Real Property Flashcards

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1
Q

What controls if the deed is written with “fee simple” but along with conditions? What will prevail?

A

The conditions will prevail over the “fee simple”, since we should try to enforce the wishes of the conveyor

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2
Q

Is a life tenant responsible for damages caused by a third-party tortfeaser?

A

No. A life tenant is not responsible for damage caused by a third-party tortfeaser.

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3
Q

Does a right of entry die with the grantor?

A

No, a right of entry will be passed on by the force of a will or intestacy.

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4
Q

Does a contract for interest in land need to be rescinded in writing and with consideration?

A

No. Although a contract to transfer an interest in land must be in writing pursuant to the Statute of Frauds, the majority rule is that the rescission of such a contract may be oral. Giving up to compel the other party to honor their part of the bargain may be enough consideration.

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5
Q

Which standard should the court apply in determining whether the title is marketable?

A

The marketable title requirement, which is implied in a real property contract unless it is specifically disclaimed, is sometimes characterized as one that protects the purchaser of real estate from buying a lawsuit.

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6
Q

Does a warranty deed mean remedies for physical defects of the real property? No.

A

a warranty deed provides remedies for breaches of title matters. Termite damage affects the physical quality of the property, not title to the property. A seller may disclaim any duty to disclose physical defects if the disclaimer is sufficiently clear and specific. In this case, the contract specifically noted that the house was being sold “as is.”

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7
Q

Which has priority? A seller’s non-recorded financed amount in a record-state, or a bank recorded mortgage?

A

A seller-financed purchase money mortgage generally takes precedence over a third-party purchase money mortgage.

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8
Q

Can a lender increase the time for the borrower to pay a mortgage without losing its priority?

A

Yes.
Here, since neither the interest rate nor the principal amount of the mortgage is increased, the modification is not materially prejudicial to the credit union’s interest, and thus the bank’s mortgage continues to have priority over the credit union’s mortgage.

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9
Q

Are the standards for wild animals and vicious dogs the same?

A

No. Strict liability applies only to wild animals. Owners of wild animals may be liable for injuries resulting from a fearful reaction to those animals.

A landowner is not strictly liable for injuries inflicted by his animals against a trespasser, except for injuries inflicted by a vicious watchdog.

landowners are not strictly liable for injuries inflicted by their animals unless the animals are vicious watchdogs, wild animals, or domestic animals when the animal’s owner knows or has reason to know of the animal’s dangerous propensities and the harm results from those dangerous propensities.

Trespasser defense applies to domestic animals (even aggressive) but not to wild ones.

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10
Q

When is a lease prohibited from placing the duty to make repairs on the tenant?

A

Only in a residential lease.

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11
Q

Is a business tenant required to make repairs if damage was caused by the criminal act of a third party?

A

Yes, if the lease says so.

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12
Q

Is a covenant of marketable title implied in only residential contracts?

A

No, a covenant of marketable title is implied in every land sales contract.

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13
Q

What is the effect of a forged instrument, such as deed or release from a mortgage, on property rights?

A

A forged instrument, such as a deed or release from a mortgage, is void and has no effect on property rights, even if relied upon by a bona fide purchaser.

Consequently, the forged release is not effective to terminate the mortgagee’s rights, even though the release was properly recorded and relied on by the buyer.

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14
Q

How are real covenants different from real servitudes?

A

Servitudes are promises (e.g.: refrain from doing something). Covenants are enforced by money damages while servitudes are enforced by injunctions.

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15
Q

What are the requirements for a reciprocal servitude in a planned community?

A

(i) there must be intent to create a servitude on all plots (i.e., a common scheme),
(ii) the servitude must be negative (i.e., a promise to refrain from doing something), and
(iii) the party against whom enforcement of the servitude is sought must have actual, record, or inquiry notice.

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16
Q

Will moral pressure or future threats constitute confinement or restraint?

A

No, the defendant may confine or restrain the plaintiff by the use of physical barriers, physical force, direct or indirect threats (to the plaintiff, a third party, or plaintiff’s property), failure to provide a means of escape, or invalid use of legal authority. The defendant’s use of moral pressure or future threats does not constitute confinement or restraint, and a plaintiff is not imprisoned if she willingly submits to confinement.

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17
Q

Can conversion occur without the D have exercised dominion over the P’s personal property?

A

No, for conversion there must be intent to convert—to take or exercise dominion over personal property. Accidentally damaging the plaintiff’s chattel is not conversion if the defendant had permission to use the property.

