Real Property

Question 1

Rule for creating a joint tenancy

Answer 1

To create a joint tenancy requires the four-unities - A conveyance to two or more if they acquire their interest at the same time, under the same instrument, equal interest, and both acquire the right to possession of the property.
With a joint tenancy, each joint tenant has the right of survivorship

Question 2

A deed to two or more grantees may create what kind of tenancy?

Answer 2

A deed to two or more grantees may create a joint tenancy or a tenancy in common.

Question 3

What is the statutory presumption that a conveyance to two or more creates? And how to overcome the presumption

Answer 3

There is a presumption that a conveyance to two or more persons creates a tenancy in common rather than a joint tenancy. To overcome the presumption, the deed should use the term “joint tenancy” or “joint tenants”.

Question 4

When is a deed effective in a conveyance?

Answer 4

A deed is effective upon delivery, recording is not required to be effective.

Question 5

Rule for when one joint tenant makes a conveyance of their interest

Answer 5

When property is held by two or more persons in joint tenancy, a conveyance by one joint tenant’s interest severs the joint tenancy. A conveyance of a partial interest, such as a mortgage, may also sever the joint tenancy.

Question 6

Rule for mortgage on a joint tenancy

Answer 6

When a joint tenant places a mortgage on the property, severance of the joint tenancy depends on whether the jurisdiction follows the title theory or lien theory. Under title theory, the mortgagee takes title to the property for the duration of the mortgage, severing the joint tenancy and converting to a tenancy in common. Under lien theory, the mortgagee retains title and the mortgagee take only a lien on the property, keeping the joint tenancy intact.

Question 7

Rule for qualifying as a bona fide purchaser

Answer 7

To qualify as a bona fide purchaser, a person must pay value for an interest and not have actual, inquiry, or constructive notice of the competing interest.

Question 8

Rule for doctrine of equitable conversion

Answer 8

Under the doctrine of equitable conversion, title to property is split when an enforceable real estate contract is signed. the buyer obtains equitable title and the seller retains legal title. The seller’s legal title is considered personal property and the buyer’s equitable title is considered real property.

Question 9

Rule for term of years lease and termination

Answer 9

A lease specifying both an beginning and ending date is a term of years lease.

Although a term of years lease cannot normally be terminated by the tenant prior to the ending date, a tenant may terminate a term or years lease if the tenant is constructively evicted.

Question 10

Rule for constructive eviction

Answer 10

In order to establish a constructive eviction, the tenant must prove that the landlord breached a duty to the tenant that causes the tenant loss of the substantial use and enjoyment of the premises. The tenant must also show that he gave the landlord notice and adequate time to remedy the breach before the tenant vacated the premises. Courts have generally implied a duty to repair in residential leases, but not in commercial leases unless expressly state in the lease agreement.

Question 11

Rule for a landlords remedy when a tenant wrongfully moving from premises with the intent to terminate the lease.

Answer 11

When a tenant wrongfully moves from a leased premises with the intent to terminate the lease, the landlord may either accept the tenant’s surrender of the premises and terminate the lease or hold the tenant to the terms of th e lease.

Question 12

Rule for when a tenant surrenders property and landlord retains the keys

Answer 12

In many jurisdictions, courts consider the landlord’s retention of the keys deliver by a tenant to constitute a surrender of the lease. Some jurisdictions require other evidence of surrender.

Question 13

Rule for landlord duty to mitigate under common law

Answer 13

Under the common law, a landlord had not duty to mitigate damages from a tenant’s wrongful termination of a lease. A landlord could recover full value of the rents due and unpaid. A landlord could not recover future rents due past the commencement of the lawsuit.

Question 14

Rule for a deed containing the words “BUT IF”

Answer 14

A deed containing a condition denoted by the words “but if” creates a fee simple on condition subsequent.

Question 15

Rule for where the terms of conveyance are ambiguous

Answer 15

In construing an ambiguous instrument, courts typically adopt a preference for the fee simple on condition subsequent.

