Property

Card Set Information

Author:
miette676
ID:
226497
Filename:
Property
Updated:
2013-07-15 13:23:48
Tags:
Property
Folders:

Description:
Property Law Flash Cards
Show Answers:

Home > Flashcards > Print Preview

The flashcards below were created by user miette676 on FreezingBlue Flashcards. What would you like to do?


  1. what is the future interest in a fee simple determinable?
    possibility of reverter held in the grantor
  2. what is the future interest in a fee simple subject to condition subsequent?
    right of entry/power of termination held by the grantor
  3. what is the future interest in a fee simple subject to an executor limitation
    executory interest held by a third party
  4. what is the future interest held in a life estate
    reversion if held by the grantor, remainder if held by a third party
  5. how does one create a fee simple absolute
    to A or to A and his heirs
  6. what is the duration of a fee simple
    absolute ownership of a potentially indefinite duration
  7. what is the transferability of a fee simple
    devisable, descendible, alienable
  8. how do you create a fee tail
    to A and the heirs of his body
  9. what is the duration of a fee tail
    lasts as long as their are lineal blood descendants of grantee
  10. what is the transferability of a fee tail
    passes automatically through the blood line
  11. what is the future interest in a fee tail
    reversion if held by the grantor, remainder if held by a third party

    fee tails are abolished almost everywhere
  12. how is a fee simple determinable created
    • to A so long as
    • to A until
    • to A while

    any language that provides that upon the happening of a stated event, the land is to revert to the grantor
  13. what is the duration of a fee simple determinable
    potentially infinite, so long as the event does not occur
  14. what is the transferability of a fee simple determinable
    alienable, devisable, descendible, all subject to the condition
  15. how is a fee simple subject to a condition subsequent created
    to A but if X event ever happens, grantor reserves the right to reenter and retake; grantor must carve out the right to reenter
  16. what is the duration of a fee simple subject to a condition subsequent
    potentially infinite, so long as the condition is not breached and even thereafter until the holder of the right of entry timely exercises the power of termination
  17. how is a fee simple subject to an executor limitation created
    to A but if X event occurs, to B
  18. what is the duration of a fee simple subject to an executor limitation
    potentially infinite so long as the stated contingency does not occur
  19. how is a life estate created
    • to A for life
    • to A for the life of B
  20. what is the duration of a life estate
    measured by the life of the transferee or by some other life (pur autre vie)
  21. what is the transferability of a life estate
    alienable, devisable and descendable if pur autre vie and measuring life is still alive
  22. if the stated condition in a fee simple determinable is violated, when does forfeiture occur
    automatically
  23. O conveys to A and his heirs; what do A's heirs have
    nothing- a living person has no heirs, only prospective heirs that will exist only at A's death
  24. F conveys Blackacre to X so long as shoes are never made on the premises. What do F and X have?
    • X- fee simple determinable
    • F- the possibility of reverter
  25. if the stated condition in a fee simple subject to a condition subsequent is violated, how is the property forfeited
    the estate is not automatically terminated- it can be cut short at the grantor's option if the stated condition occurs but it is not automatic- grantor must timely execute his right of reentry
  26. to X but if X ever paints house blue, then to Y
    what do X and Y have
    • X- fee simple subject to an executory limitation
    • Y- shifting executory interest
  27. if the condition is broken, how does forfeiture occur
    if the condition is broken, the estate is automatically forfeited in favor of someone other than the grantor
  28. what is an absolute restraint on alienation
    an absolute ban on the power to sell or transfer that is not linked to a reasonable, time limited purpose

    absolute restraints are void and against public policy
  29. how is a life estate measured
    it must be in explicit life time terms and never in an actual term of years (like 45 years)

    a term of years listed will not create a life estate and will just create a leasehold interest
  30. what is a life tenant entitled to
    all ordinary uses and profits from the land
  31. what is waste and how does it work with a life tenant
    waste is anything the life tenant could do that would hurt the future interest holders
  32. what is voluntary or affirmative waste
    the life tenant must not consume or exploit natural resources on the property (such as timber, oil or minerals)
  33. what are the four exceptions to voluntary or affirmative waste
    PURGE

    • -prior use, meaning that before the grant, the land was used for exploitation
    • - repairs, meaning life tenant can consume some natural resources for repairs and maintenance
    • - grant, the life tenant may exploit if granted the right to do so
    • - exploitation, meaning the only use for the land would be to exploit (a quarry)
  34. what is the prior use and open mines doctrine
    if mining was done on the land before the life estate began, the life tenant may continue to mine but is limited to the mines already open and cannot open any new mines
  35. what is permissive waste
    it occurs when the land is allowed to fall into disrepair, normally from a practice or pattern of neglect
  36. what obligations does a life tenant have in regards to permissive waste
    life tenant is obligated to maintain the premises in reasonable good repair and to pay all ordinary taxes
  37. what is ameliorative waste
    a life tenant must not engage in acts that will enhance the property's value unless all future interest holders are known and all consent

    this really just protects sentimental value
  38. what is a reversion
    it is the future interest that arises in a grantor who transfers an estate of lesser quantum than she started with, other than a fee simple determinable or fee simple subject to a condition subsequent
  39. what are the three types of vested remainders
    • - indefeasibly vested remainder
    • - vested remainder subject to complete defeasance
    • - vested remainder subject to open
  40. what is a remainder
    a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created
  41. what is a remainderman
    always accompanies a preceding estate of a known, fixed duration, normally after a life estate or a term of years

    never follows a defeasible fee

    always waits patiently for the preceding estate to naturally end
  42. what is a vested remainder
    it is created in an ascertained (known) taker and is not subject to any condition precedent
  43. what is a contingent remainder
    it is created in an unascertained (unknown) taker OR is subject to a condition precedent OR both
  44. what is a condition precedent
    it is a condition that appears before the language creating the remainder or is woven into the grant to the remainder man
  45. To A for life, then, if B graduates from college, to B

    B is now in high school

    what do A and B have
    • A- life estate
    • B- contingent remainder
    • O- reversion (if B never graduates, it goes back to grantor/grantor's heirs)
  46. to A for life, and, if B has reached the age of 21, to B

