Real Property

Question 1

What is a profit?

Answer 1

A non-possessory interest in land that allows profit holder to enter onto the servient land to remove minerals, soil, substance from the land.

A profit can be appurtenant or in gross. If it goes to benefit dominant estate, then it is appurtenant.

If there is a profit appurtenant, you cannot independently transfer the profit rights from the dominant estate.

A profit in gross CAN be transferred.

Question 2

What is a covenant?

Answer 2

A promise to do or not do something with the land.

Question 3

Is a chattel a fixture?

Answer 3

Depends if commercial or residential

For residences, look at:

1. Nature of the chattel (heirloom v. toilet)
2. Intent of the annexor/tenant when they attached chattel (did they intend for it to stay or go)
3. How much damage will be caused to real property if chattel is removed

For commercial structures:
Apply trade fixtures doctrine. Commercial tenant can remove all trade fixtures prior to lease expiring.

Exception: Accessions (structural additions to the real property, e.g. deck, loft, i beam)

Question 4

Who bears risk of loss after contract is signed but prior to closing?

Answer 4

The buyer bears the risk of loss as the equitable owner of the property.

Question 5

What is the doctrine of equitable conversion?

Answer 5

Either side can demand specific performance. Once parties enter into valid land sale agreement –> If buyer dies, equitable owner and estate can demand conveyance of the property; similarly, if seller dies, estate can insist buyer perform and purchase the property.

Question 6

What happens if there is a discrepancy between the physical description of the land and the quantity (acres or square feet) of land being conveyed?

Answer 6

The physical description takes precedence.

Ex: deed described land as western boundary to the grove of apple trees, comprising 220 acres. Actually, turned out later that land was 229 acres. The deed is still valid and the buyer is the owner of 229 acres.

Key = Physical descriptions prevail over quantity in deed

Question 7

What is the doctrine of part performance?

Answer 7

May be used to enforce an otherwise unenforceable oral K of sale – PROVIDED THAT acts of part performance unequivocally prove the existence of the K.

Question 8

What does a general warranty deed include?

Answer 8

6 covenants of title

Three present covenants (don’t run with the land):

1. C of Seisin – I own it
2. C of Conveyance – I can sell it
3. C against encumbrances – I can sell it without any strings attached (no mortgages, liens, etc.)

^^ only enforceable by buyer, at closing

Three future covenants (do run with the land):

4. C of quiet enjoyment – no one will disturb you
5. C of warranty – if someone disturbs you, I will defend you
6. C of further assurances – after defending you, will take whatever steps necessary to make sure this doesn’t happen again

^^ are enforceable by subsequent owners of the land

Question 9

What happens when buyer agrees to assume mortgage? Who is liable?

Answer 9

Both the buyer and original borrower (mortgagor) are jointly and severally liable

If you buy mortgaged piece of property from seller, general rule is you just take the land subject to mortgage but you are not on the hook personally for mortgage debt to mortgagee; but if ASSUME the mortgage, then both personally liable.

Question 10

What are the four unities needed to create a Joint Tenancy?

Answer 10

T: at the same Time
T: by the same Title
I: Identical, equal interests
P: Rights to possess the whole

*** Plus note there MUST be clear expression by grantor of right of survivorship; otherwise, presumed to be tenancy in common

Question 11

What are the four types of leasehold estates?

Answer 11

1. Tenancy for years
2. Periodic Tenancy
3. Tenancy at will
4. Tenancy at sufferance

Question 12

When does a covenant run with the land?

Answer 12

A covenant runs with the land when (1) the original parties to the lease so intend AND the covenant “touches and concerns” the land (benefits one party and burdens the other party with respect to their interests in the property).

Question 13

What are the methods for creating an easement?

Answer 13

Prescription
Implication
Necessity
Grant

Question 14

How does someone acquire an easement by prescription?

Answer 14

Continuous and uninterrupted
Open and notorious
Actual use (need not be exclusive)
Hostile use (without owner's consent)

Question 15

How is an easement terminated?

Answer 15

Estoppel
Necessity
Destruction

Condemnation
Release
Abandonment (must show by physical action an intent never to use the easement again)
Merger
Prescription

Question 16

When does a burden resulting from a restrictive covenant run with the land?

Answer 16

Writing
Intent  (that successors to the original covenanting parties would be bound)
Touch and concern
Horizontal and vertical privity***
Notice (actual, inquiry, or record)

Horizontal privity: about the connection bt the original covenanting parties; were they in a legal relationship regarding the land, separate from the covenant itself (e.g. grantor-grantee, landlord-tenant, or mortgagor-mortgagee). If they were just neighbors, there is no horizontal privity.

Vertical privity: really only absent when a successor acquired the interest through adverse possession (just requires some non-hostile nexus).

Question 17

When does a benefit resulting from covenant run with the land?

Answer 17

Key question is whether successor in interest to the benefited land has standing to enforce the covenant.

Remember with:

Writing
Intent (original parties intended that successors in interest to the benefited land would be able to enforce the promise)
Touch and concern (promise must affect the parties as landowners)
Vertical privity (non hostile nexus between promisee and successor in interest)

**note that horizontal privity is NOT required for the benefit to run. Therefore, it is easier for benefit to run than it is for the burden to run.

Question 18

What is required to create an equitable servitude?

Answer 18

Writing (but see common scheme exception)
Intent
Touch and concern
Notice (to subsequent purchasers via actual, inquiry, or record notice)

(ES) - equitable servitude

***note that privity is not required

Question 19

What are the elements for adverse possession?

Answer 19

Continuous
Open and notorious
Actual and exclusive
Hostile

Question 20

What is the doctrine of part performance?

Answer 20

The doctrine of part performance is an exception the Statute of Frauds requirement that a land sale be in a signed writing. It allows the buyer to enforce an oral real estate contract by specific performance if (1) the oral contract is certain and clear and (2) the acts of partial performance clearly prove the existence of a contract.

Three actions usually taken by buyer to satisfy second requirement:

1. Buyer has taken POSSESSION
2. Buyer has paid the PURCHASE PRICE (or significant portion of purchase price)
3. Buyer has made SUBSTANTIAL IMPROVEMENTS

Question 21

What are the two promises implied in every land sale contract?

Answer 21

1. Seller will provide Marketable Title on the day of closing (no defects in chain of title such as A.P.; encumbrances like mortgages, liens, easements, restrictive covenants; or Zoning violations)
   
   • slight encroachments will not make title unmarketable, but encroachments of more than a foot likely will
   • an easement that is beneficial, visible, or known to the buyer does not impair marketable title
   • zoning restrictions do not affect marketability but EXISTING ZONING VIOLATIONS do render title unmarketable
2. Seller will not make false statements of material fact
   
   • to be liable for failure to disclose, seller must know or have reason to know of the defect; must realize buyer is unlikely to discover it; and defect must be serious enough that buyer would probably reconsider the purchase

Question 22

What is cumulative vs. noncumulative zoning?

Answer 22

Cumulative zoning = hierarchy of uses of land; land that is zoned for a particular used may be used for that purpose or any higher purpose on the hierarchy

Non cumulative zoning = land can only be used for the particular purpose for which it is zoned