Property

Question 1

Adverse Possession

Answer 1

title to real property may be established through adverse possession. Adverse possession requires that the possession be 1) actual; 2) exclusive; 3) open and notorious; 4) adverse under a claim of right; 5) continuous for the statutory time period.

Actual Acts of possession must be consistent with how a reasonable owner of the land would have used the possession.

Open and notorious means that acts are so visible and obvious that a reasonable owner who inspects the land will receive notice of an adverse title claim. It can’t be hidden from the owner.

Adverse under a claim of right:
- majority view: claimant uses land as a reasonable owner would without permission from the owner.
minority view: claimant subjectively and under good faith believes he owns the land

In most states, payment of taxes is not necessary to establish a claim of title through adverse possession, but it does lend credence to a claim.

Question 2

Assignment

Answer 2

An assignment occurs when the tenant transfers the entire remaining interest in the lease to a third person (assignee)

Absent an express prohibition in the lease, a tenant may transfer his interest in the leasehold estate. It is permissible for a lease to contain a provision against assignment without the consent of the landlord.

Generally a landlord may withhold consent for an assignment for any reason, unless it violates public policy.

Question 3

Bona Fie Purchaser

Answer 3

To qualify as a bona fide purchaser, a person must pay valuable consideration for the interest, and must not have actual, inquiry or record (constructive) notice of the prior interest.

Question 4

Cavaet Emptor

Answer 4

at common law there were no implied warranties in the sale of a home. This approach was known as the “buyer beware” approach and has been abandoned with respect to new homes.

Question 5

Constructive Eviction

Answer 5

constructive eviction is based on a tenant proving that the landlord breached a duty to the tenant, the breach caused a loss by the tenant to the substantial use and enjoyment of the premises, the tenant gave the landlord adequate notice and opportunity to repair, and the tenant vacated the premises in a reasonable amount of time.

Question 6

Covenant against Encumbrances

Answer 6

in the covenant against encumbrances, the grantor assures that the interest is free from any encumbrances against the title or interest including mortgages, easements, servitudes, etc.

This is a present covenant which means it is breached at the time of the initial conveyance and does not run with the land to remote grantees.

Question 7

Covenant of right to convey

Answer 7

the covenant of the right to convey is a covenant that the grantor has the legal right to transfer the title.

Question 8

Covenant of Seisin

Answer 8

the covenant of seisin is a covenant that the grantor owns the land and that the deed purports to convey to the grantee (i.e they don’t just have a life estate).

Question 9

Damages - Abandonment and Surrender

Answer 9

Where the landlord repossesses the property, the tenant’s liability will depend on whether or not the landlord accepted surrender of the premises.

If the landlord accepts surrender, the abandoning tenant is free from rent liability accruing after abandonment.

If the surrender is not accepted, then the landlord could sue the tenant for damages consisting of unpaid rent as well as the difference between future rent and the fair market or re let rental value

Question 10

damages - easement

Answer 10

Damages are only recoverable to the extend the breached covenant reduced the value of the land. Where there is an easement, the measure is the value of the land not subject to the easement, minus the value of the land restricted by the easement.

Question 11

Deed Requirements

Answer 11

to be valid, a deed must 1) identify the buyer and seller; 2) describe the land subject to the conveyance; 3) contain words denoting a present intent to convey; and 4) be signed by the grantor.

Some courts have upheld deeds where the grantee’s name is missing if the deed contains language providing a method for ascertaining the grantee’s identify in some other way (e.g. to the grantor’s son” or to the trustee of my trust”

Question 12

Duty to Mitigate

Answer 12

traditionally the landlord has no duty to mitigate damages, but the landlord was limited to sue only for the recover of rent due at the time of the suit, and not rent in the future.

Under the modern view, a majority o course hold that a landlord has a duty to make reasonable efforts to mitigate damages.

Question 13

Easement - Abandonment

Answer 13

Abandonment can extinguish an easement when the owner of the easement demonstrates through physical action the intention to permanently abandon the easement.

Nonuse does not automatically give rise to the abandonment.

