Property ALR Flashcards
A landlord leased a building to a tenant for a 10-year term. Two years after the term began, the tenant subleased the building to a sublesee for a 5-year term. Under the terms of the sublease, the sublesee agreed to make monthly rent payments to the tenant.
Although the sublesee made timely rent payments to the tenant, the tenant did not forward four of those payments to the landlord. The tenant has left the jurisdiction and cannot be found. The landlord has sued the sublesee for the unpaid rent.
There is no applicable statute.
If the court rules that the sublesee is not liable to the landlord for the unpaid rent, what will be the most likely reason?
A) The sublesee is not in privity of estate or contract with the landlord
B) The sublesee’s rent payments to the tenant fully discharged the sublesee’s obligation to pay rent to the landlord
C) A sublesee is responsible to the landlord only as a surety for unpaid rent owed by the tenant
D) The sublease constitutes a novation of the original lease
A) The sublesee is not in privity of estate or contract with the landlord
The correct answer is A. In a sublease, the tenant transfers a right of possession for a time shorter than the balance of the leasehold. Therefore, the sublessee and the tenant are in privity of estate with each other, but only the tenant remains in privity of estate with the landlord. There also is no privity of contract between the sublessee and the landlord, because the sublessee made no promise, either to the landlord or to the tenant, to pay rent to the landlord. Lacking privity, the sublessee is not liable to the landlord for the rent. Although privity may not be required under an equitable servitude theory, a finding for the sublessee would mean that the court did not use such a theory.
Answer B is incorrect. The sublessee had no obligation to pay rent to the landlord. In a sublease, the tenant transfers a right of possession for a time shorter than the balance of the leasehold. Therefore, the sublessee and the tenant are in privity of estate with each other, but only the tenant remains in privity of estate with the landlord. There also is no privity of contract between the sublessee and the landlord, because the sublessee made no promise, either to the landlord or to the tenant, to pay rent to the landlord. Lacking privity, a sublessee is not liable to the landlord for the rent. Although privity may not be required under an equitable servitude theory, a finding for the sublessee would mean that the court did not use such a theory.
Answer C is incorrect. In a sublease, the tenant transfers a right of possession for a time shorter than the balance of the leasehold. Therefore, the sublessee and the tenant are in privity of estate with each other, but only the tenant remains in privity of estate with the landlord. There also is no privity of contract between the sublessee and the landlord, because the sublessee made no promise, either to the landlord or to the tenant, to pay rent to the landlord. Lacking privity, the sublessee is not liable to the landlord for the rent and also is not a surety for the tenant.
Answer D is incorrect. A novation occurs when a tenant seeks to avoid future liability for rent after an assignment and the landlord agrees to release the tenant from such liability. An assignment occurs when the tenant transfers the entire period of time remaining on the lease agreement. Here, the tenant only transferred a portion of the remaining time on the lease agreement, and the tenant did not seek a release or novation from the landlord.
A mother executed a will devising vacant land to her son. The mother showed the will to her son.
Thereafter, the son purported to convey the land to a friend by a warranty deed. The friend paid value for the land and promptly recorded the deed without having first conducted any title search. The friend never took possession of the land.
The mother later died, and the will devising the land to her son was duly admitted to probate.
Thereafter, the friend conducted a title search for the land and asked the son for a new deed. The son refused, because the value of the land had doubled, but he offered to refund the purchase price to the friend.
The friend has sued to quiet title to the land.
Is the friend likely to prevail?
A) No, because the friend failed to conduct a title search before purchasing the land
B) No, because the son had no interest in the land at the time of conveyance.
C) Yes, because of the doctrine of estoppal by deed
D) Yes, because the deed was recorded
C) Yes, because of the doctrine of estoppal by deed
Answer C is correct. The doctrine of estoppel by deed (sometimes referred to as after-acquired title) provides that even if the grantor has no title to the land at the time the deed is delivered, the title automatically passes to the grantee when title is so acquired, provided that the grantor asserts the quality of title conveyed in the deed. In this case, the son conveyed to the friend by a warranty deed with no exceptions.
Answer A is incorrect. A buyer may want to search the title before purchasing land to determine if title is as called for in the contract, but such a search is not required. The doctrine of estoppel by deed (sometimes referred to as after-acquired title) provides that even if the grantor has no title to the land at the time the deed is delivered, title automatically passes to the grantee when title is so acquired, provided that the grantor asserts the quality of title conveyed in the deed. In this case, the son conveyed to the friend by a warranty deed with no exceptions.
Answer B is incorrect. It is true that the son had no interest in the land at the time of conveyance. The doctrine of estoppel by deed (sometimes referred to as after-acquired title), however, provides that in such a case title automatically passes to the grantee when the title is so acquired, provided that the grantor asserts the quality of title conveyed in the deed. In this case, the son conveyed to the friend by a warranty deed with no exceptions.
