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Bar Study

Additional Law Flashcards




Fee Simple Aboslute

"To A and her heirs" or "to A"


No Future interest, lasts forever

Fee simple defeasible

1. Fee simple determinable

a. "to A so long as" or "to A until"

b. Possibility of Reverter in fee simple

2. Fee simple subject to a condition subsequent

a. "To A, but if" or "To A, however if)

b. Right of entry/power to terminate in fee simple. (Must take affirmative action).

c. failure to take affirmative may result in AP.

3. Fee simple subject to executory interest

a. "To A as long as...then to B" or "to A, but if, to B"

b. Future interest goes to executory interest.

c. If interest is 3rd party to 3rd party = Shifting

d. If interest is Grantor to 3rd party=Springing 

1. Look for condition precedent "To jabba if he wins the lottery"

Finite Estates (Must end)

1. Life Estate and Term of Years

a. "For life" or last day calculable on 1st day

b. Reversion of fee simple absolute if Grantor or Remainder if 3rd party.

1. If Remainder, then remainder is vested when grantee is 1. born, 2. ascertainable, and 3. No express condition precedent in same clause creating remainder or preceding clause. Otherwise it is contingent. If contingency never occurs, then Reversion to grantor.

2. Class gift will have a vested/contingent remainder subject to open

*"to Darth for the life of Yoda, then to Leia"

a. Darth has a life estate in Yoda Pure autra vi. Yoda is the measuring life.

*"TO Paul for life, then to Ringo if survives Paul, but if Ringo does not survive paul, then to Yoko"

a. R has a contingent remainder in FS. Y has an alternative contingent remainder.

*To Gordon for life, then to Kermie, but if Gordon stops farming the land, then to susan"

a. G has a life estate. K has a a vested remainder subject to divestment. Susan has a shifting executory interest.

*Tax sale will cut off rights of remainder.

*Life tenant cannot use or exploit natural resources unless natural resources were exploited on land before obtaining interest (Only applies to life tenant)

Class Gift

to an identifiable group of people (children, nephews, etc).  Class gift will usually be a contingent or vested remainder subject to open.  The class will close:

1. Naturally

2. Rule of convenience: once any member of class is entitled to possession of his or her interest.

a. Includes babies in womb


Plaintiff may be holder of a future interest or a mortgagee, and are entitled to damages and injunctive relief.


1. Voluntary waste

2. Permissive waste.

3. Financial waste

a. Life tenant is responsible for taxes up to property's rental value.

*Tax sale will cut off rights of remainder

b. Life tenant is responsible for Mortgage interest.

c. Holder of future interest ins responsible for mortgage principal.

4. Permissive destruction

a. Life tenant can make changes if neighborhood has changed, making present use infeasible.

b. Life tenant can makes changes if building replaced with one having equal or greater value.


A future interest covered by the RAP is void unless certain to vest OR fail years after some life in being.


Watch out for contingent remainders where condition is not tied to a life in being and 1. a number of years exceeds 21 and 2. Skipping generations.


Watch out for executory interests that are not tied to a life in being.


*Does not apply if all parties are charities

*Does not apply to Right of entry (fee simple subject to a condition subsequent).

Restraints on Alienation

"but if A ever attempts to transfer his land without my consent, transfer shall be null and void." Forfeiture restraints.


"But if A ever transfers this land without my consent, I may reenter and terminate the estate." Disabling restraint


"But if A agrees and covenants never to transfer this land without my consent" Promisory restraint.


1.  Disabling restraints are void.

2. Forfeiture and promisory are sometimes enforced if:

a. the interest is less than a fee simple absolute

b. The restraint is limited in time and number of people affected.

c. The restraint has a reasonable purpose.

d. the land was conveyed for charitable use.

Joint Tenancy

When one joint tenant dies, his or her interest is extinguished and share of surviving tenants is re-calculated.

1.Right of survivorship > Will

2.Does not go through probate

3. Requires:

a. Time = Interest acquired at the same time

b. Title= Parties have to acquire interest via same instrument

c. Interest= equal

d. Possession = equally legal right to possess.

