Property

Question 1

Grantor conveys land “to A and her heirs.” What kind of interest in land has been created?

Answer 1

A fee simple absolute - meaning it is lasts indefinitely, is freely inheritable, and transferable during life. (note that even though it mentions A’s heirs, A can transfer the land and give her heirs NADA)

Question 2

What is a defeasible fee simple?

Answer 2

A fee simple that may terminate upon a certain event occurring - ALL defeasible fee simples contain a future interest either for a third party or the grantor.

Question 3

What are the three types of defeasible fee simple estates?

Answer 3

(1) a fee simple determinable (automatic termination if property is used in predetermined way barred by grantor); (2) fee simple subject to a condition subsequent (termination requires re-entry by grantor); (3) fee simple subject to an executory interest (potential future interest goes to a third party, not the grantor).

Question 4

Grantor gives land “to A so long as the property is used only as a school.” What interest in land has been created?

Answer 4

A fee simple determinable. If A uses the land for a reason other than a school, the property automatically reverts back to the grantor.

Question 5

Grantor gives land “to A so long as the property is used only as a school.” What is the name of the interest retained by the grantor?

Answer 5

The grantor retains a right of reverter (if property used for another purpose, automatically reverts back to grantor).

Question 6

Grantor gives land “to A, but if the property is used to sell liquor, then I may retake the premises.” What interest in land has been created?

Answer 6

A fee simple subject to a condition subsequent. The forfeiture is not automatic here - the grantor has to reenter and retake the land.

Question 7

Grantor gives land “to A, but if the property is used to sell liquor, then I may retake the premises.” What is the name of the interest retained by the grantor?

Answer 7

A right of re-entry is retained by the grantor if the condition occurs. This right of re-entry can be waived if not exercised in a reasonable time, and though the re-entry right can usually be transferred at death, grantor cannot give another person his/her right of re-entry during grantor’s life.

Question 8

Grantor gives land “to A as long as he farms the homestead, and if not, then to B.” What kind of interest in land has been created?

Answer 8

A fee simple subject to an executory interest. If the triggering event occurs, a third party retains the executory interest.

Question 9

Grantor gives land “to A, but if A sells liquor on the property, then to B.” What kind of future interest exists and for whom?

Answer 9

B has a shifting executory interest in the land - if A sells liquor on the property then it automatically shifts to B.

Question 10

Grantor gives land “to A, but if A sells liquor on the property, then one day later to B.” What kind of future interest exists and for whom?

Answer 10

B has a springing executory interest in the lane - if A sells liquor on the property then the land reverts to the grantor and later has to go to B.

Question 11

The grantor gives land “to A for life.” What kind of interest in land has been created AND what future interest has been created?

Answer 11

This is a life estate for A’s life. Since there is no provision saying what happens when A dies, there is a reversion interest - land will go back to the grantor. This reversion is transferable by the grantor (inter vivos or upon grantor’s death).

Question 12

Grantor gives land “to A for life, then to B.” What future interest has been created?

Answer 12

B has a vested remainder in the estate: the land will automatically vest to B at the end of A’s life (this is a certain land interest for B and so B can transfer this interest).

Question 13

Grantor gives land “to A for life, then to the children of B.” What future interest has been created?

Answer 13

This is a vested remainder subject to open (divestment) - the class of people (children of B) could just be one child, but it could “open” if B has additional children.

Question 14

Grantor gives land “to A for life, remainder to B if B married before A’s death.” What future interest has been created?

Answer 14

This is a contingent remainder: B has to satisfy a condition before his interest will vest. B’s contingent remainder is not transferrable.

Question 15

Grantor gives land “To A for life, then to such of B’s children who are alive at B’s death.” What future interest has been created?

Answer 15

This is a contingent remainder: the grantee(s) of the remainder are not ascertainable at the time of the grant.

Question 16

Torel Tenant writes a letter to Landlord telling her that he is unhappy in his lease and wants to get out of it. The landlord writes back and says that she will treat the lease as terminated. A few days later, Torel receives a bill in the mail for the rent due for the remainder of the lease term. Which of the following is correct?

a) T need not pay rent because the landlord’s letter constituted acceptance of T’s surrender
b) Torel must still pay rent because landlord did not expressly waive this obligation in her acceptance letter
c) Torel must still pay rent because landlord’s letter was not an acceptable acceptance of T’s surrender
d) T must still pay rent because a surrender does not terminate a tenant’s duty to pay rent

Answer 16

a) A tenant is relieved of his duty to pay rent if landlord accept’s T’s offer of surrender - the letters constituted effective termination and acceptance of surrender.

