Property

Question 1

Covenants - burden v. benefit

Answer 1

A successor of an owner of the servient, or burdened, land is only liable under a covenant if the burden runs to that owner. Likewise, the successor of an owner of the dominant, or benefitted, land may only enforce a covenant if the benefit of the covenant runs to that owner

Question 2

Is a co-tenant entitled to reimbursement?

Answer 2

Repair costs (even if the repairs are necessary) are NOT divided between the cotenants
(i.e., there is no right for reimbursement for necessary repair costs). However, the
cotenant who pays for the repairs can get credit for the repairs in a partition action.

Question 3

Adverse Possession

Answer 3

Adverse possession allows a trespasser in unlawful possession of land owned by another to acquire title to that land if their possession is:

Continuous for statutory period

Open and Notorious

Exclusive

Actual

Hostile

Question 4

Adverse Possession - Tacking

Answer 4

An adverse possessor can tack on the time of possession of a
prior adverse possessor to meet the statutory period requirement if the
adverse possessors are in privity with one another (i.e., the transfer of
land was voluntarily agreed upon).

the previous person MUST’ve been an AP to tack!!!

Question 5

When mortgagee does not get mortgage at same time as loan

Answer 5

Mortgagees are considered to have “paid value” and are protected by the recording acts, unless the mortgage is not given simultaneously with a loan (such as when the mortgage is given after the loan is created).

Question 6

Presumption for easements appurtenant

Answer 6

Easements are presumed to be appurtenant (i.e., tied to the land) unless there are clear facts to the contrary. An easement appurtenant is transferred with the land to which it relates.

Question 7

Defeasible Feee

Answer 7

A defeasible fee is a conveyance in fee simple in which the grantor places express
conditions on the conveyance (e.g., “O to A on the condition that . . .”). A defeasible fee
is capable of lasting forever, but may be terminated by the occurrence of an event.

3 Types:
FS Determinable

FS Subject to Condition Subsequent

FS Subject to Executory Interest

Question 8

FS Determinable

Answer 8

o Limited by specific durational language (e.g., “so long as,” “while,” “during,” “until”)

o Automatically terminates upon happening of the stated event

o Future interest: Grantor (or his successor in interest) retains possibility of reverter; or
if the future interest is in a third party, it is an executory interest

Question 9

FS Subject to Condition Subsequent

Answer 9

o A present fee simple that is limited by specific conditional language (e.g., “upon
condition that,” “provided that,” “but if,” or “if it happens that”)

o Will terminate only if the grantor affirmatively demonstrates intent to terminate

o Future interest: Grantor reserves right to terminate estate upon happening of a
stated event; grantor must specifically retain right to reenter

Question 10

Magic words for FSSCS v. for FS Determinable

Answer 10

FSSCS: specific conditional language (e.g., “provided that,” “on condition that,” “but if”)

FSD: Specific durational language (e.g., “so long as,” “while,” “during,” “until”)

Question 11

What if grantor does not explicitly retain the right to terminate the FSSCS??

Answer 11

In the conveyance, the grantor must explicitly retain the right to terminate the fee simple subject to a condition subsequent (known as the “right of entry,” “right of reentry,” or “power of termination”).

Failure to assert is not waiver.

When the grantor fails to retain this right, a court may find that the condition constitutes only a covenant

OR

Court may be willing to imply a power of termination when none was expressly set forth in the deed.

Question 12

FS Subject to Executory Interest

Answer 12

o A present fee simple that is limited by specific conditional language
o Automatically terminates upon happening of the stated event, and title passes to a
third party
o Future interest: Executory interest held by the third party (i.e., someone other than
the grantor)

Question 13

Life Estate

Answer 13

If measured by the grantee’s life, not devisable/descendible by the grantee;

if measured by another’s life, LE may be devisable/descendible

-Right to possess
o Right to collect rents, lease/sell/mortgage (must pay taxes on financial benefit from
the land)

Question 14

Life Estate Holder

Answer 14

Their rights are limited by the doctrine of waste.

Holder of any future interest—may bring suit against LT for an injunction

Question 15

Executory Interests

Question 16

Life Tenant - Burdens

Answer 16

—LT must pay property taxes to the extent LT receives a financial benefit from the land;

if the life tenant occupies the property, he is responsible for property taxes only to the extent of the fair rental value of the property.