4. Unilateral Transfer of interest=severed JT to that share and turns it into a TIC.

5. Common law requires two parties to create or terminate JT (*straw man).

a. Title theory severs JT if JT mortgages her interest.

b. severs JT if JT leases her interest

c. In an issue of exclusive possession, no duty to pay rent absent ouster (physical attempt and physical denial).

d. Only right to contribution is with respect to carrying costs (keeping title)

e. Duty to account to co-tenants for $ generated from 3rd party use of land

6. Modern Trend only requires intent to create or terminate JT

a. Lien theory does not sever JT if JT mortgages her interest

b. Does not sever JT if JT leases her interest.

c. Mortgage/lease extinguishes on death of co-tenant.

d. Judgment liens do not sever JT

e. Exclusive possession does not require duty to pay rent absent demand to vacate or demand for money.

f. Only right to contribution is Carrying costs and necessary repairs.

g. duty to account

7. Right to partition in kind (physical) or partition in sale (preferred).

a. Non-improver will not get improvements. If he does, he will have to pay for added value.

8. Felonous or intentional murder of another

a. Majority: Turns killer's share into TIC

b. Minority: treats murder as having pre-deceased decedent.


*This was the common law default. However, now there must be express intent or it will be a TIC.

Tenancy in common

There is no right to survivorship. When TIC dies, his or her interest is inheritable/devisable.  It does go through probate and historically only requires an equal legal right to possess. The interest is unilaterally transferrable.


*Modern trend is that this is the default

Tenancy by Entirety (NOt in AZ)

Joint Tenancy + Marriage. When one tenant dies, his or her interest is extinguished. Does not go through probate. Requires same Joint Tenant requirements (Time, title, interest, possession) plus marriage at time of conveyance. Not unilaterally transferable.

Adverse Possession (CCaanoe)

Actual entry onto land of another that is open and notorious, adverse, exclusive, under a claim of right, and continuous for the statutory period.

*Is the AP acting like a true owner would?

1. Actual entry: Starts COA for ejectment

2. Open and Notorious: Requires possession that would give constructive notice.

3. Adverse: without permission

4. Exclusive: regulates access like a true owner would.

5. Claim of right: Is AP state of mind relevant?

A. Majority=No

B. Minority = Yes if good faith 

C. Minority = Yes if bad faithed

6. Continuous = As continuous as an ordinary owner of that type of property.


7. AP will get land actually possessed absent color of title (Claim of AP based on defective written instrument)

8. Tacking will be allowed if there is privity.

a. American Approach: reasonable connection between APs

b. English Approach: so long as there is no significant gap.

9. Transfers of Title by true owner after AP has begun will not effect the running of AP.

10. Once AP is acheived, AP gets title as to when AP began.

*If AP acquires life estate by AP, AP will have to start over when life estate dies.

11. Affirmative Defenses

a. If true owner has a qualifying disability on day AP begins, SOL tolls until disability is removed (10 years).

1. In prison

a. Imprisonment only tolls until owner should have realized AP was on land.

2. Minors under 18

3. Mental defect

b. Government land.

Types of Leases

1. Term of years: Last date has to be calculable on first day and is a single fixed period. No notice to terminate necessary


2. Periodic Tenancy: Single fixed period. Requires proper notice or automatically renews.

a. Common law: Notice has to be given equal to fixed period but in no event > 6 months to end on last day of fixed period.

b. Modern Trend: at least 30 days to end on last day of fixed period; unless it is a month to month periodic tenancy, then 30 days to end on any day.

1. Week to week: 10 days

2. month to month: MT

c. Death of L or T does not affect lease.

d. can have a term of years determinable.

3. Tenancy at will: No fixed period. Either party can terminate at will at any time.

a. Common law: no notice

b. Modern Trend: 30 days

c. Periodic payments can be bootstrapped into periodic tenancy.


4. Tenancy at Sufferance: Implied offer to L to enter into new lease.

a. acceptance = new tenancy = term+rent based on old (max 1 year, if less than a year = month to month)

b. If beyond T's control, MT allows no new tenancy, but CL doesn't.

Landlord's duty to deliver legal/actual possession

1. L with duty to deliver legal possession, as is implied by covenant of quiet enjoyment.


2. Actual possession

a. American Approach: No

b. English Approach: Yes, only on first day

Tenant's right to transfer legal right to possession

A. Generally, T has right to transfer legal right of possession.

1. All of the interest = Assignment

2. less than all of interest = sub-lease

B. L can sue anyone to enforce the covenant in the lease with whom she is in privity of Contract and Privity of Estate. 

1. Privity of K= parties to an agreement

a. MT: 3rd party (L) beneficiary privity of K = express assumption clause which gives L rights to K between T and Sub T.

2. Privity of estate: legal right of possession. Any party with privity of estate will be liable for breach of obligations during period at which they had privity of estate.

