Property

Question 1

What does devisable mean?

Answer 1

Can pass by will

Question 2

What does descendible mean?

Answer 2

It will pass by statutes of intestacy if holder dies without a will.

Question 3

What does alienable mean?

Answer 3

Transferable inter vivos

Question 4

What type of estate is created by “ to A and his heirs?”

Answer 4

Fee simple absolute (FSA)

Question 5

What type of estate is created by “ to A and the heirs of his body?”

Answer 5

Historically, creates a fee tail, passing to grantor’s lineal blood descendants, but today creates a FSA.

Question 6

“To A for so long as [during, until] the premises are used for a recording studio” creates what type of estate in A and future interest?

Answer 6

Fee simple determinable, possibility of reverter

Frank Sinatra didn’t prefer Orville Redenbacher (FSDPOR)

Question 7

Ross conveys “To Rachel, but if coffee is ever consumed on the premises, grantor reserves the right to re-enter and retake” creates what type of estate in Rachel and future interest?

Answer 7

Fee Simple Subject to Condition Subsequent, right of entry

Question 8

“To Barry Manilow, but if Manilow ever performs music on the premises, then to Mandy” creates what type of estate in Manilow and future interest?

Answer 8

Fee Simple Subject to Executory Limitation, shifting executory interest

Question 9

“To A for the purpose of constructing a day care center”; creates what type of estate in A?

Answer 9

Words of mere desire, hope, or intention are insufficient to create a defeasible fee. A is vested with a fee simple absolute, and NOT a defeasible fee.

Question 10

“To A so long as she never attempts to sell” creates what type of estate in A?

Answer 10

An absolute restraint on alienation is an absolute ban on the power to sell or transfer that is not linked to a reasonable time-limited purpose, which is void. Here, the devise is an absolute restraint on alienation. A has a FSA and O has nothing.

Question 11

“To A so long as she does not attempt to sell until the year 2015 when clouds on the title will be resolved.”

Answer 11

An absolute restraint on alienation is an absolute ban on the power to sell or transfer that is not linked to a reasonable time-limited purpose, which is void. Here, the restraint is linked to a reasonable, time-limited purpose. Thus, A has a fee simple determinable and O has a POR.

Question 12

“To A for life” creates what type of estate in A and future interest?

Answer 12

A has a life tenancy (is called the “ life tenant”); O has reversion (estate reverts back to O or O’s heirs at end of A’s lifetime)

Question 13

“To A for life, but in no event more than 10 years,” creates what type of estate in A and future interest?

Answer 13

A has a term of years (a leasehold interest), and NOT the life estate; O has a reversion.

Question 14

To Madonna, for the life of David

Letterman” creates what type of estate in M and future interest?

Answer 14

M has a life estate pur autre vie; O has a reversion at the end of DL’s life.

Question 15

O conveys “to Madonna for life.” Madonna then sells her entire interest to David Letterman. What type of estate in DL and future interest?

Answer 15

DL has a life estate pur autre vie (based upon the life of M; M couldn’t sell more than she had). O has reversion at the end of M’s life.

Question 16

What is voluntary or affirmative waste?

Answer 16

Although the life tenant is entitled to all ordinary uses an profits from the land, a life tenant cannot commit waste. Voluntary or affirmative waste is an overt act (such as willful destruction) that causes a decrease in the property’s value.

Question 17

What is the general rule regarding voluntary waste and natural resources?

Answer 17

The general rule is the life tenant must not consume or exploit natural resources on the property (such as timber, oil, or minerals), unless one of four exceptions applies, remembered by PURGE.

Question 18

What are the four exceptions that allow a life tenant to consume or exploit natural resources on the property?

Answer 18

PURGE:
PU: Prior Use: if prior to the grant the land was used for exploitation, life tenant may continue to exploit, unless otherwise agreed.
R: Repairs: the life tenant may consume natural resources for repairs and maintenance.
G: Grant: LE made exploit if granted that right
E: Exploit: the land is only suitable for exploiting (e.g., quarry).

Question 19

What is the open mines doctrine?

Answer 19

If mining was done on the land before the life estate began the life tenant may continue to mine, but his limited to mines already open.

Question 20

What is permissive waste and what does the prevention of it obligate?

Answer 20

Tenant fails to take reasonable steps to protect premises from damage from the elements.

Tenant liable for all ordinary repairs, excluding ordinary wear and tear. T must pay all ordinary taxes on the land.

Question 21

What is ameliorative waste and what does the prevention of it obligate?

Answer 21

The life tenant must not engage in acts that will enhance the property’s value, unless all future interests holders are known and consent.

Question 22

What is the life estate’s accompanying future interest called?

Answer 22

If held by O, the grantor, it is called a reversion. If held by a third party, it is a remainder.

Question 23

What is the future interest capable of creation in the grantor in a FSD?

Answer 23

POR

Question 24

What is the future interest capable of creation in the grantor in a FSSCS?

Answer 24

ROE

Question 25

“To A for life, then to B for 99 years.” What does O have if anything?

Answer 25

A reversion

Question 26

What are the possible future interests in transferees (future interest held by someone other than the grantor)?

Answer 26

Vested remainders: (i) the indefeasibly
vested remainder, (ii) the vested remainder subject to complete defeasance, and (iii) the
vested remainder subject to open.

Contingent remainder;

Executory interest: (i) shifting or (ii) springing .

Question 27

“To A for life, then to B’s first child.” A is alive. B, as yet, has no children. What do A and B have?

Answer 27

A has a LE. B has a contingent remainder because the remainder is created in unascertained persons.

Question 28

“To A for life, then to B’s heirs.” A is alive. B is alive. What do A and B have?

Answer 28

A has a LE. B has a contingent remainder because a living person has no heirs; while B is alive his heirs are unknown.

Question 29

“To A for life, then to those children of B who survive A.” A is alive. What do A and B have?

Answer 29

A has a LE. B has a contingent remainder because we don’t yet know which, if any, of B’s children will survive A.

