Real Property Flashcards (82 Cards)

The largest possessory estate, of potentially infinite duration, with no conditions on it. Modern law presumes a grant such as to A conveys a fee simple absolute, even without the old words and his heirs. It is freely devisable, descendible, and alienable.

A defeasible fee that automatically ends when a stated event occurs, created by durational language like so long as or until. The grantor retains a possibility of reverter, which springs into possession automatically.

It is created by conditional language such as but if or provided that, coupled with an express right to re-enter. Unlike the determinable fee, it does not end automatically; the grantor must affirmatively exercise the right of entry.

A fee simple subject to an executory interest. On the triggering event, title passes automatically to a third party (the holder of the executory interest) rather than reverting to the grantor.

An estate (to A and the heirs of his body) that kept land in the grantee’s bloodline. In most states the fee tail is abolished and such language now creates a fee simple absolute.

A possessory estate lasting for the duration of a person’s life. Measured by the grantee’s life, or by another’s life as a life estate pur autre vie. The holder may use the land but cannot commit waste, and the estate ends at death, passing to a reversion or remainder.

Voluntary (affirmative) waste—deliberately damaging the land or exploiting resources; permissive waste—neglecting to maintain or pay taxes; and ameliorative waste—improvements that change the property’s character, even if value rises.

The future interest retained by a grantor who transfers a smaller estate than she holds, such as conveying a life estate and keeping the balance. It is vested and not subject to the Rule Against Perpetuities.

A possibility of reverter follows a fee simple determinable and takes effect automatically. A right of entry (power of termination) follows a fee simple subject to condition subsequent and must be exercised. Both are exempt from the Rule Against Perpetuities.

A vested remainder is given to an ascertained person with no condition precedent. A contingent remainder is given to an unascertained person or is subject to a condition precedent that must be satisfied before possession.

A remainder given to a class with at least one ascertained, presently qualifying member, where more members may still join the class. Each member’s share may shrink as the class grows until the class closes.

An executory interest cuts short a prior estate. A shifting executory interest divests a prior grantee; a springing executory interest divests the grantor after a gap in possession. Both are subject to the Rule Against Perpetuities.

A specified future interest must vest or fail within 21 years after the death of a life in being at the creation of the interest. If there is any possibility it could vest too remotely, the interest is void from the outset. It applies to contingent remainders, executory interests, and vested remainders subject to open.

The wait-and-see doctrine judges validity by actual events rather than possibilities. The Uniform Statutory Rule adds an alternative 90-year vesting period, and cy pres allows courts to reform a grant to approximate the grantor’s intent within the perpetuities period.

Absent contrary intent, a class closes when any member can demand possession—typically when the preceding estate ends. Persons not yet born at that point are excluded, which also helps a class gift satisfy the Rule Against Perpetuities.

The right of survivorship: when one joint tenant dies, the share passes automatically to the survivors, bypassing probate. A joint tenant’s interest is not devisable by will.

Time (interests vest at the same moment), title (same instrument), interest (equal shares of the same type), and possession (equal right to the whole). Most states also require a clear expression of survivorship intent.

An inter vivos conveyance by one tenant of her interest destroys the unities and creates a tenancy in common as to that share. A mortgage in a lien-theory state does not sever, while in a title-theory state it may. A unilateral lease generally does not sever in most states.

Each tenant holds a separate, undivided share with no right of survivorship. Shares may be unequal, are freely devisable and descendible, and modern law presumes a tenancy in common when a conveyance to two or more is ambiguous.

A marital estate with a right of survivorship, available only to spouses. Neither spouse can unilaterally convey or encumber the property or defeat survivorship; it is severed only by death, divorce, mutual agreement, or joint creditor action.

Each has the right to possess the whole and owes no rent for sole occupancy absent ouster. A co-tenant who collects rents from third parties or pays carrying costs (taxes, mortgage) may seek contribution, and any co-tenant may demand partition.

Term of years (fixed period, ends automatically); periodic tenancy (renews until proper notice); tenancy at will (terminable by either party); and tenancy at sufferance (a holdover tenant wrongfully remaining).

