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MBE Property Flashcards

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1
Q

What is joint tenancy?

A

Each party owns half with right of survivorship

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2
Q

What happens if someone dies in a joint tenancy?

A

The other person owns the whole thing, immediately

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3
Q

What happens if you convey your interest in a joint tenancy?

A

Joint tenancy is severed into a tenancy in common

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4
Q

Which prevails, joint tenancy or will?

A

Joint tenancy

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5
Q

Does a will sever a joint tenancy?

A

No because not a present conveyance

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6
Q

What is a tenancy in common?

A

Each party owns half with no right or survivorship

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7
Q

Are there any restrictions on transferring a joint tenancy?

A

No

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8
Q

What happens if you die with a tenancy in common?

A

Your heirs get your interest

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9
Q

What is a tenancy by the entirety?

A

Legally married husband and wife, with right of survivorship

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10
Q

Are there any restrictions on conveyance in a tenancy by the entirety?

A

One spouse may not convey without the other’s consent

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11
Q

What does a real estate contract do?

A

Transfers equitable title and just about parties’ intent to transfer title

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12
Q

What does a real estate contract NOT do?

A

Does not transfer legal title

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13
Q

Who retains legal title when real estate contract executed?

A

Seller retains legal title

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14
Q

Who obtains equitable title when real estate contract executed?

A

Buyer

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15
Q

Who has the risk of loss once real estate contract is executed?

A

Buyer

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16
Q

What kind of title is implied in every real estate contract?

A

Marketable title

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17
Q

What is marketable title?

A

Title that is free of any liens or encumbrances

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18
Q

What conveys legal title/ownership to the buyer?

A

Deed

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19
Q

What are the rules for a deed?

A

1) Must be in writing
2) Seller must deliver to buyer
3) Buyer’s acceptance
4) Identifiable grantees
5) Legal description of property
6) Merger of real estate contract

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20
Q

What is required for delivery of a deed to buyer?

A

Seller must express intent to grant title

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21
Q

Is buyer’s acceptance of deed presumed?

A

Yes, unless you express evidence to the contrary

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22
Q

What does it mean that a deed must have identifiable grantees?

A

Deed must include who is getting the property

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23
Q

What does it mean that a deed must have a leal description of the property?

A

Must be so that a reasonable person can locate the land a.k.a. the meets and bounds description

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24
Q

What is the effect of merging the real estate contract with the deed?

A

Only the deed is enforceable and would need to sue on the deed itself

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25
Q

What is a warranty deed?

A

“I (1) own the land, (2) have the right to sell the land, (3) no one else own it, (4) if somebody else makes a claim against you, I’ll defend you and (5) pay any costs to clean it up”

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26
Q

What is a warranty not about?

A

Not about anything of the land itself

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27
Q

What is a general warranty deed?

A

Title of the property perfect from the creation of the land

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28
Q

What is a special warranty deed?

A

Only guaranteeing title while current seller/owner owned the property

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29
Q

What is a quitclaim deed?

A

Not promising you anything. No warranties.

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30
Q

What are the two documents for a mortgage?

A

1) Promissory note

2) Mortgage

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31
Q

What is a promissory note?

A

Piece of paper saying “I promise to pay this money back with interest”

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32
Q

What is a mortgage?

A

Piece of paper saying “if I don’t pay back, you have the right to start the legal process of foreclosure. If I still don’t pay it back, you can sell the property in a foreclosure proceeding.”

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33
Q

What is a purchase money mortgage?

A

Money borrowed to purchase the land (the loan used to buy the property)

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34
Q

What will always get paid back first against competing debt?

A

Purchase money mortgage

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35
Q

What is an assumable mortgage?

A

Buyer can assume all rights and obligations (take over the mortgage)

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36
Q

What happens is a buyer assumes a mortgage?

A

Buyer becomes primarily reliable for the mortgage payment

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37
Q

Who can the (bank) come after if buyer has assumed the mortgage?

A

Can come after the original seller, unless bank and original seller executed a novation

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38
Q

What is the presumption regarding mortgage when a property is purchased?

A

Buyer buys property subject to mortgage

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39
Q

Who is liable for a mortgage if the buyer purchased subject to a mortgage?

A

The original owner is liable on the note

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40
Q

What can bank do if buyer bought subject to mortgage but bank not getting paid?

A

Bank cannot ask for mortgage payments, but it can foreclose on the land

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41
Q

What is lien theory?

A

Bank has a lien on the property, while resident has legal title

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42
Q

What is title theory?

A

Bank takes legal title, while resident has an equitable interest

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43
Q

What happens if joint tenants get a mortgage in a title theory state?

A

Joint tenancy becomes a tenancy in common

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44
Q

What is redemption?

