Property

Question 1

Fee simple determinable (FSD)

Answer 1

Durational

so long as
until
while
during

Automatically terminates

Future interest? Grantor - possibility of reverter
third party - executory interest

Question 2

Fee simple subject to a condition subsequent (FSSCS)

Answer 2

Conditional language

but if
upon condition
provided that
if it happens that

Will terminate only if grantor affirmatively demonstrates intent to terminate

Future interest? Grantor - right of re-entry (must be specifically reserved)

Question 3

Fee simple subject to an executory interest

Answer 3

Limited by conditional language or durational language

Automatically terminates upon happening of event

Future interest? Executory interest

Question 4

Waste for LT

Answer 4

Not permissible. LT must make repairs for neglect up to the amount of income derived from property (or rental value if in possession)

Question 5

LT allocation of burdens

Answer 5

LT must pay taxes up to the amount of income derived from property or FMV rental value if in sole possession.

pre-existing mortgage obligations divided between LT and future interest holder

Question 6

Reversion

Answer 6

Held by a grantor following a Life Estate

Question 7

Possibility of Reverter

Answer 7

Future interest held by grantor following a FSD (not a life estate)

Question 8

Right of reentry

Answer 8

Future interest held by grantor following a FSSCS

Question 9

Remainder - vested vs. contingent

Answer 9

Future Interest Following a LE

Vested - at least one ascertainable grantee AND not subject to a condition precedent

Contingent - if either of the above elements is not satisfied

Question 10

Executory Interest

Answer 10

Future interest following a non-Life Estate

Question 11

Vested remainder subject to open vs vested remainder subject to complete divestment

Answer 11

Subject to Open - one class member is ascertainable but the class is subject to expand. RAP applies

Subject to complete divestment - Condition subsequent will completely divest the remainder.

Question 12

Springing vs shifting

Answer 12

Springing - Executory FI following the grantor

Shifting - Executory FI following a grantee

Question 13

RAP

Answer 13

Specific FI are valid only if they must vest or fail by the end of a life in being plus 21 years

Question 14

RAP applicability

Answer 14

pretty much applies to most future interests except those that go to the grantor

Does not apply to commercial ROFR or commercial options

Question 15

Measuring life RAP

Answer 15

the life directly related to the FI under RAP analysis

Question 16

Creation event RAP

Answer 16

as of the time the FI is created (intervivos vs. upon death)

Question 17

Class members RAP

Answer 17

bad as to one, bad as to all.

Rule of Convenience saves this - membership closes as soon as one member of the class holding the FI is entitled to possession of the property

Question 18

Severance of a joint tenancy

Answer 18

mortgages - title vs lien theory

judicial liens - does not sever unless foreclosed upon

Lease - some say it automatically terminates, others say it temporarily suspends the joint tenancy

Question 19

Periodic Tenancy vs. Tenancy for years

Answer 19

Periodic tenancy has no fixed termination date. Tenancy for years does.

Question 20

Landlord’s right to future rents

Answer 20

Most states do not allow anticipatory repudiation with respect to leases and therefore the landlord is NOT entitled to future rents. But, landlord is entitled to past rents. The duty to mitigate damages is a separate issue, because even under this doctrine the landlord could just wait and sue for all past rents, but duty to mitigate prohibits that.

Minority rule says that landlord can get future rent, but only measured as difference between future rent and either (1) the reasonable rental value for the future, or (2) the actual rent collected upon re-letting.

Question 21

Constructive Eviction (breach of the implied warranty of quiet enjoyment)

Answer 21

If the landlord breaches the covenant of quiet enjoyment, the tenant may be excused from paying rent if the following happens:

1 - substantial intereference by landlord with tenant’s right to use and enjoyment of property
2 - T gives notice of the problem
3 - L fails to fix the problem
4 - T must vacate within a reasonable period of time thereafter

Question 22

Tenant remedy for breach of warranty of habitability

Answer 22

If the landlord breaches the implied warranty of habitability, the tenant can do the following:

1 - T notifies L and gives reasonable time to repair
2 - T can refuse to pay rent, make reasonable repairs and deduct the rent, or remain in possession and pay rent and then seek for damages

Does not include right to vacate

Question 23

Assignment vs Sublease

Answer 23

Assignment - T gives A-T remaining term on lease. A-T still liable to L because A-T is in privity of estate with L

Sublease - T gives S-T a portion of the remaining term. S-T is not in privity or estate or contract with L, and therefore is not liable.

