Term
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Definition
- presumed in the absence of express contrary intent;
- it runs forever and is fully alienable.
Note: any attempt to put a direct restraint on alienation is void; a right to first refusal is not an invalid restraint. |
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Term
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Definition
created by durational language (e.g. “as long as; while; during”) O retains possibility of reveter |
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Term
fee simple subject to condition subsequent |
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Definition
grantor reserves the right to terminate the estate and re-enter it (but grantor must take action); created by conditional words (e.g. “but if; on condition that; etc.”) O retains right of entry |
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Term
| fee simple subject to executory interest |
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Definition
| fee simple terminates upon the happening of a stated event and then passes to a 3rd party rather than reverting to the grantor |
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Term
| Future interests of the grantor |
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Definition
| reversion (To A for life—then it reverts); possibility of reverter; right of entry |
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Term
| Future interests of the grantee |
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Definition
| executory interest; vested remainder (A for life, then to B); vested remainder subject to open (A for life, then to B’s children); contingent remainder (A for life, then to B if B is at least 21 on A’s death) |
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Term
| Rule Against Perpetuities |
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Definition
| “No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.” |
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Term
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Definition
distinguishing feature is the right of survivorship. Four unities required: time, title, interest, and possession (i.e. joint tenants must take identical interests, at the same time, by the same instrument, with the same right to possession. Note: if no clear expression of right of survivorship, presume to be a tenancy in common. Also: a voluntary or involuntary (including the execution of a mortgage in title theory states) conveyance by a joint tenant of his undivided interest destroys the joint tenancy. The transferee takes as a tenant in common. |
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Term
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Definition
| no right of survivorship. Tenants can hold different interests in the property, but each is entitled to possession of the whole. Interests are alienable, devisable, and inheritable. |
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Term
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Definition
| an estate in land, under which the tenant has a present possessory interest in the leased premises and the landlord has a future interest (reversion). Two main types of leases: (1) tenancy for years: continues for a fixed period of time and ends automatically at termination date; and (2) periodic tenancy: continues for successive periods (e.g. month to month) until terminated by proper notice by either party. It can be created by express agreement, implication, or operation of law. It is automatically renewed until proper notice of termination is given. |
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Term
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Definition
a. duty to delivery possession of premises: most states require landlord to place tenant in actual possession at beginning of leasehold term (i.e. landlord is in breach if he has not evicted a hold-over tenant) b. quiet enjoyment: implied covenant that neither the landlord nor a paramount title holder will interfere with tenant’s quiet enjoyment and possession of leased premises. Can be breached by actual, partial, or constructive eviction. c. implied warranty of habitability: this is on residential leases. Landlord’s duty is tied to local housing codes. In event of breach, tenant may: (1) terminate the lease; (2) make repairs/recover costs; (3) abate the rent; (4) sue for damages d. assignments: absent an express restriction in the lease, a tenant may freely transfer his leasehold interest in whole or in part. If in whole, it is an assignment; if in part, a sublease. An assignee stands in the shoes of the original tenant. |
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Term
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Definition
a. H hostile: being on the property with no right to be there; b. E exclusive: adverse possessor must be excluding others from possessing the property; c. L lasting: possession must last for the statutory period. (If time is not given, use the common law rule 20 years.); d. U uninterrupted: must be the kind of continuous use an ordinary owner would make; e. V visible: i.e. out in the open (“open and notorious”); and f. A actual: must actually possess the land to get title (unless the land is being leased, or there is “constructive” adverse possession—where possessor goes on property under color of title to a larger tract, but actually only possesses a portion of the larger unit, constructive adverse possession can give title to all of it). Note: the owner does not have to know that the adverse possessor is on the land, and the adverse possessor does not have to think that he owns the property—he can intend to be adversely possessing the whole time. |
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Term
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Definition
grant of an interest in land that allows someone to use another’s land. Presumed to be of perpetual duration. Termination can occur by: (1) merger: both dominant and servient estates come together in the same owner; (2) release: owner of easement releases the servient tenement; (3) abandonment: holder demonstrates by physical action (e.g. building something that blocks the easement) in intent to permanently abandon (nonuse won’t suffice); (4) necessity: easements created by necessity expire as soon as the necessity ends; (5) prescription; (6) estoppel |
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Term
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Definition
to go onto another’s land. Merely a privilege, revocable at the will of the licensor. It is inalienable. |
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Term
for burden to run (Real Covenant) |
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Definition
