Property Flashcards
1
Q
With a life estate, who pays taxes?
A
A life tenant has the obligation to pay ordinary taxes on the real property, but only to the extent that the life tenant receives a financial benefit from the property. When the life tenant occupies the land, the financial benefit is measured by its fair rental value. (So if taxes are less than rental value or income from crops etc, life tenant pays taxes. If they don’t, the remainder holder can pay taxes and sue tenant for reimbursement.)
2
Q
What is a right of first refusal and when is it reasonable?
A
A right of first refusal is a partial restraint on alienation that, if reasonable, is valid and enforceable by an injunction. This right is generally reasonable if the holder of the right can purchase the property under the same terms offered to another party.
3
Q
Does a subletter have privity with the landlord?
A
A subletter has PRIVITY OF ESTATE with the landlord (but not privity of contract). This means subletter is liable for unpaid rent (so is the original tenant).
Assignment is a transfer of a tenant’s entire interest to a third party (assignee) for the remainder of the lease term. The tenant (through privity of contract) and the assignee (through privity of estate) are JOINTLY and SEVERALLY liable for the landlord’s entire harm arising from a breach of the lease.
4
Q
What kind of recording act is this?
“No unrecorded conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice who shall first record.”
A
Race-notice
5
Q
What kind of recording act is this?
“No conveyance or mortgage of real property shall be good against subsequent purchasers for value unless the same be recorded by law.”
A
Notice statute.
6
Q
What is the doctrine of estoppel by deed?
A
Under the doctrine of estoppel by deed, a grantor who conveys an interest in land by warranty deed before owning it is estopped from later denying the effectiveness of that deed. And the grantor’s after-acquired title automatically transfers to the prior grantee.
7
Q
Who can enforce an equitable servitude?
A
The benefit of enforcing an equitable servitude is held ONLY by the original parties and their successors in interest. (So random neighbor can’t enforce)
8
Q
What are the three criteria for creating an easement by necessity?
A
An easement by necessity is created when (1) the dominant estate is virtually useless (e.g., landlocked) without the benefit of an easement across the servient estate, (2) the two estates were once a single tract of land, and (3) the necessity arose when the land was severed and the two estates were created.
9
Q
When is a license revocable?
A
A license is a nonpossessory right to enter and use another’s land for a specific purpose. A license is freely revocable—by the licensor, upon the death of either party, or upon conveyance of the licensed property—unless the licensee detrimentally relied on it or the license is coupled with an interest.
10
Q
What happens if you buy something w/quitclaim deed and later try to sell it only to find out it has a super restrictive covenant? Can you sue the original owner?
A
Nope. Under the doctrine of merger, the seller’s duties in a contract for the sale of real property—including the duty to deliver marketable title—merge into the deed at closing. As a result, these duties are enforceable thereafter only if they are contained in the deed.
11
Q
If a property is damages after signing the contract but before closing, who bears the cost?
A
The purchaser. Unless the land-sale contract states otherwise, the doctrine of equitable conversion places the risk of loss on the buyer once the contract is formed and can be specifically enforced.
Note that under the Uniform Vendor and Purchaser Risk Act (adopted by a minority of jurisdictions), the seller retains the risk of loss unless and until the buyer takes possession or title is transferred.
12
Q
If someone buys a mortgaged property SUBJECT to the mortgage, are they responsible for paying the mortgage?
A
NO. A grantee who takes real property subject to a mortgage does not agree to pay and is not personally liable for the debt. As a result, only the debtor (the prev owner who took out the mortgage) is liable for any failure to make payments on the mortgage loan.
13
Q
What happens to a junior interest if there is a deed conveying a mortgagor’s interest in the mortgaged property to a mortgagee in lieu of foreclosure?
A
A deed conveying a mortgagor’s interest in the mortgaged property to a mortgagee in lieu of foreclosure allows the mortgagee to take immediate possession of the property without the formalities of a foreclosure sale. Any junior interests REMAIN ATTACHED to the property, and the mortgagee’s interest is extinguished unless it was reserved.
14
Q
What is affirmative waste?
A
A decrease in the value of the property that occurs through the voluntary conduct of the current possessor
15
Q
For a real covenant to run with the land, who must the benefit or burden affect?