Question 14

Easement Appurtenant

Answer 14

An easement appurtenant arises when there are two parcels of land, one dominant or benefited by the easement, and the other servient or subject to the easement.

Question 15

Easement by Estoppel

Answer 15

an easement by estoppel is created when 1) a license is granted; 2) the licesnee spends substantial money or labor in good faith reliance on the licensed not being revoked and 3) the licensor knew or should have known that the reliance would occur.

Question 16

Easement by Implication or Prior Existing use

Answer 16

An easement can be created by implication from existing use if prior to the time the track is divided 1) the use exists on the servient parcel that is reasonably necessary for the enjoyment of the dominant parcel and 2) the parties intended the use to continue after division of the property.

To give rise to an easement, the use must be existing, apparent and continuous at the time the track is divided.

There must be reasonable recessity for use at the time of severance.

Question 17

Easement by Necessity

Answer 17

An easement by necessity is created when 1) severance of title to land is held in common ownership and 2) there is strict necessity for the easement at the time of severance.

Under the old view, if the owner had any legal means to reach their property, regardless of how expensive or impractical it was, there was no strict necessity.

Under the modern view, courts apply a reasonable necessity approach.

Question 18

Easement by Prescription

Answer 18

An easement by prescription is created when 1) use is open and notorious - can not be hidden, must be visible; 2) use is adverse under a claim of right; and 3) use is continuous and uninterrupted for the statutory time period.

For use to be adverse under a claim of right:
- the majority view uses an objective test which says that the claimant must use land as a reasonable owner would without permission from the servient owner.
- the miniority view takes the position of a subjective test, where the claimant must have a good faith belief that he is entitled to use the land.

For use to be open and continuous, it does not mean that it needs to be constant (i.e. seasonal).
However if the servient owner interrupts claimants use, then the continuity ends.

Question 19

Easment

Answer 19

An easement is a non-possessory interest to use the land possessed by another.

Question 20

Effect on severing a Joint Tenancy

Answer 20

When a joint tenant severs one of the four unities, the joint tenancy terminates and creates a tenancy in common.

Question 21

Equitable Conversion

Answer 21

Upon the doctrine of equitable conversion, upon signing of the eland contract each party is entitled to specific performance.

The buyer owns the real property and the seller owns the sale proceeds as his personal property.

If seller dies prior to closing, the takers of real property under a will must transfer the title to the buyer at closing. The proceeds from the sale transfer to the takers of personal property.

Question 22

Express Easement

Answer 22

An express easement is voluntarily created a written instrument. It must: 1) be in writing and signed by the grantor; 2) identify the grantor and grantee; 3) contains words that manifest intent to create the easement; and 4) describe the affected land.

Question 23

Fee Simple Determinable

Answer 23

A fee simple determinable means that a grantor conveys land in fee, granting an absolute interest in the grantee unless the grantee violates a specified condition.

The grantor holds a possibility of reverter in the land meaning, if the condition is violated the land reverts back to him and his future interest holders.

The possibility of a reverter need not be exercised and applies automatically after the condition is violated by the grantee

Question 24

Fee Simple Subject to a Condition Subsequent

Answer 24

A fee simple subject to a condition subsequent means that the grantor conveys the land in fee, granting an absolute interest in the land unless the grantee violates a specific condition.

Unlike a fee simple, if the condition is violated the grantor must exercise a “right of reentry” to reobtain interest in the land.

Where a conveyance is ambiguous, the court has held that there isa presumption of a fee simple subject to condition subsequent. This is based on the court’s reluctance to find forfeiture.

Question 25

First in Time, First in Right

Answer 25

Under the common law, where there are multiple grantees with interest in the same land, the rule is first in time, first in right.

This means that the first grantee to establish an interest in the property prevails over subsequently acquired interests.

Question 26

Future Advance Mortgage

Answer 26

When a lender advances funds to a borrower over a fixed period of time, the lender secures a mortgage on the property for the entire amount of money it has agreed to lend, including any future advances.

Question 27

General Warranty Deed

Answer 27

a general warranty deed warrants against all defects in title including those attributable to the grantor’s predecessors. There are three present covenants and three future covenants.

present covenants include the 1) right to covey; 2) the covenant of seisin; and 3) the covenant against encumbrances.

