All Topics

Question 1

Doctrine of estoppel by deed

Answer 1

If a grantor conveys an estate that he doesn’t own yet, his subsequent acquisition of the title to the property automatically inures to the benefit of the grantee.

Grantor impliedly covenants that he will convey title upon its acquisition and is estopped to deny that he acquired title on grantee’s behalf.

But, if the original grantor transfers his after-acquired title to a subsequent, BFP, the BFP gets good title and the grantee has no rights against BFP.

Question 2

Hierarchy of rules of construction for mistakes and inconsistencies in deeds

Answer 2

1. Natural monuments
2. Artificial monuments
3. Course measurements
4. General descriptions (name, quantity)

Question 3

Define avulsion and describe its effect on a watercourse boundary line

Answer 3

Sudden, perceptible change of a watercourse serving as a boundary

Does not shift boundary line even if this results in riparian landowner finding himself landlocked

Question 4

Define accretion and describe its effect on a watercourse boundary line

Answer 4

Slow erosion

This does change the legal boundary. Where accretion builds up in an irregular pattern over the lands of several adjacent property owners, courts determine title in “just and equitable manner”:

(a) Each owner’s property line is extended out into the water; or
(b) The newly formed land is divided in proportion to the owner’s interests in the adjoining land

Question 5

Who is protected by notice and race-notice statutes?

Answer 5

BFPs that pay valuable consideration for land

Not donees, heirs, or devisees

Question 6

What is reformation?

Answer 6

Reformation is an equitable action in which the court rewrites a deed to make it conform to the parties’ intention

Question 7

When is reformation granted?

Answer 7

Reformation is granted if it doesn’t reflect what the parties agreed to for the following reasons:

1. Reflects parties’ mutual mistake
2. Contains a drafting error
3. Reflects one party’s unilateral mistake if induced by other party’s misrepresentation or inequitable conduct

Question 8

When may a conveyance be set aside by a grantor’s creditors?

Answer 8

(a) The grantor/debtor actually intended to hinder, delay, or defraud a creditor; or
(b) The grantor (i) did not receive a reasonably equivalent value in exchange for the transfer and (ii) was insolvent or became insolvent as a result of the transfer

Question 9

When is parol evidence admissible re: delivery?

Answer 9

Parol evidence is admissible on the issue of intent to deliver (e.g. to show that the deed was intended merely as security for an obligation), but not to show that delivery was conditional.

However, parol evidence is admissible to show the oral conditions on the delivery of a deed if the deed was placed in escrow.

Parol evidence is generally admissible to show the conditions and terms on which the deed was placed in escrow, even though the deed itself is unconditional.

In most jurisdictions, parol evidence will be admitted to show that the delivery of a facially unconditional deed given directly to a grantee was in fact subject to a condition.

Question 10

How may a grantee return title to a grantor?

Answer 10

The grantee must draw up a new deed and deliver it to the grantor. It is insufficient to simply return a deed to the grantor.

Question 11

Standard for implied covenant of marketable title

Answer 11

Title a reasonable jury found the covenantor to hold

Question 12

Doctrine of part performance

Answer 12

Narrow exception to writing requirement for land Ks

Calls for specific performance of oral K for sale of land if 2 out of the 3 are met:

1. Between K and closing, buyer takes possession
2. Buyer pays all or part of the purchase price
3. Buyer makes substantial improvements

Question 13

Preferred remedy for breach of land K

Answer 13

Specific performance

Question 14

Doctrine of equitable conversion

Answer 14

Once a contract is signed, equity regards the buyer as the owner of the real property.

The seller’s interest (the right to the proceeds of sale) is considered personal property.

The bare legal title that remains in the seller is considered to be held in trust for the buyer. The right to possession follows the bare legal title, however; thus, the seller is entitled to possession until closing.

Risk of loss without fault of either party between K and closing –> Buyer.

If a party to a land sale contract dies before the contract is completed, the seller’s interest passes as personal property and the buyer’s interest passes as real property.

Question 15

What are the 2 implied promises in a land K

Answer 15

1. Marketable title at closing

2. Decline from making any false statements of material fact

Question 16

What is marketable title?

Answer 16

• Title free from reasonable doubt
• Title free from threat of litigation
• Title free from (i) adverse possession, (ii) encumbrances, and (iii) zoning violations

Question 17

What is required for lawful execution of a deed?

Answer 17

Written and signed by grantor + reasonable description of Blackacre

Question 18

What is the standard required for delivery of a deed?

Answer 18

Grantor has shown present intent to be immediately bound

Question 19

What are the types of deeds?

Answer 19

1. Quit claim
2. General warranty deed
3. Statutory special warranty deed / bargain-and-sale deed

Question 20

What is a quit claim deed?

Answer 20

It contains no promises; the grantor is not even promising good title to convey.

The seller DOES promise to provide marketable title at closing; they’re let off the hook completely after closing.

Question 21

What are the covenants in a general warranty deed?

Answer 21

Present covenants:

1. Covenant of seisan
2. Covenant of right to convey
3. Covenant against encumbrances

Future covenants:

1. Covenant for future enjoyment
2. Covenant of warranty
3. Covenant for future assurances

Question 22

What is a statutory warranty deed?

Answer 22

A grantor makes 2 promises only on behalf of himself; no liability for transgressions of predecessors of interest.

1. Grantor promises she hasn’t conveyed the parcel to anyone other than grantee.
2. Blackacre is free from encumbrances made by grantor.

Question 23

What are the elements of a bona fide purchaser?

Answer 23

A) Purchases Blackacre for substantial pecuniary value

B) Buyer at time of closing must have been w/o notice of prior grantee’s existence

Question 24

Is a real estate the buyer or seller’s agent?