A
In order to run with the land, the benefit or burden of the covenant must affect both the promisee and promisor as landowners.
16
Q
Is continuous use required for easement by estoppel?
A
No.
17
Q
If the buyer assumes the mortgage, from whom may the lender seek payment?
A
BOTH from the original debtor and the buyer.
18
Q
What is the name of the most common modern approach that has replaced the traditional Rule Against Perpetuities?
A
The “wait and see” approach.
19
Q
What happens in an intermediate title state after default and prior to foreclosure, absent an agreement between the mortgagor and mortgagee?
A
Mortgagee is NOT entitled to take possession of the real property after default and prior to foreclosure.
20
Q
What is a title theory state?
A
Virginia is a title theory state. This means that when a mortgage is given on a property, the lender holds the legal title to the property until the mortgage is fully paid off. The borrower retains equitable title, meaning they have the right to use and possess the property.
In a title theory state like Virginia, if a borrower defaults on their mortgage payments, the lender can initiate a foreclosure process. Because the lender holds the legal title, they can typically use a non-judicial foreclosure process. This means they do not have to go through the courts to foreclose on the property, which can make the process quicker and less costly than a judicial foreclosure. However, the exact procedures for foreclosure can vary by state and can be subject to various legal requirements and protections for the borrower.
21
Q
What is a lien theory state?
A
A homeowner in California, for example, takes out a mortgage to buy a house. The homeowner holds the legal title to the property from the time the mortgage is signed. If the homeowner stops making payments, the lender must go through the judicial foreclosure process to take possession of the property. This involves going to court and proving that the homeowner has defaulted on the loan. The judicial foreclosure process can be lengthy and costly for the lender, but it provides more protections for the homeowner.
22
Q
Does Rule against Perpetuities apply to leases?
A
No no no!
23
Q
What is the mnemonic ECHO?
A
Adverse Possession
E: exclusive (owner is not using)
C: continuous (includes seasonal)
H: hostile
O: open and notorious
24
Q
What happens if a joint tenant w/rights of survivorship sells her interest?
A
A lifetime transfer of a joint tenant’s interest SEVERS that interest from the joint tenancy. The transferee holds that interest as a tenant in common with the remaining joint tenant(s) (no survivorship). If two or more joint tenants remain after the transfer, then they retain a joint tenancy w/survivorship with respect to each other.
25
What is a vested remainder subject to complete divestment?
A vested remainder is subject to complete divestment if the occurrence of a condition will eliminate the remainder interest.
(To A for life, then my heirs if they survive; if they don't survive, to C. Heirs are vested because they were determined when decedent died. They have vested remainder subject to complete divestment_
26
If someone has a mortgage but they sell the land without specifying what happens with the mortgage, are they still personally liable?
A mortgagor can freely transfer mortgaged land to a grantee but remains personally liable for the debt thereafter. The grantee takes the land subject to the mortgage obligation without personal liability for the debt UNLESS the grantee expressly agrees to assume the mortgage. Note: if grantee takes subject to mortgage, mortgagee can still foreclose on the property, but can't hold grantee personally liable.
27
When does a tenancy at will terminate?
A tenancy at will is a leasehold estate that has no specific term and continues so long as the landlord and the tenant desire. If only one party is expressly given the right to terminate the leasehold, the lease may be deemed unconscionable and both parties will have the ability to terminate it.
28
If someone takes out a mortgage on a property, and then a second mortgage, and then defaults on the second mortgage, can the second mortgagee foreclose?
Yes. A foreclosure on mortgaged property terminates interests in that property that are junior to the foreclosed interest but DOES NOT affect any senior interests.
29
What happens if you have a house, and sell mining rights to your property, and the company mines with reasonable care but your house subsides. Is the company liable?
YES. A third-party owner of subsurface rights is strictly liable for any failure to support the land and buildings that predate the conveyance of those rights, provided that the damage would have occurred in the land's natural state. (i.e. the house didn't contribute to the subsidence.)
30
What happens in your mom leaves you a house w/a mortgage in her will?
Under common law, you can make the estate pay off the mortgage.
Under the common-law (which is admittedly rare) exoneration-of-liens doctrine, the recipient of a specific devise of real property can use the remaining assets in the testator's estate to pay off any encumbrances on that property.
