Property

Question 1

Adverse Possession

Answer 1

Allows one who has wrongfully entered a P to obtain possession of that P when there has been (1) actual possession, (2) is O&N, and (3) the possession is hostile (4) continuously for the (5) stat period

Question 2

AP - Possession

Answer 2

The claimant must actually have exclusive use of the P; which means he must physically occupy the premises.

Question 3

AP - Open & Notorious

Answer 3

The claimant must possess and use the P in a way that a typical owner of similar P would use the P. The use mb suff open to put the true owner on notice of the trespass by the AP’r.

Question 4

AP - Continuous

Answer 4

Continuous use means that the owner may not reenter to regain possession during the stat time. AR’s time starts over. Seasonal use of P may still satisfy the continuous element if this is the way a typical owner of similar P would use the land. An AP’r may tack time w/ the time of another AP’r to meet the req’d period if the AP’r in privity.

Question 5

SOF

Answer 5

The SOF applies to a sale of land and interests in land including leases for more than 1 yr, easements of more than 1 yr, mortgages and most other security liens, fixtures, minerals or structures if they’re tb served by the B. Under the SOF, the k mb in writing, name the parties, be signed by the party tb bound, suff describe the land and state some consideration.

Question 6

SOF Exception - Partial Performance

Answer 6

If a k doesn’t satisfy the SOF, if will be enforceable if possession of land by purchaser, subst improvement, and/or payment for part or all of purchase price.

Question 7

Marketable Title

Answer 7

There’s an implied promise in every land sale k that the S covenants to transfer marketable title at the time of closing. MT is title free from reas doubt about the S’s ability to convey what he purports to convey

Question 8

Equitable Conversion

Answer 8

Equitable conversion provides that once the k is signed, the B is deemed the owner of real P, even though closing hasn’t yet occurred. If P is destroyed prior to closing, the risk of that loss is imposed on the B of P.

Question 9

Mortgage

Answer 9

A security interest in real estate, usually securing a promise to repay a loan. If loan not paid when due, ME (lender) can either take title to the real estate or have it sold and use proceeds to pay the debt. The borrower is the MR. Until a foreclosure occurs, the B has right to possession of the P and title; the ME has a lien

Question 10

Foreclosure

Answer 10

Foreclosure is a process by which the ME may reach the land in satisfaction of the debt if the MR defaults on the loan. After the land sale, proceeds will be used to satisfy the debts secured by the P. Any debts secured by the P are paid in descending order of priority. Each ME is entitled to payment in full before a lower ranking creditor recs payment.

Question 11

Purchase Money Mortgage

Answer 11

PMM is M given to secure a loan that enables the DR to OG purchase the P. PMM rec priority over nonPMM Ms but a PMM may not also get a deficiency judgment against the DR.

Question 12

Deed

Answer 12

A deed is a doc that serves to pass legal title from the GR to the GE when its lawfully executed and properly delivered. Deed must include ID of parties, in writing signed by GR, adequate description of prop, words of intent but no consideration needed.

Question 13

Quitclaim Deed

Answer 13

A quitclaim deed conveys whatever interest the GR actually has in the p but contains no cov of title.

Question 14

General Warranty Deed

Answer 14

Gen warranty deed warrants against all defects in title and contains 6 cov for title, present and future covenants.

Question 15

Present Covenants

Answer 15

Present cov are breached at the time of the sale and include seisin (GR warrants he owns what he purports to own); right to convey (GR warrants he has the power to make the conveyance; and against encumbrances (GR warrants there are no Ms, liens, EM, or use restrictions on the land).

Question 16

Future Covenants

Answer 16

Future cov RWL, are continuous, and are breached at the time the GE is disturbed in possession, those include (1) warranty of title (GR promises to defend should there be any lawful or reas claims of title asserted by others and to compensate the GE for any loss sustained by the claim of superior title); (2) quiet enjoyment (GR promises GE will not be disturbed in possession by any 3rd parties lawful claims of title); and (3) further assurances (GR will perform whatever acts are reas neg to perfect the title conveyed if it turns out tb imperfect).

