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The Bar Exam > Real Property > Flashcards

Real Property Flashcards

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1
Q

Fee simple absolute

A

to A and his heirs

to A

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2
Q

Life estate

A

to A for life

to A for the life of B

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3
Q

Determinable

A

for so long as
until
while
during

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4
Q

Subject to condition subsequent

A

but if
upon condition that
provided that

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5
Q

Subject to an executory interest

A

to A for so long as… and if not… to B

to A, but if… to B

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6
Q

Reversion

A

grantor transfers a shorter estate than she owns (grantor with a fee simple transfers a life estate)

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7
Q

Possibility of reverter

A

grantor transfers a determinable estate

becomes possessory automatically upon termination of the prior determinable estate

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8
Q

Right of entry (power of termination)

A

reserved on the grant of an estate subject to a condition subsequent

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9
Q

executory interests

A

cut short the prior estate

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10
Q

remainders

A

possessory only until on the natural termination of the prior estate

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11
Q

remainders are vested if

A

made in an ascertained person and with no conditions precedent, otherwise are contingent

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12
Q

class gifts

A

remainders in a class are contingent if no member of the class yet exists, vested if all possible members exist, and vested subject to open if more members might come to exist

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13
Q

rule of convenience

A

an open class closes when any member can demand possession

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14
Q

rule against perpetuities

A

any future interest that is not certain to vest or fail within a life in being plus 21 years is void

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15
Q

application of RAP

A

only the interest that violates RAP is stricken

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16
Q

affirmative easement

A

right to use someone else’s land

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17
Q

negative easement

A

right to prevent something on another’s land

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18
Q

easement appurtenant

A

involves two tracts of land

dominant parcel has the benefit, which runs to grantees

servient parcel has the burden, which runs to grantees with notice

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19
Q

easement in gross

A

involves one tract of land

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20
Q

creation of easements

A

can happen by express grant or reservation (SOF applies), by implication, or by prescription

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21
Q

Creation of easement by express grant or reservation

A

SOF applies

an oral grant creates a license, which is not an interest in land

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22
Q

Creation of easement by implication

A

a) by use existing before a tract was divided

b) by necessity for a landlocked parcel

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23
Q

Creation of easement by prescription

A

acquired through adverse, open and notorious, and continuous use for the statutory period

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24
Q

Termination of easements

A

can end by stated condition, unity of ownership between easement and servient estate, abandonment, estoppel, prescription, necessity, release, or condemnation

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25
Q

profits

A

right to enter another’s land to remove products of the soil

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26
Q

real covenants

A

run with the land

written promises to do or refrain from doing something on land, with a usual remedy of money damages

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27
Q

real covenants: requirements for burden to run to later grantees

A

intent, notice, horizontal privity, vertical privity, touch and concern

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28
Q

real covenants: requirements for benefit to run with the land

A

intent, vertical privity, touch and concern

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29
Q

equitable servitudes

A

covenants with equitable remedies (injunction, specific performance)

implied from a common scheme for development if notice exists

equitable defenses apply: unclean hands, estoppel, acquiescence, changed neighborhood conditions

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30
Q

equitable servitudes: requirements for burden to run to later grantees

A

intent, notice, touch and concern

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31
Q

equitable servitudes: requirements for benefit to run to later grantees

A

intent, touch and concern

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32
Q

land sale contracts SOF exception

A

no writing is required if buyer has partially performed through possession, improvement, or payment

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33
Q

land sale contracts time for performance is

A

presumed to be not of the essence

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34
Q

marketable title

A

contracts contain an implied covenant that seller will deliver title free from an unreasonable risk of litigation at closing

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35
Q

deeds

A

deeds must 1) be in writing 2) sufficiently describe the land 3) identify the grantee and grantor 4) evidence an intention to convey the land and 5) be signed by the grantor

the parties may be identified by name or by describing them in some other way (to my eldest daughter)

if the deed is left with the identity of the grantee left blank, some courts presume the person taking delivery can fill in the name of the grantee making the deed valid

are effective on delivery and acceptance

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36
Q

delivery of a deed occurs when

A

words or conduct show the grantor’s intent to immediately pass title

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37
Q

deeds are accepted when

A

acceptance is presumed

38
Q

general warranty deed

A

covenants against any title defects created by the grantor or prior titleholders

best deed!

39
Q

special warranty deed

A

covenants against title defects created by the grantor

40
Q

quitclaim deed

A

no covenants; transfers whatever interest grantor has

worst deed! horrible for buyer!