31
What rights does the mortgagee have in a title theory state?
In a title-theory state, the lender has legal title to mortgaged land and can take possession of the land at ANY time even if the mortgagor is not in default.
32
Can a third party deliver a deed to the grantee?
A grantor can deliver a deed to the grantee through an independent third party. If the third party's transfer of the deed to the grantee is conditioned on the grantor's death, then the grantor's delivery of the deed must evidence the intent to make a present gift to be effective.
33
How is a covenant terminated?
A covenant is terminated by abandonment when an affirmative act—something more than neglect or nonuse—shows a clear intent to relinquish the covenant.
34
If the purchase-money mortgage is a junior loan, what happens upon sale of a foreclosed property?
A purchase-money mortgage (PMM) has superpriority over all other liens that arose prior to the PMM—regardless of whether the PMM or those liens are recorded.
A purchase-money mortgage (PMM) is a mortgage granted to (1) the seller of real property or (2) a third-party lender to the extent that the loan proceeds are used to acquire title to the real property
35
Can a buyer who assumes a mortgage raises defenses that the debtor could have raised against enforcement or the mortgage?
NO. A buyer who assumes a mortgage is primarily liable for the debt. And if the assumption of the mortgage was part of the purchase price, then the buyer may not raise defenses that the debtor could have raised against enforcement of the mortgage obligation.
36
If there's a vested remainder subject to open, and Rule of Convenience applies as well as RAP, what happens?
The Rule of Convenience prevents the Rule Against Perpetuities from being applied to class gifts by closing class membership when any member of the class is entitled to immediate possession of a share in the class gift.
37
Does a mortgage with a "due on sale" clause release a mortgagor from liability after transferring the property?
Not if it was waived.
A "due on sale" clause allows a lender to demand full payment of any remaining mortgage debt if the debtor transfers the mortgaged property without the lender's written consent. If this clause is waived, the debtor remains liable on the note—even after transferring the mortgaged property—until the debtor is released by the lender.
38
Does a future interest render a title unmarketable?
It can if the future interest holder doesn't agree to the transfer. All land-sales contracts have an implied warranty that requires the seller to convey marketable title (i.e., defect-free title) upon closing. Title can be rendered unmarketable by a future interest if the holder of that interest does not agree to the transfer.
39
O leaves to A for life or until she leaves the property, then to B. What does B have?
B has BOTH a vested remainder AND an executory interest.
A defeasible life estate is a present possessory interest that terminates upon the end of the measuring life or the happening of a stated event. If title passes to someone other than the grantor when the present interest terminates, then the estate is followed by a remainder and an executory interest.
40
In adverse possession, what standard is used to determine "hostility?" In majority? minority?
In most jurisdictions, possession is hostile if the adverse possessor objectively demonstrates an intent to claim the land. However, a minority of jurisdictions considers the possessor's subjective intent.
41
How long is the period in Virginia for easement by prescription?
20 years
42
For adverse possession, how long must possession have been continuous?
15 years.
43
For personal property, when can a bailor bring detinue?
If the bailed property was not returned at the end of the bailment.
44
If a senior mortgagee brings a judicial foreclosure, what happens to the junior mortgagee's interest?
If senior gave no notice, junior's interest remains. If senior gave notice, junior mortgage is eliminated (whether or not it was in default).
For a judicially supervised foreclosure sale, the foreclosing mortgagee must give notice to the holders of any junior interests in the property to eliminate those interests. Any others who have an interest in the property or are liable on the debt may be joined as proper but unnecessary parties.
45
What determines if a mortgagee has a senior or a junior loan?
The order in which the loan was recorded.
46
If a buyer gets a mortgage with a due-on-sale clause and sells the property to new buyer who assumes the mortgage, may the mortgagee foreclose?
YES. A due-on-sale clause allows a lender to demand full payment of the remaining mortgage debt if the debtor transfers the mortgaged property without the lender's permission.
Exceptions: fewer than 5 units in apartment building. Single family residence exceptions: transferred to living trust, to joint tenant upon death, to spouse or child, a subordinate lien with no occupancy rights is granted, a lease of <3 years with no purchase option, transfer to ex in divorce
47
What happens if the servient estate starts using the easement in a different way?