Answer D is incorrect. Recording has no effect on title in this case. The doctrine of estoppel by deed (sometimes referred to as after-acquired title) provides that even if the grantor has no title to the land at the time the deed is delivered, the title automatically passes to the grantee when title is so acquired, provided that the grantor asserts the quality of title conveyed in the deed. In this case, the son conveyed to the friend by a warranty deed with no exceptions. It is irrelevant to the doctrine of estoppel by deed whether the deed was recorded or not.
A landowner conveyed his land by quitclaim deed to his daughter and son as “joint tenants in fee simple.” The language of the deed was sufficient to create a common-law joint tenancy, which is unmodified by statute.
The daughter then duly executed a will which devised his interest in the land to a cousin.
A year after executing his will, the son died of a heart attack. A short time later, the daughter died in an automobile accident.
Neither the son nor the daughter had ever married. The daughter’s friend and the cousin are still alive.
After both wills have been duly probated, who owns what interest in the land?
A) The cousin owns the fee simple
B) The daughter’s friend and the cousin own equal shares as tenants in common
C) The daughter’s friend owns the fee simple
D) The daughter’s friend and the cousin own equal shares as joint tenants
C) The daughter’s friend owns the fee simple
Answer C is correct. One of the characteristics of a joint tenancy is the right of survivorship. This provides that upon a joint tenant’s death her interest passes by operation of law to the surviving joint tenants. In this case, the son and daughter owned the property as joint tenants. Therefore, when the son died, his interest passed to the daughter, thereby making the daughter the sole owner of the property. Upon her death her interest passed to her friend (the person appointed in her will to take her interest in the property).
Answers A, B and D are incorrect for the reasons stated above.
Johnson and Tenniel owned Brownacre as joint tenants with the right of survivorship.
Johnson executed a mortgage on Brownacre to Lowden in order to secure a loan.
Subsequently, but before the indebtedness was paid to Lowden, Johnson died intestate with Stokes as her only heir at law.
The jurisdiction in which Brownacre is located recognizes the title theory of mortgages.
In an appropriate action, the court should determine that title to Brownacre is vested.
A) Half in Tenniel, free of the mortgage and half in Stokes, subject to the mortgage
B) Half in Tenniel and half in Stokes, with both subject to the mortgage
C) In Tenniel, free and clear of the mortgage
D) In Tenniel, with the entire interest subject to the mortgage
Answer A is correct. The facts indicate that the jurisdiction follows a title theory of mortgages. This means that the execution of a mortgage by a joint tenant will sever the joint tenancy immediately upon its execution – thereby transforming the joint tenant executing the mortgage to a tenant in common with the other joint tenants. Thus, once Johnson executed the mortgage with Lowden, the joint tenancy between Johnson and Tenniel was severed. As tenants in common, their interests would then be inheritable by their respective estates. This would mean that Johnson’s interest would pass to Stokes, his heir, subject to the mortgage.
Answers B, C and D are incorrect for the reasons stated above.
A wealthy heiress, who owned a large parcel of vacant land, executed a deed to convey the vacant land to her nephew. She told her nephew who was then 19, about the deed and said that she would give it to him when he reached 21 and had received his undergraduate college degree. Shortly afterward, the nephew searched the heiress’ desk, found and removed the deed, and recorded it.
A month later, the nephew executed an instrument in the proper form of a warranty deed purporting to convey the vacant land to his fiancee. He delivered the deed to his fiancee, pointing out that the deed recited that it was given in exchange for “$1 and other good and valuable consideration,” and that to make it valid his fiancee must pay him $1. His fiancee, impressed and grateful, did so. Together, they went to the recording office and recorded the deed. The fiancee assumed the nephew had owned the vacant land, and knew nothing about the nephew’s dealings with the heiress. Neither the heiress’ deed to her nephew nor the nephew’s deed to his fiancee said anything about any conditions.
The recording act of the jurisdiction provides: “No conveyance shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law”. Two years passed.
The nephew turned 21, then graduated from college. At the graduation party, the heiress was chatting with the fiancee and for the first time learned the foregoing facts. The age of majority of majority in the jurisdiction is 18 years. The heiress brought an appropriate action against the fiancee to quiet title to the vacant land.
For what party will the court decide?
