Real Property

Question 1

Warranty Deed

Answer 1

The grantor gives six covenants - three present and three future.

PReSeNt:

(1) Right to convey - essentially, seller guarantees he owns the land he is selling
(2) Seisen - same as above
(3) No encumbrances - no existing liens, or other encumbrances not in deed

Future (FEW):

(1) Further assurances
(2) Quiet enjoyment
(3) Warranty

MERGER: on closing date, contract for sale merges into the deed so buyer can only sue on deed at that point

Question 2

A breach of the covenant against encumbrances occurs when:

Answer 2

A property is encumbered by a mortgage, lease, easement, or covenant not specified in the deed

*Will not be recognized if grantee has knowledge of the encumbrance, it was visible, or it benefited the land

Question 3

An easement is in gross if:

Answer 3

it was granted to benefit a particular person as opposed to the land.

Question 4

An express easement by grant arises when:

Answer 4

it is affirmatively created in a writing that is in compliance with the SOF.

Question 5

If a written easement is granted but not recorded against the servient estate:

Answer 5

then the easement is not enforceable against a bona fide purchasor.

Question 6

A warranty of fitness and suitability is implied in a contract for:

Answer 6

the sale of a newly constructed residence

• Applies to hidden and obvious defects

Question 7

A seller warrants, under the warranty of fitness and suitability, that:

Answer 7

he used adequate materials and good workmanship in working on the residence

• Some states only allow OG buyer to sue, while some allow remote grantees to sue

Question 8

The implied warranty of fitness and suitability generally covers:

Answer 8

construction defects, such as a defective electrical, pluming, or mechanical system, or a leaky roof or drainage problem that does not manifest itself until after the sale

Question 9

Equitable Conversion

Answer 9

As soon as the contract is signed, seller retains legal title but equitable title shifts to buyer, thus the risk of loss between contract and closing falls on BUYER

Question 10

Deed Requirements

Answer 10

Identify the buyer and seller, describe the land in question denoting a present intent to convey, signed by grantor, and it must BE DELIVERED

• Delivery is a question of intent to pass title presently

Question 11

Quitclaim Deed

Answer 11

Grantor gives no covenants, no warranties of title, and the grantee gets whatever the grantor has

• takes subject to title defects, undisclosed easements, or other problems with no recourse
• If a seller conveys land on which there is an unsatisfied encumbrance such as a mortgage, and that encumbrance has priority against the buyer, the seller is liable to the buyer for any loss borne by the buyer only if the seller warranted that there was no such encumbrance against the property

Question 12

Under the common law, a grantor can convey only those rights:

Answer 12

That the grantor had at the time of the conveyance - thus, common law follows the first-in-time, first-in-right principle

*All states have recording statutes that change the results of the CL principle

Question 13

Notice Statutes

Answer 13

Protect BFPs for value who take without notice of the earlier transaction

• “Conveyance . . . is not valid against subsequent purchaser for value WITHOUT NOTICE unless it is RECORDED”

Question 14

Race-Notice Statutes

Answer 14

Protect subsequent BFPs for value who take without notice and are the first to record

• “No conveyance . . . is valid against any subsequent purchaser for value WITHOUT NOTICE unless it is FIRST RECORDED.”

Question 15

What is notice? (AIR)

Answer 15

Actual notice, Inquiry notice, Record notice (wild deeds do not give notice)

Question 16

Mortgagor Liability

Answer 16

A mortgagor can transfer title to property, however, the mortgage will remain on the property and the mortgagor is still personally liable on the note

Question 17

Transferee takes SUBJECT TO mortgage

Answer 17

A new transferee who takes subject to the mortgage is not personally liable

• Minority of jurisdictions: transferee may be deemed to impliedly assume the mortgage where the transferee paid seller only the difference between what the house was worth and the outstanding balance on the mortgage obligation

Question 18

Transferee who ASSUMES the mortgage

Answer 18

If the transferee assumes the mortgage, he is personally liable along with the original mortgagor.

Question 19

Novation

Answer 19

Novation occurs if the itital mortgagor, the new transferee, and the mortgagee all agree that the mortgagor is no longer liable and the transferee assumes the mortgagor’s duties.

Question 20

Term of years lease

Answer 20

Specifies both a beginning and end date

Question 21

Periodic tenancy

Answer 21

No fixed end date

• Repeats until one party gives valid notice to the other

Question 22

Assignment

Answer 22

If a lease does not prohibit an assignment or sublease, a T can assign or sublease her interest in the lease

Question 23

Constructive eviction

Answer 23

Commercial or residential

(1) LL breached a duty to T,
(2) breach caused a loss of substantial use and enjoyment of the premises, and
(3) T vacated premises within a reasonable time after giving LL adequate notice

Question 24

Implied Warranty of Habitability

Answer 24

Breached ONLY in residential lease if the premises are uninhabitable

Question 25

T’s Duties

Answer 25

Must pay rent

• If T does not pay rent and has abandoned, LL can sue T for damages or treat as a surrender

Question 26

Duty to Mitigate

Answer 26

CL: LL has no duty to mitigate

Modern: LL must make a reasonable effort to mitigate damages by attempting t re-rent the premises if T leaves

Question 27

Fair Housing Act

Answer 27

Disallows discrimination in housing sales or rentals on the basis of race, color, religion, sex, familial status, or national origin.

• DOES NOT APPLY IF owner occupies one of the units in a multi-unit dwelling containing no more than four units
• Owner may not place a discriminatory advertisement (owner and publisher will be liable)

Question 28

Easement Creation

Answer 28

Easements can be created expressly, impliedly (prior use or necessity) or by prescription

Question 29

Termination of Easements

Answer 29

Express terms, written release, merger of the dominant and serviant tenements, prescription, estoppel, condemnation, or abandonment

• For abandonment, mere nonuse of the easement is not sufficient to abandon it; THERE MUST BE AN ACT OF ABANDONMENT

Question 30

A joint tenancy requires what four unities?

Answer 30

Time, title, interest, and possession

• Also need survivorship language

Question 31

Severance of Joint Tenancy

Answer 31

Can be severed in one of four ways (G SAM):

(1) giving it away during life,
(2) signing a contract for sale,
(3) actual judicial sale by a judgment lien creditor, or
(4) by granting a mortgage in a TITLE THEORY state

Question 32

Adverse Possession Requirements

Answer 32

CHANGE

(1) Continuous,
(2) Hostile and under a claim of right,
(3) Actual,
(4) Open and Notorious,
(5) Goes on for statutory period, and
(6) Exclusive

• Tacking may be permitted if there is privity

Question 33

When a conveyance is ambiguous:

Answer 33

Courts construe the instrument to effectuate the grantor’s intentions

• Write about FSD and FSSCS