    A is alive, B is 19

    what do they have
    • A- life estate
    • B- contingent remainder
    • O- reversion

    if B reaches 21 during A's lifetime, then B's contingent remainder is automatically transformed into an indefeasibly vested remainder
  47. historically at common law, how were contingent remainders that were still contingent upon the end of the prior estate treated
    contingent remainders that were still contingent when the preceding estate ended were destroyed and the estate reverted back to O
  48. how are contingent remainders that are not satisfied at the end of the prior estate handled now
    if contingent remainder is not met at the time the prior estate ends, the grantor/grantor's heirs hold the estate subject to B's springing executory interest- one the contingency is met, he takes the estate
  49. what is the rule in shelley's case
    present interest in a person and a future interest in his heirs would merge into a fee simple

    A for life then, on A's death, to A's heirs would merge into a fee simple for A
  50. Shelley's case is abolished- now what happens if: A for life then, on A's death, to A's heirs
    • A- life estate
    • A's as yet unknown heirs- contingent remainder
    • O- reversion
  51. what is the doctrine of worthier title
    it is the rule against a remainder in grantor's heirs and happens when O, who is alive, tries to create a future interest in his heirs
  52. to A for life, then to O's heirs

    who gets what under doctrine of worthier title
    • A- life estate
    • O- reversion

    if doctrine did not apply, then A- life estate, O's unknown heirs- contingent remainder, O- reversion
  53. what controls the doctrine of worthier title
    the grantor's intent- if it is clear that he really wanted his heirs to get a contingent remainder for some reason, then that would be honored
  54. what is an indefeasibly vested remainder
    the holder is certain to acquire an estate in the future with no conditions attached

    best possible future interest
  55. To A for life, remainder to B
    • A- life estate
    • B- indefeasibly vested remainder
  56. what is a vested remainder subject to complete defeasance
    the taking is not subject to any condition precedent but his right to possession could be cut short because of a condition subsequent
  57. Note about the Comma Rule and telling the difference between condition precedent and condition subsequent
    when conditional language in a transfer follows language that, taken alone and set off my commas, would create a vested remainder, the condition is a condition subsequent and you have a vested remainder subject to a complete defeasance
  58. O conveys: to A for life, remainder to B, provided, however, that if B dies under the age of 25, to C

    A is alive. B is 20.
    • A- life estate
    • O- reversion
    • B- vested remainder subject to complete defeasance
    • C- shifting executory interest

    If B is under 25 when A dies, B still takes but he must live until 25 to retain his interest. Otherwise, B's heirs lose all and C or C's heirs take.
  59. O conveys: to A for life, and if B reaches the age of 25, to B
    • A- life estate
    • B- contingent remainder because his taking is subject to a condition precedent. B must be 25 before he can take possession
    • O- reversion

    If B is alive but under 25 at A's death, B cannot take; the estate reverts back to O or O's heirs who hold it subject to B's springing executory interest; if and when B reaches 25, B divests O)
  60. what is a vested remainder subject to open
    a remainder is vested in a group of takers, at least one who is qualified to take but each class member's share is subject to partial diminution because additional takers can still join
  61. how do you know if a class is open or closed
    • - a class is open if others can still join
    • - a class is closed when no others can join
  62. what is the common law rule of convenience
    the class closes whenever any member can demand possession
  63. to A for life, then to B's children. A is alive. B has two children, C and D
    • A- life estate
    • B- nothing
    • C & D- vested remainder subject to open
  64. to A for life, then to B's children. A is alive. B has two children, C and D

    when does the class close
    at B's death, and also at A's death according to the rule of convenience, no matter if B is still alive. Why? because on A's death, that is when C and D can demand possession
  65. what is the womb rule
    a child in the womb will share with a class that is closed
  66. what is an executory interest
    it is a future interest created in a transferee which is not a remainder and which takes effect by either cutting short some interest in another person or in the grantor and his heirs
  67. what is the difference between a shifting and a springing executory interest
    • - a shifting executory interest takes from a 3rd party
    • - a springing executory interest takes from the grantor
  68. what is a shifting executory interest
    it allows follows a defeasible fee and cuts short someone other than the grantor
  69. to A, if and when he marries
    • - A has a springing executory interest
    • - O has a fee simple subject to A's springing executory interest
  70. what is the rule against perpetuities
    certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life
  71. to what future interests does the RAP normally apply
    • - contingent remainders
    • - executory interests
    • - certain vested remainders subject to open
  72. to what future interests does the RAP not apply
    • - future interests in O
    • - indefeasibly vested remainders
    • - vested remainders subject to complete defeasance
  73. what are the steps to RAP analysis
    • 1. classify the future interest
    • 2. what are the conditions precedent to the vesting of the future interest
    • 3. find a measuring life
    • 4. will we know within 21 years of the measuring life if the future interest holder can take
  74. To A for life, then to her first child to reach 30. A is 70, her only child is 29.

    RAP analysis
    • 1. contingent remainder
    • 2. A must die and have a child that reaches 30
    • 3. A is the measuring life
    • 4. any possibility that A won't have a child of 30 in the next 21 years- YES

    A has life estate, O has reversion
  75. what is the fertile octogenarian rule
    RAP rule that regardless of how old someone is, they can always still have a baby
  76. Two bright line RAP rules
    • - any gift to an open class conditioned on members living to an age beyond 21 will always violate RAP
    • - an executory interest with no limit on the time in which it must vest violates RAP
  77. to A and his heirs so long as the land is used for a farm, and if that ceases, then to B and B's heirs
    • 1. B has a shifting executory interest
    • 2. land is not used for a farm trigger's B
    • 3. A is measuring life
    • 4. it is possible that it won't be used for a farm tomorrow or in 100 years- violates RAP