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18
Q

What are the main characteristics of a fee simple determinable?

A

Oliver conveys Blackacre to Anna so long as the land is used as a farm.

Interest terminated instantly if triggered by the language.

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19
Q

In common law, would a life tenant be able to engage in act to enhance the value of the property’s value?

A

No, in common law even ameliorative waste is prohibited.

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20
Q

When can a life tenant alter a property’s structure substantially?

A

Majority rule
1) substantial and permanent change in neighborhood
2) makes it necessary in order to continue reasonable use of the property
3) so long as the property value is not diminished

In common law, under no circumstances.

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21
Q

Is a sublessee in privity of estate with the landlord?

A

No, a sublessee is not in privity of estate or contract with the landlord. As a consequence, the sublessee is not liable to the landlord for the rent or any other covenants in the original lease, unless the sublessee expressly assumes the rent covenant or any other lease covenants.

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22
Q

Will an appliance bought by the tenant be included in a sale of the property by the landlord to a third party?

A

No, although an item that becomes a fixture is transferred as part of the real property interest to which it relates, when there is an agreement between the landlord and tenant regarding an item that may be a fixture, that agreement will control.

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23
Q

Can the right to a nonconforming use of property be passed along with title to the property to another person?

A

Yes, most courts permit a property owner whose nonconforming use predated a zoning change to transfer not only the property itself, but also the right to use the property in the preexisting nonconforming manner.

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24
Q

Will a sale of interest in the property between joint tenants severe the unity of title?

A

Yes, the interest sold will be a common-tenancy interest and the unsold part remain as joint-tenancy.

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25
Q

What says the doctrine of attornment?

A

Under the doctrine of attornment, the tenant is bound to honor any covenant in his lease that has been assigned by the landlord to a third party, if the covenant touches and concerns the land (e.g.: gym equipment in the gym facility).

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26
Q

Can a buyer sue after closing for termite infestation unknown to both parties while a clause in the contract represented that there was no infestation?

A

No, under the doctrine of merger, a buyer of property generally cannot sue on promises contained in the contract, such as a termite warranty, once closing has taken place.

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27
Q

Will a warranty of fitness or suitability apply to every land transaction?

A

No, while the warranty of fitness or suitability does apply to the sale of a residence, it only applies to a newly constructed residence and is imposed only on a commercial seller, typically the builder or developer of the residence.

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28
Q

Will violation of a zoning ordinance result in a title being unmarketeable?

A

Yes, violation of zoning ordinance will preclude a title from being marketeable.

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29
Q

Will someone be liable for selling a house with a serious material problem, if this seller didn’t know about the problem when selling?

A

No, as long as the seller is truthful when disclosing the knowing problems and don’t know about the material problem at that time.

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30
Q

Can a buyer ask for specific performance when the seller breaches the covenant of marketable title and refuses to close?

A

Yes, and, in addition to obtain specific performance, the buyer may also obtain an abatement of the purchasing price to compensate the buyer for the defect.

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31
Q

Will a credit judgment attach to a property after the property is sold to someone else, but before the buyer has recorded the title?

A

No, a credit judgment will not prevail after the buyer has obtained equitable title to the house. For the creditor to attach real property based on a lien only, the debtor must have both legal and equitable title at the moment of the lien execution.

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32
Q

Will an earlier registered wild deed prevail over a later non-wild deed?

A

No, the regular deed will prevail over the wild deed even if registered later.

A “wild deed” is a deed not within the chain of title due to the failure of the seller to promptly record his deed received from the original owner.

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33
Q

Is a deed involving a nonexisting grantee entirely voidable?

A

No, this deed is void as to only the nonexisting grantee.

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34
Q

How can “notice acts” for value operate against creditors?

A

When a debtor transfers the property by deed only to any other party, since the creditor tries to attach the property without value (being paid) they will lose even if the new buyer has not recorded a deed.

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35
Q

What is the “Cy Pres” doctrine?

A

The cy-près doctrine allows a court to amend a legal document to enforce it “as near as possible” to the original intent of the instrument.

36
Q

If a will fails for a specific gift, and there is no provision for residuary estate, what happens to the failed gift?

A

It is passed through intestacy law.

37
Q

What happens to a mortgage granted in a joint tenancy under the title theory?

A

Title theory of mortgages: the granting of a mortgage by less than all of the joint tenants severs the joint tenancy and transforms it into a tenancy in common.

