MEE Real Property

Question 1

What is a fee Simple determinable with possibility of reverter?

What language should you look for?

Answer 1

A fee simple determinable terminates upon the happening of a stated event and automatically reverts to the grantor.

“to A for so long as…”
“to A while…”
“to A during…”
“to A until….”

Question 2

What is a fee simple subject to condition subsequent and right of re-entry?

What are the two main ingredients?

Answer 2

An estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event… Does not automatically terminate.

Two Main Ingredients:
(1) The use of conditional words, such as “upon condition that,” “provided that,” “but if,” and “if it happens that,” and
(2) An explicit statement of the grantor’s right to re-enter.

Question 3

What is a life estate?

Answer 3

A life estate is one measured by the life or lives of one or more persons.

Can be “Pur Autre Vie” (or in other words measured by the life of another).

Question 4

What is a reversion?

Answer 4

A reversion is the estate left in a grantor who conveys less than they own (for example, O conveys “to A for life”; O has a reversion).

Question 5

What is a remainder?

Answer 5

A remainder is a future interest in a third person that can become possessory on the natural expiration of the preceding estate.

Remainders are either vested or contingent.

Question 6

What is a vested remainder? What are the three types of vested remainders?

Answer 6

A vested remainder is one created in an existing and ascertained person, and not subject to a condition precedent.

(1) The indefeasibly vested remainder;
(2) The vested remainder subject to total divestment (also known as the vested
remainder subject to complete defeasance); and
(3) The vested remainder subject to open.

Question 7

What is a contingent remainder? What is a condition precedent?

Answer 7

A remainder is contingent if:
(1) it’s created in unborn or unascertained persons, or
(2) it’s subject to a condition precedent, or both.

A condition is precedent if it must be satisfied before the remainderman has a right to possession.

Question 8

What is an executory interest? What is a shifting vs. springing executory interest?

Answer 8

Executory interests are future interests in third parties that either divest a transferee’s preceding freehold estate (“shifting interests”), or follow a gap in possession or cut short a grantor’s estate (“springing interests”).

Question 9

What is the Rule Against Perpetuities?

Answer 9

No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest (“measuring life”).

Question 10

What are the characteristics of a Tenancy in Common?

Answer 10

A tenancy in common is a concurrent estate with no right of survivorship.

Each co-tenant owns a 1/2 undivided interest, and each has a right to possess the whole.

Each interest is devisable, descendible, and alienable.

Question 11

What are the characteristics of a Joint Tenancy? What must be present to create a Joint Tenancy?

Answer 11

A joint tenancy’s distinguishing feature is the right of survivorship.

Remember: TTIP (The Four Unities)
Same Time
Same Title
Identical and Equal Interest
Possession Rights of Whole

Question 12

What is a partition? Do the courts generally grant them?

Answer 12

A judicial action for a physical division of the property, if in the best interests of all parties.

Courts WILL grant if reasonable, possible, and fair.

Question 13

What is a Tenancy for Years? What are the notice requirements for termination?

Answer 13

A tenancy for a fixed, determined period of time. “From X date to X date”.

Ends automatically at its termination date, no notice is necessary to terminate.

Question 14

What is a Periodic Tenancy? What are the notice requirements for termination of each period?

Answer 14

A tenancy which continues for successive intervals (for example, month to month) it CONTINUES until either the landlord or the
tenant gives proper notice of termination.

Month-to-Month? One month.
Week-to-Week? One week.
Year-to-Year? One month is the bar examiner’s approach, but common law it is six months.

Question 15

What is a Tenancy at Will? What are the notice requirements for termination?

Answer 15

This is a tenancy of no fixed period of duration–it’s terminable at the will of either the landlord or the tenant.

In theory, it can be terminated at any time, however notice and reasonable time to vacate are required in most states.

Question 16

What is the Holdover Doctrine? What may a landlord do?

Answer 16

If a tenant WRONGFULLY stays past the termination of their lease, it creates a Tenancy at Sufference.

The holdover doctrine states that if a tenant continues in possession after their right to possession has ended, the landlord may:
(1) Evict the tenant, or
(2) Bind the tenant to a new periodic tenancy (depending on how rent is paid).

Question 17

What are the characteristics of an assignment?

Answer 17

An assignee stands in the shoes of the original tenant in a direct relationship with the landlord; and each is liable to the other on all covenants in the lease that “run with the land.”

After assignment, the original tenant is no longer in privity of estate with the landlord, but their lease contract remains in effect and enforceable.

Question 18

What is a Constructive Eviction?

Answer 18

Occurs when the landlord’s breach of duty renders the premises unsuitable for occupancy. Remember: SING

Substantial Interference
Notice
Goodbye

Question 19

What is the implied warranty of habitability? What are the tenant’s options for remedy?

Answer 19

Applies to RESIDENTIAL leases only.

The premises must be fit for basic human habitation. In other words, bare living
requirements must be met. Is on a case-by-case basis. (Example: Lack of running water, heat in winter, plumbing…)

Remember MR3:
Move Out
Repair and Deduct
Reduce Rent
Remain in Possession (affirmatively seek money damages)

Question 20

What is the implied covenant of quiet enjoyment? How might the landlord breach this covenant?

