Real Property

Question 1

Estates in land

Answer 1

FREEHOLD ESTATES:

1. Fee simple absolute: infinite duration
2. Fee tail: inheritability limited to lineal heirs
3. Fee simple defeasible
   - FS determinable: durational language, automatically reverts to G (possibility of reverter)
   - FS subject to condition subsequent: G expressly reserves the right to terminate (right of reentry), not automatic
   - FS subject to executory interest: condition + passes to 3rd P (executory interest)
4. Life estate: measured by life/lives person(s)

FUTURE INTERESTS

1. Possibility of reverter -> fee simple determinable
2. Right of reentry -> fee simple subj condition subseq
3. Reversion - what’s left for G
4. Remainder - what’s left for 3P, must be expressly created in instrument
   - vested, subject to open, subject to total divestment
   - contingent: unascertained persons, subject to condition precedent
   - alternative contingent: “to X if . . . , otherwise to Y”
5. Executory interest
   - shifting: divests 3P’s estate
   - springing: divests G’s estate

TECHNICAL RULES

1. No absolute restraints on alienation: must be reas time and reas purpose
2. Class gifts: class closes when some member can call for distribution (Rule of Convenience)
3. Rule against perpetuities: interest must vest not later than 21 years after life in being at creation of the interest. Applies to:
   - a. contingent remainders
   - b. possibility of reverter
   - c. options in gross
   - d. vested remainder subject to open

Question 2

Joint ownership

Answer 2

1. Joint tenancy
   - right of survivorship
   - creation: unity of (equal) time, title, interest, possession
   - severance: conveyance/contract to convey (not will)
2. Tenancy in common
   - equal right to occupy
   - nonequal shares ok
   - can sell, will or gift
3. Tenancy by entirety
   - husband and wife only
   - right of survivorship
   - severed by death, divorce, or agreement
4. Co-tenancy rights and duties
   - right to possession
   - partition action
   - share rents from 3P and profits from explotations of land (mining)
   - accounting
   - - tax/mortgage: proportionate share and may seek reimbursement
   - - improvements: no right to reimbursement
   - - necessary repairs: right to contribution if others notified

Question 3

Landlord - tenant

Answer 3

1. Types of tenancies
   - term for years: fixed period, terminates automatically
   - periodic tenancy: express, implied, or operation of law, automatically renewed until proper notice
   - tenancy at will: only by express agreement
   - tenancy at sufferance: T wrongfully remains
2. Tenant’s duties
   - duty to pay rent: LL can evict or sue for rent
   - duty not to use premises for illegal purpose
3. T cannot commit waste
   - voluntary: intentionally/negligently decreases value
   - permissive: neglect of ordinary repairs
   - ameliorative: alterations
4. Landlord’s duties
   - duty to deliver actual possession
   - implied covenant of quiet enjoyment:
   - - actual/partial eviction: can withold entire rent
   - - constructive eviction:
   - – LL breached duty to T,
   - – substantially and materially deprived T use and enjoyment,
   - – T gave notice and reas time to repair,
   - – T vacated premises after reas time
   - – T can terminate lease and seek damages
   - implied warranty of habitability: (residential) T may:
   - - terminate lease and move;
   - - make repairs and offset;
   - - abate the rent; or
   - - remain and sue for damages
   - not retaliatory evictions
5. Tort liability: LL must
   - maintain common areas
   - disclose/fix latent defects
   - repair non-negligently
   - duty to inspect and fix areas T opens to public
6. Assignments and subleases
   - assignment: entire interest, original T still in privity of contract
   - sublease: < entire interest, subleasee not liable to LL
7. Fixtures
   - so affixed it becomes part of the realty: nature of article, manner of attachment, amount damage to remove, adaptation of item to use of realty.
   - trade fixtures are removable

