Property

Question 1

All land-sales contracts have an implied warranty that requires the seller to convey marketable title, which is violated if

Answer 1

there is a future interest that does not agree to the transfer

Question 2

An easement holder may increase the manner, frequency, or intensity of an easement’s use so long as

Answer 2

that increase does not unreasonably damage or interfere with the use or enjoyment of the servient estate

Question 3

The doctrine of ademption by extinction causes

Answer 3

a devise of a specific asset to fail if a testator does not own it at the time of death

Question 4

The doctrine of anticipatory breach does not apply to leases, meaning that while the landlord may sue the tenant for rent as it becomes due, a landlord may not

Answer 4

sue for future rent under the lease

Question 5

The benefit of enforcing an equitable servitude is held only by

Answer 5

the original parties and their successors in interest

Question 6

If only one party in an at-will lease is expressly given the right to terminate the leasehold, the lease

Answer 6

may be deemed unconscionable and both parties will have the ability to terminate it (generally used against landlords)

Question 7

Vertical privity required for the passing of a covenant

Answer 7

Burdensome covenant: transfer of entire interest

Beneficial covenant: Any transfer of interest (includes lease)

Question 8

A covenant touches and concerns the land when it

Answer 8

Affects the land’s use or value

Question 9

Exceptions to a due-on-sale-clause include

Answer 9

Devises, descents, transfers to JT upon death; transfers to spouse or child; transfer to ex-spouse during divorce; transfers to borrower’s living trust; granting leasehold interest for less than 3 years without an option to purchase

Question 10

Under the common law exoneration-of-liens doctrine, the recipient of a specific devise of real property can

Answer 10

use remaining assets in the testator’s estate to pay off ANY encumbrances on that property (NOTE: abolished in most jurisdictions)

Question 11

Equitable servitudes differ from covenants in that

Answer 11

they are enforceable by injunction (rather than damages), and they do not require any form of privity to be formed

Question 12

A non-recourse loan is

Answer 12

secured by collateral, without the borrower being personally liable

Question 13

An easement by necessity is created when

Answer 13

(1) the dominant estate is virtually useless (e.g. landlocked) without the benefit of the easement
(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

Question 14

An equitable servitude can be implied from a common scheme if

Answer 14

(1) the owner intended to create a common scheme
(2) the intended servitude was restrictive, and
(3) persons to be bound had notice of the servitude

NOTE: cannot be enforced against lots sold before the common scheme arose

Question 15

A person who acquires property by adverse possession can only transfer ownership of the property

Answer 15

by deed

Question 16

Under the doctrine of estoppel by deed, a grantor who conveys an interest in land by warranty deed before owning it

Answer 16

Is estopped from later denying the effectiveness of that deed

Question 17

For a BENEFICIAL covenant to run with the land there must be

Answer 17

(1) writing, (2) intent, (3) touch & concern, and (4) vertical privity

Question 18

Due to the doctrine of equitable conversion, a judgement obtained against a seller after the execution of a land-sale contract

Answer 18

is not enforceable against the real property - even if the claim arouse before the contract was executed (e.g. sale closed)

Question 19

Easements are terminated by

Answer 19

END CRAMPS

Estoppel, Necessity ends, Destruction, Condemnation, Release, Abandonment, Merger, Prescription, State conditions

Question 20

A life tenant has the obligation to pay ordinary taxes on the real property, but only to the extent that

Answer 20

the life tenant receives financial benefit from the property.

When the life tenant occupies the land, the financial benefit is measured by its fair rental value

Question 21

Horizontal privity requires

Answer 21

An interest other than the covenant promise (e.g. grantor-grantee)

Question 22

A deed conveying a mortgage’s interest in the mortgaged property to a mortgagee in lieu of foreclosure allows the mortgagee to

Answer 22

Take immediate possession of the property without the formalities of a foreclosure

(HOWEVER - any junior interests remain attached to the property and the mortgagee’s interest is extinguished unless it was reversed)

Question 23

Termination may occur before the expiration of the term when the tenant surrenders the leasehold and

Answer 23

the landlord accepts the return of the leasehold

Question 24

A mortgagor in possession of the mortgaged property has a duty to

Answer 24

Not commit waste that would impair the mortgagee’s security interest in the property

Question 25

Private nuisance arises when

Answer 25

defendant’s interference with plaintiff’s use and enjoyment of his property is both unreasonable and substantial

Question 26

A deed purporting to transfer real property to a non-existent co-tenant is

Answer 26

void as to the non-existent co-tenant and creates TIC between grantor and other co-tenant(s) named in the deed