Question 17

Which of the following does not constitute a negative easement?

a) Landowner may not construct any building higher than one story on her property
b) Landowner may not operate a business on her property
c) Landowner may not build a 12-foot fence around her property
d) Landowner may not remove the retaining wall that surrounds her property

Answer 17

b) a negative easement restricts the servient tenement from building structures that restrict access to air, light, or support. This is none of those.

Question 18

Mortimer built a garage and driveway on his small lot. The driveway was against the boundary of the neighboring lot owned by Gertrude. Each time Mortimer drove around the corner of his driveway, his gar protruded into Gertrude’s lot by 5 inches. Which of the following is a correct statement?

a) Mortimer likely has an easement by implication
b) Mortimer likely has an easement by necessity
c) Mortimer does not need an easement because of estoppel.
d) none of the above

Answer 18

d) None of these are correct (remember, easement by implication requires the same landowner previously owned both lots!)

Question 19

What is the difference between a tenancy at will and a tenancy at sufferance?

Answer 19

A tenancy at sufferance is a “hold-over” tenant - still bound by the terms of a lease that is no more but who still hasn’t been kicked off. A tenancy at will is created by agreement.

Question 20

In states that recognize tenancy by the entirety:

a) Neither spouse can convey his/her interest without the other’s consent
b) The right of survivorship cannot be broken during the marriage
c) Either spouse may sever the tenancy
d) The tenancy may be severed by either spouse’s creditors

Answer 20

a) - this sort of tenancy can only be extinguished by mutual agreement. Only mutual creditors could sever it.

Question 21

WTF is the rule in Shelley’s Case?

Answer 21

It’s an antiquated rule (pretty much no one follows it) that says a life estate with the remainder to that life estate holder’s heirs (e.g. “To A for life, then to A’s heirs” is essentially a fee simple absolute. However, since most folks don’t follow it, under that conveyance, A’s heirs really would have a recognizable future interest!

Question 22

George and Georgia gave their farm to the City of Pleasantville with a warranty deed. The deed said “George and Georgia hereby grant our farm to the city of Pleasantville for the purpose of constructing a park thereon.” The city didn’t need another park and so sold it to Dorothy Developer who proceeded to build a strip mall on the property. Which of the following is true?

a) Upon selling the property to Dorothy, the property reverted to George and Georgia
b) The gift to the city created a fee simple determinable and an automatic possibility of reverter to George and Georgia
c) Dorothy took the farm as a fee simple absolute
d) The gift to the city created a fee simple determinable and a right of re-entry for Georga and Georgia

Answer 22

c) - G & G’s wish that the farmland be used for a park is not an actual condition subsequent. They didn’t use the magic words, “but only if used to construct a park” and so this gave the city an absolute right to sell in fee simple absolute to Dorothy.

Question 23

Owen owned Greenacres in fee simple. He conveyed it to Alma, but if Baker is living 30 years from the date of this deed, then to Baker. The limitation to Baker is:

a) invalid
b) Valid, because B’s interest is a reversion
c) Valid, because B’s interest will vest, if at all, within a life in being
d) Valid, because B’s interest is vested subject to divestment

Answer 23

C - Baker is a life in being at the time of conveyance. He has a potential shifting executive interest subject to the RAP. The interest will vest or fail during his lifetime and thus doesn’t violate the RAP.

Question 24

Alison owned camp D in fee simple. By her will she devised “Camp D to my grandchildren who reach the age of 21, this includes all after-born grandchildren.” At the time of her death, Alison had 4 kids and 3 grandkids. This devise is valid against the RAP because:

a) There is a presumption that Alison intended to only include those grandchildren born before her death
b) All of Alison’s children are measuring lives
c) Alison had 3 grandchildren at the time of her death and they must turn 21 within 21 years of her death
d) Alison could have had more children after the conveyance was made

Answer 24

b) Alison’s kids are measuring lives and she can’t have more at the time of conveyance because she dead. The gift must vest within 21 years of the deaths of Alison’s children and because their kids can turn 21 after no more than 21 years of their deaths, it is valid.

