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MBE Property Law
| Question | Answer |
|---|---|
| Creation of a defeasible fee. 3 types | - Fee Simple Determinable (durational) - Fee Simple subject to condition subsequent - Fee Simple subject to EI |
| Fee Simple Determinable | - That phrase is always followed by: ○ For So long as ○ While ○ During ○ Until - Words that pertain to time - For so long as Alcohol is not sold on property If condition broken O and heirs hold a possibility of reverter |
| Fee Simple Subject to condition subsequent | - O grants to A and her heirs - Followed by conditional language ○ On condition that ○ Provided that ○ However if ○ But if - Words of condition - O and O's heirs maintain a right of re-entry into to the property- NOT AUTOMATIC |
| Fee Simple subject to Executory Interest | - O grants to A and heirs - Can use either fee simple determinable or condition subsequent language - O and heirs may never get property back here. - Property goes to 3rd party, B - "If alcohol is served on premises then to B" B holds an execut |
| Restraint against alienation | restriction on the free transferability of property. Direct restraint on a fee is void as a matter of public policy. - Anti assignment clauses are allowable - Anti sublease clauses allowed - Court just cuts off the illegal language |
| Life Estates are Alienable | Can do anything you want with life estate short of committing waste. Any encumbrances created by the life tenant, whether it is mortgage, sale, lease license etc- will cease to exist upon the death of the life tenant. Does not run with the land. |
| Property Tax | Whoever has present possessory interest of the property is responsible for the property taxes. |
| Waste | Exception: Open Mines- a life tenant is allowed to continue engaging in already existing activities on the property. Can not engage in new activities. |
| G/R re life estates | - Not allowed to alter structures on the property - Exception if changed conditions have rendered a piece of property uninhabitable we will allow life tenant to tear down and put something back up in its place. |
| Class gifts | if you have a will, making a class gift, and a class member predeceases the testator (will maker), that member of the class and all of their heirs are shut out. The moment any member of the class has a present possessory interest in the property- it CLOSE |
| 3 kinds of co tenancies | Tenancies in Common (default) Joint tenancy with right of survivorship (requires precise language) Tenancy by the entirety- married couple's special - only applies to spouses. |
| Tenancy by the Entirety | No unilateral severing of a tenancy by the entirety. One spouse can't convey away their interest without the other one joining in. Only 2 things that can end Tenancy by the Entirety: 1. Death Divorce. |
| 4 ways that a joint tenancy can be severed or terminated. | 1. Death of the second to last joint tenant 2. Conveyance inter vivos 3. Final partition decree (occurs when joint tenants can no longer stand each other and ask a court of equity to divide it up) Filing not enough, need order. |
| 4th way to sever or terminate a joint tenancy | 4. Minority - Title theory jurisdiction, if JT mortgages his interest it severs. Majority: lien theory jurisdiction, if JT mortgages interest in property will not sever, so long as the mortgage payments are made. |
| Landlord tenant law | G/r: landlords are not liable for latent defects unless they know of them or should have known of them. - Exception: short term lease of furnished premises, landlords are responsible for latent defects |
| Holdover Doctrine | Tenant who has stayed beyond the expiration of a lease. Is it a commercial or residential tenant? If residential: tenant locked into a month to month periodic tenancy Commercial is locked into a periodic tenancy reflective of the previous leas |
| Holdover Tenant 2 step process | 1. Is it a commercial or residential tenant? 2. What should the rent amount be? a. If tenant was notified prior to expiration of lease, that there would be an increase, have to pay the value of the new lease. |
| License | a license is a privilege to enter onto another's property. It may be revoked at any time merely by a manifestation of the licensor's intent to end it. Even if you pay value for them they are revokable. |
| Easement | an interest in land, in writing in order to comply with the Statute of Frauds. - Allows holder to enter the land of someone else usually for purposes of ingress and egress. RECORD IT! |
| Easement extinguishment by merger | Merger can extinguish an easement but must be: both parcels must be owned by the same party in the same manner. |
| Abandonment of an Easement | - Mere non use of the easement is never enough to constitute abandonment. Need an affirmative act showing an act to abandon otherwise there can be no termination. |
| Prescriptive Easement (easement by adverse possession) | - No requirement of exclusive use to obtain an easement by prescription. - Open, notorious, continually, hostile |
| Adverse Possession | - Exclusivity - - Open, notorious, continually, hostile |
