Real Property Helix Flashcards

Present Estate

An interest in land in which the owner has a current right of possession and authority to use and enjoy the property, subject to limitations that arise as a result of the type of interest involved.

Pur autre vie

The type of life estate created when a life tenant conveys his estate to another

Forfeiture

The type of restraint that provides that, if the grantee attempts a transfer of the property, then the grantor would be permitted to reenter and retake the property, or the property would go to a third party.

Remainder

A future interest in favor of a subsequent grantee.

Vested Remainder

The type of remainder given to an ascertainable person that is not subject to any condition precedent and is fully transferable

Contingent Remainder

The type of remainder that exists where a future interest is either transferred to an unascertained person or subject to a condition precedent.R

Rule Against Perpetuities

The common law rule which provides that no interest is valid unless it vests, if at all, within 21 years of some life in being at the creation of the interest.

Contenancy

Ownership or possession of real property by two or more persons simultaneously.

Tenancy in Common

The default type of cotenancy, which has no right of survivorship and is freely transferable.

Joint Tenancy

The type of cotenancy created by words of survivorship in the conveyance and the presence of the unities of possession, interest, time and title.

Tenancy by the Entirety

The type of cotenancy created when the cotenants are legally married and the unities of possession, interest, time , and title are present.

What are the three main types of present estates?

1. ______________

2. ______________

3. ______________

1. Fee simple absolute

2. Defeasible fee estate

3. Life estate

A fee simple absolute is significant in that: (1) it is ______________ in duration; and (2) no ______________ can cut short this right.

1. infinite

2. future interest holder

The two main features of a fee simple determinable are:

1. The estate will end automatically upon the ______________ specified in the conveyance.

2. The future interest is held in the ______________.

1. occurrence of an event

2. grantor

The two requirements to create a fee simple subject to a condition subsequent are:

1. The conveyance must include ______________ that reflects the limited duration of the estate.

2. The future interest must be ______________ in the conveyance.

1. conditional language

2. expressly reserved

What are the three types of waste that a life estate holder is obligated not to commit?

1. ______________

2. ______________

3. ______________

1. Voluntary waste

2. Permissive waste

3. Ameliorative waste

What are the four types of restraints on alienation?

1. ______________

2. ______________

3. ______________

4. ______________

1. Disabling restraint

2. Forfeiture restraint

3. Promissory restraint

4. Restraint void as against public policy or unconstitutional

What are the three main future interests that grantors may hold?

1. ______________

2. ______________

3. ______________

1. Reversion

2. Possibility of reverter

3. Power of termination

The Doctrine of Worthier Title is a common law principle that, where it applies, favors ______________ over conveyance or devise as a means of transferring real property to one’s heirs.

intestate succession

Unlike a remainder, an executory interest does not follow the natural termination of a preceding estate; instead it either (1)______________ the preceding interest, or (2) ______________ that existed after the termination of the preceding interest.

1. divests (cuts short)

2. follows a gap

The rule against perpetuities typically applies to what three types of future interests held by persons other than grantors?

1. ______________

2. ______________

3. ______________

1. Contingent remainders

2. Vested remainders subject to partial divestment (class gifts)

3. Executory interests

What are the four unities required for creation of a joint tenancy?

1. ______________

2. ______________

3. ______________

4. ______________

1. Unity of possession

2. Unity of interest

3. Unity of time

4. Unity of title

Claims of discrimination under the Fair Housing Act (Title VIII of the Civil Rights Act of 1968) are initiated by filing a complaint with ______________.

the U.S. Department of Housing and Urban Development

Where there are conflicts of law related to disputes involving real property, the modern approach is to apply the rule of the state that has the ______________ of the case or a greater interest in the outcome.

more significant relationship to the facts

English Rule

The majority rule concerning the landlord’s duty to deliver possession of the premises to the tenant, which requires the landlord to deliver both the legal right of possession and actual possession.

American Rule

The minority rule concerning the landlord’s duty to deliver possession of the premises to the tenant, which requires the landlord to deliver only the legal right of possession, not actual possession.

Quiet Enjoyment

The covenant implied in every lease, in which the landlord owes the tenant a duty not to interfere with the tenant’s continued right of possession.

