Property Foundation Kaplan Course MBE Questions

Question 1

A fee simple subject to condition subsequent

Answer 1

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.

Question 2

An estate in fee simple subject to condition subsequent does not end, ipso facto, meaning

Answer 2

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

Question 3

A fee simple subject to condition subsequent grantor’s right to re-enter

Answer 3

Is optional. It may be accomplished by either making an entry on the land or bringing an action to recover the estate (ejectment)

Question 4

What is the first step that needs to be determined when there is a conveyance

Answer 4

it is necessary to determine what interest was conveyed

Question 5

In distinguishing between a contingent remainder and an executory interest

Answer 5

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

Question 6

A condition precedent is a grant that

Answer 6

If this condition occurs, title to the property would pass from grantor to the grantee

Question 7

An executory interest is

Answer 7

contingent upon the occurrence of a specified even

Question 8

A shifting executory interest would

Answer 8

“cut short” the preceding fee estate owned by grantor

Question 9

A life estate is alienable, and a life tenant

Answer 9

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.

Question 10

A restraint against alienation of an inheritable future interest from a life tenant is

Answer 10

void where the restraint may continue in effect after the future interest becomes possessory (i.e., mortgage by the life tenant)

Question 11

According to the common law rule, (in a title theory jurisdiction) a mortgage by one or more owners of a joint owner property

Answer 11

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

Question 12

tenancy in common has no

Answer 12

unity of interest

Question 13

Property owned in Joint Tenancy with Rights of Survival terminates when any of the following occur

Answer 13

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

Question 14

It is important to point out that the filing of a complaint for partition does not result

Answer 14

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.

Question 15

The doctrine of estoppel by deed (commonly referred to as the after-acquired property doctrine) provides that

Answer 15

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.

Question 16

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

Answer 16

no application and any after-acquired estate which comes to the grantor may be kept by him free from the operation of the doctrine”

Question 17

A license simply

Answer 17

permits one person to come onto land in the possession of another without being a trespasser. Because a license is revocable

Question 18

Ticket holders to baseball games, horse races, polo, hockey contests, and other entertainment spectacles have only

Answer 18

a mere license that is always revocable.

Question 19

When an easement appurtenant exists and both the dominant and servient tenements subsequently comes under the ownership of the same person

Answer 19

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.

Question 20

Termination of an easement by abandonment requires

Answer 20

non-use PLUS some act that demonstrates the easement holder’s intent to abandon.

Question 21

A covenant is a

Answer 21

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.

Question 22

A covenant is the best way to

Answer 22

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

Question 23

An assignee of a leasehold has what kind of relationship with the landlord

Answer 23

is in privity of estate with the landlord, but not privity of contract if the sublease was only between the tenant and the subtenant

Question 24

Liability for rent and for observing the other covenants that run with the leasehold can be based on

Answer 24

privity of estate as well as privity of contract

Question 25

A landlord can recover from the assignee rent obligations that occur

Answer 25

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

Question 26

A subtenancy is where

Answer 26

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.

Question 27

A subtenant is neither

Answer 27

in privity of estate nor privity of contract with the landlord.

Question 28

Lacking privity, a subtenant is

Answer 28

not liable to the landlord to pay rent because the subtenant will pay the tenant

Question 29

By definition, an assignment occurs

Answer 29

if the tenant transfers the entire estate, or the balance thereof, to the third party.

Question 30

If a lesser estate is conveyed so that the tenant retains an interest in the leasehold,

Answer 30

the transfer is properly classified a sublease.

Question 31

Conversely, the tenant’s friends that has a license (or mere permission) to use the property for recreational purposes

Answer 31

is not prohibited by the provisions in the lease

Question 32

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

Answer 32

did not relieve the tenant from the duty of paying rent.

Question 33

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.

Answer 33

This doctrine is generally referred to as the independence of covenants.

Question 34

There is “NO APPLICABLE STATUTES IN THE JURISDICTION” means

Answer 34

that the common law doctrine applies

Question 35

The basis for constructive eviction is

Answer 35

the premises were not uninhabitable, but if the premises is habitable, then constructive eviction is does not apply

Question 36

self-help is, generally, not an appropriate remedy when a landlord fails to make certain improvements or repairs

Answer 36

inasmuch as the tenant had no duty to make such repairs when it is not written into the lease

Question 37

Under the Anglo-Saxon view, a landlord impliedly warrants that the tenant will have a legal right to

Answer 37

possession of the premises at the beginning of the term

Question 38

Under the American view, a landlord responsibilities to the tenant related to possession of the premises

Answer 38

The landlord does not have an obligation to actually deliver possession to the tenant

Question 39

If the landlord wishes to terminate a tenancy of month-to-month

Answer 39

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

Question 40

The right of a landowner to have her land supported laterally by the neighboring land

Answer 40

is an absolute right inherent in the land itself.

Question 41

If there is damage to artificial structures, the majority view

Answer 41

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.

Question 42

The right of lateral support means

Answer 42

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.

Question 43

If there is negligence on the part of the wrongdoer who removes lateral or subjacent support

Answer 43

then the defendant is liable for all damages that proximately result, including damages to both the land and artificial structures

Question 44

In order to acquire title to property by adverse possession, the possession must be

Answer 44

(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.

Question 45

(4) hostile and adverse; (MBE)

Answer 45

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

Question 46

In a tenancy in common,

Answer 46

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.

Question 47

Delivery of a deed to real property is a question of

Answer 47

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

Question 48

The doctrine of equitable conversion

Answer 48

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.

Question 49

Under the equitable conversion doctrine if the subject property is damaged while the escrow is pending

Answer 49

The purchaser bears the loss.

Question 50

The Uniform Vendor and Purchaser’s Risk Act

Answer 50

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

Question 51

Under equitable conversion, the purchaser is regarded

Answer 51

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”

Question 52

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

Answer 52

seller is entitled to rely upon the proceeds of sale to retire an outstanding encumbrance which could otherwise render title unmarketable.

Question 53

a pure “notice” type of recording statute which generally provides,

Answer 53

“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.

Question 54

A deed effectively transfers title to property

Answer 54

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.

Question 55

The difference between a transfer of the mortgage property “subject to” and “assuming” the mortgage is the

Answer 55

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.

Question 56

In order for the grantee (neighbor) to be personally liable to the mortgagee (bank),

Answer 56

the grantee must “assume the mortgage.

Question 57

A race notice jurisdiction

Answer 57

protects a bona fide purchaser for value without notice who records first.

Question 58

a purchase money mortgage requires that

Answer 58

The mortgagee does NOT already own the property when he borrowed money from

Question 59

A mortgage lien does not have automatic priority

Answer 59

over a judgment lien.

Question 60

Exoneration is

Answer 60

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

Question 61

One who personally stands as surety, or whose interest in mortgaged property occupies that position of a surety

Answer 61

is entitled to exoneration against the person or property primarily bound to pay the debt.