Property

Question 1

vested remainder subject to total divestment

Answer 1

arises when the remainderman is in existence and ascertained, but her right to possession and enjoyment is subject to being defeated by the happening of a condition subsequent.

Question 2

condition subsequent

Answer 2

express condition that, if it occurs, will divest the remainderman of her interest.

Question 3

vested remainder subject to partial divestment (also called a vested remainder subject to open)

Answer 3

arises when the remainderman is in existence and ascertained, but her interest is subject to diminution by reason of other persons becoming entitled to share in the remainder (i.e., a class gift).

Question 4

contingent remainder

Answer 4

a remainder that is (i) subject to a condition precedent, or (ii) created in favor of unborn or unascertained persons.

Question 5

Statute of Frauds requires that a land sale contract be memorialized

Answer 5

in a writing that contains a description of the property, identification of the parties to the contract, and the price and manner of payment, if agreed upon. The Statute also requires that the memorandum be signed by the party to be charged. The closing date, which is the time payment is to be tendered and the deed is to be furnished, is not an essential term of a land sale contract under the Statute of Frauds. Matters incidental to the contract (e.g., furnishing of deeds, prorating of taxes, title insurance) can be determined by custom; they need not appear in the writing nor even have been agreed upon. If no specific time is mentioned, the closing date will be construed to be within a reasonable time.

Question 6

A deed must contain

Answer 6

an identification of the grantor in order to be valid. Note, however, that if a deed is delivered with the identity of the grantee left blank, courts will presume that the person taking delivery of the deed has the authority to fill in the grantee’s name. A deed need not contain the metes and bounds of the land in order to be valid. A deed must unambiguously identify the land, but the description need not be formal and may incorporate extrinsic evidence. A deed need not contain a recitation of the consideration paid in order to be valid. A deed need not contain the grantee’s signature in order to be valid. Even if the deed contains covenants on the grantee’s part, her acceptance of the deed is sufficient to make those covenants enforceable.

Question 7

Is a deed by interviews gift valid?

Answer 7

so long as there is donative intent, delivery, and acceptance.

Question 8

When a mortgagee transfers a promissory note, for the transferee to become a holder in due course:

Answer 8

1. The note must be payable to the named payee and must contain a promise to pay a fixed amount of money (although it may provide for an adjustable interest rate) and no other promises (although it may contain an acceleration clause and an attorneys’ fee clause); 2. The named payee must sign the original note; 3. The original note must be delivered to the transferee (a copy is not acceptable); and 4. The transferee must pay “value” for the note (which must be more than nominal but need not be as great as the fair market value of the note) and take the note in good faith, with NO notice that the maker has any defense to the duty to pay it or that the note is overdue or has been dishonored.

Question 9

deed of trust

Answer 9

is a security interest in land by which the debtor (i.e., the trustor) transfers title to the land to a third party (i.e., the trustee), such as the lender’s lawyer or a title insurance company, acting on behalf of the lender (i.e., the beneficiary). In the event of default, the lender instructs the trustee to foreclose the deed of trust by selling the property. Many states allow the sale to be either judicial (as with a mortgage) or nonjudicial, under a “power of sale” clause that authorizes the trustee to advertise, give appropriate notices, and conduct the sale personally. The nonjudicial sale is often permitted with deeds of trust but not with mortgages; however, a few states recognize that an effective power of sale can be granted in a mortgage. Promissory notes are not security interests in land. A security interest operates to secure some other obligation, usually a promise to repay a loan, which is represented by a promissory note.

Question 10

remainder

Answer 10

a future interest created in a grantee rather than a grantor. A remainder must be expressly created in the instrument creating the intermediate possessory estate. A conveyance from “O to A for life, then to B” creates a life estate in A and a remainder in B.

Question 11

possibility of reverter

Answer 11

is the future interest left in a grantor who conveys a fee simple determinable. A conveyance from “O to A for so long as/while/during/until [event]” creates a fee simple determinable in A and a possibility of reverter in O.

Question 12

A right of entry

Answer 12

is the future interest retained by the grantor who conveys a fee simple subject to a condition subsequent. A conveyance from “O to A upon condition that/provided that/but if/if it happens that [event], then O or her heirs may enter and terminate the estate” creates a fee simple subject to a condition subsequent in A and a right of entry in O.

Question 13

reversion

Answer 13

is the future interest left in a grantor who conveys a lesser estate. A conveyance from “O to A for life” creates a life estate in A and a reversion in O.

Question 14

When may the grant of a perpetual easement be enforced as a license?

