Term
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Definition
absolute indefinite ownership
O > A in fee simple absolute |
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Term
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Definition
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Term
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Definition
Ex: O > A for so long as...(automatic reversion to O)
"for so long as", "while", "during", "unitl"
Automatic reversion to O; possibility of reverter |
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Term
| Fee Simple Subject to Condition Subsequent |
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Definition
Ex: O > A but, if ...(then O has right to enter)
"upon condition that" "provided that" "but, if" |
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Term
| Fee Simple Subject to Executory Limitation |
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Definition
Passes to a third party on the happening of a stated event
SUBJECT TO RAP |
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Term
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Definition
| measured by the life of one or more persons |
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Term
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Definition
1. Make necessary repairs
2. Pay interest and taxes; NOT principal
3. Don't commit waste
-Must not harm the interest of the remaindermen |
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Term
| Future Interests - In Grantor |
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Definition
1. Possibility of reverter
2. Right of entry
3. Reversion |
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Term
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Definition
| Follows a fee simple determinable-ripens into possessory estate upon the happening of an event |
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Term
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Definition
| Follows a fee simple subject to condition subsequent |
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Term
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Definition
| An estate that remains in the grantor who has conveyed a lessor estate than that owned by the grantor (life estate) |
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Term
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Definition
| These are not vested for RAP purposes |
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Term
| Springing executory interest |
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Definition
| grantor has the property until condition happens |
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Term
| Shifting executory interest |
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Definition
| Grantee has the property, and it switches to a different grantee when condition happens |
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Term
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Definition
passes to a 3rd person upon the natural expiration of the proceeding estate
Ex: O > A for life, then to B |
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Term
| Indefeasibly vested remainder |
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Definition
| in an existing person, not subject to any condition precedent or subject to divestment |
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Term
| Vested remainder subject to open |
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Definition
| Class gifts: class closes when first member is eligible to take: babies in gestation when class closes are considered members of class |
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Term
| Vested remainder subject to total divestment |
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Definition
| The remainderman is in existence, but his or her right is subject to an executory interest, power of appointment or re-entry of condition subsequent |
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Term
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Definition
Subject to RAP
Unascertained or unborn people OR subject to a condition precedent |
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Term
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Definition
If one person acquires all present and future interests in land EXCEPT a contingent remainder, the contingent remainder is destroyed
BUT if life estate and next vested interest were created by the same instrument, no merger (would thwart grantor's intent)
Ex: X conveys "To Y for life, then to Z's children." Z has no children. X then acquires Y's LE and already has a reversion. Merger occurs and Z's unborn children's interests are destroyed |
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Term
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Definition
| If you convey "to A for life, then A's heirs," this just becomes a straight conveyance to A. |
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Term
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Definition
A remainder in the grantors "heirs" is invalid and becomes a reversion. ONLY applies to inter vivos transfers, okay if by will
Ex: A conveys: "A to B for life, then to A's heirs" Now becomes "B for life" reversion goes to A. |
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Term
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Definition
| Not valid, against public policy |
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Term
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Definition
Restraints on a fee simple are void unless for a limited time and reasonable purpose
-Restraints of life estates and other future interests are valid |
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Term
| Rule Against Perpetuities |
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Definition
Must vest or fail within 21 years after the death of some person in being at the time the interest was created
*Applies only to non-vested interests, contingent remianders
*Doesn't apply to charities |
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Term
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Definition
| 4 Unities: Time, Title, Interest, Possession |
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Term
| Severance of Joint Tenancy |
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Definition
-Conveyance of entire interest will sever JT and will become TiC