A

Behind on payments and in foreclosure but resident can pay off debt to keep the property

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45
Q

In equitable redemption, how much time does a resident have to make the late payments?

A

From the notice of foreclosure until the day of the foreclosure sale

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46
Q

Can equitable redemption be waived?

A

No, never.

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47
Q

What is the timing for redemption in statutory redemption?

A

Happens after the sale but is not guaranteed

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48
Q

What is a race jurisdiction for recording?

A

First person to the courthouse who records wins

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49
Q

What is a notice jurisdiction for recording?

A

Last bonafide purchaser with no notice wins

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50
Q

What are the requirements to be a bonafide purchaser (for notice recording)?

A

1) Need to pay value ($);

2) No notice of any earlier transaction

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51
Q

What is a race notice jurisdiction for recording?

A

First bona fide purchaser who records wins

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52
Q

What is an easement?

A

One owner lets another do something on their land

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53
Q

What is an easement in writing called?

A

Express easement

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54
Q

Does an easement always need to be in writing?

A

No

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55
Q

What is an easement by necessity?

A

Necessary. Ex: Land locked and no way to access the public road unless you cross someone’s land

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56
Q

What is easement by proscription?

A

Using land in a particular way for the statutory prescription of time (like adverse possession for easements)

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57
Q

What happens when you acquire an easement by proscription?

A

Acquired the easement and right to continue doing it in perpetuity

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58
Q

What is an easement by implication?

A

Implied from prior use

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59
Q

How long is an easement enforceable for?

A

Forever against all future owners

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60
Q

What are the two ways to terminate an easement?

A

1) Abandonment

2) Merger

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61
Q

How do you abandon an easement?

A

1) Stop exercising the right; and
2) Express an intent not to return
(These are elements! One alone is insufficient)

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62
Q

What does it mean to terminate an easement through merger?

A

When 2 properties are owned by one person. Can’t have an easement on your own land

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63
Q

What is a covenant?

A

Promise between two owners not to do something

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64
Q

Does a covenant need to be in writing?

A

Yes

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65
Q

How long does covenant last?

A

Forever because it runs with the land

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66
Q

What are the elements for a covenant to run with the land?

A

1) Intent
2) Touch and concern the land
3) Notice
4) Writing
5) Privity

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67
Q

What is equitable servitude?

A

A restrictive covenant was breached, but seeking an injunction as a remedy

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68
Q

What does it mean that there’s a common scheme (re: covenants)

A

Same restrictive covenant on every subdivision

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69
Q

How long does a common scheme covenant last?

A

Forever as long as common scheme

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70
Q

What is a license?

A

Right to enter the land of another

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71
Q

When can a license be revoked?

A

Freely revocable by the grantor

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72
Q

What is a covenant for profit?

A

Give someone the right to come onto the land to take something from the ground/land (or off the ground for a profit)

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73
Q

What is fee simple absolute?

A

Own all the property and own it forever

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74
Q

What is a life estate?

A

Own the property 100% while you are alive

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75
Q

Can you transfer a life estate?

A

Yes

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76
Q

How long does a life estate transfer last?

A

Lasts until the original person dies

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77
Q

What does owner of property get in a life estate?

A

Reversion

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78
Q

What is reversion?

A

Automatically goes back to grantor

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79
Q

What does the third person (subsequent grantee) get?

A

Remainder

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80
Q

What are the two types of remainders?

A

1) Vested remainder

2) Contingent remainder

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81
Q

What is a vested remainder?

A

She is going to get it no matter what (Ex: A to B then to C. C has a vested remainder)

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82
Q

What is a contingent remainder?

A

Third person gets it if a contingency happens, not guaranteed (Ex: A for life then to Bob if he is married at the time) (including a child being born or ascertained)

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83
Q

What is fee simple determinable?

A

Give to you so long as you use it for X reason

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84
Q

What does original grantor get in fee simple determinable?

A

Possibility of reverter

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85
Q

What does third person get in fee simple determinable?

A

Nothing because of the RAP (void executory interest)

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86
Q

What can tenant do if breach of warranty of habitability?

A

Tenant can terminate the lease and stop paying rent

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87
Q

What would result in a breach of warranty of habitability?

A

Any violation of health or safety code

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88
Q

What are the two landlord duties?

A

1) Warranty of habitability

2) Deliver actual, physical possession of the property on the first day of the lease

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89
Q

What are a tenant’s duties?

A

1) Pay to rent

2) Not commit waste

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90
Q

What does it mean that a tenant cannot commit waste?

A

Don’t damage the property or allow damage to the property

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91
Q

What does it mean to assign a lease?