Question 17

Recording Acts

Answer 17

Recording acts function to provide a purchase of land w/ a mechanism to determine whe there’s an earlier transaction re the P that’s inconsistent w/ his own transaction. The recording acts provide a B w/ a way to ensure he’s getting good title. CL: “first in time first in right” applies.

Question 18

3 Types of Recording Statutes

Answer 18

(1) Pure race: the first to record wins.
(2) Notice: A subseq BFP prevails over a GE that didn’t record. Last BFP wins.
(3) Race-notice: a subseq BFP that records first prevails over GE that didn’t record first. A BFP is one who takes for value and is w/o notice of the prior interest. BFP + Records first wins.

Question 19

3 Types of Notice

Answer 19

(1) Actual notice occurs when, prior to the time of closing, the G has actual subjective knowledge of a prior, unrecorded interest.
(2) Inquiry notice occurs where the purchaser of P is in possession of facts, or could make an inspection of the P, which would lead a RP to make further inquiry.
(3) Record/Constructive notice occurs when the prior interest was properly recorded w/in the chain of title, except wild deed is one that is recorded but not in such a way that a reas search of GR-GE index would disclose.

Question 20

Fee Simple Absolute

Answer 20

FSA conveys absolute ownership of potentially infinite duration.

“To A”

Question 21

Defeasible Fees

Answer 21

Fee Simple defeasible allows a P tb held or conveyed to another; however, the P is subject to a stated limitation. There are 3 types:

(1) Fee Simple Determinable;
(2) Fee Simple Subject to Condition Subsequent;
(3) Fee Simple Subject to Executory Interest;
(4) Life Estates.

Question 22

Fee Simple Determinable

Answer 22

FSD automatically terminates at the occurrence of a specified event. If the specified event occurs, the P automatically reverts back to the GR. POR is the future interest the GR retains. They are created by words of duration such “so long as” “while,” “until,” or “unless.”

To A, so long as…

Question 23

Fee Simple Subject to Condition Subsequent

Answer 23

FSSCS has the potential to terminate an estate at the occurrence of stated event, but the terminate is not automatic. Right of reentry is the future interest the GR retains, but its not automatic and mb exercised to have effect. These are created by words that signal right of reentry such as “but if,” “provided that,” or “upon condition that” to ID the conditional event.

“To A, on the condition that…”

Question 24

Fee Simple Subject to Executory Interest

Answer 24

FSSEL automatically terminates a preceding estate at the occurrence of a stated event, but the estate then passes to a 3rd person rather than reverting to the GR. EI is the future interest the 3rd party holds. Life estate is an interest that lasts for the lifetime of a person.

To A, but if B returns to state, then to B.

Question 25

Future Interests

Answer 25

POR - follows FSD
Right of reentry - follows FSSCS
Reversion
Remainder (Vested remainder, contingent remainder
Executory Interest (Shifting, Springing)

Question 26

Indefeasibly Vested Remainder

Answer 26

VR that is not subject to divestment. The holder of this remainder is certain to acquire an estate in the future w/ no strings or conditions attached.

“To A for life, remainder to B.” A is alive, B is alive.
A - LE
B - Ind VR

Question 27

Vested Remainder Subject to Total Divestment

Answer 27

VR subject to a condition subsequent.

“To A for life, then to B and his heirs; but if B dies unmarried, then to C and his heirs.” B alive and unmarried.

A - LE
B - VRSTD
C - EI (shifting)

Question 28

Vested Remainder Subject to Open

Answer 28

Creates a class of persons that is certain to become possessory, but is subject to diminution (share gets smaller w/ more members).

To A for life, then to B’s children.” A is alive, B has two children, C and D.

A - LE
B - Nothing
C&D - VRSTO

Question 29

Executory Interest

Answer 29

Is a future interest in third parties that either divest a transferee’s preceding freehold estate or follow a gap in possession or cut short a GR’s estate.

Shifting - Follows defeasible fee and cuts short someone other than the GR.
“To A, but if B returns from Canada, to B and his heirs.”
A - FSSEI
B - EI (shifting)

Springing - Cuts short the interest of the GR.
“To A, if and when she becomes a lawyer.”