    strike out the offending language- A has a fee simple
  78. what is the charity RAP exception
    a charity to charity gift will never violate RAP
  79. what is the wait and see or second look doctrine
    under this majority reform effort, the validity of any suspect future interest is determined on the basis of the facts as they exist at the actual end of the measuring life
  80. what is the uniform statutory RAP (USRAP)
    it provides for a 90 year vesting period
  81. how does the doctrine of cy pres work with the RAP reforms
    cy pres keeps things as near as possible; if a given disposition violates the rule, the court may reform it in a way that most closely matches grantor's intent while still complying with RAP
  82. what are the 3 different types of concurrent ownership
    • - joint tenancy
    • - tenancy by the entirety
    • - tenancy in common
  83. what is a joint tenancy
    - two or more own with the right of survivorship- interest is alienable but is not devisable or descendable- at one's death, it goes to the other tenant
  84. how is a joint tenancy created
    • the joint tenants must take their interests:
    • - at the same time
    • - by the same title
    • - with identical interests
    • - and the rights to possess the whole
    • - with the right of survivorship clearly expressed by the grantor
  85. how is a joint tenancy severed
    • SPAM
    • sale, partition and mortgage
  86. what happens when one joint tenant sells her interest during her lifetime
    it disrupts the 4 unities and creates in the buyer a tenancy in common

    this occurs as soon as a K is entered for the interest

    the sale can be open or secret
  87. what is severance and partition
    it is either when co owners agree to end the r/s, a court action for physical division of the property OR a court action forcing sale of the property and proceeds are divided
  88. how does severance and a mortgage work
    Majority- the lien theory of mortgages states that a joint tenant's execution of a mortgage on her interest will not sever the joint tenancy

    Minority- the title theory of mortgages states that a mortgage on her interest will sever the joint tenancy
  89. what is a tenancy by the entirety
    a marital interest between married folks with the right of survivorship
  90. can a tenancy in the entirety be conveyed
    not unilaterally, no; both tenants must agree to convey
  91. how can creditors attach to a property held by tenants in the entirety
    they can only attach if the debt is in both parties' names; if only one of them is listed on the debt, then the creditor cannot touch the property
  92. what is a tenancy in common
    • - each tenant owns an individual part but has a right to possess the whole
    • - each interest is alienable, devisable and descendable
    • - there are no survivorship rights
  93. what are the rights and duties of co-tenants
    • - possession
    • - rent from co-tenant in executive possession
    • - rent from third parties
    • - cannot adversely possess
    • - paying carrying costs
    • - making repairs
    • - not to commit waste
    • - no right for contribution for improvements
    • - right to bring partition action
  94. what are the four leasehold or non-freehold estates
    • - tenancy for years
    • - periodic tenancy
    • - tenancy at will
    • - tenancy at sufferance
  95. what is a tenancy for years
    • - it is a lease for a fixed period of time and you know the termination date from the start
    • - no notice is needed to terminate at the end
    • - if greater than 1 year, must be in writing
  96. what is a periodic tenancy
    • - a lease that continues for successive intervals until L or T gives notice to terminate
    • - it can be created expressly (month to month) or by implication
  97. how is a periodic tenancy created by implication
    • - provisions are made for what day rent is due but no duration of lease is set
    • - oral term in years that violates SOF creates an implied periodic tenancy measured by the way rent is paid
    • - L elects to hold over T who wrongfully stayed on past conclusion of original lease
  98. how do you terminate a periodic tenancy
    • - must give notice, normally written
    • - at CL, notice must be equal to the period itself unless it was a year to year, and then 6 months notice is required
    • - free to K around notice lengths though
    • - must end at a natural date, the 30th oppose from the 6th
  99. what is a tenancy at will
    it is a tenancy for no fixed duration

    to T as long as T desires

    unless expressly agreed upon to be a tenancy at will, the payment of rent will turn it into a periodic tenancy
  100. how is a tenancy at will terminated
    by either party at anytime but normally a reasonable demand to quit is needed
  101. what is a tenancy at sufferance
    it is created when T has wrongfully held over past the expiration of a lease; this tenancy permits the L to collect rent
  102. how is a tenancy at sufferance ended
    by L evicting T or by L holding T to a new tenancy
  103. what are the tenant's duties
    • - liability to 3rd parties
    • - duty to repair
    • - duty to pay rent
  104. what are T's duties to 3rd parties
    • - keeping the premises in reasonably good repair
    • - liable for injuries sustained by 3rd parties T invited, even where L expressly promises to make repairs
  105. what is T's duty to repair if not expressly stated in the lease
    T must maintain the premises and make ordinary repairs and cannot commit waste
  106. what is the law of fixtures
    • - when a tenant removes a fixture, he commits voluntary waste
    • - a fixture is once movable chattel that by virtue of being attached, objectively shows the intent to permanently improve the realty
    • - T must not remove a fixture, even if she installed it
  107. do fixtures, even ones T installed, pass with the land
    • yes, if:
    • - there is an express agreement
    • - removal could cause substantial harm to the premises
    • - if removal would cause substantial damage, then objectively T has shown the intent to install a fixture and the fixture will stay put
  108. what is T's duty to repair when it is expressly in the lease
    historically, T was liable for any loss, including acts of god

    majority today, T may end lease if premises are destroyed at no fault of T's own
  109. what happens when T breaches duty to pay rent and is still in the property
    L can evict through the court or continue the r/s and sue for rent owed

    L cannot self help, i.e. change locks, removing tenant's possessions
  110. what happens when T breaches duty to pay rent and is not in the property

    (abandonment)
    SIR

    • -surrender: T shows by words or actions that she wants to give up the lease and L accepts the surrender
    • - ignore the abandonment and hold T responsible for the unpaid rent as if T was still there (minority of states only)
    • - re-let the property and hold T responsible for any damages and unpaid rent

    Majority- no matter what, L must try to re-let to mitigate damages
  111. what are the L's duties to T
    • - deliver possession
    • - implied covenant of quite enjoyment
    • - implied warranty of habitability
    • - no retaliatory eviction
  112. what is L's duty of delivering possession
    • Majority- L puts T in physical possession
    • Minority- L delivers legal possession but not necessarily physical possession
  113. what is the implied covenant of quiet enjoyment
    T has a right to quiet use and enjoyment of her residential or commercial property without interference from L
  114. what is constructive eviction
    • SING
    • - substantial interference due to L's actions or failures
    • - notice- T must tell L of the problem and L must fail to act meaningfully
    • - goodbye- T must vacate w/i reasonable time after L fails to fix the problem
  115. is L liable for acts of other tenants
    • generally no, except:
    • - L must not permit a nuisance on site
    • - L must control common areas
  116. what is the implied warranty of habitability
    applying only to residential properties, the premises must be fit for basic human dwelling- meaning that bare living requirements must be met

