Real Property

Question 1

Joint tenancy

Answer 1

Two or more own with right of survivorship.

Interest alienable inter vivos. Not descendible or devisable. Joint tenant may sell or transfer her interest during her lifetime. A voluntary conveyance by a joint tenant of their interest destroys the joint tenancy and transferee takes as a tenant in common.

Created by four unities. Grantor must clearly express right of survivorship

• Take at the same time
• By the same title (same deed, will, or other document)
• Equal/identical interests
• Rights to possess the whole

Question 2

Tenancy by the entirety

Answer 2

Marital interest between spouses with the right of survivorship. Arises presumptively in any conveyance to married partners, unless language of grant clearly indicates otherwise.

Creditors of only one spouse cannot touch this tenancy for satisfaction of the debt. One spouse, acting alone, cannot defeat the right of survivorship by unilaterally conveying to a third party. Individual spouse cannot encumber the tenancy and a deed or mortgage executed by only one spouse is ineffective.

Only death, divorce, mutual agreement, or execution by a joint creditor of both spouses can sever a tenancy by the entirety. On divorce it becomes a tenancy in common.

Question 3

Tenancy in common

Answer 3

Two or more own without right of survivorship. Each co-tenant owns an individual party and each has a right to possess the whole. Each interest is devisable, descendible, and alienable.

Co-tenant in exclusive possession has right to retain profits from their use of the property (don’t have to share). A co-tenant who leases all or part of the premises to a third party must account to their co-tenant and provide fair share of rental income.

Each pays fair share of carrying costs. Repairing co-tenant enjoys a right to contribution during the life of the co-tenancy for reasonable, necessary repairs, provided they gave notice to other co-tenants. No right to contribution for “improvements” made unilaterally.

Can be terminated by partition.

Question 4

Partition

Answer 4

By voluntary agreement

By judicial action- partition in kind physically divides the property

By judicial action- forced sale and sale proceeds divided proportionally

Question 5

Ouster

Answer 5

One co-tenant wrongfully excludes another co-tenant from possession of the whoel or any party.

Unless you’ve ousted your co-tenant, the co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the whole to the exclusion of the other co-tenant

Question 6

Co-tenant action for waste

Answer 6

Co-tenant cannot commit waste. Co-tenant can bring an action for waste against another tenant.

Voluntary waste- willful destruction
Permissive waste- neglect
Ameliorative waste- unilateral change that increases value

Question 7

tenancy for years

Answer 7

Lease for a fixed, determined period of time.

Ends automatically at its termination. No notice is required to terminate. Note can also terminate if tenant breaches any of the lease’s covenants or if the tenant surrenders the tenancy and the landlord accepts.

Usually created by written leases. A term of years greater than one year must be in writing (SOF).

Question 8

Right of entry

Answer 8

Landlord reserves a right of entry which allows them to terminate the lease if the tenant breaches covenants.

Question 9

Periodic tenancy

Answer 9

A lease which continues for successive intervals (i.e. month to month) until either the landlord or tenant gives proper notice of termination. Lease is continuous until properly terminated.

Can be created expressly or arise by implication:

• land leased with no mention of duration but provision is made for payment of rent at set intervals
• oral term of years in violation of the statute of frauds creates an implied periodic tenancy, measured by the way rent is tendered
• landlord elects to hold over a tenant who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises measured by the way rent is now tendered.

Notice, usually written, must be given. Notice must be at least equal to the length of the period itself

Question 10

Tenancy at will

Answer 10

Tenancy of no fixed period of duration. Terminable at will of either the landlord or tenant. “To T for as long as L or T desires.”

Created by express agreement that the lease can be terminated at any time. Can be terminated by any party at any time, but notice and reasonable time to quit are quired to terminate. Can be terminated by operation of law (death, commission of waste).

Question 11

Tenancy at sufferance

Answer 11

When a tenant wrongfully holds over and remain in possession past the expiration of the lease.

Lasts only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy. No notice of termiantion required.

Question 12

Hold over doctrine

Answer 12

If a tenant continues in posession after their right to possession has ended, the landlord may

(1) evict the tenant or
(2) bind the tenant to a new periodic tenancy

Length generally depends on the way the rent was computer under the lease that has ended. If rent computer monthly, month-to-month periodic tenancy created. Maximum is year to year tenancy. Various promises made by the landlord and tenant in original lease become part of the tenancy for the additional term.