3. Any person in legal possession of the property is liable for his or her share of the rent, making subtenants liable for rent regardless of privity of contract or estate

C. L can insert an approval clause but they are construed narrowly.

a. transfer between T1 and T2 will be valid but subject to L's rights

b. L will have right to terminate or ratify agreement with T1.

c. Common Law does not require L to act reasonably in withholding consent, but Modern trend requires commercially reasonable grounds.

Tenant Breaches and Stays

If the T has breached but remains on the property, L can only evict T with right of re-entry clause.

1. Common law: Covenants of lease are independent of each other

2. Modern trend: Covenants of lease are dependent

If L has a legal right to possession, then he can only use self-help under common law and must go to courts to get eviction.

a. Cannot change locks and put T's possessions on sidewalk

b. If commercial, L can seize T's goods on premise and hold them for 60 days, then sell in auction.

Tenant breaches and abandons

When a T wants to abandon, L can accept or reject, including if T actually abandons. If T actually abandons, L has a duty under MT to mitigate (but not under CL). T will be responsible for costs, re-letting expenses and full rent for period of vacancy, and L will bear BOP to show mitigation effort. Failure to mitigate will reduce the recovery to what L would have received had they mitigated.

1. Can seize T's goos and sell them 10 days after the lease expires after sending T notice of abandonement and intent to sell.

Landlord Breaches (Common Law)

Covenant of quiet enjoyment is implied in every lease: L nor anyone claiming through L with a superior right to possession will disrupt T's quiet enjoyment of the property. 


1. Wrongful eviction

2. Constructive eviction

a. L owes T a duty

1. In K

2. Implied duties

a. Keep short term furnished dwellings habitable (shorter than month-month)

b. Disclose latent defects on 1st day that L knows about

c. Abstain from fraudulent misrepresentations.

d. undertake promised repairs carefully

e. maintain common areas.

f. abate immoral conduct or nuisances on other property owned by L.

b. Breach

c. Breach gives rise to a permanent condition that renders property substantially unsuitable for purposes it was leased.

1. If building is destroyed and not T's fault, L cannot hold T liable.

d. T must give L notice

e. T must give L reasonable time to fix

f. if L does not care, T must vacate in reasonable time.

Implied Warranty of Habitability (Landlord breach under Mondern Trend)

Tenant's duty to pay rent is dependent on landlord's duty to proved and maintain habitable premises. Maintenance is tested on a reasonable person standard, and focus is on health and safety.


1. Requirements

a. Notification

b. Reasonable time to fix

1. Breach of covenant in lease: 10 days

2. Breach of housing code or Residential L-T act affecting health and safety: 5 days

2. Breach remedies

a. terminate the lease

b. abate rent to reflect you aint getting what you asked for.

c. Sue for damages

d. self-help (repair yourself and get reimbursed).

3. L cannot K out of this

4.  If L adversely treats T within 6 months of a good faithed WOH argument, rebuttable presumption that L's action was retaliatory.


AZ security Deposits

Deposit may not exceed 1 + 1/2 of month's rent. L must refund the deposit or give an itemized list of reasons for not refunding within 14 business days after lease expires. If L does not do so, L is liable for damages, including deposit and double the amount of the deposit. Also punitive damages if L was culpable in wrongfully witholding deposit.

AZ Termination of Leases

Non-ARLTA: L may terminate and immediatley bring forcible entry and detainer action if Rent is 5 days late (no notice to T is required) or T breaches any provision of the lease (material or not)

ARLTA: L must first give notice to T and T has right to cure it. If rent is unpaid for 5 days after L gives T notice or T Materially breaches provision of the lease after 10 days notice.



Landlord's Torts

Common law and general rule is no landlord liability, but there are six exceptions.

1. L knows or has reason to know of latent defect.

2. Common areas

3. Short term furnished dwelling

4. Premises leased for public use.

5. Express duty in K

6. Promises to repair.


Modern trend is a general duty of care/negligence, whether above situations are present or not.

1. L has duty to maintain security features represented to T when Lease commences.

2. negligence per se on breach of statutory duty.

Types of Easements

Easement appertinent

Two parcels

Servient estate: Path

Dominant estate: gets the benefit


Easement in gross

one parcel

Servient estate: path

benefit tied to a person


Vs. Licenses

Licenses are revocable, while easements are not. Licenses are more personal and can be created orally, but easements must comply with statute of frauds.