Question 25

Batguy devised his Cave “to Kit Woman, her heirs and assigns, so long as they fight injustice, then to Bobin, his heirs and assigns.” What best describes the various interests created?

a) Kit woman has a fee simple determinable, Bobin has no interest, and Batguy’s heirs have a possibility of reverter
b) Kit woman has no interest, Bobin has no interest, and Batguys heirs have a fee simple
c) Kit Woman has a fee simple determinable and Bobin has a contingent remainder
d) Kit woman has a fee simple determinable and Bobin has a vested executory interest

Answer 25

a) The future gift to Bobin is void under the RAP (no certainty that the fighting injustice would/would not happen within 21 years of Kit Woman/Bobin’s death).

Question 26

P purchased M’s department store property. At closing, P delivered a certified check for the balance due and gave P a warranty deed with full covenants to the property. The deed:

a) must be recorded to be valid between the parties
b) must recite the actual consideration given by P
c) must be in writing and contain the signature of both parties duly witnessed
d) usually represents an exclusive integration of the duties of the seller

Answer 26

d) the deed typically represents an integration of duties, meaning the PER would prohibit evidence of prior or contemporaneous dealings that conflict with the deed

Question 27

L bought a tract of land from N for $250K. N revealed that there was a first mortgage on the property for $100K which would be satisfied by the proceeds of the sale. Effective Title Co’s title search revealed only the first mortgage. N did not reveal that there was a $50K second unrecorded mortgage on the property held by his father, V. The first mortgage was satisfied by the sale/closing and so L presumed he had clear title. A month later, V appeared and claimed that L was obligated to pay the principal and interest on the second mortgage. N has fled the jurisdiction. As among L, V. and Effective Title Co., which of the following is correct?

a) V will prevail since he had a valid second mortgage
b) Effective Title Co must pay on its title policy since it is an insurer
c) L’s failure to obtain an affidavit from N representing that there was no other mortgage outstanding will result in his taking subject to the V mortgage
d) L will take the property free of the V mortgage.

Answer 27

d) An unrecorded mortgage is not effective against third parties without notice

Question 28

Smith purchased a tract of land. To protect himself, he ordered title insurance. The policy was the usual type issued by title companies. Accordingly,

a) The insurance company will not be permitted to take exceptions to its coverage if it agreed to prepare and insure the title abstract
b) The title policy is assignable if Smith subsequently sells the property
c) The title policy provides protection against any defects in title
d) The title company will be liable for any defects in the abstract of the chain of title which arises, even though the defect could not have been discovered through the exercise of reasonable care.

Answer 28

d) Title insurance protects the buyer against any chain of title defects not specified as exceptions in the policy. This is generally only for defects that are of record in the title abstract. (note - the abstract of title is a summary of all the legal documents pertaining to the land)

Question 29

WTF is a purchase money mortgage?

Answer 29

A purchase money mortgage is one the buyer gives to the seller (often when the buyer has poor credit or not enough cash in hand) to offset the cost of buying the property (in other words, the purchase money mortgage replaces some of what they would have give to the seller).

Question 30

M sold her farm to W and took back a purchase money mortgage on the farm. M failed to record the mortgage. M’s mortgage will be valid against all of the following parties except:

a) The heirs/estate of W
b) A subsequent mortgagee who took a second mortgage since he had heard there was a prior mortgage and failed to record it.
c) A subsequent bona fide purchaser from W
d) A friend of W to whom the farm was given as a gift and who took w/o knowledge of the mortgage

Answer 30

c) - generally a BFP who takes property without notice of other mortgages takes it free and clear

Question 31

G sold his warehouse business to Clark Van Lines, Inc. the real property involved was encumbered by a recorded $300K first mortgage upon which G was personally liable. Clark’s Vine Lines acquired the property subject to the mortgage but did not assume the mortgage. 2 years later, when the outstanding mortgage was down to $260K, Clark decided to abandon the business location because it was unprofitable and worth less than the mortgage. C moved to another location and refused to pay the installments due on the mortgage. What is the legal status of the parties in regard to the mortgage?

a) Clark took the real property free of the mortgage
b) Clark breached its contract with G when it abandoned the location and defaulted on the mortgage
c) G must satisfy the mortgage debt in the event that foreclosure yields an amount less than the unpaid balance
d) If G pays off the mortgage, he will be able to successfully sue Clark because G is surrogated to the mortgagee’s rights against C.