An easement holder may increase the manner, frequency, or intensity of an easement's use so long as that increase does not unreasonably damage or interfere with the use or enjoyment of the servient estate.
If it does, the dominant estate may seek self-help, including blocking off the easement, an injunction, or damages: NOT terminating the easement
48
How does someone exercise right of reentry with a Fee Simple Subject to Condition Subsequent?
Unlike a fee simple determinable, an FSSCS is not automatically terminated. Upon the occurrence of the stated condition, the FSSCS will terminate only if the holder of the right of entry (here, the friend) affirmatively demonstrates an intent to terminate—e.g., by bringing an eviction action.
49
Is a judgment creditor a purchaser for value?
Judgment creditors are not purchasers for value since the attachment of a judgment lien to a debtor's property is merely security for a preexisting debt—not payment of value.
Other groups who are NOT purchasers for value (and thus don't get to apply a recording statute against a previous transferee): a donee, someone who pays nominal purchase price like $1, an heir, a devisee, or someone whose consideration is only recited in the deed (but there's no other proof of having actually paid consideration)
50
Does RAP often apply to rights of first refusal?
YES. Rights of first refusal are generally subject to the Rule Against Perpetuities, so this contingent future interest is void if it there is any possibility that it could vest more than 21 years after some relevant life in being at the creation of the interest.
51
What is a "wild deed" and does it give notice?
A recorded deed that falls outside the chain of title is a "wild deed" that fails to give constructive notice to subsequent purchasers. This usu happens when a deed is recorded, but the grantor is not the current owner of the property ACCORDING TO PUBLIC RECORDS. Needs a notice or race-notice jurisdiction for the subsequent purchases (who didn't know about the wild deed) to be protected. If you buy a wild deed, watch out! only protected in race state if you record first (which is rarest state anyway)
52
What happens if a bank holding a nonnegotiable promissory note and a mortgage transfers the note to a third party but doesn't say anything about the mortgage?
3rd party gets the mortgage as well.
A negotiable promissory note can be transferred by endorsing and delivering the note to another, but a nonnegotiable promissory note requires that a separate document of assignment be executed to transfer ownership. Once properly assigned, the mortgage automatically transfers with the note.
53
What if between signing the contract and getting the deed, a creditor records a judgement against the house (for prev owner)? What if you never record?
You still get the house, cause you have equitable title.
Under the doctrine of equitable conversion, a buyer receives equitable title to real property upon entering a land-sale contract. In contrast, the seller retains legal title and acquires the equitable right to receive the purchase price upon closing. As a result, a judgment obtained against the seller after the execution of the land-sale contract is not enforceable against the real property—even if the claim arose before the contract was executed.
54
Does a grantee get property if grantor dies on his way to deliver the properly signed deed?
Yes, because grantor had intent to make a present transfer.
A deed transfers ownership of real property when it is delivered by the grantor and accepted by the grantee. Delivery is shown by the grantor's intent to make a present transfer of the property—which can be implied from the grantor's words and conduct—and acceptance is presumed when the transfer is beneficial to the grantee.
55
If A owns mining rights, and mining damages buildings on the property above, is A liable?
Depends when A got mining rights. If A got mining rights before the buildings were built, then A is only liable for negligence. If A got mining rights after the buildings were built, then A is strictly liable if the damage would have happened if the land were in a natural state.
56
If you sign a contract as a co-tenant, but you have your friend sign donald duck as the other co-tenant, who gets that half interest?
Not you! The original owner retains it, cause donald duck is a nonexistent cotenant.
A deed purporting to transfer real property to a nonexistent cotenant is void as to the nonexistent cotenant and creates a tenancy in common between the grantor and the other cotenant(s) named in the deed.
57
Must a successor honor a covenant that runs with the land if the successor has no notice of the covenant?
No, for a purchasing successor. Notice is required.
Yes, for non-purchasers (donees, heirs, etc). Notice is not required.
58
What implied warranty requires a property seller to deliver a title to the buyer at closing that is free from an unreasonable risk of litigation?
It's part of the implied warranty of merchantability.
59
When can a person's period of occupancy be tacked on to a successor's for adverse possession?