Upon default of the loan obligation by the farmer-mortgagor, the lender-mortgagee can foreclose on its mortgage.

38
Q

What are the differences between lien and title theories?

A

Lien state: mortgage is a lien that does not sever a joint tenancy.

Title state: mortgage severs a joint tenancy.

39
Q

Can a lender foreclosure on a current mortgage if the borrower transfers the property despite a due-on-sale clause?

A

Yes, pursuant to federal law, a mortgagee-lender is generally entitled to enforce a clause, such as a “due on sale” clause, that accelerates the mortgagor-borrower’s loan obligation upon the transfer of the mortgaged property. If the mortgagor-borrower fails to pay the full amount of the outstanding loan obligation upon demand by the mortgagee-lender, the mortgagee-lender may declare the loan in default and proceed to foreclose on its mortgage.

40
Q

Can a lender foreclosure on a current mortgage if the borrower transfers the property despite a due-on-encumbrance clause?

A

Yes, due-on-encumbrance clauses are enforceable just like due-on-sale clauses.

41
Q

Will a mortgage follow a note even if the note doesn’t mention the mortgage?

A

Yes, if the promissory note is transferred without the mortgage, the mortgage is treated as having been transferred as well under the principle that the mortgage follows the note. There is no need for the note to mention the mortgage.

42
Q

Can the morgage require a mortgagor to pay for not taking care of a property after foreclosuring on it and not recovering the entire balance owed?

A

Yes, under a waste theory.

A mortgagor has a duty not to commit waste at least to the extent that the waste impairs the mortgage’s security. While the damage done to the building by the hurricane does not constitute waste because it was due to natural forces, the damage done by the owner’s failure to take action to prevent further damage to the building could constitute waste.

43
Q

What happens when a jr mortgagor does not receive notice of a foreclosure by a sr mortgagor?

A

The junior mortgagor will not be eliminated.

44
Q

Which are the main exceptions to the due-on-sale clause?

A

transfer to spouse, child, ex-spouse, living trust.

45
Q

Can a tenant in common pay off a mortgage balance and obtain contribution from another party who does not want to pay the mortgage

A

Yes, a person who pays off a loan that is secured by a mortgage in order to protect her own interests acquires the rights of the original mortgagee-lender and may therefore enforce the mortgage against a tenant in common. This concept is called “subrogation.”

46
Q

Will the expanded use of an easement be be terminated if the use becomes unreasonably expanded?

A

No, although the expanded use of an easement may be enjoined by the owner of the servient estate if such use is not in conformity with the express terms of the easement or is otherwise unreasonable, expanded use is not an independent ground for termination of an easement.

47
Q

Does it matter if a construction is erected before or after the mineral rights are granted?

A

Yes:
a) structure constructed before the rights were acquired -> owner of the mining rights is strictly liable for the failure to provide subjacent support
b) structure constructed after the rights were acquired -> owner of the mining rights liable only if owner fails to exercise reasonable care in removing the minerals.

48
Q

When a customer status changes from trespasser to discovered trespasser, how does the business owner’s liability increases?

A

An undiscovered trespasser is owed no duties, while a discovered trespasser is owed a duty to be warned about concealed, dangerous, and artificial conditions such as live electrical wires.

49
Q

When will someone hiring an independent contractor still be liable for the contractor actions?

A

When the independent contractor provides services considered ultra-hazardous.

50
Q

Does the fact that a landowner was found liable to a neighbor under vicarious liability mean that the independent contractor breached a duty to the landowner?

A

No, it only means that the contractor breached a duty to the neighbor - not necessarily that he also breached a duty to the landowner.

51
Q

Does the RAP apply to a possibility of reverter (fee simple determinable)?

A

No.

52
Q

How much does a life tenant has to pay in taxes for the land?

A

In the absence of a contrary direction in the document creating the life estate - in this case, the will - it is the duty of the life tenant to pay all general property taxes that accrue during the continuance of the life estate. The only limitation on this duty is that the life tenant has no duty to expend more than the income that can be generated from the land.

53
Q

How much right has a tenant who leases a property owned by him and other tenants in common?

A

An individual tenant in common may unilaterally transfer his or her undivided interest by a lease for a term of years.

The tenant obtains only the transferor’s concurrent right of possession with the other tenants in common (meaning the other tenants in common can use the property concurrently).