Answer 31

c) the original mortgager is always potentially liable for a deficiency judgment in a purchase “subject to” the original mortgage. The mortgagee (likely a bank) has no rights against Clark.

Question 32

Which of the following is an incorrect statement regarding a real property mortgage?

a) It transfers title of the real property to the mortgagee
b) it is usually accompanied by a negotiable promissory note that refers to the mortgage
c) It creates an interest in real property and is therefore subject to the SOF
d) It creates a nonpossessory security interest in the mortgagee

Answer 32

a) In a lien theory jurisdiction (the majority), a mortgage becomes a lien on property but legal title stays with the mortgagor; it does not transfer to the mortgagee until paid in full

Question 33

M assigns his lease to F, although his lease forbids subletting. M’s landlord, T, objects to the assignment. Which of the following is correct?

a) A prohibition of the right to sublet contained in the lease completely prohibits an assignment
b) The assignment need not be in writing
c) The assignment does not extinguish’ M’s obligation to pay rent if F defaults
d) The assignment is invalid without T’s consent

Answer 33

c) The original tenant remains liable unless the landlord executes a release. A lease, including a lease assignment, must comply with the SOF. Note that the right to assign and sublet are separate rights.

Question 34

Lorraine Lawstudent rented a flat in an apt house while she was attending law school. The landlord experienced financial difficulty and didn’t pay the electric bill. The power company turned off the electricity. The least advisable action for Lorraine to take is:

a) pay the electric bill and deduct the payment from her rent
b) withhold paying rent
c) vacate and terminate the lease
d) due for damages and seek the equitable remedy of specific performance

Answer 34

b) breach by one party (failure to pay electric bill) does not excuse performance by the other.

Question 35

What is the difference between an easement appurtenant and an easement in gross?

Answer 35

An easement in gross involves only one parcel of land; and easement appurtenant involves two parcels of land.

Question 36

How can an express cross-easement be terminated?

Answer 36

An express easement created by grant can only be terminated by abandonment, merger, or an instrument releasing the easement.

Question 37

WTF is a profit a prendre?

Answer 37

A profit a prendre is the right to go upon the land of another and take some resource from it, but overuse, waste, or excessive taking is not allowed.

Question 38

What are the SADD requirements for instruments like a deed/mortgage

Answer 38

SOF compliance (in writing, signed by seller), Acknowledgment (before a notary), Description, Delivery

Question 39

What is the cause of action when one party wants to clear the chain of title to property?

Answer 39

A quiet title action.

Question 40

What is necessary to create a covenant at law and how can a valid one be enforced in court?

Answer 40

A covenant at law (e.g. a restriction on how land can be used) requires: SOF compliance, intention for the promise to run with the land, it must “touch and concern” the land, and privity of the parties is necessary. Parties can sue for damages for violation of a covenant.

Question 41

What is necessary to create an equitable servitude and how may they be enforced in court?

Answer 41

An equitable servitude (e.g. a restriction on how land can be used) requires: SOF compliance, intention for the promise to run with the land, it must “touch and concern” the land, and privity of the parties is NOT necessary. Parties can only sue for equitable remedies, not damages.

Question 42

What is the difference between a reverter and a reversion?

Answer 42

A reverter is the right held by the grantor when land is conveyed by fee simple determinable, a reversion is when the land goes back to the grantor at the end of a life estate.

Question 43

What types of future interests in land are subject to the RAP?

Answer 43

Executory interests (in a 3rd party) that come after certain conditional fee simple conveyances; vested, open, or contingent remainders that follow a life estate

Question 44

How does an easement get created by implication?

Answer 44

(1) the parcels in question have to have been owned by the same owner who then divides his/her property, (2) the portion sold must have been subject to a prior easement-like use that was CRAN: Continuous/permanent, Reasonably necessary, Apparent upon inspection, and No practical alternative route existed

Question 45

For an easement by implication to be validly created by implied grant, how much necessity must the dominant tenement show?