Question 30

Joint Tenancy

Answer 30

JT is when two or more ppl hold a single, unified interest in a P w/ a ROS. At the death of one JR, the remaining JE auto becomes the owner of the deceased JT’s interest. Each JT has an equal right to occupy entire premise. Each JT must own the property in equal shares w/ the other JT.

Question 31

JT Creation

Answer 31

JT reqs the 4 unities and an express ROS:
time,
title,
interest,
possession, language (must include express ROS).

Question 32

Severence of JT - Lien theory and Title theory

Answer 32

Under lien theory, exec of M by one JT doesn’t sever JT, until the CR forecloses on the property.

Under title theory, M by one JT on his share will sever JT as to his share only. The person who is granted the share now has an interest in that property.

Question 33

Tenancy in Common

Answer 33

TIC is a concurrent estate where 2 or more own a P w/ no ROS. There is no ROS, each T has a joint right to possession of whole P and owns an interest in the P jointly w/ another, coTs may hold diff proportional interests, coT may sell, will, or gift his interest.

Question 34

Tenancy for years

Answer 34

Tenancy for years refers to a lease for a fixed period of time. SOF mb satisfied for T more than 1 year. Termination is automatic and reqs no notice.

Question 35

Periodic Tenancy

Answer 35

Periodic tenancy automatically continues from one period to the next, unless one of the parties terminates the lease by giving notice of term. Written notice is req’d to term since tenancy is automatically renewed in the absence of notice of term. A holdover T is one whose lease has term, but who remains in the premises and tenders rent, which the LL accepts. Holdover T is considered to have a periodic tenancy w/ the time period for the tenancy being the time period of the previously expired lease.

Question 36

Warranty of Habitability

Answer 36

Warranty of habitability is implied in every resi lease which requires the LL provide a place to live that is reas suitable for human needs, including heat, running water and sewage disposal.

Question 37

Constructive Eviction

Answer 37

Constructive evi is when the premises are in such disrepair they’re virtually uninhabitable. Const evi reqs that (1) premise are virtually uninhabitable for their intended use bc of a subst interference w/ the P use and enjoyment caused by the LL or persons acting for him; (2) notice is given to the LL by the T; (3) the LL fails to meaningfully respond; (4) and this causes the T to actually move out w/in reas time.

Question 38

Remedies for Breach of Warranty of Habitability

Answer 38

Remedies: Where not habitable, T has option to:

(1) term lease and move out;
(2) make repairs and deduct cost from rent; or
(3) pay reduced rent, remain on premise and sue for damages.

Question 39

Assignment

Answer 39

Assignment is the transfer of the entire interest remaining on the lease term. New T is personally lia to LL for rent bc there’s privity of estate. Old T is also lia to LL for rent, unless novation bc privity of k.

Question 40

Sublease

Answer 40

Sublease is the transfer of anything less than the entire interest remaining on the lease term. New T isn’t personally lia to LL for rent bc a sublease doesn’t provide privity of estate. Old T lia to LL for rent bc there’s privity of k.

Question 41

Easement

Answer 41

EM is the right to use the land of another.

Question 42

Negative Easement

Answer 42

Negative EMs prevent LO from doing something on his own land.

Question 43

Appurtenant Easement

Answer 43

Appurtenant EM is an EM that benefits a particular parcel of land and only occurs when the EM benefit is tied to a particular piece of land.

There are 2 estates created in app EM. Dominant estate is the benefited parcel. Possessor mb benefited in his physical use and enjoyment of the tract of land. Servient estate is the burdened parcel, the parcel providing the benefit to the dominant estate.

Question 44

Easement in Gross

Answer 44

EM in gross is an EM whose benefit is provided to an ind and isn’t tied to a particular piece of land.

Ex. utility company places wires on prop.