Question 27

A recorded deed that falls outside the chain of title is

Answer 27

a “wild deed” that fails (cannot be used) to give constructive notice to subsequent purchasers

Question 28

A third party owner of subsurface rights is strictly liability for any failure to

Answer 28

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

Question 29

Easement by prior use (implication) requires

Answer 29

(1) Common prior ownership
(2) Prior use of the land by the owner consistent with an easement
(3) Continuous / consistent and apparent use at the time of severance, and
(4) a reasonable necessity to the dominant estate’s use and enjoyment of their portion of the property

Question 30

For a BURDENSOME covenant to run with the land there must be

Answer 30

(1) writing, (2) intent, (3) touch and concern, (4) Notice, (5) Horizontal privity, and (6) Vertical privity

Question 31

Courts are reluctant to imply a landlord’s duty to repair commercial leases because

Answer 31

the implied warranty of habitability does not apply to commercial leases

Question 32

A co-tenant can acquire sole ownership of a co-owned property through adverse possession if

Answer 32

(1) ousts the other co-tenant by preventing them from using or accessing the property, and (2) meets the ECHO requirements for adverse possession

Question 33

A covenant is terminated by abandonment through

Answer 33

An affirmative act - more than simply neglect or misuse - shows a clear intent to relinquish the covenant

Question 34

Regarding a FSSCS, a grantor (or successor in interest) can enter and terminate the estate by

Answer 34

Affirmatively demonstrating an intent to terminate (exercise the “right of re-entry”)

Question 35

The owner of mineral rights is strictly liable for (1) __ and only negligently liable for (2) __

Answer 35

(1) Any failure to support the land and any buildings that predate the conveyance of those rights, provided the damage would have occurred in the land’s natural state

(2) Damage to improvements built after the mineral rights were conveyed

Question 36

For a judicially supervised foreclosure sale, the foreclosing mortgagee must

Answer 36

Give notice to the holders of any junior interests in the property to eliminate those interests

Question 37

The recording of a deed

Answer 37

is presumptive of delivery

Question 38

In order to end a lease before the end of its term by constructive eviction, the landlord must have breached a duty which

Answer 38

(1) Caused the loss of the substantial use and enjoyment of the premises,

and the tenant must

(2) Give the landlord notice of the problem and a reasonable opportunity to cure, and
(3) Vacate the property within a reasonable period of time

Question 39

Judgement creditors are

Answer 39

Not purchasers for value since the attachment of a judgement lien to a debtor’s property is merely a security for a pre-existing debt (no payment of value - no BFP protection)

Question 40

If the assumption of the mortgage was part of the buyer’s purchase price

Answer 40

the buyer may not raise defenses that the original debtor could have raised against enforcement of the mortgage obligation

Question 41

How does a lease affect a joint tenancy?

Answer 41

Some jurisdictions hold that it severs the JT, while others hold that it temporarily suspends the JT which resumes after the end of the lease

Question 42

What are the rights of co-tenants in a tenancy in common?

Answer 42

each co-tenant holds an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the co-tenant’s interest (extends to leasees of a co-tenant)

Question 43

Rent distribution among co-tenants

Answer 43

A co-tenant must account to other co-tenants for rent received from third parties, but can deduct operating expenses, including necessary repairs, when calculating net proceeds

Question 44

If the proceeds from a land sale contract exceed the amount of the outstanding mortgage, then

Answer 44

a title defect will be extinguished and the seller can deliver marketable title to the buyer upon closing

Question 45

When an easement is shared, the owner who maintains or repairs the easement may seek contribution from

Answer 45

(1) the other owners, and
(2) the servient-estate owner if they use the easement

Question 46

Upon a partial condemnation, a tenant must

Answer 46

continue to pay rent but is entitled to compensation for the portion of the leased property that was taken

(note: vs. complete condemnation where tenant duties are discharged)

Question 47

A liquidated damages clause is enforceable so long as the amount of liquidated damages is

Answer 47

reasonable (e.g. no more than 10% of the purchase price).

