1
Q
Rules on Transferability of Estates
A
- Cannot transfer greater interest than held;
- fee simple absolute presumed absent express language to contrary.
2
Q
Fee Simple Absolute
A
- Absolute ownership potential perpetuity;
- Freely devisable, descendible, and alienable;
- No accompanying future interest.
3
Q
Not Defeasible Fee if…
A
- Words of mere hope, intention, or desire (precatory);
- Mere expectation.
4
Q
Fee Simple Determinable
A
- Granter must use clear durational language;
- If stated condition violated, forfeiture automatic;
- Freely devisable, descendible, and alienable (but always subject to the condition);
- Accompanying future interest is possibility of reverter.
5
Q
Fee Simple Subject to Condition Subsequent
A
- Grantor must use clear conditional language and carve out right to reenter;
- Not automatically terminated but can cut short at grantor’s option if condition occurs;
- Freely devisable, descendible, and alienable;
- Accompanying future interest is right of reentry.
6
Q
Fee Simple Subject to Executory Limitation
A
- Future interest in third party which cuts short prior estate;
- Accompanying future interest is shifting or springing executory interest.
7
Q
Life Estate, future interests, entitled to?
A
- Possessory estate measured in explicit lifetime terms and never in years;
- Accompanying future interest is a reversion in granter or remainder in third party;
- A life tenant is entitled to ordinary use and profits of the property.
8
Q
Waste
A
- Life tenant must not commit
waste; - Voluntary, permissive, ameliorative.
9
Q
Voluntary Waste
A
- Affirmative and actual overt conduct that;
- causes a decrease in value.
10
Q
Permissive Waste
A
- Negligent or intentional conduct failing to repair or preserve original condition;
- Life tenant has a duty to maintain premises in good repair and pay all taxes and carrying costs.
11
Q
Ameliorative Waste
A
- Improvements or changes in use which;
- enhance the value or change character;
- without the knowledge and consent of all vested future interest holders.
12
Q
Remainder - What is it and what does it never follow?
A
- Future interest in third party;
- following natural termination of
preceding estate of known, fixed duration; - Never follows defeasible fee.
13
Q
Vested Remainder (and types), VRSTD, VRSTO
A
- Created in ascertainable person and no conditions precedent;
- Indefeasible if certain and no conditions subsequen;t
- Subject to complete defeasance (divestment) if possession can be cut short due to condition subsequent;
- Subject to open if vested in a group, at least one of whom is qualified to take possession.
14
Q
Contingent Remainder
A
- unascertained person; or
- subject to condition precedent.
15
Q
Rule of Destructibility of Contingent Remainders
A
- Destroyed if still contingent at cessation of preceding estate;
- Modernly, will remain contingent while held by grantor’s heirs.
16
Q
Shelley’s Case Rule
A
- Life estate with remainder in life tenant’s heirs merges into fee simple absolute;
- Modernly, life estate remains and unknown heirs have a contingent remainder;
- Grantor has reversion since life tenant could die with no heirs.
17
Q
Doctrine of Worthier Title
A
- Contingent remainder in Grantor’s heirs is void;
- Grantor retains reversion;
- Grantor’s intent controls.
18
Q
Executory Interests
A
- Always follows a defeasible fee;
- shifting cuts short someone
other than grantor, and springing cuts short grantor; - No standing to sue life tenant for waste b/c not vested.
19
Q
Public Policy Limitations
A
No restraints on alienation or marriage
20
Q
Joint Tenancy
A
- Concurrent estate where two or more cotenants own equal interests;
- Requires words of survivorship and joint tenancy;
- Must have four unities.
21
Q
Rule Against Perpetuities
A
- Future interest is void unless it must vest, if at all, not later than 21 years after death of a life in being at creation of future interest;
- Applies to contingent remainders, executory interest, and certain vested remainders subject to open;
- A gift to open class conditioned on members surviving beyond 21 violates;
- Executory interest without vesting time limit violates;
- Gift from one charity to another does not violate.
