Random Bar Exam Flashcards
What is an easement by implication?
If the easement has been used continuously for a statutory period of time, openly, and it is reasonably necessary for enjoyment of land, it will be allowed to continue (think adverse possession for a easement)
What must be in a deed when it is created
Name of grantee!!
What can render a title unmarketable?
-if a future interest holder does not agree to transfer title,
- any mortgage, covenant, option, easement
-title acquired by adverse possession
-zoning ordinance violation.
What is exoneration
Allows beneficiary of devised real property to use the estate’s remaining assets to pay off any mortgage or debt
is physically handing over a deed required?
No, recording a deed= presumptive delivery to recipient
what type of tenancy requires equal shares
JOINT tenancy. If the conveyance says joint tenants with unequal shares–> Tenancy in common
What do you need for abandonment of a covenant
Requires an affirmative act- more than neglect or disuse- that shows clear intent to relinquish covenant. I.e knocking down a wall
If you assume a mortgage, who is liable on default
Both YOU and the original owner
Will a counter offer terminate an option contract?
NO- an option holder can make counter offer without losing right to exercise option
When a property is foreclosed and there are multiple mortgages, who has priority to get proceeds?
General rule= first in time but if recording act applies, apply it to mortgage. Purchase money mortgage has priority over all
Remedy for breach of equitable covenant
injunctive relief
Remedy for breach of covenant
MONEY
Requirements to create equitable covenant
- in writing
- intent
3.touch and concern - Notice
NO PRIVITY REQUIREMENT
For burden of covenant to run, what is required
- in writing
- intent to bind future owners
3.touch and concern- act the land - notice
- Vertical and HORIZONTAL PRIVITY
if transferring interest- must transfer entire fee simple estate
For benefit of covenant to run, what is required
Don’t need horizontal privity.
1. in writing
2. intent to bind
3. touch and concern
4. notice
5. vertical privity
if transferring interest- can transfer less than entire estate
When is an easement terminated
- abandonment- with affirmative act
- merger of estates
- BPV- if written easement was not recorded and they have no notice, easement is terminated
what is the servient estate
the one burdened- i.e the path to the road goes thru their land
what is the dominant estate
the estate that gets the benefit of the easement, the one that can use the path
3 types of notice
- actual
- inquiry- if reasonable inspection of land or chain of title would discover the person’s interest
- constructive notice- if the prior interest was properly recorded
who would have priority, a Bonafide purchaser for value or someone with adverse possession?
Adverse possession b/c they have NO duty to record
What is the shelter rule
If a bonafide purchaser for value sells property to another party, that party is treated as a bonafide purchaser for value as well- they claim shelter under the BPV even if they knew of prior interest in the land
What can recording acts apply to
Mortgages, leases, easements
who wins in a notice jurisdiction?
a person who buys land without notice of a prior interest- Bonafide purchaser for value w/o notice.
Who wins in race jurisdiction
first to record
who wins in race notice jurisdiction
person who does not have notice and records first.
what is the implied warranty of fitness and suitability
For new home construction- covers hidden and patent defects. If something goes wrong, can sue constructors, builders, developers
6 covenants of title in general warranty deed
3 present covenants
1. seisin- I own the land
2. rt to convey
3. a/encumbrances - no hidden easements
3 future covenants
1. quiet enjoyment- nobody else will claim title
2.warrant- grantor will defend a/ 3rd P claims of title
3.future assurances - promise of good title
which covenants in a general warranty deed run with the land
Future covenants
1. quiet enjoyment
2. warranty
3. future assurances
requirements for valid deed
- must identify both parties
- must be signed by grantor
- must have words of transfer
- must have description of property
If a hunter intended to shoot a deer but instead shot a hiker, is he liable for battery
No, the intent doesn’t transfer b/c shooting deer is legal.
Does a manufacturer have a duty to warn about obvious dangers
NO- no duty to warn about obvious dangers
When is a modification in a service contract binding- in view of new circumstances not anticipated at the the time contract was made?
When it is fair and reasonable
If you buy a house where the previous owner was the dominant estate for an easement, do you now have the easement on your home?
