Property

Question 1

Present Possessory Interests

Answer 1

• indefeasible interest = not subject to early termination (ex: fee simple absolute and life state)
• defeasible interests = allows a fee simple or life estate to be terminated if a stated event occurs (includes fee simple determinable, subject to condition subsequent, and subject to executory interest)

Question 2

Future Possessory Interests

Answer 2

• interests retained by the grantor (includes reversion, possibility of reverter, and right of entry)
• interests created in a transferee (includes executory interests, remainders, and class gifts)

Question 3

Rule Against Perpetuities

Answer 3

May apply to any future interest that is not certain to vest of fail with in a life in being plus 21 years = void

Question 4

Types of tenancies in landlord and tenant

Answer 4

1. tenancy for years
2. periodic tenancy
3. tenancy at will
4. tenancy at sufferance

Question 5

tenancy for years

Answer 5

for a fixed period of time

• created expressly and ends automatically on its termination date
• no notice

Question 6

periodic tenancy

Answer 6

for a fixed period that continues for succeeding periods (ex month to month)
-created expressly or when a lease draws periodic rent payments, terminated on proper notice/appropriate time period

Question 7

tenancy at will

Answer 7

no stated duration, as long as parties desire

-created expressly, terminated on proper notice

Question 8

tenancy at sufferance

Answer 8

hold-over doctrine
tenant remains in possession after tenancy expires
-landlord may evict tenant or create a periodic tenancy by accepting rent

Question 9

rights and duties of landlord and tenant

Answer 9

• governed by the lease and tort law
• tenant must pay rent and may not commit waste
• landlord generally must repair, must deliver habitable premises, and may not interfere with tenant’s possession

Question 10

Assign interest in landlord and tenant

Answer 10

both parties generally may assign their interest (transfer entire term) and tenants may also sublease (part of term)

Question 11

affirmative easement

Answer 11

right to use someone else’s land

Question 12

negative easement

Answer 12

right to prevent something on another’s land

Question 13

easement appurtenant

Answer 13

involves two tracts of land

1. dominant parcel has the benefit which runs to grantees
2. servient parcel has the burden, which runs to grantees with notice

Question 14

easement in gross

Answer 14

involves one tract of land

Question 15

express grant of reservation of easement

Answer 15

• statute of fraud applies

- an oral grants creates a license, which is not an interest in land

Question 16

implication by operation of law of easement

Answer 16

• by use existing before a tract was divided

- by necessity for a landlocked parcel

Question 17

prescription of easement

Answer 17

acquired through adverse, open and notorious, and continuous use for the statutory period

Question 18

ways to create easement

Answer 18

1. express
2. operation of law/implicated
3. prescription

Question 19

termination of easements

Answer 19

1. end by stated condition
2. unity of ownership between easement and servient estate
3. abandonment
4. estoppel
5. prescription
6. necessity
7. release
8. condemnation

Question 20

Real Covenants

Answer 20

• written promises to do or refrain from doing something on land with a usual remedy of money damages
• requirements for burden to run to later grantees; intent, notice, horizontal privity, vertical privity, touch and concern
• requirements for benefit to run; intent, vertical privity, touch and concern

Question 21

equitable servitudes

Answer 21

• covenants with equitable remedies (ex: injunction, specific performance)
• implied from a common scheme for development if notice exists
• requirements for burden to run; intent notice, touch and concern
• requirements for benefit to run; intent, touch and concern
• equitable defenses apply (ex: unclean hands, estoppel, acquiescence, change neighborhood conditions)

Question 22

Land sale contracts

Answer 22

• statute of frauds applies. Exception = no writing is required if buyer has partially performed through possession, improvement, or payment
• time for performance presumed not of essence
• mareketable title = contracts contain an implied covenant that seller will deliver title free from an unreasonable risk of litigation at losing (when purchase price and deed exchanged)

Question 23

Deeds

Answer 23

• statute of fraud applies
• must evidence an intent to transfer land an adequately describe the land and parties
• effective on delivery (words or conduct showing the grantor’s intent to immediately pass title) and acceptance

