Property

types of present estates

1. fee simple absolute

   1. To convey absolute ownership of real property

   2. is freely devisible

   3. “ to a, and his heirs”

2. fee simple determinable

   1. created by “so long as, during, while”

   2. possibility of reverter back to grantor automatically terminated once a conditions occurs

3. fee simple subject to condition subsequent

   1. right of re entry

   2. “ but if” “ provided that” “subject to condition that

4. fee simple subject to executory interest

   1. future interest to third party, terminates if condition occurs and goes to third party

   2. springing executory interest

      1. Springs forward from grantor to third party after a gap or period

   3. shifting executory interest

      1. Shifts from one grantee to another

5. life estate

   1. Life tenant is entitled to possession during their lifetime, & upon death the real property transfers to another specified party. cannot commit waste, responsible for expenses and taxes

future interests

1. contingent remainder: future interest conditioned upon occurence of an event

2. vested remainder: future interest given to identifiable person with no conditions

3. life estate remainderman: persons who receive property ownership upon life tenant death

types of waste

affirmative: intentional waste

permissive: fail to make repairs

amerliorative: substantial change in use that increase value

restraints on alienation are enforceable if reasonable

TRUE

TYPES OF CO-TENANCY

1. tenancy in common

   1. estate created for two or more people

   2. undivided interest and right to use entire property

2. joint tenancy

   1. language states that parties have survivorship right

   2. severed if one joint tenant transfers their ownership interest, then tenancy in common is created

   3. in lien theory jurisdiction, if joint tenant takes mortgage that tenancy is not severed

3. tenancy by entirety

   1. between husband and wife

ouster of co tenant excludes another co tenant from possession, the excluded one may bring action for damages and recover possession

types of leasehold estates

1. tenancy for years

   1. lasts for a fixed period, terminates after period ends

2. periodic tenancy

   1. period by period tenancy that is terminated by proper notice

3. tenancy at will

   1. lasts until a party terminates(notice needed)

4. holdover tenancy

   1. tenant remains after lease ends

Tenant duty vs Landlord duty

tenant duty is to pay rent unless they get evicted or get sued for damages, and make reaosnable repairs

landlord duty to deliver legal and actual possession at start of lease term, and make repars detailed in lease

habitability & quiet enjoyment

implied warranty of habitability: Landlord MUST provide a property that’s habitable, meaning it's reasonably suitable for human needs.

implied covenant of quiet enjoyment: Prevents Landlord from interfering with Tenant’s quiet enjoyment & possession of the property.

Constructive eviction

1) Landlord breached a duty; 2) Breach caused a substantial loss of use & enjoyment of premises; 3) Tenant gave Landlord notice of condition; 4) Landlord failed to remedy condition within a reasonable time; AND 5) Tenant vacated premises.

Assignment/Sublet of lease

If a tenant assigns their interest, the assignee becomes liable for lease obligations during possession via privity of estate, while the original tenant remains liable under privity of contract unless released by novation. In a sublease, the subtenant is not in privity of estate with the landlord and is only liable to the tenant.

If tenant wants to end lease early, landlord has to agree or else it is deemed to be abandoned

True

Covenant definition and requirement

A non-possessory land interest that obligates a holder to do or refrain from doing something.

1. benefit of covenant

   1. Writing satisfying statute of frauds, 2) Intent that covenant runs with the land, 3) Vertical privity — If successor holds entire interest held by a predecessor, AND 4) Covenant touches & concerns land (makes land more useful or valuable).

2. burden of covenant

   1. Elements (1)-(4) above; 2) Horizontal privity of original parties (two parties shared some interest in land inde pendent of covenant); AND 3) New owner had notice of covenant

Equitable servitude

A covenant that’s enforced if burdened estate had notice, remedy is injunctive relief

1. benefit

   1. 1) Writing satisfying statute of frauds, 2) Intent for servitude to be enforceable, AND 3) Servitude touches & concerns the land (makes land more useful or valuable).

2. burden

   1. 1) Elements (1)-(3) above, AND 2) New owner had notice of servitude.