Question 45

Real Covenant

Answer 45

Real cov are written promises between 2 parties about how land is tb used that meet certain tech reqs, such that the promises RWL, meaning they’re binding on future purchasers/holders of the land

Question 46

Burden RWL

Answer 46

(1) writing between OG parties;
(2) intent that promise apply to successors to the P;
(3) T&C land;
(4) horizontal and vertical privity. Horizontal privity refers to the privity between the OG promising parties. Vertical privity reqs that the successor now is the holder of the entire interest that the party making cov had.
(5) notice.

Question 47

Benefit RWL

Answer 47

(1) writing;
(2) intent that the promise apply to successor to P;
(3) T&C land;
(4) vertical privity, meaning successor now is the holder of the entire interest that the party making the cov had;
(5) no horizontal privity req’d.

Question 48

Equitable Servitudes

Answer 48

Restrictions on how land may be used. ES are similar to real cov, but no privity reqd. Remedy is injunction in equity. ES will RWL and bind successors if: (1) writing; (2) intent that the promise apply to successors to the P; (3) T&C land; (4) notice; (5) no H or V privity req’d. 
Implied notice (common scheme) can be evidenced by a recorded plat, or gen pattern of restrictions, or an oral representation to early Bs; notice req’d; no SOF writing req’d.

Question 49

Profit

Answer 49

Profit entitles holder to the right to enter the servient estate land and remove soil or product of the land itself.

May be extinguished through surcharge (misuse that overly burdens the servient estate)

Question 50

License

Answer 50

License is mere right to use licensor’s land for some specific purpose, and its revocable at will of licensor

Question 51

Profit Appurtenant

Answer 51

If the profit exists to serve a dominant estate, the profit is appurtenant and can only be transferred along with the dominant estate.

LO owns two parcels East/West. Conveys West to A w/ profit to hunt on East parcel. A assigns hunting rights to B. Here, invalid bc West is the dominant parcel and cannot transfer profit independent of a transfer of dominant estate.

Question 52

Profit In Gross

Answer 52

If the profit does not exist to serve a dominant estate, it is a profit in gross and may be transferred separate and apart from the dominant estate.

Question 53

Ouster

Answer 53

Each co-T has the right to possess and enjoy all portions of the prop, subject to the equal right of her co-T.

An ouster occurs if one T wrongfully excludes another from possession of the premises. An ousted co-T is entitled to rec his share of the fair rental value, from the possessing co-T, of the prop for the time he was wrongfully deprived of possession.

Question 54

Co-Tenant Rights to Repairs/Taxes/Rent

Answer 54

Repairs: A co-T who pays more hon her pro rata share of the cost of nec repairs is entitled to contribution from the other co-Ts in actions for accounting or partition.

Taxes: Each co-T has a duty to pay her share of taxes and payments due on mortgages on the entire prop. T who’s not in sole possession can pay taxes and compel contribution from other co-Ts. T in sole possession will rec reimb only for the amount that exceeds the rental value of the prop.

Rent: Co-T out of possession has a right to share in rents from 3rd parties.

Question 55

Transfer of Servient (Burdened Estate) - Easement Appurtenant

Answer 55

When a servient (burdened) parcel is transferred, its new owner takes it subject to the burden of the EM unless she’s a BFP w/o notice of the EM. A BFP is someone who purchases prop for valuable consideration, w/o notice of the prior interest.

(Conduct notice analysis)

Question 56

Private Nuisance

Answer 56

Occurs when the land is invaded by intangibles, such as odors or noises, that subst and unreas interfere w/ a private ind’s use or enjoyment of her prop.

Interference is subst when it would be offensive, inconvenient, or annoying to an average person in the community, as opposed to merely the result of the π’s hypersensitivity.

Interference is unreas when the severity of the inflicted injury outweighs the utility of the ∆’s conduct. To make this balancing determination, cts take into account that every person is entitled to use his own land in a reas way, considering the neighborhood, land values, and existence of any alt sources of conduct open to the ∆.

Question 57

Public Nuisance

Answer 57

An invasion by intangibles that unreas interfere w/ the H&S, or prop rights of a broad segment of the community, rather than one or few inds. However, recovery is available for public nuisance only if a private party has suffered some unique damage not suffered by the public at large.