Note: It may not be enforced if the seller suffered no actual loss

Question 48

Lien priority is determined by the “first in time, first in right” rule unless

Answer 48

A recording act applies

Question 49

Since recording acts protect purchasers for value, they

Answer 49

offer protection to mortgage interests but not necessarily judgement liens

Question 50

A purchase-money-mortgage (PMM) will be given priority over

Answer 50

liens that arose prior to the PMM - even if it was not recorded

Question 51

When mortgaged property is transferred to a donee, the donee may

Answer 51

Assert the donor-mortgagor’s defenses against the mortgagee-lender (which a purchaser who assumed the mortgage may NOT do)

Question 52

Enforcement of a mortgage is subject to the same defenses as

Answer 52

the obligation for which the mortgage serves as a security (e.g. mistake, duress, lack of capacity, statute of limitations)

Question 53

A deed is void and unenforceable, even by a bona fide purchaser, if

Answer 53

(1) the grantor’s signature is forged
(2) the deed itself is forged, or
(3) the grantor is deceived about the nature of the executed document

Question 54

When only a portion of the leased property is condemned

Answer 54

The tenant’s duty to pay rent is not discharged

Question 55

The implied warranty of marketable title requires that the seller, at the time of closing, deliver title to the buyer that is

Answer 55

free from an unreasonable risk of litigation

Question 56

To satisfy the statutory period for adverse possession, an adverse possessor may tack on the predecessor’s time if

Answer 56

there is privity between them (satisfied through the possessor taking by non-hostile means e.g. devise, descent, contract, deed)

Question 57

Future Interests subject to RAP

Answer 57

(1) Contingent remainders
(2) Vested remainders subject to open
(3) Executory interests
(4) Powers of Appointment / Rights of First Refusal / Options

Question 58

Under the warranty of habitability for residential premises, a tenant must

Answer 58

notify the landlord of a defect and give reasonable time to repair

Tenant CAN: Refuse to pay rent, make reasonable repairs and deduct cost from future rent, or remain in possession, pay rent, and seek damages

Question 59

Elements of a valid deed

Answer 59

(1) Identification of parties
(2) Grantor’s signature
(3) Words of transfer (present intent)
(4) Reasonably definite property description

Question 60

An easement which fails to satisfy the SoF creates

Answer 60

a license

Question 61

A senior mortgagee who enters into an agreement with the mortgagor to modify the mortgage or the obligation it secures

Answer 61

subordinates his interest to a junior mortgagee’s interest to the extent that the modification is materially prejudicial to the junior mortgagee’s interest

Question 62

Under the doctrine of Marshaling of Assets

Answer 62

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

Question 63

Does a judicial lien imposed on a property owned in joint tenancy sever the rights of the joint tenants?

Answer 63

No

Question 64

A property owner whose nonconforming use predates a zoning ordinance may not

Answer 64

switch to another non-conforming use after an ordinance becomes effective

Question 65

The hardship for which a variance is sought may not be

Answer 65

created by the owner who seeks the variance

Question 66

In a jurisdiction that has adopted an anti-ademption statute

Answer 66

the devisee of the seller-decedent’s real property is entitled to the sale proceeds from the specific devise no longer in the testator’s possession

Question 67

An easement cannot be terminated by a merger if

Answer 67

there are any future interests (or other outstanding interests) in the dominant or servant estate.

When there is a future interest, use of the easement is suspended until the future-interest holder becomes entitled to possession

Question 68

Nonjudicial foreclosures are allowed in most states if the mortgage or deed of trust contains

Answer 68

a power-of-sale clause

Question 69

The court may overturn a nonjudicial foreclosure if

Answer 69

(1) the auction or sales process violated due process, or
(2) the purchase price was grossly inadequate

Question 70

May a seller of a residential property disclaim the duty of disclosing material defects?

Answer 70

Yes, so long as the seller has not fraudulently misrepresented or concealed the condition to the property

Question 71

Issues that relate to foreclosure but do not affect an interest in land (e.g. a lender’s right to sue the borrower before foreclosing on the mortgaged property) are determined by

Answer 71

the laws of the state with the most signifiant relationship to the transaction and the parties

Question 72

While a co-tenant is entitled to whole possession of the property, a co-tenant’s right to the natural resources of the land is

Answer 72

limited to the size of the co-tenant’s interest in the land

Question 73

A property owner may proceed with plans for non-conforming use after a zoning ordinance change if they have a vested right, which exists if at the time a zoning change takes effect

Answer 73

(1) The property owner has secured necessary permits in good faith, and
(2) The property owner has made substantial progress toward achieving the use

Question 74

The completion of standard mortgage-loan documents by a lender’s non-attorney employees is

Answer 74

not the practice of law so long as they are not exercising legal discretion in completing the documents it’s OK

Question 75

Fixtures attached to leased property by tenants must generally be removed before the lease terminates, but they can be removed within a reasonable time thereafter if

Answer 75

(1) the termination was not due to the tenant’s breach and
(2) the tenant could not have foreseen termination early enough to permit removal before the lease terminates

Question 76

A land seller must disclose unreasonably dangerous conditions if

Answer 76

(1) the condition exists at the time of the sale
(2) the seller knows or has reason to know of the condition and its risk
(3) the buyer does not know or have reason to know of the condition or risk, and
(4) the seller has reason to believe that the buyer would not discover or realize it.