The future covenants include 4) the covenant of quiet enjoyment; 5) the covenant of further assurances; and 6) covenant of warranty.

Question 28

Implied Warrant of Habitability

Answer 28

Although there is an implied warranty of habitability to make repairs of a residential lease which can give rise to a constructive eviction; in a commercial lease the landlord is only obliged to make repairs to common areas, fix structural defects, or make repairs mandated by public authorities.

Question 29

Implied Warranties in New home

Answer 29

All new homes have an impled warranty of fitness, quality and habitability that the home is free from all latent defects. this means that the home is constructed in a reasonably workmanlike manner and is fit for human habitation.

Question 30

Implied warranty of fitness - new homes - remote owner

Answer 30

courts are split as to whether a subsequent owner or remote grantee can recover damages based on the implied warranty for fitness and habitability.

Question 31

Inquiry Notice

Answer 31

A party is charged to have inquiry notice of any discernible interest that a visual inspection would have revealed on the premises and what would have been revelaed based on a reasonable inquiry.

Question 32

Joint Tenancy

Answer 32

A joint tenancy is created when an interest is conveyed with the four unities - time, title, interest and possession.

To create a joint tenancy there must be intent and a clear expression of survivorship language such as “with the right of survivorship.”

Question 33

Landlord remedy for tenant breach

Answer 33

If the tenant unjustifiably abandons the property, the landlord can either do nothing and sue for damages or the landlord may repossess the property.

Question 34

Lease - Statute of Frands

Answer 34

In most states the statue of frauds requires that leases of more than one year be in writing

When a tenant takes possession under a lease that does not satisfy the statute of frauds, it may be considered a tenancy at will.

When the tenant takes possession and the landlord accepts rent from the tenant, a periodic tenancy is created based on partial performance.

Question 35

Lease for Years

Answer 35

a lease for years is for a fixed period of time with a fixed beginning and end date.

the lease cannot be terminated by the tenant prior to the set end term, but a tenant may terminate if the tenant is constructively evicted.

Question 36

Lien Theory

Answer 36

the lien theory allows for the mortgage to be treated as a lien and does not terminate the joint tenancy.

Question 37

Merger Doctrine

Answer 37

The merger doctrine holds that contractual warranties merge into the deed, so any guarantees made in the land sale contract that are not reflected in the deed are extinguished when the deed is conveyed to the buyer.

Question 38

Mortgage Assumption

Answer 38

A grantee may assume the mortgage when the grantee signs a written agreement to may the mortgage loan. If this occurs, then the grantee is primarily and personally liable for the mortgage.

Some jurisdictions allow for a grantee who did not expressly assume a mortgage to do so through implication when the grantee paid the seller the difference between the value of the house and the outstanding balance on the mortgage.

Question 39

Mortgage Priority

Answer 39

When a lender advances funds to a borrower over a fixed time period, the lender secures a mortgage on the property for the entire amount of money it has agreed to lend, including any future advances.

Question 40

Mortgage Theories

Answer 40

Whether a mortgage taken by a joint tenant severs the joint tenancy depends on whether the jurisdiction is a lien theory or title theory jurisdiction.

Question 41

Non conforming use

Answer 41

a non conforming use is one that was once a lawful use on the land that is now disallowed by the new zoning ordinance

Question 42

Notice Jurisdiction Statute

Answer 42

in a notice jurisdiction, a subsequent bona fide purchaser for value take the property free of another party’s interest, unless the purchaser has notice of the interest.

Question 43

Obligatory Advance

Answer 43

When the advance is obligatory, as opposed to optional, any future advances will have the same priority as the original mortgage.

Question 44

Optional Advance

Answer 44

Where the advance is optional, and a senior lender has notice of a junior lien, the advance will lose priority to the junior lien.

Question 45

Periodic Tenancy - Terminations

Answer 45

A periodic tenancy automatically renews until notice of proper termination is given by either party.

For leases that are less than a year, proper notification requires that a full period in advance be provided. That is, where there is a month to month periodic tenancy, one-month notice is required of termination.