A) The fiancee, because the nephew has satisfied the heiress’ oral conditions
B) The fiancee, because the deed to her was recorded
C) The heiress because the nephew’s deed to his fiancee before the nephew satisfied the heiress’ conditions was void, as his fiancee had paid only nominal consideration
D) The heiress, because her deed to the nephew was not delivered
Answer D is correct. In order to pass title to property the owner must properly execute a valid deed to the property, the deed must be delivered to the grantee, and the grantee must accept the deed. Delivery occurs when the grantor has the intent to be immediately bound by the terms of the deed. Here, no delivery has taken place because the heiress did not have the intent to be immediately bound by the transfer of title to the nephew. Rather, when she executed the deed and spoke with nephew she intended that the nephew receive the property two years after the deed was executed. Thus, title never passed to the nephew.
Answer A is incorrect. Even though Nephew satisfied the conditions (i.e. Nephew turned 21 and obtained his degree), such oral conditions placed on delivery are considered invalid.
Answer B is incorrect. A recording does not validate an otherwise invalid transfer.
Answer C is incorrect because no consideration is needed to make a deed valid.
Owens contracted to sell a tract of land to Painter. At closing, Painter accepted a warranty deed from Owens.
Painter later attempted to sell the land to Thompson, who refused to perform after discovering that Owens had conveyed an easement for a highway across the land before Painter bought the property.
Painter then sued Owens for damages for failing to provide marketable title pursuant to their contract.
Which of the following arguments will most likely succeed in Owens’ defense?
A) The existence of the easement does not violate the contract
B) Painter’s cause of action must be based on the deed and not on the contract
C) The mere existence of an easement which is not being used does not give rise to a cause of action
D) The proper remedy is rescission of the deed
The correct answer is B. The warranty of marketability is implied in every land sale contract. However, this warranty extinguishes at the closing. Any promises relating to title made by the seller to the buyer after the closing will be contained in the deed. Only violations of these promises will provide a buyer with a cause of action. In this case, Painter learned of the encumbrance after the deed had been passed. Had he learned of this prior to the closing, he would have been able to avoid the contract because this would make title unmarketable. However, after title passed his only recourse against Owens would be for violating a warranty in the deed, not for damages under their contract.
Answers A, C and D are incorrect for the reasons stated above.
30 years ago, a landowner conveyed land by the warranty deed to a church “so long as the land herein conveyed is used as the site for the principal religious edifice maintained by said church.”
20 years ago, the landowner died intestate, survived by a single heir.
1 year ago, the church dissolved and its church building situated on the land was demolished. There is no applicable statute. The common law Rule Against Perpetuities is unmodified in the jurisdiction.
In an appropriate action, the landowner’s heir and the attorney general, who is the appropriate official to assert public interests in charitable trusts, contest the right to the land.
In such action, who will prevail?
A) The landowner’s heir, as successor to the landowner’s possibility of reverter
B) The attorney general, because cy pres should be applied to devote the land to religious purposes to carry out the charitable intent of the landowner
C) The landowner’s heir, because a charity cannot convey assets donated to it
D) The attorney general, because the landowner’s attempt to restrict the church’s fee simple violated the Rule Against Perpetuities
Answer A is correct. A fee simple determinable is created when the grantor conveys property to the grantee, and places a condition upon the grantee’s ownership, such that if the grantee or the grantee’s heirs or assigns violate that condition, the property will revert back to the grantor or the grantor’s heirs or assigns. The future interest created in the grantor and grantor’s heirs and assigns is known as a possibility of reverter. In this case, the church’s ownership interest in the property was subject to the condition that it used the property to maintain its “principal religious edifice” on the site. This condition was later violated when the church dissolved and destroyed the church building on the property. The landowner’s heir would thus be entitled to the property, as the heir’s future interest vested upon the violation of the condition.
Answer B is incorrect because the doctrine of cy pres is meant to honor the grantor’s intent. Here, the grantor’s intent was clear, and violated upon the demolition of the church structure.
Answer C is an incorrect statement of law.
Answer D is incorrect because possibilities of reverter are not subject to the Rule Against Perpetuities.
When a homeowner became ill, he properly executed a deed sufficient to convey his home to his nephew, who was then serving overseas in the military. Two persons signed as witnesses to qualify the deed for recordation under an applicable statute. The homeowner handled the deed to his nephew’s friend and said, “I want the nephew to have my home. Please take this deed for him.” Shortly thereafter, the nephew’s friend learned that the homeowner’s death was imminent.
One day before the homeowner’s death, the nephew’s friend recorded the deed. The nephew returned home shortly after the homeowner’s death. The nephew’s friend brought him up to date, and he took possession of the home. The homeowner died intestate, leaving a daughter as his sole heir. She asserted ownership of his home. The nephew brought an appropriate action against her to determine title to the home. The law of the jurisdiction requires only two witnesses for a will to be properly executed.
If the court rules for the nephew and against the daughter, what is the most likely explanation?