Habitability

The warranty implied in a residential lease, in which the landlord has a duty to provide and maintain the premises fit for human occupancy.

Actual Eviction

What occurs where the landlord ousts the tenant from the premises.

Constructive Eviction

What occurs where the tenant moves out because the landlord has substantially interfered with the tenant’s use and enjoyment of the premises.

Condemnation

The taking of leased premises by the government through the exercise of eminent domain.

Real Covenant

An agreement or promise involving how property owner may use the property, which runs with the land and can be enforced by an action at law.

Horizonal Privity

Some shared interest in the property between the parties to a real covenant at the time that the covenant is created, which traditionally was required to enforce the covenant against a subsequent owner.

Vertical Privity

A legal relationship between an original party to a real covenant and a subsequent owner of the property, which traditionally was required to enforce the covenant against a subsequent owner.

Equitable Servitude

An agreement or promise restricting how a property owner may use the property, which can be enforced by an action in equity.

Estoppel as an Equitable Defense

The equitable defense that a burdened landowner can raise to prevent the enforcement of an equitable servitude where: (1) the benefitted landowner makes statements or commits conduct indicating that the servitude will be released or abandoned; (2) the burdened landowner detrimentally relies on those statements or conduct; and (3) it would be inequitable to continue to enforce the servitude.

Easement

An interest in the land of another that grants the holder a limited use or enjoyment.

Reasonable Use

The doctrine of underground water rights under which a landowner may pump as much groundwater as can be used to benefit the land above.

What are the four types of tenancies?

1. ______________

2. ______________

3. ______________

4. ______________

1. Term of years

2. Periodic tenancy

3. Tenancy at will

4. Tenancy at sufferance

For a tenant to make a claim against the landlord for breach of the implied warranty of habitability, all the following are required:

1. There must be a ______________

2. The tenant must vie the landlord ______________

3. the landlord must be allowed a reasonable amount of time to ______________

1. substantial defect

2. notice

3. fix the defect

A tenant commits ameliorative waste where both of the following are met:

1. The tenant makes improvements to the property that ______________ without the landlord’s permission

2. The improvements ______________ value

1. Change its physical character

2. increase the property’s

When a tenant transfers his interest in the leased premises to another, the original tenant remains in privity of contract with the landlord, unless there is a ______________

novation

For common development schemes, the doctrine of implied reciprocal servitude may apply if all the following requirements are met:

1. There was ______________ to create a servitude on all lots

2. The servitude is reciprocal, meaning that it ______________ each lot

3. The servitude is ______________, meaning that it functions as a restriction

4. The owner subjected to the servitude has ______________

1. intent

2. benefits and burdens

3. negative

4. notice of it

A real covenant or equitable servitude can be terminated by one of what six means?

1. ______________

2. ______________

3. ______________

4. ______________

5. ______________

6. ______________

1. Release

2. Abandonment

3. Merger

4. Prescription

5. Condemnation

6. Changed circumstances

What are the five ways that an easement can be created?

1. ______________

2. ______________

3. ______________

4. ______________

5. ______________

1. Expressly

2. By implication

3. By necessity

4. By prescription

5. By estoppel

If the scope of an easement is not expressly defined, then its scope is determined by the following:

1. The ______________ of the parties

2. The ______________ of the use

1. intent

2. reasonableness

What are the seven means by which an easement can be terminated?

1. ______________

2. ______________

3. ______________

4. ______________

5. ______________

6. ______________

7. ______________

1. Release

2. Abandonment

3. Merger

4. Prescription

5. Condemnation

6. Estoppel

7. Destruction

In order for a chattel to become a fixture (and thus part of the real property), all the following must be true:

1. There must be ______________ for the chattel to become a fixture

2. The chattel must be ______________ to the real property

3. Removal of the chattel would cause ______________ to the real property

1. intent

2. permanently attached

3. substantial damage

A constitutional challenge to a zoning ordnance based on ______________ grounds argues that the zoning ordinance is not reasonably related to public health, safety, and welfare and should be deemed arbitrary and capricious.

substantive due process

A constitutional challenge to a zoning ordinance based on ______________ grounds argues that affected property owners in the locality were not given notice and an opportunity to be heard before the new zoning ordnance was adopted.

procedural due process

What are the three doctrines that concern riparian rights?