Commercial tenants may be held to a new year-to-year periodic tenancy if the original lease term was for one year or more. Residential tenants are generally held to a new month-to-month tenancy regardless of the original term. If landlord notified of a rent increase before the hold over, the tenant held to the new terms.

If delay only a few hours, or left a few items of personal property, or the delay due to illness the landlord cannot bind the tenant to a new tenancy.

Question 13

Tenant’s duty to repair

Answer 13

Lease silent- tenant only has to maintain the premises. Make routine repairs

Cannot damage/ commit waste on the premises.

• Voluntary- overt conduct damages the premises
• permissive- tenant fails to take reasonable steps to protect the premises from damages from the elements
• ameliorative waste- tenant unilaterally alters the leased property increasing its value (but can do so if a long-term tenant and change reflects changes in the neighborhood)

Express covenant in lease- if residential tenant covenants to repair, landlord remains obligated to repair under nonwaivable implied warranty of habitability. non-residential tenant’s covenant to repair is enforceable

Question 14

Tenant’s duty to pay rent

Answer 14

If tenant is on the premises and fails to pay rent, the landlord can evict through the courts or continue the relationship and sue for rent due.

Landlord cannot engage in self-help like changing the locks, forcibly removing the tenant, or removing their possessions.

If tenant wrongfully vacates with time left on a term of years lease the landlord can

• treat as an offer of surrender and end the lease
• ignore abandonment and hold tenant responsible for unpaid rent until natural end of the lease (minority of states)
• re-let premises on wrongdoer tenant’s behalf and hold the previous tenant liable for any deficiency

Under majority rule, landlord must at least try to re-let.

Question 15

Landlord’s duty to deliver possession

Answer 15

Majority rule requires that the landlord put the tenant in actual physical possession of the premises at the beginning of the leasehold term.

Question 16

Implied covenant of quiet enjoyment

Answer 16

Arises by implication in every residential and commercial lease. Tenant has a right to quiet use and enjoyment of the premises, without interference from the landlord or a paramount title holder.

Landlord not liable for wrongful acts of other tenants but they have a duty to abate a nuisance on site and must control the common areas.

Question 17

Implied covenant of quiet enjoyment- actual eviction

Answer 17

landlord, paramount title holder, or hold-over tenant excludes the tenant from the entire leased premises. Actual eviction terminates the tenant’s obligation to pay rent.

Question 18

Implied covenant of quiet enjoyment- partial eviction

Answer 18

tenant is physically excluded from only part of the leased premises. Partial evicition by the landlord relieves the tenant of the obligation to pay rent for the entire premises, even though the tenant continues in possession of the remainder.

Question 19

Implied covenant of quiet enjoyment- constructive eviction

Answer 19

Occurs when the landlord’s breach of duty renders the premises unsuitable for occupancy. Three elements:

Substantial interference
Notice
Vacate the property

Tenant who has been constructively evicted may terminate the lease and may also seek damages.

Question 20

Implied warranty of habitability

Answer 20

Nonwaivable covenant implied in residential leases. Provides that the premises must be fit for basic human habitation. If breached remember tenants options are

• move out and terminate lease
• repair and deduct cost from rent
• reduce rent or withhold rent until court determines fair rental value
• remain in possession, pay full rent, and affirmatively seek money damages

Question 21

Civil Rights Act

Answer 21

Bars racial or ethnic discrimination in the sale or rental of all property.

Question 22

Fair Housing Act

Answer 22

Protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability as well as familial status. Disabled tenants must be permitted to make reasonable modifications to existing premises to accommodate their disabilities at the tenants’ own expense.

Exemptions- (1) owner-occupied buildings with four or fewer units where people live independently of each other, (2) single family homes sold or rented by an owner who owns no more than three single-family homes

Question 23

Assignment of lease

Answer 23

Transfers entire remaining term of lease. Assignee stands in the shoes of the original tenant in a direct relationship with the landlord. Each liable to the other on all covenants in the lease that run with the land (i.e. rent, paying taxes, repair). Original tenant remains liable on the original contract obligations such as to pay rent.

If an assignee fails to pay rent, the landlord can sue the original tenant. However, if assignee assigns again, landlord cannot go after them because they are no longer in privity of estate and they were never in privity of contract.