To satisfy the statutory period for adverse possession, an adverse possessor may tack on the predecessor's time if there is privity between them. Privity is satisfied if the possessor takes by nonhostile means (e.g., by descent, devise, contract, deed). Two successive tenants would not have privity (unless it's a sublease)
60
What is an EQUITABLE MORTGAGE?
An equitable mortgage is created when an absolute deed—i.e., a deed that is free of encumbrances and transfers unrestricted title to property—is given with the intent to secure a debt. If the promise to return is given orally, that evidence can be introduced.
61
If A has a mortgage with a "due on sale" clause and sells the property to B subject to mortgage, may the Bank foreclose?
YES. Bank can hold A personally liable OR foreclose.
A "due on sale" clause allows a lender to demand full payment of the remaining mortgage debt if the debtor transfers the mortgaged property without the lender's permission.
62
Who pays for repairs to a shared easement?
When an easement is shared, the owner who maintains or repairs the easement may seek contribution from (1) the other owners and (2) the servient-estate owner if he/she uses the easement. *If the dominant estate does not use the easement, the dominant estate need not pay.*
63
Who gets paid first, a seller that had a purchase money mortgage (PMM) or an prior mortgage? What if the PMM was not recorded? What about a subsequent mortgage?
PMM gets priority over prior mortgages. It does not matter whether the PMM was recorded or not. Priority for subsequent mortgages is governed by the title theory of the jurisdiction. (Race, notice, etc.)
64
How do you know if a mortgage is a Purchase Money Mortgage?
It's a traditional mortgage, where the loan is to buy the house. Can be seller-financed or third party.
Often it's a seller-financed loan. Look for language like "the seller loans." PMMs are made simultaneously with the sale transaction. Also called an owner carry-back mortgage.
A PMM also arises when a mortgage is granted to a third-party lender, to the extent that the loan proceeds are used to acquire title to or construct improvements on the property as part of the same transaction in which title is acquired.
65
Name four common reasons that excuse paying rent:
* Condemnation. (If partial condemnation, tenant must still pay rent for remaining property.)
* Material breach. (implied warranty of habitability, implied promise to deliver possession, express lease provision.)
* Frustration of purpose. (Change in law, change in physical condition not caused by tenant, war rationing, other gov't action)
* Novation. (Landlord agrees to release tenant and replace with 3rd party.)
66
Is an original buyer personally liable if they sell to someone who assumes the mortgaged property and then the lender releases its mortgage?
YES. A debtor remains personally liable for the mortgage debt even after the mortgaged property is transferred to another. But the debtor will be relieved of personal liability if the lender releases or impairs the mortgaged property.
67
If the underlying loan for a mortgage is unenforceable (statute of limitations, duress, whatever), is the mortgage itself still enforceable?
NO. A mortgage is generally enforceable only to the extent that the underlying obligation is enforceable. Therefore, a mortgage is subject to the same defenses as the underlying obligation secured by the mortgage—e.g., mistake, duress, lack of capacity, statute of limitations.
Enforcement of a mortgage is subject to the same defenses as the obligation for which the mortgage serves as security.
68
If cotenants all default on a mortgage and one of the cotenants buys the property at foreclosure, does she she owe the other cotenants anything?
YES. Cotenants owe each other a fiduciary duty when they (1) jointly purchase property in reliance on each other or (2) acquire their interests at the same time from a common source. This duty arises when the property is sold at a foreclosure sale and purchased by a cotenant, allowing the other cotenants to reacquire their interests by paying their share of the purchase price.
69
If you assign your right for a quarterly payment from insurance to someone, and then later assign that right to someone else, does the first assignee keep it?
NO cause the assignment was revocable.
There are two types of assignment: for value and gratuitous. An assignment for value is irrevocable, but a gratuitous assignment can be revoked (e.g., by subsequently assigning the same right) unless an exception applies.
70
Does one cotenant owe rent to another cotenant who doesn't live on the property?
NO. Likewise, the other cotenant doesn't owe for the taxes and repairs the resident cotenant paid.
71
If a tenant moves out and stops paying rent before the lease is up, can the landlord sue for the unpaid rent of the balance of the lease or do they have to wait?