Answer 20

Applies to COMMERCIAL and RESIDENTIAL leases.

A tenant has a right to quiet use and enjoyment of the premises, without interference from the landlord or a paramount title holder (Example: A
prior mortgagee who forecloses…)

When does landlord breach? By wrongful eviction or constructive eviction.

Question 21

What is a fixture? How do they operate with the following relationships?

Landlord/Tenant
Licensee
Trespasser

Answer 21

A fixture is a chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty.

L/T - Agreement rules all, but default is tenant can take back (Assume lack of intent to permenantly improve landlord’s property).

Licensee - Same as tenant.

Tresspasser - Loses annexation.

Question 22

What is an affirmative easement?

Answer 22

An affirmative easement is the right to go onto and do something on servient land. (Meaning, the land that is imposed upon by the easement).

Question 23

What is a negative easement?

Answer 23

Entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.

Question 24

What is an Easement Appurtenant?

Answer 24

An easement is appurtenant when it benefits its holder in his physical use or enjoyment of his own land.

Ther must be a dominant and servient tenement.

Question 25

What is an Easement in Gross?

Answer 25

An easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to their use or
enjoyment of their land.

Here, servient land is burdened. However, there is no benefited or dominant tenement (because the easement benefits the holder rather than another parcel).

Question 26

What is an Easement by Prescription?

Answer 26

Think of adverse possession…

Remember COAH:
Continuous and Uninterrupted Use
Open and Notorious
Actual Use (need not be exclusive)
Hostile (without consent)

Question 27

What is the scope of an easement? Who selects the location and how?

Answer 27

The scope of an easement is determined by the terms of the grant OR the conditions that created it.

The owner of the servient tenement may select the location of the easement so long as their selection is reasonable.

Question 28

What are the elements of abandoning an easement?

Answer 28

Must show abandonment by:
(1) Physical action,
(2) An intent to never use the easement again.

Question 29

What is a Real Covenant? What is an Equitable Servitude?

Answer 29

On the exam, look for the following… The promise is…

Covenant = If the plaintiff wants money damages.

Equitible Servitude = If the plaintiff wants an
injunction.

Question 30

What is horizontal privity? Is it required for the burden or benefit to run?

Answer 30

Required for BURDEN to run.

At the time the promisor entered into the covenant with the promisee, the two must have shared some interest in the land independent of the covenant.

Horizontal privity is difficult to establish. Its absence is the reason why many burdens will not run.

Question 31

What is vertical privity? Is it required for the burden or benefit to run?

Answer 31

Required for BOTH burden and benefit to run.

It simply requires some non-hostile nexus, such as contract, devise, or descent.

The only time vertical privity will be absent is when the successor acquired her interest through adverse possession.

Question 32

What does it mean for a covenant to “touch and concern” the land?

Answer 32

The promise must affect the parties’ legal relations as landowners and not simply as members of the community at large.

Covenants to pay money to be used in connection with the land and covenants not to compete do touch and concern the land.

Question 33

What is an Equitible Servitude?

Answer 33

An equitable servitude is a promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is a BFP (meaning, a subsequent purchaser for value without notice of the covenant).

Question 34

What are the elements of Adverse Possession?

Answer 34

Remember, COAH:

Continuous
Open and Notorious
Actual and Exclusive
Hostile

Question 35

What is a taking? What amendment does this takings rule derive from?

Answer 35

According to Fifth Amendment, there is a clause stating “no taking without just compensation”.

Question 36

What are the two steps of conveyance?

Answer 36

Step I: The land contract, which conveys equitable title. The land contract endures until step II.

Step II: The closing, where the deed passes legal title and becomes the operative document.

Question 37

What are three common issues in the enforcement of land sale contracts?

Answer 37

(1) Statute of Frauds (the contract must be in writing), exception if 2 of following 3 are done by buyer:
- Possession,
- Payment of Purchase Price,
- Substantial Improvements.

(2) Inaccurate Description of Land.

(3) Doctrine of Equitible Conversion.

Question 38

What is marketable title? What are three common defects?

Answer 38

Marketable title is title reasonably free from doubt and the threat of litigation. The common defects that render title unmarketable are:

(1) Defects in record chain of title—most often, adverse possession,
(2) Encumbrances (mortgages, liens, easements, restrictive covenants),
(3) Zoning Violations.

Question 39

What are the elements of a valid deed?

Answer 39

(1) Writing
(2) Identity of Grantor (Grantor’s Signature)
(3) Identity of Grantee
(4) Description of the Land
(5) Words of Transfer/Conveyance

Question 40

What is the delivery requirement for a deed?

Answer 40

A deed isn’t effective to transfer an interest in realty unless it has been delivered.

Delivery turns on the grantor’s intent that title pass immediately, even if possession is postponed. Acceptance is presumed.

Question 41

What are the three recording act types?

Answer 41

(1) Race (first to record wins),
(2) Notice (last BFP wins),
(3) Race-Notice (last BFP to record wins).