Property Foundation Kaplan Course MBE Questions Flashcards
A fee simple subject to condition subsequent
is an estate in fee simple that may be terminated by the conveyor, or those claiming under him, upon the happening of a named event.
An estate in fee simple subject to condition subsequent does not end, ipso facto, meaning
upon the happening of the named event, but the estate continues despite the breach of the specified condition until it is divested by the grantor’s power of termination or right of re-entry
A fee simple subject to condition subsequent grantor’s right to re-enter
Is optional. It may be accomplished by either making an entry on the land or bringing an action to recover the estate (ejectment)
What is the first step that needs to be determined when there is a conveyance
it is necessary to determine what interest was conveyed
In distinguishing between a contingent remainder and an executory interest
Always remember that a contingent remainder must follow the natural termination of the preceding estate while an executory interest terminates the prior estate before its natural termination
A condition precedent is a grant that
If this condition occurs, title to the property would pass from grantor to the grantee
An executory interest is
contingent upon the occurrence of a specified even
A shifting executory interest would
“cut short” the preceding fee estate owned by grantor
A life estate is alienable, and a life tenant
A life tenant can convey his or her estate to a third person. A life tenant cannot convey a greater estate than his own. As such, the life estate will extend for the lifetime of life tenant ONLY.
A restraint against alienation of an inheritable future interest from a life tenant is
void where the restraint may continue in effect after the future interest becomes possessory (i.e., mortgage by the life tenant)
According to the common law rule, (in a title theory jurisdiction) a mortgage by one or more owners of a joint owner property
transfers ownership to the mortgagee (in a title theory jurisdiction). Applying this rule, a mortgage of joint tenancy property, given by one of the joint tenants, results in a termination of the joint tenancy because it terminates the unity of title as well as the unity of interest
tenancy in common has no
unity of interest
Property owned in Joint Tenancy with Rights of Survival terminates when any of the following occur
1- Death of one of the joint tenants
2- joint tenant takes a mortgage in a Title Theory Jurisdiction
3- Joint tenant conveys his/her interest
4- Joint tenant reclassifies their interest as tenants in common
It is important to point out that the filing of a complaint for partition does not result
in the severance of a joint tenancy. The rationale for this rule is that the complaint may be withdrawn at any time before the equity court compels partition. Moreover, the right of survivorship will attach if a joint tenant dies prior to that time.
The doctrine of estoppel by deed (commonly referred to as the after-acquired property doctrine) provides that
when a person executes an instrument conveying a larger estate than he has in land and subsequently acquires such larger estate, it inures by estoppel to the benefit of the grantee.
When a deed is made it purports to convey only the interest which the grantor presently owns in the property, the doctrine of estoppel by deed has
no application and any after-acquired estate which comes to the grantor may be kept by him free from the operation of the doctrine”
A license simply
permits one person to come onto land in the possession of another without being a trespasser. Because a license is revocable
Ticket holders to baseball games, horse races, polo, hockey contests, and other entertainment spectacles have only
a mere license that is always revocable.
When an easement appurtenant exists and both the dominant and servient tenements subsequently comes under the ownership of the same person
The easement is terminated by operation of law and extinguished because of the merger doctrine. The apparent rationale is that one cannot have an easement in his own property.
Termination of an easement by abandonment requires
non-use PLUS some act that demonstrates the easement holder’s intent to abandon.
A covenant is a
contractual obligation in the title that is created in connection with the transfer of real property. As a general rule, a covenant not only binds and benefits the original obligor and obligee, but it will also “run with the land” to be enforceable against successors in interest.
A covenant is the best way to
assure that each lot owner, even those who did not purchase from the original owner will be obligated to the covenanted terms in the deed
An assignee of a leasehold has what kind of relationship with the landlord
is in privity of estate with the landlord, but not privity of contract if the sublease was only between the tenant and the subtenant
Liability for rent and for observing the other covenants that run with the leasehold can be based on
privity of estate as well as privity of contract
A landlord can recover from the assignee rent obligations that occur
while privity of estate continues or until the assignee (sub-leasee) in turn assigns the leasehold, but not for any rent that might have been owed by the original tenant
A subtenancy is where
the tenant transfers his right of possession for a time shorter than the balance of the leasehold, so that tenant retains a reversion within the leasehold.
A subtenant is neither
in privity of estate nor privity of contract with the landlord.
Lacking privity, a subtenant is
not liable to the landlord to pay rent because the subtenant will pay the tenant
By definition, an assignment occurs
if the tenant transfers the entire estate, or the balance thereof, to the third party.
If a lesser estate is conveyed so that the tenant retains an interest in the leasehold,
the transfer is properly classified a sublease.
Conversely, the tenant’s friends that has a license (or mere permission) to use the property for recreational purposes
is not prohibited by the provisions in the lease
At common law, because a tenant was deemed to receive an estate in land, his rights and duties were treated as independent of the landlord’s rights and duties. Thus, if the landlord promised to keep the property in repair, a breach of this promise
did not relieve the tenant from the duty of paying rent.
According to the common law rationale, the rent was owed as payment for the estate, and the promise to do repairs was merely a collateral promise that could be enforced only by a separate contractual suit brought by the tenant.
This doctrine is generally referred to as the independence of covenants.