Answer 45

Where the former land owner provides an easement by implied grant (e.g. the landowner is the servant tenement), only reasonable necessity must be shown.

Question 46

For an easement by implication to be created by implied reservation, how much necessity must the dominant tenement show?

Answer 46

In this case, the former land owner is reserving an easement for herself, so she must show STRICT necessity - should have created an express easement in the deed!

Question 47

What is required for an express easement to be valid?

Answer 47

Conform with SOF, and SADD dead requirements.

Question 48

What are the possible ways for an easement to be terminated?

Answer 48

L RAMPS: Lack of necessity, Release, Abandonment, Merger, Physical blockage, Severance

Question 49

What is horizontal privity?

Answer 49

You both got your land from the same original owner.

Question 50

What kind(s) of privity is required for a covenant’s benefit (e.g. a neighbors ability to sue to enforce) ‘s run to a land?

Answer 50

ONLY VERTICAL PRIVITY IS REQUIRED for the benefit to run.

Question 51

What kind(s) of privity is required for a covenant’s burden (e.g. a neighbor’s requirement to abide by a covenant) to run?

Answer 51

Horizontal AND vertical privity are required to burden a subsequent property owner.

Question 52

What is equitable title?

Answer 52

Equitable title bestows the ability for someone to use/enjoy the property, despite not having absolute legal ownership.

Question 53

What is a negative servitude? And who may enforce one?

Answer 53

A negative servitude is a servitude permitting a person to prohibit the servient landowner from exercising a right. They may be enforced by another person similarly bound by the servitude.

Question 54

When does the warranty of habitability apply?

Answer 54

ONLY for new homes!

Question 55

What does the doctrine of worthier title do?

Answer 55

A grantor cannot leave a remainder for his/her own heirs… they would get it by inheritance anyway. So the heirs don’t get an interest via a conveyance that purports to give them something.

Question 56

Can someone sign a valid contract for the sale of land even if they lack current legal title to the land?

Answer 56

Yes, unless the contract indicates that “time is of the essence”

Question 57

A landowner borrowed $100,000 from a lender and executed a valid mortgage on a commercial tract of land to secure the debt. The lender promptly recorded the mortgage.
A year later, the landowner conveyed the same tract to a developer by a deed that expressly stated that the conveyance was subject to the mortgage to the lender and that the grantee expressly assumed and agreed to pay the mortgage obligation as part of the consideration for the purchase. The mortgage was properly described in the deed, and the deed was properly executed by the landowner; however, because there was no provision or place in the deed for the developer to sign, he did not do so. The developer promptly recorded the deed.

The developer made the monthly mortgage payments of principal and interest for six payments but then stopped payments and defaulted on the mortgage obligation. The lender properly instituted foreclosure procedures in accordance with the governing law. After the foreclosure sale, there was a $10,000 deficiency due to the lender. Both the landowner and the developer had sufficient assets to pay the deficiency.

There is no applicable statute in the jurisdiction other than the statute relating to foreclosure proceedings.

At the appropriate stage of the foreclosure action, which party will the court decide is responsible for payment of the deficiency?

(A) The developer, because he accepted delivery of the deed from the landowner and in so doing accepted the terms and conditions of the deed.

(B) The developer, because he is estopped by his having made six monthly payments to the lender.

(C) The landowner, because the developer was not a signatory to the deed.

(D) The landowner, because he was the maker of the note and the mortgage, and at most the developer is liable only as a guarantor of the landowner’s obligation.

Answer 57

(A) The developer received a deed poll (a deed that is signed only by the grantor, in this case the landowner). The grantee of a deed poll need not sign the deed, but if the grantee accepts the deed, he or she accepts all conditions in it. The developer did accept the deed and recorded it. The deed stated that the conveyance was subject to the lender’s mortgage and that the grantee (the developer) expressly assumed and agreed to pay the mortgage obligation as part of the consideration. When the developer assumed the mortgage obligation, the developer became personally liable to the lender, and the landowner became merely a surety. The developer, having sufficient assets to pay the deficiency judgment, must do so.

Question 58

If a grantee doesn’t sign a deed, but accepts it and records it, is that grantee bound by its terms?

Answer 58

YES. At this point the deed is considered to satisfy the requirements - including to create an equitable servitude on the land in question.

