Real Property

Question 1

Fee Simple Absolute

Answer 1

“to A” or “to A and his heirs”

Question 2

Life Estate

Answer 2

“to A for life” or “to A for life of B”

Question 3

Defeasible Fees (three types)

Answer 3

Defeasible: to be capable of forfeiture

1. Fee Simple Determinable
2. Fee Simple Subject to Condition Subsequent
3. Fee Simple Subject to Executory Limitation

Question 4

A surcharged easement

Answer 4

If an easement is said to be surcharged, this means the easement’s legal scope was exceeded. The holder of an easement has the right to use another’s land (i.e., the servient tenement), but has no right to possess the land. The scope of an easement is determined by the reasonable intent of the original parties, and when the scope has been specified, these specifics will govern. However, when an easement’s scope has been set out only in general language, courts will interpret it to accommodate the holder’s present and future reasonable needs. In either event, if the easement holder uses the easement in a way that exceeds its legal scope, the easement is surcharged. The servient landowner may enjoin the excess use and possibly sue for damages if the land has been harmed. However, the easement does NOT terminate by operation of law, nor does such use give the servient owner a power of termination.

Question 5

Termination of Easements

Answer 5

1. Stated Conditions
2. Unity of Ownership (merger)
3. Release
4. Abandonment
5. Estoppel
6. Prescription
7. Necessity
8. Condemnation and Destruction

Question 6

Easements as encumbrances

Answer 6

There is an implied covenant in every land sale contract that, at closing, the seller will provide the buyer with marketable title. Marketable title is title reasonably free from doubt, which generally means free from encumbrances and with good record title. Easements are generally considered encumbrances that render title unmarketable; so if an easement is not provided for in the contract, it usually renders the seller’s title unmarketable.

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

Question 7

Requirements for a valid deed

Answer 7

To be valid, a deed must (i) be in writing, (ii) sufficiently describe the land, (iii) identify the grantor and grantee, (iv) evidence an intention to convey the land, and (v) be signed by the grantor. The parties may be identified by name or by describing them in some other way (my eldest daughter). If the deed is delivered with the identity of the grantee left blank, some courts presume that the person taking delivery has authority to fill in the name of the grantee.

Question 8

Adverse Possession

Answer 8

COAH

• Continuous
• Open and notorious
• Actual and exclusive
• Hostile

**Any time someone enters possession with an invalid deed, the possession is hostile because they are claiming rights superior to those of the true owner. An invalid deed does not equal permission!

Question 9

Recording Acts - exception

Answer 9

Recording acts do NOT protect a subsequent purchaser (BFP) against interests that arise by operation of law (e.g., implied easements, adverse possession), because there is no instrument to record in order to perfect such interests. Instead, subsequent purchasers take subject to those interests.

Question 10

Dedication of Land for Public Use

Answer 10

The dedication of land for public use requires two elements: (I) dedication; and (ii) acceptance.

Under common law, an offer of dedication may be made by (I) a written or oral statement; (ii) the submission of a map or play showing the dedication; or (iii) the opening of the land to public use.

Acceptance can occur by (I) formal resolution; (ii) the approval of the map or plat; or (iii) the actual assumption of maintenance or construction of improvements.

After dedication of land for private use, constructive notice is not required for the public party to prevail.