They have to wait to recover until the lease is up. The doctrine of anticipatory repudiation does not apply to leases in a majority of jurisdictions. Therefore, when a tenant breaches the duty to pay rent, a landlord is only entitled to rental payments as they become due—not all future rents that would have been due under the lease.
72
Define inquiry notice.
When a reasonable investigation would have disclosed the existence of a prior interest.
(Buyer who bought land sight unseen and was unpleasantly surprised to find power line easement HAD notice, because he should've reasonably investigated.)
73
What kind of title theory is this? "A conveyance of any interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded."
NOTICE. 2nd buyer gets to keep unless they had notice.
Race: Interest holder who records first will prevail
look for: "First record"
Notice: Subsequent BFP without notice of earlier property interest will prevail
look for: "Without notice," "In good faith"
Race-Notice: Subsequent BFP (1) without notice of earlier property interest (2) who records first will prevail
look for: "Without notice, who shall first record"
74
May the servient estate change the location an express easement when the circumstances have drastically changed and they offer a reasonable accomodation to the dominant estate?
NO. The servient estate cannot unilaterally change an the location of an express easement.
The servient estate may change the dimensions or use of an easement if the change is reasonable in light of the purpose of the easement and otherwise not in conflict with the terms of the easement.
75
What's the difference between the lien theory of mortgages and the title theory of mortgages?
Lien theory of mortgages, the granting of a mortgage by fewer than all of the joint tenants does not sever the joint tenancy.
Title theory of mortgages, the granting of a mortgage by fewer than all of the joint tenants severs the joint tenancy and transforms it into a tenancy in common.
76
If a developer retains a general power to amend the declaration with respect to lots owned by the developer, can the developer use this power to dramatically change the nature of the developemtn?
(i.e. sells 3/4s of the lots w/covenant to be only 1 story buildings, retains rights to change, turns 1/4 into high rises)
NO.
While the declaration gives the developer a general power to amend the declaration with respect to lots owned by the developer, the developer may not use this power in a way that would materially change the character of the development or the burdens on the existing community members unless the declaration fairly apprises purchasers that the power could be used for the kind of change proposed.
77
Purchaser buys a lot, mortgages to bank. Subdivides and sells 3 of the 4 lots; new buyers all get mortgages from different banks. Purchaser defaults. How does bank recover?
First purchaser's lot, then youngest mortgage to oldest mortgage.
Generally, upon default of an obligation, a mortgagee may foreclose on any and all parcels of real property of the mortgagor that serve as security for the obligation. If there are junior security interests with respect to some of those parcels of real property, however, those junior interests may petition the court for protection of their interests under the doctrine of marshaling of assets. Under this doctrine, the holder of a senior security interest must first proceed against the property on which there are not any junior security interests, and then against the property on which the junior interest was more recently created, before proceeding against property on which the junior interest was more remotely created.
78
Does a commercial lease have a covenant of quiet enjoyment?
Yes. It's implied for all leases, commercial and residential.
79
Recording a deed raises the rebuttable presumption of what?
Delivery!
80
What is a profit à prendre?
A nonpossessory right to enter another’s land and remove specific natural resources. As a property right, a profit is subject to the applicable recording act.
81
How do the general warranty and the special warranty differ?
Special warranty: no defect of title occurred during his ownership of the property, when a grantor gives a general warranty,
General warranty: defect did not occur during his or any preceding ownership of the property.
82
In VA, what are the three future warranties of English Title?
(1) covenant of quiet possession;
(2) covenant of warranty; and
(3) covenant of further assurances.
Breach of these future covenants occurs, if at all, only upon interference with possession by a third party.
Virginia statutorily denominates the covenant of quiet enjoyment as the covenant of quiet possession and treats that covenant and the covenant of warranty as functional and legal equivalents.
The covenant of quiet possession = possession will not be interfered with by a third party’s lawful claim for title.
The covenant of warranty = grantor will defend against a third party’s lawful claim for title.
The covenant for further assurances = grantor will do whatever is necessary to perfect title should it turn out to be defective.
83
What three requirements for a bailee?
The bailee must: (i) physically possess the property with the intent to exercise control over it, (ii) consent to the bailment (mere custody of the property is insufficient), and (iii) be aware that the article exists.
84
A person wrongfully deprived of personal property may file for which three actions?
