
- 2. Notice
- 3. Touch and Concern
What are the 5 elements required to gain property through Adverse Possession?
- 1. Actual & Exclusive Possession
- 2. Open and Notorious
- 3. Hostile
- 4. Continuous Possession
- 5. Statutory Period
* Do not need to pay taxes
How can you overcome the SOF when you fail to put a Land Sale Contract in writing?
- Must be in writing. Exception must have 2 of 3:
- 1. Possession
- 2. Payment of full purchase price
- 3. Substantial improvements
In a land sale, what is the doctorine of Equitable Conversion?
- 1. When parties sign K
- 2. Buyer becomes owner of prop
- 3. Seller's interest in payment becomes personal property
In a land sale, who has the risk of loss of the property?
Because of Equitable Conversion, Buyer has risk of loss pending closing.
Seller must credit insurance proceeds to closing price
In a Land K what does the implied Covenant of Marketable Title assure?
- Every K has an implied covenenant that S will deliver marketable title free from defect
- At common law title gained through adverse possession is unmarketable
In Land Sale K, what makes title un-marketable?
At common law, mortgages, liens, restrictive covenants, significant encroachments make title unmarketable.
Is there an implied warrantee of marketability in a Quit Claim?
Same as Warrantee Deed - Must give marketable title
In a Land K, when does the Implied Covenant of Marketability expire?
This covenant extinguishes when the deed is transferred. Then you would need to rely on the express covenants in the deed.
In a Land Sale K what happens if a party cannot close on the day required?
- Courts generally allow reasonable time (2 months) after the expiration of the time requirement.
- Written in K, it was the parties intent or the other party gave notice that time was of the essence.
When does a Seller give an Implied Warranty of Fitness?
New Construction: Implied warranty of fitness for a purpose.
What is the Seller's liability for Defective New Home - Negligence of Builder?
Can sue builder. Some courts allow ultimate buyer to sue, even though no privity
A seller may be liable for defects in used property if he does one of 3 things?
- May be liable for defects (leaky roof, flooding basement) if:
- 1. Misrep (Fraud)
- 2. Active Concealment
- 3. Failure to disclose (known and not discoverable)
What does Title Insurance protect and who benefits?
Defends against title defects. Only protects the purchaser, does not run with the land.
What are the 4 formalities of a deed?
- 1. Writing
- 2. Signed by Grantor
- 3. Identify Parties - If left blank, person receiving can fill in
- 4. Identify the property
What 3 things make a deed void such that the court will set it aside, even against a BFP?
- 1. Forged
- 2. Never delivered
- 3. Fraud obtaining deed
If Co-owner forges sig of other owner then severence only valid against the signer
What 5 things make a Defective Deed Voidable, but not against a BFP?
- Voidable if:
- 1. Minors
- 2. durress
- 3. undue influence
- 4. Mistake
- 5. Breach of Fiduciary
What 2 instances can creditors set aside a transfer for Fraudulent Conveyance? Can they set it aside against a BFP?
- 1. Actual intent to hinder, delay collection, or
- 2. W/O receiving adequate price
- 3. Cannot set aside if BFP
What is the effect on a deed with a Poor Description of Land, how can the defect be remedied?
- Grantor retains title, but can reform deed
- Can use parol evidence where there is a good leed, but not where description totally inadequate
If the description of land is uncertain, what are the Rules of Construction used to identify the property (in order 1-6)?
- Following preference given in order:
- 1. Natural Monuments
- 2. Artificial Monuments
- 3. Courses
- 4. Distances
- 5. Name
- 6. Quantity
What 3 instances will a court allow Reformation of Deed?
- 1. Mutual Mistake
- 2. Typo
- 3. Misrep
What constitutes Delivery of Deed?
- Grantor's intent to make the deed presently effective, even if he retains control.
- Once title given, can't change your mind
How does Retention Of Deed impact delivery of the deed? What is the result of a written condition, in the deed, to give the deed at a future date? If the deed is complete and delivered, what is the result of a verbal condition to be valid at a future date?
- Express Condition in Deed to give at a future date is valid
- A verbal condition is disregarded and the deed is transferred free of condition
If you transfer title to a donee (church) with a condition, what are you allowed to do at any time?