Question 24

Sublease

Answer 24

tenant retains some part of remaining term other than a right to reenter upon breach. Sublesee usually pays rent to the original lessee who then pays the landlord. A sublessee is not personally liable to the landlord for rent or for the permance of any of the covenants in the main lease unless the sublessee expressly assumes the covenants.

Sublessee cannot enforce any covenants made by the landlord in the main lease, except a residential sublessee may be able to enforce the implied warranty of habitability against the landlord.

Question 25

Covenants that run with the land (leaseholds)

Answer 25

A covenant runs wth the land if the original parties to the lease so intend and if the covenant touches and concerns the land (benefits the landlord and burdens the tenant or vice versa) with respect to their interests in the property.

Question 26

Covenants against assignment or sublease

Answer 26

Landlord can prohibit a tenant from assigning or subletting without the landlord’s prior written approval.

A valid covenatn against assignment is considered waived if the landlord was aware of the assignment and did not object. Once the landlord consents to one transfer, they waive the right to object to future transfers by that tenant unless they expressly reserve the right.

Question 27

Assignments by landlords

Answer 27

Landlord can assign the rents and reversion interest they own. Usually done by deed when landlord conveys a building to a new owner. Tenant consent not required.

Once tenants are given reasonable notice, they must recognize and pay rent to the new owner as their landlord. New owner liable on all covenants that run with the land. Original landlord remains liable on all of the covenants they made in the lease.

Question 28

Caveat lessee

Answer 28

Common law norm is tenant beware. Landlord has no duty to make premises safe. Exceptions:

Common areas
Latent defects- dangerous conditions tenant could not discover by reasonable inspection of which the landlord has knowledge or reasont o know
Assumption of repairs- once repairs are undertaken, landlord must complete with reasonable care
Public use rule- ex: short term lease of a public space like convention hall or museum
Short-term lease of furnished dwelling

Many courts now hold that landlord owes general duty of reasonable care toward residential tenants, and will be held liabel in torts resulting from ordinary negligence if the landlord had notice of a defect and opportunity to repair.

Question 29

Easement

Answer 29

Grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land. Holder has the right to use another’s tract of land for a specified prupose, but has no right to possess or enjoy that land.

Question 30

Affirmative easement

Answer 30

Right to go onto and do something on servient land

Question 31

Negative easement

Answer 31

Entitles its holder to prevent the servient landlowner form doing something that would otherwise be permissible. Generally recognized in four categories:

• light
• air
• support
• stream water from an artificial flow
• sometimes scenic view (minority of states)

Can only be created expressly in a writing signed by the grantor.

Question 32

Easement appurtenant

Answer 32

Benefits its holder in physical use of enjoyment of his own land. Involves two parcles of land. Dominant tenement dervies the benefit. Servient tenement bears the burden.

Passes automatically with transfers of the dominant tenement, regardless of whether its mentioned in the conveyance. Burden of the easement also passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice.

Question 33

Easement in gross

Answer 33

Confers on holder some personal or pecuniary advantage not related to their use or enjoyment of their own land. Servient land is burdered but there is no benefited or dominant tenement becuase the easement benefits the holder rather than another parcel. (ex: placing billboard on another’s lot, swim in someone’s pond, laying power lines)

Not transferable unless for commercial purposes.

Question 34

Creating an easement

Answer 34

Prescription
Implication
Necessity
Grant

Question 35

Creating an easement by grant

Answer 35

Any easement must be memorialized in writing and signed by the holder of the servient tenement unless its duration is brief enough to be outside the coverage of a particular state’s SOF.

Question 36

Easements by implication

Answer 36

Created by operation of law.

easement implied from pre-existing use- previous use on servient part was apparent and continuous AND parties expected use would survive the division because it is reasonably necessary to the dominant tenement’s use and enjoyment.

Lots sold in subdivision with reference to recorded plat or map that shows streets leading to lots, buyers of lots have implied easements to use the streets to access.

Holder of profit a prendre has implied easement to pass over surface of servient land to extract what it needs to extract from the servient property.

Question 37

Easement by necessity

Answer 37

When landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land. Servient parcel owner has right to locate the easement.

Question 38

Easement by prescription (adverse possession)

Answer 38

Requirements:

• continuous and uninterrupted use for the given statute’s period
• open and notorious use (discoverable on inspection)
• actual use that does not have to be exclusive
• hostile use (without servient owner’s consent)

Question 39

Overuse of an easement

Answer 39

Scope assumed to intened to meet both present and future needs of dominant tenement. But if dominant tenement is subdivided, you cannot overburden the easement.

