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PRE Real Property

MBE Preview

QuestionAnswer
Present possessor estate- Divisible fee 1. Fee simple determinable (durational), 2. Fee simple subject to condition subsequent, 3. Fee simple subject to executory interest
Present possessor estate- Divisible fee Fee simple determinable "O grants property to A and heirs"- "for so long as" "while" "during" "until" If broke, O and heirs have automatic right to reverter Reverter is alienable (transferable)
Present possessor estate- Divisible fee Fee simple subject to condition subsequent "O grants property to A and heirs"- "on condition that" "provided that" "but if" "however, if" If broke, O and heirs retrain right to re-entry, but not automatic Must take action to get property back by filing for ejectment (most common)
Present possessor estate- Divisible fee Fee simple subject to executor interest "O grants property to A and heirs"- "Any language from determinable or condition subsequent", BUT O and heirs do not receive property back "IF" broke, then goes to third party holding executory interest Subject to rules of perpetuities
Restraint against alienation Restrictions on free transferability of property Direct restraint: Void as matter of public policy (e.g. "if sell then lose right") Less: Allowed (e.g., anti-assignment, prohibition against sublease)
Life estates with remainder in fee simple absolute Can give away, mortgage, convenant, license, etc, as long as NOT waste Encumbrance created by life tenant will seize to exist upon death of life tenant Remainders can NEVER follow fee simple estates, ONLY life estates
Life estates with remainder in fee simple absolute continued... Per autre vie life estate= giving away life estate for life of tenant Present interest in property = responsible for property taxes
Life estate- Doctrine of waste Life estate tenant cannot "waste" land Open minds exception: Life tenant allowed to engage in already existing activities on the property It is not waste if activity previously existed, but new activity of waste not allowed
Life estates and altering land Cannot alter structures on property Exception: If changed conditions hindered structure uninhabitable, then life tenant can tear down and put something else up in its place
Cy pres If trust created
Life estates- Class gift "Remainder to children after survivor of testator dies" If will makes a class gift, and class member pre-deceases testator (will maker) that member and heirs are shut out (MUST survive testator)
Life estates- Class gift continued... Vested remainder subject to open if survivor and remainder may have more children Moment any member of class who has present possessory interest in the property deceases the class closes and property is distributed
Co-tenancy 1. Tenancy in common (default), 2. Joint tenancy with right to survivorship (specific language), 3. Tenancy by entirety (Only spouses)
Co-tenancy- Joint tenancy "I grant to A & B"- "jointly" or "in joint tenancy" with right to survivorship
Co-tenancy- Terminating/severing joint tenancy Four ways to terminate/severe- 1. Death of second to last joint tenant, 2. Conveyance inter vivos, 3. Final partition decree, 4. Mortgage interest in property Conveying unilaterally can sever joint tenancy making them tenants in common
Co-tenancy- Terminating/severing joint tenancy Death of second to last joint tenant Only 1 person left
Co-tenancy- Terminating/severing joint tenancy Conveyance inter vivos Sell interest in property to third party Third party becomes tenant in common
Co-tenancy- Terminating/severing joint tenancy Final partition decree When? No longer able to stand each other so divide Must- 1. File suit, and 2. Have order of partition to terminate If one dies at this point survivorship kicks in if NO order
Co-tenancy- Terminating/severing joint tenancy Mortgage interest in property Lien theory states (majority)- If joint tenant mortgages property, no severance as long as payments made avoiding foreclosure Title theory (minority)- If joint tenant mortgages property then severance of joint tenancy
Co-tenancy- Tenancy by entirety NO unilateral severing so one spouse cannot convey without the other spouse Two things terminate- 1. Death, and 2. Divorce
Co-tenancy- Tenants in common Can partition
Landlord liability Landlords are NOT liable for latent defects unless know or should know of them Exception: Short-term lease with furnished premises then landlord is liable for latent defects Absent a contract tenants do not have duty to inspects premises
Hold-over tenant Tenant who stays beyond expiration of lease Two steps- 1. Determine if commercial or residential tenant a. Residential, or b. Commercial 2. What is rent amount going to be? a. Notification, or b. No notification To evict must give noti
Hold-over tenant- Residential Residential = periodic month-to-month tenancy
Hold-over tenant- Commercial Commercial = periodic tenancy re-effective if previous written lease Cannot exceed 1 year because violates statutes of fraud since not in writing
Hold-over tenant- Rent increase notification If tenant prior to expiration was notified of increase then pay new amount
Hold-over tenant- Rent increase with no notification If no notification of rent increase prior to expiration then old amount of rent must be applied
Hold-over tenant- Eviction Even if pay value for license it is revocable To evict NOW argue tenant is a licensee License= Permission to enter land of another
Easements Interest in land, usually in writing to comply with SOF that is recorded Allows easement holder to enter land of another for purpose of coming and going (ingress and egress) Express= in writing, implied= not (e.g., easement by necessity)
Easements- Doctrine of merger Extinguish easement if both parcels owned by same party in same manner (e.g., life estate and fee simple)
Easements- Doctrine of abandonment Need affirmative act with an intent to abandon by easement holder Mere non-use is NEVER enough to constitute abandonment
Easement by prescription Never in writing, "adverse possession easement" Begins when use begins, not when owner finds out No need for exclusivity- use openly, notoriously, hostility, for period of time
Covenant running with land 1. Grantor intent, 2. Grantee intent (e.g. recording deed), 3. In writing, 4. Touch and concern (how land is being used), 5. Privity (relationship or connection between parties)
Covenant running with land- Common development scheme Dividing large parcel of land into small parcels with restrictive covenant Must should changed conditions makes ALL property unusable allowing restrictive covenant to be void (all or nothing)
Land sale transactions- Land description In order to have a valid conveyance, the deed must adequately describe land being conveyed by description enclosing property Exception: An address will correct deed trumping everything
Land sale transactions- Encumbrance at time of sale Encumbrance on property can be ear-mark portion of sale price to clear title Must be done when handing over title/property
Land sale transactions- Fixtures Chattel attached to real property Residential property= Fixture removed by tenant if minimal damage to property Commercial= Trade fixtures doctrine -Commercial tenant prior to expiration of lease entitled to remove all trade fixtures from premises
Land sale transaction- Recording statute Jurisdictions- 1. Race (first to record), 2. Notice (last bona fide purchase for value is winner unless no notice) 3. Race-notice
Land sale transaction- Recording statute Shelter Doctrine Developer steps into shoes of investor and assume status of investor therefore bona fide purchaser
Mortgages- Foreclosure proceeds with multiple mortgages Paid in this order- 1. Foreclosing party, 2. Parties to right on time line, 3. Parties to left on time line stay with interest in land, a. Purchase at foreclosure takes property subject to mortgage of mortgagee on left
Mortgages- Third party assigned without knowledge of mortgagee Remedy- 1. Foreclose, 2. Sue on underlying debt to buyer (third party does not become liable unless assumes mortgage)
Adverse possession Cannot sale property taken by adverse possession because need good marketable title So first, file suit for quiet title (then able to sale) Must file period of possession by POSSESSION (be on land and use)
Lateral and adjacent support If own property, entitled to have lateral or adjacent support so neighbor must not move land to affect property If neighbor does and land is in natural state then recover in strict liability, if artificial then show negligence for recovery
Created by: dmoore147