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Real Property
BarBri Wake Group
82
Law
Professional
06/12/2011

Additional Law Flashcards

 


 

Cards

Term
Voluntary Waste
Definition
Any affirmative action beyond the right of maintenance causing harm to the premises
Term
Permissive Waste
Definition
Inaction, where the tenant has failed to maintain
Term
Ameliorative Waste
Definition
Affirmative act that alters the property but increases the value of the property
Term
Duties to avoid permissive waste
Definition
1) pay taxes 2) pay interest on mortgage and 3) ordinary repairs, NOT replacement
Term
Reversion
Definition
Future interest kept by the grantor when grantor gives less than the duration of the estate he currently holds; alienable and not subject to RAP
Term
Possibility of reverter
Definition
Future interest kept by the grantor when the grantor grants a fee simple determinable and reverts automatically upon the condition happening; alienable and not subject to RAP
Term
Right of reentry
Definition
Future interest retained by the grantor when grantor grants a fee simple subject to condition subsequent; cannot be transferred inter vivos but not subject to RAP
Term
Remainder
Definition
Future interest retained by the grantee that becomes possessory, if at all, upon the termination of the preceding estate. Only follow life estates.
Term
Vested Remainder
Definition
Nothing stands in the way of it becoming possessory because we know who will take and when. Subject to open for class gifts that have yet to close
Term
Contingent remainder
Definition
Remainder will not become possessory until the occurrence of a condition, i.e. grantee not in existence, identity of exact taker unknown, etc.
Term
Executory interest
Definition
Cuts short the interest preceding it upon the occurrence of some condition. Shifting = one grantee to another grantee; Springing = grantor to grantee
Term
Estates subject to RAP
Definition
Contingent remainders, vested remainders subject to open, executory interest, options to purchase, rights to first refusal
Term
Perpetuity Savings Clause
Definition
"...during the lifetime of A or B, or within 21 years after the death of A or B"
Term
Joint tenancy
Definition
Right of survivorship and right to partition. Created by the 4 unities: TTIP= time, title, interest, possession.
Term
Involuntary destruction of a jt tenancy
Definition
1) Conveyance by one of the jt tenants, 2) mortgage in a title theory state, 3) K of sale, 4) Creditor's sale of the interest in the jt tenant
Term
Tenancy in Common
Definition
Presumption if ambiguous. Right to partition but no right to survivorship. Only unity needed is equal rights of possession.
Term
When one co tenant is accountable to other co tenants for profits
Definition
1) ouster, 2) agreement to share, 3) lease of the property by the co T, 4) depletion of natural resources
Term
When one co tenant is entitled to contribution from other co tenants
Definition
1) necessary repairs, 2) mortgage payments where all co T signed for it, 3) paying taxes or other gvt obligations
Term
Creation of a periodic tenancy
Definition
1) express agreement, 2) implication: lease is silent and periodic tenancy is presumed for the time of the rent period, 3) operation of law: oral lease violating SOF or hold over tenant
Term
Requirements for termination of a periodic tenancy
Definition
1) must be a full rental period in advance, unless yearly (6 mos needed) and 2) must terminate on the right day
Term
Tenant's duties
Definition
Lease is silent as to duties = 1) duty to pay rent and 2) not commit waste. Lease says duty to repair and maintain = T liable for all damage even ordinary wear and tear
Term
Landlord's duties
Definition
1) Deliver actual possession, 2) Implied warranty of habitability, 3) implied covenant of quiet enjoyment
Term
Assignment
Definition
T transfers the entire leasehold. T and assignees liable for covenants that run with the land on privity of K/E theory
Term
Sublease
Definition
When T transfer only a portion of the lease period. Sub has no liability to LL because no POE or POK.
Term
Landlord liability in tort
Definition
Only for 1) latent defects, 2) short term lease for a furnished dwelling, 3) common areas under the LL's control, 4) negligent repairs, and 5) public use
Term
Fixtures
Definition
Not removable by either T or S. Fixture = did the person installing intend for it to stay with rental property. Factors: 1) degree of attachment, 2) general custom, 3) degree of damage if removed, 4) trade fixture?
Term
Easement appurtenant
Definition
When the easement directly benefits the use and enjoyment of a specific piece of land. Burdened property = servient estate; benefited property = dominant estate
Term
Easement in gross
Definition
there is no dominant estate
Term
Creation of an easement
Definition
express, implied, prescription
Term
Express easement
Definition