1. ______________

2. ______________

3. ______________

1. The natural flow doctrine

2. The reasonable use doctrine

3. The prior appropriation doctrine

Statute of Frauds

The rule prescribing certain requirements to many forms of contracts, including most transfers of interest in real property, including the requirement that they be in writing.

Specific Performance

A contractual remedy often granted for breach of an enforceable real estate contract where monetary damages would be inadequate, the breaching party is capable of tendering performance, and there is no equitable reason to deny enforcement.

Rescission

Revocation of a real estate contract sought by the nonbreaching party following a breach (often resulting from a title defect, fraud, or mutual mistake).

Encumbrance

Either a burden on title that a reasonable buyer would not have accepted if she had known of it before signing the real estate contract or a risk of litigation over a possible title defect, which constitutes a breach of the implied covenant to deliver marketable title.

Foreclosure

The legal process that a mortgagee-lender may pursue if the mortgagor-borrower fails to make payments on the mortgage, which, if successful, forces the sale of the real property

Acceleration

A clause in a mortgage that gives the mortgagee-lender the right to demand immediate payment of the full mortgage balance under certain circumstances, typically when the mortgagor-borrower misses on or more payments.

Equitable Redemption

The right that allows a mortgagor-borrower, despite a default, to pay off the mortgage balance before the foreclosure sale in order to retain title to the property.

Lis pendens

A recorded notice typically filed by the lender who initiates foreclosure, which informs all persons that title to the property is in dispute and any subsequent purchasers or interest holders will be bound by the outcome of the foreclosure proceedings

Subrogation

An equitable doctrine that is applicable when, following a mortgage default, a third party who has an interest in the property pays the mortgage in full and obtains the original creditor’s rights as against the debtor and the junior creditors.

As an exception to the statute of frauds for land sale contracts, a party can establish part performance by showing there was an oral agreement, as well as at least two of the following three factors:

1. The buyer is in __________________ possession of the property

2. __________________has been paid to and accepted by the seller

3. __________________were made to the property

1. open and notorious

2. All or part of the purchase price

3. Substantial improvements

Implied in every contract for the sale of real property are the duties to act in good faith and to __________________ the contract’s terms.

timely perform

Under the modern view, most courts will deny punitive damages for breach of a real property sales contract unless the breaching party’s conduct constituted a tort __________________.

for which punitive damages are recoverable

Every contract for the sale of real property, unless otherwise stated, contains an implied covenant that the seller will deliver __________________ to the buyer.

marketable title

Under the doctrine of equitable conversion: (1) the seller has __________________ interest in the land; and (2) the buyer has __________________ in the land.

1. a legal

2. an equitable

A right of first refusal provides that the owner of real property may not transfer an interest in that property to another without allowing the person who holds the right of first refusal to __________________ any offer received.

match

A jurisdiction will follow one of what three mortgage theories?

1. __________________

2. __________________

3. __________________

1. Lien theory

2. Title theory

3. Intermediate theory

What standard of proof must be met to establish that a deed was intended to be a mortgage?

Clear and convincing evidence

A novation is distinguished from an assumption of a mortgage in that an assumption does not necessarily __________________ for the debt.

relieve the (original) borrower of liability

The perfect-tender rule prohibits prepayment of a mortgage without penalty, unless either of the following circumstances applies:

1. The promissory note or mortgage document __________________

2. The mortgagee -lender subsequently __________________

1. allows for prepayment without penalty

2. consents to prepayment without penalty

If, before foreclosure, the borrower causes waste that impairs the lender’s security interest in the property, then the lender has a pre-foreclosure right to seek either:

1. __________________ to correct the damage and prohibit future waste

2. Damages, measured by __________________

1. An injunction

2. the amount of the waste

After a valid foreclosure sale, proceeds from the sale will be applied in the following order:

1. To the __________________ associated with the sale

2. To the balance and interest of __________________

3. To the mortgage obligations owed to any __________________, applied in order of their priority

1. costs

2. the mortgage subject to the foreclosure

3. junior interest holders

In most jurisdictions, for a purchase-money mortgage to have priority over other mortgages or liens on the property, all the following are required:

1. The proceeds must be used for the __________________

2. the mortgagor-borrower must __________________ simultaneously or as part of a continuous transaction

3. The purchase-money mortgage must be properly __________________the deed

1. purchase of the property

2. take title and execute the mortgage

3. recorded immediately after

Adverse Possesion

The doctrine under which title to property can be involuntarily transferred to another when there is possession that is simultaneously (1) actual, (2) open and notorious, (3) hostile, (4) exclusive, (5) continuous, and (6) for the statutory period.

