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  1. Property 
    Freehold Estates

    Present possessory interests
    *Fee Simple Absolute
    *Defeasible Fees
        **Fee Simple Determinable
        **Fee Simple Subject to Condt'n Subsq't
        **Fee simple subject to executory interest
    *Life Estate
    • FSA - absolute interest in land- no direct restraint on alienation allowed
    • FSD - rt of reverter - "for so long as" "until" "during" "while" 
    • FSCS - rt of reentry - "upon condition that" "provided that" "but if" PLUS grantor expressly carves out rt of reentry
    • FS Subj Exec Intrst - to third party (RAP applies)
    • Life Estate - rt reversion/remainder - forfeiture restriction on alienation is valid
  2. Property 
    Freehold Estates

    Future Interests
    In grantor 
    *possibility of reverter
    *rt of re-entry

    In Grantee/3d person
    *executory interest
       **indefeasibly vested
       **vested remainder subject to open
       **vested subject to complete defeasance/total divestment
       **contingent remainder
    • grantor 
    • reverter - automatically ends FSD by operation of law
    • rt of reentry - holder must do something to retake the property (NOT automatic)
    • reversion - held by grantor, follows life estate

    • grantee/3dP
    • executory interest - RAP applies 
    •   springing - goes back to grantor - A>B &         heirs when B marries C 
    •    shifting - to 3d party - A>B life, then C &       heirs, but if C predecease B, then to D 
    • remainder
    • indefeasibly vested - remainder certain - A>B for life, remainder to C
    • vested subj to open - class gift, closes when any class member can take; predeceased members are eliminated, unless anti-lapse - A -> A's children
    • vested subj to complete defeasance/divestment - subject to condition subsequent - A for life, then B & heirs, but if ... then to C & heirs
    • contingent remainder - subj to condition precedent - unborn/ascertained persons - O>A for life, then B & heirs if B survives A
  3. Property 
    Freehold Estates 

    • Waste
    •   affirmative/voluntary - affirmative act beyond rt of maintenance causes harm to premises (change of use/depletion of natural resources)
    •   permissive - fail to maintain - obligation limited to amount of rent/profits, or reasonable rental value if LT using land. No income & LT not using land - no obligation
    •      repairs - LT must make ordinary repairs
    •     taxes - LT pays
    •     mortgage - LT pays interest, remainderman pays principal
    •     insurance - NOT LT's obligation
    •   ameliorative - LT alters prop substantially but increase value of land (lia unless changed conditions made prop worthless)
    • Fixtures - chattel once affixed becomes part of prop; can't be removed by tenant/seller - look @ 
    • 1) degree of attachment, 
    • 2)Custom (normal to take?)
    • 3) degree of harm to premises on removal
    • 4) trade/biz fixtures can ALWAYS be removed
  4. Property 
    Freehold Estates

    Doctrine of Worthier Title
    Restraints on Alienation
    • doctrine of worthier title - remainder in grantor's heirs is invalid & becomes reversion in grantor [A>B for life, then to heirs of A = A has reversion]
    • restraint on alienation - disabling restraints (no transfer allowed) = invalid; all restraints on fee simple = void; rt of 1st refusal OK
    • RAP - no interests will be valid unless it vests, if it is going to vest at all, within 21 years after some life in being who was alive at the moment the conveyance was made  
    •    *applies to: exectory interests, contingent remainders, vested remainders subject to open, options to purchase [charity>charity exception!]
    •    steps -[create, kill, count - if might not vest w/in 21 years>] 1) last person mentioned by proper name & all prior parties take, 2) next sub'qt party not mentioned by proper name takes, 3) all additional parties lose & prop reverts back to Grantor or Grantor's heirs 
    •    remember! - fertile octogenarian; age contingency beyond 21 years in open class!; unborn widow
  5. Property
    Concurrent interests

    Joint tenancy (TTIP)
         k for sale
    Tenancy in Common
    Tenancy by the Entirety

    Rts & Duties
    • JT - rt of survivorship - 4 unities must be present @ time of creation - time, title, interest, possession 
    •    Severance - when any 1 of the unities disturbed > TIC
    •    mortgage - title theory - severs; lien - no severance
    •    k for sale - severs when K signed (equitable conversion)