22
Q
Severance of Joint Tenancy
A
- Severed as to joint tenant (only) who acts in a manner inconsistent with joint tenancy;
- Sell, convey, partition, or mortgage in title theory state;
- Doctrine of equitable conversion will sever upon enforceable contract.
23
Q
Tenancy in Common
A
- Default in common law jurisdictions;
- Has unity of possession, which gives each cotenant an undivided interest and right to possess the whole.
24
Q
Rent from Tenant in Exclusive Possession
A
- Cotenant in exclusive possession is not liable to others unless ouster;
- Other cotenants liable for carry costs (NET - exceeding rental value - in some jdx).
25
Rent from Third Parties
1. Cotenant leasing all or part of premises must account to cotenants, providing them with proportionate share of income.
26
Cotenant Repairs and Improvements
1. Repairing cotenant enjoys proportional right of contribution when;
2. reasonable, necessary, properly notified;
4. No right to contribution for improvements, but improving cotenant entitled to full increase or decrease in value.
27
Waste
Cotenants must not commit waste
28
Cotenant Carrying Costs
Each cotenant responsible for their share of carrying costs such as taxes and mortgage interest; ousted cotenant not liable; some jdx are for NET if sole tenant in possession.
29
Cotenant Adverse Possession By Ouster?
Unless ousted by other cotenants, thus the possession becomes adverse, one cotenant in exclusive possession cannot acquire title by AP.
30
Tenancy by the Entirety
1. Only in husband and wife;
2. Default in states that recognize;
3. All five unities;
4. Creditors of one spouse cannot touch;
5. No unilateral conveyance, devise, or partition.
31
Easement
1. Grant of nonpossessory property interest entitling holder to use or enjoyment of another's land;
2. Appurtenant when servient and dominant. Passes automatically regardless of whether mentioned in conveyance;
3. In gross when only servient. Personal or pecuniary not related to use and enjoyment. Not transferable except for commercial.
32
Creation of Easement and types
1. Prescription, implication, necessity, or grant (PING);
2. Prescription if CHOSE;
3. Implication if quasi-easement (prior/apparent), expected continuance, Reasonable necessity to enjoyment of Dominant's land;
4. Necessity if landlocked;
5. Grant must satisfy SOF.
33
Negative Easement (SALS)
1. Never implied, only writing signed by granter;
2. Support, Air, Light, or Stream of water from artificial flow.
34
Termination of Easement (ENDCRAMP)
1. Estoppel;
2. Necessity;
3. Destruction;
4. Condemnation;
5. Release;
6. Abandonment;
7. Merger; and
8. Prescription.
35
License
1. Mere privilege, no writing, freely revocable;
2. Easement by estoppel if invested in reliance on license;
3. Failed easement creation results in license.
4. Coupled with an interest is irrevocable.
36
Profit
1. Holder entitled to enter servient
land and take soil or substance
thereof;
2. Shares same rules as easements;
3. Always transferable.
37
Covenant
1. Promise to do or not do
something related to land;
2. Unlike easement, not a grant of property interest but a contractual limitation regarding the land;
3. Money damages permitted.
38
Equitable Servitude
1. Covenant that, regardless of whether it runs with the land at law,
2. equity will enforce against assignees of burdened land who have notice.
3. Remedy is injunction.
39
Termination of Covenant
(ME CPR)
1. Merger;
2. Estoppel;
3. Condemnation ;
4. Prescription; and
5. Release (written).
40
Defenses to Covenants
CUEAA
1. Changed conditions;
2. Unclean hands;
3. Estoppel;
4. Acquiescence; and
5. Abandonment.
41
Creation of Servitudes
1. Writing satisfying SOF;
2. Negative is implied from common plan or scheme (notice of scheme or promises in prior deeds).
42
Adverse Possession
1. Continuous, hostile, open, notorious, actual, and exclusive for
the statutory period ripens into title;