Arises with an express grant of an easement to someone else, or the reservation of an easement when land is sold to another
Term
Easement by implication
Definition
Previous use by a common owner: must be 1) continuous, 2) apparent, 3) reasonably necessary. Absoltue right of access: an implied easement by necessity exits when property is landlocked
Term
Easement by prescripton
Definition
Arises like title by adverse possession. 4 requirements: 1) use is adverse, 2) use must be continuous and uninterrupted for the statutory period, 3) use is visible and notorious, 4) use is without permission
Term
Transferring the benefit
Definition
Benefit transfers automatically with the dominant estate in an easement appurtenant. For easements in gross, commercial easements can be transferred but personal cannot.
Term
Transferring the burden
Definition
Always binding on subsequent holders of the servient estate if they have notice.
Term
Terms of easement are silent as to use
Definition
Two presumptions: 1) Easement is perpetual, 2) use presumed is that of a reasonable development of the dominant estate, i.e. what would have been reasonably contemplated by the parties when the easement was created
Term
Easement repair
Definition
Holder of the easement is responsible for repairs and can always go onto the land to repair. Must make reasonable restoration of servient estate after repairs
Term
Termination
Definition
1) abandonment by action, 2) Prescription, 3) unity of ownership, 4) Release, 5) Estoppel, 6) End of necessity
Term
Licenses
Definition
Limited privilege of use, and is not a property interest. Revocable at will of the licensor. If someone tried to create and easement and messed up, they have a license.
Term
Profits
Definition
Gives the right to go onto the land and take a natural resource away. An implied easement always attaches.
Term
Restrictive covenant
Definition
Right to restrict someone else's use of their land. Two types: covenants at law and equitable servitudes, distinguished by the relief sought (covenant at law = money damage; equitable servitude = injunction)
Term
Covenants at law
Definition
Runs with the land if 1) touch and concern the land, 2) intent, 3) notice, and 4) privity
Term
Touch and concern
Definition
Makes the land more valuable or more useful
Term
Horizontal privity
Definition
Original parties to the covenant
Term
Vertical privity
Definition
Successor in interest and the original party from whom they got the property
Term
Burden of covenant at law to run
Definition
To run, must have both horizontal and vertical privity.
Term
Benefit of covenant at law to run
Definition
Need vertical privity
Term
Equitable servitudes
Definition
3 requirements: 1) intent, 2) notice, 3) touch and concern. NO PRIVITY needed.
Term
Mutual rights of enforcement of equitable servitudes
Definition
Two req: 1) intent and 2) notice
Term
Adverse Possession Requirements
Definition
HELUVA: Hostile, exclusive, lasting (SOL), uninterrupted, visible, actual. Neither knowledge by the rightful owner or claim of right by the trespasser are needed.
Term
Constructive adverse possession
Definition
Exception to Actual possession requirement of adverse possession. If you actually possess a part, you can get constructive possession for the whole if the amt actually possessed bears a reasonable relation to the whole AND the property must be unitary.
Term
Adverse possession against concurrent owners
Definition
1) can occur only when the possessor excludes the other cotenants from possession and the statute runs. Clock starts running with the exclusion, not the co tenants absence.
Term
Lasting element for future interest situations
Definition
Life estate plus future interest = clock starts running when the life tenant dies. Fee simple determinable = happning of the condition starts the clock running. Fee simple on a condition subsequent = clock doesn't start running until the grantor exercises the right of entry
Term
Tacking
Definition
Allowed, but periods must pass directly from one adverse possessor to another, no gaps. Does not have to be against the present owner for the entire statutory period of time
Term
Disability in adverse possession
Definition
If O is under a disbility (minor, insane, or in jail) at the time the adverse possession begins, the adverse possession clock does not start to run until O is free from disability.
Term
Who do recording statutes protect?
Definition
Subsequent purchasers, but NOT judgment creditors
Term
Types of recording acts
Definition
Notice Acts, race notice, and pure race. NC: pure race!
Term
Notice recording statute
Definition
Protect subsequent grantees who are BFPs (those who give value and who take without notice of the earlier transaction)
Term
Race notice recording statute
Definition
Protects subsequent BFP for vale who take without notice AND are first to record
Term
Pure race acts
Definition
Subsequent purchaser does not have to be a BFP-- can know about the earlier sale and still win if record first
