Real Property

Question 1

To be valid, a deed must:

Answer 1

(1) be in writing; (2) sufficiently describe the land; (3) identify the grantor and grantee; (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. 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, and if he does so, the deed is valid.

Question 2

Possession is adverse/hostile when:

Answer 2

It is without the owner’s permission/consent. It does not matter whether the possessor believes he is on his own land or knows he is trespassing on someone else’s land.

Question 3

Possession is continuous when:

Answer 3

It is uninterrupted for the statutory period (the limitations period for an ejectment action). Constant use is not required as long as the possession is of a type that the usual owner would make. Tacking is allowed.

Question 4

Entering property under an invalid deed as related to AP.

Answer 4

When a person enters property under an invalid deed, their possession is under a claim of right and sufficient to satisfy the adverse/hostile element because they are claiming rights superior to those of the true owner. It does not mean that his possession was with the owner’s consent.

Question 5

Example of a statute of limitations (statutory period) for AP

Answer 5

“Actions to recover possession of real property shall be brought within 10 yrs after the cause of action accrues.”

Question 6

Under a notice statute…

Answer 6

A subsequent BFP prevails over a prior grantee (who did not record) even if the subsequent BFP did not record. A BFP is a purchaser who takes for valuable consideration and without notice of a prior claim at the time of the conveyance.

Question 7

Types of notice

Answer 7

Actual notice: what the purchaser actually knows.

Record notice: notice that the law imputes to the purchaser if a prior deed was properly recorded in the grantee’s chain of title.

Inquiry notice: notice of what the purchaser would have discovered by inquiring into the property (e.g. by visiting to see if anyone is occupying the land).

Question 8

The recording acts do NOT protect a…

Answer 8

subsequent purchaser against interests that arise by operation of law (e.g. title by AP or implied easements) because there is no instrument to record in order to perfect such interests. Instead, subsequent purchasers take subject to those interests.

Question 9

A valid conveyance of a land requires these two things:

Answer 9

Execution and delivery of the deed. Delivery of a deed is established by a proven intent to pass title, even if the title document is never physically given to the grantee. Grantee’s acceptance of the deed will be presumed, unless the grantee explicitly rejects it.

Question 10

Creating a joint tenancy (JTROS) at common law

Answer 10

a conveyance to 2 or more persons satisfying the four unities of time, title, interest, and possession

Question 11

Joint tenants have…

Answer 11

the right of survivorship. When one JT dies, the property is freed from her concurrent interest, so that the survivors retain an undivided right in the property free from the deceased co-tenant’s interest.

Question 12

Creating a JTROS under modern law

Answer 12

a conveyance to 2 or more persons presumptively creates a TIC. A JT results only when a ROS is clearly expressed.

Question 13

In states that follow the lien theory…

Answer 13

a mortgage is considered lien on title. This means that one JT’s execution of a mortgage on her interest does NOT by itself cause a severance. (A severance occurs only if the mortgage is foreclosed and the property sold.)
However, the mortgagee risks losing its interest if the mortgagor dies prior to foreclosure.

Question 14

In states that follow the title theory…

Answer 14

a mortgage is regarded as a transfer of title, which destroys the unity of title and severs the JT.

Question 15

Regardless of which mortgage theory the jurisdiction follows, in most states, a severance results when…

Answer 15

one JT executes a valid contract to convey her interest to another, even though no actual transfer of title has yet been made.
A K to convey RP is enforceable in equity, and so if the seller dies before the closing, the purchaser is entitled to a deed from the seller’s estate and becomes a TIC with the original JT.

Question 16

Under the doctrine of equitable conversion…

Answer 16

once a K is signed and each party is entitled to SP, equity regards the purchaser as the owner of the RP.
The seller’s right to the sale proceeds is personal property. If the seller dies, the takers of her RP must transfer title at closing, and the sale proceeds pass to the takers of her personal property.

Question 17

General elements for an equitable servitude

Answer 17

(i) intent for the restriction to be enforceable by subsequent grantees; (ii) that the subsequent grantee had notice of the servitude; and (iii) the restriction touches and concerns the land.

Question 18

For an equitable servitude to bind an entire subdivision…

Answer 18

it must be found in the common building plan for that subdivision.

Question 19

"so long as" 
"for so long as" 
"while"
"during" 
"until"

language in conveyance

Answer 19

such specific, durational, adverbial language usually creates a fee simple determinable (terminates automatically when the event occurs)

Question 20

fee simple subject to a condition subsequent is created

Answer 20

when the grantor retains the power to terminate the estate (the right of entry) on the happening of a stated event, but the estate continues until the grantor exercises the power (by suing or reentering).

