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Bar Exam > MBE Real Property > Flashcards

MBE Real Property Flashcards

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1
Q

Types of Defeasible Fee Estates

A

Fee Simple Determinable (durational language: “so long as” “while” “until”)
Fee Simple Subject to Condition Subsequent (conditional language: “provided that” “but if” “on the condition that”)
Fee Simple Subject to Executory Interest (future interest in a third party)

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2
Q

Types of Future Interests

A

Fee Simple Determinable: possibility of reverter in Grantor (automatic)
Fee Simple Subject to Condition Subsequent: right of reentry in Grantor (must be exercised)
Fee Subject to Executory Interest: Executory Interest
Life Estate: remainder in third party or reversion in Grantor

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3
Q

Types of Waste

A

Affirmative: overt conduct causes a decrease in property value

  • Vested future interests can sue for damages
  • Any future interest can sue for injunction

Permissive: permitting the premises to deteriorate through neglect, etc.

Ameliorative: change in the use of a property that increases its value

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4
Q

Vested v. Contingent Remainders

A

Vested: not subject to any conditions precedent + ascertainable grantee

Contingent: subject to a condition or non-ascertainable grantee

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5
Q

Vested Subject to Open

A 
Happens with class gifts where the class may grow further 
Once a class closes, future possible members have no claims
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6
Q

Rule of Convenience

A

Closes a class when any class member is entitled to immediate possession as a way around RAP

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7
Q

Doctrine of Worthier Title

A

Creates an presumption of reversion to the grantor; preventing remainders in a grantor’s heirs

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8
Q

The Rule in Shelley’s Case

A

Prevents against remainders in a grantee’s heirs, using merger to create a fee simple in the grantee

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9
Q

RAP Exceptions

A

Charity-to-Charity
Options of current tenants to purchase a leasehold
Options in commercial transactions
Future interests that revert to the grantor
Specific dollar amounts given to each class member

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10
Q

RAP Applies to:

A

Applies to contingent remainders, executory interests, and class gifts (subject to open) if not protected by the Rule of Convenience

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11
Q

The Rule Against Perpetuities - Common Law

A

Future interests are valid only if they must vest or fail by the end of a life in being plus 21 years

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12
Q

The Rule Against Perpetuities - Statutory

A

Wait and see approach
Changes the time frame to 90 years
Doesn’t automatically fail, only fails if it doesn’t vest or fail by 90 years

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13
Q

Common Violations of RAP

A 
"Survival beyond age 21" condition
Fertile Octogenarian
Unborn Spouse
Defeasible fee followed by executory interest
Conditional passage of interest
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14
Q

Cy Pres

A

Equitable doctrine used to reform a transfer to avoid violating RAP

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15
Q

The Four (sometimes Five) Unities

A 
Possession
Interest
Title
Time
(Person - for Tenants by the Entirety)
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16
Q

Tenancy in Common

A 
Default co-tenancy
No right of survivorship
Each holds undivided interest with unrestricted rights of possession to the whole
Interest freely devisable/transferrable 
Only need unity of possession
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17
Q

Joint Tenancy

A

Requires express language (usually “with rights of survivorship”)
Yes right of survivorship
Interest is alienable but not devisable/descendible
Must have all 4 unities
Loss of any of the unities severs to Tenants in Common
Jurisdictions differ on what a lease does (either severs or temporarily suspends

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18
Q

Tenancy by the Entirety

A

Requires all 4 unities plus marriage
Must be married at the time of granting
Neither can alienate or encumber the property without the other’s consent
Many states presume conveyance to a married couple creates TE and divorce turns it into a TC

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19
Q

Rights & Obligations of Co-Tenants

A
  1. Possess the entire property
  2. Liable for third party rents after deducting operating expenses/repairs
  3. Can collect contribution for operating expenses (taxes) BUT if in sole possession, only if they exceed the rental value of the property
  4. Compel others to share in expenses for repairs ONLY IF: (i) necessary (ii) seeks accounting or partition
  5. No right to reimbursement for improvements
  6. Duty of fair dealing, but not fiduciary
  7. Buying back at tax/foreclosure sale requires giving other cotenants the chance to buy back their interests
  8. Can get a court to unilaterally partition
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20
Q