    • TIC - default - only possession needed
    • TBE - 4 unities + marriage [any grant of JT to married couple presumed TBE]
    •    NO rt of partition & NOT severable by unilateral act of 1 co-tenant

    • Rts & Duties 
    • possession
    • rent from co-tenant in exclusive possession (except ouster)/3d parties
    • carrying costs
    • repairs - rt of contribution
    • improvements
    • waste (all 3)
    • partition - action to split property
  6. Property

    Types of L/T relationships
       tenancy for years
       periodic tenancy
       tenancy at will
       tenancy at sufferance
    • years - fixed period of time, automatically terminates at the end of the tenancy [SoF]
    • periodic - continues for successive periods until terminate by proper notice (must give notice one full period in advance & terminate at end of a period) - express/imp'd - lease w/no mention of duration
    • at will - terminable at will by either
    • at sufferance (holdover) - it T continues in possession after rt has ended, LL may evict, or bind to new periodic tenancy
  7. Prop

    Tenant's Duties
    Not to use premises for illegal purpose
    pay rent
    abandonment by T

    LL Duties
    deliver possession
    implied covenant of quiet enjoyment
       actual eviction
       partial eviction
       constructive eviction 
    Implied warranty of habitability
    • repair - T can't damage (commit waste) on leased premises (includes affirmative & permissive waste) - must promptly report deficiencies to LL
    • no use for illegal purpose - LL can terminate lease or obtain damages & injunction 
    • pay rent - ends when T effectively surrenders prop to LL
    • abandonment by T - if T unjustifiably abandons, LL has duty to mitigate by seeking to relet

    • LL Duties
    • deliver possession
    • quiet enjoyment - implied that LL won't interfere w/T's quiet enjoyment
    •    actual eviction - LL excludes T from entire premises; eliminates T's duty to pay rent
    •    partial eviction - T physically excluded from part of leased premises; if by LL, T no need to pay rent, if 3d pty, T liable for reasonable rental value
    •    Constructive - LL does something/fails to do something supposed to do that renders premises uninhabitable. T must vacate w/in reasonable time to get damages
    • habitability - implied covenant in all - nonwaivable - T may terminate lease, make repairs & deduct from rent, abate rent equal to fair rental value, or remain in possession, pay rent & sue for damages
  8. Prop

    Assignments & Subleases
    • Assignment - complete transfer of entire remaining term on lease
    •   *assignee in privity of estate w/LL & responsible for covenants that run with the land (benefits LL, burdens T w/respect to the land)
    •   *original T still liable under priv of k

    • Sublease - T retains part of remaining term
    •    *sublessee - NOT in priv of estate w LL & NOT personally liable to LL for unpaid rent/covenants
  9. Prop

      In Gross
      Creation [PING]
    Negative [LASSS]

    Termination [END CRAMP]
    • easement - grant of non-possessory interest in land that allows someone to use another's land
    • affirmative - holder entitled to make affirmative use of servient estate
    •    appurtenant - benefits holder in physical use/enjoyment of another tract of land; must have 2 tracts (Dom & Serv) 
    •       **transfers w/land, regardless of whether mentioned in conveyance; burden transfers unless BFP buys w/o A, C, I notice

    •  in gross - easement benefits holder rather than another parcel; NOT transferable unless for commercial/economic purpose
    •   creation [ping] 
    •      *prescription - like adv poss'n
    •      *implication - previous use apparent & reasonably necessary (parties expected use to survive division - must've been 1 prop at one time)
    •       *necessity - owner of serv estate can choose a reasonable location for easement (must've been 1 prop at one time)
    •       *grant - express grant in writing & signed by holder of servient if >1yr (SoF)

    • Negative - [LASSS] - holder can stop servient estate from engaging in activity: light, air, subadjacent/lateral support, streamwater (CA - also scenic view)
    •    Creation - only by writing signed by grantor

    • Termination [END CRAMP]
    • estoppel - owner of serv estate change position in reliance
    • necessity - end of necessity
    • destruction of servient estate
    • condemnation of servient estate
    • release - writing [SoF] & comply w/deed formalities
    • abandonment - holder - phys act shows intent to permanently abandon
    • merger 
    • prescription
  10. Prop

