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Random Bar Exam Flashcards

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1
Q

What is an easement by implication?

A

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)

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2
Q

What must be in a deed when it is created

A

Name of grantee!!

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3
Q

What can render a title unmarketable?

A

-if a future interest holder does not agree to transfer title,
- any mortgage, covenant, option, easement
-title acquired by adverse possession
-zoning ordinance violation.

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4
Q

What is exoneration

A

Allows beneficiary of devised real property to use the estate’s remaining assets to pay off any mortgage or debt

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5
Q

is physically handing over a deed required?

A

No, recording a deed= presumptive delivery to recipient

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6
Q

what type of tenancy requires equal shares

A

JOINT tenancy. If the conveyance says joint tenants with unequal shares–> Tenancy in common

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7
Q

What do you need for abandonment of a covenant

A

Requires an affirmative act- more than neglect or disuse- that shows clear intent to relinquish covenant. I.e knocking down a wall

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8
Q

If you assume a mortgage, who is liable on default

A

Both YOU and the original owner

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9
Q

Will a counter offer terminate an option contract?

A

NO- an option holder can make counter offer without losing right to exercise option

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10
Q

When a property is foreclosed and there are multiple mortgages, who has priority to get proceeds?

A

General rule= first in time but if recording act applies, apply it to mortgage. Purchase money mortgage has priority over all

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11
Q

Remedy for breach of equitable covenant

A

injunctive relief

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12
Q

Remedy for breach of covenant

A

MONEY

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13
Q

Requirements to create equitable covenant

A
  1. in writing
  2. intent
    3.touch and concern
  3. Notice

NO PRIVITY REQUIREMENT

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14
Q

For burden of covenant to run, what is required

A
  1. in writing
  2. intent to bind future owners
    3.touch and concern- act the land
  3. notice
  4. Vertical and HORIZONTAL PRIVITY

if transferring interest- must transfer entire fee simple estate

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15
Q

For benefit of covenant to run, what is required

A

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

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16
Q

When is an easement terminated

A
  1. abandonment- with affirmative act
  2. merger of estates
  3. BPV- if written easement was not recorded and they have no notice, easement is terminated
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17
Q

what is the servient estate

A

the one burdened- i.e the path to the road goes thru their land

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18
Q

what is the dominant estate

A

the estate that gets the benefit of the easement, the one that can use the path

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19
Q

3 types of notice

A
  1. actual
  2. inquiry- if reasonable inspection of land or chain of title would discover the person’s interest
  3. constructive notice- if the prior interest was properly recorded
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20
Q

who would have priority, a Bonafide purchaser for value or someone with adverse possession?

A

Adverse possession b/c they have NO duty to record

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21
Q

What is the shelter rule

A

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

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22
Q

What can recording acts apply to

A

Mortgages, leases, easements

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23
Q

who wins in a notice jurisdiction?

A

a person who buys land without notice of a prior interest- Bonafide purchaser for value w/o notice.

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24
Q

Who wins in race jurisdiction

A

first to record

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25
Q

who wins in race notice jurisdiction

A

person who does not have notice and records first.

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26
Q

what is the implied warranty of fitness and suitability

A

For new home construction- covers hidden and patent defects. If something goes wrong, can sue constructors, builders, developers

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27
Q

6 covenants of title in general warranty deed

A

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

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28
Q

which covenants in a general warranty deed run with the land

A

Future covenants
1. quiet enjoyment
2. warranty
3. future assurances

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29
Q

requirements for valid deed

A
  1. must identify both parties
  2. must be signed by grantor
  3. must have words of transfer
  4. must have description of property
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30
Q

If a hunter intended to shoot a deer but instead shot a hiker, is he liable for battery

A

No, the intent doesn’t transfer b/c shooting deer is legal.

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31
Q

Does a manufacturer have a duty to warn about obvious dangers

A

NO- no duty to warn about obvious dangers

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32
Q

When is a modification in a service contract binding- in view of new circumstances not anticipated at the the time contract was made?