Fair Housing Act Protected Traits

A

Race, Color, Religion, National Origin, Sex, Disability, Familial Status

Allows for both disparate treatment and impact

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21
Q

FHA Exemptions

A
  1. Single-family housing sold/rented without a broker
  2. Owner-occupied buildings with 4 or fewer living units
  3. Religious organizations/private clubs

Only religious organizations/private clubs can discriminate in advertisements

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22
Q

FHA Prohibits

A

Refusing to rent, sell, or finance a dwelling
Requiring different rents
Falsely denying that a unit is available
Providing different services to facilities
Stating discriminatory preference in an advertisement

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23
Q

Tenancy for Years

A

Any fixed period of time
Automatic termination at the end of the term
Can be terminated before end (i.e. breach)
Created by express agreement
Must be in writing if longer than 1 year (SOF)

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24
Q

Periodic Tenancy

A

Ongoing estate by set periods of time with no predetermined termination date
Automatic renewal at the end of each period absent termination notice
Created by express agreement, implication (no duration mentioned), or by law (holdover)
Notice must be given before last period begins to terminate (need a full period at least)

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25
Q

Tenancy at Will

A

No specific term
Continues as long as parties want
Created by express agreement or implication
No notice required at CL, notice required by most states now

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26
Q

Tenancy at Sufferance

A

Created after tenant wrongfully holds over after lease ends
Tenant bound by terms of lease from before expiration
Lasts until tenant vacates, is evicted, or landlord holds tenant to a periodic tenancy

27
Q

Landlord Remedies for Tenant Breach

A

Sue for damages AND evict AND terminate for failure to pay rent (majority)
Entitled to late rent but not future rent - no anticipatory repudiation for leases in most states

Abandonment: treated as an offer to surrender rights under the lease; can accept and terminate lease or reject and hold tenant liable

28
Q

Warranty of Habitability

A

Only for residential leases
Premises must be fit for basic human habitation
If breached, tenant must notify landlord, give reasonable time to repair and can refuse to pay rent, repair and deduct from rent, or pay rent and seek damages (in possession)

29
Q

Covenant of Quiet Enjoyment

A

For both commercial and residential leases
Tenants have the right to quiet use and enjoyment of the premises without landlord interference
Landlord has a duty to control other tenants’ nuisance in common areas
Breach can amount to eviction

30
Q

Types of Eviction

A

Actual: actually excluded from premises, lease is terminated and tenant obligation to pay ends

Partial: excused from paying rent but must pay reasonable rental value if it’s partial eviction by a party with a superior claim; not excused from paying due to adverse possessors/trespassers

Constructive: substantial interference by landlord’s actions (or failure to act); must give notice and vacate within a reasonable time if landlord fails to fix the problem

Retaliatory: eviction for asserting a tenant’s right - not allowed

31
Q

When a Landlord Can Refuse Assignment/Subleasing

A

Majority: landlords can only withhold permission for commercially reasonable reasons in relationship to the property used
Minority: gives complete discretion

32
Q

Exceptions to the Statute of Fraud in Land Sales

A

Part Performance (usually need 2/3 of: payment, possession, improvement)
Detrimental Reliance
Admission

33
Q

Implied Warranty of Fitness

A

Only for new homes

Warrants the use of adequate materials and workmanship, including latent construction defects

34
Q

Equitable Conversion

A

A seller’s interest is converted by the contract into an interest in the proceeds of the sale, not the real property
Once the contract is signed, buyer is owner of the land subject to condition he pay purchase price at closing
Between contract and closing, buyer bears the risk of loss (majority)
Seller maintains risk until closing (minority)

35
Q

Adverse Possession Elements

A

Continuous (20 years at CL)
Open & Notorious
Hostile (majority ignore subjective intent, just objective intent to claim land as own; minorities require good or bad faith)
Exclusive

36
Q

Deed Delivery

A

Grantor must intend to make present transfer - rebuttable presumption in execution/recording
Delivery doesn’t occur if grantor maintains any option to recover the deed
Acceptance presumed

37
Q

Deed Requirements

A

Identified Parties
Grantor Signature
Words of Transfer
Reasonably Definite Property Description

38
Q

Equal Dignities Rule

A

Agency authorization for real estate contracts and executing deeds are allowed, but the relationship agreement must be in writing

39
Q

What Recording Acts Cover

A 
Deeds
Mortgages
Leases
Options
Judgments affecting title
Easements/Covenants/Equitable Servitudes
40
Q