-Lease to third parties: may sever, states are split
-Judgment liens will sever JT at foreclosure sale; but won't affect non-debtor tenant's interest |
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Term
Mortgages on Joint Tenancy:
-Lien Theory
-Title Theory |
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Definition
Lien Theory: (maj.) = no severance of JT
Title Theory: (min.) = severance of JT |
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Term
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Definition
| JT may obtain a partition if desire to sever JT |
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Term
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Definition
CA does not follow
-Same as JT but must be married
-Interest cannot be severed w/o the others permission
-Severance: death, divorce, mutual agreement
-No severance when a deed or mortgage executed by one spouse |
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Term
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Definition
If JT devises, presumed to be tenants in Common
-Each tenant has a distinct, proprotionate, undivided interest in the preoprty w/NO right of survivorship
-Each tenant can convey their interest away |
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Term
| Rents & Profits: can retain profits/rents from a tenatn's OWN use of property and do not need to share such profits with tenants out of possession nor reimburse them for the rental value of his use unless |
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Definition
1. Ouster
2. Agreement to share
3. Rents and profits from 3p (must share net rents)
4. Depletion of natural resources |
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Term
| Rights and Duties of Co-Tenants: Contributions |
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Definition
1. For necessary repairs, but must first notify other tenants
2. Not for improvements to hte property, will get credit at partition
3. Can get reimbursed for taxes or mortgage payments UNLESS co-tenant is in sole possession. Then can only get expenditures minus rental value of her use. |
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Term
| Creation of a Periodic Tenancy |
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Definition
1. Express agreement
2. Implication (by conduct)
3. Operation of Law: T remains after lease expires and LL treats as periodic tenancy |
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Term
| Termination of periodic tenancy |
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Definition
1. Renews automatically unless terminated
2. Requires one period's termination notice, if more than 1 year then 6 months notice |
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Term
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Definition
T wrongfully remains in possession after expiration of lawful tenancy
1. Termination: when LL evicts, notice not required
2. Holdover doctrine: if T remains, LL can:
a. evict
b. Hold T to new periodic tenancy on same terms as old lease; can increase rent if T on notice |
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Term
| Tenant's Duties: Affirmative waste |
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Definition
| cannot damage or exploit natural resources |
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Term
| Tenant's Duties: Permissive waste |
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Definition
| T must take reasonable steps to protect premises from damage |
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Term
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Definition
if T promises to make repairs then they are responsible for ordinary wear and tear unless expressly excluded
1. No duty to repair structural damages
2. T must report problems |
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Term
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Definition
CL: Duty to pay rent is independent of LL's duties and runs w/land (i.e. duty to pay even if other covenants ahve been breached
Modern trend: duties are dependent
-if T surrenders, and LL accepts, duty terminates |
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Term
| LL's remedies w/ a duty to pay rent from the T |
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Definition
CL: resulted in cause of action, money damages
Modern: LL can terminate/evict T or sue |
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Term
| Abandonment of premises by T: |
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Definition
LL must mitigate damages by re-letting to another T. T liable for any deficiency in between occupancy unless surrender and LL accept
Note: if LL has not accepted T's surrender, T liable for difference b/w promised rent and FMV
Note: if LL has accepted T's surrender, T free from liability |
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Term
| LL's Duty to Deliver Possession |
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Definition
Majority (English Rule): actual possession. If breach, Tcan recover damages until possession
Minority (American Rule): constructive possession (title, papers). If Breach, T's problem |
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Term
| Implied Warrant of Habitability |
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Definition
| LL must provide premises that are reasonably suited for residential habitability. |
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Term
| T's rights if L breaches implied warrant of habitability |
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Definition
1. Can terminate lease
2. Make repairs adn subtract cost from rent (must notify)
3. Abate the rent to FMV w/ defects
4. Keep paying full rent and sue for damages |
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Term
| Covenant of Quiet Enjoyment |
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Definition
| Every lease has an implied covenant that neither the LL nor a paramount owner will interfere with T's quiet enjoyment and use of property |
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Term
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Definition
| LL excludes T from the entire leased premises. Terminates T's obligation to pay rent. |
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Term
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Definition
LL or 3p excludes T from part of premises.