       Requirement for Burden to Run [WITHN]
         horizontal & vertical privity
       Requirements for benefit to run [WITV]
    Equitable Servitude
       Requirement for burden to run [WITN]
       Requirement for benefit to run [WIT]
    negative servitude
    defenses (5)
    • License - limit priv to use land; can be revoked at will 
    •     estoppel - $ spent on prop in furtherance of oral license, irrevocable
    •     coupled w/interest - irrevocable as long as interest lasts
    •     invalid easement -> license

    profits - rt to go on land & take away natural resource (implied easement comes w/it)

    • covenants - k limit/promise to do/not do something related to land; both burden & benefit must run to be binding on successors
    •   for burden to run - WITHN-successor in interest to burdened estate will be bound - writing, intent (that successors be bound), Touch & concern, Notice (ACI) &
    •      Horizontal priv - @ time og parties entered into covenant, must have shared some interest in land independent of covenant (grantor-grantee)
    •     Vertical priv - successor in interest to covenanting party must hold entire durational interests held by covenantor @ time made 
    •  Benefit run - WITV - promisee's successor can enforce - writing, intent, touch & concern, vertical privity
    • remedy - only $ damages

    • Equitable Servitude - promise that equity will enforce against successors, accompanied by injunctive relief 
    •    burden to run - writing, intent, touch & concern, notice (ACI)
    •    benefit run - writing, intent, touch & concern
    • negative servitude - can be implied from common scheme or development; need 1) common scheme by subdivider, 2) notice of promise (A, I, R)
    • defenses - unclean hands, acquiescence, estoppel, laches, changed conditions
  11. Prop

    Land Sale k
      Exception - Part Performance
      equitable conversion
      marketable title
      buyer remedies (3)
    • land sale k - exists from moment signed until deed transferred at closing
    •   required - SoF -writing, signed by party sued,  include: descrip, names & price & must state some consideration
    •   part perform - oral k ok if part perfm (2/3) - 1) part/full pmt, 2) possession, 3) valuable improvements to land
    •   equitable conversion -once k signed, buyer must pay k price & bears ROL, unless seller at fault
    •   marketable title @ closing- every k implies - NO adverse poss'n, encumbrance, zoning violation, defect in chain of title
    • Buyer remedies - rescission, damages, specific performance
  12. Prop

        No description?
        Order of priority for conflicting descrip
        No ID of parties?
        Title passes...
        To 3d parties
    • Deed reqts - execution, delivery & acceptance
    • Execution - SoF - writing signed by grantor & unambiguous descrip of land
    •   No descrip - deed void unless grantee given authority to fill in descrip & did
    •   order of priority for conflicting descrip - 1) natural monuments, 2) artificial monuments, 3) courses (eg angles), 4) distances, 5) name, 6) quantity (eg 5 acres)
    •   no ID parties - ct presume that person taking delivery has auth to fill in name & if does, valid

    • delivery - intent of grantor - words/act by G that deed to have present operative legal effect to transfer title; G must relinquish control; recording gives presumption of intent
    •    title passes - upon delivery - can't be cancelled/revoked after delivery
    •    conditions
    •      express on death of G - if says won't pass until G's death, creates present possessory life estate in G and future estate in grantee
    •      oral condition - disregarded & delivery absolute
    •   to 3d parties - w/instruct to give to grantee = delivery; w/instruct to give upon G's later instruct NO delivery; to agent of grantee = delivery; to agent of G = NO delivery, G retain power to recall deed

    acceptance - presumed
  13. prop

       General warranty
          covenants of title (6)
       special warranty
    • General warranty - all covenants for title against defects 
    •    covenants of title
    •        seisin - G promises owns land purports to convey
    •        rt to convey 
    •        against encumbrances
    •           1st 3 - don't run w/land
    •        against quiet enjoyment - that grantee won't be disturbed by 3dP who previously had possession & paramount title than G's
    •        of warranty - promise to defend grantee should there be any lawful claim of title by others
    •        of further assurances - perform acts reasonably nec'y to perfect title
    •           - last 3 - run with land
    • special warranty - all cov'ts for title & promises that S hasn't sold same estate to someone else 
    • quitclaim - conveys whatever interest G has & no covenants of title warranted/implied
  14. Prop