    (example- having working heat in winter)
  117. what can T do when the implied warranty of habitability is breached
    • MR3
    • - move out and end the lease
    • - repair and deduct the cost from the rent
    • - reduce rent or withhold all rent until it is fixed- typically must put payments in escrow to show good faith
    • - remain in possession, pay rent and seek money damages
  118. what is retaliatory eviction
    if T lawfully reports L for housing code violations, L is barred from penalizing T
  119. what is an assignment
    T transfers all her interest in a lease
  120. what is a sublease
    T transfers part of her interest under a lease
  121. may T freely assign or sublease
    unless the lease prohibits it, T can freely assign or sublease

    some leases will only allow assignments or subleases with L's prior approval
  122. T1 has 10 months left on a 2 year lease. T1 transfers the 10 months to T2. What does this mean for L, T1 and T2
    • - it is an assignment
    • - L and T2 are in privity of estate, meaning that they are liable for each other for all the covenants in the original lease, like paying rent and duty to repair

    L and T2 are not in privity of K; L and T1 are
  123. what significance is there in being in privity of estate or privity of law
    it matters to whom the duties can be enforced; one must be in privity of estate or K to be liable to the other party
  124. L leases to T1, T1 assigns to T2, T2 assigns to T3. T3 abuses the premises. Who can L proceed against?
    • T1- yes, privity of K (go after T3 first)
    • T2- no, there is no privity
    • T3- yes, privity of estate
  125. who is in privity in a sublease
    • - L and subleasee do not share a nexus
    • - T1 and T2 have a r/s without the L
    • - r/s between L and T1 is undisturbed
  126. what is the common law of caveat lessee
    • let the T beware
    • L is under no duty to make the premise safe
  127. what are the exceptions to caveat lessee
    • CLAPS
    • - common areas must be maintained by L
    • - latent defects, L must warn T of any she knows about or should know about
    • - Assumption of repairs, a L who volunteers to make repairs must complete them with reasonable care
    • - Public use rule, an L who leases public space and who knows, or should have known, because of the nature of the defect T and the length of the lease, T will not repair, is liable 
    • - short term lease of a furnished dwelling, L is liable for any defect
  128. what is an easement
    the grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another's land (the servient tenement)
  129. what is an affirmative easement
    the right to do something on the servient land
  130. what is a negative easement
    entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible
  131. what are the four categories of negative easements
    • LASS
    • - light
    • - air
    • - support
    • - stream water from an artificial flow

    (minority 5th: right to a scenic view)
  132. how are negative easements created
    can only be created expressly, in writing, signed by the grantor
  133. what is an easement appurtenant to land
    when it benefits the holder in its physical use or enjoyment of his property- there must be two parcels, the dominant tenement which gets the benefit and the servient tenement that bears the burden
  134. what is an easement in gross
    it confers upon the holder only some personal or pecuniary advantage that is not related to his use or enjoyment of the land; the servant tenement is burdened but there is no benefitted dominant tenement
  135. how does an appurtenant easement pass
    it passes automatically with the dominant tenement, regardless of whether it is mentioned in the conveyance
  136. how does the burden of the easement appurtenant pass
    automatically with the servient estate unless the new owner is a bone fide purchaser without notice of the easement
  137. how does an easement in gross pass
    it is not transferrable unless it is for a commercial purpose
  138. how is an affirmative easement created
    • PING
    • - prescription
    • - implication
    • - necessity
    • - grant
  139. how is an affirmative easement by grant created
    it is expressly given; if for over 1 year, it must be in writing to satisfy SOF
  140. how is an affirmative easement by implication created
    the previous easement use was apparent, the parties expected that it would continue and it is reasonable necessary for the dominant land's use and enjoyment
  141. how is an affirmative easement by necessity created
    an easement of right of way will be implied by necessity if grantor conveys a portion of his land w/no way out except over part of his remaining land

    its a land locked situation normally
  142. how is an affirmative easement by prescription created (adverse possession)
    • - continuous use for the statutory period
    • - open and notorious use
    • - actual use
    • - hostile use (w/o the servant owner's consent)

    permission defeats adverse possession
  143. how is the scope of the easement determined
    by the terms of the grant or the conditions that created it
  144. how is an easement terminated
    • END CRAMP
    • - estoppel
    • - necessity
    • - destruction of the servient land
    • - condemnation of the servient estate
    • - release
    • - abandonment
    • - merger doctrine (unity of ownership)
    • - prescription
  145. what does estoppel mean in the context of ending an easement
    the servient owner materially changes his position in reasonable reliance on the easement holder's assurances that the easement will not be enforced
  146. how does necessity end an easement
    once the needs ends for the easement, the necessity easement ends (unless created also by express grant)
  147. how does abandonment end an easement
    if the easement holder demonstrates by physical action, not just mere abandonment, that the easement is no longer needed, the easement ceases