41
Q

adverse possession

A

(1) actual entry giving rise to exclusive possession that (2) open and notorious (3) adverse/ hostile (no permission) (4) continuous throughout the statutory period

exclusive- not sharing possession with the true owner or the general public
open and notorious- such as the usual would make of the land and sufficient to put true owner on notice of fact of possession
hostile- without consent (even if entered with an invalid deed, that is hostile because they are claiming their right is superior) (also subjective intent is irrelevant)
continous- possession that the average owner would make of the property under the circumstances

42
Q

adverse possession tolling

A

statute does not begin to run if the owner is under a disability to sue THE DAY the possession begins

43
Q

joint tenants

A

two or more continents with rights of survivorship

44
Q

tenants by the entirety

A

two spouses with rights of survivorship

45
Q

tenants in common

A

two or more covenants with NO right of survivorship

created by the severance of a joint tenancy or tenancy by the entirety

default when nothing else was specified

46
Q

notice

A

actual notice- grantee actually knew
inquiry notice- a reasonably inquiry would have revealed
record notice- what a search of the real property records would have revealed

47
Q

notice statutes

A

later BFP wins if earlier grant was not recorded

48
Q

race-notice statute

A

later BFP wins only if she records before the earlier grantee records

49
Q

race statute

A

first to record wins, actual notice is not relevant

50
Q

foreclosure terminates which interests

A

junior interests only, senior interests remain

51
Q

fixtures

A

items to affixed to land that they become a part of the realty

52
Q

constructive annexation

A

items not physically attached to land are fixtures if they are so uniquely adapted to the real estate that it makes no sense to separate them

ex: keys to doors

53
Q

existing zoning violations

A

render title to land unmarketable

54
Q

variance

A

permission to depart from zoning restriction

55
Q

four unities

A 
time (interests vested at the same time) 
title (interests acquired by same instrument)
interest (interests of the same type and duration)
and possession (interests give identical rights of enjoyment)
56
Q

acts that sever a joint tenancy

A

suit for partition, inter vivos conveyance by one joint tenant, execution of a mortgage by one joint tenant in a title theory state

57
Q

co-tenant’s rights in joint tenancy or tenancy in common

A

mortgage her interest, share in rents by third parties, possess the entire state, compel contribution for necessary repairs, taxes, and payments due on mortgages

no right to compel contribution for improvements

58
Q

Lien theory vs title theory

A

Lien theory means no severance (majority rule on the MBE)

Title theory means severance

59
Q

Quiet enjoyment

A

Every lease contains an implied covenant that neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises

this covenant is breached by the tenant’s total or partial actual eviction from the leased premises

runs with the land- so if L assigns his right to L1, both L and L1 are liable if X tries to eject T

60
Q

total actual eviction

A

occurs when the landlord or a paramount title holder excludes the tenant from the entire leased premises

this terminates the tenant’s obligation to pay rent

61
Q

partial actual eviction

A

occurs when the tenant is excluded from only part of the leased premises

62
Q

partial eviction by landlord

A

relieves tenant of paying rent for the entire premises even though the tenant continues in possession of the remainder of the premises

63
Q

partial eviction by a paramount title holder

A

results in an apportionment of rent, the tenant is liable for the reasonable rental value for the portion he continues to possess

64
Q

implied warranty of habitability for residential tenancies

A

landlord covenants that the premises are suitable for human residence

standard applied is local housing code

CANNOT be waived by T

65
Q

constructive eviction

A

when the landlords breach of duty renders the premises unsuitable for occupancy

tenant may vacate premises, terminate the lease, and sue for damages

conditions

1) the breach must be by the LL or persons acting for him
2) the breach must substantially and materially deprive the tenant of her use and enjoyment of the premises
3) T must give L reasonable notice and a reasonable time to repair
4) T must vacate premises within a reasonable time

66
Q

Latent defect

A

If, at the time the lease is entered into, the LL knows of a dangerous condition that T could not discover upon reasonable inspection, the L has a duty to disclose the dangerous condition.

67
Q

If L breached warranty of habitability, T can

A

(1) terminate the lease
(2) make repairs and offset their cost against future rent
(3) abate rent
(4) seek damages

68
Q

L assigns interest to L2, who is liable to T

A

A landlord may assign the rents and reversion interest that he owns. The assignee is liable to the tenants for performance of all covenants made by the landlord in the lease, provided that those covenants RUN WITH THE LAND (touches and concerns the land). The original landlord is also liable to all of the covenants he made in the lease.

69
Q

Rule in Dumpor’s Case

A

If a landlord consents to one transfer that violates a covenant against assignment or sublease, he waives his right to avoid future transfers.

70
Q

If a T transfers her interest via assignment or sublease against a covenant against doing so

A

The transfer is NOT void. However, the landlord usually may terminate the lease under the lease terms or a statute or sue for damages.

71
Q

requirements for a prescriptive easement

A
  1. open and notorious
  2. adverse
  3. continuous and uninterrupted for the statutory period
72
Q

surcharged

A

the easement’s legal scope was exceeded

the easement does not terminate by operation of law nor does such use give the servant owner a power of termination. the servient owner may sue to enjoin the use.