Answer 14

when it fails to satisfy the Statute of Frauds. Any conveyance of an interest in land (including an easement interest) of a duration long enough to bring into play a particular state’s Statute of Frauds (typically one year) must be memorialized in writing to be enforceable. If a party attempts to create such an easement orally, the result is the creation of a license. The grant of an easement may NOT be enforced as a license at the grantor’s option. Unlike an easement, a license is not an interest in land. It is merely a privilege to go upon another’s land, generally revocable at the will of the licensor. Thus, the grant of an easement is NOT always enforced as a license, but rather only when that grant is legally deficient under the Statute of Frauds, as explained above.

Question 15

Color of title

Answer 15

is a document that purports to—but does not actually—give someone title to land.

Question 16

doctrine of constructive possession

Answer 16

a claimant may gain title to a tract of land by adverse possession if she has color of title to the entire tract but occupies only a portion of it, if there is a reasonable proportion between the portion occupied and the whole tract.

Question 17

To acquire a prescriptive easement on property, the claimant’s use must be

Answer 17

open and notorious, adverse, and continuous for the statutory period. Acquiring an easement by prescription is analogous to acquiring title to property by adverse possession, except that the use need NOT be exclusive (i.e., the user may share the use with the owner or other easement claimants). There is no requirement that the use be in good faith, and adverse use means the user does NOT have the owner’s permission.

Question 18

tenancy by the entirety

Answer 18

a marital estate akin to a joint tenancy between husband and wife. It can be terminated only by: (i) the death of either spouse (leaving the surviving spouse as sole owner of the property); (ii) divorce (leaving the parties as tenants in common with no right of survivorship in most states); (iii) mutual agreement; or (iv) execution by a joint creditor of both spouses.

Question 19

A deed will not transfer an interest in land unless

Answer 19

it has been delivered by the grantor and accepted by the grantee.

Question 20

Courts generally will presume that a grantee’s possession of a deed means

Answer 20

it has been delivered. Unless the grantor clearly expressed his intent that title pass to the grantee without physical delivery, the grantor’s continued possession of the deed raises a presumption of nondelivery. Conversely, the grantee’s possession of a properly executed deed raises a presumption of delivery.

Question 21

statutory redemption

Answer 21

is the right of a mortgagor to recover the land by paying the foreclosure sale price after the sale has occurred. Note that this differs from equitable redemption, which is the right of a mortgagor to recover the land by paying the amount overdue on the mortgage, plus interest, at any time before the foreclosure sale.

Question 22

easement appurtenant

Answer 22

An easement is deemed appurtenant when the right of special use benefits the holder of the easement in its physical use or enjoyment of another tract of land. For an easement appurtenant to exist, there must be two tracts of land: the dominant tenement has the benefit of the easement, and the servient tenement is subject to the easement right.

Question 23

covenant of quiet enjoyment

Answer 23

implied in every lease

Question 24

easement in gross

Answer 24

An interest in land that gives someone the right to use someone else’s land independent of his ownership or possession of his own land. Gives the right to use but not to posses. Ex. utility easement.

Question 25

fixture

Answer 25

a fixture is a cattle that has been so affixed to the realty that it has ceased being personal property and has become part of the realty. At common law chattels affixed to the leased premises became the property of the landlord and thus could not be removed from the premises by the tenant.
Today, absent agreement, a tenant generally may remove annexed chattels before the termination of the tenancy if doing so causes no damages to the premises.

Question 26

voluntary waste

Answer 26

results when a tenant intentionally or negligently damages the leased premises. It also results when a tenant exploits minerals on the property unless the property was previously so used or the lease provides that the tenant may do so.

Question 27

permissive waste

Answer 27

results when tenant fails tomato ordinary repairs to keep the leased premises in the same condition as at the commencement of the lease term, excluding ordinary wear and tear (unless the tenant covenanted to repair ordinary wear and tear)

Question 28

ameliorative waste

Answer 28

results when a tenant makes substantial alterations to the leased premises that increase the value of the property. Modern courts will permit a change in the character of premises that have significantly decreased in value over time if :
1. the change increases the value of the premises
2. the change is performed by a long-term tenant (25 yrs) or a life tenant and
3. the change reflects a change in the nature and character of the neighborhood

Question 29

deeds that are considered void

Answer 29

forged, never delivered, or obtained by brand in the fact (meaning grantor was deceived and did not realize that he was executing a deed).