–pre-existing mortgage obligations and assessments for public improvements are allocated between LT and future interest holder - if just interest, LT, if interest and principal, BOTH

Question 17

What happens when LT or Future interest holder pays the others mortgage ?

Answer 17

When the holder of a future interest pays the outstanding mortgage obligation because the life tenant fails to do so, the holder can bring an action against the life tenant personally to recoup his payment of the life tenant’s portion of the obligation, but only to the extent of the life tenant’s financial benefit from the property.

A life tenant who pays a future interest holder’s mortgage obligation is entitled to a similar remedy.

Question 18

Remainder v. Executory Interest

Answer 18

Remainder’s present possessory interest occurs upon NATURAL expiration of the previous estate (life estate, estate for years)

Whereas executory interest (which can follow a defeasible fee) CUTS short the previous interest

Question 19

Vested Remainder

Answer 19

not subject to any conditions precedent and is created in an ascertainable grantee.

to B for life, then to C and his heirs.” Here, the grantee, C, has a vested remainder. There are no preconditions on C’s entitlement to his remainder interest and C, as the designated individual, is an ascertainable grantee.

Question 20

Vested Remainder Subject to Open

Answer 20

Comes up when remainder interest is transferred to group - e.g. children, grandchildren

aleast one member of the group is individually ascertainable and entitled to the remainder interest, but that person’s interest may be subject to being shared with other members of the group

“to my son for life, and on his death to his children.”

Question 21

Vested remainder subject to complete divestment

Answer 21

A conveys Blackacre “to B for life, and then to C; but if C has no children, then to D’s children.” C has a vested remainder interest, but if he is not survived by his children at the time of B’s death, then C’s interest will be divested.

Question 22

Contingent Remainder

Answer 22

Grantee that is UNASCERTAINABLE or r if it is subject to an express condition precedent to a grantee’s taking which has not occurred yet.

A conveys Blackacre “to B for life, and on his death to his children.” When A conveys Blackacre, B does not have any children. B’s unborn children have a contingent remainder.

Question 23

Rule in Shelleys case

Answer 23

Abolished in most places!!

A conveys Blackacre “to B for life, remainder to B’s heirs.” If the Rule in Shelley’s Case applies, then after merger of the present and future estate, B owns Blackacre in fee simple absolute. If the Rule in Shelley’s Case has been abolished, then B has a life estate and B’s heirs have a contingent remainder in Blackacre.

Question 24

Doctrine of Worthier Title

Answer 24

Not common today

A conveys Blackacre “to B for life, remainder to A’s heirs.” If the Doctrine of Worthier Title applies, then B has a life estate, and A has a reversion, unless a contrary intent is established. If this doctrine has been abolished, then B has a life estate, and A’s heirs have a contingent remainder.

Question 25

Executory Interests

Answer 25

An executory interest is a future interest in a third party that is not a remainder and that generally cuts the prior estate short upon the occurrence of a specified condition.

There are two types of executory interests: shifting executory interests and springing executory interests.

Question 26

Shifting Executory Interest

Answer 26

A shifting executory interest divests the interest of the grantee by cutting short a prior estate created in the same conveyance. The estate “shifts” from one grantee to another on the happening of the condition.

A conveys Blackacre “to B and his heirs, but if C returns from Paris, then to C.” This conveyance creates a fee simple subject to an executory limitation in B and a shifting executory interest in C.

*doesnt apply to FS determinable

Question 27

Springing Executory Interest

Answer 27

A springing executory interest divests the interest of the grantor or fills a gap in possession in which the estate reverts to the grantor.

A conveys Blackacre “to B for life, and one year after B’s death to C and his heirs.” This conveyance creates a life estate in B, a one-year reversion in A (in fee simple subject to an executory limitation), and a springing executory interest in C.

Question 28

Rule Against Perpetuities

Answer 28

Under the Rule Against Perpetuities (“Rule”), specific future interests are valid only if they must vest or fail by the end of a life in being plus 21 years, with a fraction of a year added for the term of gestation in cases of posthumous birth.

Ex. : A conveys Blackacre “to B for life, and then to the first male descendant of B, then to C.” This provision violates the Rule because it may be many generations before there is a male descendant of B, if at all.

Question 29

Are remainders transferable?

Answer 29

Remainders, both vested and contingent, and executory interests are alienable during life, and upon death devisable and, if not devised, descendible.

Question 30

What future interests does RAP apply to?

Answer 30

Contingent remainders, vested remainders subject to open, executory interests, and powers of appointment.

