Real Property

  1. Joint Tenancy:
    co-ownership between 2 or more with right to possess the entire parcel & rights of survivorship (death of co-t, interest dissolves and survivor takes all). Four unities required (PITT), possession-right to use whole property, interest-same interest both as to type/duration, title-acquired interest by same instrument, and time-interest acquired at the same time.
  2. Joint Tenancy Severance:
    • JT can be terminated by unilateral action.
    • 1.By conveyance-creates Tenancy in Common.
    • 2. Mortgage- Title Theory (Min) will destroy unity of title (severance). Lien Theory (Maj): No severance
    • 3. Lease: CL: Severance ML:No severance
  3. Tenancy In Common
    • Co-ownership with undivided interest, each possess the entire parcel with not rights of survivorship. TIC only unity requires is Possession
    • i. Upon death, undivided interest=will or heirs
    • ii. ML presumed unless specifically states
    • iii. TIC terminated judicial action or partition (involuntary) or co-t agree in writing(voluntary)
  4. Tenancy By The Entirety
    • Co-ownership between 2, husband and wife with rights of survivorship (death of spouse, survivor takes all). Requires four unities (PITT) of possession, interest, title and time.
    • i. Cannot be unilaterally terminated
    • ii. CL=married person ML=TIC unless specifically states
    • iii. Severance: divorce, death, mutual agreement and execution by joint creditor
  5. Rights/Duties of Co-Tenants:
    • i. Difficult to Adversely possess unless ouster
    • ii. Co-t must share rent gained from 3rd party only
    • iii. All co-t must contribute to taxes & mortgage
    • iv. Use of land that reduces value (profits)=co-t must pay other co-t amount equal to value lost
    • v. Repairs: (maj): voluntary repair require co-t to contribute (must notify in advance) (min): Co-t not right to contribution
    • vi. Improvements: no contribution
  6. Fee Simple Absolute
    • an estate which has the possibility of enduring forever with no limitations on inheritance. Cannot be divested. Freehold and seisen.
    • 1. CL: required words of limitations “& heirs” otherwise be a life estate.
    • 2. ML: No word of limitation required.
  7. Fee Simple Defeasible
    • An estate, potential of infinite duration, however interest can be terminated on happening of some event & return to Grantor.
    • 1. Limited specific duration language: “Unless” “Until” “During” “while” “So long as”
  8. Fee Simple Subject to Condition Subsequent
    • Present fee simple, limited in duration by specific conditional language (Upon the condition that, but if, if it happens, by the order of)
    • 1. Estate will terminate at Grantors election only if Grantor affirmatively demonstrates intent to terminate. Grantors future interest right of entry
  9. Fee Simple Subject to Executory Interest (Limitation)
    Present fee simple, limited in duration by specific conditional language or durational language such that it will terminate automatically upon occurrence of specified condition & title will pass to 3rd party (executory interest).
  10. Life Estate
    An estate for life, not terminable at any fixed or comparable period of time, cannot last longer than lives or life of one or more persons, created by agreement or operation of law, can be absolute or defeasible.
  11. Fee Tail:
    Freehold estate that limits the estate to the Grantee’s lineal descendants’ (bloodline) denoted by language of “heir of his body”.
  12. Ambiguities
    • To resolve ambiguities, the courts employ the Rules of Construction. Courts avoid and abhor forfeitures (automotive reversion of land)
    • i. Condition Subsequent: Right of entry
    • ii. Determinable: Right of reverter
    • iii. Covenant: Promise to do something. If breached-right to an action for damages but Grantee still holds the land.
  13. Dower
    Wifes interest in husbands property at death.
  14. Curtesy:
    • Husbands interest in Wifes property at death.
    • i. Abolished in most states
  15. Future Interest Defined:
    An interest capable of becoming present possessory at some future time and legally protected right in property.
  16. Reversion:
    • Future interest held by Grantor, Grants life estate or estate for years, does not convey future interest to 3rd party.
    • 1. Not subject to Rules Against Perpetuities, are transferable, divisible by will and descendible by inheritance.
    • 2. Holder can sue possessory owner 4 waste.
  17. Possibility Reverter:
    Future interest retained by Grantor when fee simple determinable is conveyed and is not subject to Rule Against Perpetuities.
  18. Right of Entry:
    Future interest held by Grantor after fee simple subject to condition subsequent is granted & is not subject to Rules Against Perpetuities.
  19. Remainder:
    • Future interest created in Grantee that is capable of becoming possessory immediately upon the natural termination of preceding freehold estate.
    • *always follows life estate.
    • CL: Could not follow an estate for years,
    • ML it can.
  20. Vested Remainder:
    Absolutely (indefeasibly) vested remainder is an interest not subject to any conditions precedent create din an ascertained Grantee.