Question 30

“To A for life, then, if B graduates from college, to B.” A is alive. B is now in high school. What do A, B, and O have?

Answer 30

A has a LE. B has a contingent remainder because it is subject to a condition precedent. Before B can take, he must
graduate from college. He has not yet satisfied this condition precedent. O has a reversion.

Question 31

“To A for life, then, if B graduates from college, to B.” A is alive. B graduates from college during his lifetime. What do A, B, and O have?

Answer 31

B has a indefeasibly vested remainder. A and O have nothing.

Question 32

“To A for life, and if B has reached the age of 21, to B.” Now, A has died, leaving behind B, who is still only 19 years old. Assess the state of the title historically at common law and under the modern rule.

Answer 32

Historically, at common law B’s contingent remainder was destroyed under the Rule of Destructibility of Contingent Remainders Thus, O or O’s heirs would take in fee simple absolute.

Today: The Destructibility Rule has been abolished and if B is still under 21 when A dies, O or O’s heirs hold the estate subject to B’s springing executory interest. Once B reaches 21, B takes.

Question 33

O conveys “To A for life, then, on A’s death, to A’s heirs.” A is alive. Assess the state of the title historically at common law and under the modern rule.

Answer 33

Historically, under the rule in Shelly’s Case, the present and future interests merge giving A FSA. Under the modern rule, A has a life estate, A’s yet unknown heirs have a contingent remainder, and O has a reversion, since A could die without heirs.

Question 34

O, who is alive, conveys “To A for life, then to O’s heirs.” What do O and A have under the Doctrine of Worthier Title and if Doctrine of Worthier Title does not apply?

Answer 34

If the Doctrine of Worthier Title did not apply, A has a life estate and O’s heirs have a contingent remainder because O is still alive and a living person has no heirs.

Under the doctrine of worthier title, the contingent remainder in O’s heirs is void. A has a life estate and O has a reversion.

Question 35

“To A for life, remainder to B.” A is alive. B is alive. What do A and B have? What if B predeceases A?

Answer 35

A has a life estate. B has an indefeasibly vested remainder. B’s future interest will pass by will or intestacy.

Question 36

O conveys: “To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C.” A is alive. B is 20 years old. What do O, A, and B have?

What if B is under 25 at the time of A’s death?

Answer 36

O has a reversion, because it is possible that
neither C nor C’s heirs will exist if and when the condition is breached. A has a life estate. B has a vested remainder subject to complete defeasance. C has a shifting executory interest.

B still takes. However, B must live to 25 for his estate to retain his interest. Otherwise, B’s heirs lose it all, and C or C’s heirs take.

Question 37

O conveys “To A for life, and if B has reached the age of 25, to B.” A is alive. B is 20 years old. What do O, A, B, and C have?

What if B is under 25 at the time of A’s death?

Answer 37

A has a life estate. B has a contingent remainder because his taking is subject to any condition precedent. B must be 25 before he can take possession. O has a reversion.

B cannot take. Instead, the estate reverts back to O or O’s heirs, who hold it subject to B’s springing executory interest (if when the reaches 25, B divests O).

Question 38

“To A for life, then to B’s children.” A is alive. B has two children, C and D. What do C and D have?

Answer 38

Vested remainder subject to open.

Question 39

“To A for life, then to B’s children.” A is alive. B has two children, C and D. When does the class close?

Answer 39

The class can close whenever any member can demand possession. Under the rule of convenience C and D can demand possession. Once A dies, a child of B born or conceived thereafter will not share in the gift unless, under the womb rule, the child of B in the womb at A’s death would share with C and D.

The class will also close upon B’s death.

Question 40

“To A for life, then to B’s children.” A is alive. B has two children, C and D. What if C or D predeceases A?

Answer 40

Their shares go to their devisees or heirs.

Question 41

What’s the difference between a springing and shifting executory interest?

Answer 41

If the future interest cuts short some interest in another person it’s shifting; if in the grantor or his heirs it’s springing.

Question 42

“To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs.” What to do A and B have?

Answer 42

B has a shifting executory interest (it’s not a remainder because remainders never follow defeasible fees) th.

A has a fee simple subject to B’s shifting executory interest

Question 43

O conveys: “To A, if and when he marries.” A is unmarried. What does A have?

Answer 43

A has a springing executory interest. O has a FS subject to A’s springing executory interest.

Question 44

“To A for life, then to the first of her children to reach the age of 30.” A is 70. Her only child, B, is 29 years old. Does any part of this conveyance violate the RAP?

Answer 44

Yes. A could have a child and die the next day along with B. That newly born child won’t vest or fail to vest in 21 years. Therefore, the contingent remainder violates the RAP and O has a reversion following A’s LE.

Question 45

“To A for life, then to such of A’s children as live to attain the age of 30.” A has two children, B and C. B is 35 and C is 40. A is alive. Does any part of this conveyance violate the RAP?

Answer 45

Yes.  To be valid, it must be shown that the
condition precedent to every class member’s taking will occur within the
perpetuities period. If it is possible that a disposition might vest too remotely with respect to any member of the class, will be void. Therefore, B and C's vested remainder subject to open are voided by the RAP. A has LE and O has reversion.

Question 46

“To A and his heirs so long as the land is used for farm purposes, and if the land ceases to be so used, to B and his heirs.” Does any part of this conveyance violate the RAP?

Answer 46

Yes. We won’t know with certainty, within 21 years of the death of our measuring life (A), whether B can take because A might abide by the condition during her lifetime and the condition may not be breached, if ever, until
hundreds of years have passed.

Once the offensive future interest is stricken, we are left with: “To A and his heirs so long as the land is used for farm purposes.” A has FSD and O has POR. This doesn’t violate the RAP because RAP doesn’t apply to a present interest (A’s FSD) or to a future interest in O (POR).

Question 47

“To A and his heirs, but if the land ceases

to be used for farm purposes, to B and his heirs.” Does any part of this conveyance violate the RAP?