Question 77

A co-tenant who wishes to purchase their interest in a property back after foreclosure in which another co-tenant purchases back the property must pay

Answer 77

a percentage of the co-tenant’s purchasing price equal to their interest in the property

(e.g. Bought for 100k, 4 co-tenants, each would have to pay $25k)

Question 78

Modification of a senior mortgage (or the obligation it secures) generally has no impact on the senior mortgagee’s priority over junior mortgages or liens, unless

Answer 78

the modification materially prejudices a junior interest (e.g., increase in interest rate)

Material prejudice will subordinate the senior mortgagee’s interest only as to the modification (mortgagee’s original interest will therefore remain superior to the junior interest)

Question 79

Unless otherwise stated, an easement appurtenant cannot be used

Answer 79

for the benefit of property other than the dominant estate (e.g. land purchased subsequent to the granting of the easement)

If there’s an increased burden on servient state because of this, damages are awarded.

If there’s no increased burden, an injunction may be granted

Question 80

A grantee has inquiry notice if

Answer 80

a reasonable investigation would have disclosed the existence of prior claims

Question 81

Under the implied warranty of fitness or suitability, the builder of a new residence asserts that

Answer 81

he used adequate materials and workmanship for the residence.

The implied warranty generally covers latent construction defects or problems that do not manifest themselves until after the sale

Question 82

A claim for breach of implied warranty of fitness or suitability may be brought

Answer 82

against builders, developers, and contractors within a reasonable time after discovery of defect by the initial homeowner-purchaser and (in a majority of jurisdictions) subsequent purchasers who did not contract directly with the developer

Damages = Cost of repairs to bring residence into compliance

Question 83

If a deed is silent or ambiguous as to the buyer’s (transferee’s) liability, then

Answer 83

the buyer takes title to the property subject to the mortgage

Question 84

A grantee who has actual, inquiry, or record (constructive) notice of a prior claim cannot

Answer 84

assert priority over that claim

Question 85

A tenancy at will terminates automatically when

Answer 85

the landlord conveys a present interest in the property to a 3rd party

Question 86

Under the doctrine of emblements

Answer 86

a tenant has the right to re-enter land to remove, harvest, and cultivate crops that the tenant planted before the tenancy terminated if the tenant’s lease was for an uncertain duration (e.g. periodic / at-will) and terminated through no fault of the tenant

Question 87

When one co-tenant seems indebted to the other (e.g. paid all taxes and failed to share profits), at partition a court

Answer 87

must grant a co-tenant’s request to partition and may require an accounting

Question 88

When executing a deed in lieu of foreclosure, in the majority of jurisdictions the merger doctrine does not apply meaning

Answer 88

the mortgagee that receives the deed in lieu of foreclosure is treated as having impliedly retained the right to foreclose on its mortgage - unless it has actual knowledge of a junior lien

Question 89

Under the riparian doctrine, water rights belong to

Answer 89

the owners of the land that borders the watercourse and owners may make any reasonable use of water that does not unreasonably interfere with downstream use

Note: Domestic (natural) use trumps commercial (artificial) use

Question 90

In order to redeem a property in default, a co-tenant must

Answer 90

pay the outstanding amount owed by all tenants, not just the co-tenants individual share

Question 91

Tenants cannot acquire

Answer 91

an easement by prescription over the leased premises or other lands owned by their landlord (not hostile)

Question 92

Nonjudicial foreclosures are allowed in most states if the mortgage or deed of trust contains a power-of-sale clause and may be subsequently overturned only if

Answer 92

the action or sales process violated due process or the purchase price was grossly inadequate

Question 93

A life tenant does not have a duty to pay current charges for land if they are

Answer 93

(1) not in possession of the property and
(2) do not receive rent or other income from it

Question 94

Absent a statutory or contractual obligation, a commercial landlord has no duty to make repairs unless

Answer 94

(1) the repair is so substantial that it would not ordinarily fall within the tenant’s common law duty to repair, or
(2) the repair would primarily benefit the value of the landlord’s property

(generally reserved for major structural damage)

Question 95

Statutory right of redemption v. Equitable right of redemption

Answer 95

Equitable right = before foreclosure

Statutory right = after foreclosure