54
Q

Can a co-tenant bind other co-tenants who did not participate in an agreement?

A

No.
Unless there is an agreement to the contrary, one co-tenant may not bind another co-tenant to a boundary line agreement.

55
Q

Will a landlord always be liable to a tenant leasing a property for the previous tenant not leaving the property on time?

A

No.
In some jurisdictions, it is enough that the landlord provide the new tenant with the legal right of possession - meaning that the fact that the property is not actually vacant is not the landlord’s problem.

56
Q

Can a buyer by effect of negotiation language only waiver an implied of covenant of marketable title?

A

Yes, a buyer may waive the right to have marketable title by accepting an undisclosed easement.

57
Q

How does an anti-ademption statute operates?

A

At common law, the proceeds from the sale of the property under contract were treated as personal property that passed to the devisee of the seller-decedent’s personal property.

The devise of the real property itself was treated as having been adeemed.

In a jurisdiction that has adopted an anti-ademption statute, however, the devisee of the seller-decedent’s real property is entitled to the sale proceeds.

58
Q

How does seller’s negligence operate as an exception to the doctrine of equitable conversion?

A

Absent an agreement or statute to the contrary, the doctrine of equitable conversion applies.

Equitable conversion places the risk of loss between the execution of the contract and the closing date on the buyer, regardless of whether the buyer takes possession of the property.

However, there is an exception when the loss is attributable to the intentional or negligent acts of the seller.

59
Q

What is an ejectment action?

A

It is the action by which someone avoid losing property by adverse possession by an adverse possessor.

If the time limit for an ejectment action is exceeded, it means that the adverse possessor has obtained ownership of the land.

60
Q

Can a deed recorded be considered not delivered?

A

Yes.
Although recording the deed raises the presumption of delivery, that presumption is rebuttable by facts indicating the grantor’s contrary intent.

61
Q

What is a death escrow?

A

A death escrow is a device to will property by delivering a deed to an attorney or another person with instructions to deliver to a devisee.

62
Q

What is the requirement for a death escrow to be valid?

A

To create a valid death escrow, however, the testator has to place the deed beyond his control, reserving no power over it once it has been given to his attorney.

63
Q

Will an oral condition presented with a deed be enforceable?

A

No.
When the grantor transfers the deed to the grantee subject to a condition that does not appear in the deed (e.g., an oral condition), parol evidence is not admissible and the condition is not enforceable.

64
Q

How are joint tenants protected in a lien state?

A

In a jurisdiction that follows the lien theory of mortgages, the granting of a mortgage by fewer than all of the joint tenants does not sever the joint tenancy.

Consequently, in such a jurisdiction, upon the farmer’s death his interest in the farm terminated, and his sister became the sole owner of the farm due to her right of survivorship.

Because she did not grant the bank a mortgage on her interest in the farm, the bank no longer had an enforceable mortgage on the farm.

65
Q

How does work the exoneration of liens doctrine?

A

The exoneration of liens doctrine permits the devisee of real property that is subject to a lien (e.g., a mortgage) to demand that the lien be paid off (i.e., “exonerated”) using other assets in the decedent’s estate.

66
Q

Why does the intermediate theory of mortgages is similar to the title theory?

A

Under the intermediate theory of mortgages, upon default with regard to a loan to which the mortgage serves as security, the jurisdiction switches from the lien theory to the title theory.

Consequently, upon the farmer’s default on the bank loan, his joint tenancy interest was severed, converting it into a tenancy in common.

Consequently, in such a jurisdiction, because a tenant in common’s interest survives the death of its owner, the bank would have been able to enforce its mortgage against this interest in the hands of the farmer’s heirs or devisees.

67
Q

Can a deed of trust have terms authorizing a lender to transfer the title automatically without foreclosure?

A

No.
Until property that is subject to a mortgage or a deed of trust is foreclosed upon by sale, the borrower has a right to redeem the property by satisfying the obligation for which the property serves as security.

While this right may be waived after the borrower has defaulted, the terms of the mortgage or deed of trust cannot waive this right as a matter of course.

68
Q

What does say the doctrine of mashalling of assets?

A

Under this doctrine, the holder of a senior security interest must first proceed against the property on which there are not any junior security interests, and then against the property on which the junior interest was more recently created, before proceeding against property on which the junior interest was more remotely created.

69
Q

What happens when a sr. mortgage loans an additional amount to a mortgagor that is optional rather than obligatory?