A

Give away the rest and remainder of the lease term

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92
Q

If lease assigned, who is primarily responsible for the rent?

A

The new tenant

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93
Q

Who can landlord go after if lease was assigned but new tenant not paying rent?

A

Can come after original tenant, unless executed a novation

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94
Q

What happens to legal relationship with landlord/tenant once lease is assigned?

A

New party is now in privity with the landlord

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95
Q

What does it mean to sublease?

A

Tenant is giving away a portion of the lease

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96
Q

Who is primarily liable for rent in sublease?

A

Original tenant

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97
Q

Is new tenant in privity with landlord in a sublease?

A

No.

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98
Q

What is a fixture?

A

Chattel/property that has become so affixed to the property that removal of it would cause damage to the property

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99
Q

When do you infer damage to the property?

A

Never.

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100
Q

“To A, but if A marries, to B”

A

Executory interest

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101
Q

“To A for life, then to B if B delivers a eulogy at A’s funeral”

A

Executory interest

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102
Q

“To A to be distributed as he sees fit”

A

Power of appointment

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103
Q

“To A for life, then to the heirs of B” (assuming B is alive)

A

Contingent remainder

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104
Q

“To my niece and her heirs and assigns in fee simple until my niece’s daughter married, and then to my niece’s daughter and her heirs and assigns in fee simple”

A

Niece has a defeasible fee simple determinable and the daughter has an executory interest

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105
Q

When is a remainder contingent?

A

If:

1) created in unborn or unascertained persons; or
2) subject to a condition precedent

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106
Q

What is a defeasible fee?

A

Fee simple estates that can be terminated upon the happening of a stated event

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107
Q

Can a contract to convey a property be made during a lease term?

A

Yes

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108
Q

What is required for the execution element of a deed to be satisfied?

A

The deed must be signed by the party to be charged (seller)

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109
Q

If land description is left blank in a deed, can the grantee fill that part in?

A

Yes, if they have the explicit authority to do so

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110
Q

If landowner gives buyer the right to fill in the plot number of the land to be sold, what is created between the landlord and buyer?

A

An implied agency in the purchaser to fill that part out

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111
Q

If selling a house, who is the only person who a warranty of habitability may be imposed?

A

A builder/seller of a new house

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112
Q

Can a seller sell a house “as is”?

A

Yes, a seller may disclaim any duty to disclose defects if the disclaimer is sufficiently clear and specific.

Note: Be on the lookout though of them knowing about a latent defect and statutes imposing duty to disclose. Where the seller had no idea and sold as is, that’s fine

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113
Q

Is a judgment creditor a BFP?

A

No because the judgment creditor has not given any consideration to be a BFP

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114
Q

Under a notice jurisdiction, if a judgment creditor records before a BFP, why would the judgment creditor lose?

A

Because he is not a BFP, so not protected by the notice statute

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115
Q

What kind of tenancy is created with “From O to ‘O and A as joint tenants with the right of survivorship’”

A

Tenancy in common because O already had an interest

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116
Q

What happens when a joint tenant dies and they have a mortgage on the property?

A

When owning JT and one JT mortgages his share of the property, when he dies the second JT takes the whole property free and clear of the mortgage

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117
Q

Can a creditor levy on the interest of a joint tenant?

A

Yes

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118
Q

Does the lien against one JT’s interest sever the JT?

A

No, until the lien holder proceeds to enforce it by foreclosure. At that point, the purchaser at the foreclosure will hold title as a TIC.

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119
Q

What is implied in every lease?

A

Implied covenant that neither the landlord nor someone with paramount title will interfere with the tenant’s quiet possession and enjoyment of the premises

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120
Q

What is the effect of partial eviction by a landlord?

A

Relieves the tenant from the obligation to pay rent for the entire premises

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121
Q

What is the effect of partial eviction by a paramount title holder?

A

Apportionment of rent

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122
Q

Does tenant have to pay rent if partial actual eviction by landlord?

A

No

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123
Q

What is the duty of a landlord if at the time the lease is entered the landlord knows of a dangerous condition that the tenant could not discover upon reasonable inspection?

A

Landlord has a duty to disclose. Failure to disclose that causes injury, will result in landlord being liable for any injury resulting from the condition

124
Q

If L leases property to T, and L subsequently assigns L’s interest to L2, who may T hold liable if X, a paramount title holder, ejects T?

A

Either L or L2.
L2- Assignee is liable to the tenants for performance of all covenants made by the original landlord
L- Original landlord also remains liable

125
Q

What is the effect of a landlord consenting to one transfer that violates a covenant against assignment or sublease?

A

Landlord waives his right to avoid future transfers

126
Q

What property interest does original tenant hold in an assignment?