An assignment transfers the tenant’s entire remaining interest, putting the assignee in privity of estate with the landlord. A sublease transfers less than the whole, so the sublessee is liable only to the original tenant, not the landlord.

In residential leases, the landlord must maintain the premises in a habitable, fit-for-living condition meeting health and safety standards. It cannot be waived; a tenant may repair and deduct, withhold rent, or terminate.

The landlord’s breach substantially interferes with the tenant’s use, the tenant gives notice and a chance to cure, and the tenant vacates within a reasonable time. Only then is the tenant released from rent obligations.

The landlord may treat abandonment as an offer of surrender and accept it, or may seek damages. Most jurisdictions now require the landlord to make reasonable efforts to re-let (mitigate) rather than let rent accrue unused.

Discrimination in the sale or rental of housing based on race, color, religion, national origin, sex, disability, and familial status. It also requires reasonable accommodations for disabled tenants. Limited exemptions exist for certain owner-occupied small dwellings.

By a writing satisfying the Statute of Frauds, either by grant or reservation. An easement appurtenant benefits a parcel (dominant tenement) and runs with the land; an easement in gross benefits a person and is usually personal, though commercial ones are transferable.

Arises when a single parcel is severed and a prior, apparent, continuous use existed that is reasonably necessary for the enjoyment of the dominant parcel. The use must have existed at severance (a quasi-easement).

When a parcel is landlocked by the severance of a commonly owned tract, leaving it with no access to a public road. It requires strict necessity at the time of severance and ends when the necessity ceases.

Use that is open and notorious, continuous, hostile (without permission), and adverse for the statutory period. Unlike adverse possession, the use need not be exclusive. Permissive use defeats a prescriptive claim.

Scope follows the reasonable intent of the parties and may evolve with normal development, but not to impose an undue burden. Easements terminate by release, merger, abandonment (with intent plus conduct), estoppel, prescription, or end of necessity.

A license is a revocable, personal permission to use land, not subject to the Statute of Frauds; it may become irrevocable by estoppel after detrimental reliance. A profit grants the right to enter and remove resources (timber, minerals) and follows easement rules.

Writing, intent to bind successors, touch and concern the land, horizontal and vertical privity, and notice to the burdened successor. The remedy for breach of a real covenant is money damages.

Writing (or a common scheme), intent that it run, the covenant touches and concerns the land, and the successor took with notice (actual, record, or inquiry). Privity is not required, and the remedy is an injunction.

When a developer manifests a common plan of restriction for a subdivision and the buyer has notice, a servitude may be implied against a lot even without an express restriction in that lot’s deed (a reciprocal negative servitude).

A writing signed by the party to be charged that identifies the parties, describes the property, and states the price (or a means to determine it). The part performance doctrine—some combination of payment, possession, and improvements—can take an oral contract out of the Statute.

Title reasonably free from doubt that a prudent buyer would accept—free of undisclosed encumbrances, defects in the chain, and zoning violations. It is implied in every contract and need only exist at closing, allowing the seller to cure beforehand.

Under equitable conversion, the buyer is treated as the owner once the contract is signed. The majority rule places the risk of loss on the buyer for damage before closing, though the Uniform Vendor and Purchaser Risk Act shifts it to whoever holds title or possession.

A builder-vendor of a new residence impliedly warrants it is fit, suitable, and free of defective workmanship. Many states extend it to subsequent purchasers within a reasonable time, despite the lack of privity.

Present covenants—seisin, right to convey, and against encumbrances—breached, if at all, at delivery. Future covenants—quiet enjoyment, warranty, and further assurances—run with the land and are breached upon later disturbance of possession.

A general warranty deed warrants against all title defects, even pre-grantor ones. A special warranty deed warrants only against defects arising during the grantor’s ownership. A quitclaim deed conveys whatever interest the grantor has with no warranties.