A) The delivery of the deed was accomplished by the recording of the deed
B) The homeowner’s death consummated a valid gift causa mortis to the nephew
C) The deed was delivered when the homeowner handed it to the nephew’s friend
D) The homeowner’s properly executed deed was effective as a testamentary document
The correct answer is C. A gift may be made of real estate. To do this, the grantor must validly executed and deliver a deed to the grantee, and the grantee must accept the deed. In this case, the homeowner validly executed the deed to the nephew, and delivery occurred when the homeowner physically handed the deed to the nephew’s friend as the agent of the nephew. While the nephew did not expressly accept the deed at that time, acceptance was satisfied because it is implied in the absence of an express rejection by the grantee. Therefore, the homeowner could not recall the gift.
Answer A is incorrect. Although the recording of a deed may raise the presumption of delivery, here the delivery occurred prior to the recordation of the deed. Delivery occurred when the homeowner physically handed the deed to the nephew’s friend as the agent of the nephew, with the intent to pass the title.
Answer B is incorrect. A gift causa mortis may only be made of personal property. In addition, the gift was not made in view of pending death from a stated peril. The facts only note that the homeowner was ill. This was a valid inter vivos gift of real property which was irrevocable on delivery of the deed to the nephew’s friend.
Answer D is incorrect. A testamentary document takes effect at the death of the testator and must have been executed with the requisite testamentary intent. The homeowner wanted the nephew to have title immediately and thus delivered the deed to the nephew’s friend. The homeowner did not want to postpone delivery until his death. This was a valid inter vivos gift of real property which was irrevocable on delivery of the deed to the nephew’s friend.
A husband and wife acquired land as common law joint tenants with right of survivorship. One year later, without his wife’s knowledge, the husband executed a will devising the land to his best friend. The husband subsequently died.
Is the wife now the sole owner of the land?
A) No, because a joint tenant has the unilateral right to end a joint tenancy without the consent of the other joint tenant
B) No, because the wife’s interest in the husband’s undivided 50% ownership in the land adeemed
C) Yes, because of the doctrine of after-acquired title
D) Yes, because the devise to the friend did not sever the joint tenancy
The correct answer is D. Although as a general rule a joint tenant’s interest is freely alienable during his or her lifetime without the consent of the other joint tenant(s), that interest cannot be devised in a will. In this case, on the death of the husband, the right of survivorship controls over the husband’s will, causing wife to become the sole owner of the land as the surviving joint tenant.
Answers A, B and C are incorrect for the reasons stated above.
A buyer validly contracted in writing to buy land from a seller. The contract had no contingencies and was silent as to risk of loss if there damage to, or destruction of, property improvements between contract and closing, and as to any duty to carry insurance. As soon as the parties signed the contract, the seller(who had already moved out) canceled her insurance covering the land. The buyer did not know this and did not obtain insurance.
A few days later, 3 weeks before the agreed closing date, the building on the land was struck by lightning and burned to the ground. There is no applicable statute. In an appropriate action, the buyer asserted the right to cancel the contract and to recover his earnest money. The seller said the risk of fire loss passed to the buyer before the fire, so the buyer must preform.
If the seller prevails, what is the most likely explanation?
A) Once the parties signed the contract, only the buyer had an insurable interest and so could have protected against this loss
B) Upon execution of the contract, the buyer became the equitable owner of the land under the doctrine of equitable conversion
C) The seller’s cancellation of her casualty insurance practically construed the contract to transfer the risk of loss to the buyer.
D) The buyer’s constructive possession arising from the contract gave him the affirmative duty of protecting against loss by fire
Answer B is correct. Although jurisdictions differ on which party has the risk of loss, a finding for the seller in this case means the jurisdiction hearing the case places the risk of loss on the equitable owner of the property, the buyer, under the doctrine of equitable conversion.
Answer A is incorrect. When a contract for the sale of land contains no contingencies, both the seller and the buyer have an insurable interest once the contract is signed. In this case, at the time the building was destroyed, the seller had the legal interest and the buyer had the equitable interest under the doctrine of equitable conversion. Although jurisdictions differ on which party has the risk of loss, a finding for the seller in this case means the jurisdiction hearing the case places the risk of loss on the equitable owner of the property, the buyer, under the doctrine of equitable conversion.
Answer C is incorrect. In a contract for the sale of land, absent a provision to the contrary, neither the seller nor the buyer has a duty to carry insurance. In this case, the seller’s cancellation of the insurance would not transfer the risk of loss to the buyer and would not be a basis for a court to find for the seller. Although jurisdictions differ on which party has the risk of loss, a finding for the seller in this case means the jurisdiction hearing the case places the risk of loss on the equitable owner of the property, the buyer, under the doctrine of equitable conversion.