Answer 47

Yes. We won’t know with certainty, within 21 years of the death of our measuring life (A), whether B (who has a shifting executory interest) can take because A (who has a FS subject to B’s SEI) might abide by the condition during her lifetime and the condition may not be breached, if ever, until
hundreds of years have passed.

Once the offensive future interest (“to B and his heirs”) is stricken the conveyance isn’t grammatically correct, and the entire conditional clause is stricken, leaving A with FSA and O with nothing.

Question 48

“To the American Red Cross, so long as the premises are used for Red Cross purposes, and if they cease to be so used, then to the YMCA.” Does any part of this conveyance violate the RAP?

Answer 48

No, because of the charity-to-charity exception to the RAP Y’s shifting executory interest is valid.

Question 49

What three modern rules have modified the common law RAP?

Answer 49

1. The “wait and see” or “second look” doctrine: validity of any suspect future interest is determined on the basis of the facts as they now exist, not any “what if” possibilities.
2. Cy pres doctrine: If a given disposition violates RAP, a court may reform it in a way that most closely matches g’or’s intent while complying with RAP.
3. Reduction of any offensive age contingency to 21 years.

Question 50

What are the three forms of concurrent ownership?

Answer 50

joint tenancy: two or more own with ROS

tenancy by the entirety: a marital interest between married partners with ROS

tenancy in common: two or more own with no ROS.

Question 51

What happens to a joint tenant’s share upon death of the joint tenant?

Answer 51

Share goes to the surviving joint tenants by operation of law.

Question 52

Can a joint tenant pass its interest by will or through intestacy?

Answer 52

No, the joint tenant’s interest is alienable but not devisable or descendible.

Question 53

How is a joint tenancy created?

Answer 53

Through clearly stating ROS and meeting the four unities: T-TIP:
T:ime: must take their interests all at the same time
T:itle: must take their interests all in the same instrument
I:dentical shares: each joint tenant has an equal pro rata share
P:ossession of whole: each joint tenant has an equal right to possess the whole.

Question 54

How is a joint tenancy severed?

Answer 54

SPaM:
S:everance and sale: buyer becomes a tenant in common with the owners who didn’t sale, remaining joint tenants; severs just by contracting to transfer under equitable conversion
Pa:rtition by agreement, in kind by court action, forced sale by court action
M:ortgage execution in title theory state severs JT only with respect to the encumbered share; in lien theory state, no severance.

Question 55

On January 1, Ringo, a joint tenant, enters into a contract for sale of his interest in the joint tenancy to George, with the closing to take place on April 1. When does the
severance as to Ringo’s interest occur, and why?

Answer 55

Severance occurs on Jan 1 under the doctrine of equitable conversion: equity regards as done that which ought to be done.

Question 56

If a conveyance of land is to married persons, what must be done to hold the property as tenants by the entireties?

Answer 56

Nothing, In those states to recognize the tenancy by the entirety, it arises
presumptively unless clearly stated otherwise.

Question 57

What two unique protections exist for property held as T/Es?

Answer 57

1. Creditors of only 1 spouse can’t collect from the property.
2. Neither tenant, acting alone, can defeat the ROS by unilateral transfer to a 3rd party.

Question 58

How is the tenancy in common similar to the joint tenancy? How are they different?

Answer 58

Both the tenancy in common and the joint tenancy give co-tenants an equal right to possess the whole.

However, (1) the tenancy in common is devisable and descendible, while the joint tenancy is only alienable but not devisable and descendible. And, (2) unlike the joint tenancy, there’s no ROS with the T/C. Finally, T/C can own unequal shares (50-20-20-10), while J/Ts can only own equal shares (25-25-25-25).

Question 59

What is wrongful ouster?

Answer 59

If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part.

Question 60

M and G are T/C. Marcia leaves Blackacre voluntarily, for a three-month tour of Europe with her cheerleading squad. On her return, she demands rent from Greg for the three months in which he enjoyed exclusive possession. Will she prevail?

Answer 60

No, Absent ouster, a co-tenant in exclusive possession isn’t liable to others for rent.

Question 61

M and G are T/C. Greg leases Blackacre’s basement to Alice, a tenant. Is Marcia entitled to a portion of the rental income?

Answer 61

Yes, a co-tenant who leases all or part of the premises to a third party must account to his co-tenants, providing them with their fair share of the rental income.

Question 62

M and G are T/C. Marcia, so enthralled by a family trip to the Grand Canyon, decides to stay there for the next 20 years. In her absence, can Greg acquire title to the whole through adverse possession?

Answer 62

No, unless he has ousted the other co-tenants, one co-tenant in exclusive
possession for the statutory adverse possession period, he can’t acquire title to the exclusion of others.

Question 63

M and G are T/C. What are Marcia and Greg’s respective responsibilities with respect to Blackacre’s carrying costs?

Answer 63

Each co-tenant is responsible for his or her fair share of carrying costs (such as taxes and mortgage interest) based upon the share of the property that they own.

Question 64

M and G are 10-90 T/C. A football, thrown in Marcia’s direction, goes through Blackacre’s front window. Marcia, who has repaired the window, now seeks contribution from Greg. Will she prevail?

Answer 64

Yes. The repairing co-tenant enjoys the right to contributions for reasonable and necessary repairs provided that she has notified Greg, who must then contribute 90%.

Question 65

Marcia has wallpapered Blackacre’s den with life-size posters of her idol, Davy Jones. She now seeks contribution from Greg, for his fair share of the costs of her “improvements.” Will she succeed?

Answer 65

No. During the life of the co-tenancy, there is no right to contribution for improvements. However, at partition, the improving co-tenant is entitled to a credit equal to any increase in value caused by her efforts. Attendantly, at partition, the so-called “improver” bears full liability for any drop in value she cause (set off).

Question 66

L leases Blackacre to T “from January 1, 2011 to July 1, 2011.” Which form of tenancy exists here? Why?

How much notice is needed to terminate the tenancy?

Answer 66

Tenancy for years because it’s a lease for a fixed period of time. (It doesn’t matter that the lease is for less than or more than one year.)

