Property

Question 1

Language to create Fee Simple Determinable v. Fee Simple Subject to Executory Interest

Answer 1

Determinable: words of duration (so long as, during, while)

Executory Interest: to X so long as (or “but if”)… to Y

Question 2

Obligations and Prohibitions on Life-Tenant

Answer 2

Responsible for ordinary expenses and taxes during their lifetime.

Prohibited from committing waste (decreasing property value).

Question 3

How does interest in Tenancy in Common, Joint Tenancy, or Tenancy by Entirety pass?

Answer 3

By bequest or intestacy.

Question 4

Severance of Joint Tenancy

Answer 4

• Severed if one JT unilaterally transfers ownership interest; then hold as tenants in common.
• Where more than two JT and one unilaterally transfers, joint tenancy remains among other JTs and transferee is tenant in common.
• Severed in Title Theory Jurisdiction where one JT mortgages interest; but not in Lien Theory Jurisdiction.
• Severed in most states if JT leases property.

Question 5

Co-tenants and Rent or Repairs

Answer 5

Entitled to fair share of rent from third party.

Entitled to reimbursement for cost of necessary repairs, unless wrongful ouster.

Question 6

Creation and Termination of Periodic Tenancy

Answer 6

Created by
- express agreement
- implication (rent paid at specific periods)
or
- law (tenant-for-years remains after termination or lease is invalid)

Termination requires written notice at least a full period in advance (six months if year-to-year lease).

Question 7

Termination of Tenancy at Will

Answer 7

Notice plus reasonable time to quit the premises. (Some states do not require notice.)

Question 8

Rights of tenant who is constructively evicted

Answer 8

Terminate the lease
Seek damages
Avoid rent during period of CE

Question 9

LL duties: residential v. commercial lease

Answer 9

Residential lease:
- repair common areas
- warn of latent defects that create risk of serious harm that LL knows or should know of

Commercial lease:
- no duty to repair unless in lease agreement

Question 10

LL’s Consent for Assignment

Answer 10

Must obtain consent if required by lease.

But if LL accepts rent from assignee, LL waives right to enforce provision prohibiting assignment.

Question 11

Types of Notice re: Real Property

Answer 11

1. Actual - knowledge
2. Constructive - discoverable in property records
3. Inquiry - would be revealed by reasonable inspection of property

Question 12

What is the Trade Fixture Exception?

Answer 12

An item attached to property for a tenant’s trade or business is NOT a fixture UNLESS removal causes substantial damage to the property.

It may become a fixture if not removed before end of the lease term.

Question 13

What is Aggregation/Tacking?

Answer 13

Allows adverse possessors in privity to aggregate years spent possessing property to meet statutory period.

Also applies to statutory period’s limitation on suit by landowner.

Privity exists when land is transferred voluntarily (deed or bequest).

Question 14

Breaches and Damages: Warranty of Marketable Title

Answer 14

• If seller cannot convey marketable title at closing, buyer may withdraw without penalty.
• Buyer may waive defect; seller cannot cancel contract if so.
• Damages measured by reduced value of land. Courts are divided on whether can recover if encumbrance is known or obvious (whether there is notice).

Question 15

Risk of Loss

Answer 15

Most states: transfers to buyer upon signing contract.

Minority: seller bears, unless buyer has possession of or title to property at time.

Question 16

Breach of Home Builder’s Implied Warrant

Answer 16

Buyer can recover damages discovered within reasonable time for
- defective construction
or
- construction not performed in workmanlike manner (within accepted industry norms)

Question 17

Grantor’s Intent to Convey Land

Answer 17

Will be found if any words indicate intent to immediately convey (grant, convey, give, transfer).

Will NOT be found if grantor
- expressly reserves right to revoke deed
or
- gives instruction to only deliver deed upon own death.

Question 18

Effect of Oral Conditions on Deed

Answer 18

If deed is unconditional in its face and is given to grantee, any additional conditions are invalid.

If same deed given to third party (held in escrow), additional conditions create a conditional delivery.