Term
What recording statute has the buzz words "without notice" or "in good faith"
Definition
Notice or race notice
Term
What recording statute has the buzz words "without notice" or "in good faith" AND "First recorded" or "recorded first"
Definition
Race notice
Term
BFP
Definition
A BFP for value without notice. An heir, donee, or devisee does not take for value.
Term
What notice can prevent a BFP?
Definition
1) Actual, 2) Record notice = a constructive notice that arises from the record, 3)Inquiry notice = where a reading of the deeds on record discloses an unrecorded transaction, and the subsequent purchaser has to check it out
Term
Shelter rule exception
Definition
Protects anyone who takes from a BFP whether they are purchasers for value or not and matter what they know
Term
Types of Security Interests
Definition
Mortgage (debtor gives directly to creditor), Deed of Trust (debtor gives to a third party trustee), Installment land K (seller keeps title until loan is paid off)
Term
Equity of redemption
Definition
At any time up to the foreclosure sale, debtor can redeem the property. Right to redeem cannot be waived in the mortgage or deed of trust creating agreement, but may be done later if separate consideration
Term
Mortgage priorities
Definition
First in time, first in right. Can be overcome if do not comply with the recording act. Can be changed by K.
Term
Purchase money mortgage
Definition
PMM gets priority over other mortgages executed at the same time. PMM by seller wins over PMM by financer.
Term
No relation back doctrine
Definition
If owner does anything to increase a senior M, then that M loses its priority over junior ones but ONLY to the extent of the change
Term
Effect of foreclosure
Definition
Wipes out all junior interests; but do not wipe out senior interests. Purchaser at a foreclosure sale takes the property subject to senior interests
Term
Junior Interests
Definition
Junior interests have the right to pay off any mortgage being foreclosed in order to keep their junior interests from being wiped out, making them a necessary party to any foreclosure. If they are not joined, then their interests are not wiped out by it.
Term
Proceeds of foreclosure sale paid out in what order?
Definition
1) Cost of the foreclosure, including expenses and atty's fees, 2) Pay the M that was foreclosed, including accrued interest, 3) Pay off junior interests, 4) Anything left to mortgagor. Pay first one fully before paying any on the second... If there isn't enough to settle the mortgage, let the ME sue the debtor for the balance due.
Term
Consequences of installment land K
Definition
If the debtor misses a payment, seller can cancel the K, keep all the money paid to date, and get the property back
Term
Transfers of security interests
Definition
Freely transferable, but the transferee takes subject to the M. Mortgagor continue to be personally liable on the note, but grantee is not personally liable unless they specifically assume the mortgage (but will have to forfeit the property.) If grantee assumes the M, the MR continues to be liable as a surety.
Term
Modification of the obligation by the ME
Definition
Discharges the original MR of all liability
Term
Fixture Filing not in compliance with Article 9
Definition
Security interest will become subordinate to the earlier M on the real property. If it was properly done, the supplier of the chattel can remove it without regard to any earlier M or other security interest in the prop
Term
Right of Lateral Support
Definition
Support from the sides. SL results if land is not supproted and for damage to improvements if the weight of the improvements didn't cause the collapse (the land would have collapsed anyways)
Term
Right of Subjacent Support
Definition
Support of the surface from the bottom. SL. Usually happens when the holder of mineral rights removes minerals and the surface subsides/collapses. Extends to to improvements existing when mineral rights were severed from the land, not for buildings built after the mineral rights were severed
Term
Riparian rights
Definition
Those whose property borders on a lake or stream. Owner can use all the water needed for domestic proposes and make reasonable use for non domestic purposes
Term
Prior appropriation
Definition
Small minority. First in time takes-- anyone, not just riparian owner, who makes beneficial use of water, has the right to continue to use it and is protected from those who come later
Term
Underground water
Definition
Landowner is entitled to reasonable use of ground water but landowner must use it on the property and not export it elsewhere.
Term
Surface water
Definition
No majority approach. 1) Natural flow approach = reasonable steps to deal with flood water 2) Common enemy = can do anything with floodwater, whether reasonable or not.
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