Real Property

Flashcards in question and answer format generated from Real Property Lecture Notes

What is a fee simple absolute?

A conveyance of absolute ownership of a real property (no conditions placed)

What is a fee tail?

A conveyance of real property to a person and their heirs; Abolished in most jurisdictions

What is a fee simple defeasible?

A conveyance of real property with conditions

What are the three types of fee simple defeasibles?

Fee simple determinable, Fee simple subject to condition subsequent, Free simple subject to executory interest

What is a fee simple determinable? Example?

It reserves a future interest in the grantor (possibility of reverter); Example: A to B, so long as B uses it as a petting zoo.

In a fee simple determinable, is the conveyance automatically terminated if the event occurs?

Yes, it is.

What is a fee simple subject to a condition subsequent?

It is created when a conveyance is subject to the grantor’s right of re-entry if a specific condition occurs; Example: A to B, but if B sells alcohol on the land, I may reclaim it

In a fee simple subject to a condition subsequent, is the conveyance automatically terminated if the event occurs?

No, grantor must affirmatively exercise his right of re-entry.

What is a fee simple subject to a executory interest?

It reserves a right in a third party; Example: A to B, but if B becomes a prostitute, to C

What is a life estate?

A conveyance where the person is entitled to possession during their lifetime, and upon death the property transfers to someone else.

Is the life-tenant responsible for ordinary expenses to property (taxes included)? What if the land is not generating income?

Yes; if the land is vacant and not profitable, life tenant isn’t responsible for taxes.

Is the life-tenant allowed to commit waste during possession?

No, they cannot.

What are the five main types of future interests?

Possibility of reverter, Right of re-entry, Vested remainder, Contingent remainder, Life Estate (Remainderman)

What is a possibility of reverter?

If condition occurs, interest is automatically terminated and goes back to the grantor.

What is a right of re-entry?

Upon the occurrence of a specific event, the grantor MAY re-enter and take the property

What is a vested remainder?

A future interest in land given to an identifiable person with no conditions

What is a contingent remainder?

A future interest in land conditioned upon the occurrence or non-occurrence of a specific event

What is a remainderman?

The person who receives the property when the life-tenant (life estate) dies.

What is a tenancy in common?

Each owner owns an undivided interest in the property and has the right to use the ENTIRE property.

Can a tenancy in common pass by bequest or intestacy?

Yes, it can.

What is a tenancy by entirety?

An estate when land is conveyed to a husband and wife.

What is required to create a joint tenancy?

The four unities

What are the four unities of a joint tenancy?

Time, Title (Same instrument), Interest, Possession

What is different between a joint tenancy and an tenancy in common?

A joint tenancy has a right of survivorship.

Can a joint tenant unilaterally transfer their ownership interest? What happens?

Yes. The new owner and other joint tenant hold the property as tenants in common.

If 1 out of 3 joint tenants transfers their ownership, does a joint tenancy still exist between the other two?

Yes, it does.

What happens to the joint tenancy if a joint tenant takes out a mortgage on their interest in a title theory state? Lien theory state?

Title Theory State - Severs joint tenancy; Lien Theory State - Does not sever joint tenancy

In most states, what happens if one joint tenant leases the property?

It will sever the joint tenancy

Is an out-of-possession co-tenant entitled to receive rent from the tenant that is possessing the property? Exceptions?

No, unless otherwise agreed or they were wrongly kicked out.

Are co-tenants entitled to equal shares of rent from third paries?

Yes.

Are co-tenants entitled to reimbursement for repairs?

Yes, as long as they are necessary.

Are co-tenants entitled to reimbursement for improvements?

No, but the improving co-tenant is entitled to the upside gain if property is sold.

What are the three types of leasehold interests?

Tenancy for Years, Periodic Tenancy, Tenancy at Will

What is a tenancy for years?

Lasts for a fixed period of time.

When does a tenancy for years terminate?

At the end of the fixed period of time.

What is a periodic tenancy?

Automatically continues for the applicable period unless terminated.

What are the two ways a periodic tenancy can be created?

Express agreement + Implied agreement

What is the rule for termination of a period tenancy for month-to-month and year-to-year?

Month-to-month: at least one month’s notice is required; Year-to-year: at least 6 month notice may be required.

What is a tenancy at will?

Continues until either party terminates it.

What is the rule for termination of a tenancy at will?

Usually, it is a reasonable amount of notice.

What two options can a landlord take if a tenant doesn’t pay rent?

Evict the Tenant; Sue the tenant for damages and allow them to remain

If a tenant abandons the property and doesn’t pay rent, what duty does the landlord have?

A general duty to mitigate losses.

When a tenant holds over, what two things can the landlord do?

Evict the tenant; Allow them to stay and pay rent

When a holder over occurs, what is created?

An implied month-to-month tenancy with the SAME terms that existed as before.

If a tenant is informed of a higher rent before the end of a lease and holds over, what will the rent amount be during the hold over?

The higher amount.

What is the landlord’s implied warranty of habitability?

A landlord must provide a place that is reasonably suited for human needs; Ex. Heat in winter, running water, etc.

What are four remedies that a tenant has if the implied warranty of habitability is breached?

Move out; Sue for damages; Withhold rent; Repair + deduct costs

What covenant is relevant to constructive eviction?

When the implied covenant of quiet enjoyment is breached.