Because a term of years states from the outset when it will terminate there’s no need for notice to terminate.

Question 67

T rents an apartment from L, beginning June 1. Nothing is said about duration. T pays rent each month. What tenancy exists here? Why? How long does it continue for?

Answer 67

An implied periodic tenancy because there’s not explicit mention of an interval (which would be an explicit periodic tenancy) and payment of rent is at set intervals.

Any periodic tenancy continues for successive intervals until L or T give proper notice to terminate.

Question 68

L and T negotiate on the telephone for a

commercial lease. They orally agree on a five-year lease with rent at $1,000 a month. What tenancy is created?

Answer 68

It’s not a tenancy for years because it violates the SOF. Rather, it’s a periodic tenancy if T sends L a check for $1,000 which L accepts. The period here is monthly, as it’s measured by the way rent is tendered.

Question 69

T holds over after the expiration of her one-year lease, but sends another month’s rent check to L, who cashes it. What tenancy now exists?

Answer 69

Implied PT with period based on the way rent is tendered.

Question 70

L leased Blackacre to T on January 1, 2010, for a periodic tenancy of month-to-month. How does T end the PT?

Answer 70

Must provide written notice at least equal to the length of the period itself, unless otherwise agreed or the tenancy is from year-to-year or greater, in which case only 6 mos. notice is needed. Additionally, the PT must end at the conclusion of a natural lease period. E.g., if T sends notice May 15, PT ends June 30.

Question 71

What type of tenancy is created by “To T for as long as L or T desires” and how is such tenancy terminated?

Answer 71

A tenancy at will, but unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat the tenancy as a PT.

The tenancy at will may be terminated by either party at any time but reasonable demand to vacate needed.

Question 72

What’s a Tenancy at Sufferance and how long does it last?

Answer 72

It is created when T has wrongfully held over past the expiration of the lease to permit L to recover rent. Therefore, the tenancy at sufferance lasts only until L either evicts T or holds T to a new tenancy.

Question 73

L leases a building to T, expressly promising to maintain the premises in a state of good repair. T’s invitee trips over a loose floorboard and sues T. If invitee sues T, what result and why?

Answer 73

T loses. T is responsible for keeping the premises in good repair and is liable for injuries sustained by 3rd parties that T invited, even where L promised to make all repairs.

Question 74

What is T’s duty to repair when the lease is silent?

Answer 74

T must not commit any waste (voluntary, permissive, or ameliorative) and maintain premises and make ordinary repair.

Question 75

May T remove fixtures that T installs?

Answer 75

No, in the absence of an agreement, fixtures pass with ownership of the land if they cannot be removed without substantial harm to the premises.

Question 76

If T’s premises is destroyed by fire, may T end lease?

Answer 76

At common law, historically, T was liable for any loss to the property, including loss due to natural disasters. The majority view today is that T may end the lease if it’s destroyed without T’s fault.

Question 77

If T breaches its duty to pay rent while T is in possession of the premises, what may L do?

Answer 77

Evict through the courts or sue for rent due. If the landlord moves to evict, she is nonetheless entitled to rent from the tenant until the tenant, who is now a tenant at sufferance vacates. L cannot engage in self help (such as changing locks, removing T’s possessions).

Question 78

If T breaches its duty to pay rent while T is out of possession of the premises, what may L do? For example, T wrongfully vacates with time left on a term of years lease.

Answer 78

SIR:
S:urrender: T shows by words or action that wants to give up lease; however, if remaining term is one year or more must be in writing
I:gnore the abandonment and hold T responsible for unpaid rent just as if T were still there. [minority rule]
R:e-let the premises on the wrongdoer behalf, and hold T liable for any deficiency, but under majority rule L must attempt to mitigate by re-letting premises.

Question 79

What are the majority and minority rules for L’s duty to deliver possession?

Answer 79

Majority rule requires that L put T in actual physical possession such that if at the start of T’s lease a prior holdover T is still in
possession, L has breached and the new T gets damages.
Minority rule: L need provide T only with legal (not physical) possession.

Question 80

What is a wrongful eviction?

Answer 80

A breach of the covenant of quiet enjoyment where L wrongfully evicts T or excludes from premises.

Question 81

What is a constructive eviction?

Answer 81

A breach of the covenant of quiet enjoyment where 3 elements are met (SiNG):
S:ubstantial Interference: due to L’s actions or failures (chronic, seasonal, or permanent)
N:otice: T must give L notice of problem and L must act meaningfully.
G:oodbye: T must vacate within a reasonable time after L fails to fix.

Question 82

Is landlord liable for acts of other tenants?

Answer 82

No, except for L cannot permit a nuisance on the premises and must control common areas.

Question 83

What is a breach of the implied warranty of habitability?

Answer 83

A breach of L’s non-waivable duty in residential leases to provide the essential services needed to make the premises fit for human function (bare living requirements).

Question 84

What may a T do if L breaches the implied warranty of habitability?

Answer 84

“Mr. R-cubed”
M:ove out and end lease (but not required to, unlike constructive eviction)
R:epair and deduct cost from future rent
R:educe rent or withhold all rent until court determines fair rental value
R:emain in possession, pay rent and seek money damages.

Question 85

What’s the difference between Assignment versus Sublease?

Answer 85

transfer interest in whole is an assignment or in part is a sublease

Question 86

T1 has 10 months remaining on a two-year term of years. T1 transfers all 10 months to T2. What are the responsibilities of L, T1, and T2 with respect to covenants that run with the land and promises in the lease?

Answer 86

Because of this assignment:

1. L and T2 are in privity of estate and are liable to each other for all of the covenants in the original lease. L and T2 aren’t in privity of K unless T2 assumed all of the promises in the original lease.
2. L and T1 aren’t in privity of estate; however, they are in privity of contract and are secondarily liable to each other

Question 87

L leases Blackacre to T1. T1 assigns to T2. T2 assigns to T3. T3 then engages in flagrant abuse to the premises.