The grantor’s present intent to make the deed operative and pass title immediately, regardless of physical handout. Recording or handing over the deed raises a presumption of delivery. Acceptance is presumed when the transfer benefits the grantee.

Race—first to record prevails. Notice—a subsequent bona fide purchaser prevails over a prior unrecorded interest even if she records second. Race-notice—a subsequent BFP prevails only if she takes without notice and records first.

One who pays valuable consideration and takes without notice of a prior interest. Notice may be actual, record (constructive), or inquiry. A donee, heir, or devisee is not a BFP because no value was given.

A person who takes from a bona fide purchaser receives the same protected status as the BFP, even if that person otherwise had notice of the prior interest. This lets a BFP freely transfer good title.

A wild deed is recorded but not connected to the chain of title, so a title search using the grantor-grantee index cannot locate it. Because a searcher cannot reasonably find it, it provides no constructive notice.

When a grantor conveys land she does not yet own by warranty deed and later acquires title, that title automatically passes to the earlier grantee. The grantor is estopped from denying the conveyance.

In a lien-theory state (the majority), the mortgagee holds only a lien and the borrower keeps title and possession until foreclosure. In a title-theory state, the lender holds legal title until the debt is satisfied, affecting the right to possession.

Foreclosure extinguishes junior interests and the liens of parties properly joined, but senior interests survive and the buyer takes subject to them. Sale proceeds pay costs, then the foreclosing lien, then junior liens in priority order, with any surplus to the debtor.

The equity of redemption lets the borrower pay the full debt before the foreclosure sale to reclaim the land; it cannot be waived in the mortgage (no clogging). Statutory redemption, available in some states, allows redemption after the sale within a fixed period.

Generally first in time, first in right, subject to the recording acts. A purchase-money mortgage (financing the acquisition of the property) takes priority over earlier claims against the buyer, even prior judgment liens, when properly recorded.

Possession that is open and notorious, exclusive, continuous, hostile (without permission), and actual for the statutory period. The claimant must use the land as a true owner would; permissive use defeats the claim.

Tacking lets successive possessors combine their periods if they are in privity (a voluntary transfer). A true owner’s disability (minority, insanity, imprisonment) existing at the start of the adverse possession tolls the statute until the disability ends.

When a chattel is so annexed to realty that it is treated as part of the land, based on the degree of attachment, adaptation to the property’s use, and the intent of the annexor. A fixture passes with the land unless the parties agree otherwise.

Under the riparian doctrine (eastern states), landowners abutting a watercourse share reasonable use. Under prior appropriation (western states), rights go to whoever first beneficially used the water, regardless of land location—first in time, first in right.

A landowner has an absolute right to lateral support of land in its natural state from neighboring land; liability for buildings requires negligence. Subjacent support protects against subsidence from underground excavation by one holding mineral rights.

A nonconforming use lawfully existing before the ordinance may continue but generally cannot be expanded. A variance permits a deviation upon showing undue hardship and no harm to the public; a special-use permit allows uses the ordinance conditionally authorizes.

When it denies an owner all economically viable use of the land (a per se taking under Lucas), effects a permanent physical occupation, or, under the Penn Central balancing of economic impact and interference with investment-backed expectations, goes too far. A taking requires just compensation.

Grant to grantor's own heirs is void as a remainder — the future interest stays with the grantor as a reversion. Rule of construction (rebuttable by intent).

A grant "to A for life, then to A's heirs" merges — A takes a fee simple; "heirs" is read as words of limitation, not purchase. Mostly abolished, but test it.

Common-law rule destroyed a contingent remainder not vested by the natural end of the prior estate — abolished in most states (interest becomes springing executory interest instead).

Measure validity by any conceivable scenario at creation, not actual events. Gift-over from one charity to another charity is exempt from RAP.

An easement is used only for its reasonable, contemplated purpose; overuse (e.g., serving an after-acquired parcel) is a surcharge enjoinable as misuse, but generally does not terminate the easement.

The benefit passes automatically with conveyance of the dominant estate; the burden passes with the servient estate if the taker had notice. Appurtenant easements cannot be severed from the land.