Open and Notorious

The requirement for adverse possession in which the adverse possessor’s use of the land must put the landowner on notice that another is claiming the land.

Hostile

The requirement for adverse possession in which the adverse possessor must occupy the land without the owner’s permission.

Exclusive

The requirement for adverse possession in which the possession must not be shared with the landowner or general public.

Continuous

The requirement for adverse possession in which the adverse possessor exercises control over the land in the same way a reasonable owner would throughout the statutory period.

Tacking

The adding of the time that an initial adverse possessor had possessed the land to the time that a subsequent adverse possessor possessed the same land in order to meet the statutory period for adverse possession, provided that there is privity of possession and continuous adverse use.

Covenant of further assurances

The warranty in a general warranty deed that the grantor will do whatever is reasonably necessary to help the grantee protect his title.

General Warranty Deed

The type of deed in which the grantor of real property promises to indemnify the grantee against any injury that may result if there is a defect in the title.

Special Warranty Deed

The type of deed in which the grantor of real property promises to indemnify the grantee against injury that may result if there is a defect in the title that arose during the time the grantor had title.

Quitclaim Deed

The type of deed that contains no covenants of title.

Ademption

The doctrine under which an intended devisee takes nothing where a specific bequest has been made in a will but the property bequeathed is no longer in the testator’s estate when the testator dies.

Lapsed Gift

A bequest that passes to a residuary taker (or, if there is none under the rules of intestacy) where the testator’s will left the bequest to a Beneficiary who later predeceased the testator.

Anti-Lapse Statutes

Laws that provide for the redirection of will bequests to predeceasing beneficiaries to instead go to certain others (who are still alive) in a way presumed to be in line with the testator's’ wishes.

Recording Statutes

Laws that replace the common law rule of “first in time, first in right”; they serve to put the public on notice of prior interests held in land, protect certain subsequent parties acting in good faith who acquire interest in the land, and provide clarity as to who holds priority in title or other interests.

Bona Fide Purchaser

A party that provides value (IE substantial consideration) in exchange for a conveyance.

Shelter Rule

The doctrine followed by most jurisdictions in which a party who takes from a grantor protected under a recording statute will be protected by the grantor’s status, even if the party would not otherwise qualify for protection under the statute.

Wild Deed

A deed recorded in such a way that it cannot be found in a title search and is not in the chain of title.

If a person who enters land under __________________ actually possesses only part of the land, title to the whole land can be given to the person pursuant to the doctrine of constructive adverse possession.

color of title

To comply with the statute of frauds, a deed must meet the following requirements:

1. Be in the form of __________________

2. Include words of __________________

3. __________________the parties

4. Describe the property with __________________

5. Be signed by __________________

1. a writing

2. transfer

3. Name

4. reasonable certainty

5. the grantor

The covenant of seisin in a general warranty deed warrants that the grantor both __________________the estate being transferred

owns and has good title to

Under the covenant against encumbrances in a general warranty deed, if an encumbrance is discovered after the transfer of title, then the grantor is obligated to either __________________

clear the encumbrance or indemnify the grantee for any damages.

Recorded instruments transferring interests in land generally are organized by what two main indexes?

1. __________________

2. __________________

1. Grantor-grantee index

2. Tract index

What are the three types of recording statutes?

1. __________________

2. __________________

3. __________________

1. Race

2. Notice

3. Race-notice

What are the three types of notice that can affect parties’ rights under the recording acts?

1. __________________

2. __________________

3. __________________

1. Actual notice

2. Constructive notice

3. Inquiry notice

Estoppel by deed exists where a seller does not have title to the property at the time that the contract for sale is executed but __________________.

Later acquires title

A party that has acquired title by __________________ has superior title to a party protected by a recording statute.

adverse possession

If procured, __________________ protects parties, including both owners and lenders, from monetary loss due to title defects or other lien problems.

title insurance