If you hand title to a donee (church) with a condition, you can revoke b4 the condition, unless you die, then not revokable.
What are the 6 covenants contained in a Deed, 3 expire at the time of the transfer and 3 are indefinate?
- 1. Seisin - Title and Possession at time of transfer
- 2. Right to Convey - S has righ to convey to B
- 3. Against Encumbrances
- 4. Quiet Enjoyment - Not be disturbed by 3rd party lawful claim to title
- 5. Warranty - Agrees to defend and compensate B
- 6. Further Assurances
What are the 3 Deed Covenant valid at the time of conveyance?
- 1. Seisen - Right to Possession
- 2. Right to Convey
- 3. Against Encumbrances
What are the 3 Future deed covenants?
- 1. Quiet Enjoyment: Title will not be disturbed
- 2. Warranty: Will defend and compensate against future claims
- 3. Further Assurances: will do whatever is required to assure title has passed
Can subsequent purchasers enforce Deed covenants?
If subsequent purchaser kicked out, can sue anyone up the line
What is the doctorine of Estoppel By Deed as it pertains to land received after property sold?
If you transfer part of a property you do not own, then it will automatically transfer to a BFP. But won't if it was a quitclaim.
What are the difference between Notice, Race-Notice and Race, Recording Acts?
- 1. Notice: BFP prevails if you did not record
- 2. Race-Notice: BFP prevails if he bought w/o notice and he is the first to record
- 3. Race: Whoever records first
Who benefits from recording statutes?
- Only BFP. Mortgages are BFP.
- Judgment Creditors usually not.
What is the Shelter rule when a BFP sells the property?
Subsequent purchaser from BFP will have same rights as the BFP.
How much do Recording Statutes protect a buyer in a Land installment K?
In an installment land K, only protected for payments already made.
How does the doctorine of Ademption effect a person who was gifted property in a Will?
- Ademption. If property sold, cant get money
- Sale K. If property has not sold but K, can get the money
- Insurance proceeds. If insurance has not paid out yet, then can get insurance proceeds
- Condemed Property- If award hasnt paid out yet, can get
When property is conveyed in a will, what does Exoneration provide the taker?
At common law, you could have estate assets to pay off loans against property gifted to you
When property is gifted by Will, how do Lapse and anti-lapse statutes effect the gift?
- 1. At common law, if you died b4 you received property under a will, your gift would lapse
- 2. Anti-Laps statutes- Most states now allow your gift to pass
- 3. If you are dead before a will was ever made, the gift is void
- 4. Will can avoid the anti-lapse statute
When Property is gifted by Will, how might the doctorine of Abatement jeapordize the gift?
- If estate property not enough to cover debts, then gifts are abated in this order:
- Property not specifically gifted
- General Legacies
- Specific Gifts
When you convey property, who owns the crops?
- 1. Generally selling land includes crops. Exceptions:
- 2. If they are Already Harvested they belong to Seller
- 3. If Planted by tenant during the lease term and the end of the lease was uncertain, and T was not in default
What are the 5 different types of security interests that a creditor can have against Real Property?
- 1. Mortgage: Only a lien, need judicial foreclosure
- 2. Deed of Trust: Third party holds title - Only statutory sale
- 3. Installment land K: S owns property till paid off
- 4. Absolute Deed: Give deed to get a loan - treated by court as a mortgage (equitable)
- 5. Sale-Leaseback: May be equitable mortgage if that is what it really is
What are the 3 types of Water Rights?
- 1. Water Courses: Streams, Rivers, Lakes
- 2. Ground Water: Perculating
- 3. Surface Waters: Flooding
What are a land owners rights to Riparian Water and what are their limitations.
- 1. Cant substantially diminish water quality, quantity or flow
- 2. Reasonable Use Theory. Can use all you need for personal use and only reasonable use for commercial purposes.
Prior appropriation. Can get supiorior rights if you have used water in a certain way for a long time.
What are a property owners rights/limitations in Ground Water (perculating)?
Depends on the jurisdiction. Some allow all you want, some only reasonable amount, some give a joint tenancy in the water rights, some allow to determine by purpose of use.
What are a property owner's rights in Surface Waters?
Can divert water as a "common enemy". Modern trend is to weigh the balance of harm and danger.