A

Right of reentry

127
Q

Does a landlord’s promise in a lease to maintain the property terminate if a property is sold?

A

No because he remains in privity of contract. Also a promise may run with the land if intended to do so (ex: repairing. Privity of estate)

128
Q

What kind of possession must landlord give to tenant?

A

Landlord must give tenant only the legal right of possession, not actual possession

129
Q

In landlord/tenant dispute, who gets the interest on the security deposit in most jurisdictions?

A

The tenant

130
Q

What is generally the maximum range that can a landlord can charge for a security deposit?

A

One to two months

131
Q

Generally, what is the expectation of adjoining landowners?

A

Generally, adjoining landowners are expected to use their property reasonably without unduly interfering with the rights of the owners of contiguous land

132
Q

What are the three elements of private nuisance?

A

1) Plaintiff has a possessory interest in the land
2) Defendant performed an act that interfered with the plaintiff’s use and enjoyment of his property
3) The defendant’s interference with the plaintiff’s use and enjoyment was substantial and unreasonable

133
Q

What is substantial interference for private nuisance?

A

One that would be offensive, inconvenient, or annoying to a reasonable person

134
Q

What is unreasonable interference for private nuisance?

A

Unreasonable interference is evaluated by balancing the social usefulness of the interference with the local conduct of the community (more than mere market value or aesthetics)

135
Q

When does a person with a life estate not need to pay taxes on a property?

A

If not living there and no value from property

136
Q

What must a seller disclose to a buyer of property?

A

Sellers are required to disclose all known defects that will not be open and obvious to a buyer

137
Q

What is a right of first refusal?

A

A preemptive right that gives its holder the opportunity to acquire property prior to its transfer to another

138
Q

Are rights of first refusal valid?

A

Yes, unless it is unreasonable

139
Q

Is notice required for equitable servitude?

A

Yes

140
Q

When must seller provide marketable title?

A

At the time of closing

141
Q

What happens if a buyer of land determines that the seller’s title is unmarketable?

A

The buyer must notify the seller and give a reasonable time to cure the defects

142
Q

What happens if a seller of land breaches the implied covenant of marketable title (before closing)?

A

The closing date may be extended to allow the seller time to cure

143
Q

At what point can buyer no longer sue for breach of marketable title?

A

At closing. Implied covenant of marketable title applies at the contract stage. Closing extinguished the contract

144
Q

What does the holder of an easement have the right to do?

A

The right to enter the land to make repairs to the easement

145
Q

If repairing an easement somehow alters or damages the land, what must the easement holder do?

A

Must reasonably restore the land to the condition that it was in before the repairs were made

146
Q

What are three things required for a prescriptive easement?

A

1) Open and notorious
2) Adverse
3) Continuous and uninterrupted for the statutory period

147
Q

What does it mean if an easement is surcharged?

A

This means that the easement’s legal scope was exceeded

148
Q

What rights does a servient landowner have if easement is surcharged?

A

Servient landowner may enjoin the excess use and possibly sue for damages if the land has been harmed

(Note: easement not terminated by operation of law or give landowner the right to terminate)

149
Q

What are three ways in which an easement may be terminated?

A

1) Condemnation of the servient estate
2) Involuntary destruction of the servient estate
3) Merger

150
Q

How to terminate an easement by merger?

A

Must be complete unity, meaning that the duration of the servient tenement must be equal to or longer than the duration of the dominant tenement with which it is combined

151
Q

When is an easement implied?

A

When, prior to the time the tract is divided, a use exists on the servient part that is reasonably necessary for the enjoyment of the dominant part and a court determines that the parties intended use to continue after division of the property

152
Q

What are factors to determine “reasonably necessary” for an implied easement?

A

Cost and difficulty of alternatives

153
Q

In an easement by necessity, who determines location of the easement?

A

Owner of the servient estate can choose the location of an easement by necessity

154
Q

How many times after easement is first identified does it need to be identified again?

A

Never

155
Q

What happens if easement is reasonably located?

A

Servient estate cannot relocate the easement

156
Q

What is estoppel by deed?

A

If a grantor purports to convey title that he does not actually hold, his subsequent acquisition of title to the property will automatically bring into effect the prior benefit conveyed to the grantee

157
Q

What becomes the main issue in doctrine of estoppel by deed?

A

Whether the buyer is a subsequent bona fide purchaser and what was his burden of searching title

158
Q

What is the purpose of recording?

A

To provide NOTICE. Has no effect on the validity or invalidity of a deed

159
Q

Marketable title must be free of encumbrances. What does that mean?

A

No mortgages, restrictive covenants, and easement

160
Q

If time is not of the essence, when is seller required to provide marketable title?