Rights of first refusal and options may also be subject to the Rule unless they arise in commercial transaction

Trust interest/beneficiaries may be subject to rule too

Question 31

Effect of Violating RAP

Answer 31

If a future interest fails to satisfy the Rule, then only the offending interest fails. In the rare case when the voiding of the future interest undermines the grantor’s intent, the entire transfer is voided.

Question 32

Rule of Convenience for glass gifts

Answer 32

Rule of interpretation re RAP.
Can operate to prevent the application of the Rule to a class transfer. Under this rule, membership in a class closes whenever any member of the class is entitled to immediate possession of a share of the class gift.

Question 33

General RAP Rule RE transfer to a class

Answer 33

If the transfer of a future interest is made to a class, and the Rule voids a transfer to any member of a class, then the transfer is void as to all class members, even those whose interests are already vested (i.e., “bad as to one, bad as to all”).

rule of conveninece can act as a savior in this situation^^

Also 2 exceptions to this rule:

1. transfers of a specific dollar amount to each class member (e.g., “$50,000 to each grandchild who survives his parent”) and
2. transfers to a subclass that vests at a specific time (e.g., “to the children of B, and upon the death of each, to that child’s issue”)

Question 34

Can joint tenant devise their interest?

Answer 34

A devise (i.e., a conveyance by will) by a joint tenant of his property interest is not given effect. Instead, the property passes automatically to the remaining joint tenants due to the right of survivorship.

Answer 35

A joint tenant may grant a mortgage in her joint tenancy interest. But the effect on severance depends on jdx: lien theory v. title

-In lien theory states (the majority), the mortgage is only a lien on the property; the granting of a mortgage does not sever the joint tenancy, and severance occurs only upon a foreclosure sale following a default.

-In title theory states (the minority), the granting of a mortgage by a joint tenant constitutes a transfer of title; the joint tenancy is between the mortgagee and the other joint tenants, and it is severed and converted into a tenancy in common; if there is more than one remaining joint tenant, however, they continue to hold their property interests with each other as joint tenants.

Question 36

Co-tenants - property related obligations

Answer 36

A co-tenant who pays more than his share of necessary property related expenses (e.g., property taxes, mortgage payments), generally can compel the other co-tenants to contribute based on the ownership interest of each co-tenant. A co-tenant in sole possession of the property can collect only to the extent that those expenses exceed the rental value of the property.

Question 37

Can a co-tenant compel other co-tenants to share in the expenses for repairs?

Answer 37

They cannot bring an action for contribution.

However,
A co-tenant may, in some jurisdictions, maintain a separate action for contribution if the other co-tenants were notified of the need for the repair. If there is an action for accounting or partition, necessary repair expenses can be recouped indirectly (e.g., repair expenses can offset rental income received from a third party

Question 38

Fair Housing Act

Answer 38

Prohibits discrimination in the sale, rental, and financing of homes and in other housing-related transactions (such as advertising, homeowner’s insurance, and zoning).

The FHA prohibits discrimination based on race, color, religion, national origin, sex, disability, and familial status.

Question 39

Types of Tenancies

Answer 39

i) Tenancy for years;

ii) Periodic tenancy;

iii) Tenancy at will; and

iv) Tenancy at sufferance.

Question 40

Tenancy for Years

Answer 40

SoF applies if the term is longer than a year.

Lease must include

The lease agreement must be in a writing that:

i) Identifies the parties;

ii) Identifies the premises;

iii) Specifies the duration of the lease;

iv) States the rent to be paid; and

v) Is signed by the party to be charged.

Question 41

What’s a mortgage

Answer 41

A mortgage is an interest in real property that serves as security for an obligation. The obligation may be owed by the person who conveys the interest (i.e., the mortgagor) or a third party. The mortgagee is the person with the security interest in the real property, typically a bank.

Two components: The mortgage and the promissory note

Must satisfy SoF

Question 42

Mortgage Alternatives

Answer 42

Deed of Trust

Installment Land Contract / contract for deed

Absolute Deed

Conditional Sale and Repurchase

Question 43

Installment Land Contract

Answer 43

The seller finances the purchase in an installment land contract retaining title until the buyer makes the final payment on the
installment plan.