A

When it is fair and reasonable

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33
Q

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?

A

Yes, appurtenant easement passes with dominant estate

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34
Q

Is an independent contractor liable for their own torts? In what instance would they not be liable

A

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

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35
Q

To recover under strict products liability, what types of injury do you need to show?

A

Personal injury or property damage, damage to the defect product alone is NOT enough

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36
Q

If you have title insurance and you die, do your heirs inherit the title insurance if they inherit the house?

A

Yes, the heirs get the house and the title insurance

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37
Q

if the grantee of the deed dies before the deed is executed but after recorded, what happen to the the deed

A

The deed is void b/c the guy is dead at time of transfer

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38
Q

what are the damages for destruction of an item in conversion

A

= full market value of the item at time of conversion. NOT loss of use and not cost to repair

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39
Q

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

A

NO

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40
Q

when does an EQUITABLE right of redemption happen

A

BEFORE the foreclosure sale

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41
Q

when does a STATUTORY right of redemption happen

A

after foreclosure sale

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42
Q

What does warranty deed for a home promise

A

Title is clear from defects- mortgages and easements. IT does NOT make promises about the physical quality of the home- ie. termites

43
Q

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?

A

3 months - even if a loner period is stated… UNLESS the offeree gives consideration

44
Q

if both parties don’t show up on day they are supposed to for service contract what happens?

A

performance is discharged.

45
Q

what is course of dealings

A

how parties have worked together in previous transactions

46
Q

in an auction, when can a bidder withdraw a bid

A

anytime before completion of sale

47
Q

if an offer says “we have the right to cancel at any time” what does that mean about the contract?

A

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

48
Q

Does a promise of a charitable donation require detrimental reliance?

A

No- just that the promisor reasonably expected to induce reliance on the promise

49
Q

what type of tenancies can engage in partition action?

A

Anyone- JT or T in common

50
Q

is it acceptable to allow a debtor to delay payment

A

Yes but you need additional consideration for it to be enforceable

51
Q

Can co tenants agree NOT to partition

A

Yes, if the agreement is clear and the time limit is reasonable

52
Q

If a co-tenant makes necessary repairs, do the other co-tenants need to reimburse him?

A

no. no right to reimburse for necessary repairs

53
Q

what is ouster

A

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

54
Q

how is rent from a 3rd P divided among T in common?

A

according to ownership interests

55
Q

How many preemptory challenges does each side get

A

Three

56
Q

Can a mortgage sever a JT?

A

Only in a Title theory state. NOT in a lien theory jurisdiction

57
Q

If there is a lien on a JT, what happens when the JT dies

A

the lien terminates, surviving tenants are NOT encumbered

58
Q

if there are three JT, what shares do they have

A

They must be equal so 1/3, 1/3, 1/3

59
Q

what are the 4 unities of joint tenancy

A

Possession, title, time and interest- all needed to create and maintain joint tenancy

60
Q

how is a passage from a learned treatise admissible

A

As substantive evidence AND as basis of expert’s opinion

61
Q

What is non Hearsay - PPPP

A

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

62
Q

if a statement is made during a NON-emergency to police is it admissible?

A

No

63
Q

is strict adherence to a closing date for RE contract important?

A

No, unless there is a time is of the essence clause

64
Q

for an express easement, if the use of the easement is expanded, does that violate the easement

A

No, expansion of use is fine

65
Q

“Due on sale” clause for RE- what are some exceptions to enforceability

A

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

66
Q

what is a “contract for deed” mortgage alternative

A

a buyer takes immediate possession while seller retains title until final payment is made. Sometimes buyers get $ they paid back if they default.