Easements

non possessory interest to use someone else land

1. easement in gross; benefits person or entity, only servient estate

2. easement appurtenant: benefits parcel, required dominant and servient estate

types of easements

1. by grant: expressly written, signed by grantor, identify land/parties, indicate grantor intent to convey easement

2. by prescription( adverse possession)

3. by implication: there was preexisting use that was continuous and apparent, and reasonably necessary

4. by necessity: essential because no other way

Licenses and profits

Licenses is a privilege to use another land and can be revoked at any time

Profit gives a person right to take natural resources from land of another

adverse possession defintion and elements

allows a possessor to acquire title to land

posession must be

1. continuous for stat period

2. open and notorious( put owner on notice)

3. exclusive( not shared)

4. hostile(without consent)

5. actual: possessor physical uses land

tacking for adverse possession

Adverse possessors in privity (by deed, bequest) MAY aggregate their years in possession to meet the statutory period.

land sale contract requirements

1) In Writing(SOF); 2) Describe Property; 3) Identify Parties; 4) Contain Purchase Price; AND 5) Be Signed by Grantor/Grantee (depends on whom K is being enforced against).

exception to SOF where party has done any two of the three

1. take possession

2. pay all or part of purchase price

3. makes substantial improvement

Marketable title

title is free from any emcumbraces

Deed Requirements

1) Be in Writing; 2) Signed by Grantor; 3) Identify Parties (grantor & grantee); 4) Describe Property; AND 5) Indicate Grantor’s Intent to Convey Land.

estoppel by deed

If grantor conveys title to land before they own it, title will automatically vest in grantee if/when grantor acquires title.

Types of deeds

1. general warranty

   1. seller warrants that no title defects have occurred during their ownership and no defects in chain of title from which they got title

2. special warranty

   1. Warrants that Seller hasn’t breached covenants of title during the ownership:

3. quit claim

   1. An “as is” deed that contains NO warrantees or covenants.

   2. Grantor is NOT liable for encumbrances or defects in title.

recording acts

1. notice

   1. Subsequent bona fide purchaser (no notice & pays value) PREVAILS over a prior grantee that failed to record.

2. race

   1. Whomever records first PREVAILS (notice is irrelevant).

3. race notice

   1. Subsequent bona fide purchaser (no notice & pays value) is protected ONLY IF recorded before a prior grantee.

Mortgage requirements and transfers

1. requirements

   1. To be valid, a mortgage MUST: 1) Be in writing; 2) Signed by party to be charged; AND 3) Identify parties & land.

2. transfers

   1. If Buyer “assumes” a mortgage, Buyer is primarily & personally liable on the mortgage

   2. If Buyer takes real property subject to Seller’s mortgage, Buyer is NOT personally liable on the mortgage. BUT, lender may still foreclose on the mortgage.

types of security devices(mortgage)

1. purchase money mortgage

   1. Used by a buyer (the borrower) to purchase real property, & seller is the lender holding the mortgage

2. future advance mortgage

   1. A loan where lender may provide future payments under the original loan.

foreclosure

• A legal process where the lender takes and sells property to repay a defaulted mortgage.

• distinguishes junior mortgages

• Order of Preference to Pay Off Debts

  • attorney fees and expenses

  • debts owed to mortgagee

  • leftover to debtor

• deficiency judgment: if foreclosure sales arent enough then deficient judgment against debtor

zoning

Land-use regulations are ALLOWED if it reasonably protects health, safety, morals, or general welfare of the community.

Apply state law where property is located

true

Rule against perpetuities

1. Real property interest MUST VEST within a life in being at the time of the grant plus 21 years.

2. applied to

   1. contingent remainders

   2. executory interests

   3. vested remainder subject to open(class)

3. does not apply to

   1. charitable transfers

   2. future interests retained by grantor

title theories

1. title theory

   1. Legal title goes to the mortgagee (the lender), but the mortgagor (borrower) keeps possession until default.

   2. Upon default, the mortgagee may take possession and is entitled to rents and profits from the property.

2. intermediate theory

   1. Starts like lien theory: mortgagor has possession, rents, and profits.

   2. But upon default, it switches to title theory—the mortgagee can take possession and collect rents.

3. lien theory

   1. The mortgage is treated as a lien—title and possession stay with the mortgagor.

   2. The mortgagee has no right to possession, rents, or profits before foreclosure.