| Covenant Running With the Land | - Grantor intent - Grantee acceptance (most common way is by recording deed) - In writing - Touch and concern (how the land is being used) - Privity |
| Common development Scheme | - Huge piece being divided into smaller parcels,each have a covenant running with land To VOID a restrictive covenant within a common development scheme there must be changed conditions. No piecemeal voiding. Every parcel. |
| To have a valid conveyance the deed must adequately describe the land to be conveyed. | Address trumps all. Can cure inadequate descriptions |
| Fixture | chattel that has become attached to real property |
| Types of Recording Statute | Race Notice Race Notice |
| Notice Statute | subsequent bona fide purchaser (BFP) will prevail over a prior grantee who failed to recorded before the BFP's purchase; if the prior grantee has previously recorded, the subsequent purchaser ordinarily will be deemed to have record notice of the prior co |
| Shelter Doctrine | Get to step into the shoes and assume the status of the person they purchased from |
| Adverse Possession | remember you can't sell property you have adversely possessed, because you cannot deliver good and marketable title. - Have to file a suit to quiet title. - Then you can sell it legally |
| Lateral Support | landowner has a right to have his land supported in its natural state by adjoining land. |
| Rule against perpituties | no future interest is valid unless it vests, if at all, within 21 years after a life in being at the time of the deed or the will. |
| RAP applies to: | Executory interest Contingent remainder Vested remainder subject to open Right of first refusal Powers of appointment |
| Vested remainder subject to open are devisable. | Vested remainder subject to open are devisable. |
| If you have more than 2 joint tenants, and one of them sells their interests or loses it due to some kind of foreclosure or lien, | it destroys the joint tenancy only with regards to that person's interest. It creates a tenancy in common with regard to that part of the parcel. |
| When a joint tenant takes out a mortgage on their portion of a jointly owned property we follow the lien theory | Majority rule: (lien theory) mortgage will not sever the joint tenancy so long as the monthly mortgage payments are made. Minority rule: (title theory) mortgage severs the joint tenancy and results in a tenancy in common. |
| Mortgaged joint tenant dies before mortgage paid off: | their interest is over and by right of survivorship, the remaining joint tenants take the deceased's interest in tenancy free and clear of mortgage. |
| Sublease | Tenant transfers possession for a term less than the balance remaining on the lease. NO privity of contract or estate. |
| Assignment | Tenant transfers possession for the remainder of the lease. Privity of K between landlord and assignnor as well as privity between landlord and asignee |
| As holder of easement allowed to enter the land of the servient tenament to make | reasonable inspection and reasonable repairs. |
| Merger extinguishes an easement. | Occurs when the dominent and servient tenaments com under common ownership. Can be revived by an express, written grant of easement. |
| Common development scheme- restriction on every lot sold- every person down the road will be held to that restriction. What do you need for that restriction? | 1. Grantor intent 2. Grantee acceptance, usually by recordation 3. Writing 4. Notice 5. Covenant touches and concerns the land 6. Privity (relationship between parties) |
| Doctrine of equitable conversion lives in the escrow period. The escrow period is the time between when the agreement is entered into and the closing. | During that time the seller is getting rid of all encumbrances on the property and buyer is considered to be the EQUITABLE OWNER OF THE PROPERTY. - Means that if the property is damaged or destroyed during Escrow, the buyer bears the risk of loss. |
| Notice jurisdiction | : the last bona fide purchaser for value without notice wins. Regardless of whether or not he records |
| Delivery of a deed- | goes to grantor intent, just must know if grantor intended to convey the property. |
| Quit claim deed = | seller is making no personal warranties with regard to title. |
| Covenant of warranty: | agreement to defend against claims of title brought by 3rd parties, runs with the land, limitation: only enforceable to the extent of the purchase price the grantor received. |
| How is a bank able to go after a person who assumes a mortgage? | Intended third party beneficiary doctrines. The bank is considered to be an intended 3rd party beneficiary between the motgagor and the person who assumes the mortgage. Person who assumes is primarily liable, but mortgagor is secondarily liable. |
| Majority Rule on water rights: riparian doctrine. Riparian is any person who owns land that abuts a lake, stream or river. - Domestic use trumps commercial and agricultural use. | Minority Rule: prior appropriation: first in time, first in right. First party to make beneficial use of the water will trump subsequent users. |
Created by:
staciaberry
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