Remember, easement does not get extinguished if it is overburdened. Remedy is an injunction against the misuse.

Question 40

Terminating an easement

Answer 40

• Estoppel
• Necessity
• Destruction
• Condemnation
• Release
• Abandonment
• Merger
• Prescription
• under conditions stated in original easement

Question 41

Terminating an easement- estoppel

Answer 41

Oral expression of an intent to abandon an easement won’t terminate an easement unless its also committed to writing or accompanied by action (abandonment). But if servient owner materially changes their position in reasonable reliance on easement holder’s assurances or represeations, the easement terminates through estoppel.

Question 42

Terminating an easement- necessity

Answer 42

Easements created by necessity expire as soon as the necessity ends, unless the easement was reduced to writing.

Question 43

Terminating an easement- destruction

Answer 43

Destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement

Question 44

Terminating an easement- condemnation

Answer 44

Condemnation of the servient estate by governmental eminent domain power will terminate the easement. Courts split about whether easement holders are entitled to compensation.

Question 45

Terminating an easement- release

Answer 45

A release given by the easement holder to the servient land owner will terminate the easement.

Question 46

Terminating an easement- abandonment

Answer 46

Easement holder must show by physical action (i.e. building a structure that blocks access to the easement on the adjoining lot) an intent to never use the easement again. Mere nonuse or mere words are insufficient to terminate by abandonment.

Question 47

Terminating an easement- merger

Answer 47

An easement is extinguished when title to the easement and title to the servient land become vested int eh same person.

Question 48

Terminating an easement- prescription

Answer 48

A servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession.

• continuous interference
• open and notorious
• actual
• hostile to the easement holder

Question 49

License

Answer 49

Mere privilege to enter another’s land for some delineated purpose. Not an interest in land, its a mere privilege. Revocable at the will of the licensor. Inalienable. Any attempt to transfer a license resutls in revocation by operation of law.

Writing not required to create an easement.

Question 50

Profit

Answer 50

Entitles its holder to enter the servient land and take from it some resources, some substance of the soil, or some product of the property.

All rules governing creation, alienation, and termination of easements are applicable to profits.

Can be extinguished through surcharge- misuse that overly burdens the servient estate.

Question 51

Covenant

Answer 51

Written promise to do or not do something related to land. Unlike an easement becuase it is not the grant of a property interest, it a contractural limitation or promise regarding land.

If someone wants money damages, construe the promise as a covenant. If they want an injunctive, construe it as an equitable servitude.

Question 52

Restrictive or negative covenants

Answer 52

A promise to refrain from doing something related to land.

Question 53

Affirmative covenants

Answer 53

A promise to do soemthing related to land

Question 54

Requirements for burden of covenant to run with land

Answer 54

If these requirements are met, any successor in interest to the burdened estate will be bound by the covenant as if they themselves had expressly agreed to it.

• writing
• intent that the covenant would. can be inferred by circumstances or from the language of the writing
• touch and concern the land- affects legal relations as landowners and not just as members of the community
• horizontal and vertical privity- original parties were in grantor-grantee, landlord-tenant, or mortgagor-mortgagee relationship when the covenant was created. Vertical privity only requires some non-hostile nexus like contract, devise, or descent. Only time vertical privity is absent is when successor acquired interest through adverse possession.
• notice

Question 55

Requirements for the benefit to run

Answer 55

requirements:

• writing
• intent
• touch and concern
• vertical privity

Question 56

Termination of covenant

Answer 56

• written release
• merger of benefitted and burdened estate
• condemnation of burdened property

Question 57

Equitable servitude

Answer 57

Promise that equity will enforce against successor of the burdened land regardless of whether it runs with the land at law, unless the successor is a bona fide purchaser for value without notice.

Creation requirements:

• Writing
• intent- parties intended that promise would be enforceable by and against successors
• Touch and concern
• notice

Terminated by written release, merger, or condemnation of the burdened party.

Question 58

Implied equitable servitude- common scheme doctrine

Answer 58

Exception to requirement that original equitable servitude promise be in writing.

If a developer subdivides land and some deeds contain restrictive covenants, while others do not, the restrictive covenants will be binding on all parcels provided there was a common scheme of development and notice fo the covenants.

