Property Themis Bar Prep

A conveyance by a joint tenant of his property interest has what effect?

NONE. The property passes automatically to the remaining joint tenant(s) due to the right of survivorship.

What kind of tenants have the right to unilaterally partition a piece of property?

A tenant in common or a joint tenant may unilaterally partition property. (NOTE: A tenant by the entirety does not have this right.)

In most states, there is a rebuttable presumption that a conveyance to two or more persons creates what kind of tenancy?

Tenancy in common (which requires only the unity of possession).

What are the three common types of concurrent estates? What unities are required for each?

1. Tenancy in Common: Unity of Possession

2. Joint Tenancy: Unities of Possession, Interest, Time, and Title (PITT).

   1. Tenancy by the Entirety: Unities of Person, Possession, Interest, Time, and Title.

What are the two types of executory interests? How is each defined?

1. Shifting Executory Interest: divests the interest of the grantee by cutting short a prior estate created in the same conveyance. The estate “shifts” from one grantee to another on the happening of the condition.

   1. Springing Executory Interest: Divests the interest of the grantor or fills a gap in possession in which the estate reverts to the grantor.

What is a major difference between a vested remainder subject to open and a contingent remainder?

A vested remainder subject to open is transferred to a group rather than individual, and at least one member of the group is individually ascertainable and entitled to the remainder interest.

A contingent remainder is created in a grantee who is unascertainable.

What is a major difference between a vested remainder subject to complete divestment and a contingent remainder?

A vested remainder subject to complete divestment is subject to a condition subsequent that can completely divest the remainder interest (trigger words: but if).

A contingent remainder is subject to a condition precedent to grantee’s taking.

What two possible components denote a contingent remainder?

The remainder is created in an unascertainable grantee,

OR

if it is subject to a condition precedent to the grantee’s taking.

What does it mean if a remainder is subject to a condition precedent?

The condition must first be met or satisfied for a remainderman to ever take possession.

What are the four types of landlord-tenant estates?

1. Tenancy for years

2. Periodic Tenancy

3. Tenancy at will

   1. Tenancy at sufferance

What happens to a fee simple determinable estate upon the happening of the stated condition?

1. The fee simple determinable terminates automatically and

2. Full ownership of the property either

   • returns to the grantor (possibility of reverter) or

   • transfers to a third party (executory interest).

What durational language is often used with a fee simple determinable?

So long as

While

During

Until

What are three corresponding future interests to these three defeasible fees:

1. fee simple determinable

2. fee simple subject to a condition subsequent

3. fee simple subject to an executory condition

1. Fee simple determinable: possibility of reverter (if holder is grantor) or executory interest (if holder is third party).

2. Fee simple subject to a condition subsequent: right of entry/right of reentry/power of termination (holder is grantor and must exercise right to terminate)

   1. Fee simple subject to an executory condition: executory interest (holder is third party).

Why is the following grant a fee simple absolute rather than a fee simple determinable?

Grantor conveys Blackacre “to B to be used for a horse farm.” B does not use Blackacre as a horse farm.

Grantor’s language merely indicates his desire, intent, or purpose for which the property should be used rather than imposing a condition that could limit the duration of the estate.

Who is responsible for the interest of a mortgage on a life estate and who is responsible for the mortgage itself?

Life tenant is responsible for the interest.

Remainderman is responsible for the mortgage itself.

What are the three types of waste that both a tenant of a life estate and a tenant in a leasehold must avoid?

(i) Voluntary waste (affirmative, substantive change);

(ii) Permissive waste (deterioration through neglect, failure to preserve, or failure to reasonably protect); and

(iii) Ameliorative waste (voluntary waste that does not diminish the value of the property).

What was the common law Rule Against Perpetuities (RAP) designed to do?

RAP was designed to prevent interests from vesting in the too distant future.

To which future interests will the Rule Against Perpetuities (RAP) never apply?

RAP is not an issue when analyzing future interests that revert to the grantor (i.e., reversion, possibility of reverter, right of reentry).

A plaintiff must prove racial intent or purpose in order to establish a violation of the Fourteenth Amendment’s Equal Protection Clause. What must a plaintiff show to establish racial discrimination under the Fair Housing Act?

The plaintiff needs to show a disparate racial impact.

What is the difference between a sublease and an assignment?