1. Can L proceed against T3, the direct wrongdoer?
2. Can L proceed against T1, the original tenant?
3. Can L proceed against T2?

Answer 87

1. Yes, because L and T3 are in privity of estate.
2. Yes, because L and T1 are in privity of contract, leaving T1 secondarily liable to L where T3 is no longer available or insolvent.
3. No, because L loses privity of estate when T2 assigned to T3, and T2 and L never had privity of K unless T2 expressly assumed all promises in the lease.

Question 88

T1 has 10 months remaining on a two-year term of years. T1 transfers 5 months to T2. What are the responsibilities of L, T1, and T2 with respect to covenants that run with the land and promises in the lease?

Answer 88

L and T2 sublessee are in neither privity of estate nor privity of contract and, therefore, have no liability to each other. T2 is liable to T1 and vice versa. But relationship between L and T1 is fully intact.

Question 89

What is the common law of caveat lessee and what are the five most important exceptions?

Answer 89

In tort, L under no duty to make premises safe. CLAP exceptions.
C:ommon areas: L must maintain all
L:atent defects: L must warn T of hidden defects that L knows or should have known about (just warn, not repair)
A:ssumtion of repairs: L that voluntarily makes repairs must make them with reasonable care; if made negligently, L is liable.
P:ublic use: L is liable for any defects in public use space
S:hort term lease of furnished dwelling

Question 90

What are the five different forms of servitudes?

Answer 90

1. Affirmative easements
2. Negative easements
3. Real covenants
4. Equitable servitudes
5. Reciprocal negative servitudes

Question 91

What type of interest is the right to lay utility lines on another’s land and what do we call the interests that holder and the landowner hold?

Answer 91

An affirmative easement. The landowner holds the servient tenement, and the utility company holds the dominant tenement.

Question 92

What are the categories of land interests that will be recognized as creating a negative easement and how is that interest created?

Answer 92

L:ight
A:ir
S:upport
S:treamwater from an artificial flow if
S:cenic view (minority)

Can be created only by writing signed by grantor.

Question 93

How are negative easements created?

Answer 93

Negative easements can only be created expressly, by writing signed by a grantor. There is no natural or automatic right to a negative easement.

Question 94

What are the two different types of affirmative easements?

Answer 94

Appurtenant to land (two parcels: dominant and servient) or held in gross (one parcel: servient)

Question 95

A has an easement entitling her to cut across B’s lawn to get more easily to her land. A sells her parcel to Mr. X, with no mention of the easement. Does Mr. X enjoy the easement?

What if B sells its property? Will the buyer be burdened by the easement?

Answer 95

Yes. The appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance.

The burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a Bona fide buyer without notice.

Question 96

A has an easement entitling her to swim in B’s lake.

Starkist has an easement to use B’s lake to fish for bait for Starkist’s tuna company.

Which is transferable?

Answer 96

An easement in gross is not transferable unless it is for commercial purposes. Starkist’s yes, swimming no.

Question 97

How is an affirmative easement created?

Answer 97

PING
P:erscription
I:mplication
N:ecessity
G:rant (in writing if more than one year to meet SOF)

Question 98

A owns two lots. Lot 1 is hooked up to a sewer drain located on lot 2. A sells lot 1 to B, with no mention of B’s right to continue to use the drain on A’s remaining lot 2. A sues B for trespass. Who wins?

Answer 98

B wins because B has an easement by implication because:

1. The previous use was Appurtenant; and
2. The parties expected use would continue because it is a reasonably necessary to the dominant land’s use and enjoyment.

Question 99

When will an affirmative easement by necessity be created?

Answer 99

An easement of right of way will be
implied by necessity if grantor conveys a portion of his land with no way out except over some part of the grantor’s remaining land (landlocked).

Question 100

A grants B an easement to use A’s private road to get to and from B’s parcel, Blackacre. Subsequently, B purchases the adjacent Greenacre, with its small marina. May B unilaterally expand the use of the easement to benefit Greenacre?

Answer 100

No, unilateral expansion of the easement is not allowed.

Question 101

How can an easement be terminated?

Answer 101

END CRAMP
E:stoppel
N:ecessity
D:estruction of the servient land (other than through the willful conduct of the servient owner)

C:ondemnation of the servient estate (eminent domain)
R:elease in writing by easement owner to servient owner
A:bandonment
M:erger
P:rescription

Question 102

A tells B that A will no longer be using her right of way across B’s parcel. In reasonable reliance, B builds a swimming pool on B’s parcel, thereby depriving A of the easement. A sues. Who wins?

Answer 102

A is estopped from entering. The servient owner, B, has materially changes his position in reasonable reliance on the easement holder’s assurances that the
easement will not be enforced.

Question 103

O conveys a portion of his ten-acre tract to A, with no means of access out except over a portion of O’s remaining land. The parties reduce their understanding to express writing. Thereafter, the city builds a public
roadway affording A access out. O then builds on the easement. A sues. Who wins?

Answer 103

Easements created by necessity expire as soon as the necessity ends. However, if the easement, attributable to necessity, was nonetheless created by express grant the easement doesn’t end when the necessity ends. Therefore A wins.

Question 104

A has a right of way across B’s parcel. A erects a structure on A’s parcel that precludes her from ever again reaching B’s parcel. B builds on the easement. A sues. Who wins?

Answer 104

B wins. A demonstrated by physical action that intended never to use it again. By contrast, mere nonuse, or mere words, are insufficient to terminate by abandonment.

Question 105

A has a right of way across B’s parcel, to enable A to better reach her parcel. Later, A buys B’s parcel. A later sells the parcel over which she once enjoyed the right of way to C. A continues to use the easement. C sues A. Who wins?

Answer 105

Under the merger doctrine, an easement is extinguished when title to the easement and title to the servient land become vested in the same person. Even though there may be later separation of title, the easement is not reinstated. When A bought B’s parcel, the easement extinguished. Therefore, A loses.

Question 106

Are licenses subject to the statute of frauds?

Answer 106

No.

Question 107

May the grantor of a license freely revoke the license?