If by LL: T's duty to pay rent is excused
If by 3p: T must pay a proportionate amount o frent |
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Term
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Definition
LL does something/fails to do something that makes property uninhabitable
1. T may terminate lease and sue
2. T must vacate the premises w/in a reasonable time and sue |
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Term
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Definition
LL evicts T for reporting housing/building code violations w/n 3-6 months
-LL not entitled to self-help |
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Term
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Definition
| T's liability for rent is extinguished; if condemnation partial/temporary, T must still pay rent but will get a portion of condemnation award |
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Term
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Definition
| Absent a restructionin the lease, T may freely assign or sublease. Lease terms will be construed narrowly against the drafter |
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Term
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Definition
| Complete transfer of the remaining term on leasehold |
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Term
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Definition
| T liable for all covenants/agreements in original lease |
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Term
| LL+T2 (assignee) privity of estate |
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Definition
| T2 liable for covenants that run with the land (pay rent to LL) but LL can sue T for unpaid rent |
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Term
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Definition
1. LL+T privity of K still
2. LL _ T2 privity of estate: privity ends and only for period when in actual possession |
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Term
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Definition
partial transfer but original T still retains an interest in the remaining term on the lease. No privity of estate or K: LL is a 3p beneficiary of the K between T and sublessee
1. Sublessee pays rent to T who then pays LL
2. Sublessee not liable for rent to LL unless exressly assumes
3. If rent not paid, LL can terminate main lease, which will terminate sublease also |
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Term
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Definition
| Subsessee cannot enforce any covenants in the main lease except a warranty of habitability |
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Term
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Definition
a covenant against assgignments/subleases is waived if:
1. LL was aware of sublease AND
2. Did not object |
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Term
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Definition
| Chattles that are so affixed/incorporated into the structure that they stop becoming personal property and become real property. Removal: T can remove fixtures if removal would not damage the premises or the chattel |
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Term
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Definition
An easement is a grant/privilege of an interst in land that allows someone to use the land of another. Right of us, not of possession.
a. Dominant tenement: the estate benefited by easement
b. Servient tenement: the estate that is burdened |
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Term
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Definition
| Benefits its holder in the physical use/enjoyment of another's land |
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Term
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Definition
| holder acquires a right to use another's land independent of his possession of another tract of land |
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Term
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Definition
| formal required of a deed (SOF): writing, signed by grantor, adequately described grantee, description of property |
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Term
| Creation of an easement by implication, existing use |
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Definition
Arises by an operation of law when:
1. Used prior to division of tract
2. Which was apparent and continuous
3. Reasonably necessary for enjoyment of dominant tenement
4. Parties intended to continue use after divided |
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Term
| Creation of an easement by implication, no existing use but still implied when |
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Definition
1. Subdivision lots sold w/ reference to recorded plat
2. Need to get on land to use profit |
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Term
| Easement by implication, necessity |
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Definition
Courts may grant an easement on a land when it is strictly necessary to enjoyment of the adjacent land
1. Usually when land is divided and there is only one way to access a road or utility line |
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Term
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Definition
1. Open and Notorious
2. Actual and Exclusive
3. Hostile
4. Continuous |
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Term
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Definition
presumed to be of perpetual duration, runs w/ the land
a. includes uses that were foreseeable at the time easement was created
b. Overuse/misuse will nto extinguish the easement (but servient owner may get an injunction)
c. easement holder has duty to repair if sole user |
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Term
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Definition
a. Release
b. Merger
c. Condemnation
d. End of necessity
e. Prescription
f. Abandonment
g. Estopped
h. Stated conditions |
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Term
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Definition
a. Appurtenant
1. Transfer of dominant estate = easement passes w/o notice
2. Transfer of servient estate = passes unless: (1) New owner is BFP for value without (2) actual notice (3) Constructive [record] notice (4) Inquiry [reasonable investigation]
In Gross: for economic commercial use = yes transferrable; for fun = not transferrable |
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Term
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Definition
| Privileges owner to go on the land of another |
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Term
| When will a license not be revocable? |
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Definition
Estoppel: licensee invests money or labor on reliance of license, lasts only until benefit to recoup investment
b. license coupld w/ interest: irrevocable for so long as interest lasts |
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Term
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Definition
entitle holder to go onto the land and remove a resource from the servient tenement (minerals, fish, soil, timber)
1. Same rules for creation and extinguishment EXCEPT can be extinguished by overuse
2. Easement implied in every profit to enter land in order to remove the resource |
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Term
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Definition
