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MBE TOPICS > Property > Flashcards

Property Flashcards

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1
Q

Joint tenancy

A

each party owns 1/2 with right of survivorship

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2
Q

tenancy in common

A

each party owns half with no ROS

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3
Q

tenancy by entirety

A

only applies to married couples and SS has a ROS

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4
Q

Real estate contract key elements:

A

1) must be in writing
2) include essential terms (parties, price, terms)
3) execution transfers equitable title via equitable conversion doctrine
4) marketable title is implied in the k

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5
Q

Key elements of a deed

A

1) seller intent to convey the deed
2) assumption by buyer is presumed
3) legal description of the property
4) identifiable grantees
5) merger of real estate K
6) execution conveys legal title

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6
Q

general warranty deed

A

conveys clean title, promising title is ok going back in time

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7
Q

special warranty deed

A

conveys clean title promising title is ok while current owner lived there

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8
Q

quitclaim deed

A

conveys only what title seller had, no promises

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9
Q

mortgage

A

a loan used as collateral on the property

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10
Q

purchase money mortgage

A

money borrowed that goes toward buying the house – always has priority!!

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11
Q

“Subject to” mortgage

A

DEFAULT RULE! Original owner remains liable on the note

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12
Q

“Assumable” mortgage

A

New owner becomes personally liable on the note

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13
Q

In a “subject to” mortgage, if the seller does not pay the mortgage…

A

the bank cannot come after the buyer for mortgage payments BUT the bank has the legal right to foreclose on the property

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14
Q

In an “assumable” mortgage, who is primarily responsible for mortgage payments?

A

The buyer… but the bank may come after the seller secondarily unless they executed a novation

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15
Q

Lien theory state

A

Lender has a lien on the property, buyer has legal title

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16
Q

Title theory state

A

Lender has legal title to the property, buyer only has equitable interest until they pay off the mortgage

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17
Q

Equitable Redemption

A

Period of time from notice of foreclosure until sale so that resident can pay off the entire debt owed and keep property

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18
Q

Statutory redemption

A

additional period of time after the foreclosure sale that provides residents opportunity to pay off foreclosure sale price (may include missed mortgage payments + interests) and keep property

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19
Q

Race recording statute

A

first person to courthouse who records the deed wins

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20
Q

Notice recording statute

A

last BFP for value without notice wins

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21
Q

Race notice recording statute

A

first BFP without notice who records first, wins

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22
Q

easements by necessity

A

landlocked area

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23
Q

easements by implication

A

implied by law:
- from prior use or
- by necessity

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24
Q

prescriptive easements

A

Continuous
Open and Notorious
Actual (but not exclusive!!!)
Hostile
For the statutory period!!

Q needs to give you a statute

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25
Q

Easements last…

A

FOREVER unless they are terminated

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26
Q

Covenant

A

a promise between two owners to do something

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27
Q

restrictive covenant

A

a promise NOT to do something

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28
Q

Equitable servitude

A

Restrictive covenant IN A SUBDIVISION
where one party is trying to get an injunction

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29
Q

License

A

The least amount of a right you can have on another’s land
It is permission to enter the land but is revocable at will

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30
Q

Profit

A

You have the right to take something off the land or extract out of it (mineral, copper, soil)

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31
Q

fee simple absolute

A

own 100% forever

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32
Q

life estate

A

own 100% for your life, future interest goes to remainders

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33
Q

reversion

A

the grantor has a reversion in the life estate

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34
Q

vested remainder

A

the remainderman will automatically get the property

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35
Q

contingent remainder

A

the remainderman will only get the property if something happens

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36
Q

possibility of reverter is

A

AUTOMATIC!

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37
Q

fee simple determinable

A

interest in land that will automatically end if something happens (“so long as”)
EX: A to B, so long as it is used for residential purposes.

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38
Q

fee simple subject to condition subsequent

A

interest in land but if an event occurs, the grantor and heirs have a right of re-entry

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39
Q

“A to B, so long as B uses it for residential purposes.” – If B stops using it for residential purposes and opens up a museum, what happens to the interest in the land?

A

Automatic reversion to A

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40
Q

“A to B, but if B starts selling alcohol then. . .”
what happens

A

A gets a right of re-entry but it is not automatic

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41
Q

Rule Against Perpetuities

A

If either fee simple determinable or condition subsequent, and it goes to a 3rd grantee (not reversion or reentry) then RAP applies and the 3rd conveyance is void

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42
Q

A to B so long as B uses it for residential purposes but if B does not, then to C …
what type of interest?

A

VOID. RAP applies. A to B is fee simple determinable but the conveyance to C is void.