Yes, appurtenant easement passes with dominant estate
Is an independent contractor liable for their own torts? In what instance would they not be liable
Yes, usually liable but if the contractor is carrying out inherently dangerous activity or where public policy consideration makes the duty non-delegable then they are NOT liable
To recover under strict products liability, what types of injury do you need to show?
Personal injury or property damage, damage to the defect product alone is NOT enough
If you have title insurance and you die, do your heirs inherit the title insurance if they inherit the house?
Yes, the heirs get the house and the title insurance
if the grantee of the deed dies before the deed is executed but after recorded, what happen to the the deed
The deed is void b/c the guy is dead at time of transfer
what are the damages for destruction of an item in conversion
= full market value of the item at time of conversion. NOT loss of use and not cost to repair
If there is modification of a loan to increase the number of payments but NOT the rate or principal, does that change the priority of the loan in comparison to others
NO
when does an EQUITABLE right of redemption happen
BEFORE the foreclosure sale
when does a STATUTORY right of redemption happen
after foreclosure sale
What does warranty deed for a home promise
Title is clear from defects- mortgages and easements. IT does NOT make promises about the physical quality of the home- ie. termites
if an offeror who is a merchant provides an assurance to keep an offer open in a signed writing, what is the max period that offer can stay open?
3 months - even if a loner period is stated… UNLESS the offeree gives consideration
if both parties don’t show up on day they are supposed to for service contract what happens?
performance is discharged.
what is course of dealings
how parties have worked together in previous transactions
in an auction, when can a bidder withdraw a bid
anytime before completion of sale
if an offer says “we have the right to cancel at any time” what does that mean about the contract?
It is illusory and it does not form a contract UNLESS circumstances change so the offer imposes obligation on both parties AND the offer is accepted after the change in circumstances
Does a promise of a charitable donation require detrimental reliance?
No- just that the promisor reasonably expected to induce reliance on the promise
what type of tenancies can engage in partition action?
Anyone- JT or T in common
is it acceptable to allow a debtor to delay payment
Yes but you need additional consideration for it to be enforceable
Can co tenants agree NOT to partition
Yes, if the agreement is clear and the time limit is reasonable
If a co-tenant makes necessary repairs, do the other co-tenants need to reimburse him?
no. no right to reimburse for necessary repairs
what is ouster
when a co-tenant denies another co-tenant access to the property. Can get injunction to get access or get damages for value of use. BUT you must ask for access and be denied
how is rent from a 3rd P divided among T in common?
according to ownership interests
How many preemptory challenges does each side get
Three
Can a mortgage sever a JT?
Only in a Title theory state. NOT in a lien theory jurisdiction
If there is a lien on a JT, what happens when the JT dies
the lien terminates, surviving tenants are NOT encumbered
if there are three JT, what shares do they have
They must be equal so 1/3, 1/3, 1/3
what are the 4 unities of joint tenancy
Possession, title, time and interest- all needed to create and maintain joint tenancy
how is a passage from a learned treatise admissible
As substantive evidence AND as basis of expert’s opinion
What is non Hearsay - PPPP
ALL ADMISSIBLE AS SUBSTANTIVE EVIDENCE
prior id- D is testifying about someone they id’d earlier
prior inconsistent statement- made under oath, doesn’t match current testimony
Prior consistent statement- to refute that he is lying now.
party admission- made by a party to the lawsuit
if a statement is made during a NON-emergency to police is it admissible?
No
is strict adherence to a closing date for RE contract important?
No, unless there is a time is of the essence clause
for an express easement, if the use of the easement is expanded, does that violate the easement
No, expansion of use is fine
“Due on sale” clause for RE- what are some exceptions to enforceability
If the property transfers to a JT at death, transfer to spouse or child, transfer to ex spouse in divorce, transfer to living trust of borrower, granting lease for less than 3 yrs w/option to purchase
what is a “contract for deed” mortgage alternative
a buyer takes immediate possession while seller retains title until final payment is made. Sometimes buyers get $ they paid back if they default.