Traditionally, ILC contract allowed seller to keep all isntallment payments and retake land upon failure to make a single payment. Now, states vary in their methods to assist a buyer in default

Question 44

Deed of trust

Answer 44

Alt. to mortgage

A deed of trust operates like a mortgage, but involves three
parties:

(a) The borrower;
(b) The lender; AND
(c) A third-p

Question 45

Absolute Deed

Answer 45

An absolute deed is an instrument used by the borrower to
transfer the deed to the property instead of conveying a security interest in
exchange for a loan.

Question 46

Conditional Sale and Repurchase

Answer 46

When real property is sold and then leased back to the seller, usually for a long period of time with the option to repurchase the property, the transaction may constitute the creation of a security interest in the property, a disguised mortgage, rather than a sale-leaseback arrangement

Question 47

When the borrower-mortgagor transfers mortgage

Answer 47

Unless the mortgagee-lender agrees to release the mortgagor-borrower from liability for the loan, the mortgagor-borrower remains personally liable on the loan obligation after the transfer of the mortgaged property.

Question 48

What happens when lender transfers mortgage and transferee ASSUMES mortgage obligation

Answer 48

If the transferee assumes the mortgage obligation, then the transferee as well as the mortgagor-borrower is personally liable to the mortgagee-lender to pay the loan obligation. but the transferee is PRIMARILY liable

Question 49

Lender’s modification or release of transferres obligations

Answer 49

As transferor, the original mortgagor-borrower is relieved of personal liability when the mortgagee-lender impairs the original mortgagor-borrower’s right of recourse against the transferee by modifying the terms of the loan or releasing the transferee from personal liability on the obligation.

For example, a complete release from liability granted by the mortgagee-lender to the transferee usually results in the discharge of the mortgagor-borrower’s personal liability on the mortgage obligation.

Question 50

Due on sale clause

Answer 50

A due-on-sale clause allows the lender to demand immediate
full payment from the borrower upon transfer

Generally enforceable, except in certain residential transfer situation:
-auttomatic “transfer” of a joint tenancy interest upon the death of the borrower,
-a transfer by will or intestacy to a relative upon the death of the borrower,
-a transfer to the spouse or child of the borrower,
-a transfer to an ex-spouse due to a divorce, and a
-transfer to the borrower’s living trust.

Question 51

Transferees liability

Answer 51

Assumnig mortage = personal liability

Subject to = no personal liability

transferee-buyer is considered to have taken the property subject to the mortgage obligation.

But, some jdx imply an assumption of the mortgage when the transferee-buyer pays the seller the difference between what the house was worth and the outstanding balance on the mortgage obligation

Question 52

When lender transfers the prom note/mortgage, who is the proper party for the mortgagor to pay??

Answer 52

If the promissory note is negotiable instrument, then the mortgagor-borrower is generally obligated to pay the holder of the note.

If PN not negotiable –> mortgagor may pay the original mortgagee until the mortgagor receives notice of the transfer

Question 53

How to know if promissory note of mortgage is negotiable or not?

Answer 53

words of negotiability (i.e., “pay to the order of” or “pay to bearer”) or payment is subject to the conditions that prevent negotiability.

Question 54

Mortgage follows the note

Answer 54

When the note is transferred without the mortgage, the mortgage is treated as having been automatically transferred along with the note, unless the parties to the transfer agree otherwise.

Question 55

Does mortgagor have duty not to commit waste?

Answer 55

Yes
A mortgagor in possession has a duty not to commit waste at least to the extent that the waste impairs the mortgagee’s security. This duty exists even if the mortgagor is not otherwise in default.

Question 56

Equity of Redemptions

Answer 56

After default on the obligation, but prior to a foreclosure sale, the mortgagor may retain the property under the doctrine of equity of redemption by paying the amount of the loan obligation currently owed, which, if there is an acceleration clause (see E.1.a. Acceleration clause, below), can be the full amount of the unpaid loan obligation, plus any accrued interest.

Question 57

Statutory Right of Redemption

Answer 57

Many states recognize a statutory right of redemption that permits the mortgagor to reclaim the property after a foreclosure sale (see § V.E.3.a.1. Statutory right of redemption, below)

Question 58

Clogging the equity of redemption

Answer 58

A mortgagor may waive his right to redeem after the mortgage is executed in exchange for consideration. However, courts routinely reject attempts by the mortgagee to deny the mortgagor this right (i.e., to “clog” the equity of redemption) prior to default, such as by the inclusion of a waiver clause in the mortgage.