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43
Q

Landlord duties

A

1) duty to deliver physical possession
2) duty of warranty of habitability
3) implied covenant of quiet enjoyment

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44
Q

tenant duties

A

1) duty to pay rent
2) duty to not commit waste
3) duty to repair (routine repairs only)

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45
Q

who is liable for payment in a sublease?

A

original tenant is primarily liable

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46
Q

who is liable for payment in a lease assignment?

A

new tenant is primarily liable but the landlord can come after the original tenant unless they executed a novation

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47
Q

fixtures

A

chattel that, by removing, would damage the property

48
Q

4 type of leasehold estates

A

1) tenancy for years = known, fixed period of time (end date)
2) periodic tenancy = continuous, successive intervals
3) tenancy at will = created by express agreement
4) tenancy at sufferance = tenant won’t leave

49
Q

periodic tenancy is implied by law in 3 ways

A

1) lease with no mention of duration but rent is set at intervals
2) oral term of years that violate SOF
3) residential lease where L chooses to hold over T who has wrongfully stayed past the end date of the original lease

50
Q

Implied covenant of quiet enjoyment

A

arises by implication in every residential and commercial lease
T has a right to quiet use and enjoyment of the premises without interference from L

51
Q

how does a Landlord breach the implied covenant of quiet enjoyment

A

Wrongful Eviction:
1) actual eviction - L excludes T from the entire leased premises
2) partial eviction - L excludes T physically from part of the leased premises

both relieve T of obligation to pay rent*

OR

Constructive Eviction

When the Landlord’s breach makes the premises unsuitable for occupancy
SING
Substantial Interference
Notice
Get out
[T NEEDS TO MOVE OUT IN ORDER TO PLEAD CONSTRUCTIVE EVICTION]

52
Q

T’s entitlement when Implied Warranty of Habitability if breached

A

MR3
Move [out and terminate the lease]
Repair [and deduct]
Reduce [rent or withhold all rent]
Remain [in possession]

53
Q

retaliatory eviction

A

when L terminates a lease to penalize T for exercising their legal rights

NOT ALLOWED!

54
Q

Anti discrimination legislation in leases

A

Civil rights act - bars racial or ethnic discrimination in sale or rental of property
Fair housing act - protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, and family status
***EXEMPTION to fair housing act: if (1) owner occupied building with 4 or less units and (2) single family homes sold or rented by an owner who owns no more than 3 single family homes

55
Q

Reasonable accommodations by L

A

under the fair housing act, L must make reasonable accommodations under existing premises to accommodate disabled T (accommodations are paid by T)

56
Q

privity of estate

A

the parties who have possession of the property (in an assignment, the new T and the landlord)

57
Q

common law of caveat lessee

A

Let the Tenant beware! Landlord has no duty to make the premises safe.
EXCEPTION: CLAPS
C- common areas (L has duty of reasonable care in maintaining common areas)
L- latent defects (L must warn T of hidden defects L knows or should know about)
A- assumption of repairs (L has no duty to make repairs, but if L does, must complete them with reasonable care)
P- public use rule (if L leases public space and knows or should know of a defect, T will not be liable for defects on the property that cause injury to members of the public)
S- short term lease of furnished dwelling (L has stricter duty and is responsible for any defective condition which injures T)

58
Q

how are negative easements created

A

negative easements can only be created expressly, by a writing signed by the grantor (there is no natural or automatic right to a negative easement)

59
Q

Methods of creating an easement

A

PING
Prescription
Implication
Necessity
Grant

60
Q

8 ways to terminate an easement

A

END CRAMP
E- estoppel (oral expression of intent to abandon + servient estate reasonably relies on it)
N- necessity (expires when the necessity ends)
D- destruction (of the servient land)
C- condemnation
R- release (written agreement to end)
A- abandonment (intent + non-use)
M- merger (1 buyer buys both properties)
P- prescription (servient owner extinguishes it by meeting adverse possession (COAH) elements

61
Q

Requirements for burden of restrictive covenant to run with the land

A

WITHN
Writing
Intent
Touch and concern
Horizontal and vertical privity
Notice

62
Q

Horizontal privity

A

the original parties that CREATED the covenant both had an interest in the land, independent from the covenant

EX: neighbors, dont have horizontal privity

63
Q

vertical privity

A

When the person who has the land sells it to someone else

the only time there will not be vertical privity is if the successor got the land through adverse possession

64
Q

Requirements for benefit to run

A

WITV
Writing
Intent
Touch and concern
Vertical privity

65
Q

What does touch and concern the land mean?