Question 30

periodic tenancy

Answer 30

is a tenancy that continues from period to period until terminated by proper notice by either the LL of the T. It may be created by implication if a lease with no set termination date provides for the payment of periodic rent. Majority view is that lease at an annual rent, payable monthly, creates a periodic tenancy from year to year and not a month to month periodic tenancy.

Question 31

statutory redemption

Answer 31

the right of a mortgagor to recover the land by paying the foreclosure sale price after the foreclosure sale has occurred. About half states provide a statuary right to redeem for some fixed period after the foreclosure sale has occurred usually six months or one year. Amount to be paid is the foreclosure sale price not the debt price. This right extends to mortgagors and in some states junior lienors.

Question 32

Equitable Redemption

Answer 32

is the right of a mortgagor to recover the land by paying the amount overdue plus interest at any time before the foreclosure sale. if the mortgagor defaults and the mortgage or the note contained an acceleration clause then the full balance must be paid in order to redeem the land.

Question 33

power of sale

Answer 33

authorizes the trustee in a deed of trust to advertise, give appropriate notices, and conduct a nonjudicial foreclosure sale personally. all states allow mortgages to be foreclosed by judicial sale, while half allow nonjudicial sale under a power of sale for deed of trust.

Question 34

usual measure of damages for breach of a real estate contract

Answer 34

difference between the contract price and the market value of the land on the date of the breach. Incidental damages can also be recovered

Question 35

marketable title

Answer 35

title reasonably free from doubt ie title that a reasonably prudent buyer would be willing to accept. Generally this means an unencumbered fee simple with good record title. Every land sale contract contains an implied covenant that the seller will provide marketable title at closing. Must be free from questions that might present unreasonable risk of litigation. (adverse possession land).

Question 36

covenant of warranty

Answer 36

the grantor agrees to defend on behalf of the grantee, any lawful or reasonable claims of title by a third party and to compensate the grantee for any loss sustained by the claim of superior title. Continuous (run with the land) and require the grantor to assist the grantee in establishing title.

Question 37

covenant of further assurances

Answer 37

covenant to perform whatever acts are reasonable necessary to perfect the title conveyed if it turns out to be imperfect. Continuous, run with the land and require the grantor to assist the grantee in establishing title.

Question 38

covenant of seisin

Answer 38

covenant that the grantor has the estate or interest that she purports to convey. Both title and possession at the time of the grant are necessary to satisfy this covenant.

Question 39

covenant against encumbrances

Answer 39

covenant assuring that there are neither visible encumbrances (easements, profits, etc.) nor invisible encumbrances (mortgages) against the title or interest conveyed.

Question 40

warranty deed

Answer 40

A general warranty deed gives the grantee six covenants of title: the right of seisin, the right to convey, a covenant against encumbrances, the covenant of quiet enjoyment, the covenant of further assurances and a general warranty.

Question 41

attractive nusiance

Answer 41

a landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children including trespassing children, caused by artificial conditions on his property.

Question 42

Elements to be bound by a covenant that runs with the land

Answer 42

to be bound : (1) the parties must have intended that the covenant run with the land (express or ‘heirs, assigns’) (2) the original parties must have been in horizontal privity (3) the succeeding party must be in vertical privity with the original promisor (vi) the covenant must touch and concern the land and (5) generally (unless an heir/donee or recording statute doesn’t require), the burdened party must have actual or constructive notice of the covenant.

Question 43

Fair Housing Act

Answer 43

Protects tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status (except in senior housing).

Fair Housing Act does not apply to (1) owner-occupied buildings with four or fewer units in which persons live independently of each other; and (2) single-family homes sold or rented by an owner who owns no more than three single-family homes.

Can never advertise discriminatorily, no exception.

Question 44

Adverse possession

Answer 44

The doctrine of adverse possession provides that possession for a specified statutory period in the requisite manner will establish the possessor’s title to the land. For possession to ripen into title, it must be:
(i) actual;
(ii) open and notorious (i.e., such as the usual owner would make of the land and sufficient to put the true owner or the community on notice of the fact of possession);
(iii) hostile (i.e., without the true owner’s permission); and
(iv) continuous.

• The statute of limitations that determines the time period for adverse possession does not run against the holder of a future interest (e.g., a remainder) until that interest becomes possessory, because the holder of the future interest has no right to possession (and thus no cause of action against a wrongful possessor) until the prior present estate terminates.

Question 45

Exception to SOF for land sale contract - Part Performance

Answer 45

An oral contract for the sale of land is valid with a showing of a combination of any, or all three, of the following: (1) payment of all or part of the purchase price; (2) taking of possession; and (3) making substantial improvements to the property.