Creation of an Easement

1. Express in writhing that complies with S of F.

a. Express intent as to what interest is being created.

b. Location of interest on servient estate.

c. Scope of interest

d. duration of the interest (Default: Fee simple absolute).

2. Cannot have an easement in your own land due to doctrine of merger (easement merges into title).

a. Can reserve the easement you want rights to when conveying property you own to 3rd party.

b. If you own the property, you can grant an easement for the use of a 3rd party.

c. When you sell property to a 3rd party that contains an easement, you should convey good title by excepting out easement.

d. Modern Trend allows you to reserve a newly created easement in favor of a 3rd party. CL does not.



Easement by Estoppel

A licensee changes his or her position in reasonable reliance on the license by making a substantial expenditure of money, and the licensor knows or should know of the expenditure

a. Duration: as long as necessary to recoup investment.

Implied easement by prior existing use

1. Single parcel of land (can be multiple lots but all owned by same party).

2. Severence

3. at the time of severance there must be a quasi-easement (prior existing use by original owner)

4. That is apparent, continuous, and necessary

a. Common law requires reasonable necessity in an implied grant and strict necessity implied reservation. Modern trend only requires reasonably necessary.

Implied Easement by Necessity (Land-locked)

1. Single parcel of land

2. Severance 

3. As a result of severance, one of the parcels is land-locked.

a. Common law requires absolute land lock

b. MT only requires land locked for practical purposes.

4. Duration: So long as it is land-locked.


*Arizona only recognizes implied grants in this situation.

Prescriptive Easement

Doctrine of AP except applied to use instead of possession and need not be exclusive.


Owner can:

1. block the easement before the AP period has run

2. Bring action for injunctive relief

3. Give Trespasser permission and have her acknowledge it.

Life of Easement (use, Maintenance, transferability, divisibility, Scope)

Life of an easement should be expressed in the grant, otherwise look to conduct.


*Under CL, owner of servient estate cannot move it. MT allows this so long as it doesn't unreasonably burden easement holder.

*Owner can use land underlying the easement so long as it does not unreasonably interfere with easement holder's use.


1. Maintenance is responsibility of easement holder absent agreement.

2. Transferrability

a. Dominant estate must be transferred for an appurtenant easement

b. In gross estates must contain parties' express intent or implied intent if commercial.

3. Divisibility

a. Part of dominant estate has to be divised

b. In gross is ok so long as it doesn't unreasonably burden servient estate.

4. Scope of easement

a. attaches to every inch of dominant estate, but no more land.

b. breach of scope can result in damages or injunctive relief, but not termination.

c. Reasonable change in use is permitted if change in technology and change does not unduly increase burden on easement.

Termination of Easements

1. Inherent in easement

a. License coupled with estoppel as long as necessary to recoup investment

b. Implied easement by necessity as long as land locked.

2. Merger: if easement holder also owns servient estate.

a. if you re-sell, you have to re-create easement or reserve right to it.

3. Release: Express document executed by easement holder releasing use.

4. Abandonment: implied release based on conduct. Non-use is not enough. Must have an additional action.

Covenants (PIT and NIT, Standing, common schemes)

A limitation on how one can use his or her land that is usually in writing that complies with statute of frauds.


1. To prove damages = real covenant = privity, intent, touch, and concern

a. Privity =  Burden or Benefit?

1. Burden requires Horizontal and Vertical privity.

a.  a Burden occurs when the successor is not complying with the covenant and an original party would like to stop the successor's actions.

b. Horizontal privity occurs if 1) relationship between original parties of covenant  created property interest other than covenant at same time covenant was created (Successive) or 2) there was a pre-existing property relationship between the parties (Mutual).

c. Vertical privity is the relationship between an original party and a successor in interest and must be the same estate (in duration) as the challenger.

2. Benefit does not require Horizontal privity and vertical privity can be an estate of any duration.

a. Benefit occurs when successor wants to enforce the covenant on an original party.

*If there is no horizontal privity, then successor can enforce covenant on original party but will not be able to enforce against another successor.

b. Intent that covenant "run with the land," which is usually demonstrated in the language of the covenant or by the parties' conduct

c. Touch and Concern: Affects use of the land and is not personal.

2. To prove injunction = equitable servitude = Notice, intent, Touch and Concern

a. Notice can be actual or constructive

1. If covenant has been recorded, then the whole world is on notice (constructive)

b. Intent

c. Touch and Concern.