A

When its affecting the parties as landowners
- aka, the covenant is restricting an owner of land from doing something or requiring owner of land to do something

66
Q

General remedy for restrictive covenant breach

A

money damages

67
Q

General remedy for equitable servitude breach

A

injunction

68
Q

Implied Equitable Servitude (General or Common Scheme Doctrine)

A

exception to the requirement that the covenant be in writing:

Court will imply a negative servitude if there is a common scheme when the sale began and the Defendant lot holder had notice of the covenant (AIR)

69
Q

A court will not enforce an equitable servitude if:

A
  • changed conditions (so significant that the entire area has changed)
70
Q

Adverse Possession

A

Possessor must show COAH to establish title:
C- continuous
O- open and notorious
A- actual and exclusive
H- hostile

71
Q

Tacking

A

Adverse possessor can tack on to their time with the land, their predecessor’s time, so long as there is privity between the possessors

*** NO PRIVITY IF adverse possessor got the land by OUTSTING their predecessor

72
Q

SOL for adverse possession and disabilities

A

SOL will not run against a true owner who has a disability AT THE INCEPTION of the adverse possession (aka, when the cause of action first accrued)

73
Q

Land sale K must satisfy the SOF by being:

A
  • in writing
  • signed by the party to be charged
  • identify parties, land, and price
74
Q

Exception to SOF requirement of Land Sale K

A

If a land sale K is not in writing, the only exception is part performance where 2/3 need to be shown:
1) possession
2) full or partial payment
3) substantial improvements

75
Q

Under the doctrine of equitable conversion, who bears the risk of loss?

A

the buyer (because they are considered the owner of the property for all purposes once a K is in place)

76
Q

time between the signing of the K and the closing is called

A

the escrow period

77
Q

two promises implied in every land sale K

A

1) implied promise of marketable title
2) implied promise that seller will not make false statements of a material fact

78
Q

remedies for breach of land sale Ks

A

damages (difference between the K price and the market value on the date of breach) + incidental damages

OR

Specific performance because land is unique

79
Q

requirements of a valid deed

A
  • writing signed by grantor
  • unambiguous description of the land
  • identification of the parties
  • words of intent
80
Q

description of the property in a deed

A

doesn’t need to be perfect–just needs to be specific enough that we can identify the land easily and unambiguously

81
Q

delivery requirement of a deed

A

can be met even if actual delivery doesn’t occur, so long as there is PRESENT INTENT

rejection of delivery by grantee = there was no delivery

82
Q

Transfer of property to third party with conditions (escrow transaction)

A

once the conditions are met, title will automatically pass from the escrow agent to the grantee

83
Q

bona fide purchaser

A

purchaser of property that pays value and takes without notice of prior interests in the land

84
Q

inquiry notice of BFP

A

BFP has a duty to inspect the premises

85
Q

Shelter Rule

A

Anyone who takes from a BFP will prevail against another BFP

Ex: O to A, A does not record. Later, O conveys the same property to B, a BFP who records. B then conveys to C. Between A and C, C prevails because they “Step into” the status of the BFP… C is protected by shelter rule

86
Q

Wild deed

A

If a deed, entered on the records, has a grantor unconnected to the chain of title, the deed is wild and INCAPABLE OF GIVING RECORD NOTICE OF ITS EXISTENCE

EX: O sells to A, A does not record. A then sells to B. B records the A-to-B deed. B’s deed is a wild deed because we are missing the O-to-A link.

87
Q

Estoppel by deed

A

Where grantor sells to grantee but grantor does not really own, and then grantor gets title to property, title automatically vests in grantee

EX: O owns Blackacre. X does not. X sells it anyway to A, who records. Later, O sells Blackacre to X, X records. Title automatically vests in A. X then sells Blackacre to B. Between X and A, A wins. But between A and B, B wins because A’s deed is technically “wild” and could never have given notice to B.

88
Q

Mortgagor

A

the person who borrowed the money

89
Q

Mortgagee

A

the person who loaned the money

90
Q

Mortgagee may transfer their interest by:

A
  • indorsing the note and delivering it to the transferee OR
  • executing a separate document of assignment
91
Q

If a necessary party is not joined in a foreclosure

A

Their mortgage will remain on the land

92
Q

The variance

A

Landowner gets permission to depart from zoning ordinance if they can show:
1) undue hardship +
2) no diminution to neighboring property values

93
Q

A once lawful use is now deemed nonconforming by a new zoning ordinance. Can the once lawful use be eliminated all at once?