Question 59

Foreclosure

Answer 59

A mortgagee may generally foreclose on a mortgage when there is a material default in an obligation that is secured by the mortgage

Default may be failing to make payments, or when other oblgiations are breached - waste

Mortgagor/borrower MUST be given notice.

Question 60

Effect of acceleration clause on foreclosure

Answer 60

Although a mortgagee may bring a foreclosure action whenever a mortgage obligation is in default, the mortgagee is entitled to collect only the amount of the obligation that is currently due and owing, unless the mortgage contains an acceleration clause.

An acceleration clause provides that the full amount of the mortgage obligation becomes due upon default.

Question 61

Priority of Interests

Answer 61

If there is more than one interest (e.g., two or more mortgages) in the property being foreclosed, a valid foreclosure terminates any interest in the foreclosed property that is junior to the interest being foreclosed, but it has no effect on any senior interest.

Basic rule: First in time, first in Right. BUT, this rule is subject to important exceptions

Question 62

Mortgage Priority Rule: Purchase money mortgage

Answer 62

A purchase-money mortgage has priority over mortgages and liens created by or that arose against the purchaser-mortgagor prior to the purchaser?mortgagor’s acquisition of the property, whether or not recorded.

Question 63

Mortgage Priority Rule: Recording Act

Answer 63

A mortgage, as an interest in property, is subject to the state’s recording act. Consequently, a subsequent mortgage that satisfies the requirements of the applicable recording act has priority over an unrecorded prior mortgage.

Question 64

Mortgage Priority Rule: Subordination agreement

Answer 64

The holder of a prior mortgage can agree to subordinate his interest to the holder of a subsequent mortgage.

Question 65

Distribution of Proceeds from Foreclosure

Answer 65

The proceeds from a foreclosure sale are applied first to the costs associated with the sale, second to the mortgage obligation being foreclosed, and third to the mortgage obligations owed to junior interest holders in the order of the priority of their interests. Any remainder is paid to the debtor-mortgagor.

Question 66

Subrogation - Payment by a Third Party

Question 67

Easement by Necessity

Answer 67

1. A single tract of land is divided by a common owner and a piece of the land is
   conveyed to another;
   AND

(2) Necessity arose when the land was divided into two separate estates where one
of the properties became virtually useless without the easement.

typically the property must be inaccessible without the easement.

Question 68

Easement by Implication

Answer 68

1. A single tract of land is divided by a common owner and a piece of the land is
   conveyed to another;

(2) Before the division, the common owner used the single tract of land as if there
was an easement on it;

(3) After the division, the common owner’s use of the conveyed land must be
continuous and apparent; AND

(4) Such use must be reasonably necessary for the owner’s use and enjoyment. *lower standard than easement by necessity)

Question 69

Easement by Prescription

Answer 69

An implied easement by prescription is created when a landowner allows a trespasser to
use his land continuously for the statutory period. The trespasser’s use must be:

(1) Hostile (i.e., without permission from the owner of the land);

(2) Open and notorious (i.e., not hidden); AND

(3) Continuous for the statutory period.

NOTE. Unlike adverse possession, the use need NOT be exclusive (e.g., a public
easement to access a beach).

Question 70

What is a survival contingency?

Answer 70

When a gift is expressly conditioned on survival, the donee must satisfy the condition to take the gift.

The contingency may be EXPRESS or IMPLIED

Question 71

What is survival contingency is ambiguous?

Answer 71

Majority view - is that the contingency applies at the termination of the interest that immediately precedes distribution of the remainder. - they have to survive the person before them

Minority - require the future interest holder to survive only the grantor (e.g., testator), and not holder of preceding interest

Question 72

Constructive Adverse Possession

Answer 72

​​​​​​​Nevertheless, the couple acquired title to the entire property through constructive adverse possession (Choice C). This arises when an adverse possessor (1) enters the property under color of title—eg, a facially valid deed that describes the entire property—and (2) actually possesses a reasonable portion of the property for the statutory period.

Question 73

Periodic Tenancy

Answer 73

A periodic tenancy lasts for a set period of time and then automatically renews at the end of each period (eg, on a weekly basis, monthly).

Either party can terminate this tenancy at the end of a full period by giving the other party notice before that period begins.

–>This means that notice given during the current period is effective to terminate the tenancy on the last day of the following period.

Question 74

Assignment of Lease be lessee

Answer 74

Absent any language to the contrary, a lease can be freely assigned.

When a lease prohibits the tenant from assigning the lease, the tenant may nevertheless assign the premises. However, the landlord generally can then terminate the lease for breach of one of its covenants and recover any damages.