Question 19

Remote Grantee Enforcement of Present Covenants of General Warranty Deed

Answer 19

Common law: not enforceable by remote grantee

Some states: enforceable if remote grantee did not have notice of encumbrance.

Question 20

What is Chain of Title?

Answer 20

It shows all transfers of a piece of land. There are two indexes: one organized by name of grantor, and one by name of grantee.

Question 21

Two Types of Payments under Future-Advance Mortgage

Answer 21

Obligatory: lender has duty to advance (no discretion); all payments are part of original loan and take priority over later liens

Optional: made at lender’s discretion; do not have priority over liens recorded before payment is made

Question 22

Liability under Transfer Subject to Mortgage

Answer 22

Buyer is not personally liable on mortgage, BUT mortgage remains on the land and lender may foreclose.

Question 23

Foreclosure Impact on Other Mortgages and Debt

Answer 23

Extinguishes all JUNIOR mortgages; no impact on SENIOR (prior) mortgages.

Debts paid by foreclosure sale in order:
1. Attorney fees and expenses re: sale.
2. Debts owed to lender.
3. Any remaining amount to borrower.

If funds insufficient to pay debts to lender, lender may seek deficiency judgment against borrower for remaining amount.

Question 24

Previous Non-Conforming Use

Answer 24

Allows landowner to continue using land (in previously legal way) in violation of subsequently enacted zoning law.

Non-conforming use MUST be continuous.

Allowed to make insubstantial changes and reasonable alterations to repair property.
Not allowed to make substantial changes that alter, enlarge, or extend non-conforming use.

Question 25

What is the Fair Housing Act?

Answer 25

Prohibits discrimination in housing activities based on:
- familial status (except 55+ communities)
- national origin
- race/color
- religion
- disability
and/or
- sex

Question 26

Exemptions from Fair Housing Act

Answer 26

• religious organizations
• private clubs that restrict occupancy to members
• owner-occupied buildings with no more than 4 units with persons living independently of each other
• single family home sold/rented by owner, without agent, and owner has no more than three homes at time

Question 27

Discriminatory Advertising under FHA

Answer 27

Prohibited and enforced against person who runs ad and its creator.

Violates FHA even if the property advertised is exempt from FHA.

Question 28

Tenant Abandons Premises: what is it and what can LL do?

Answer 28

Abandonment: tenant vacates leased premises without justification, lacks present intent to return, and defaults on rent.

LL may
- terminate the lease
- relet to new tenant and sue abandoning tenant for unpaid rent
or
- leave premises vacant and sue tenant for accrued rent (subject to duty to mitigate damages)

Question 29

When does Constructive Adverse Possession apply?

Answer 29

• Possessor enters land under color of title (invalid deed or bequest)
• additional land portion is reasonable in size
• additional land portion is adjacent to portion actually possessed
  and
• portions owned by same person

Question 30

Tolling and Adverse Possession

Answer 30

Time for the landowner to sue the occupier may toll for reasons in statute, but only if landowner had cause of action against occupier when occupier first entered (i.e. was landowner at time).

Question 31

Adverse Possessor v. Bona Fide Purchaser

Answer 31

BFP cannot defeat title of adverse possessor, even if land unoccupied at time. Once AP acquires title, the previous record title owner has no title to convey.

Question 32

What is LL’s duty re: possession of property?

Answer 32

Majority/English view:
- LL must deliver legal right to possession AND actual possession.
- Failure to do so is breach and tenant may terminate lease.

Minority/American view:
- LL must only deliver legal right to possession unless lease provides otherwise.

Question 33

How is scope of easement determined?

Answer 33

By how it was created.

• Express easement by grant is limited to what agreed to by parties.
• Easement implied by prior use limited to scope of prior use.
• Easement by prescription limited to actual usage during statutory period.
• Easement by necessity limited to remedying necessity at issue.

Question 34

What is estoppel by deed?

Answer 34

If grantor conveys title to real property by deed before he owns the property, title will automatically vest in grantee as soon as grantor acquires title.

Question 35

What is a zoning ordinance?

Answer 35

Land-use regulation that adversely affects real property interests. It is allowed where reasonably protects health, safety, morals, or general welfare of community.