(1) detinue,
(2) trespass, or
(3) trover
85
3 requirements to create a bailment
For a bailment to occur, the bailee must (i) physically possess the property with the intent to exercise control over it, (ii) consent to the bailment (mere custody of the property is insufficient), and (iii) be aware that the article exists.
86
Different levels of care for different bailments
The duties of the bailee vary based on the reason for the bailment. When a bailor receives the sole benefit from the bailment, the bailee has a lesser duty to care for the property and is liable only if he has been grossly negligent. In a bailment for mutual benefit, the bailee must take reasonable care of the bailed property.
87
When establishing mortgagee priority, what happens if the first mortgagee amends the terms of the obligation?
Generally, a properly recorded mortgage that precedes another mortgage has priority over the later mortgage. A senior mortgagee who enters into an agreement with the mortgagor to modify the mortgage or the obligation it secures subordinates his interest to a junior mortgagee’s interest to the extent that the modification is materially prejudicial to the junior mortgagee’s interest. The senior mortgagee’s interest otherwise remains superior to the junior mortgagee’s interest.
88
What happens to a fixture when the real property conveys? What if a tenant and landlord had a prior agreement?
Generally, an item that becomes a fixture is transferred as part of the real property interest to which it relates. However, when there is an agreement between the landlord and tenant regarding an item that may be a fixture, that agreement will control.
89
In VA, what is spot zoning?
A rezoning that affects a small number of parcels of land, most typically a single parcel, in manner that is inconsistent with the zoning of the neighboring land (and the comprehensive plan where one exists) and that usually benefits the owner of the parcel or parcels to the detriment of the neighboring land constitutes impermissible “spot zoning.”
90
In VA, can a cheating spouse get alimony?
NO probably.
No spousal support may be awarded to a spouse who commits adultery unless the court determines from clear and convincing evidence that the denial of spousal support to the guilty party would constitute a “manifest injustice” based on the spouses’ respective degrees of fault during the marriage and their relative economic circumstances.
91
Adverse possession statutory period for real property in VA? personal property?
the statutory period for adverse possession of real property in Virginia is 15 years, the statutory period for adverse possession of personal property in Virginia is five years.
92
Does a holder of a life estate have the responsibility to repair damage caused by a third party?
No. Although a life tenant generally has a duty to reasonably repair the property, a life tenant does not have a duty to repair damage done to the property by a third-party tortfeasor.
93
Do you have to show damages for trespass of chattels?
Yes. A defendant commits trespass to chattels if the defendant intentionally interferes with a plaintiff's right of possession by dispossessing the plaintiff of the chattel or using or intermeddling with the plaintiff's chattel. Use of the plaintiff's chattel occurs when the defendant does not assume ownership of the chattel, but instead only uses the chattel. In circumstances of use or intermeddling, the plaintiff may recover only when there are actual damages.
94
Can a tenant in common stop the other tenant in common from chopping down trees on the land for timber?
Tenants in common have the unrestricted right to possess the whole property. Further, co-tenants are entitled to the land’s natural resources (such as timber) in proportion to their share of the property. Accordingly, each tenant in common is entitled to the natural resources on the entirety of the land.
95
If I make a deed saying, you can have this if you brush your teeth every day for a year, is that condition enforceable if given only orally?
When a grantor transfers the deed to the grantee subject to a condition that does not appear in the deed (e.g., an oral condition), parol evidence is not admissible and the condition is not enforceable.
96
If you have a legit nonconforming use and you sell the land, does the nonconforming use transfer too?
Yes. the owner of the right to use property in a manner that is not in keeping with the zoning ordinance may transfer that right to another person.
Note: a temporary abandonment of the nonconforming use is not enough to make it void. (a property owner may abandon the right to use property in a manner that does not conform to the zoning ordinance. Although some states recognize that abandonment may be deemed to occur via the passage of time, most states require that the property owner evidence an intent to abandon the nonconforming use.)
97
Can you do whatever you want with rainwater that falls on your property?
Yes. Rainwater is classified as surface water or more precisely as diffused surface water. As such, although there are restrictions on the ability of a landowner to prevent such water from entering his property or altering the flow of such water off his property, a landowner may generally impound such water on her property and may make whatever reasonable use she wishes of that water.