When a lease prevents assignment without the permission of the landlord, and the lease is silent as to a standard for exercising that permission, the majority approach imposes a requirement that the landlord may withhold permission only on a reasonable ground in relation to the property being leased and not on a whim or personal prejudice. Whereas, the traditional rule is that the landlord may withhold permission at his discretion.

Question 75

Rule statement for termination of a tenancy for years / periodic T by surrender

Answer 75

A tenancy for years is an estate measured by a fixed and ascertainable amount of time.

Termination of a tenancy for years may occur before the expiration of the term, such as when the tenant surrenders the leasehold.

A tenant surrenders a lease by offering to return the lease to the landlord and the landlord accepting the return. If the landlord accepts surrender, the lease is terminated and the tenant is not obligated for future rent.

But the landlord who does not accept the tenant’s offer (e.g., notifies the tenant of such) retains the right to continue to enforce the lease, which means that the tenant remains obligated to continue paying the rent.

Question 76

LL duty to mitigate when T has abanonded - MAJORITY

Answer 76

A majority of states impose on the landlord a duty to make reasonable efforts to mitigate damages when a tenant abandons a lease.

What constitutes a reasonable effort depends on the circumstances. Good faith effort.

But an owner of multiple vacant apartments is typically required only to treat the premises as one of his vacant stock.

Question 77

Abandonment by tenant

Answer 77

An abandonment occurs when the tenant unilaterally returns possession of the leased
premises before the lease expires WITHOUT the landlord’s consent. Here, the tenant
will have to continue paying rent until the landlord is able to find a replacement tenant.
If the tenant refuses to pay rent, the landlord is entitled to damages for the difference
between the original rent and the rent received from the replacement tenant.

Question 78

LL Duty to Mitigate - Minority

Answer 78

The minority rule does not require the landlord to mitigate damages. Under the minority rule, a landlord who learns of the tenant’s abandonment of the premises need not take any action.

Question 79

Terminating of Easement by Release

Answer 79

An easement can be terminated by a release—ie, a writing that expressly relinquishes the easement right—so long as it complies with the statute of frauds.

To comply with SOF, the writing must do the following:

Reasonably identify the parties (the neighbor and the seller)

Contain words of transfer (“hereby releases”)

Describe the nature of the easement (the easement over the seller’s land was described in full)

Be signed by the easement holder (the neighbor)

Question 80

Rule in Shelley’s Case

Answer 80

Under the common law, the Rule in Shelley’s Case applies when an instrument grants:

1. a freehold estate (eg, life estate) to a person
   and
2. a remainder to the same person’s heirs or the heirs of that person’s body.

When this occurs, that person is considered to hold the freehold estate AND the remainder, so the person’s heirs take nothing under the granting instrument. And under the doctrine of merger, if there is no intervening interest, the freehold estate and the remainder merge so that the person takes in fee simple absolute (FSA).

Answer 81

if there is more than one interest in the property, the basic “first in time, first in right” rule is applied to determine the priority of interests.

However, this rule is subject to an exception for future-advances mortgages. If the advances under a future-advances mortgage are optional, then a subsequent mortgage has priority over amounts that are actually loaned after the future-advances mortgagee has notice of the subsequent mortgage. The jurisdictions are split as to whether actual notice is required or whether constructive notice is sufficient. In a majority of states, the mortgagee must have actual notice of a subsequent interest in order for later loan disbursements to lose priority. The minority rule, on the other hand, requires only constructive notice of a subsequent interest.

Question 82

Implied reciprocal servitude

Answer 82

An implied reciprocal servitude must meet the following requirements to be enforceable: (i) there must be intent to create a servitude on all real property interests (i.e., a common scheme); (ii) the servitude must be negative (i.e., a promise to refrain from doing something); and (iii) the party against whom enforcement of the servitude is sought must have actual, record, or inquiry notice. Reciprocal negative servitudes are implied from the common scheme.

Question 83

notice recording statute

Answer 83

The jurisdiction has adopted a notice recording act. Under this type of recording act, a subsequent purchaser for value of real property who does not have notice of a prior conveyance of the property has superior rights to the property over the prior transferee. Although generally a prior transferee of property who has recorded the conveyance is protected from the claim of a subsequent purchaser of the same property, here the friend’s recorded deed is characterized as a wild deed because it is not in the chain of title of the buyer