       Notice Statute
       race notice
       BFP shelter R
    Estoppel by deed
    • Notice - subsequent BFP wins over prior grantee who fails to record - "w/o notice" or "in good faith" 
    • race notice - last BFP who took w/o notice wins IF he records before challenger - key words: "w/o notice" or "in good faith" & "recorded 1st" 
    • race -whoever records first wins - NO words "in good faith" or "notice" 
    • BFP Shelter R - anyone who takes from BFP is sheltered by their lack of notice (NO protection for ppl who owned prop prior) 
    • estoppel by deed - when person executes a deed purporting to convey prop they don't have, but subsequently get title to, then subsequently acquired deed will pass to grantee (NOT if quitclaim!)
  15. Prop

      Equitable mortgage
      parties rts after creation 
      by mortgagee
        holder in due course [DENG-V]
        defenses [MAD FIFI4]
      by mortgagor
    • mortgage - conveyance of security interest in land; in writing for legal
    •   equitable mortgage - deed given for "security purposes" = equitable mortgage & creditor must foreclose before he can sell prop
    •   parties rts - debtor/mortgagor - title & rt to possess; creditor/mortgagee - lien 
    • transfer - all parties to mort can transfer; note & mortgage must pass to same person to be complete
    •   by mortgagee - creditor/mortgagee can transfer by - endorsing note & deliver to transferee OR execute doc of assignment
    •      holder in due course - if note endorsed & delivered, can be ^; need: Delivered, Endorsed, Negotiable, Good Faith, Value 
    •       defenses - ^ subj to defenses - Material Alteration; Duress; FIF - fraud in factum (lie about instrument); Incapacity; Illegality; Infancy; Insolvency
    •   by mortgagor 
    •      Assume mortgage - transferee signes assumption agmt; primarily lia to lender, OG mortgagor is secondarily liable
    •      subj to mortgage - no assumpt agmt, transferee takes subj to mort & NOT personally lia on loan; OG mortgagor - primarily/personally liable
  16. Prop 


    Effect of foreclosure
       possession before foreclosure
          lien theory
          title theory
       effect on interests
          exceptions (3)
          in equity
          statutory redemption
    • possession before foreclosure
    •    lien theory - mortgagee considered holder of security interest only & mortgagor deemed owner of land until foreclosure; mortgagee may not have possession before foreclosure
    •    title theory - legal title in mortgagee until satisfied/foreclosed & mortgagee entitled to possession upon demand at any time
    • effectjunior - terminates all interests junior to mortgage being foreclosed (& can no longer look to prop for satisfaction)
    •    senior - doesn't affect any senior intrst to mort being foreclosed; senior intrst stay attached to land & buyer at sale takes subj to that mortgage
    • priorities - creditors must record; if not, no priority; first in time, first in right
    •    except - subordination agmt - b/w senior & junior senior may agree to subord priority to junior creditor
    •      modification - of senior mortgage makes more burdensome; junior gets priority over modification 
    •      purchase $ mortgage - receive priority over any other executed at or about same time; even if others are recorded 1st 

    redemption in equity - prior to foreclose; statutory - after foreclosure
  17. Property

    Adverse Possession [COAH]

    Support & H2O rights
    H2o rights
       prior appropriation
       underground h2o
       surface h2o
    • AP - continuous for statutory period, open & notorious, actual, adverse to L/O 
    •    constructive - expands kernel of act poss'n to full extent of color of title, but actual poss'n must be reasonable in relation to whole & unitary
    •     disabilities - infancy, incarceration, insanity (SOL won't run only if disability existed @ time AP began!)
    • remedies - specific performance, injunction

    • support
    • lateral - from sides
    •    of land in natural state - L/O rt to have land supported by adjoining L/Os & strict liability if land not supported
    •    of land w/buildings - adjoining L/O strict lia only if land would've collapsed anyway, even w/buildings; otherwise, neg'ce standard 

    subajacent - from surface/bottom- land w/buildings - surface owners rt to have land supported from bottom w/buildings existing on date subajacent estate created & strict lia if land not supported; neg'ce for subsequently erected buildings

    • water 
    •   riparian rts - riparian owner may use all water needed for reasonable use
    •    prior appropriation - priority in time to make beneficial use determines all rights
    •    underground water - L/O entitled to reasonable use on prop, no exporting
    •    surface water - 1) natural flow - can't make changes to natural flow; 2) common enemy - L/O can do whatever wants w/floodwater
Card Set:
2015-07-24 01:20:12
property law

property law
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