A

Within a reasonable time after the scheduled closing date

161
Q

Delivery of a deed is a question of _____

A

Intent

162
Q

Must you record a deed to transfer title?

A

No

163
Q

What is required for transferring a deed?

A

Delivery and execution (grantor signs the deed)

164
Q

Does a quitclaim deed need consideration?

A

No

165
Q

What standard do courts apply to regulations adopted by an association and not contained in their governing documents?

A

Reasonableness

166
Q

What is the reasonableness standard in analyzing decisions by an association?

A

Balancing of the utility of the purpose served by the restraint against the harm that is likely to flow from its enforcement

(Will typically be considered reasonable if their purpose is to protect the common property)

167
Q

Can you be required to pay annual dues (HOA fee) for an indefinite period of time?

A

Courts are reluctant to recognize an affirmative burden to pay money over an indefinite period of time)

168
Q

What is a warranty deed?

A

Covenant wherein the grantor agrees to defend on behalf of the grantee any lawful or reasonable claims of title by a third party and to compensate the grantee for any loss sustained by the claim of superior title

169
Q

When is covenant for warranty breached?

A

When a third party interferes with the possession of the grantee or her successors

170
Q

Is covenant for warranty breached if the covenantor refuses to defend title against a wrongful claim or eviction by a third party?

A

No.

Note: If title not defective, covenant not breached

171
Q

What is dedication of land?

A

Donation of land or creation of an easement for public use (and it can be express or implied)

172
Q

When is public dedication of land established/when will title to the land pass to the public entity?

A

When:

1) Express intent to dedicate land for public use; and
2) acceptance of the dedication (fully approved plan by all necessary public agencies is enough)

173
Q

When can dedication be accepted?

A

At any time unless the dedication is revoked by the original grantor

174
Q

REVIEW: If it says no assignment, can you sublease?

A

No because any restrictions in a lease (to assign or sublease) are strictly construed according to its explicit terms

175
Q

What is equitable servitude?

A

Covenant that, regardless of whether it runs with the land at law, can be enforced in equity against successors of the burdened land unless the successor is a bona fide purchaser

176
Q

When will burden of equitable servitude run to successor in interest?

A

1) covenanting parties intended that successors in interest be bound by the covenant;
2) successor in interest has notice of the covenant; and
3) covenant touches and concerns the land

177
Q

Who must pay the mortgage of a property re: life estate and future interest holders?

A

Life estate holder must pay the interest of the mortgage, the remaindermen must pay the principal balance

178
Q

If life estate holder doesn’t pay the interest of a mortgage or collective failure of remaindermen to not make the principal payment, what is the effect on the remaindermen?

A

Remaindermen cannot be held personally liable

179
Q

What is statutory redemption?

A

Right of a mortgagor to recover the land AFTER the foreclosure sale has occurred, usually by paying the foreclosure sale price

180
Q

What must you pay in equitable redemption?

A

Overdue amount plus interest

181
Q

When does equitable redemption cut off?

A

At the foreclosure sale

182
Q

Can right of redemption be waived through express language in the mortgage contract?

A

No

183
Q

What is the order of priority for allocating mortgage foreclosure sale proceeds?

A

1) foreclosing party
2) any junior lienors in the order of their priority
3) mortgagor

Note: Senior lien holders not entitled to anything. Stays with the land

184
Q

What are the elements of adverse possession?

A

1) Actual entry giving exclusive possession that is
2) open and notorious
3) adverse
4) hostile
5) continuous throughout the statutory period

185
Q

When can adverse possession timing tack?

A

Can tack if there’s privity in possession between the claimaints

186
Q

If A has a life estate, and during A’s lifetime X takes by adverse possession, what does X obtain?

A

Obtains A’s life estate

187
Q

When does the statute of limitations begin to run on the holder of a future interest?

A

When her interest becomes possessory

Ex: If X obtained life estate through adverse possession, clock starts again when A dies

188
Q

What is the effect of someone taking land by adverse possession and uses the land in violation of a recorded real covenant?

A

The adverse possessor takes title free of the covenant (even if she had knowledge of the covenant)

189
Q

What is the effect of someone taking land by adverse possession and using that land in compliance with a covenant?

A

The adverse possessor takes title subject to that covenant

190
Q

What is the modern approach to illusory promises?

A

Construe a promise to be non-illusory whenever possible

191
Q

Is the phrase “as soon as I’m able” illusory?

A

No. This just means that the seller needs to prove that the buyer is able to pay

192
Q

When does owner’s policy of title insurance protect owner?

A

Continues to protect the owner if the owner is ever successfully sued on a title covenant in a future conveyance

193
Q

What kind of items would a tenant in common need to pay if the property is not making a profit?