There is “NO APPLICABLE STATUTES IN THE JURISDICTION” means
that the common law doctrine applies
The basis for constructive eviction is
the premises were not uninhabitable, but if the premises is habitable, then constructive eviction is does not apply
self-help is, generally, not an appropriate remedy when a landlord fails to make certain improvements or repairs
inasmuch as the tenant had no duty to make such repairs when it is not written into the lease
Under the Anglo-Saxon view, a landlord impliedly warrants that the tenant will have a legal right to
possession of the premises at the beginning of the term
Under the American view, a landlord responsibilities to the tenant related to possession of the premises
The landlord does not have an obligation to actually deliver possession to the tenant
If the landlord wishes to terminate a tenancy of month-to-month
In a month-to-month tenancy, a full month’s notice must be given. This means that if the landlord tells the tenant a day after the rent is due, the tenant has the remainder of the month and the following month
The right of a landowner to have her land supported laterally by the neighboring land
is an absolute right inherent in the land itself.
If there is damage to artificial structures, the majority view
is that recovery is limited to damage to the land in its natural condition and may not include any damage to the artificial structures on the land. This is called the American rule.
The right of lateral support means
The land be in its natural condition. The right of lateral support does not include the right to have the additional weight of artificial structures supported.
If there is negligence on the part of the wrongdoer who removes lateral or subjacent support
then the defendant is liable for all damages that proximately result, including damages to both the land and artificial structures
In order to acquire title to property by adverse possession, the possession must be
(1) exclusive; (2) open and notorious (meaning not secret or clandestine); (3) continuous and peaceable (meaning without interruption); and (4) hostile and adverse (meaning without the dispossessed owner’s permission). The period of adverse possession of one possessor can be “tacked” to the period of adverse possession of another possessor when there is privity between the two.
(4) hostile and adverse; (MBE)
The key element in this question is hostile and adverse. Under the majority view, it is generally stated that the adverse possessor must intend to hold adversely against the whole world, including the rightful owner, but the really significant fact is that he hold against the rights of the legal owner (i.e., in derogation of, not in subordination to, the rights of the legal owner)
The motives of the adverse possessor are irrelevant. Whether he intends a wrongful disseisin or whether he occupies what he believes to be his own, he acquires title, because it is the visible and adverse possession with intent to possess that constitutes its adverse character, not the remote views or mistaken belief of the possesson
In a tenancy in common,
the only unity is that of possession. Each tenant owns an undivided fractional part of the property. Upon the death intestate of a tenant in common, his interest descends to his heirs. There is no right of survivorship.
Delivery of a deed to real property is a question of
the state of mind of the grantor. Courts look to the intention of the grantor that the deed shall operate as a conveyance. To effectuate such a conveyance, title will pass to the grantee if there be a physical deed and the grantor intends it to operate as a conveyance, even if the grantor retains possession of the physical paper on which the deed is written. It is not material whether the physical deed is in the possession of the grantee, the grantor, or a third person
The doctrine of equitable conversion
acts as a risk allocator in land-sale contract situations. In its original application, the doctrine treats the purchaser in a land-sale contract as the owner of the property from the moment the contract is signed, even if legal title will not pass until closing.
Under the equitable conversion doctrine if the subject property is damaged while the escrow is pending
The purchaser bears the loss.
The Uniform Vendor and Purchaser’s Risk Act
placing the risk of loss during such a period on the seller until either (1) the purchaser takes possession of the property (when she would presumably realize she needed to insure it); or (2) legal title passes
Under equitable conversion, the purchaser is regarded
the “equitable” owner of the land, although legal title remains with the seller. In the absence of a contract provision to the contrary, the weight of authority applies the equitable conversion doctrine and shifts the risk of loss to the vendee for casualty losses that occur during the existence of the vendor-vendee relationship. By the same token, the doctrine also “shifts the benefits to the purchaser as well”
In a contract for the sale of land, where either an express or an implied contract provision calls for conveyance of marketable title, the time at which such marketable title must be conveyed is at the closing of escrow. In this respect, the seller
seller is entitled to rely upon the proceeds of sale to retire an outstanding encumbrance which could otherwise render title unmarketable.
a pure “notice” type of recording statute which generally provides,
“an unrecorded conveyance or other instrument is invalid as against a subsequent bona fide purchaser for value and without notice.” Under this type of recording statute, the subsequent bona fide purchaser prevails over the prior interest whether the subsequent purchaser records or not.
A deed effectively transfers title to property
after there has been a valid delivery. The facts indicate that a valid delivery occurred. Not only did the owner intend for the deed to be effective, but it was also duly recorded.
The difference between a transfer of the mortgage property “subject to” and “assuming” the mortgage is the
difference between personal liability and the lack thereof on behalf of the grantee. In a conveyance of land “subject to” a mortgage, the grantee is not personally liable for the debt that the mortgage secures. Conversely, in a sale of land in which the purchaser “assumes the mortgage,” the purchaser or grantee is personally liable for the mortgage debt.
In order for the grantee (neighbor) to be personally liable to the mortgagee (bank),
the grantee must “assume the mortgage.
A race notice jurisdiction
protects a bona fide purchaser for value without notice who records first.
a purchase money mortgage requires that
The mortgagee does NOT already own the property when he borrowed money from
A mortgage lien does not have automatic priority
over a judgment lien.
Exoneration is
once the original mortgagee conveyed the property to another party (who “assumed the mortgage” by promising to repay it), the subsequent owner became secondarily liable as surety. Therefore, the lender must first proceed against either the property or the party who assumed the mortgage (who is primarily liable) before asserting its rights against the original borrower
One who personally stands as surety, or whose interest in mortgaged property occupies that position of a surety
is entitled to exoneration against the person or property primarily bound to pay the debt.