Question 59

For an adverse possession claim, if the landowner becomes mentally incompetent after the adverse possessor begins to possess the, does it toll the statutory period?

Answer 59

NO. the landowner must have been underage or mentally incompetent at the time adverse possession commenced in order for the statutory time to toll. For example, if the adverse possessor had been on the land 9 years and then the landowner is declared incompetent, the period will not toll.

Question 60

What is the doctrine of equitable conversion?

Answer 60

Common law rule that places the risk of loss on the buyer if the property is destroyed between purchase/sale agreement and closing. Seller retains legal title but the buyer gets equitable title.

Question 61

What is an easement?

Answer 61

An easement is an assignable, non-possessory right to cross over or use another’s land. It may be granted by express grant, implication, prescription, necessity, or estoppel.

Question 62

What is a license?

Answer 62

A license is a non-exclusive, non-assignable, personal permissive right to use or come onto the property of another. A writing is not required to create a license, and they are typically terminable at will by the licensor.

Question 63

What is a nuisance?

Answer 63

A nuisance is a substantial and unreasonable interference with the comfort or use of a person’s property

Question 64

What is a covenant?

Answer 64

A covenant is a promise in a deed burdening the “servient” tenement for the benefit of a dominant tenement. An enforceable covenant requires Statute of Frauds compliance, intention that the promise run with the land, and an effect that touches and concerns the land. Privity of the parties is also necessary. For a subsequent party to be burdened by a covenant, she must have had notice (actual, constructive, or inquiry).

Question 65

What is an equitable servitude?

Answer 65

An equitable servitude is a restriction on land use that fails to meet the requirements of a real covenant. To run with the land, an equitable servitude requires SOF compliance, intent to bind the land, it must touch and concern the land, and there must be notice for a successor to be bound (actual, constructive, or inquiry). Privity is not required.

Question 66

How might a reciprocal negative servitude avoid SOF compliance and still be binding?

Answer 66

Restrictions on land use that are reciprocal/mutually enforceable need not comply with the statute of frauds. If there is (1) a common plan or scheme or (2) notice (actual/constructive/inquiry) of the restrictions, then all owners in the subdivision may enforce the reciprocal negative servitude.

Question 67

How can a party’s interest as a joint tenant w/ right of survivorship be conveyed?

Answer 67

Inter vivos is okay (converts the grantee into a tenant in common) but cannot devise by will (other joint tenant(s) get it by survivorship rights)

Question 68

How can a tenancy by the entirety be severed?

Answer 68

a. Death
b. Divorce
c. Mutual agreement
d. Joint creditor of both spouses executes judgment

Question 69

Can a co-tenant by the entirety sell his/her share of the property?

Answer 69

Not without his/her spouse’s permission (and remember you gotta be married for this one)

Question 70

What rights/duties do co-tenants owe one another?

Answer 70

PADS:

1. Possession (no ouster) (ouster is sufficient to trigger potential adverse possession claim on the part of the ousted tenant)
2. Accountability (shared rents, etc.)
3. Duty of fair dealing
4. Shared contribution (rents, etc.) (NOT entitled to payment for substantial improvements you make w/o the others’ sign-off)

Question 71

How would partition of a jointly-owned/possessed property work?

Answer 71

Voluntary partition: parties sell and divvy up the proceeds, or judicial partition if a co-tenant violated another’s PADS rights (for JTWOS or T-in-Cs)

Question 72

What are the three key ways an easement by implication can be validly created?

Answer 72

i. Prior use (CRAN)
1. Continuous/permanent
2. Reasonably necessary
3. Apparent upon inspection
4. No practical alternative
ii. Implied grant (grantor is servient)
1. Requires reasonable necessity
iii. Implied reservation (grantor is dominant)
1. Strict necessity required

Question 73

What kind of easements require a common owner owned both parcels of land and then divvied it up?

Answer 73

Easements by implication and by necessity.

Question 74

How do you establish whether or not an easement is transferable?

Answer 74

a. Appurtenant easements: privilege runs with land at sale
b. Easements in gross:
i. Commercial (usually utilities) transfer w/sale
ii. Personal, non transferable

Question 75

How can overuse of an easement be handled?

