Property

Question 1

Property - ADVERSE POSSESSION

Answer 1

A non-owner occupier can acquire title to property if he can show possession which is:

1) open and notorious
2) actual and exclusive
3) hostile
4) and continuous
5) for the statutory period

Question 2

Property - ESTATES IN LAND

Answer 2

1) Fee Simple Absolute - aggregate of ALL possible rights in land
2) Determinable - durational; automatic possibility of reverter
3) Subject to Condition Subsequent - conditional; exercisable right of reentry
4) Life Estate
5) Remainder - naturally follows termination of preceding estate
6) Executory Interest - cuts short preceding estate before its natural termination

Question 3

Property - DOCTRINE OF MERGER

Answer 3

If the same person acquires ALL present and future estates in a piece of property, they merge into a fee simple.

Question 4

Property - RULE OF CONVENIENCE

Answer 4

Absent a contrary intention in the instrument creating a class gift, the class closes when any member can call for distribution.

Question 5

Property - RULE AGAINST PERPETUITIES

Answer 5

A future interest in a third person must vest, if at all, w/in the lives in being plus 21 years.

Applies ONLY to:

1) contingent remainders
2) executory interests
3) class gifts
4) purchase options
5) rights of first refusal
6) powers of appointment

Question 6

Property - JOINT TENANCY

Answer 6

Concurrent ownership of property where each co-T has a right of survivorship.

JTs must take their interests:

1) at the same time
2) by the same instrument
3) w/ equal shares of the same type
4) w/ identical rights to possess the whole

Question 7

Property - JOINT TENANCY SEVERANCE

Answer 7

If one JT conveys his interest, the JT is severed and a tenancy in common is created.

LIEN THEORY: a mortgage or lien does NOT sever.

TITLE THEORY: a mortgage or lien severs on execution, leaving a tenancy in common.

Question 8

Property - TENANCY IN COMMON

Answer 8

Concurrent ownership w/o right of survivorship.

Unless otherwise stated, a co-tenancy is presumed to be a tenancy in common.

Question 9

Property - TENANCY BY THE ENTIRETIES

Answer 9

Form of concurrent ownership reserved for married couples, giving an automatic right of survivorship.

CANNOT be severed unilaterally. Only by:

1) Joint conveyance
2) One spouse conveying to the other
3) Divorce

Question 10

Property - RIGHTS/DUTIES OF CO-TENANTS

Answer 10

1) Right to possess all of the property, but can’t bring possessory action against, or claim rent from, occupying co-T absent ouster
2) Occupying co-T has right to retain profits from his own use
3) Non-occupying co-T has the right to a pro-rata share of:
- rents/profits from 3P use
- profits that deplete the property’s value
4) Non-occupying co-T is liable for pro-rata share of:
- necessary repairs (NOT improvements)
- property taxes and mortgage payments (in excess of rental value if 1 co-T is occupying)

Question 11

Property - TYPES OF TENANCY

Answer 11

TERM OF YEARS

• defined start and end dates
• automatic termination absent renewal

PERIODIC

• undefined end date
• automatically renews absent written notice

AT WILL
-freely terminated by notice, death, or transfer by either party

AT SUFFERANCE
-holdover T liable for reasonable rental value

Question 12

Property - ASSIGNMENT AND SUBLEASE

Answer 12

Absent an express lease restriction of each, T is free to transfer his leasehold interest.

ASSIGNMENT = complete transfer of entire remaining interest

• assignee has privity of estate w/ L such that each is liable to the other on covenants that run w/ the land
• original T and L remain in privity of K absent novation

SUBLEASE = T retains some part of the remaining lease interest while transferring another part

• sublesee not personally liable to L absent express assumption
• if rent is not paid, L can terminate lease and sublease

Question 13

Property - COVENANT OF QUIET ENJOYMENT

Answer 13

ACTUAL EVICTION

• L physically excludes T from all or part of the premises
• Excuses T from paying any rent

CONSTRUCTIVE EVICTION

• L breaches lease duty and breach substantially and materially deprives T of use and enjoyment
• Remedy = move out, if done timely, and terminate