  21. Contingent Remainder:
    Taking in possession is subject to a condition precedent or created in favor of unborn or unascertained persons. Because until the remainderman is ascertained, there is no one ready to take possession should the preceding estate come to an end.
  22. Executory Interest:
    • Future interest in rantee that is not remainder i.e. not capable of taking on the natural termination of the preceding estate. Interest that divest the interest of another. At CL, void ab initio.
    • 1. Shifting: estates shitft from one Grantee to another on the happening of the condition.
    • 2. Spring: divest interest of the Grantor or fills a gap in possession in which estate reverts to Grantor.
  23. Rule In Shelley’s Case
    a remainder in a life tenant-grantee’s heirs is deemed to be a life tenant herself.
  24. Doctrine of Worthier Title
    A remainder in the grantors heirs is ineffective so grantor has a reversion
  25. Restraints on Alienation (transfer)
    • Certain conditions placed in the transfer ability of land will be void for public policy.
    • 1. Disability: Can’t state that any transfers of land are no effect.
    • 2. Forfeiture: Can’t state that grantees forfeits the land if theres a transfer.
    • 3. Promisory: Can’t have covenant forbidding alienation
  26. Rules Against Perpetuities
    No interest in a property is valid unless if must vest or fail, no later than21 years after somelife in being at the creation of interest. If interest vest +21 years then void. 4 steps: classify future interest/conditions precedent/measure of life/with in certain+ 21 years.
  27. Class Gifts
    Group of unspecified persons whose numbers & identity & share of interest determined in the future. Ie children/grandchildren/nephews and nieces
  28. ADVERSE POSSESSION:
    • Possession for a statutory prescribed peropd of time can, if certain elements are met, ripen into title.
    • Requirements (HOAC)
    • Hostile/Open & Notorious/Actual & Exclusive/Continuous
  29. Hostile
    The possessor doesn’t have the true owners consent
  30. Open/Notorious: the sort of possession that the usual owner would make under the circumstances
  31. Actual & Exclusive
    using of the land consistent with the character of that particular parcel. No sharing.
  32. Continuous
    • uninterrupted for the given statutory period of time
    • Tacking: one adverse possessor may tack on to his time with the land his predecessors time so long as there is privity (blood, contract, deed or will).
  33. With Color of Title
    • Adverse possessor entered pursuant to written instrument that purported to convey him title of land but for some unknown reason and unknown to the claimant the instrument is defective and does not in fact convey.
    • 1. Will satisfy hostile intent requirement
  34. Without color of title
    the slaim extend only to such part of the land actually occupied.
  35. Disabilities:
    status of limitation will not run against a true owner who is afflicted with a disability at the inception of the AP. (Insanity, infancy, imprisonment)
  36. Future Interest:
    Statue of limitations does not run against the holder of a future interest until the interest becomes possessory. A-B for life, then to C. Y AP then Y aquires B’s life estate.
  37. Tenancy for Years:
    • A lease for a fixed determined period of time. Does not have to be period of years. Known termination date from start.
    • Power of Termination: No notice needed to terminate the tenancy as it ends at the specific date.
    • SOF:
    • ML: Term of years is greater than one year and must be in writing to be enforceable (SOF) CL: leases over 3 years to be in writing. Where an oral lease doesn’t comply with SOF, moving in makes tenancy at will while payment of rent makes tenancy at will into periodic tenancy.
    • Surrender: T prematurely gives up his right and L accepts. Writing is required if the unexpired term is greater than 1 year.
  38. Periodic Tenancy:
    • Lease which continues for successive of continuous intervals.
    • Creation: expressly or implication. Implication: no mention of duration-payment of rent at set intervals
    • Termination: Must provide notice, in writing and be at least equal to the length of the period itself. Month to month= 1 month notice. Y to Y= 6months. Must end at the conclusion of a natural lease period. T give notice 5/15, end 6/30.
  39. Tenancy at Will
    • May terminate by either party at any time.
    • Creation: express agreement or operation of law (invalid lease)
    • Termination: CL no notice required/ML: written notice require, CA 30 days. Operation of law if parties die or L executes a term lease to 3rd part.
  40. Tenancy at Sufferance
    • T has wrongfully held over past the expiration of the lease.
    • Implied/express consent makes tenancy at will or period to period
    • L’s Remedies: Eviction/Consent/Hold T liable for reasonable rental value under Q-K.
  41. Marketable title
    • Implied in every contract for the sale of land is a covenant the title is reasonably free from title defects
    • 1. Defects: Encumbrance, mortgage/liens, assessments, dower, easement that reduce the value of the property, restrictive covenants currently in breach and zoning.
    • 2. Adverse possession: most modern jurisdictions hold adverse possession title to be marketable. Problem occurs AP cannot demonstrate title by documents and must go into court quiet his title.