What are the five requirements for constructive eviction?

Landlord breaches duty; Loss of substantial use of property; Tenant notifies landlord; Landlord doesn’t remedy; Tenant leaves.

Does a landlord have a duty to repair a commercial lease?

No, unless specified.

Does a landlord have a duty to repair a residential lease?

They have a duty to repair common areas; They have a duty to warn of defects that cause risk of harm.

What is the landlord’s duty to provide possession?

Landlord must deliver both physical and legal possession of a property at move in.

Does the landlord’s duty to mitigate damages need to be successful to recover?

No, they just must take reasonable steps.

What is a lease assignment?

Tenant transfers ALL of his remaining lease interest to a third-party

Can an assignment be longer than the remaining term on the lease?

Nooo fucker.

In a breach, is the assignee liable for rent? What about other covenants that run with the land?

Yes, they are liable for both.

In a breach, is the assignor liable for rent?

Yes, they are in privity of contract.

In a breach, is the landlord still responsible for maintenance obligations?

Yes, they still are.

Can a lease have a clause that requires landlord consent?

Yes.

What happens if the landlord accepts rent from an assignee if the lease has a clause that requires consent?

The landlord waives his right to enforce the clause.

What is a sublease?

Tenant transfers only SOME of his remaining lease interest.

In a sublease, is the sublessee liable to the landlord for rent and other covenants?

No, the original tenant remains liable for everything to the landlord.

What must a landlord do for a surrender to be valid?

They must clearly accept the surrender.

If the landlord accepts the surrender, does the tenant have to pay rent

Not after the acceptance.

If the landlord does not accept the surrender, what happens?

Tenant is deemed to have abandoned

What is a real covenant and give me a few examples?

A real covenant is a promise about how land will be used that binds future owners of the land; Example: No businesses may be operated on this property. All homeowners must pay $100/month to the HOA.

What four things are required to enforce a benefit covenant?

Writing, Intent, Vertical Privity, Touch/Concern the land

What is the 5th and 6th thing that is required to enforce a burden covenant?

Horizontal Privity, Notice

What is the difference between horizontal and vertical privity?

Horizontal - A relationship between parties; Vertical - A relationship between original party and owner

What is actual notice?

Direct knowledge

What is constructive notice?

Covenant is recorded

What is inquiry notice?

An inspection would have revealed it

What is the key difference between an equitable servitude and a covenant?

Equitable servitude has a remedy of injunctive relief

What is the common scheme or plan doctrine?

Reciprocal restrictive covenants on land parcels will apply if: Developer had a common scheme or plan, AND Land owner had notice of the restriction

What are two requirements for owners in a common interest community (condo, co-op, HOA)?

Pay for maintenance; Pay dues to an association

What is an easement?

A non-possessory use of someone else’s land

What is an easement in gross?

Benefits a specific owner’s enjoyment; Example: Bob let’s power company run lines across Bob’s land

What is an easement appurtenant?

Benefits any owner’s enjoyment; Example: Bob let’s Natalie cross his land to get to highway

Does an easement in gross pass to subsequent owners? What about an easement appurtenant?

Easement in Gross - does not pass; Easement Appurtenant - does pass

What is an easement by grant?

An express signed writing that identifies land, parties and right to convey

What is an easement by prescription?

Created when the possessors' use of land is: Open/notorious; Continuous; Hostile; Meets statutory period

What is an easement by implication?

Established when: A single tract of land is divided; Pre-existing use; Use was continuous; Use is necessary

What is an easement by necessity?

Created when land is divided and the use is essential to one of the parties.

What are the ways an easement can be terminated?

Estoppel, Termination by necessity, Destruction/condemnation of servient estate, Written release, Abandonment, Merger, Prescription

What is a license?

The privilege to use the land in a particular way. Example: Access to a movie theater

Does a license need to be in writing?

No

What is a profit?

Gives the holder the right to take resources from the land. Ex. Fishing, mining, collecting wood.

What is a fixture?

Personal property affixed to the land so that it becomes part of the land.

What is the trade fixture exception?

An item attached for a tenant’s trade or business is NOT a fixture unelss removal substantially damages the property

What is the acronym used for the elements of adverse possession? HOCEAN

Hostile, Open, Continuous, Exclusive, Actual, Notorious

What is tacking in adverse possession?

Adverse possessors in privity may aggregate the years spent to meet the statutory period

What are the five requirements of a land sale contract?

Writing, Describe Land, Describe Property, Contain price, Signed

Is recording effective at contract signing or deed delivery?

When the deed is delivery!!!

What is the merger doctrine?

Once the deed is delivered and accepted, the contract merges with the deed

Can a party sue under the contract once it merges?

No, they can only sue on the deed after the merger

What is the warranty of marketable title?

The seller must convey a marketable title to a buyer

What is a marketable title?

The title is free from any adverse claim

Do zoning restrictions count as a defect that would render a title unmarketable? What about other encumbrances such as mortgages, covenants, or a zoning violation?

A zoning restriction does not render a title unmarketable; A mortgage, covenant, or zoning violation would render a title unmarketable.

If a seller can’t convey a marketable title at closing, what can the buyer do?

Withdraw without penalty

What is the doctrine of equitable conversion?

Splits ownership between buyer and seller when the contract is signed, but the deed hasn’t passed yet.