(think: rain barrel collection)
98
In VA, how do you enforce a statutory mechanic's lien?
In order to enforce a statutory mechanic’s lien held by a mechanic for the cost of repairs to personal property made at the request of the property owner, the mechanic may sell the property at auction without court involvement in order to recover the cost of the repairs if the value of the property is less than $10,000, so long as the shop follows the statutory requirements. Where the value of the property to be sold exceeds $25,000, the mechanic must petition the circuit court for the county or city in which the property is located.
99
Are trees real property or personal property?
real properly--all crops that grow spontaneously are. includes bushes, grass
100
Are fruit trees real property or personal property?
PP if planned for and planted. Fruit, vegetables, grains.
101
doctrine of emblements
former tenants who planted crops can reenter after lease expired to get crops IF tenancy life estate or undetermined period of time and terminated without tenant's fault
102
VA copyright?
owner's lifetime plus 70 years. must be registered.
103
When can a BFP keep stolen property?
If they lack notice AND
--money or negotiable instrument;
--converter acquired title by fraud in the inducement (i.e. true owner was misled as to identity of wrongdoer); OR
-- true owner entrusted goods to a seller of goods fo that kind and the purchaser is a buyer in the ordinary course of the seller's business
104
2 elements of capture of unowned property:
manifest intent to own by DOMINION and CONTROL
including wild animals! just hunting it doesn't count.
105
VA: treasure trove?
property concealed and anticipated to be recovered at a later time; rules for lost property (finder keeps except true owner; an employee who finds it wihle working has to give it to employer)
106
Who has claim to misplaced property?
1) original owner 2) owner of the property where the item was found
107
What's accession?
adding value to personal property through labor or new materials. innocent trespasser may keep ONLY if property completely changed or greatly increased. original owner can get damages.
willful trespasser: original owners gets it back no matter how improved.
108
Does delivery in writing count to establish a gift?
Yes if: intent, description of gift, signed, passes writing out of control with intent the grantee gets it
109
When is a check delivered (for gifting purposes)?
Not until the donee cashes the check of bank deposits funds
110
How revoke a gift causa mortis?
1) don't die 2) revoke w/affirmative act 3) recipient dies before you
111
What's detinue?
action to recover the actual personal property
112
what's the remedy of conversion?
sue in trover to recover value
113
In VA, 5 specific types of liens:
1) innkeeper's lien (baggage and stuff: 60 days till auction)
2) lien of keeper of stable, marina, hangar (10 days)
3) mechanic's lien (10 days)
4) launderer or cleaner's lien (90 days)
5) lien on motor vehicle (must be on title)
owner needs 10 days notice before a sale
$10k or less, no court
$10K-25K, GDC where property located
over $25K, CC where property located
114
4 levels of care for a bailee
1) bailor's benefit only; bailee owes slight diligence (liable for gross negligence)
2) mutual benefit: bailee owes ordinary care
3) bailee's benefit only; bailee owes great diligence (liable for slight negligence)
4) ABSOLUTE liability
115
Bailment liabikity waivers:
strictly construed. bailments for hire (valets etc) may not exempt selves from liability but may limit of bailor knows or should know and consents
116
3 elements for an inter vivos gift in VA:
An inter vivos gift (while the donor lives) requires: (i) the donor’s present intent and mental capacity to make the gift, (ii) delivery, and (iii) acceptance.
117
In VA, explain a finder's rights to misplaced property.
The finder of misplaced property does not obtain possession of the property. The finder’s right to the misplaced property falls after that of the original owner and the owner of the property on which the misplaced item was found.
118
In VA, kid gets property while infant, how long till someone can get it with adverse possession?
An action to recover land must be brought within 25 years from when the cause of action first accrued, notwithstanding the effect of any disabilities on the running of the statute of limitations. So if adverse possession starts with kid is 2, kid does not have the full 15 years after turning 18 to take action: instead kid has max 25 years after kid got land in the first place.
119
What's the doctrine of emblements?
Under the doctrine of emblements, a former tenant may enter land to cultivate and harvest crops that had been planted or were maturing at the time of the termination of the tenant’s lease, provided (i) the tenancy was for an undetermined period of time or was a life estate, and (ii) the tenancy was terminated under conditions other than the tenant’s fault.