Question 14

Property - IMPLIED WARRANTY OF HABITABILITY

Answer 14

RESIDENTIAL ONLY
Where the premises are not reasonably suitable for human residence, T can, at her option:
1) move out and terminate lease
2) make repairs and offset cost against rent, after notice and an opportunity to cure, OR
3) seek damages against L

Question 15

Property - WASTE

Answer 15

VOLUNTARY
Intentional or negligent property damage

PERMISSIVE
Failure to take reasonable steps to avoid property damage

AMELIORATIVE
Substantial alteration that increases the land value
–Modern rule: allowed if either (1) permitted by L or (2) justified by a substantial and permanent change in the neighborhood

Question 16

Property - EXPRESS COVENANTS

Answer 16

To run with the land:

1) Intent - shown by language contemplating assignment
2) Touch and Concern - adds value to either party

BREACH:

• Traditional rule: lease covenants are independent; L’s breach does not excuse T from paying rent
• Modern rule: lease is a K w/ dependent covenants; therefore, L’s material breach allows T to terminate and avoid rent so long as he moves out

Question 17

Property - EXPRESS EASEMENT

Answer 17

Right to use land for a particular purpose created by an express grant.

Must be evidenced in writing signed by grantor if over 1 year.

Question 18

Property - EASEMENT IMPLIED BY PRIOR USE

Answer 18

1) Common ownership prior to severance
2) Apparent and continuous use at time tract is divided
3) Reasonably necessary to enjoyment of dominant parcel

Question 19

Property - EASEMENT IMPLIED BY NECESSITY

Answer 19

1) Party asserting easement owns landlocked property (strict necessity)
2) Both parcels were originally part of the same ownership

Question 20

Property - EASEMENT BY PRESCRIPTION

Answer 20

1) Open and notorious
2) Hostile
3) Continuous for the statutory period

Question 21

Property - TRANSFER OF EASEMENT APPURTENANT

Answer 21

Where the possessor of a dominant parcel holds the easement burdening the servient parcel, the easement automatically runs w/ the land UNLESS the servient parcel is transferred to a BFP w/o notice.

Question 22

Property - TRANSFER OF EASEMENT IN GROSS

Answer 22

Where the right of access is held irrespective of ownership of nearby land, it only runs w/ the land if it is held for commercial purposes.

Question 23

Property - EASEMENT TERMINATION

Answer 23

1) Written release
2) Abandonment (intent + physical act or words in furtherance of that intent)
3) Merger (dominant owner acquires an interest in the servient estate at least equal in duration to the easement)
4) Estoppel (servient owner foreseeably and reasonably relies on holder’s action or abandonment)

Question 24

Property - LICENSE

Answer 24

Privilege to go upon land of another.

Freely revocable UNLESS:

1) Coupled w/ an interest (licensee purchases personal property on licensor’s land and is given permission to come onto land to claim it)
2) Executed (licensee expends $ or labor in reliance; becomes revocable until he gets the value out of his expenditure)

Question 25

Property - PROFIT

Answer 25

Non-possessory interest in land giving the holder a right to go onto another’s land and take something off it.

Can ONLY be created expressly or by prescription.

Question 26

Property - COVENANTS - RUNNING OF BURDEN

Answer 26

1) Intent to bind successors - presumed if touches and concerns
2) Notice - actual, constructive, or inquiry
3) Horizontal Privity - set forth in granting instrument between original parties
4) Vertical Privity - successor holds the entire estate held by the covenantor
5) Touch and Concern - makes land more useful or valuable to a party

Question 27

Property - COVENANTS - RUNNING OF BENEFIT

Answer 27

1) Intent
2) Vertical Privity
3) Touch and Concern

Question 28

Property - SERVITUDE

Answer 28

Covenant that, regardless of running w/ land, equity will enforce against assignee of burdened land if he had:

1) Notice and
2) Intent
3) and the covenant Touches and Concerns the land

Question 29

Property - IMPLIED NEGATIVE RECIPROCAL SERVITUDE

Answer 29

Prohibits certain uses that can be implied from a common scheme of development and notice of the negative covenant.