A

Taxes, mortgage payments, and necessary repairs

194
Q

What happens if TIC fails to reimburse the other TIC for something he should have paid for?

A

Other TIC can take interest

195
Q

What is the effect on a TIC if a property is generating profit?

A

TIC entitled to a portion of that profit

196
Q

What is duty of life estate holder?

A

Duty not to commit waste

This includes having to pay taxes, keeping property in repair, and pay interest on mortgage

197
Q

What need to be in a writing to satisfy the statute of frauds?

A

All essential terms (this includes time is of the essence)

198
Q

What is the exception of life estate not committing waste?

A

Changed condition. If dealing with changed conditions that make something uninhabitable, can break it down to make it habitable

199
Q

What is the open mines doctrine?

A

Life estate can continue to use property how it was being used. Can’t start new projects though

200
Q

If will making class gift and a class member predeceases testator, what happens?

A

That class member would get nothing

201
Q

When does a class close?

A

At the time a class member can take the property (present possessory interest)

202
Q

How is joint tenancy severed?

A

1) Death of the second to last joint tenant
2) Unilateral conveyance intervivos
3) Final partition decree
4) Title theory jurisdiction

203
Q

What happens if joint tenants both decide to give someone a percentage of the joint tenancy?

A

Both keep JT, other person gets that portion as a tenant in common

204
Q

Are landlords liable for defects

A

Landlords are not liable for latent defects, unless knew or had reason to know of the defects, unless lease is short term and property is furnished

205
Q

What is an easement in gross?

A

Only one property affected

206
Q

What is an easement appurtenant?

A

One serviant and one dominant property

207
Q

For a restrictive covenant in a common development scheme, how do you get rid of it?

A

There must be a changed circumstance in every lot in the subdivision (all or nothing)

208
Q

What damage is available after contract but before closing?

A

Specific performance

209
Q

What is trade fixtures doctrine?

A

Commercial tenants can remove all trade fixtures prior to the lease expiring (not structural additions though)

210
Q

What is shelter doctrine?

A

Can step into shoes of the bona fide purchaser (even if the person buying is not a BFP)

211
Q

When can you convey property you gained during adverse possession?

A

Only after filing suit to quiet title. Otherwise, the person can’t sell because not marketable title

212
Q

What if neighbor causes damage to man-made structures by removing lateral or subjacent support?

A

To recover, need to prove negligence on the part of your neighbor

213
Q

What are the four unities to make a joint tenancy?

A

Same time, title, interest, and possession (T-TIP)

214
Q

What happens if a JT executes a lien/mortgage on her share of the property?

A

Won’t sever JT in most states (lien theory)

215
Q

What is ousting?

A

One co-tenant wrongfully excludes another co-tenant from possession

216
Q

What is a tenancy for years?

A

Tenancy for a period of time (even if specified time is months)

217
Q

How much notice is needed to terminate a term of years?

A

None

218
Q

What is a periodic tenancy?

A

Lease for successive intervals (continuous until properly terminated)

219
Q

How much notice is needed to terminate a periodic tenancy for a year?

A

6 months at common law, 1 month under Restatement (preferred approach)

220
Q

How to create a tenancy at will?

A

Express

221
Q

What is a tenancy at sufferance?

A

When tenant wrongfully holds over

222
Q

What does it mean that a tenant need only maintain the premises?

A

Routine repairs (not ordinary wear and tear)

223
Q

What are the landlord’s options if a tenant wrongfully vacates with time left on a term of years lease?

A

(S)urrender, (I)gnore [minorirty], (R)e-let

224
Q

When does Fair Housing Act not apply?

A

When (1) owner-occupied buildings with 4 or fewer units and (2) single-family homes where owner doesn’t own more than 3 single family homes

225
Q

How do you create an affirmative easement?

A

P- Prescription
I- Implication
N- Necessity
G- Grant

226
Q

What is an affirmative easement?

A

The right to go onto and do something on servient land

227
Q

What is a negative easement?

A

Entitles holder to prevent servient landowner from doing something that would otherwise be permissible (LASS- light, air, support, stream water from artificial flow)

228
Q

How is a negative easement created?

A

Only by writing signed by grantor

229
Q

What is an easement in gross?

A

Holder has some personal or pecuinary advantage (ex: swim in someone’s pool)

230
Q

Is an easement in gross transferrable?

A

Only if for commercial purposes

231
Q

How to create an easement by (P)rescription?

A 
C- Continuous & uninterrupted 
O- Open and notorious
A- Actual (doesn't need to be exclusive) 
C- 
H- Hostile

P= Portgual= Coach

232
Q

How to terminate an easement?