Answer 75

Overuse ≠ termination, but servient tenement can sue for injunction. It could also potentially be grounds for a nuisance case.

Question 76

What are the key defenses to enforcement of a covenant or equitable servitude?

Answer 76

i. Estoppel
ii. Unclean hands
iii. Acquiescence
iv. Covenant/servitude was abandoned
v. Merger (benefitted land and burdened land come under same owner)
vi. Change in neighborhood conditions

Question 77

You want to use your land for a purpose outside a zoning requirement. What are your options or grounds for not changing?

Answer 77

Nonconforming use, apply for a variance, ask for a zoning change, ask for spot zoning

Question 78

How does a nonconforming use work?

Answer 78

Where the nonconforming building/use pre-dates the zoning restriction, it is “grandfathered in” so long as the use hasn’t changed/is continuous

a. Cannot be substantially expanded
b. If abandoned, cannot revive and claim the grandfather protections

Question 79

What has to be shown to get a variance from a zoning restriction?

Answer 79

i. Special circumstances and undue hardship
ii. Doesn’t unreasonably interfere with neighbors
iii. Is consistent w/general character of the neighborhood

Question 80

What are the main formalities required to create a broker-client relationship in the sale of property?

Answer 80

DEWD:

a. Duration
b. Earned conditions (when is commission deemed to be earned)
c. Writing – SOF
d. Description of property

Question 81

What are the essential requirements for a land sale contract to convey marketable title?

Answer 81

LIPP:

a. Legal description of property (Must be specific!!)
b. Identification of the closing entity
c. Price (incl. currency) (Earnest $ deposit can be treated as deposit (if seller breaches) or liquidated damages (if buyer breaches))
d. Parties identified

Question 82

If a seller will not perform in the sale of property, what is the buyer’s typical remedy?

Answer 82

Specific performance is actually the usual remedy because all land is deemed unique. If it’s not possible (due to no fault of the seller), then the buyer should get return of earnest money + interest and maybe compensatory damages.

Question 83

What are the basic deed requirements?

Answer 83

SADD:

a. Sof compliance
b. Acknowledgement
c. Description
d. Delivery

Question 84

What does it mean to get a statutory/warranty deed?

Answer 84

This comes with the TAFED covenants - the seller promises the buyer that they are conveying marketable title.

i. Title/ownership (seller has it)
ii. Authority to convey
iii. Free of encumbrances (defects in chain of title, restrictive covenants, pending adverse possession claims)
iv. Enjoyment, quiet
v. Defend buyer against claims by 3rd parties

Question 85

What is the common law doctrine of equitable conversion?

Answer 85

This deals with risk of loss between execution of the sale agreement and closing - and places that risk on the buyer (unless the loss was due to seller’s negligence/caused the loss)

Question 86

What does it mean if your state follows the title theory of mortgage?

Answer 86

(Minority rule) – when you buy, the mortgagee (e.g. bank) holds legal title until full payment of the debt is paid

i. The lendor either directly holds the title or has it in a deed of trust
ii. Deed of trust: the lendor is the trustee and they hold title to the property and you get possessory interest

Question 87

What does it mean to be under a lien theory mortgage?

Answer 87

(Majority rule) – when you buy the property, you already have title when you close on the property but the lender (e.g. bank) has a lien on it

Question 88

What are the two types of recording indexes in use in the U.S.?

Answer 88

i. One that searches by tract (better)

ii. One that searches grantor to grantee

Question 89

What happens when a buyer-grantee “expressly assumes” a mortgage?

Answer 89

Then new buyer-grantee is directly liable to lender. (agreement b/w assignor and assignee where bank is 3rd party beneficiary)

Question 90

What happens when a buyer-grantee buys property “subject to” a mortgage?

Answer 90

Then they avoid the possibility of suit by the lender for deficiency… the original mortgagor would remain liable.

Question 91

When is a restriction of alienation invalid?

Answer 91

i. If disabling (“A, but cannot transfer w/o my consent”) – invalid
ii. If forfeiture (“A, but if attempts to transfer w/o my consent it automatically comes back to me”) – invalid
iii. If promissory (“A, but promises not to transfer the land w/o my consent”) - invalid

Question 92

What are legit restrictions a grantor can reserve (not on alienation)?