Answer 107

Yes, unless estoppel bars revocation. Estoppel will bar revocation only when the licensee has invested substantial money, labor, or both in reasonable reliance on the license’s continuation

Question 108

What is a profit? What rights does the owner of the profit hold?

Answer 108

The profit entitles its holder to enter the servient land and take from it some substance such as soil, minerals, timber, or oil if. The profit shares all of the rules of easements.

Question 109

What is the difference between an easement and the covenant?

Answer 109

An easement is the grant of a property interest, but a covenant is a contractual limitation or promise regarding land.

Question 110

What is a difference between a covenant or an equitable servitude?

Answer 110

Remedy sought:
(C) monetary
(ES) injunction

Creation:
(C) in writing
(ES) even by implication (common scheme)

Running of burden:
(C) H and V privity
(ES) no privity

Running of benefit:
(C) V privity
(ES) no privity

Question 111

Neighbor A promises in writing to neighbor B that A will not build for commercial purposes on A’s property either now or ever. Later, A sells her burdened parcel to A-1. B sells his benefited parcel to B-1. Now, A-1 has commenced manufacture of a steak sauce plant on the premises. B-1 wishes to proceed against A-1 for money damages. Will B-1 succeed?

Answer 111

No. The burden doesn’t run because there are no facts to indicate that A and B are in Horizontal privity or that A-1 had Notice of A’s promise to B when took.

Question 112

What are the elements necessary for a covenant’s burden to run with the land?

Answer 112

WITH VN
W:riting: promise between original parties in writing
I:ntent: original parties intend that covenant will run
T:ouch and concern the land: the promise must affect the parties’ legal relations as landowners (not simply as members of community at large)
H:orizontal privity: original parties must be in succession of estate (g’or-g’ee, L-T, m’or-m’ee)

V:ertical privity: successor in interest from original owner of burdened parcel didn’t acquire through adverse possession.
N:otice: successor in interest from original owner of burdened parcel had notice of promise when took.

Question 113

What are the elements necessary for a covenant’s benefit to run with the land?

Answer 113

WITV:
W:riting
I:ntent
T:ouch and concern
V:ertical privity

Question 114

What are the elements necessary for an equitable servitude to bind successors?

Answer 114

TIN
T:ouch and concern
I:ntent
N:otice

Question 115

What are the elements of the general or common scheme doctrine to give rise to an implied equitable servitude?

Answer 115

1. When the sales began, subdivider had general scheme of development which included defendant’s lot.
2. Defendant lot holder had notice of promise contained in prior deeds.

Question 116

In determining whether a defendant lot holder had notice of a promise contained in prior deeds for the purpose of the common scheme doctrine, what are the three forms of notice potentially imputed to defendant?

Answer 116

AIR
A:ctual notice
I:niquiry notice: neighborhood conforms to common residential restriction
R:ecord notice: publicly available documents

Question 117

What equitable defenses are available to enforcement of equitable servitudes?

Answer 117

Unclean hands: person seeking enforcement also violating ES
Latches: prejudicial unreasonable delay in enforcing ES
Estoppel:
Acquiesence:
Changed conditions: party seeking release from the terms of an equitable servitude must prove changed conditions so pervasive that the entire area has changed.

Question 118

What are the four elements of adverse possession?

Answer 118

COAH:
C: ontinuous: uninterrupted for the statutory period.
O:pen and notorious: possession the usual owner would make under similar circumstances
A:ctual entry
H:ostile: possessor doesn’t have owner’s consent to be there

Question 119

When may one adverse possessor tack onto his time with the land his predecessor’s time?

Answer 119

Where there is privity which is satisfied by any non-hostile nexus (ouster defeats privity) such as blood, contract, will, or deed.

Question 120

O owned Blackacre in 1990 when A entered adversely. In 2000, O went insane. In 2010, O recovered. Our jurisdiction has a 20-year statute of limitations. In 2010, who owns
Blackacre?

Answer 120

A. The statute of limitations will not run against a true owner afflicted by a disability only where the owner is afflicted at the start of the adverse possession. Here, O went insane during the statutory period. Therefore, if A has met the COAH elements, A is owner.

Question 121

What must the land contract contain to satisfy the SOF?

Answer 121

1. Must be in writing, signed by the party to rebound
2. Describe the land
3. Recite the consideration.

Question 122

What is the doctrine of part performance?

Answer 122

Equity will create specific performance requiring seller to convey land despite lack of a written contract, if two of the following three are satisfied:

1. Buyer takes possession
2. Buyer pays all or part of price
3. Buyer makes substantial improvements

Question 123

B enters into a contract to purchase a farm. The contract recites that the farm is 100 acres. When B has a survey done, B learns that the farm is actually 98 acres. What is B’s remedy?

Answer 123

Specific performance with pro rata reduction in price.

Question 124

If in the interim between contract and closing, Blackacre is destroyed through no fault of either party, who bears risk of loss?

Answer 124

Under the doctrine of equitable conversion, B owns the land (subject to the condition that he paid the purchase price at closing) and therefore bears risk of loss unless contract says otherwise.

Question 125

What are the two implied promise is in every land contract?

Answer 125

1. Seller promises to provide marketable title at closing

2. Seller promises not to make any false statements of material fact.

Question 126

What is included in the Seller’s promise to provide marketable title at closing? What will render title unmarketable?

Answer 126

Title is free from a reasonable doubt, lawsuits, or threat of litigation.

1. Adverse possession: if any part of title rest on adverse possession and is on marketable.
2. Encumbrances: servitudes and mortgages rendered title unmarketable unless buyer has waived them
3. Zoning violations

Question 127

What is included in Seller’s promise not to make any false statements of material fact in the majority of states?

Answer 127

Failure to disclose latent material defects.

Question 128

What is the exception to the common law rule that a land contract contains no implied warranties of fitness or habitability?

Answer 128

The implied warranty of fitness and workmanlike construction applies to the sale of a new home by a builder-vendor.

Question 129

How does the deed pass legal title from seller to buyer?