Can mortgages have prepayment prohibition or fees
Yes
In a foreclosure sale, what notice is required to others
must give notice to junior interest holders otherwise junior interest holders interest will remain after sale
Does a COMMERCIAL landlord have a duty to make repairs
NO
contributory negligence
plaintiff is barred from recovering damages if they are even a little at fault
pure comparative negligence
P and D get % of damages for the exact % they were at fault
modified comparative negligence
If P was more than 50% at fault, it bars P from recovering
Can the option to purchase the home in a lease be assigned to a different person than the person holding the lease
No
For a contract for sale of land, is a writing required to cancel/rescind the contract
No
When are liquidated damages not recoverable
If they constitute a penalty, i.e over 15% of purchase price
Elements of easement by implication
- continuous
- apparent or known
- reasonably necessary
what is a future money mortgage
grants interest in their home for a loan- i.e like reverse mortgage
what is an easement
right to USE the property of another
what is a covenant
a promise to do or not do something on the property
what is constructive notice
party is deemed to have constructive notice of all prior interests properly recorded
what is inquiry notice
if reasonable inspection of land or chain of title would discover x’s ownership
Is a Bonafide purchaser for value protected from adverse possession
No- b/c adverse possessors no duty to record
Does a grantee need to sign a deed
No
What is an assignment and in an assignment who is liable for rent
giving ALL of the rest of lease to another person. Assignee is liable for rent along with original tenant
What is a sublease and who is liable for rent
Giving anything less than all of lease to subtenant. Subleasee does not owe anything to landlord
What is open and notorious use of land
must use land as a reasonable owner would
What is hostile use of land
using land w/o owner’s permission
If you take title subject to adverse possession, what about an easement on the land
You are still subject to any easement
What is the covenant of quiet enjoyment and what types of leases does it apply to
for commercial leases
When landlord disrupts POSSESSION OF TENANT
breach is usually constructive eviction-
1) LL substantially interfered with T’s use and enjoyment of land
2) tenant gives notice and time to fix but LL doesn’t
3) tenant can vacate
What is the Implied Warranty of Habitability and what types of properties does it apply to
Residential properties only
To maintain property so it is suitable for residential use- i.e functioning heat, water
If breach- must give notice and LL opportunity to fix
If LL doesn’t fix- can stay and deduct rent, stay and fix yourself or move out.
what are the two duties of a tenant
Pay rent and avoid waste
when can a tenant withhold rent
- if LL breaches covent of quiet enjoyment- renter can withhold payment
- if LL breaches implied w of habitability- can deduct rent until fixed or stop paying
In a RESIDENTIAL lease only, what is a critical duty of a landlord
make repairs
in a lease agreement for a tenancy at will, if the lease has a clause that only one party has the right to terminate, what is the effect of that?
It may be deemed unconscionable b/c tenancy at will= both parties can terminate
What is considered a private nuisance
Anything that would be intolerable to a normal person such as vibration, pollution of stream/soil, smoke, foul odors, loud noises
What is a public nuisance
Something that violates the law. The individual P must show he suffered different harm than the rest of the community
If a person takes a property SUBJECT TO the mortgage, are they liable for the mortgage
NO- only if it says you assumed the mortgage are you liable. The default is SUBJECT TO.
When is a co-tenant entitled to receive reimbursement for necessary repairs
If she gives notice to the other co-tenants
Does RAP apply to leases?
NO
Elements of promissory estoppel
- Reasonable expectation of reliance
- Reasonable and detrimental reliance
- Injustice avoided by enforcement
Elements for a contracting party’s duty to be discharged b/c of impracticability
- unexpected/extraordinary event makes it impractical for party to perform
- Contract was formed under a basic assumption that event would not occur
- Party seeking discharge was not at fault in having that event occur
In a personal services contract what is an example of impracticability
Death of performing party or incapacitation, can also be from destruction of thing needed for performance or prohibition by a new law
Formula for calculating expectation damages
Loss in value (what was promised minus what was received)+ other loss (consequential damages) MINUS costs avoided and loss avoided by mitigated expenses