T remains liable to L under privity of contract

Question 24

SoF satisfaction

Answer 24

writing, signed by party to be charged, and contain essential terms (parties, property description, price)

A valid deed will satisfy the SoF (words of transfer, both parties, property description, grantor’s signature), but only as to the grantor.

Exceptions, two of the three happens:

1- buyer takes possession of the land
2 - buyer remits part or all of K price
3 - buyer makes substantial improvements to property

OR, detrimental reliance

Question 25

Deed Delivery

Answer 25

execution and recording of the deed - presumption that it is presently operative

transfer of deed to third party is NOT delivery if the grantor retains an absolute right to recover the deed

Question 26

Warranty Deed

Answer 26

Seisen
Encumbrances
right to Convey

Quiet enjoyment
Warranty
further Assurances

Question 27

Restraints on alienation

Answer 27

total prohibition on alienation is invalid

BUT,
forfeiture or promissory restraints on life estate or future interest are valid

Question 28

Easement by necessity

Answer 28

Land held in common ownership
Severance created necessity
property virtually useless without easement

Question 29

Easement by implication

Answer 29

land held in common ownership

Quasi-easement (common owner used the land before severance to cross, easement benefited the other portion of the land)

Prior use was continuous, apparent, and known

Use of easement is reasonably necessary to the use and enjoyment

Question 30

Termination of Easement

Answer 30

Release (must comply with SoF)

Merger

Abandonment - mere non-use is not enough

Destruction or end of necessity

Question 31

Real Covenant

Answer 31

Writing

Intent

Touch/Concern

Notice (burden only)

Privity - Horizontal (burden only)

Vertical - total for burden to run, partial for benefit to run

DAMAGES

Question 32

Equitable Servitude

Answer 32

Writing

intent

Touch/Concern

Notice (only if it will be enforced against purchaser)

INJUNCTION

Question 33

Implied Reciprocal Servitude

Answer 33

Intent to create servitude on all plats (common scheme)

Must be a negative servitude

Notice by party against whom enforcement is sought

Question 34

Which subsequent owner of property can assert the same contract defenses against the mortgagor - donee or purchaser?

Answer 34

Only the donee

A purchaser of property cannot avoid the assumed mortgage, this would be considered unjust enrichment of the purchaser.

Question 35

Condemnation of rental property - excuse to pay rent?

Answer 35

If total condemnation, then yes.

If partial, no. tenant must pay rent but is entitled to compensation from condemnation

Question 36

Implied warranty of fitness

Answer 36

For new homes

warrants use of adequate materials and workmanship, includes latent defects.

Question 37

Mortgages - subject to vs assume

Answer 37

Original mortgagor (OM) is free to sell mortgaged property. But, absent a novation, the OM remains personally liable for the debt.

The subsequent buyer’s personal liability depends on:
-subject to - not personally liable
-assume - buyer become primarily personally liable, mortgagor becomes secondarily liable

Question 38

When is a deed void?

Answer 38

An undelivered deed is void, not simply voidable. Meaning a BFP will not succeed if the original deed was never delivered.

Question 39

When does a modification of a senior mortgage lead to a loss in priority over junior interests?

Answer 39

Only if it materially prejudices the junior interests.

A time extension is not materially prejudicial.

Question 40

Riparian vs. Prior appropriation doctrine

Answer 40

Riparian - as long as it does not unreasonably interefere downstream

Prior appropriation - first in time, first in right

Question 41

Adverse Possession

Answer 41

ECHO

Exclusive
Continuous
Hostile
Open and notorious

Constructive AP? Receive under color of title, possession of part leads to possession of whole

Question 42

Attractive Nuisance Doctrine

Answer 42

(1) artificial condition exists on property
(2) owner knows or has reason to know that condition is attractive to children and poses a risk of death or serious bodily injury to children
(3) children cannot appreciate the danger because of their youth
(4) utility is slight compared to cost of prevention
(5) owner fails to use reasonably care and caution to protect children