Recognized only for Light, Air, Support, and Stream/flow of an artificial waterway (some add view/scenic). Must be expressly created in writing.

Plaintiff seeking money damages sues on a real covenant (privity required); plaintiff seeking an injunction sues on an equitable servitude (no privity, just notice). Same restriction, two tracks.

Title is unmarketable if there is a defect in the record chain, an undisclosed encumbrance (lien, mortgage, easement, covenant), significant zoning violation, or title resting only on adverse possession. Buyer's pre-closing remedy; cured by closing.

Builder-vendor of a new home impliedly warrants fit construction/workmanship; many states extend to subsequent buyers. Distinct from caveat emptor on used homes (subject to duty to disclose latent defects).

On signing, buyer holds equitable title (real property — passes to heirs/devisees of realty); seller holds legal title as security (personal property — proceeds pass as personalty). Drives the risk-of-loss and devise outcomes.

Grantor who conveys land he does not yet own, then later acquires title, is estopped — title passes automatically to the grantee. Subsequent BFP from the grantor may cut this off.

AID: Actual (real knowledge), Inquiry (duty to investigate possession/recitals in recorded instruments), and record/constructive notice. A BFP must give value and take without notice.

A grantee from a protected BFP "shelters" under the BFP's status and prevails over a prior interest — even if that grantee personally had notice. (Cannot use to launder one's own prior bad act.)

A "wild deed" (recorded but outside the searchable chain) gives no constructive notice. Estoppel-by-deed and late-recorded deeds can also fall outside the chain — subsequent purchasers are not charged with them.

Deed of trust, installment land contract, absolute deed intended as security, and sale-leaseback are all treated as mortgages (equity looks to substance). A purchase-money mortgage has priority over earlier liens against the buyer, even prior recorded judgment liens.

Successive possessors tack their periods only if in privity (deed, will, descent). Color of title (a defective instrument) can support constructive possession of the whole described parcel.

An item annexed to realty becomes part of it (passes with the land); intent is the key factor. A tenant's trade fixtures remain removable if removed before lease end and damage is repaired.

Lateral support: strict liability for subsidence of land in its natural state; negligence required if the weight of buildings contributed. Subjacent support owed by a subsurface (mineral) rights holder to the surface.

A use lawful before the ordinance may continue as a vested nonconforming use (cannot be eliminated without amortization/compensation). A variance requires undue hardship + no harm to the public welfare; a taking occurs if regulation denies all economic use.

Trigger: One joint tenant conveys, mortgages, or leases his interest, raising whether survivorship survives.
A joint tenancy with right of survivorship requires the four unities of time, title, interest, and possession, and an act destroying any unity severs it as to the conveying tenant, converting that share into a tenancy in common. An outright conveyance by one joint tenant severs the tenancy as to the conveyed share, while the remaining joint tenants continue to hold among themselves. In a lien-theory state, a mortgage executed by one joint tenant creates only a lien and does not sever, whereas in a title-theory state the mortgage passes title and severs the tenancy.

Trigger: A landowner's existing use becomes unlawful when a new zoning ordinance is enacted.
A nonconforming use is a use that lawfully existed before a zoning ordinance made it impermissible, and it may generally continue as a vested, grandfathered right that a municipality cannot eliminate immediately without effecting a taking. The protection extends only to the use as it existed; the owner ordinarily may not expand, enlarge, or change the nonconforming use, and the right may be lost through abandonment. Many ordinances permit gradual elimination through reasonable amortization periods that allow the owner to recoup his investment.

Trigger: A party claims a previously valid easement has ended.
An easement may terminate in several ways, including merger when the dominant and servient estates come into common ownership, a written release by the easement holder, or expiration of a stated term or purpose. Abandonment requires nonuse coupled with affirmative conduct showing a clear intent never to use the easement again; mere nonuse is insufficient. An easement may also end through prescription where the servient owner blocks it for the statutory period, or by estoppel where the servient owner detrimentally relies on the holder's representation that it is relinquished.