Answer 129

It must be “LEAD”:

Lawfully Executed And Delivered.

Question 130

To be lawfully executed, what must the deed contain?

Answer 130

1. Signature of grantor
2. An unambiguous description of the land (doesn’t have to be perfect, just a good lead)

Recitation of consideration or passing of consideration not required.

Question 131

Which of the following are lawfully executed deeds?
O conveys (1) “all of O’s land,” (2 ) “all of O’s land in Essex County,” (3) “some of my land in Sussex County.”

Answer 131

One and two but not three.

Question 132

What is the legal standard for meeting the delivery requirement for passing legal title in land?

Answer 132

Grantor must have present intent to be bound. Deed needn’t be physically transferred.

Question 133

As a surprise graduation gift, A’s Aunt Gertrude executes a deed conveying Blackacre to A. A responds, “I can’t accept such a lavish gift.” Who does Blackacre belongs to?

Answer 133

Aunt.

Question 134

O conveys a deed to Blackacre that is absolute on its face, but says to grantee, “Blackacre is yours only if you
survive me.” What is the state of the title?

Answer 134

This oral condition is void. Delivery is done.

Question 135

What are the three covenants for title (three types of deeds)?

Answer 135

1. Quitclaim: contains no covenants; grantor isn’t even promising that has title to convey
2. General warranty deed: warrants against all the facts in title including all of grantor’s predecessors in interest.
3. Statutory special warranty deed: by statute in many states, made only on behalf of a grantor (not predecessors in interest): (1) grantor hasn’t conveyed to anyone other than grantee; and (2) and the proper is free from encumbrances is made by grantor

Question 136

What are the six covenants contained in the general warranty deed and from when does the SOL with respect to each begin to run?

Answer 136

First three covenants are breached from moment of delivery and SOL therefore runs.
1. Covenant of seisin: grantor owns the estate
2. Covenant of right to convey: grantor has power to transfer (no restraints on alienation)
3. Covenant against encumbrances: no servitudes or mortgages on Blackacre.
Next three covenants are breached, if ever, from when covenant is breached:
1. Covenant of quiet enjoyment: grantee won’t be disturbed in possession by third party’s unlawful claim of title
2. Covenant of warranty: grantor will defend grantee against any lawful title claims asserted by others
3. Covenant for further assurances: grantor will do what ever needed in future too perfect title if turns out to be in perfect.

Question 137

The case of the double dealer: O conveys Blackacre to A. Later, O conveys Blackacre, the same parcel, to B. O, our double dealer, has skipped town. In the battle of A vs.
B, who wins?

Answer 137

Ask two questions: is buyer a BFP and notice or race jurisdiction?

1) If B is a BONA FIDE PURCHASER or mortgagee, and we are in a NOTICE jurisdiction (like RI), B wins, regardless of whether or not she records before A does.
2) If B is a BONA FIDE PURCHASER or mortgagee and we are in a RACE notice jurisdiction, B wins if she records properly before A does.

Question 138

Who is a bona fide purchaser for purposes of the recording system in a double dealer problem?

Answer 138

Purchases for value (substantial pecuniary consideration) without notice (actual, inquiry, or record) that someone else purchased first.

Question 139

B is O’s heir, or devisee, or donee. What is the status of B in a double dealer recording statute problem?

Answer 139

Recording statutes will protect B unless the shelter rule applies.

Question 140

On March 1, O conveys to A, a BFP who doesn’t record. On April 1, O conveys the same parcel to B, a BFP, who does not record. On May 1, A records.
Who takes Blackacre in a notice jurisdiction?
Who takes in a race-notice jurisdiction?

Answer 140

Notice: B wins because B took as the last BFP.

Race: A.

Question 141

O conveys to A, who does not record. Later, O conveys to B, a BFP, who records. B then conveys to C, who is a mere donee or who has actual knowledge of the O to A transfer. In the contest of A vs. C, who prevails?

Answer 141

The Shelter Rule says one who takes from a BFP will prevail against any entity that the transferor-BFP would have prevailed against. Therefore, C wins, in both a notice and race-notice state, because of the shelter rule. C steps into the shoes of B, who was a BFP who recorded first.

Question 142

O sells Blackacre to A, who does not record. Then, A sells to B. B records the A-to-B deed. O then sells Blackacre to C. C has no actual or inquiry knowledge of the O-to-A or A-to-B conveyance. C records. O has skipped town. In the contest of B vs. C, who prevails?

Answer 142

If a deed, entered on the records (A to B), has a grantor unconnected to the chain of title (O to A), the deed is a wild deed. It is incapable of giving record notice of its existence.

Therefore, C prevails in both a notice and race-notice state. C wins in a notice state because at the time C takes she is a BFP. C wins in a race-notice state because she is a BFP who win’s the race to record and B’s recording is a nullity under the wild deed rule.

Question 143

In 1950, O owns Blackacre. He is thinking about selling it to X, but for now decides against it. In 1950, X, who does not own
Blackacre, sells it anyway, to A. A records.
In 1960, O finally sells Blackacre to X. X records. In 1970, X, a double dealer, sells Blackacre to B. B records.

As between X and A, who owned Blackacre from 1960-1969?

Who owns Blackacre in 1970?

Answer 143

A owned Blackacre from 1960-1969 because of the rule of estoppel by deed: One who conveys realty in which he has no interest (here, X), is estopped from denying the validity of that conveyance if he later acquires that interest.

B owns in 1970 as long as he’s a BFP. In notice system B is the last BFP to enter. In a race system, B is a BFP who won race to record because A’s 1950 recording is a nullity.

Question 144

O owns Blackacre. Creditor lends O a sum of money. The parties understand that Blackacre is the collateral for the debt. However, instead of executing a note or mortgage deed, O hands Creditor a deed to Blackacre that is absolute on its face. If Creditor proceeds to sell Blackacre to bona fide purchaser X, who owns the land?