Question 4

Land use

Answer 4

1. Easements - right to use land for special purpose
   - affirmative - holder entitled to do something
   - negative - O can’t do something
   - appurtenant: two tracts (dominant and servient)
   - - easement automatically passes w/ dominant estate
   - - easement automatically passes w/ servient estate unless new O is BFP with no notice of easement
   - in gross: personal and does not transfer unless commercial interest
   - express grant/reservation: in writing
   - by implication: operation of law if
   - - prior to division of single tract;
   - - apparent and continuous use of servient part;
   - - that is reasonably necessary for enjoyment of dominant part; and
   - - parties intended use to continue after division
   - by necessity: can’t access parcel sold by O without crossing remaining part of O.
   - by prescription: adverse possession
   - - open and notorious (discoverable upon inspection)
   - - adverse (w/o O’s permission)
   - - continuous and uninterrupted
   - - for statutory period
   - Termination:
   - - stated conditions
   - - unity of owner (merger)
   - - release
   - - abandonment: some action
   - - estoppel: reas reliance on representation/conduct
   - - prescription: adverse interruption
   - - necessity ends
   - - condemation/destruction
2. Convenants
   - must be in writing
   - damages = $
   - termination: release, merger, condemnation
   - burden runs with the land if:
   - - intent by original parties burden runs w/ land
   - - notice to BFP
   - - horizontal privity: original parties shared some interest in land (grantor-grantee, LL-T)
   - - vertical privity
   - - touch and concern servient estate
   - benefit runs with the land if:
   - - intent by original parties benefit runs w/ land
   - - vertical privity
   - - touch and concern benefitted land
3. Equitable servitudes
   - must be in writing, except common scheme + notice
   - damages = injunction
   - burden runs with the land if:
   - - intent by original parties burden runs w/ land
   - - notice to successor (actual, inquiry, record)
   - - touch and concern servient estate
   - benefit runs with the land if:
   - - intent by original parties
   - - touch and concern benefitted land
   - equitable defences:
   - - unclean hands of party seeking enforcement
   - - benefited party acquiesced in a violation
   - - estoppel
   - - laches
   - - neighborhood has changed
   - termination: release, merger, condemnation
4. Profits - right to take resources from land
   - writing required
   - termination: release, merger, condemnation
5. License - personal, revocable at will by licensor
   - irrevocable if estoppel or coupled w/ an interest
6. Water rights
   - riparian doctrine: water belongs to land bordering watercourse
7. Lateral and subjacent support
   - strictly liable for adjacent land/building if excavation would have caused land to collapse in natural state
   - otherwise, liable only if negligence
   - underground occupant must support existing surface land/buildings, liability for subsequent buildings requires negligence.

Question 5

Deeds

Answer 5

1. Deeds, require:
   - parties
   - signed by grantor
   - describe land
   - no consideration required
2. Deed delivery
   - physical transfer
   - intent to make present transfer
   - - express condition of G’s death: ok (creates future interest)
   - - deed absolute but delivered w/ oral conditions: conditions disregarded and delivery is absolute
   - - deed given to 3P w/ no conditions: valid delivery
   - - deed given to 3P w/ conditions: no delivery until conditions, can revoke if no K or donative transaction
   - acceptance: presumed
   - estoppel by deed: subsequent acquisition of property automatically goes to grantee
3. Types of deeds
   - general warranty, covenants of:
   - - seisin: G has title and possession
   - - right to convey: G has authority to grant
   - - encumbrances: no encumbrances
   - - warranty: G will defend against 3P with lawful claim
   - - quiet enjoyment: no 3P with lawful claim of title
   - - further assurances: G will help perfect title
   - statutory special: G did not convey to 3P, no encumbrances
   - quitclaim: G gives whatever interest he has

Question 6

Land sale contracts

Answer 6

1. Land sale contract
   - SOF
   - - writing
   - - parties named
   - - signed by one to be bound
   - - describes land
   - - state consideration
   - - exception: 2/3 of [possession, substantial improvements, payment of purchase price]
   - implied covenant of marketable title:
   - - defects in chain of title
   - - encumbrances
   - - existing zoning violation
   - implied warranty of quality/fitness - only new construction by builder
   - liability for defects:
   - - misrepresentation (fraud)
   - - active concealment
   - - failure to disclose
2. Merger: contract merges into deed and deed controls

Question 7

Adverse possession

Answer 7

1. Actual possession, except under color of title
2. Open and notorious
3. Hostile (no consent)
4. Statutory period, tacking only if privity b/w AP predecessors

Question 8

Recording acts

Answer 8

1. Pure race: 1st to record wins, notice irrelevant
2. Pure notice: BFP w/o notice at time of conveyance wins
3. Race-notice: BFP w/o notice + records 1st wins
4. Protects bona fide purchasers (take for value, no notice)
5. Notice: actual, record (constructive), inquiry
6. Shelter doctrine: whoever takes from a BFP prevails against any interest transferor-BFP would have prevailed against

Question 9

Mortgage and deed of trust

Answer 9

1. Mortgage (debtor = mortgagor, lender = mortgagee)
   - writing required
   - foreclosure
   - - judicial foreclosure
   - - priority loans
   - – purchase money mortgage
   - - deficiency
   - redemption:
   - - in equity: any time before foreclosure sale
   - - statutory: fixed period after foreclosure sale
2. Deed of trust
   - debtor = settlor
   - 3P = trustee, gets deed of trust
   - lender = beneficiary, tells trustee to foreclose on deed by sale