Types of Notice

A

Actual: they actually know
Inquiry: a reasonable investigation would disclose prior claims (dude on the land or mentioned in the deed to another transaction)
Constructive: proper recording appearing in the chain of title

41
Q

Types of Deeds

A

General Warranty
Special Warranty
Quitclaim Deed

42
Q

Present Covenants

A

Seisin
Right to Convey
Against Encumbrances

Breached at sale

43
Q

Future Covenants

A

Quiet Enjoyment
Warranty
Further Assurances
Breached after the problem occurs

44
Q

Special Warranty Deed

A

Same covenants of title as general but only warrants against defects arising during the time grantor had title

45
Q

Shelter Rule

A

Someone who takes from a BFP protected by a recording act has the same protections as their grantor

46
Q

Mortgage Alternatives

A

Deed of Trust: trustee holds title for beneficiary
Installment Land Contract: seller retains title until buyer makes final payment
Absolute Deed: transfers unrestricted title [can be a disguised mortgage if obligation created contemporaneously with transfer]
Conditional Sale and Repurchase: sold then leased back to seller [may be a disguised mortgage if lease is for a long time with option to repurchase]

47
Q

Mortgage Types

A 
Purchase Money (loan to buy property in question)
Future Advance (line of credit for improvements/business)
48
Q

Equity of Redemption

A

After default but before foreclosure sale, mortgagor can regain title by paying full amount owed plus interest

49
Q

Statutory Redemption

A

When there, allows the owner to redeem after a foreclosure sale

50
Q

Mortgage Priority Exceptions

A

Purchase Money generally has priority over others
Recorded may take priority over non-recorded
Subordination Agreements
Mortgage Modifications/Replacements
Future Advances
After-Acquired Property

51
Q

Foreclosure Effects on Parties

A

Mortgagor interest eliminated
Senior Interests unaffected
Junior Interests destroyed

52
Q

Foreclosure Notice Requirements

A

Senior Interests need not be notified

Junior Interests must be notified/joined

53
Q

Easement Types

A

Express

Necessity - strict necessity

Implication - previously used on servient estate by owner (who owned both estates before) (continuous, apparent, and reasonably necessary)

Prescription: continuous, actual, open and hostile, for statutory period (20 years CL)

Estoppel: good faith, reasonable, detrimental reliance on permission (from a license)

Negative - prevents owner from using own land, must be express

54
Q

Easement Transfers

A

Easement Appurtenant - benefits the land, transferred automatically with the dominant estate

Easement in Gross - benefits the person, can be transferred to other parties if intended (only servient estate can transfer)

55
Q

Duty to Maintain an Easement

A

An easement owner has a right/duty to maintain the easement

May seek contribution from co-owners after notice and an opportunity to participate in repair decisions

56
Q

Profits

A

Entitles the holder to enter servient land and remove soil or other substance of the soil (e.g., mineral, timber, oil)

57
Q

Real Covenants Requirements

A 
Writing
Intent
Touch/Concern the Land
Notice (burden only)
Privity 
   - Horizontal (burden only)
          Same instrument
   - Vertical (both)
          Mutual/successive land interest
58
Q

Relaxed v. Strict Vertical Privity

A

Strict: for the burden to run, successor must take the original party’s ENTIRE interest

Relaxed: for the benefit to run, successor only needs to take an interest carved out of original estate

59
Q

Equitable Servitudes Requirements

A

Writing
Intent
Touch/Concern
Notice (to enforce against a purchaser)

60
Q

Implied Reciprocal Servitudes

A

Intent to create servitude on all plots (common scheme)
No writing requirement
Negative servitude
Notice of party against whom enforcement is sought

61
Q

When Fixtures Can Be Removed

A

Fixtures incorporated into structure become part of realty, but can be removed if:

  • Seller reserves right in contract
  • Leased property can be restored to prior condition without damage in reasonable time

New Rule: trespassers can remove or recover for value added if in good faith

62
Q

Support Rights

A

The right to have the land supported in its natural state

63
Q

Lateral Support

A

Undeveloped: landowner excavating on own land strictly liable for damage to undeveloped adjoining land only if adjoining land would have collapsed in undeveloped state

If improvements contributed to collapse, landowner only liable if negligent

64
Q

Subjacent Support

A

Owner of mineral rights strictly liable for any failure to support the land and any buildings on the land at the time rights were conveyed

Bar Exam (9 decks)

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