Required elements:

• common scheme of residential development that included defendant’s lot (scheme must arise before lots are sold to apply) AND
• defendant lot holder had notice of the promise contained in those prior deeds when it took (actual, inquiry, or record notice)

Court won’t enforce if neighborhood conditions have changed so signficantly that enforcement won’t be equitable. Entire area or subdivision must change. Other reasons court wont enforce:

• person seeking enforcement violatingsimilar restriciton on their own land
• benefited party acquiesced in violation of the servitude by a burdened party
• benefited party acted in such a way that a reasonable personw ould think the covenant was abandoned or waived
• benefited party fails to bring suit against the violator within a reasonable time

Question 59

Adverse possession

Answer 59

Possession for a statutorily prescribed period fo time can ripen into tilte to real property. If an owner does not within the statutory period, take action to eject a possessor who claims adversely to the owner, title vests in the possessor.

• continuous (possssion of a type that a usual owner would make)
• open and notorious- sufficiently apparent to put true owner on notice that a trespass is occurring
• actual and exclusive- must actually occupy (can occupy only a portion if you have color of title). Cannot share with true owner or the public.
• hostile- enters without owner’s permission. note that when someone assumes possession with what they mistakenly believe to be valid title, their possession is hostile and adverse.

Question 60

Tacking

Answer 60

one adverse possessor may tack on to his time with the land his predecessor’s time so long as there is privity between the possessors (non-hostile nexus like contract, deed, or will)

Question 61

Disabilities and adverse possession

Answer 61

Statute of limitations will not runa gaisnt true owner afflicted with a disability at the inception of the adverse possession

Question 62

Steps to convey real estate

Answer 62

(1) land contract conveys equitable title
(2) deed passes legal title and becomes the operative document

Before closing, contracts rules apply. AFter closing, property rules.

Question 63

Statute of frauds

Answer 63

Writing signed by part against whom enforcement being sought (party being sued). Writing must:

• identify the parties
• describe the property AND
• include the price (consideration) or means of determining price

Note that if contract overstates or understates size of land remedy is specific performance with pro rata reduction in price.

Question 64

Doctrine of part performance exception to statute of frauds

Answer 64

Allows a buyer to enforce an oral real estate contract by specific performance if

• oral contract is certain and clear and
• acts of partial performance clearly prove the existence of a contract

Second requirement statisfied if buyer can prove two out of the following three:

• buyer took possession
• Paid purchase price or significant portion of purchase price
• buyer made substnatial improvements

Question 65

Doctrine of equitable conversion

Answer 65

Once contract is signed, equity regards buyer as owner of the real property.

Risk of loss rests with buyer. They bear the risk if the property is destroyed through no fault of either party. Seller must credit any fire or casualty insurance proceeds they receive against purchase price.

If a party dies during escrow. Deceased buyer’s interest passes as real property to their estate. Deceased seller’s interest, right to purchase price, passes to their estate as personal property. Contract remains enforceable, with deceased party’s estate taking the decedent’s place in the transaction.

Question 66

Marketable title

Answer 66

Every contract contains an implied covenant that the seller will provide marketable title at closing. Marketable title is title reasonably free from doubt and threat of litigation. Title must be marketable on the day of closing. Defects that render title unmarketable:

• defects in record chain of title (adverse possession)
• encumbrances (mortgages, liens, easements, restrictive covenants)
• zoning violations

Seller has a right to satisfy a mortgage or lien at closing with the proceeds of the sale. Prior to closing, buyer cannot claim that title is unmarketable because it is subject to a mortgage if the closing will result in the mortgage’s discharge.

Once closing occurs and the deed changes hands, the seller is no longer liable on the implied contractual covenant. The seller is then liable for express promises made in the deed.

Buyer must notify seller that title is unmarketable and give seller reasonable time to cure defects. If seller fails to cure, buyer’s remedies include recission, damages, specific performance with abatement, and a quiet title suit.

Question 67

Seller will not make false statements of material fact

Answer 67

Implied promise in contract that seller will not make false statements of material fact. Seller may be liable to the purchaser after the closing for defects like a leaky roof, flooding basement, etc. if they knowingly made a false statement of material fact that the buyer relied on, actively concealed a defect, or failed to disclose known defects on the property.

To be liable:

• seller know or have reason to know of defect
• seller realizes that the buyer is unlikely to discover the defect AND
• defect serious enough that the buyer would reconsider the purchase

Can include disclaimers in the contract for specific types of defects like “seller not liable for defects in the roof”

Question 68

Warranties of fitness or habitability in land sale contract

Answer 68

Land contract contains no implied warranties of fitness or habitability. Caveat emptor is the common law norm.