2. Privity between parties will tack possession;
3. Disabilities (iii) will prevent statute from running at inception of AP (insanity, infancy, imprisonment).
43
Lateral Support
1. Absolute right to have land supported in natural state by adjoining land;
2. P must show land would have subsided in its natural state for strict liability;
3. Negligence standard if improvements cause subsidence.
44
Riparian Doctrine
1. Water belongs to owners of bordering land;
2. Share right to reasonable use;
3. Liable to other riparian owners if use unreasonable interferes with others' use.
45
Prior Appropriation Doctrine
1. Water initially belongs to state; but
2. can be acquired in priority of beneficial use;
3. First in time, first in right.
46
Ground Water
1. Surface owner entitled to make reasonable use;
2. Must not be wasteful.
47
Surface Water Jurisdictions
In order of most preferred by developers:
1. Common enemy, landowner may divert as desired, no liability to neighbor;
2. Modified common enemy, only liable if blocking natural watercourse or no reasonable care;
3. Reasonable use, like nuisance;
4. Civil law/natural servitude, strictly liable.
48
Trespass
1. Physical invasion of land without consent or privilege;
2. No damages required; and
3. Must bring ejectment action, no self-help.
49
Nuisance
1. Substantial and unreasonable interference with another's use and enjoyment of land;
2. Reasonable to average and not overly sensitive community member.
50
Zoning
1. States may enact statutes to reasonably control land use pursuant to police powers;
2. Variance must show undue hardship and no detriment to surrounding property values;
3. Nonconforming change must be gradual; and
4. No unconstitutional exactions (amenities government seeks in exchange for permission to build).
51
Land Sale Contract (PIDS, warranties)
1. SOF (D-PIGS), Description, Price, Identity of granter, Grantor's Signature (part performance exception);
2. No implied warranties of fitness or habitability;
3. Caveat emptor, but seller liable for failure to disclose latent material defects by omission or misrepresentation;
4. Exception when seller is builder, implied warranty of **fitness** and **workmanlike** construction.
52
Equitable Conversion
1. Once contract is signed, buyer is equitable owner of realty and bears risk of loss;
2. Seller has interest in personal property.
53
Marketable Title (EZAP)
1. Title free from lawsuits and threat of litigation;
2. (EZAP) Encumbrances, Zoning, Adverse Possession.
54
Delivery of Deed
1. (LEAD-A) Lawfully Executed And Delivered, deed passes legal title from seller to buyer (Accepted);
2. (D-PIGS) Description, Present Intent, Grantor's Signature;
3. Physical delivery or recording is a rebuttable presumption.
55
General Warranty Deed
1. General contains present and future (SER-QWA);
2. Present: Seisin, Encumbrances, Right to convey;
3. Future: Quiet enjoyment, Warranty, Assurances (further);
4. Special contains all but only covers actions by immediate grantor;
5. Quitclaim has no warranties whatsoever.
56
Bona Fide Purchaser
1. Recording exists to protect bona fide purchasers and mortgagees;
2. Donees not protected unless shelter rule.
57
Shelter Rule
Grantee who takes title from BFP will prevail against claims against whom BFP would prevail.
58
Wild Deed
1. Recorded outside chain of title;
2. Incapable of giving record
notice.
59
Estoppel by Deed
1. One who conveys unowned land; is
2. estopped from denying the validity of prior conveyance; if they
3. subsequently acquire title to the previously transferred property;
4. BFP protected in majority.
60
Mortgage (CUCS)
Mortgage (CUCS)
1. **Conveyance** of a security interest in land;
2. **Union of debt** and voluntary transfer of **security interest**;
3. **Collateral** for the repayment of a monetary obligation;
4. Subject to **SOF**.
61
Equitable Mortgage
1. **Deed absolute** given to creditor;
2. **BFP can prevail** if sold by creditor;
3. **Grantor can sue creditor** to recover proceeds of the BFP sale;
4. **Parol evidence freely admissible** to show parties intentions.
62
Holder in Due Course (WEL, MaDFIIII)
1. **Endorsed and delivered** note, transferee eligible to become holder in due course; meaning he
2. takes **free of personal defenses** (WEL, Waiver, Estoppel, Lack of consid.); but still
3. subject to **real defenses**, such as (MaDFIIII, Material alterations, Duress, Fraud in the factum/execution, Incapacity, Illegality, Infancy, or Insolvency).
