Estates 1
What are the 3 forms of transfer?
1. Deed
2. Will
3. Inheritance/Intestate
What is a life estate?
Property given for the duration of an individual's lifetime
What are the four kinds of modern mortgage theories?
Title Theory: lender has right to possession before default
Intermediate Theory: lender holds title but does not hold right to possess until default
Lien Theory: lender does not have the right to possess until foreclosure (most common)
Deed of Trust: 3rd party holds title until borrower discharges debts. The trustee for a deed of trust is like a common law mortgage with a power to convey title in the event of default.
What is a servitude?
a legal device that creates a right or an obligation that runs with land/interest in land.
What are the two different property systems and how are they distinct from each other?
Separate: Creditors cannot come for other spouse's things; each person earns for themselves; default is that assets are split separately upon divorce and courts will engage in equitable distribution.
Community Property: excludes property obtained before or after marriage; creditors can come for both of their things; excludes property obtained before marriage; assets split 50/50
What are the four different kinds of leaseholds?
Term of years; periodic tenancy; tenancy at will; tenancy at sufferance
What type of future interest can only be had by a grantor?
Reversion
What is a mortgage?
Mortgage is the traditional security interest. The borrower conveys an interest in real property to the lender as security for the performance of an obligation, usually promissory note payment.
What is an easement and what is a covenant?
Affirmative Servitude/EASEMENT: a nonpossessory right to enter and use another person’s land
Negative Servitude/COVENANT: a nonpossessory limitation on a owner’s use rights
What kind of remainder is this?
O to A, then to C so long as C graduates from law school. (C is only in undergrad right now)
Contingent remainder
what is the implied covenant of quiet enjoyment? What is the implied warranty of habitability?
QE: A promise included in every lease, that the landlord will not interfere with the tenant’s lawful possession and enjoyment of the leased premises. Every lease has one and is waivable. Defined by expectations of parties/terms of lease.
WH: Applies only to residential properties and is nonwaivable. Landlords must maintain premises in a condition fit for human habitation that meets housing code and/or community standards for health and safety. Breach of implied warranty is a defense to an eviction action.
What are the three kinds of fee simple defeasibles?
Fee simple determinable
Fee simple subject to condition subsequent
fee simple subject to executory limitation
What is a judicial equity of redemption?
The borrower has the right to redeem from lender after they default before a foreclosure sale but they have to pay the remaining mortgage debt.
What are the requirements for an express easement?
1. Writing
2. Notice (Actual; Constructive; or Inquiry)
3. Intent
What is the rule against perpetuities?
RAP requires us to determine whether there is any chance a contingent interest may vest 21 years after the death of everyone alive at the creation of the interest. If there’s any chance … then the future interest may be voided (or, today, reconstructed). Only applies to fee simple subject to an executory limitation
What are the elements for constructive eviction.
1. Landlord (or someone the LL is in control of)substantially interferes with the tenant's permissible use and enjoyment of the leased premises,
2. Tenant gives notice to landlord and time to cure in a reasonable time
3. If after a reasonable time, the interference is not remedied, the tenant can vacate and sue for constructive eviction. (only has to vacate part affected)
What are the four kinds of remainders?
Contingent remainder
absolute vested remainder
vested remainder subject to open
vested remainder subject to divestment
What are the three kinds of foreclosure sales?
Strict Foreclosure: Court orders borrower to repay within a fixed time and failure results in lender acquiring title with no sale needed.
Judicial Foreclosure: Court orders public sale of the foreclosed property. There, title is conveyed to new purchaser and those funds are used to repay the lender’s debt and the borrower is entitled to the rest.
Non-Judicial Foreclosure: Sale of foreclosed property without court supervision and only permitted with a power of sale clause.
What are the elements of an easement implied by prior use?
1. Two parcels previously owned by the same person
2. Once parcel previously used for the benefit of the other parcel in a way that was apparent and continuous at time of severance.
3. Use is reasonably necessary or convenient for enjoyment of dominant estate
What is the demand rule for adverse possession of chattels?
When the title holder demands return of the chattel and is refused.
What are the remedies for constructive eviction? What are the remedies for breach of implied warranty of habitability?
CE: Vacate; terminate lease; avoid future rent; partial CE
IWH: Repair and reduce rent; damages; withhold rent; optional lease termination
What is numerus clauses?
Law does not recognize limitations on rights by property owners that are unrecognized.
what range of sale is considered too law for a commercially reasonable foreclosure sale?
Below 20% invalid, but above 50% presumed valid.
Gray area between 20-50%
What are the elements of an easement by estoppel?
1. Permission from owner
2. Foreseeable and reasonable reliance
3. Changed position by claimant
4. Necessary to avoid injustice
What is a policy reason that IWH does more to protect tenants than IWQE? What is a policy reason that IWQE does more to protect tenants than IWH?
IWH: Allows a low income tenant to remain in possession and seek a remedy while IWQE requires a tenant to vacate to get a remedy.
IWQE: Protects all leases, whereas IWH only protects residential leases.