A

No not unless just compensation is paid for the taking

94
Q

Cumulative zoning

A

Land may be used for the purpose for which it is zoned AND ANY HIGHER USE

95
Q

Noncumulative zoning

A

Land may only be used for the purpose for which it is zoned

96
Q

Special use permit

A

The zoning is proper for the intended use but because their operation could impose a safety issue, they need this permit to comport with a standardized checklist

think: funeral homes, hospitals, drive in businesses

97
Q

Lateral support

A

landowners have a right to have their land supported in its natural state by adjoining land

98
Q

If a landowner excavates and causes adjacent land to subside

A

landowner is strictly liable

99
Q

If land is improved by building and an adjacent landowner’s excavation causes the improved land to cave in…

A

excavator will be liable ONLY IF NEGLIGENT

but

if landowner can prove that their land would have caved in even if in its natural state (aka without the buildings) then excavator will be strictly liable

100
Q

Riparian doctrine

A

Water belongs to those who own the land bordering the watercourse (lake, river, stream, etc)

101
Q

Natural flow theory of riparian doctrine

A

a riparian owner’s use can be enjoined if it results in substantial or material diminution of the water’s quantity, quality, or velocity

102
Q

Reasonable use theory of riparian doctrine

A

MOST COMMON THEORY
All riparian’s share the right of reasonable use of the water (so you are not enjoined unless it substantially interferes with the use of OTHER riparian owners)

103
Q

Prior Appropriation Doctrine

A

The water initially belongs to the state, but the right to divert it and use it can be acquired by an individual through their actual use, regardless of whether or not they happen to be a Riparian owner

(aka- someone can acquire the right to divert and use water from a watercourse merely because they are the first to do so)

104
Q

Surface waters

A

water without a channel that passes over land (aka- rain water, melted snow,) – water that has not yet reached a natural watercourse or basin

105
Q

Common enemy rule

A

An owner can take any productive measure to get rid of the surface water BUT an owner must not unreasonable harm or interfere with others use of their parcels

THINK: our common enemy is the surface water, we all want to get rid of it

106
Q

Fee simple subject to an executory interest

A

Fee simple that goes to a 3rd party rather than to grantor or giving grantor a right of re-entry

107
Q

To Perry so long as he remains a lawyer, and if he leaves the legal profession, then to Tina. What does Perry have? What does Tina have?

A

Perry has a fee simple subject to an executory interest and Tina has a shifting executory interest

108
Q

Difference b/w fee simple determinable and fee simple subject to executory interest

A

Fee simple determinable: if the event happens, the property automatically goes back to the grantor

Fee simple subject to executory interest: if the event happens, the property automatically goes to someone other than the grantor

109
Q

Rule against alienation

A

An absolute ban on the power to sell or transfer ones interest is not allowed if it is not linked to any reasonable time-limited purpose.

Example: to A so long as she never attempts to sell. (Void. The condition is stricken)

110
Q

Conditions or limitations of future interests that violate public policy

A

If the purpose of the condition is to penalize marriage or encourage divorce it will likely be struck down. But if it give support until marriage or in the event of divorce, it will likely be upheld

111
Q

Life estate pur autre vie

A

Life estate that is measured by a life other than the grantees.
Ex: “To A for the life of B.”

Also applies if a life tenant conveys their life estate to another.
(If A holds a life estate and conveys their interest to B, B has a life estate for the life of A.)

112
Q

Indefeasible vested remainder

A

There are no conditions.
Ex: “to A for life, remainder to B.”

113
Q

Vested remainder subject to total divestment

A

Vested remainder subject to a condition subsequent. The remaindermans right to possess can be cut short if the subsequent condition occurs.
Ex: “to A for life then to B and his heirs, but if B dies unmarried, then to C and his heirs.”

114
Q

Vested remainder subject to Open

A

Created in a class of persons. The interest is certain to become possessory but is subject to diminution.
Ex: “To A for life then to Bs children” A is alive and B has two children. Bs children have a vested remainder subject to open because more children can be born.

115
Q

Shifting executory interest

A

Always follows a defeasible fee and cuts short someone other than the grantor.

Ex: To A for life, but if B returns from Canada, to B and his heirs.
B has a shifting executory interest because it cuts short A (someone other than the grantor) and A has a fee simple subject to Bs shifting executory interest.

116
Q

Springing executory interest

A

Cuts short the interest of the grantor

Ex: O conveys to A, if and when she becomes a lawyer.
A is in high school
A cuts off the grantors interest once she becomes a lawyer
A has a springing executory interest
O has a fee simple subject to As springing executory interest

117
Q

Executory interest with no time limit

A

Violates RAP!

Ex: To A for so long as no liquor is consumed on the premises, then to B

MBE TOPICS (8 decks)

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