An assignment is a complete transfer of a tenant’s remaining lease term; a transfer of less than that is a sublease.

Tip: If the tenant retains a reversionary interest in the leasehold, then the transfer is a sublease.

A landlord’s failure to comply with applicable housing code requirements is evidence of a breach of which warranty?

The implied warranty of habitability, which applies to residential leases and is nonwaivable.

What is a retaliatory eviction?

A retaliatory eviction is the unlawful eviction of a resident tenant by a landlord in response to the tenant complaining, in good faith and with reasonable cause, about a housing, building, or safety code violations.

For a constructive eviction claim to be effective (i.e., tenant no longer has to pay rent), what TWO things must a tenant do if the residential rental property is uninhabitable?

1. Give notice and adequate time for the landlord to correct the problems, AND

   1. Vacate the property within a reasonable amount of time.

What are two major exceptions to a tenant’s duty to pay rent?

1. Destruction of the premises not due to tenant’s fault, or

   1. Material breach of the lease by the landlord (e.g., breach of the covenant of quiet enjoyment or the implied warranty of habitability)

A tenant is considered a holdover tenant when he continues to occupy the premises without the landlord’s consent and after the expiration of the lease. What two remedies does a landlord have?

The landlord may evict, or the landlord may bind the holdover tenant to a new periodic tenancy.

How is the scope of an easement determined?

The scope of an express easement is defined in the first instance by its terms. If the terms are ambiguous, courts look to the intent of the parties.

The scope of an easement by necessity is determined by the extent of the necessity.

The scope of an easement by implication is determined by the existing quasi-easement.

The scope of an easement by prescription is limited to the nature and extent of the adverse use.

How do the remedies available for breach of a real covenant differ from the remedies available for breach of an equitable servitude?

The remedy for breach of a real covenant is money damages; while the remedy for breach of an equitable servitude is an injunction.

Tip: When deciding whether to analyze facts under a real covenant analysis or an equitable servitude analysis, note what the party is seeking (damages or an injunction).

What are the four exceptions to the Statute of Frauds writing requirement?

1. Partial performance

2. Full performance

3. Detrimental reliance

4. Admission

What are the three requirements in a land sale contract to satisfy the Statute of Frauds?

It must be in writing, signed by the party to be charged, AND contain all essential terms (parties, description of property, price/payment info).

What is an option contract?

In an option contract, one party acquires the right to purchase property usually for a specific period of time, in exchange for consideration. (i.e., The buyer usually pays for the option.

What protections does a buyer have with an option contract?

During the time specified in the contract, the buyer is protected against revocation by the grantor and termination if the grantor of the option dies or becomes incapacitated.

Who bears the risk of loss if real property is destroyed between execution of a land-sale contract and closing?

In most states, the buyer bears the risk of loss (regardless of whether the buyer takes possession of the property), except when the loss is due to seller’s intentional or negligent actions (then seller bears risk).

What happens when a casualty occurs during the time between execution of a land-sale contract and closing, and the seller is carrying insurance?

Any insurance proceeds the seller receives must be credited against the buyer’s purchase price.

Name four real property instruments that must comply with the Statute of Frauds (aside from a land sales contract).

1. Promise to create an interest in real property

2. Assignment of a right to purchase

3. Option contract

4. Promise to give a mortgage or other lien security

What is marketable title?

Marketable title is title free from defects (such as undisclosed easements, future interests) regardless of the type of deed.

Essentially, it is title that is free from an unreasonable risk of litigation.

By what point in time must a seller deliver marketable title?

Seller is not required to deliver marketable title until closing (as sellers often use the proceeds of the sale to satisfy any prior mortgages or liens).

For installment contracts, not until delivery.

After a mortgaged property is sold at a foreclosure sale, in what order are the proceeds distributed to different stakeholders? (Identify at least 4).

1. Proceeds are used to pay any costs related to the sale.

2. The party who foreclosed on the property is paid, up to the amount outstanding on its mortgage interest.

3. If any money remains, any junior interests are paid in order of their priority.

4. If any money remains, the mortgagor is paid.

What are the two types of mortgages?

1. Purchase money mortgage: A person takes out a loan for the purpose of purchasing property.

2. Future advance mortgage: A line of credit used for home equity, construction, business, and commercial loans (“second mortgage”)