Exception: warranty of fitness or quality in the sale of a new home by the builder.

Question 69

Time of performance- land sale contracts

Answer 69

Courts presume time isn’t of the essence. Closing date isn’t absolutely binding. Party late in tendering their own performance can still enforce the contract if they tender within a reasonable time (two months-ish) after the closing date.

Exceptions:

• contract states time is of the essence
• circumstances indicate that was the parties’ intent
• one party gives the other notice that time is of the essence

Question 70

Remedies for breach of sales contract

Answer 70

Nonbreaching party is entitled to damages (contract price- market value on date of breach plus incidental costs) or specific performance.

If buyer wants to proceed despite unmarketable title, they can usually get specific performance with an abatement of the purchase price.

Question 71

Deeds

Answer 71

Must be lawfully executed and delivered. Requirements to execute a valid deed:

• a writing signed by the grantor
• an unambiguous description of the land (doesn’t have to be perfect)
• identification of the parties by name or description
• words of intent to transfer, such as “grant”

Delivery requirement satisfied when the grantor physically or manually transfers the deed to the grantee. It’s permissible here to use the mail or agent or messenger. Delivery presume if deed is handed to grantee, acknowledged by the grantor in front of a notary or recorded.

Question 72

quitclaim deed

Answer 72

grantor isn’t even promising that he has title to convey. Worst deed a buyer could hope for, conveys only what the grantor has at the time fo the coveyance.

Question 73

general warranty deed

Answer 73

Warrants against all defects in title, including those attributable to the grantor’s predecessors.

Three present covenants breached at the time the deed is delivered

• seinsin
• right to convey
• against encumbrances

Three future covenants not breached until grantee disturbed in possession:

• quiet enjoyment
• warranty
• further assurances (grantor promises to do whatever is needed to perfect grantee’s title if it later turns out to be imperfect)

Question 74

special warranty deed

Answer 74

Contains same covenants as a general warranty deed but grantor makes those promises only on his own behalf.

Question 75

Common law rule on property conveyed twice

Answer 75

First in time, first in right. whoever received the interest first was entitled to the property and second grantee out of luck.

Question 76

Bona fide purchaser

Answer 76

Grantee must:

• be a purchaser, not one who received the property by gift, will, or inheritance
• pay valuable consideration
• take without notice (actual, constructive, or inquiry) of the prior conveyance

Question 77

Actual notice

Answer 77

Purchaser actually knew about the prior conveyance.

Question 78

Inquiry notice

Answer 78

Whether or not they actually inspect, the purchaser is on inquiry notice of whatever an examination of the property would have revealed. They are on notice if a recorded instrument makes reference to an unrecorded transaction.

Question 79

Record notice

Answer 79

On record notice if deed properly recorded within the chain of title.

Question 80

Race statute

Answer 80

Under pure race statute, notice of a prior conveyance doesn’t matter. First party to record wins. This is rare.

“A conveyance of an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded.”

Question 81

Notice statute

Answer 81

Subsequent purchaser who had no notice of a prior conveyance by the grantor will prevail over a prior grantee who failed to record.

“A conveyance of an interest in law, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.”

Question 82

Race-notice statute

Answer 82

Subsequent purchaser must not have any notice of the prior grant and must record first.

“Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded.”

Question 83

Shelter rule

Answer 83

Anyone who takes from a bona fide purchaser will prevail against any interest the bona fide purchaser would have prevailed against.

Question 84

Wild deed rule

Answer 84

A wild deed is a recorded deed that isn’t connected to the chain of title. It does not impart constructive notice because a subsequent purchaser could not feasibly find it.

Question 85

Estoppel by deed

Answer 85

One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he subsequently acquires the title that he had previously purported to transfer.

Question 86

Purchase money mortgage

Answer 86

Extension of value by a lander who takes as collateral a security interest in the very real estate that its loan enables the debtor to acquire.

Question 87

Transfer of a mortgage by the mortgagee

Answer 87

Can endorse the note and deliver it to the transferee or execute a separate document of assignment.

Mortgagee can freely transfer the note and the mortgage automatically follows a properly transferred note.