Answer D is incorrect. In a contract for the sale of land, absent a provision to the contrary, neither the seller nor the buyer has a duty to carry insurance. Accordingly, this option cannot accurately describe the basis for a court to find for the seller. Although jurisdictions differ on which party has the risk of loss, a finding for the seller in this case means the jurisdiction hearing the case places the risk of loss on the equitable owner of the property, the buyer, under the doctrine of equitable conversion.
6 years ago, the owner of a tract of land executed and delivered to his cousin an instrument in the proper form of a warranty deed, purporting to convey the land to “my cousin and his heirs.” At that time, the cousin was a widower who had one child, a daughter.
3 years ago, the cousin executed and delivered to a buyer an instrument in the proper form of a warranty deed, purporting to convey the land to the buyer. The daughter did not join in the deed. The buyer was and still is unmarried and childless.
The only possibly applicable statute in the jurisdiction states that any deed will be construed to convey the grantor’s entire estate, unless expressly limited.
Last month, the cousin died, never having remarried. The daughter is his only heir.
Who now owns the land?
A) The daughter, because the cousin’s death ended the buyer’s life estate pur autre vie
B) The buyer in fee simple pursuant to the cousin’s deed
C) The daughter and the buyer as joint tenants, because both survived the cousin
D) The daughter and the buyer as tenants in common of equal shares
Answer B is correct. The original deed from the owner to “my cousin and his heirs” is the typical language of a deed granting a fee simple absolute. Therefore, the cousin had a fee simple absolute. A fee simple absolute is fully and freely devisable, descendible, and alienable. Because a fee simple is freely alienable, i.e. freely transferable during one’s lifetime, the deed from the cousin to the buyer establishes the buyer as the sole owner of the land. The daughter has no interest in the property.
Answers A, C and D are incorrect for the reasons stated above
A landowner orally gave his neighbor permission to share the use of the private road on the landowner’s land so that the neighbor could have more convenient access to the neighbor’s land. Only the landowner maintained the road.
After the neighbor had used the road on a daily basis for 3 years, the landowner conveyed his land to a grantee, who immediately notified the neighbor that the neighbor was not to use the road. The neighbor sued the grantee seeking a declaration that the neighbor had a right to continue to use the road.
Who is likely to prevail?
A) The grantee, because an oral license is invalid
B) The grantee, because the neighbor had a license that the grantee could terminate at any time
C) The neighbor, because the grantee is estopped to terminate the neighbor’s use of the road
D) The neighbor because the neighbor’s use of the road was open and notorious when the grantee purchased the land
The correct answer is B. A license is a privilege to use another’s property temporarily for a specific purpose. The distinguishing characteristics between a license and an easement are (1) licenses are freely revocable, easements are not, (2) express easements must be placed in writing, licenses do not, and (3) an easement holder is responsible for maintain the land upon which the easement sits, a license holder has no maintenance obligations. In this case, the landowner merely gave his neighbor a license, and not an easement, as evidenced by the fact that the agreement was not placed in writing and the neighbor had no maintenance obligations.
Answer A is incorrect. Oral licenses are valid.
Answer C is incorrect because estoppel will only arise in situations in which a person has detrimentally and reasonably relied on the promise of another. Here, there is no indication that the neighbor has relied to his detriment, nor that it would be reasonable to assume that his right to use the road would continue indefinitely.
Answer D is incorrect. Even if the grantee had notice of neighbor’s use of the road, this does not mean that the neighbor was prevented from revoking the neighbor’s license.
Owens owned Whiteacre, a dwelling house situated on a two-acre lot in an area zoned for single-family residential uses only. Although it was not discernible from the outside, Whiteacre had been converted by Owens from a single-family house to a structure that contained three separate apartments, in violation of the zoning ordinance. Further, the conversion was in violation of the building code.
Owens and Peters entered into a valid written contract for the purchase and sale of Whiteacre. The contract provided that Owens was to convey to Peters a marketable title. The contract was silent as to zoning. Peters had fully inspected Whiteacre.
Prior to the closing, Peters learned that Whiteacre did not conform to the zoning ordinance and refused to close although Owens was ready, willing and able to perform his contract obligations. Owens brought an appropriate action for specific performance against Peters.
In that action, Owens should
A) Lose because the illegal conversion of Whiteacre was done by Owens rather than a predecessor
B) Lose, because the illegal conversion of Whiteacre creates the risk of litigation
C) Win, because Owens was able to convey a marketable title
D) Win, because Peters was charged with knowledge of the zoning ordinance prior to entering the contract
Answer B is correct. A warranty that marketable title is being conveyed (i.e. title is not subject to reasonable doubt) is implied in all real estate contracts. The presence of a zoning violation is one ground for title being unmarketable, and allows a buyer to avoid the contract if the buyer discovers the issue before closing takes place. In this case, the facts clearly state that Whiteacre is being used in a manner that violates the city zoning code. Therefore, Owens is not delivering Peters marketable title, and Peters has the option to avoid the contract. Therefore, Owners should lose in his action to compel Peters to go through with the contract.