Question 30

Property - VALID DEED

Answer 30

MUST BE:

1) Executed
2) Delivered - presumed if physically handed over, recorded, or acknowledge before a notary
3) Accepted - presumed if property is valuable

MUST CONTAIN:

1) words of intent
2) adequate description of property

Question 31

Property - EQUITABLE CONVERSION

Answer 31

When a land sale K is formed, there is a bifurcation of title - seller holds legal, buyers holds equitable.

MAJORITY RULE: the risk of loss follows equitable title

MINORITY: under the Uniform Vender and Purchaser Risk Act, risk of loss remains w/ seller until either legal title or possession has passed to buyer

Question 32

Property - QUITCLAIM DEED

Answer 32

Conveys ONLY what seller has, BUT still includes the implied warranty of marketable title. Therefore, AT CLOSING, seller must present title a reasonably prudent buyer would be willing to accept.

Question 33

Property - WARRANTY DEED

Answer 33

PRESENT COVENANTS - don’t run w/ the land; breached, if ever, at time of conveyance

1) Seisin - title and possession
2) Right to Convey - no restraints on alienation
3) Against Encumberances (other than those of record)

FUTURE COVENANTS - run w/ land; breached at time of claim again title from valid source

1) Quiet Enjoyment - buyer will not be disturbed in lawful possession
2) Warranty - defend title and compensate for losses from undisclosed superior title
3) Further Assurances - perform whatever acts necessary to perfect title

Question 34

Property - RECORDING STATUTES

Answer 34

RACE - whoever records 1st wins

NOTICE - subsequent BFP prevails over prior grantee who fail to record

RACE-NOTICE - subsequent BFP who also records 1st prevails over a prior grantee who failed to record

Question 35

Property - ESTOPPEL BY DEED

Answer 35

When someone purports to transfer title to property he doesn’t currently own, then later acquires it, he will be estopped from denying grantee’s ownership.

Question 36

Property - PURCHASE MONEY MORTGAGE

Answer 36

When, in one continuous operation, a mortgage is given to cover part or all of the purchase price of real property, the mortgage automatically receives priority over other types of mortgages

Question 37

Property - FORECLOSURE

Answer 37

1) Extinguishes all junior interest if lienholders were given notice.
2) Borrower has equitable right of redemption up until foreclosure sale (and may have statutory right beyond that)
3) Deficiency judgment is available if the amount owing is greater than the current value of the property

Question 38

Property - MORTGAGE ASSIGNMENT

Answer 38

If buyer takes SUBJECT TO a mortgage, he has no personal liability for it.

If buyer ASSUMES the mortgage, he becomes primarily and personally liable while the original borrower remains liable secondarily.

Question 39

Property - EQUITABLE SUBROGATION

Answer 39

If someone other than the mortgagor pays off a senior mortgage, he can step into the shoes of the senior mortgagee and bypasses other interests, unless there are countervailing equities in favor of a junior lienholder.

Question 40

Property - DEED OF TRUST

Answer 40

Recordable security interest in property under which trustor conveys bare legal title and agrees to iniation of foreclosure proceedings in the event of a default.

• Same notice required to foreclose as a mtg.
• Can be through non-judicial foreclosure to avoid right of redemption BUT there can be no deficiency judgment UNLESS you use judicial foreclosure AND the property is not a single family residence.

Question 41

Property - LATERAL SUPPORT

Answer 41

Right to be free from collapse or subsidence of land caused by excavation on adjacent land.

STRICT LIABILITY if excavation causes subsidence of land in its natural state or of improved land that would have subsided in such state.

Move prove NEGLIGENCE to recover if improved land would not have subsided in natural state.

Question 42

Property - SUBJACENT SUPPORT

Answer 42

Right to be free from collapse or subsidence of land caused by tunneling under land.

STRICT LIABILITY for land or buildings existing at time of grant.

Must prove NEGLIGENCE for subsequently built buildings.

Question 43

Property - WATER RIGHTS - RIPARIAN DOCTRINE

Answer 43

Water belongs to those owning land abutting a watercourse, who share a right to reasonable use and must submit to the reasonable use of other such owners.

Question 44

Property - WATER RIGHTS - PRIOR APPROPRIATION DOCTRINE

Answer 44

Water belongs to the state, but the right to divert and use it can be acquired by individuals, riparian or not, by priority of beneficial use.