Question 16

Rule for merger of easements

Answer 16

Under the doctrine of merger, when the owner of the dominant estate acquires the servient estate, the easements extinguish by merger.

Question 17

Rights of junior lien holders during foreclosure of a future-advances mortgage

Answer 17

Whether the future-advances mortgage payments are obligatory or optional determines the rights to a junior lien holder. If obligatory, the junior lender’s lien is junior to amounts loaned before and after the junior lien is recorded. If the payments are optional, the junior lender’s lien is junior to payments made prior to the junior lien and has priority over funds loaned after the junior lender’s lien.

Question 18

Ways an easement can be terminated

Answer 18

Easements may be terminated by express terms, written release, merger, prescription, estoppel, condemnation and abandonment.

Question 19

Rule for termination of an easement by abandonment

Answer 19

An easement may not be abandoned by mere non-use. Instead, there must be a cessation of use coupled with evidence of the user’s intent to abandon the easement.

Question 20

Rule for common law first-in-time, first-in-right principle.

Answer 20

Under the common law, a grantor can convey only those rights in land that the grantor had at the time of conveyance. Thus priority among successive transfers is dictated by the first in time, first in right principle.

Question 21

Rule for implied warranty of habitability

Answer 21

Under the implied warranty of habitability (latent defects) a builder of a new home warrants the house against uninhabitability and major latent defects. Some courts only extend the warranty to the original purchaser, while others extend the warranty to subsequent purchasers.

Question 22

Rule for assumption and subject to mortgages

Answer 22

The majority rule is that if a remote grantee takes subject to a mortgage, which the grantee does not assume, the remote grantee is not personally liable on the debt. However, the grantee may still want to pay the mortgage payments to prevent foreclosure.

If the grantee assumes the mortgage, she is personally liable.

Question 23

rule for types of notice

Answer 23

Notice may be actual, constructive (public land records), or inquiry (visual inspection of land).

Question 24

Rule for Shelter Doctrine

Answer 24

Under the Shelter Doctrine, when a bona fide purchaser acquires title free of prior encumbrances, he can convey that title to subsequent purchasers free of that encumbrance. The Shelter Doctrine applies even when the subsequent purchaser has actual notice of the prior, unrecorded encumbrance.

Question 25

Rule for breach of covenant against encumbrances

Answer 25

Damages for breach of covenant against encumbrances are measured by the reduced value of land (subtract the value of the property after defect is discovered from value before defect existed.)

Question 26

Ways easements can be created

Answer 26

Easements may be created by express grant, by prescription, by implication or by necessity.

Question 27

Rule for warranty of marketable title

Answer 27

A seller has a duty to convey marketable title to a buyer. A marketable title is free from any cloud or subject to an adverse claim. Purchaser may choose to waive the requirement.

Question 28

Rule for defect in title merging after closing

Answer 28

If a defect in title exists, once deed is delivered, the land sale contract merges with the deed and the buyer must sue only upon the deed.

Question 29

Rule for trade fixture exception

Answer 29

under the trade fixture exception, an item that is attached to the property for use in the tenant’s trade or business is NOT a fixture unless removal would cause substantial damage to the property.

An item that is not a fixture may become one if its not removed before the end of the lease term.

Question 30

Rule for whether an easement passes to subsequent landowners

Answer 30

An easement in gross benefits a specific owner and does NOT attach to the land nor pass to subsequent landowners.

An easement appurtenant benefits any owner and does attach to the land and pass to to subsequent landowner.

Question 31

Rule for easement created by express grant

Answer 31

An easement by grant is created when the grantor signs a writing identifying the land and parties and indicating the intent to convey the easement.

Question 32

Rule for easement created by prescription

Answer 32

An easement by prescription is created when the possessor’s use of the land is open and notorious, continuous, hostile (without permission), and for the statutory period.

Question 33

Rule for easement created by implication

Answer 33

An easement created by implication is established when a single tract of land is divided and the preexisting use by the grantor is established by obvious indications that the use was intended to be permanent, affects the value of the land, and is reasonably necessary for the owner’s use and enjoyment.