    (building a road in their own land and never using the easement they had used to leave their land)
  148. what is the merger, or unity of title, doctrine
    when the title to the servient land and the dominant land are vested in the same person, the easement ceases

    if the titles split again later, the easement is not revived and must be created again
  149. what is an easement by prescription
    • adverse possession
    • - continuous interference
    • - open and notorious use
    • - actual use
    • - hostile use
  150. what is a license
    it is a mere privilege to enter another's land for some delineated purpose

    not subject to SOF and are freely revocable unless estoppel applies
  151. what does an oral easement create
    a freely revocable license if it is never put in writing
  152. what is the profit
    it entitles its holder to enter the servient land and take from it the soil or some substance of the soil, like minerals, timber or oil, and it shares all the rules of easements
  153. what is a covenant
    it is a promise to do or not do something related to the land; it is unlike an easement because it is a contractual limitation and not a property interest
  154. what kinds of covenants are there
    • - negative/restrictive covenants that are promises to refrain from doing something
    • - affirmative covenants that are promises to do something related to the land
  155. what is the difference between a covenant and an equitable servitude
    • - look at the basis of the available remedy the P seeks
    • - when P wants money damages, construe as a covenant
    • - when P wants injection, construe as equitable servitude
  156. what elements are necessary for a burden to run with the land
    • WITHN
    • - writing
    • - intent for covenant to run
    • - touch and concern land in a way that affects the parties' legal relations as landowners
    • - horizontal and vertical privity (both needed)
    • - notice of promise when new serivent owner took
  157. what is horizontal privity
    it is the nexus between the original parties and requires that they be in succession of estate, meaning that they were in a grantor/grantee, landlord/tenant or mortgagor/mortgagee r/s
  158. what is vertical privity
    requires a non-hostile nexus, such as a K, devise or descent
  159. when does the benefit run with the land
    • WITV
    • - writing
    • - intent to run
    • - touch and concern the land in a way that affects the parties' legal relations as landowners
    • - vertical privity
  160. A promises B that A will not build for commercial purposes. A later sells to A1. B sells to B1. A1 wants to make bikes on her land. B1 wants to proceed against A1 for money damages. Will B1 succeed?
    • - do the burden side first, A to A1
    • - this side needs horizontal and vertical privity, unlike the benefit side
    • - horizontal privity would need to exist b/t A & B
    • - vertical privity would need to exist b/t A & A1 and b/t B & B1
  161. what is an equitable servitude
    a promise that equity will enforce against successors; it is accompanied by injunctive relief
  162. how do you create an equitable servitude
    • WITN
    • - writing
    • - intent to run
    • - touch and concern the land
    • - notice to successors of the burdened land

    PRIVITY IS NOT REQUIRED
  163. what is an implied equitable servitude
    • - it is the idea of a general of common scheme in a development
    • - two elements:
    • * when the sales began, the subdivider has a general scheme of residential development which included D's lot
    • * the D lot holder had notice of the promise contained in the prior deeds
  164. what kinds of notice can be imputed on a D in an implied equitable servitude
    • - actual notice, the D had literal knowledge of the earlier promises
    • - inquiry notice, the neighborhood conforms to the common restriction
    • - record notice, the form of notice sometimes is imputed to buyer on the basis of the public documents
  165. how do the courts stand regarding record notice and an implied equitable servitude
    the courts are split. some say that a subsequent buyer is on record notice of prior deeds transferred by a common grantor. other courts hold that the subsequent buyer does not have record notice
  166. what is a defense to enforcement of an equitable servitude
    changed conditions- the changed circumstances are so pervasive that the entire area has changed and the equitable servitude should be released
  167. what are the elements of adverse possession
    • - continuous and uninterrupted use for the statutory period
    • - in an open and notorious way
    • - with actual (literal) entry
    • - and hostile, the possessor does not have the true owner's consent

    Possessor's subjective state of mind is irrelevant
  168. what is tacking in regards to adverse possession
    one adverse possessor may tack on his time with on the land with his predecessor's time so long as there is privity, which is satisfied by any non-hostile nexus, such as blood, K, deed or will and there has not been an ouster
  169. how do owner disabilities come into play with adverse possession
    the SOL will not run against a true owner who is afflicted by a disability at the start of the adverse possession

    if the disability arises during the adverse possession, it will not toll the SOL
  170. what is the two step process for a conveyance of land
    • 1. the land contract, which endures until step 2
    • 2. the closing, where the deed becomes the operative document
  171. what are the elements of the land contract
    • - the K must be in writing and signed by the party to be bound (most cases- the D)
    • - it must describe the property
    • - it must state some consideration
  172. what happens when the amount of land in a K is more than the actual size of the parcel
    specific performance with a pro rata reduction in price
  173. what is part performance and when is it used
    • part performance is used to enforce an oral K for land; the elements are:
    • - B takes possession
    • - B remits all or part of the price AND/OR
    • - B makes substantial improvements
  174. who bears risk of loss from time of K until closing when land is destroyed at no fault of either party
    the buyer will bear the risk of loss unless the K states otherwise
  175. what two implied promises are in every land K
    • - seller promises to provide marketable title
    • - seller promises to not make any false statements of material facts

    (many states also hold seller liable for failing to disclose latent material facts)
  176. what is marketable title
    at the time of closing, the title is free from reasonable doubt and free from law suits and the threat of litigation
  177. what three circumstances will render title unmarketable
    • - adverse possession, even if just part of the title rests on adverse possession
    • - encumbrances, servitudes and mortgages render title unmarketable, unless the buyer waives them (seller paying off mortgage at closing is an example)
    • - zoning ordinances
  178. what is the limit of K general disclaimer of liability
    the disclaimer won't excuse a seller from liability from fraud or failure to disclose
  179. common law implied warranties??
    caveat emptor- buyer beware

    only implied warranty at CL is the implied warranty of fitness and workmanlike construction that applies to the sale of a new home
  180. how does a deed pass from seller to buyer
    • LEAD
    • - lawfully executed and delivered
    • - must be in writing and signed by the grantor
    • - must have a description of the land
  181. what is the delivery requirement to pass a deed
    the grantor physically or manually transfers the deed to the grantee, using the mail, a messenger, an agent or physically hands it to the buyer