Answer 92

1. Use restrictions (e.g. “To A but if not used as a church, shall revert back to me”)
2. Right of first refusal

Question 93

What is a trade fixture? Who gets to keep it? Who bears the costs of removal?

Answer 93

Trade fixture is a fixture (affixed to property) but used for business. The tenant gets to take them with upon leaving the lease but bears the costs of damages caused by removal.

Question 94

When land is taken by the gov’t (eminent domain, condemnation) and someone besides the owner has a profit a prendre on it, are both the owner and the profit-holder entitled to compensation?

Answer 94

Yes. The owner is entitled to compensation for the taking of his property. The profit-holder is entitled to compensation because his property right is a profit a prendre protected by the due process clause.

Question 95

Is a tenant liable for paying rent for a destroyed premise? E.g. the entire building they live in burns down?

Answer 95

Under the common law, a tenant is responsible to continue paying for premises that are destroyed. An exception applies if the tenant is only renting space in a building, not the building and the land. Note that destruction of the entire premises is different than constructive eviction.

Question 96

Property owner has property and pays a mortgage. If the property owner defaults on the mortgage but wants to recover the land under redemption prior to the foreclosure sale, how does that work?

Answer 96

The property owner has to pay the full amount of the defaulted mortgage. If there are two mortgages and only defaulted on one, need only pay off the defaulted mortgage.

Question 97

What kind of property interest does a tenant in a term tenancy have?

Answer 97

It is a possessory interest! The landlord retains reversionary interest

Question 98

When a tenant has been constructively evicted, what warranty/covenant has the landlord violated?

Answer 98

The implied covenant of quiet enjoyment.

Question 99

What common law duties does a landlord have?

Answer 99

Common law: duty to disclose any serious, hidden defects of which she has actual knowledge, the implied covenant of quiet enjoyment, the implied warranty of habitability

Question 100

When a tenant has been constructively evicted, what are her remedies?

Answer 100

Vacate and terminate the lease (does NOT continue to owe rent), unless waived by not moving out w/in reasonable period of time. The landlord then has a duty to mitigate by attempting to re-rent the premises.

Question 101

How do courts handle conveyances that violate the RAP?

Answer 101

If RAP violation exists, courts will strike the portion that offends the rule:

a. So, if conveyance’s conditional wording is “but if” (e.g. ‘but if liquor ever sold’), then the original person gets fee simple absolute
b. If the wording was “so long as” (e.g. “so long as operated as a school”) then the previous interest gets a fee simple determinable, grantor gets possibility of reverter

Question 102

What is the difference between a vested remainder subject to open and a contingent remainder for an unascertainable class?

Answer 102

Grantor gives land “to A for life, then to the children of B” = vested remainder subject to open.

Grantor gives land “To A for life, then to such of B’s children who are alive at B’s death.” = contingent remainder b/c unascertainable class

Question 103

How does the holder of a purchase money mortgage rank in order of re-payment if/when the property defaults?

Answer 103

A purchase money mortgage executed at the time the property was purchased trumps all other judgments or claims, even those duly filed.

Question 104

In assessing the validity of a deed, it must have been “delivered.” What does it mean for a deed to be delivered?

Answer 104

Delivery is a matter of the grantor’s intent - so where a grantor gives someone a deed and asks that the conveyance not take effect until after her death, the deed was not “delivered.”

Question 105

What is the doctrine of estoppel by deed?

Answer 105

Also called the doctrine of after-acquired title - even where the conveyer lacks legal title at the time of conveyance, that title automatically passes to the grantee when they DO get title.

Question 106

Who remains liable if a buyer takes property “subject to” a mortgage?

Answer 106

Then they avoid the possibility of suit by the lender for deficiency… the original mortgagor would remain liable. (difference between “Assuming” the mortgage)

Question 107

What happens if buyer-grantee takes property and “assumes” a pre-existing mortgage?

Answer 107

Then new buyer-grantee is directly liable to lender. (agreement b/w assignor and assignee where bank is 3rd party beneficiary)

Question 108

What is the difference between assuming a mortgage and a novation?

Answer 108

A novation occurs when the bank agrees to substitute the personal liability of the buyer for that of the original debtor, who is then released. In that case there would be an assumption with novation. Even w/o novation, those who assume a mortgage are liable to the lender directly.