A

E- Estoppel
N- Necessity (ending)
D- Destruction

C- Condemnation 
R- Release
A- Abandonment 
M- Merger 
P- Prescription
233
Q

What is an affirmative covenant?

A

Promise to do something related to the land (ex: Maintain our common fence)

234
Q

How to create an equitable servitude that will bind successors?

A 
W- Writing 
I- Intent 
T- Touch & concern 
N- Notice (hence, witnes) 
ES- Equitable servitude
235
Q

Need privity for covenant?

A

Yes, vertical and horizontal

236
Q

What are the elements for adverse (p)osession?

A 
C- Continuous 
O- Open and Notorious 
A- Actual and exclusive 
C-
H- Hostile
237
Q

When can someone tack onto time for adverse possession?

A

When there is privity

238
Q

What is needed in the contract of a sale of land?

A

Signature, parties, description of property, price (or way of determining price)

239
Q

What happens if necessary party is not joined in a foreclosure proceeding?

A

Their mortgage remains on the land

240
Q

What must a proponent of a variance show?

A

Undue hardship & no diminution of neighboring properties

241
Q

What kind of language used in a fee simple determinable?

A

Durational language (ex: so long as, while, during, until)

242
Q

What kind of language is used in fee simple subject to condition subsequent?

A

but if, upon condition that, provided that

243
Q

What does grantor get in fee simple subject to condition subsequent?

A

Right of reentry

244
Q

What does grantor get in a fee tail?

A

Reversion

245
Q

What is fee tail?

A

Until A and his line die out

246
Q

When may life tenant alter or demolish an existing building?

A

1) market value of future interest is not diminished; and either
2) remainder men do not object; or
3) substantial and permanent change in the neighborhood condition

247
Q

Does original owner ever have remainder?

A

No

248
Q

What is an indefeasible vested remainder?

A

No strings attached. For sure getting property

249
Q

What is a vested remainder subject to total divestment?

A

Vested remainder that is subject to a condition subsequent (“To A but if gets divorced…”

250
Q

What is springing executory interest?

A

Grantor –> grantee

251
Q

What is a shifting executory interest?

A

Grantee –> grantee

252
Q

Is failure to deliver a deed or possession on date of closing a substantial or material breach?

A

No if no time is of the essence clause

253
Q

What is the standard to apply to the rules an association passes?

A

Reasonableness standard if not in the deeds or declaration of the CID

254
Q

Is aesthetic improvement a sufficient purpose for an association to pass a rule?

A

No, this will not pass the reasonableness standard

255
Q

What interests does the rules against perpetuities apply to?

A

1) vested remainder subject to open
2) contingent remainder
3) executory interests
4) unexercised options and rights of first refusal
5) Powers of appointment

256
Q

Who is the only party that may terminate a contract for not having marketable title?

A

The buyer

257
Q

If taking something out under trade fixtures exception, what must the tenant do?

A

Reasonably restore the premises or pay for the cost of restoration

258
Q

Once a fee simple determinable ends, who gets the money from something with the property (Ex: condemnation proceeds)?

A

The original owner because the owner is the one with legal title now (possession not relevant)

259
Q

Who does a title insurance policy cover?

A

The named individual and his heirs and devisees so long as the named insured or his heirs or devisees owned the property

260
Q

What is the language for a springing executory interest?

A

“To A when and if he becomes a doctor” or “To A for life, the two years after A’s death, to B”

261
Q

What is one alternative to a foreclosure sale?

A

Giving the deed of the house to the bank (if no other liens against the property). Must be voluntary

262
Q

What is a short sale?

A

A short sale occurs when a lender agrees to release its lien in exchange for the sale proceeds

263
Q

Does a restrictive covenant make title unmarketable?

A

Yes, unless the covenant is excepted in the contract

264
Q

What happens if the bank assigns a promissory note but not a mortgage to an investor?

A

Assignment of a note automatically transfers the mortgage tot he assignee of the note

265
Q

What is the effect of a partial condemnation on a landlord/tenant relationship?

A

The landlord/tenant relationship continues, as does the tenant’s obligation to pay the entire rent for the remaining period of the lease. But, tenant is entitle to share in the condemnation award to the extent that the condemnation affected the tenant’s rights under the lease

266
Q

When does the perpetuities period begin in the case of a will?

A

Begins to run on the date of the testator’s death, and measuring lives must be in existence at that time

267
Q

What is seisin?

A

Grantor owns

268
Q

What is covenant against encumbrances?

A

No servitudes/liens

269
Q

What is the covenant of warranty?

A

Promise to defend

270
Q

What is the covenant of further assurances?

A

Covenant to perform whatever acts are reasonably necessary to perfect the title conveyed if it turns out to be imperfect

271
Q

Can a bank/mortgagee be considered a BFP?