3. Standing: Subsequent grantees from party who entered into the covenant have standing.

a. Common Scheme:If multiple lots, subsequent grantees from common grantor have standing, but prior grantees do not have standing ABSENT common scheme.


b. Implied common Scheme: Grantor who owns 2 or more lots conveys one with express conditions, restrictions will be implied back against lots retained by grantor at time if lots are so situated as to bear the relation (physical proximity and >50% expressly restricted. 


* In AZ, Anyone K says should have standing has standing or if standing was intended.



Real Estate Conveyances (Real Estate Broker, K of Sale, Defects to title, buyer's duties, Defects in improvement, breach of K)

1. Real Estate broker gets commission when?

a. CL majority = produces ready, willing, and able buyer

b. MT: not untile and unless K closes (unless failure is seller's fault do to bad faith)

2. Contract of Sale

a. Parties, property, and price in writing

1. Part performance by payment and improvement or possession will overcome SOF.

2. Reasonable detrimental reliance

3. Equitable estoppel: party changed position in reliance, other party knows or should know, inequitable not to enforce.

b. Defects in title

1. Every contract contains an implied warranty that the seller will provide marketable title (title reasonably free of doubt or litigation) at closing.

a. Defects in chain of title 

1. AP is unmarketable for purposces of MBE, but modern cases usually the opposite.

b. Encumberances

c. Zoning restrictions that violate ordinances.

2. If there is a defect that renders title unmarketable, buyer must give seller notice and give seller reasonable time to cure.

a. However, Seller's liablility on the implied warranty ends if closing occurs because the k merges with the deed.


c. Buyer's Duties

a. Inspect.

b. Check chain of title


d. Defects in improvement:

a. Duty to notify of latent and material defects that seller knows of.

b. Implied warranty of workmanship: Purchaser of peroperty can sue the builder or developer for latent defects that arise within a reasonable period of time which cause economic loss, and can do so post-closing


e. Breach of K

a. Damages

b. Seller keeps deposit/buyer entitled to return of deposit

c. Specific performance.


Closing (property)

1. Deed is effective when it is validly executed and delivered (when grantor intends to relinquish control/transfer title). If there is a K, no problem. However, becomes an issue in the donative setting when:

1. Grantor is still in possession of deed: no delivery.

2. Grantee in physical possession of deed: delivery

3. Deed recorded: delivery.

4. oral conditions between two people on effectivenss of deed is ineffective and between three people if intermediary is still in grantor's control.

Post-closing (recording acts)

1. Notice: Subsequent BFP without notice (Actual, Record, inquiry) of competing claim (tested at closing)

a. Does not matter if first purchaser records after second purchaser. Second purchaser still wins if they had no notice.

b. Also be careful of a wild deed, in which second purchaser will not have notice even when first purchaser records because an owner prior to first purchaser failed to record (O to A. A to B (B records). O to C. A records)

c. A subsequent purchaser of a BFP who complies with the notice requirement will be sheltered by BFP's protection (O to A. O to B. A records. B to C (C gets title).

2. Race-notice: subsequent BFP without notice of competing claim and Records first.

a. whole chain of title must be properly recorded, not just their deed (Zimmer Rule)

3. Estoppel: If someone who does not have a property interest purports to convey that property interest and thereafter acquires the property interest, the party is estopped from denying the effectiveness of conveyance (O owns GA. A to B. B records. O to A).


*Only BFPs are protected from claims of a prior transferee.


1. In post closing, the K has merged with the deed. Absent protection under the recording act, buyer will only be able to sue based on warranties in the deed.

a. General Warranty

1. title and possession (seisn)

2. right to convey

3. covenant against encumbrances

4. Quiet enjoyment

5. general warranty (I will defend if someone disrupts your quiet injoyment)

6. Future assurances

*applies to all acts of all prior owners and immediate.

b. Special warranty

a. all 6 warranties, but only if defect arose during immediate grantor's title of ownership

c. Quit-claim Deed

a. No warranties

2. Mere existence of superior interest at closing will prove breach of present covenants, while assertion of superior property interests will prove breach of future covenants.

Mortgages (transfer, foreclosure)

1. If the grantee signs and assumption agreement, he becomes primarily liable to the lender, while the original mortgagor is secondarily liable as a surety. If not, the grantee is not personally liable on the loan, and the original mortgager remains primarily and personally liable. However, if grantee does not pay, loan may be foreclosed.


2. Foreclosure will wipe out all junior mortgages but not all senior ones, and buyer will take subject to the senior ones.

a. However, a junior mortgager can pay off the senior mortgage to preserve its own interest in the land.

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