    it does not require the actual physical transfer of the deed itself, though
  182. what is the legal standard for delivery
    did the grantor have the present intent to be bound irrespective of whether or not the deed was physically handed over
  183. who is delivery of a deed defeated
    the recipient expressly rejects the deed
  184. what happens if an absolute deed on its face is delivered with an oral condition
    the oral condition drops out
  185. what is delivery by escrow
    grantor may deliver an executed deed to a third party, known as an escrow agent, with instructions that the deed be delivered once certain conditions are met; once the conditions are met (like payment), the title passes to the grantee
  186. what are the three types of deeds
    • - quit claim
    • - general warranty deed
    • - statutory special warranty deed
  187. what is a quit claim deed
    it contains no covenants and the grantor isn't even promising that he has title to convey
  188. what is a general warranty deed
    • - it is the best deed a buyer could hope for
    • - it contains all of the present and future covenants
  189. what are the three present covenants
    • - seisin, the grantor promises he owns this estate and has title
    • - right to convey, the grantor has the power to transfer, there are no temporary restraints on alienability and the grantor is not affected by a disability
    • - encumbrances, there are no servitudes or liens
  190. when does the SOL start for a present covenant
    begins at the time of delivery
  191. what are the three future covenants
    • - quiet enjoyment, won't be disturbed by a 3rd party's lawful claim of title
    • - warranty, grantor promises to defend grantee against any lawful claims of title asserted
    • - further assurances, grantor promises to do whatever is needed in the future to perfect titles
  192. when does the SOL start for a breach of a future covenant
    - at the date in the future that the grantee is disturbed
  193. what is a statutory special warranty deed
    • this deed contains two promises by grantor, made only on behalf of himself:
    • - grantor promises that he hasn't conveyed the property to anyone other than the grantee
    • - the property is free from encumbrances made by the grantor
  194. what is a bona fide purchaser
    one who buys property for value and without notice that someone else got there first
  195. B paid $50,000 cash for land when its fair market value is $100,000. Is B a purchaser for value?
    Yes- as long as B remits substantial pecuniary consideration (value defined)
  196. B is O's heir. In a recording statute question, B...
    loses. Recording statutes do not protect donees, heirs or devisees unless the shelter rule applies
  197. what three forms of notice may a buyer be potentially charged with?
    actual, inquiry, record
  198. what is inquiry notice
    whether buyer looks or not, buyer is on inquiry notice of whatever an inspection of the property would show

    the buyer has a duty to inspect the property before transfer of title
  199. what if a recorded instrument makes reference to an unrecorded instrument
    the buyer is on notice of whatever a reasonable follow up would show
  200. what is record notice
    a previous recording puts buyer on notice
  201. what is the notice statute
    a conveyance of an interest in land (O to A) shall not be valid against and subsequent purchaser for value (B), without notice thereof (B), unless the conveyance is recorded (A)

    If, at the time he takes, he is a BFP, he wins and it won't matter who recorded first

    AL is a notice state
  202. what is the race notice statute
    any conveyance of an interest (O to A) in land shall not be valid against any subsequent purchaser for value (B) without notice thereof (B), whose conveyance is first recorded

    To prevail, B must be a BFP and win the race to record
  203. O conveys property to A. Later, O conveys same property to B. O skips town. Who wins?
    Notice Jurisdiction- if B is a BFP, then B wins, regardless if B recorded before A

    Race-Notice Jurisdiction- if B is a BFP, B only wins if she recorded before A
  204. On March 1, O conveys property to A, a BFP who does not record. On April 1, O conveys the same property to B, a BFP who does record. Who wins under notice and race-notice?
    • Notice- B, the last BFP to take
    • Race-notice- A, the first BFP to record
  205. how does one give record notice to subsequent takers
    the deed must be recorded properly within the chain of title, which refers to that sequence of recorded documents capable of giving record to later takers

    most states establish this through a title search of the grantor-grantee index
  206. what are the three chain of title problems
    • - the shelter rule
    • - the wild deed
    • - estoppel by deed
  207. what is the shelter rule
    one who takes from a BFP will prevail against any entity that the transferor-BFP would have prevailed against; the transferee takes shelter in the status of her transferor and thereby steps in the shoes of the BFP even though she otherwise fails to meet the requirements of BFP status
  208. O conveys to A, who does not record. Later, o conveys same to B, a BFP who does record. B then conveys to C, who is a mere donee. Who wins, A or C?
    C wins in both a notice and a race-notice state because of the shelter rule. C steps into the shoes of B, who was the first BFP to record.
  209. what is a wild deed
    a deed, entered on the records, has a grantor unconnected to the chain of title; it is incapable of giving record notice of its existence

    O to A. A does not record. A to B. B records the A to B deed. The O to A deed is a wild deed.
  210. what is estoppel by deed
    one who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later acquires that previously transferred interest
  211. In 1950, O owns Black Acre. He talks to X about selling it to X but does not. In 1950, X sells it anyway to A. A records in 1950. In 1960, O sells to X and X records. In 1970, X sells to B. B records. Who owned Black Acre from 1960-1969
    A because of estoppel by deed
  212. In 1950, O owns Black Acre. He talks to X about selling it to X but does not. In 1950, X sells it anyway to A. A records in 1950. In 1960, O sells to X and X records. In 1970, X sells to B. B records. A owned Black Acre from 1960-1969. Who owns Black Acre from 1970 to now
    B, if a BFP, in a race-notice or a notice state. Why? A's 1950 recording is a nullity as one cannot sell land until they own it, thus B's title researcher could not discover X's 1950 pre-ownership transfer to A.
  213. what is a mortgage
    • the conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a debt, resulting in a voluntary lien on the debtor's land to secure the debt
    • must be in writing due to SOF
  214. the debtor is the _____, the creditor is the _____
    • ◦ debtor - mortgagor
    • ◦ creditor - mortgagee
  215. what is an equitable mortgage

    it is when the parties understand that there is to be a mortgage but the deed is absolute on its face, without mention

  216. O owns land. C lends O money. O and C understand that land is collateral for the debt. O gives C the deed, which is absolute on it's face. what do they have

    • equitable mortgage and parol evidence can be used to show the parties' intent

    • once a mortgage has veen created, what are the parties' rights
    • ◦ debtor mortgagor: title and the right to possess
    • ◦ creditor mortgagee: a lien
  217. which party can transfer their interest in a mortgage

    all parties can- the mortgage automatically follows a properly transferred note

  218. how does the creditor mortgagee transfer his interest
    • ◦ 1- endorsing the noted and delivering it to the transferee
    • ◦ 2- executing a separate document of assignment
    • how does one become a holder in due course

    • the note is endorsed and delivered

  219. what does a holder in due course mean

    • he takes the noted free of any personal defenses that could have been raised against the original creditor mortgagee and can foreclose despite and personal defenses
    • HIDC is still subject to any "real" defenses