Many states require notice of termination to be in writing and be delivered.

Question 46

prior non conforming use

Answer 46

prior non conforming uses are grandfathered in and permitted to continue. This is justified based both on the fairness and practical monetary grounds to protect the investment-backed expectations of persons who purchased property in reliance on the law that was in place at the time of the purchase.

A prior non conforming use cannot be extended or intensified in ways that constitute a substantial change. Where there are doubts as to whether a change is substantial or insubstantial, any doubts are resolved against the change.

Question 47

Privity of Contract

Answer 47

Absent a release and novation, privity of contract continues to exist between the landlord and the tenant, and the tenant may be held liable on her original contractual grounds if the assignee fails to pay.

Question 48

Privity of Estate

Answer 48

When a tenant assigns his interest in the lease, privity of estate arises between the assignee and the landlord

Question 49

Quitclaim Deed

Answer 49

a quitclaim deed is a release of whatever interests the grantor has in the property to the grantee. It contains no warranties so the grantor is not liable to the grantee for any contested interests on the property.

Question 50

Record Notice

Answer 50

Record or constructive notice puts the world on notice of an interest by formally recording the deed. A subsequent purchaser will have record notice of only deeds that are recorded in the chain of title.

Question 51

Recording priority

Answer 51

An interest in property that arises prior in time and was recorded before another interest in the property take priority over the second interest regardless of the recording statue

Question 52

Remainder Interests

Answer 52

the right to succeed to ownership of the property upon the expiration of the life estate is called a remainder.

When land is conveyed in a will, for the beneficiaries to take they must be in existence and identifiable at the time they are to take. If an interest is given to a particular class, such as the testator’s childern, the child must be in existence and able to take (i.e. satisified all conditions precedent) at the time they are to take the conveyance.

If the child dies before it is their time to take or fails to satisfy a condition precedent, he or she is treated as predeceased and his or her interest is divided between the surviving class members.

Question 53

Remedy for Landlord’s breach

Answer 53

if constructive eviction is shown, it is a defense to a landlord’s action for unpaid rent.

Question 54

Shelter Doctrine

Answer 54

Under the shelter doctrine a person who takes from a bonafide purchaser will prevail against any interest that bonafide purchaser would have prevailed against.

This is true even where the subsequent purchaser had actual notice of the previous encumbrance.

Question 55

Subject to a Mortgage

Answer 55

When land is sold by a mortgagor, the subsequent owner (grantee) takes the land subject to a recorded mortgage on the land. The buyer is not personally liable for the mortgage even upon default.

Question 56

Surrender

Answer 56

upon surrender, a tenancy of years may also terminate. Surrender occurs when the tenant gives up his interest in the leashold estate in writing (where the unexpired term is more than 1 year), with no intent to return and defaults on rent.

Retention of keys by a landlord alone does not constitute acceptance of surrender. Such an act must be coupled with other evidence showing that the landlord accepted the surrender.

Question 57

Tacking

Answer 57

Continuous posession can be through one person’s possession or by takcing where successive owners are in privity of estate. Tacking allows parties in privity to add together years of possession in order to meet the statutory time period.

Question 58

Tenancy in Common

Answer 58

The statutory presumption is that a conveyance to two or more persons creates a tenancy in common.

A tenancy in common allows for 1) a separate but undivided interest in the property; 2) the right to possess and enjoy the entire property; and 3) the right to transfer interest in the property during lifetime or at death.

Question 59

Termination of an easment

Answer 59

An easement may be extinguished by merger when the dominant and servient estate are owned by the same person.

Question 60

Title Theory

Answer 60

the title theory view is that the mortgagee is granted title to the property until the mortgage is paid, so this severs on of the four unities and creates a tenancy in common.

Question 61

Wild Deed

Answer 61

A wild deed is unrecorded and so unconnected to the chain of title, so a subsequent purchaser is not held to have constructive notice of a wild deed.

Question 62

Zoning Ordinance

Answer 62

Zoning ordinances are statutory laws that are enacted to establish land use regulations for properties in a specified area.