| (1) intent of successors in interest to be bound by terms of covenant; (2) notice by subsequent purchasers of the covenant; (3) horizontal privity: promisor/promisee must have shared some interest in land independent of the contract; (4) vertical privity: successor in interest must hold the entire durational interest held by the covenantor; and (5) covenant must touch and concern the land. |
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Term
| requirements for benefit to run (Real Covenant) |
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Definition
| 1) intent; (2) vertical privity; and (3) touch and concern the land |
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Term
Remedies for breach of Real Covenant |
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Definition
| only: a breach of a real covenant is remedied by an award of money damages, collectible from the defendant’s general assets. If injunction is sought, the promise must be enforced as an equitable servitude |
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Term
Termination of Real Covenant |
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Definition
| a covenant may be terminated by a (1) written release; (2) merger of benefited/burdened estates; or (3) condemnation of the burdened party |
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Term
equitable defenses to enforcement of equitable servitude |
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Definition
| a court will not enforce an equitable servitude if: (1) person seeking enforcement is violating a similar restriction on his own land (unclean hands); (2) a benefited party acquiesced in violation of the servitude by one burdened party; (3) a benefited party acted in such a way that a reasonable person would believe the covenant was abandoned (estoppel); (4) benefited party fails to bring suit against the violator within a reasonable time (laches); or (5) the neighborhood has changed so significantly, enforcement would be inequitable. |
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Term
Requirements for burden to run (Equitqble servitude) |
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Definition
| (1) intent of successors in interest to be bound by terms of covenant; (2) notice by subsequent purchasers of the covenant; (3) covenant must touch and concern the land. |
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Term
Requirement for benefit to run (Equitqble Servitude) |
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Definition
(1) intent; (2) touch and concern the land |
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Term
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Definition
| ownership of land includes the right to have the land supported in its natural state by adjoining land. A landowner is strictly liable if his excavation causes adjacent land to subside |
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Term
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Definition
| an underground occupant of land (e.g. a mining company) must support the surface and buildings existing on the date the subjacent estate was created. Liability for subsequent buildings requires negligence. |
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Term
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Definition
| any contract of sale in an interest of real property must be in writing and signed by the one being sued. Typically, the writing requires a description of the property, the names of the parties, and the price. Note: exception is the doctrine of partial performance, whereby the oral contract must be clear and certain, and the acts of partial performance must prove up a contract (e.g. paying full or almost full purchase price, erecting improvements on the land). |
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Term
legal effect of the contract of sale between time of signing of contract and closing: four issues |
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Definition
a. risk of loss: if property damaged/destroyed prior to closing, the buyer loses (so long as the seller is not at fault); b. death of either party: if seller dies prior to closing, buyer still closes w/ seller’s heirs; if buyer dies, his heirs can demand conveyance of the land at closing; c. marketable title: every contract has implied warranty that seller will give buyer marketable title at closing. Three things: (1) proof of title; (2) title free of encumbrances; and (3) valid legal title on day of closing; d. time of performance: courts presume that time is not “of the essence.” 2 months late is still reasonable to tender. |
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Term
Remedies for breach of sale contract |
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Definition
| (1) damages: difference between K price and value of land on day of breach (note: liquidated damages: buyer’s deposit can be forfeited if not more than 10% of sale price); (2) specific performance of K |
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Term
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Definition
| transfer title to an interest in real property. A deed must be in writing, signed by the grantor, and reasonably identify the parties and land. Note: description is sufficient if it provides a good lead to the identity of the property. |
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Term
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Definition
general warranty deed has the following covenants of title: (1) seisen; (2) right to convey; (3) against encumbrances; (4) quiet enjoyment; (5) warranty; (6) further assurances. A special warranty deed gives 2 limited assurances: estate hasn’t been conveyed before; no encumbrances A quitclaim deed gives no covenants of title, and conveys only the grantor’s interest |
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Term
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Definition
| protect subsequent grantees who are BFPs |
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Term
Race-Notice Recording Acts |
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Definition
| (statute will have the words “first recorded” or “recorded first” in it): protect subsequent grantees who are BFPs who take without notice and are 1st to record |
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Term
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Definition
notice is irrelevant; whoever records 1st wins. |
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Term
possession before foreclosure |
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Definition
| title theory state—mortgagee is entitled to possession; lien theory state—no possession |
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