  220. what are the elements of being a HIDC
    • ◦ - note must be negotiable
    • ◦ - original note must be endorsed by mortgagee
    • ◦ - original note must be delivered to transferee
    • ◦ - transferee must take note in good faith w/o notice of illegality
    • ◦ - transferee must pay value, something more than a nominal amount
  221. what are the real defenses
    • ◦ MAD FIFI4
    • ◦ - material
    • ◦ - alteration
    • ◦ - duress
    • ◦ - fraud in the factum (lie about the instrument)
    • ◦ - incompetency
    • ◦ - illegality
    • ◦ - infancy
    • ◦ - insolvency
  222. If O, the debtor mortgagor sells his land which is mortgaged, what happens to the lien

    the lien remains on the land so long as the mortgage was properly recorded

  223. On January 10, M takes out a $50,000 mortgage on her land with 1st Bank. 1st bank promptly records. On January 15, M sells land to B. B had no actual knowledge of the lien. B records. Does B hold subject to 1st bank's mortgage

    • Yes- all recording statutes apply to mortgages as well as deeds and a later buyer takes subject to a properly recorded lien
    • in notice state, 1st bank wins b/c they recorded; in race-notice, 1st bank wins b/c they recorded first

  224. On January 10, M takes out a $50,000 mortgage on her land with 1st Bank. 1st bank promptly records. On January 15, M sells land to B. B had no actual knowledge of the lien. On January 20, 1st bank records. On January 30, B records. Does B hold subject to 1st bank's mortgage

    • race notice- B loses b/c he recorded last
    • notice- B wins as long as he was a BFP as a subsequent BFP wins over a prior grantee or mortgagee who has not yet recorded properly at the TIME HE TAKES

  225. who is personally liable for the debt if O sells mortgaged land to B and B assumed the mortgage

    • Both O and B are personally liable
    • O is primarily liable
    • B is secondarily liable

  226. who is personally liable for the debt if O sells mortgaged land to B and B takes subject to the mortgage

    • Only O is personally liable; B is not
    • But, if recorded, the mortgage sticks with the land and if O does not pay, the mortgage may be foreclosed

  227. how can a mortgagee foreclose

    by proper judicial action; the land is sold and the proceeds go to satisfy the debt

  228. what if the proceeds from a foreclosure sale are not enough to satisfy the debt
the mortgagee brings a deficiency action against the debtor

  229. what if the proceeds are more than the debt

    junior mortgages are paid in order of priority and any surplus after that is given to the debtor

  230. Land has market value of $50,000 and is subject to 3 mortgages, 1st bank for $30,000, 2nd bank with $15,000 and 3rd bank with $10,000. 1st bank's mortgage is foreclosed and land sold for $50,000. how will the funds be distributed?
    • ◦ - off the top: atty's fees, foreclosure costs, any accrued interest on first bank's loan
    • ◦ - proceeds pay off mortgages in order of their priority
    • ◦ - 1st bank gets $30,000
    • ◦ - 2nd bank gets $15,000
    • ◦ - 3rd bank gets $5,000 and then can proceed for a deficiency judgment
  231. Land has market value of $50,000 and is subject to 3 mortgages, 1st bank for $30,000, 2nd bank with $15,000 and 3rd bank with $10,000. 1st bank's mortgage is foreclosed and land sold for $60,000. how will the funds be distributed?
    • ◦ - 1st bank gets $30,000
    • ◦ - 2nd bank gets $15,000
    • ◦ - 3rd bank gets $10,000
    • ◦ - debtor gets $5,000
  232. what effect does foreclosure by a senior interest have on junior interests
    • ◦ - foreclosure will terminate junior interests
    • ◦ - once foreclosure of a superior claim has occurred, with the proceeds distributed appropriately, junior lien holders can no longer look at the land for satisfaction
  233. what is a necessary party
    • ◦ - those with interests subordinate to those of the foreclosing party
    • ◦ - a debtor/mortgagor is a necessary party and must be joined
    • ◦ - if a necessary party is not joined, his mortgage remains on the land
  234. how does foreclosure effect interests senior to the mortgage
    • ◦ - if does not affect them so a buyer will take the land subject to such interest
    • ◦ - buyer will not be personally liable but if creditor is not paid, eventually they will foreclose
  235. Land has market value of $50,000 and is subject to 3 mortgages, 1st bank for $30,000, 2nd bank with $15,000 and 3rd bank with $10,000. 2nd bank's mortgage is foreclosed. 1st bank's is not. how does the foreclosure effect 1st bank
    • ◦ - the foreclosure of 2nd bank will not affect 1st bank and 1st bank's mortgage will continue on the land in the hands of the foreclosure buyer
    • ◦ - foreclosure buyer will want to pay off 1st bank though in case debtor never pays them, as 1st bank will be able to foreclose on buyer
  236. how are creditor priorities determined

    • first in time, first in right
    • the first to record their mortgage is the one with first priority

  237. what is a purchase money mortgage

    • it is a mortgage given to secure a loan that enables the debtor to buy the encumbered land
    • (buying a house)

  238. what is an after acquired collateral clause

    it is a clause that states a creditor can take a security interest in all of debtor's land, even land that is acquired after the date of the mortgage

  239. C1 lends O $200,000, taking a security interest in all of O's holdings now or in the future. C1 records. Later, C2 lends O $50,000 so O can buy Land. C2 records. O defaults on all obligations and all O has left is Land. Who is first in priority on the Land?