Answer 144

X owns the land under the doctrine of equitable mortgage: an absolute deed, if given for security purposes, can be treated by the court as a mortgage. Although creditor needed to foreclose before selling, X is a BFP and takes.

As between an owner and creditor parol evidence is admissible to show parties’ true intent in fraud suit by O against Creditor.

Question 145

A mortgagee endorsees and delivers a note or makes a separate assignment of the note, will the transferee be subject to any defenses that the mortgagor could raise against the original mortgagee?

Answer 145

If the second mortgagee became a holder in due course, the mortgagee took the note
free of any personal defenses the mortgagor could have raised. The second mortgagee is still subject to any real defenses that the maker (mortgagor) could raise.

Question 146

What are the real defense is that a mortgagor could raise against the transferee of the original mortgagee?

Answer 146

Material alteration, duress, fraud in the factum (lie about the instrument itself), incapacity, illegality, infancy, insolvency

Question 147

What are the criteria to be, a holder in due course?

Answer 147

1. Note must be negotiable, made payable to the named mortgagee;
2. The original note must be indorsed, signed by the named mortgagee
3. The original note must be transferred (no photocopy)
4. Transferee must take the note in good faith without any notice of illegality; and
5. Transferee must pay more than a nominal value

Question 148

Assume now that on January 10, Madge took out a $50,000 mortgage on Blackacre with First Bank. On January 15, Madge sold Blackacre to Buyer. Buyer had no knowledge of the lien. On January 20, First Bank recorded its mortgage in Blackacre. On January 30, Buyer recorded his deed to Blackacre. Does Buyer hold subject to First Bank’s mortgage? Does Buyer hold subject to First Bank’s mortgage? Does it matter which recording statute this jurisdiction has enacted?

Answer 148

All recording statutes apply to mortgages as well as deeds. Thus, a later buyer takes subject to a properly recorded lien.

In a notice state, Buyer is free from the lien provided Buyer is BFP because Buyer had no record notice. In a notice state, a subsequent BFP prevails over a prior grantee or mortgagee who has not yet recorded properly at the time the BFP takes.

In a race-notice state, Buyer takes subject to the lien because Buyer 1st Bank won race to record.

Question 149

Who is personally liable on a mortgage debt if O, the debtor-mortgagor, sells Blackacre?

Answer 149

If B has “assumed the mortgage” both O and B are personally liable. B is primarily liable. O remains secondarily liable.

If B takes “subject to the mortgage” B assumes no personal liability. Only O is personally liable. But, if recorded, mortgage sticks with land. Thus, if O doesn’t pay mortgage may be foreclosed.

Question 150

Assume that Blackacre has a fair market value of $50,000 and is subject to three mortgages executed by its owner, Madge. First Bank, with first priority, is owed $30,000. Second Bank, with second priority, is owed $15,000, and Third Bank, with third priority, is owed $10,000. Assume that
First Bank’s mortgage is foreclosed, and that Blackacre is sold for $50,000. How will the funds be distributed?

Answer 150

1. Atty’s fees, foreclosure expenses, and accrued interest on 1st Bank’s lien.
2. $30k to 1st Bank (each claimant entitled to satisfaction in full before junior lienholders get anything).
3. 2nd Bank gets $15.
4. 3rd Bank gets $5 and will proceed for a deficiency judgment.
5. No surplus to give to debtor.

Question 151

Who are necessary parties to a foreclosure action, and what happens if one of those parties isn’t joined?

Answer 151

All lien holders (senior and subordinate) and the mortgagor. Failure to include a necessary party results in the preservation of that party’s claim, despite the foreclosure and sale. Thus, if a necessary party
is not joined, his mortgage remains on the land.

Question 152

Blackacre has FMV of $50,000 and is subject to three mortgages executed by its owner, Madge. First Bank, with first priority, is owed $30,000. Second Bank, with second priority, is owed $15,000, and Third Bank, with third priority, is owed $10,000. Second Bank’s mortgage is foreclosed and sold to Buyer. (First Bank’s mortgage exists, but it is either not in default or its holder has not yet taken action to foreclose it.) What happens to 1st Bank’s mortgage and to Buyer?

Answer 152

1st Bank’s mortgage continues on land in hands of a foreclosure buyer. And if insufficient proceeds to pay 1st Bank, it can foreclose against Buyer. So, Buyer will pay off 1st Bank at foreclosure sale, bidding 20k (50-30). 15 will go to 2d bank and 5 to 3d, which will bring deficiency action against Madge.

Question 153

C1 lends $200k to O, taking a security interest in all of O’s real estate holdings, “whether now owned or
hereafter acquired” (an after-acquired collateral clause). C1 records the mortgage note. Six months later, C2 lends O $50k to enable O to acquire a parcel known as Blueacre, taking back a security interest in Blueacre and recording that interest. Subsequently, O defaults on all outstanding obligations. All that he has left is Blueacre. Who has first priority in Blueacre, C1 or C2?

Answer 153

C2 is a purchase money mortgagee and has a superpriority, even over floating liens.

Question 154

Until when is equitable redemption available and what is required to exercise it?

Can a mortgagor waive the right?

What is statutory redemption?

Answer 154

Until the date of the foreclosure sale. Payoff debt (full balance if acceleration clause present), interest, and costs.

No.

Mortgagor can redeem following foreclosure sale during the statutory period.

Question 155

If land is improved by buildings and an adjacent landowner’s excavation causes that
improved land to cave in, what is the standard to hold the excavator liable?

Answer 155

Negligence. Strict liability does not attach to the excavator’s actions unless plaintiff shows that natural and other improvements on land did not contribute to land’s collapse.

Question 156

When will one riparian be liable to another for use of water or watercourses?

Answer 156

Use unreasonably interferes with other’s use, even if gained priory of beneficial use because was first in time, first in right.

Question 157

Is RI a title or lien theory state?

Answer 157

Title theory: mortgage transfers legal title of the property to the mortgagee, who holds it until the mortgage has been satisfied.

Lien theory: buyer promises to make all payments to the lender and the mortgage becomes a lien on the property, but title remains with the buyer