  42. Doctrine of Equitable Conversion:
    At the moment a contract occurs, equitable conversion will vest equitable title of the land in the buyer, leaving the seller holding bare title as security for the buyer who holds the balance of the purchase price as security for seller.
  43. Merger
    If the buyer permits the closing to occur, the contract merges with the deed and in the absence of fraud, the seller is no longer liable on the implied contractual warranty of marketable title. However, the buyer may have an action for violation of promises made in the deed.
  44. Mortgage
    • a device to secure repayment of a debt by the borrower (mortgagor/debtor) to the lender (mortgagee) who may either be the seller of the property or a bank or other third party. On default of the mortgage, the mortgagee has the right to sell the property at judicial foreclosure in order to satisfy the debt from the sale proceeds.
    • Effect of Transfer:
    • i. By Mortgagor: new transferee is not personally liable on the debt unless “assumes the mortgage.” The original mortgagor remains personally liable absent novation.
    • ii. By Mortgagee: Stands in the shoes
    • c. Rights on Default: May foreclose on the property and sell to satisfy the debt.
  45. Delivery of the Deed
    • The delivery must be unconditional and absolute. Grantor must have the present intent to transfer title irrevocably.
    • i. Escrow is the mandatory depositing of the deed with the 3rd party whereby the deed is released only upon the fulfillment of certain conditions.
  46. Closing:
    The closing is the time at which all final documents are signed and delieverd. (includes deed, financing, security devices, and other docs regarding property ie easements, profits)
  47. Recording Act:
    The general rule is that all prior interest in land are void if not duly recorded as to subsequent takers who purchase for value. The purpose of the recording act is to allow subsequent purchasers to rely on the instrument they’re about to purchase to be duly recorded.
  48. Bona fide purchaser:
    subsequent purchaser with valuable consideration without notice
  49. Notice
    • 1. Actual – firsthand information of a prior purchaser
    • 2. Inquiry Activities on the particular land in question (Min rule: Quitclaim deed automatically places buyer on inquiry notice)
    • 3. Constructive Notice: if the prior purchaser records his deed and it falls within the chain of title, the BFP is charges with notice whether the recording instrument is searched or not.
  50. Notice: Recording Act
    the essential requirement is at the time the BFP purchased, he was without notice as to any prior purchasers.
  51. Race: Recording Act
    recording first take priority irrespective of notice as to a prior purchaser
  52. Race-notice: Recording Act
    all deeds are invalid which are not duly recorded as to a subsequent taker who purchase for valuable consideration and without notice and records first.
  53. Common law: Recording Act
    first time in, first in right
  54. Wild deed:
    if a deed, entered on the record (A to B), has a grantor unconnected to the chain of title (O to A), the deed is a wild deed. It is incapable of giving record notice of its existence.
  55. The Shelter Rule:
    • one who takes from a BFP will prevail against any entity that the transferor BFP would have prevailed against. In other words, the transferee “takes shelter” in the status of her transferor, and thereby “steps into the shoes
    • a. The shelter rule intends to protect B, our BFP, it wants to make B’s life easier by allowing B to successfully transfer the land if he wishes.
  56. Estoppel by Deed:
    one who conveys realty in which he has no interest, is estopped from denying the validity of that conveyance if subsequently acquires the interest that he previously transferred.
  57. General Warranty:
    Warrants against all title defects arising before and during the time grantor had time (contains all 6 covenants)
  58. Special warranty deed:
    only warrants the defects arising during the grantors possession. It contains all size covenants. Grantor guarantees that he has done nothing to make the title defective.
  59. Quitclaim deed:
    vendor conveys only those rights he had at that particular point in time (no covenants)
  60. Six types of covenants
    • Covenant of Seisin (breached at outset):
    • Covenant of Encumbrances (breached at outset):
    • Right to Convey (breached at outset):
    • Covenant for quiet enjoyment (breach in future):
    • Covenant of further assurances (breached in the future):
    • General Warranty (Breach in future):
  61. Covenant of Seisin (breached at outset):
    Grantor warrants that he owns the estate he now seeks to convey.
  62. Covenant of Encumbrances (breached at outset):
    Grantor promises that there are not servitudes or mortgages on the land.
  63. Right to Convey (breached at outset):
    Grantor promises that he has the power to make this conveyance. Meaning there are no temporary restraints on grantors power to sell.
  64. Covenant for quiet enjoyment (breach in future):
    Grantor promises that grant will not be disturbed in possession by a 3rd party’s lawful claim of title.
  65. Covenant of further assurances (breached in the future):
    Grantor promises to do whatever future acts are reasonable necessary to perfect the title if it later turns out to be imperfect.
  66. General Warranty (Breach in future):
    Grantor promises to defend grantee should there be any lawful claims of title asserted by others.
Author
jasonfreise
ID
336948
Card Set
Real Property
Description
Real Property Prep
Updated