Question 88

Transfer by a mortgagor

Answer 88

Buyer either assumes the mortgage or takes the property subject to the mortgage. If they assume the mortgage, they agree to be personally liable on the mortgage note. If they take the property subject to the mortgage, they are not agreeing to personal liability and the mortgagee’s only recourse is foreclosure.

If the parties sign an assumption agreement, the grantee is primarily liable to the lender, while original mortgagor is secondarily liable as a surety.

Question 89

Foreclosure

Answer 89

Foreclosure terminates interest junior to the mortgage being foreclosed but does not affect senior interests. The original mortgagor will remain personally liable for the senior mortgage(s) that remain with the land. Buyer has a strong incentive to pay those off because the senior mortgage(s) will foreclose if the debtor doesn’t pay. If a necessary party is not joined in the sale, their mortgage will remain on the land.

Attorneys fees and expenses of foreclosure paid off first. Then junior liens in order of their priority. Mortgagees who do not recover the full amount from the foreclosure sale can proceed against the mortgagor in a deficiency judgment for the balance. If there is a surplus, the remainder does to the mortgagor.

Question 90

Equitable redemption

Answer 90

At any time prior to the foreclosure sale, the debtor has the right to redeem the land by freeing it of the mortgage. Once valid foreclosure sale has taken place, the right is cut off.

Question 91

Variance

Answer 91

Variance grants landowner permission to dept from the literal restrictions of a zoning ordinance.

Question 92

Cumulative zoning ordinance

Answer 92

creates a hierarchy of uses of land where a single-family home is the highest use, then two-family home, apartment building, strip mall, factor. Land zoned for a particular use may be used for the stated purpose and any other higher use.

Question 93

Noncumulative zoning ordinance

Answer 93

Land may be used only for the purpose for which it is zoned.

Question 94

Special use permit

Answer 94

Must be obtained even though zoning is proper for the intended use

Ex: hospitals, funeral homes, drive-in businesses etc.

Question 95

Rights incidental to ownership of land

Answer 95

In general, an owner of real property has the exclusive right to use and possess the surface, airspace, and soil of the property.

Question 96

Right to lateral and subjacent support

Answer 96

Right to have the land supported in its natural state by the adjoining land.

Landowner strictly liable if their excavation causes adjacent land to subside. If adjacent landowner’s excavation causes improved land to cave in, excavator will be liable only if they were negligent. But strict liability would apply if the plaintiff shows that because of defendant’s actions, the improved land would have collapsed even if in its natural state.

An underground occupant of land like a mining company must support the surface and buildings existing on the date the subadjacent estate was created. Liability for subsequently erected buildings requires negligence.

Question 97

Riparian doctrine

Answer 97

water belongs to those who own the land bordering the watercourse.

natural flow theory- riparian owner’s use is enjoinable if it results in subtantial or material diminution of the water’s quantity, quality, or velocity

reasonable use theory- all riparians share right of reasonable use. cannot substantially infere with the use of other riparian owners.

Natural uses prevail over artificial uses.

Question 98

Prior appropriation doctrine

Answer 98

Water initially belongs to the state but the right to divert it and use it can be acquired by an individual through their actual use, regardless of whether or not they happen to be a riparian owner. A person can acquire the right to divert and use water from a watercourse merely by being the first to do so.

Question 99

Groundwater

Answer 99

Absolute ownership- only a few states. Owner of overlying land can take all the water the want, for any purpose.

Reasonable use- like absolute ownership but exporting only allowed if it does not harm other owners who have rights in the same aquifer.

Correlative rights doctrine- owners of overlying land own underground water basin as joint tenants, and each is allowed a reasonable amount for his own use

Appropriative rights doctrine- priority of use is determinative

restatement- surface owner can pump groundwater unless it (1) unreasonably harms neighboring landowners, exceeds the pumper’s reasonable share, or (3) directly and substantially affects surface waters and unreasonably harms surface water users

Question 100

Surface water

Answer 100

Water coming from rain, springs, or melting snow which has not yet reached a natural watercourse or basin. Landowner can use surface water within their boundaries for any purpose they desire.

Natural flow theory- owners cannot alter natural drainage patterns

common enemy theory- owner can take any protective measures to get rid of the water or combat its flow (many courts say you can’t unnecessarily damage others’ land in doing so)

reasonable use theory- balances utility of use against gravity of the harm

Question 101

Airspace

Answer 101

No exclusive right to airspace but owner is entitled to freedom from excessive noise