Answer A is incorrect because the warranty covers all defects with the title, including defects created by the seller’s predecessors.
Answer D is incorrect because it misstates the law. A buyer is not obligated to research the zoning code prior to entering into a real estate contract.
Answer C is incorrect for the reasons stated above.
Arnold and Beverly owned a large tract of land, Blackacre, in fee simple as joint tenants with rights of survivorship. While Beverly was on an extended safari in Kenya, Arnold learned that there were very valuable coal deposits within Blackacre, but he made no attempt to inform Beverly. Thereupon, Arnold conveyed his interest in Blackacre to his wife, Alice, who immediately reconveyed that interest to Arnold. The common-law joint tenancy is unmodified by statute.
Shortly thereafter, Arnold was killed in an automobile accident. His will, which was duly probated, specifically devised his one-half interest in Blackacre to Alice.
Beverly then returned from Kenya and learned what had happened. Beverly brought an appropriate action against Alice, who claimed a one-half interest in Blackacre, seeking a declaratory judgment that she, Beverly, was the sole owner of Blackacre.
In this action, who should prevail?
A) Alice, because Arnold’s will severed the joint tenancy.
B) Alice, because Arnold and Beverly were tenants in common at the time of Arnold’s death.
C) Beverly, because the joint tenancy was reestablished by Alice’s reconveyance to Arnold.
D) Beverly, because Arnold breached his fiduciary duty as her joint tenant.
Answer B is correct. A joint tenant’s interest may not be passed by will or through intestacy, but is freely transferable during the joint tenant’s lifetime. If a joint tenant transfers his or her interest during his or her lifetime, the interest is severed from the joint tenancy and the recipient of that interest is becomes a tenant in common with the remaining owners. In this case, Arnold and Beverly were originally joint tenants. However, Arnold severed his interest from the joint tenancy by conveying his interest to Alice, thereby created a tenancy in common between Alice and Beverly. This later became a tenancy in common between Arnold and Beverly when Alice conveyed her interest back to Arnold. Thus, because the right of survivorship no longer existed between Arnold and Beverly, upon Arnold’s death his interest passed to Alice pursuant to his will.
Answer A is incorrect because a joint tenancy can never be severed by a will.
Answer C is incorrect because the conclusion relies on a non-existent rule. If a joint tenant transfers her interest during her lifetime, the joint tenancy is severed. It does not reform, even if the seller later reacquires an interest in the property.
Answer D is incorrect because it misinterprets the rights of joint tenants to transfer their interests. As stated above, joint tenants are free to transfer their interests during their lifetime.
Owen owned Greenacre, a tract of land, in fee simple. By warranty deed he conveyed Greenacre to Lafe for life “and from and after the death of Lafe to Rem, her heirs and assigns.” Subsequently Rem died, devising all of her estate to Dan. Rem was survived by Hannah, her sole heir at law. Shortly thereafter Lafe died, survived by Owen, Dan and Hannah.
Title to Greenacre now is in
A) Dan, because the vested remainder in Rem was transmitted by her will
B) Hannah, because she is Rem’s heir
C) Owen, because the contingent remainder never vested and Owen’s reversion was entitled to possession immediately upon Lafe’s death
D) Either Owen or Hannah, depending upon whether the destructibility of contingent remainders is recognized in the applicable jurisdiction
Answer A is correct. Future interests are freely alienable, devisable and descendible. In this case, Owen gave Lafe a life tenancy, and Rem a vested remainder. Rem’s vested remainder was freely devisable (i.e. transferable by will), and thus passed to Dan pursuant to Rem’s will. Therefore, Dan will have title to the property.
Answer B is incorrect for the reason stated above.
Answers C and D are incorrect because Rem’s remainder interest was not contingent.
Blackacre is a large tract of land owned by a religious order known as The Seekers. On Blackacre, The Seekers erected a large residential building where its members reside. Blackacre is surrounded by rural residential properties and its only access to a public way is afforded by an easement over a strip of land 30 feet wide. The easement was granted to The Seekers by deed from Sally, the owner of one of the adjacent residential properties.
The Seekers built a driveway on the strip, and the easement was used for 20 years without incident or objection. Last year, as permitted by the applicable zoning ordinance, The Seekers constructed a 200-bed nursing home and a parking lot on Blackacre, using all of Blackacre that was available for such development. The nursing home was very successful, and on Sundays visitors to the nursing home overflowed the parking facilities on Blackacre and parked all along the driveway from early in the morning through the evening hours.