67
Q

Can mortgages have prepayment prohibition or fees

A

Yes

68
Q

In a foreclosure sale, what notice is required to others

A

must give notice to junior interest holders otherwise junior interest holders interest will remain after sale

69
Q

Does a COMMERCIAL landlord have a duty to make repairs

A

NO

70
Q

contributory negligence

A

plaintiff is barred from recovering damages if they are even a little at fault

71
Q

pure comparative negligence

A

P and D get % of damages for the exact % they were at fault

72
Q

modified comparative negligence

A

If P was more than 50% at fault, it bars P from recovering

73
Q

Can the option to purchase the home in a lease be assigned to a different person than the person holding the lease

A

No

74
Q

For a contract for sale of land, is a writing required to cancel/rescind the contract

A

No

75
Q

When are liquidated damages not recoverable

A

If they constitute a penalty, i.e over 15% of purchase price

76
Q

Elements of easement by implication

A
  1. continuous
  2. apparent or known
  3. reasonably necessary
77
Q

what is a future money mortgage

A

grants interest in their home for a loan- i.e like reverse mortgage

78
Q

what is an easement

A

right to USE the property of another

79
Q

what is a covenant

A

a promise to do or not do something on the property

80
Q

what is constructive notice

A

party is deemed to have constructive notice of all prior interests properly recorded

81
Q

what is inquiry notice

A

if reasonable inspection of land or chain of title would discover x’s ownership

82
Q

Is a Bonafide purchaser for value protected from adverse possession

A

No- b/c adverse possessors no duty to record

83
Q

Does a grantee need to sign a deed

A

No

84
Q

What is an assignment and in an assignment who is liable for rent

A

giving ALL of the rest of lease to another person. Assignee is liable for rent along with original tenant

85
Q

What is a sublease and who is liable for rent

A

Giving anything less than all of lease to subtenant. Subleasee does not owe anything to landlord

86
Q

What is open and notorious use of land

A

must use land as a reasonable owner would

87
Q

What is hostile use of land

A

using land w/o owner’s permission

88
Q

If you take title subject to adverse possession, what about an easement on the land

A

You are still subject to any easement

89
Q

What is the covenant of quiet enjoyment and what types of leases does it apply to

A

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

90
Q

What is the Implied Warranty of Habitability and what types of properties does it apply to

A

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.

91
Q

what are the two duties of a tenant

A

Pay rent and avoid waste

92
Q

when can a tenant withhold rent

A
  1. if LL breaches covent of quiet enjoyment- renter can withhold payment
  2. if LL breaches implied w of habitability- can deduct rent until fixed or stop paying
93
Q

In a RESIDENTIAL lease only, what is a critical duty of a landlord

A

make repairs

94
Q

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?

A

It may be deemed unconscionable b/c tenancy at will= both parties can terminate

95
Q

What is considered a private nuisance

A

Anything that would be intolerable to a normal person such as vibration, pollution of stream/soil, smoke, foul odors, loud noises

96
Q

What is a public nuisance

A

Something that violates the law. The individual P must show he suffered different harm than the rest of the community

97
Q

If a person takes a property SUBJECT TO the mortgage, are they liable for the mortgage

A

NO- only if it says you assumed the mortgage are you liable. The default is SUBJECT TO.

98
Q

When is a co-tenant entitled to receive reimbursement for necessary repairs

A

If she gives notice to the other co-tenants

99
Q

Does RAP apply to leases?

A

NO

100
Q

Elements of promissory estoppel

A
  1. Reasonable expectation of reliance
  2. Reasonable and detrimental reliance
  3. Injustice avoided by enforcement
101
Q

Elements for a contracting party’s duty to be discharged b/c of impracticability

A
  1. unexpected/extraordinary event makes it impractical for party to perform
  2. Contract was formed under a basic assumption that event would not occur
  3. Party seeking discharge was not at fault in having that event occur
102
Q

In a personal services contract what is an example of impracticability

A

Death of performing party or incapacitation, can also be from destruction of thing needed for performance or prohibition by a new law

103
Q

Formula for calculating expectation damages

A

Loss in value (what was promised minus what was received)+ other loss (consequential damages) MINUS costs avoided and loss avoided by mitigated expenses

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