    • C2, the later in time purchase money mortgagee
    • a purchase money mortgagee has super priority

  240. what is redemption in equity

    • equitable redemption is universally recognized and anytime prior to the sale, the debtor can try to redeem the land
    • once the foreclosure has taken place, the right is gone

  241. how is the right of equitable redemption exercised

    by paying off the missed payments plus interest and costs

  242. what if the mortgage contains an acceleration clause

    if so, the debtor will have to pay the full balance plus accrued interest and costs to avoid foreclosure

  243. may a debtor/mortgagor waive the right of redemption

    NO- it is considered clogging the equity of redemption and is prohibited as a matter of public policy

  244. what is statutory redemption
    • ◦ - seen in about half of the states, this is where the debtor has some time period AFTER the foreclosure sale to redeem
    • ◦ - the amount to be paid is usually the foreclosure sale price
    • ◦ - normally during statutory period, the debtor gets to possess the land
    • ◦ - IN AL: debtor has 1 YEAR after the sale
  245. what is the idea of lateral support and excavation

    • if land is improved and an adjacent landowner's excavation causes that improved land to cave in, the adjacent LO is only liable if negligent
    • to hold ALO strictly liable, the P must prove that the improved land would have collapsed, due to the D's actions, even if it had never been improved upon

    • what is the riparian doctrine

    • water belongs to those who own the land bordering the water course

  246. who are ripariads

    those who share the right of reasonable use of the water

  247. when will one riparian be liable to another

    when her use unreasonably interferes with another's use

  248. what is the prior appropriation doctrine

    the water belongs initially to the state but the right to divert it and use it can be acquired by an individual, regardless if he happens to be a riparian owner

  249. how are the rights to water determined
    • ◦ - by priority of beneficial use, with the norm being first in time, first in right
    • ◦ - any productive or beneficial use of the water, like agriculture, is sufficient to create the appropriation right
  250. what is percolating water

    • it is ground water, water under the surface of the earth, that is not confined to a known channel
    • the surface owner is entitled to make reasonable use of the ground water but must not be wasteful

  251. what is surface water

    • it is a nemesis, a common enemy, and comes from rain, springs or melting snow that has yet to reach a natural watercourse or basin
    • landowner can do what he needs to get rid of it as long as he does not cause unnecessary harm to other's land

  252. what is trespass

    it is an invasion of land by a tangible, physical object

  253. what is a private nuisance

    • it is a substantial and unreasonable interference with another's use and enjoyment of their land
    • it can be odors, noises, dust- doesn't have to be something tangible

  254. Note: a nuisance is looked at objectively

    the hypersensitive plaintiff will not prevail

  255. what is eminent domain

    the government's 5th amendment power to take private property for public us in exchange for just compensation

  256. what is an explicit taking

    the govt directly condemns your land

  257. what is an implicit or regulatory taking

    it is some regulation that, although not intended to be a taking, has the same effect

  258. what are the remedies for a regulatory taking

    govt compensates the owner, like in an explicit taking, or the regulation is terminated and the owner is paid for damages occurred while the regulation was in place

  259. what is zoning

    • pursuant to the govt's police powers, they may enact statutes to reasonably control land use

    • what is the variance in zoning
    • ◦ it is the principal means to achieve flexibility in zoning and the proponent must show:
    • ◦ - undue hardship AND
    • ◦ - the variance won't decrease neighboring property values
  260. what is a non-conforming use

    a once lawful, existing use now is deemed nonconforming by a new zoning ordinance; it cannot be eliminated all at once unless just compensation is paid, otherwise it could be deemed an unconstitutional taking

  261. what are unconstitutional exactions

    those amenities the govt seeks in exchange for granting permission to build

  262. Govt will issue permit for subdivision if you agree to put up streetlights on the new roads you build in it. Is this an unconstitutional exaction?
    to pass scrutiny, the exaction must be reasonably related, both in nature and in scope, to the impact on the proposed development
  263. what is a promissory restraint
    provides that the grantee promises to not transfer her interest in a life estate
  264. what is a disabling restraint
    withholds the grantee from transferring her interests- this is void
  265. what is a forfeiture restraint
    provides that if grantee attempts to transfer her interest, it is forfeited to another- this is valid if grantee has a life estate
  266. who does a springing interest involve
    taking from a transferor
  267. who does a shifting interest involve
    taking from another transferee
  268. what is the effect of a partial eviction by the landlord
    • it relieves the tenant of the obligation to pay rent for the entire premises
    • it occurs when T is evicted from only part of the leased premises while still being in possession of part of the premises
  269. what is partial eviction by paramount title holder
    this results in an apportionment of rent; T has to pay for what part of the property he still possesses
  270. what is the difference between an easement in gross and an easement appurtenant
    • an easement in gross only has a servient estate and does not have a dominant one
    • an easement appurtenant has both types of estates
  271. what does it mean when an easement is surcharged
    the easement's legal scope has been exceeded
  272. how is a profit different than an easement
    you can take from the soil but you cannot possess and enjoy the land when you have a profit
  273. which of these is not a nonpossessory interest
    - easement
    - profit
    - license
    a license- there is no interest in the lane
  274. does this sever a joint tenancy?

    intervivos conveyance by one
    yes
  275. does this sever a joint tenancy?
    lien theory mortgage by one
    no
  276. does this sever a joint tenancy?
    testamentary disposition by one
    no
  277. does this sever a joint tenancy?
    lien theory mortgage by one
    yes
  278. in a title theory juris, when does the mortgagee take possession?
    on default
  279. in a lien theory juris, when does the mortgagee take possession?
    not on default
  280. in a intermediate theory juris, when does the mortgagee take possession?
    on default
  281. when does a power of sale apply
    only to deeds of trust or a security interest
  282. what is a purchase money mortgage and what is its priority
    • a purchase money mortgage is a mortgage given to a vendor of the property as part of the purchase price or a 3d party who lends to allow the buyer to purchase
    • a vendor PMM has priority over a 3d party PMM
    • Any kind of PMM will have priority over a prior non-PMM, even if the PMM had not recorded, if against the same mortgagor
  283. what are the present covenants to title

    SEC
    seisin, conveyance, encumbrance
  284. what are the future covenants

    future quiet war
    future assurances, quiet title, warranty
  285. Notes about recording statutes
    • Notice- not valid w/o notice, unless recorded
    • Race-Notice- not valid w/o notice, first recorded
    • Race- first recorded wins w/ no mention of notice
  286. Deed must identify land to be conveyed; if deed lacks clear evidence, what order will court look to other descriptive terms
    • 1- natural monuments
    • 2- artificial monuments
    • 3- course measurements over distance measurements
    • 4- the name of the property or listed acreage

What would you like to do?

Home > Flashcards > Print Preview