63
Redemption
1. Redemption in equity allows mortgagor to pay off **entire loan** before completion of foreclosure proceedings; cannot be **waived**;
2. Statutory right of redemption allows mortgagor to **buy back** property from foreclosure buyer for same price.
64
Valid Lease (SOF = SQIPS)
1. Validity determined by contract principles;
2. Mutual assent, consideration, absence of defenses to formation;
3. SOF if> 1 year. (SQIPS, Subject matter, quantity, identity of parties, Price, Signature of party to be charged).
65
Tenancy for Years
1. Fixed starting and ending date;
2. No notice required to terminate;
3. Freely transferable generally;
4. Must satisfy contractual formalities if> 1 year (SQIPS).
66
Periodic Tenancy
1. Lease continues for periods determined by frequency of rent payments;
2. One period notice up to six months for longer leases.
67
Tenancy at Will
1. No fixed duration;
2. terminated by either party at any
time without notice;
3. Death;
4. Transfer (attempt).
68
Tenancy at Sufferance (Holdover Doctrine)
1. Created when T wrongfully held over past expiration of lease;
2. Lasts until LL evicts or elects to hold T to new term as periodic.
69
Tenant's Duty to Repair and Acts of God
1. LL Must make **reasonable repairs** if lease is **silent**;
2. Must not commit **waste**;
3. Common law view, T responsible or any loss due to force of nature (independent covenants);
4. Modernly, T's duty to pay rent is discharged (dependent covenants).
70
Fixtures
1. Removal of fixtures is voluntary waste;
2. Fixtures are affixed and pass with land;
3. T may remove as chattel if can be done without damage or trade fixture;
4. Look to intent in the lease.
71
Breach of Tenant's Duty to Pay Rent
ECARI
1. T breach while in possession (no self-help), LL may Evict through courts; or Continue lease and sue for accrued rents;
2. T breach out of possession, LL can treat as
A) Abandonment if T demonstrates intent to abandon;
B) Re-let and hold T liable for deficiency+ future (majority). LL must try to mitigate by reletting; OR Ignore and hold T responsible for unpaid rent (minority).
72
LL Duty to Deliver Possession
1. Common law only legal title required;
2. Modern is actual possession or discharge T's duty to pay rent.
73
Implied Covenant of Quiet Enjoyment
1. T has right to quiet use and enjoyment without interference from LL or others.
2. Constructive eviction (SING) - Substantial Interference, Notice, Goodbye (surrender/abandon) after reasonable opportunity to cure.
3. Partial constructive - stay and abate
4. Partial actual - stay and pay no rent
74
Implied Warranty of Habitability (and Remedies for tenants)
1. Fit for human habitation. Non- waivable;
2. T's remedies include (WOPT):
3. Withhold rent,
4. Offset and repair,
5. Possession continued,
6. Terminate and vacate.
75
Retaliatory Eviction
LL may not retaliate after T has exercised a legal right.
76
Assignments and Subleases, Generally
1. If no prohibition in lease, permitted;
2. Freely transferrable in whole or in part, but limitations strictly construed;
3. Once LL consents to one assignment, LL waives unless reasserted (Dumpor's case - doesn't apply to sublease).
77
Assignments
1. T1 assigns remainder of term to T2;
2. LL and T2 in privity of estate, liable to each other for all covenants in original lease that run with land (pay rent and repair);
3. No privity of K unless novation.
78
Sublease
1. T1 conveys less than remainder of term to T2;
2. No privity of estate or K between LL and T2;
3. T2 liable to T1 only, and T1 remains liable to LL.
80
Necessity
1. Public - protect community. Not liable in tort or damages.
2. Private - protect self. Not liable in tort but for actual damages.
80
Eminent Domain (government taking)
1. 5a prohibits without just compensation;
2. 14a applies to states
3. Justified if for public use - liberally construed;
4. FMV at time of taking.
Real Property
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