Answer 24

Unless express agreement to the contrary, real estate agent is seller’s agent.

Even so, the agent owes a duty to the buyer to disclose material information about property if he has actual knowledge of it.

Question 25

Describe the two ways mortgages arise

Answer 25

Non-purchase money mortgages: use real property as lien to secure loan for something else, like a business venture

Purchase money mortgages: lender takes security interest in the property the loan needed to acquire

Question 26

Rules of priority if a debtor defaults on multiple loans, all of which have a lien on Blackacre

Answer 26

Senior creditor is entitled to full satisfaction on outstanding debt before junior creditor.

Creditor does not have priority until they record the mortgage instrument.

Whoever records properly first takes first interest.

Question 27

What if a junior creditor is left without enough to satisfy debt after proceeds from foreclosure are distributed to senior creditors?

Answer 27

Junior creditor must proceed against debtor in deficiency judgment to make up for any shortfall.

A court may attach some other asset (personalty or realty).

Question 28

Doctrine of equitable redemption

Answer 28

Once a debtor has defaulted on all obligations, may still keep Blackacre if he pays all amounts owed, interest, and costs.

This is universally recognized and is NOT waivable at the front-end of the mortgage

Question 29

Elements of adverse possession

Answer 29

1. Continuous – uninterrupted for statutory period
2. Open and notorious – sort of possession usual owner would make under the circumstances
3. Actual and exclusive – requires literal entry to property to trigger SOL and cannot share the property with the true owner
4. Hostile – possessor doesn’t have true owner’s permission to be there; permission defeats hostility element

Question 30

State of mind required for someone to adversely possess a property

Answer 30

Trick question – intent and other subjective questions are irrelevant!

Question 31

How does tacking work?

Answer 31

One adverse possessor may tack onto her time with the land her predecessor’s time as long as there is privity

Privity is satisfied with any non-hostile nexus b/w possessors (contractual relationship, familial relationship, deed, etc.). Privity is defeated by ouster – becomes hostile.

Question 32

How does disability affect adverse possession?

Answer 32

SOL won’t run against a true owner afflicted by a disability at the start of the adverse possession

No dice if the owner became afflicted after the adverse possessor entered the property

Question 33

Riparian doctrine

Answer 33

Water belongs to those who own the land bordering a watercourse. Riparian owners share the right of reasonable use and may not be wasteful in usage.

Question 34

Prior appropriation doctrine

Answer 34

A non-riparian owner may acquire the right to use the water as long as they are the first in time to seek the right.

Rights are accorded by priority of beneficial use.

Question 35

Rights re: percolating water

Answer 35

This is groundwater, and the surface owner of the land above it may make any reasonable use of the groundwater

Question 36

What is the common enemy rule?

Answer 36

Any landowner may change drainage, change slope, erect dams, etc. on his own property to fight the flow of surface water.

Most courts prohibit any unnecessary harm to other people’s land.

Question 37

What is an area variance and what showings are required?

Answer 37

An area variance is required when there is a problem of compatible use but ill fit.

A property owner may seek permission to depart from zoning stricture when their home can’t comply with the standards for its lot.

Must show: 1) undue hardship that is not self-imposed and 2) grant of variance won’t diminish property values of neighbors

Question 38

What is a use variance and what showings are required?

Answer 38

A use variance is required when there is a problem of incompatible use (e.g. grocery store in a residential area)

These are extremely difficult to obtain

Must show special circumstances, taking into consideration need, residents’ desire, effect on property values, location, etc.

Question 39

What is a non-conforming use and what protections exist for it?

Answer 39

This is a once lawful preexisting use that is now deemed nonconforming due to a zoning ordinance.

A government may not eliminate previously allowed use all at once without compensation. To do so would constitute an unconstitutional taking.

A government may circumvent this with grandfather clause or amortization.

Question 40

What are exactions and what restrictions exist on them?

Answer 40

Exactions are amenities the government seeks in exchange for permission to build on land.

They must be reasonably related in both nature and scope of impact to the proposed development. If not, the exaction is unconstitutional.

Question 41

What is a deed of trust? What happens on default?

Answer 41

The debtor gives a deed of trust to a third-party trustee (the lender’s lawyer or an insurance company).

On default, lender instructs trustee to foreclose deed of trust by sale.

Question 42

What is an installment land contract? What happens on default?

Answer 42

An installment purchaser obtains legal title only when the full K price has been paid.

Forfeiture clauses allow the vendor to cancel the K on default, retake possession, and retain all money paid. These are common and generally enforceable.

Question 43

What is an absolute deed? What happens on default?

Answer 43

If given for security purposes, it may be treated by the court as an “equitable” mortgage.

The creditor must foreclose by judicial action.

Question 44

Requirements to become a holder in due course a the note in transfer by mortagee

Answer 44

1. Note must be negotiable in form
2. Original note must be indorsed and signed by the named payee
3. Original note must be delivered to the transferee
4. Transferee must take note in good faith and must pay value for it

Question 45

What is a deficiency judgment?

Answer 45

If the proceeds from a foreclosure sale are insufficient to satisfy the mortgage debt, the mortgagee retains a personal cause of action against the mortgagor for deficiency

Question 46

Difference between redemption in equity and statutory redemption

Answer 46

RIE: At any time prior to the foreclosure sale, the mortgagor may redeem the property by paying the amount due. If the note or mortgage contains an acceleration clause, the full balance must be paid to redeem.

SR: The mortgagor may redeem the property for some fixed period (e.g. 6 months) after the foreclosure sale has occurred. This is allowed in about half of states.