A

Yes, bona fide mortgagee. Subject to the notice statutes

272
Q

How to sell a property gained through adverse possession?

A

First, need to bring an action for quiet title. If not, no good and marketable title to convey yet

273
Q

Need notice for easement/deed?

A

Yes

274
Q

Does a junior mortgagee have the right to pay off senior mortgagee to avoid foreclosure?

A

Yes

275
Q

Can someone recover damages for humiliation suffered under false imprisonment?

A

Yes

276
Q

What is a profit?

A

A nonpossesory interest in land that entitles the holder to enter the servient tenement and take soil, minerals, substance (game included)

277
Q

What happens when a tenant in a commercial lease holds over and the lease was a year-to-year tenancy?

A

Landlord may evict or bind him to a periodic tenancy. If the original lease term was for a year or more, a year-to-year tenancy results

278
Q

What is exoneration?

A

If someone dies leaving real and personal property to two different people and there was a contract for real estate before person died, person of the real property can demand that the person who got the personal property pay for the real estate

279
Q

What happens when there is a mistake or inconsistency in the description of the property in the deed?

A

Physical description takes precedence over the quantity description, unless there are no grounds for reformation of the deed

280
Q

What are the only requirements that must be met for a conveyance of land to be valid?

A

Execution and delivery

281
Q

Courts have held that a down payment of what percent usually can be kept as liquidated damages?

A

10%

282
Q

How can a TBE be severed?

A

1) Divorce
2) Death of one spouse
3) Creditor of both spouses
4) Mutual agreement

283
Q

What effect does the language “for the purpose of X” have on title?

A

No effect. Take as fee simple absolute

284
Q

Is a building with a building violation still marketable (title)?

A

Yes

285
Q

If a property violates zoning laws, can it still have marketable title?

A

No because a zoning law would be considered an encumbrance

286
Q

Does giving up possession change the rights of TIC?

A

No and cannot be bound by what one TIC did (ex: boundary line)

287
Q

Is delivery presumed if the deed is recorded?

A

Yes

288
Q

Does a deed need to be physically transferred to be valid delivery?

A

No

289
Q

What is nonconforming use?

A

Use that was in existence at the time of the zoning change, and was allowed at that time, but is no longer permitted under the new zoning

290
Q

What is a variance?

A

Permits a waiver from a zoning requirement

291
Q

What is an accord and satisfaction?

A

Substitute contract between the original parties

292
Q

What are the necessary terms in a deed to comply with the statute of frauds?

A

identity of grantor & grantee, words of transfer, description of the property interest, and grantor’s signature

293
Q

Is a profit a nonpossessory interest in land?

A

Yes, and subject to due process protection (profit a prendre)

294
Q

Does a future interest make the current possessory owner’s title marketable or unmarketable?

A

Unmarketable

295
Q

What is equitable conversion?

A

Once a contract is signed and each party is entitled to specific performance, equity regards the purchaser as the owner of the real property

296
Q

When would an easement not make title unmarketable?

A

When the easement was visible or known tot he buyer

297
Q

When is a seller liable for failure to disclose defects?

A

If (1) they know or have reason to know of the defect, (2) the defect is not obvious and the buyer is unlikely to discover it by ordinary inspection, and (3) the defect is serious and would probably cause the buyer to reconsider the purchase if he knew about the defect

298
Q

What are the damages for failure of seller to inform of a latent defect?

A

Damages can range from rescission to the difference in value resulting from the failure to disclose true facts

299
Q

Why is original intent of the parties making an easement important?

A

An easement holder cannot expand the easement beyond what was contemplated at the time it was granted

300
Q

What is required for a death escrow?

A

1) The only condition is the grantor’s death

2) Grantor doesn’t retain the legal right to take the deed back out of escrow

301
Q

If two people attempt to make a contract to buy Blackacre, but one cannot accept (either dead or fraud), what is the statuts of Blackacre?

A
  • 1/2 to original owner

- 1/2 to the person who could accept

302
Q

When can mortgagee take possession of a property before the property is in foreclosure?

A

When the mortgagor abandons the premises and stops paying the mortgage, the mortgagee can take possession and administer the property to maintain its security interest

(Note: once he takes possession, has the same duties as an owner would)

303
Q

Can you give property to a minor?

A

Yes

304
Q

Even in title theory states, to get full ownership of Blackacre, what must the mortgagee do?

A

Go through foreclosure proceedings

305
Q

Can a landlord end a lease if continuous criminal conduct on the property?

A

Yes and also seek damages or injunctive relief

306
Q

Is fraud in the execution void or voidable?

A

Void

MBE (8 decks)

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