| non-possessory interst in land that obligates holder to do something on the land (affirmative covenant) or promise not to do something on the land (negative covenant) |
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Term
| Remedy for breach of covenant |
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Definition
| Damages v. equitable servitude: injunction |
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Term
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Definition
Writing: original promise in writing
Intent: original parties intended that successor be bound
Touch and Concern and Land: relate to use or enjoyment of land |
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Term
| No writing needed for equitable servitudes when... |
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Definition
When sales in subdivision began, developer had a plan that all parcels subject to restriction shown by:
1. Recorded plat, general pattern of restrictions, and oral representations to early buyers AND
2. Notice to buyers |
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Term
| Defenses to equitable servitude |
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Definition
| All CD Defenses available: Unclean hands, laches, estoppel, holder acquiesced to violations, neighborhood has changed |
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Term
| Termination of equitable servitude |
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Definition
| Written release, merger, condemnation |
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Term
| Lateral support for water rights: Natural State |
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Definition
| Support of land in natural state > SL offense if excavation causes adjacent land to subside |
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Term
| Lateral support for water rights: support of land w/ buildings |
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Definition
| Other person will be held to be negligent, unless would have collapsed despite buildings |
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Term
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Definition
Underground occupant of land (mining company) must support surface and buildings existing on date subjacent estate established
-If original buildings: SL
-If new buildings after subjacent estate established > Negligence |
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Term
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Definition
| No advantage is gained by priority of use. Each riparian owner is entitled to only so much of the water as he can put to beneficial use upon his land, with due regard for the equal rights of the other riparian owners, and w/o regard to how long the owner has been using the water |
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Term
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Definition
| Can't cause material or substantial diminution in the natural flow of water's quantity, quality or velocity |
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Term
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Definition
| all riparians have a right to reasonable use |
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Term
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Definition
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Term
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Definition
Absolute ownership: owner can take all they want
Reasonable use: must not harm other owners, must be reasonable
Correlative rights (CA): owners of land use as joint tenatns, each with reasonable use
Appropriative rights: priority of use is determinative |
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Term
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Definition
Natural flow: owners cannot alter natural drainage pattern
Common enemy: do whatever you want
Reasonable use: balancing of harms |
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Term
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Definition
Statute of Frauds: Ks must be in writing
1. Signed by party to be charged
2. Contain essential terms: parties, price, description of land
3. Oral agreement OK if:
1. part or full payment
2. possession
3. valuable improvements |
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Term
| Specific performance w/ land sale Ks |
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Definition
| S or B can get specific performance |
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Term
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Definition
| Once land sale K is signed, B is equitable owner (has K rights against S) and S retains legal title (right to get paid) |
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Term
| ROL w/ Equitable Conversion |
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Definition
| Once signed, but before closing, B bears the risk of loss. S must credit B for any insurance coverage |
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Term
| Death w/ Equitable Conversion |
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Definition
if S dies: title passes to S's heirs, but they must give title to B at closing
If B dies: B's heirs can demand conveyance of land at closing |
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Term
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Definition
| Every K contains implied warrant S will provide marketable title at closing |
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Term
| Things that make title unmarketable |
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Definition
1. Adverse possession
2. Future intersts in unborn/unascertained parties
3. Significant encumbrances (mortages, easements, liens)
4. Existing zoning violations
5. Anything posing risk of litigation |
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Term
| IF title not marketable.. |
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Definition
B must notify S and give him reasonable time to cure. If no cure, B's remeides include:
1. Recission
2. Damages (differecen between K price and FMV)
3. Specific Performance
4. If B still wants land, court will order abatement of price |
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Term
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Definition
| transfer an interest in real property. Once buyer accepts deed, the land sale K and the deed merge: acceptance by B discharges S of all liability under K |
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Term
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Definition
1. Writing
2. Signed by granor
3. Adequately describes grantee
4. Sufficient description of the property |
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Term
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Definition
| refers to the intent of the grantor: words or conduct by grantor that deed was to have present operative legal effect to immediately transfer title |
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Term
| Express conditions of Grantor's death |
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Definition
| a propertly executed deed that provides title will not pass until grantor's death is valid and creates a future remainder interest in the grantee. Retains LE for grantor |
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Term
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Definition
| oral conditions made not in deed are disregarded and delivery is absolute |
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Term