After two Sundays of the resulting congestion and inconvenience, Sally erected a barrier across the driveway on Sundays preventing any use of the driveway by anyone seeking access to Blackacre. The Seekers objected. Sally brought an appropriate action to terminate the easement.
The most likely result in this action is that the court will hold for
A) Sally, because The Seekers excessively expanded the use of the dominant tenement.
B) Sally, because the parking on the driveway exceeded the scope of the easement.
C) The Seekers, because Sally’s use of self-help denies her the right to equitable relief.
D) The Seekers, because expanded use of the easement does not terminate the easement.
The correct answer is D. An easement cannot terminate as a result of overuse. The only remedy for the owner of the servient parcel is to receive injunctive relief, requiring the easement holder to use the easement within its proper scope.
Answers A, B and C are incorrect for the reason stated above.
Ollie owned a large tract of land known as Peterhill. During Ollie’s lifetime, Ollie conveyed the easterly half (East Peterhill) situated in the municipality of Hawthorn to Abel, and westerly half (West Peterhill), situated in the municipality of Sycamore, to Betty. Each of the conveyances, which were promptly recorded, contained the following language: the parties agree for themselves and their heirs and assigns that the premises herein conveyed shall be used only for residential purposes; that each lot created within the premises herein conveyed shall contain not less than five acres; and that each lot shall have not more than one single-family dwelling. This agreement shall bind all successor owners of all or any portion of Peterhill and any owner of any part of Peterhill may enforce this covenant.
After Ollie’s death, Abel desired to build houses on one-half acre lots in the East Peterhill tract as authorized by current applicable zoning and building codes in Hawthorn. The area surrounding East Peterhill in Hawthorn was developed as a residential community with homes built on one-half acre lots. West Peterhill was in a residential area covered by the Sycamore zoning code, which allowed residential development only on five-acre tracts of land.
In an appropriate action brought by Betty to enjoin Abel’s proposed construction on one-half acre lots, the court will find the quoted restriction to be
A) valid, because the provision imposed an equitable servitude
B) valid, bit only so long as the original grantees from Ollie own their respective tracts of Peterhill
C) invalid, because of the change of circumstance in the neighborhood
D) invalid, because it conflicts with the applicable zoning code
Answer A is correct. An equitable servitude is a promise a landowner makes regarding the way in which the land will be used. This promise runs with the land, meaning that it binds all future owners of the property, so long as the promise touches and concerns the land, the original landowner and promisee intended for the promise to run with the land, and the new owner of the land had notice of the promise when she received the conveyance. In this case, by accepting the deed to East Peterhill Able agreed to the restriction contained therein. This restriction (requiring lots to be built on no less than five acres) touches and concerns the land because it affects the way the land is used, and based on the language in the deed, was clearly meant to restrict not only Able in his use of the land, but anyone who owned the land. Furthermore, Beatty has standing to enforce this restriction because she is in privity with Ollie, and has the same restriction in her deed.
Answer B is incorrect for the reasons stated above (all persons who own these pieces of property will be bound by the restriction).
Answer C is incorrect. While changed circumstances may allow a grantee to avoid compliance with an equitable servitude, this only applies if other landowners who are bound by the restriction in question have violated the restriction. Here that is not the case (landowners of other unrelated properties are using their properties in this manner, not landowners who were bound by the restriction).
Answer D is incorrect. In determining whether to enforce an equitable servitude or covenant courts do not consider whether the use in question would be allowed under the zoning code.
A man obtained a bank loan secured by a mortgage on an office building that he owned. After several years, the man conveyed the office building to a woman, who took title subject to the mortgage. The deed to the woman was not recorded. The woman took immediate possession of the building and made the mortgage payments for several years.
Subsequently, the woman stopped making payments on the mortgage loan, and the bank eventually commenced foreclosure proceedings in which the man and the woman were both named parties. At the foreclosure sale, a third party purchased the building for less than the outstanding balance on the mortgage loan. The bank then sought to collect the deficiency from the woman.
Is the bank entitled to collect the deficiency from the woman?
A) No, because the woman did not record the deed from the man.
B) No, because the woman is not personally liable on the loan.
C) Yes, because the woman took immediate possession of the building when she bought it from the man.
D) Yes, because the woman was a party to the foreclosure proceeding.
Answer B is correct. The woman took title to the office building subject to the mortgage but did not assume the mortgage debt. The debt is to be satisfied out of the building. The building is the principal, and the man, as transferor, is the only party liable for any deficiency. This situation can be contrasted with one in which a buyer expressly assumes the mortgage debt. In that case, the buyer would be primarily liable for any deficiency and the seller, absent a release by the mortgagee, would be secondarily liable.