Generally the grantor must expressly reserve the right of entry; this retained interest does not automatically arise.

Question 21

“upon condition that”
“provided that”
“but if”
“if it happens that”

language in conveyance

Answer 21

usually held to create conditions subsequent - so it would be a FSSCS (grantor has power to terminate upon the event’s happening)

Question 22

The general policy of courts is to avoid

Answer 22

forfeiture of estates. Thus, where terms are ambiguous, there is a presumption in favor of an FSSCS.

Question 23

A court may imply a ____ provision.

Answer 23

forfeiture

So this could meant that there is an implied right of reentry that passes to Grantor’s successors.

Question 24

What is a fee simple determinable?

Answer 24

Property interest that terminates automatically upon the happening of a named future event.

The future interest is a Possibility of Reverter: automatically reverts back to the grantor if condition happens (becomes possessory immediately upon breach). Passes to Grantor’s heirs.

Question 25

Future interests pass

Answer 25

at death by will or inheritance unless subject to an express or implied contingency of survival.

Question 26

Example

Answer 26

Alice devises her entire estate to Husband for life, with the remainder to “my surviving children.”

“My surviving children” imposes a condition precedent that the remainder men must survive the life tenant (Husband) to take. Ambiguity as to whether the children must survive Alice or Husband is resolved by construing the word “surviving” as referring to the distribution date (Husband’s death).

So if one of the children predeceases Husband, they will not take anything and thus have no interest to pass on to their heirs/beneficiaries.

But under the UPC, we would likely apply the anti-lapse statute to save the gift for the deceased child’s descendants, if any, despite the express condition of survival. It would not, however, pass through the estate of the deceased child to a widow or other non-descendant beneficiary.

Question 27

Example of an ambiguous conveyance where either a FSD or FSSCS is possible

Answer 27

“Grantor conveys Blackacre to a local school district “if School uses Blackacre only to teach children aged 5 to 13.”

using the word “if” and the lack of express POR language suggests an FSSCS

but the lack of an express right of entry (aka power of termination) suggests an FSD

Question 28

An affirmative easement is

Answer 28

a nonpossessory right to use someone else’s land.

Question 29

An easement may be terminated when the easement owner demonstrates,

Answer 29

by physical action, the intent to permanently abandon the easement.

Mere nonuse is insufficient. It must be combined with other evidence of intent.

Question 30

At common law, when a grantor conveyed the same land to multiple grantees,

Answer 30

priority went to the earlier grantee.

Modern recording acts can protect later grantees by changing the common law rule.

Question 31

Under a notice statute,

Answer 31

the last BFP to take prevails over prior grantees. This is true even if the last BFP does not record.

Question 32

A BFP

Answer 32

is a purchaser for value who takes without actual, record, or inquiry notice of the prior grant

Question 33

Under the shelter rule,

Answer 33

a person who takes from a BFP will prevail against any interest that the BFP would have prevailed against.

The shelter rule applies even if the transferee had actual knowledge of the prior interest

Question 34

A subsequent purchaser will not be charged with record notice of

Answer 34

deeds recorded outside her chain of title (including “wild deed,” which are recorded such that a searcher could not feasibly find them).

Question 35

A title search in a tract index

Answer 35

would reveal all recorded interests relating to the land.

Question 36

A title search in a grantor-grantee index would

Answer 36

reveal all recorded interests to and from a grantor.

Question 37

Inquiry Notice

Answer 37

A grantee is charged with knowledge of any facts that would have been revealed through a reasonable inquiry.

A grantee is on inquiry notice of what an inspection of the premises would have revealed; the physical appearance of the property can give notice of an adverse interest.

Inquiry notice also imputes what would have been disclosed by inquiring of one in possession of the land.

Question 38

In a majority of states, quitclaim grantees

Answer 38

are not charged with inquiry notice from the mere fact that a QC deed was used.

Question 39

A court will enforce an “as is” clause in residential sales ____

Answer 39

as long as there is no positive misrepresentation or fraudulent concealment.

(BUT remember that the homebuilder’s implied warranty protects buyers of newly built homes against latent defects and warrants that the home is safe and fit for human habitation at the time of sale.)

Question 40

The Fair Housing Act does not apply

Answer 40

where the owner-landlord occupies a unit in a building with 4 or less units.

Question 41

An area variance may be granted when

Answer 41

the owner suffers a hardship due to the way the land is currently zoned, and the variance will protect the public interest.

An area variance may be granted in the residential setting if unnecessary hardship would result from strict application of the ordinance and the hardship results from conditions peculiar to the property and the hardship is not self created.