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Definition
Delivery to:
1. Agent of grantee = delivery
2. Agent of grantor = no delivery b/c grantor retains control and can revoke |
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Term
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Definition
| presumed absent some action by grantee to reject |
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Term
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Definition
| Contains all covenants of title |
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Term
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Definition
| contains covenants of title and promises hasn't sold same estate to someone else |
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Term
| Rights in Special Warrant Deed |
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Definition
1. Seisin: promise to own land (title + possession)
2. Right to convey (title enough)
3. Quiet enjoyment
4. Against encumbrances
5. Warranty: promises to defend against reasonable claims
6. Further assurances: promise to act reasonably necessary to perfect title |
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Term
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Definition
| conveys whatever interest grantor has |
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Term
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Definition
| When a person executes a deed purporting to convey property they dont' have and the person subsequently gets title to property, then subsequently acquired deed will pass to grantee. Doesn't happen if quitclaim deed! |
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Term
| 3 types of recording statutes |
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Definition
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Term
|
Definition
| whoever records first wins; regardless of their status! |
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Term
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Definition
| last BFP who took w/o notice wins IF records first |
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Term
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Definition
| last BFP without notice always wins regardless of recordation |
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Term
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Definition
| took without notice and paid valuable consideration |
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Term
| Purchaser for BFP includes |
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Definition
| mortagees, transferees from BFP, but DOESN'T include donees, assignees, heirs, judgment creditors |
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Term
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Definition
| Split of authority on whether creditor who records first wins. Majority says NO! |
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Term
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Definition
| anyone who takes from a BFP is sheltered by lack of notice. Exception: will not protect people who owned property before |
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Term
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Definition
| security interest in property |
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Term
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Definition
1. Assumes the mortgage: new buyer is "personally liable"
2. Subject to mortgage: new buyer is not personally liable |
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Term
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Definition
| Allows bank to accelerate debt upon sale of land by the mortagee. If doesn't enforce, will be considered waived by bank. If mortgage sells to 3P w/o consent, can demand full payment |
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Term
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Definition
(MAJ)
Title remains in teh debtor mortgagor and mortgagee only holds a security interest in the proeprty. Mortgagee cannot obtain possession of land until foreclosure |
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Term
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Definition
(MIN)
Title is in the mortagee until mortgage has been fully satisfied. Entitled to possession at any time |
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Term
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Definition
| When property is sold to satisfy a debt |
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Term
| Effect of foreclosure: If Jr. forecloses first... |
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Definition
| Senior doesn't have to be a party to the action |
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Term
| Effect of foreclosure: If Sr. forecloses first |
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Definition
| Jr. must be included (necessary parties). Failure to include junior interests when senior has notice of them results in preservation of that party's interest - can collect its mortgage from senior ($$ it got from the foreclosure sale) or move to foreclose on property |
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Term
| Purchase money lenders... |
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Definition
| have priority even if non-purchase recorded first |
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Term
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Definition
| If sale proceeds from foreclosure sale insufficient, can sue original mortgagor for difference |
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Term
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Definition
| Equitable right to get property back by paying amount due BEFORE foreclosure |
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Term
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Definition
| Statutory right to reclaim AFTER foreclosure sale |
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Term
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Definition
1. Open and Notorious
2. Actual and Exclusive Posession
3. Continuous Posession |
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Term
| Adverse Possession: Future interst, Tacking, Tolling |
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Definition
1. Future interest holders: clock doesn't begin to run until their interest is possessory. Filing lawsuit doesn't stop clock until judgment
2. Tacking: Can tack when privity between both parties
3. Tolling: can toll if owner is a minor or has disability |
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Term
| Notes on Adverse Possession |
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Definition
1. Can't adversley possess against coT unless ouster
2. Adverse possessor not responsible for taxes
3. Public land can't be acquired via adverse possession
4. Recording statutes do NOT apply to adverse possession |
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Term
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Definition
| Substantial/unreasonable interference w/ the P's use/enjoyment of their real property |
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Term
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Definition
| Unreasonable intereference w/ the health, safety, welfare and property rights of the community. Generally brought by city/state unless P suffers (1) damages that are unique and (2) damages beyond ordinary damages that the public incurred |
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