73
Q

terminating an easement by prescription

A

one must interfere with the easement through long continued possession and enjoyment of the servient estate in a way that would indicate to the public that no easement right existed

74
Q

abandonment of an easement

A

if the holder manifests an intent to never use the easement again, evidenced by either physical acts or oral expressions of a desire to abandon accompanied by a long period of nonuse

75
Q

easement implied by operation of law (quasi-easement)

A

An easement may be implied if, prior to the time the tract is divided, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part,” and a court determines that the parties intended the use to continue after division of the property. To give rise to an easement, a use must be apparent and continuous at the time the tract is divided.

76
Q

Easement vs license

A

easements must be in writing - SOF

77
Q

easement by necessity

A

An easement by necessity arises when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line. The owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient.

78
Q

A covenant touches and concerns the land when

A

it makes the land itself more useful or valuable to the benefited party.

79
Q

mutual right of endorsement

A

When a subdivision is created with similar covenants in all deeds, there is a mutual right of endorsement (each lot owner can enforce against every other lot owner) if two things are satisfied: (i) a common scheme for development existed at the time that sales of parcels in the subdivision began; and (ii) there was notice of the existence of the covenant to the party sued.

80
Q

reciprocal negative servitudes

A

When a developer subdivides land into several parcels and some of the deeds contain negative covenants but some do not, negative covenants or equitable servitudes binding all the parcels in the subdivision may be implied under the doctrine of “reciprocal negative servitudes.” Two requirements must be met before reciprocal negative servitudes will be implied: (i) a common scheme for development, and (ii) notice of the covenants. The second requirement may be satisfied by actual notice, record notice, or inquiry notice.

81
Q

encroachment, marketability of title

A

Regardless of whether an adjacent landowner is encroaching on the seller’s land or vice versa, an encroachment will not render title unmarketable if: 1. It is very slight (only a few inches) and does not inconvenience the owner on whose land it encroaches; 2. The owner encroached upon has indicated that he will not sue on it; or 3. It has existed for so long (many decades) that it has become legal by adverse possession (if the state recognizes adverse possession title as marketable). In contrast, a significant encroachment constitutes a title defect that renders title unmarketable.

82
Q

if buyer finds out title is unmarketable, buyer must

A

notify the seller and give a reasonable time to cure the defects.even if this requires extending the closing date, and even if time is of the essence. If the seller fails to cure the defects, then the buyer may rescind the contract, sue for damages for breach, get specific performance with abatement of the purchase price, or (in some jurisdictions) require the seller to quiet title.

83
Q

easements are encumbrances unless

A

the easement is provided for in the contract.

Exception: A majority of courts have held that a beneficial easement that was visible or known to the buyer does not constitute an encumbrance.

84
Q

adverse possession tacking

A

For purposes of determining title by adverse possession, tacking is not available when one adverse claimant ousts the other or the first claimant abandons and the next claimant goes into possession.

Periods of adverse possession between two successive claimants may be tacked together to make up the full statutory period if there is privity of possession between the claimants. Privity is satisfied if the first adverse claimant purports to transfer the land to the next; i.e., the subsequent possessor takes by descent, by devise, or by deed purporting to convey title.

85
Q

adverse possession- future interests

A

If a landowner does not commence an action to eject a would-be adverse possessor before the statute of limitations expires, she is barred from suing for ejectment, and title vests in the possessor. However, the statute of limitations DOES NOT RUN against the holder of a future interest (e.g., remainder, reversion) until her interest becomes possessory. The future interest holder has no right to possession until the prior present estate terminates, and thus no cause of action for ejectment accrues until that time.

86
Q

If an adverse possessor uses land in violation of a recorded real covenant for the limitations period, she takes

A

title free of the real covenant

87
Q

Adverse possession when claimant only possessed a portion of a unitary tract

A

Actual possession of a portion of a unitary tract of land is sufficient adverse possession as to give title to the whole of the tract of land after the statutory period, as long as there is a reasonable proportion between the portion actually possessed and the whole of the unitary tract, and the possessor has color of title to the whole tract. Color of title is a document that purports to give title, but for reasons not apparent from its face does not. Usually, the proportion will be held reasonable if possession of the portion was sufficient to put the owner or community on notice of the fact of possession.

88
Q

color of title

A

possession of a document purporting to convey title

89
Q

statutory redemption

A

the right of a mortgagor to recover the land after the foreclosure sale has occurred, usually by paying the foreclosure dale price

90
Q

equitable redemption

A

right of a mortgagor to recover the land by paying the amount overdue on the mortgage, plus interest, at any time before the foreclosure sale. If the mortgagor has defaulted and the mortgage or note contained an acceleration clause, then the full balance of the mortgage must be paid in order to redeem in equity.

91
Q

What happens when a tenant is under a lease for land that is partially condemned?

A

In partial condemnation cases, the landlord-tenant relationship continues, as does the tenant’s obligation to pay the entire rent for the remaining period of the lease. The tenant is, however, entitled to share in the condemnation award to the extent that the condemnation affected the tenant’s rights under the lease.

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