Answer A is incorrect. The woman took title to the office building subject to the mortgage debt, which means that the debt was to be satisfied out of the building. The building is the principal, and the man, as transferor, is the only party liable for any deficiency. This situation can be contrasted with one in which a buyer expressly assumes the mortgage debt. In that case, the buyer would be primarily liable for any deficiency and the seller, absent a release by the mortgagee, would be secondarily liable. Recording the deed would give the bank constructive notice of the transfer but would have no effect on the collection of the deficiency.
Answer C is incorrect. The woman took title to the building subject to the mortgage. Her title to the building allowed her to take possession of the building, but her possession has no effect on the payment of any deficiency judgment. Taking title to the building subject to the mortgage means that the debt is to be satisfied out of the building. The building is the principal, and the man, as transferor, is the only party liable for any deficiency. This situation can be contrasted with one in which a buyer expressly assumes the mortgage debt. In that case, the buyer would be primarily liable for any deficiency and the seller, absent a release by the mortgagee, would be secondarily liable.
Answer D is incorrect. Because the woman took title to the building subject to the mortgage debt, she was a necessary party to the foreclosure proceeding. However, the fact that she took title to the building subject to the mortgage means that the debt is to be satisfied out of the building. The building is the principal, and the man, as transferor, is the only party liable for any deficiency. This situation can be contrasted with one in which a buyer expressly assumes the mortgage debt. In that case, the buyer would be primarily liable for any deficiency and the seller, absent a release by the mortgagee, would be secondarily liable.
A homeowner owned property improved with a dwelling. A developer owned the adjoining unimproved lot. The developer executed and delivered a deed granting to the homeowner an easement over the westerly 15 feet of the unimproved lot for convenient ingress and egress to a public street, even though the homeowner’s lot did abut another public street. The homeowner did not record the deed from the developer. After the homeowner constructed and started using a driveway within the described 15-foot strip in a clearly visible manner, the developer borrowed $10,000 cash from the bank and gave the bank a mortgage on the unimproved lot. The mortgage was promptly and properly recorded. The homeowner then recorded the deed from the developer granting the easement.
The developer subsequently defaulted on her loan payments to the bank. The recording act of the jurisdiction provides: “No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law.” The bank brought a foreclosure action as to the unimproved lot and seeks to have the homeowner’s easement subordinate to the banks mortgage.
Which of the following is the strongest argument that the homeowner can make to prevent the bank from succeeding in its action to declare the easement subordinate to the bank’s mortgage?
A) The recording of the deed granting the easement prior to the foreclosure action protects homeowner’s rights
B) The homeowner’s easement is appurtenant to the unimproved lot and thus cannot be separated from the unimproved lot
C) The visible use of the easement by the homeowner put the bank on notice of the easement
D) The easement provides access from the homeowner’s property to a public street
The correct answer is C. Pursuant to a “notice” recording statute, a subsequent purchaser will have a superior interest in a parcel of land, if that purchaser is a bona fide purchaser or mortgagee (gave value with no notice of any earlier unrecorded interests). There are three types of notice: actual, inquiry and record. Inquiry notice arises in situations where a reasonable person in a purchaser’s shoes would have realized that an earlier unrecorded conveyance had been made, based on an inspection of the land. In this case, the bank’s interest will not take priority over the easement pursuant to the notice recording statute, because the facts state that homeowner’s easement across the developer’s land was “clearly visible.” Therefore, bank was on inquiry notice of the easement at the time it received its interest from the developer.
Answers A, B and D are incorrect for the reasons stated above.
A man owned 60 acres of land, fronting on a town road. Two years ago, the man sold to a buyer the back 30 acres. The 30 acres sold to the buyer did not adjoin any public road. The man’s deed to the buyer expressly granted a right-of-way over a specified strip of the man’s retained 30 acres, so the buyer could reach the town road. The deed was promptly and properly recorded. Last year, the buyer conveyed the back 30 acres to his son. They had never discussed the right-of-way over the man’s land to the road, and the buyer’s deed to his son made no mention of it. The son later learned of the right-of-way and began to use it as the buyer had, but the man sued to enjoin such use by the son.
For whom will the court decide?
A) The man, because the buyer’s easement in gross was not transferable
B) The man, because the buyer’s deed failed expressly to transfer the right-of-way to his son
C) The son, because he has an easement by necessity
D) The son, because the easement appurtenant passed to him as a result of the buyer’s deed to him
Answer D is correct. An easement appurtenant is created when an easement holder’s property is benefited by the use of the easement. Such easements pass automatically with the conveyance of the dominant estate, regardless of whether they are mentioned in the conveyance. Therefore, the son has an easement appurtenant regardless of the fact that buyer neglected to mention it in the deed.
Answer C is incorrect because this easement was created expressly in the deed from the man to the buyer.
Answers A and B are incorrect for the reasons stated above.