Question 24

types of deeds

Answer 24

1. general warranty deed
2. special warranty deed
3. quitclaim deed

Question 25

general warranty deed

Answer 25

covenants against any title defects created by the grantor or prior titleholders

Question 26

special warranty deed

Answer 26

covenants against title defects created by the grantor

Question 27

quitclaim deed

Answer 27

no covenants - transfers whatever interest grantor has

Question 28

Wills

Answer 28

• effective on testator’s death
• if, at testator’s death, she no longer owns property that was specifically devised, that gift fails (adeems)
• if, at the testator’s death, the beneficiary has already died, his gift fails (lapses) or might pass to the beneficiary’s descendants under an anti-lapse statute if he and the testator were related

Question 29

Adverse Possession

Answer 29

• possessor must show
  
  1. actual entry giving rise to exclusive possession
  2. open and notorious
  3. adverse/hostile (lacking owner’s permission)
  4. continuous throughout the statutory period
• the statute does not begin to run if the owner is under a disability to sue when the possession begins (ex: incapacity)

Question 30

Types of concurrent interests

Answer 30

1. joint tenants
2. tenants by the entirety
3. tenants in common

Question 31

joint tenants

Answer 31

two or more co-tenants with rights of survivorship

• right up survivorship = dead tenants share passes to remaining co tenants
• created expressly, severed by a tenant’s sale or suit for partition

Question 32

tenants by the entirety

Answer 32

two spouses with rights of survivorship

-created expressly or presumed in some states by a grant to spouses, severed by divorce

Question 33

tenants in common

Answer 33

two or more co-tenants with no right of survivorship

• created by the severance of the other tenancies
• default co-tenancy created if nothing else was specified

Question 34

Who does recording act protect

Answer 34

• bona fide purchaser for value without actual, inquiry or record notice of the prior conveyance
  1. actual notice = what the grantee actually knows
  2. inquiry notice = what a reasonable inquiry would have revealed
  3. record notice = what a search of the real property records would have revealed

Question 35

types of recording acts

Answer 35

1. notice statute = later BFP wins if earlier grant was not recorded
2. race notice statute = later BFP wins only if she records before the earlier grantee records
3. race statute = first to record wins; actual notice is irrelevant

Question 36

what is a mortgage

Answer 36

land is collateral for a debt

Question 37

mortgage theories of title

Answer 37

1. lien theory = mortgagee holds a security interest only
2. title theory = mortgagee holds title until mortgage is satisfied
3. intermediate theory = mortgagee holds title only after default

Question 38

if mortgagor transfers mortgaged land

Answer 38

• grantee may agree to assume the mortgage and become primarily liable to pay the mortgage loan
• grantee who does not assume the mortgage is not personally liable the loan but may lose the land if the transferor defaults

Question 39

foreclosure

Answer 39

-after default, property may be sold to satisfy the debt
-does not effect senior interests
-terminates junior interests
-jr interests are entitled to any surplus remaining after
the foreclosure mortgage is satisfied
-the mortgagor may redeem the land by paying the amount due

Question 40

Other security interests

Answer 40

1. deed of trust = similar to mortgage, but a third party trustee forecloses
2. installment land contract = seller retains the deed until buyer pays in full
3. absolute deed = treated as an equitable mortgage when given for a debt
4. sale-leaseback = court may determine this was a disguised mortgage

Question 41

fixtures

Answer 41

1. fixtures are items so affixed that they become part of the realty (if item not physically attached can be a fixture if so uniquely adapted to the real estate that it makes no sense to separate (ex. keys to doors)
2. common ownership cases - landowner brings chattel onto land - annexor’s objective intent determines whether items are fixtures
3. divided ownership cases - landowner does not bring chattel onto land - items owner can remove it only if this would not leave unrepaired damage to premises.

Question 42

water

Answer 42

1. rules vary state by state and source of water (rivers, streams, lakes)
2. ground water = percolating water from wells
3. surface waters = rainfall, melting snow, seepage

Question 43

Zoning

Answer 43

1. governmental regulations that restrict use of land
   -existing zoning violations render title to land
   unmarketable
2. variance = permission to depart from zoning restriction