A

If an original mortgagee loans an additional amount to a mortgagor that is optional rather than obligatory such amount may not enjoy priority over a second mortgage if the original mortgagee has notice of the second mortgage.

70
Q

Are the other co-tenants allowed to keep their ownership on a foreclosed property if they pay their fair share to the co-tenant who bought the property back at foreclosure?

A

Yes, the other co-tenants have the right to reacquire their original interests by paying their due contributions within a reasonable time.

Although co-tenants owe a duty of fair dealing to each other, co-tenants generally do not owe fiduciary duties to each other. However, a fiduciary obligation can be imposed on co-tenants who jointly purchase the property in reliance on each other or acquire their interests at the same time from a common source, such as by gift, will, or inheritance.

Typically, these co-tenants will be related or in a confidential relationship.

The primary situation in which such a co-tenant is found to have a fiduciary obligation arises when the property is sold at a tax or mortgage foreclosure sale and a co-tenant acquires the property.

71
Q

Will full faith apply to a divorce decree awarding real property rights in State B to a party divorced in State A?

A

No.
When it comes to real property, the law of the situs will strictly control ownership.

So, in a race recording state (no “notice” component), even a party who knows about a previous legal conveyance will be able to record first and become the legitimate owner for “wining the recording race”.

72
Q

When can a deed be signed upon command or another person signing the deed directly on her behalf (e.g.: presential) without a properly executed written agency agreement be valid despite the Equal Dignities rule?

A

“Amanuensis” concept applies.
An otherwise valid deed that is signed by the agent with only the name of the principal is a valid deed if the agent had authority to sign.
Reqs:
1) Actual authority;
2) Signing with the name of the principal (in front of the principal?);
3) Deed has no defects (?).

73
Q

Can a tenant remove a fixture installed at the property?

A

Yes.
In general, absent an agreement to the contrary, a tenant may remove a fixture that the tenant has attached to the leased property if:
(i) the leased property can be and is restored to its former condition after the removal, and
(ii) the removal and restoration is made within a reasonable time.

74
Q

Will a special warranty deed guarantee against all types of encumbrances?

A

No, a special warranty deed offers LESS warranty than a general warranty deed.

A special warranty deed offers warranty against encumbrances occurred ONLY during the time the grantor has title.

75
Q

Does an easement deed operate similarly to a deed for land?

A

Yes, including operation as per the race/notice statutes.

76
Q

What is the key difference, when it comes to prescription, between land and easements?

A

Land requires adverse (exclusive) possession
Easement by prescription requires (non) exclusive possession.

77
Q

Compare the language of a fee simple determinable (no need for reentry) with the language for a fee simple subject to a condition subsequent.

A

Fee simple determinable:
To [charity], so long as [charity] uses [office building] for [charitable purpose].

All fee simple subject to condition subsequent:

“To [charity], provided that if [charity] ceases to use [office building] for [charitable purpose], ownership of [office building] will revert to [client], her heirs, devisees, or assigns.”

“To [charity], on the condition that if [charity] ceases to use [office building] for [charitable purpose], ownership of [office building] will revert to [client], her heirs, devisees, or assigns.”

“To [charity], but if [charity] ceases to use [office building] for [charitable purpose], ownership of [office building] will revert to [client], her heirs, devisees, or assigns.”

78
Q

Will a promise to convey marketable title prevail over the nature of a quitclaim deed?

A

Yes.

79
Q

What are the 6 convenants in the general deed warranty?

A

Six implied covenants in the general warranty deed
1) Present covenants
• Covenant of seisin: Warrants that the deed describes
the land in question;
• Covenant of the right to convey: Warrants that the grantor (i.e., the seller) has the right to convey the property;
• Covenant against encumbrances: Warrants that there are no undisclosed encumbrances on the property that could limit its value.
2) Future covenants
• Covenant of quiet enjoyment: Grantor promises that the grantee’s possession will
not be disturbed by a third-party claim;
• Covenant of warranty: Grantor promises to defend against future claims of
title by a third party;
• Covenant of further assurances: Grantor promises to fix future title problems

80
Q

What does a tenancy for years become if after the end of its period, the tenant remains paying a monthly rent with the permission of the landlord?

A

Periodic tenancy meaning a “month to month”. Landlord can terminate it at any time upon given a one-month notice.

81
Q

How is the color of title doctrine applied to adverse possession?

A

Color of title gives constructive possession (e.g.: can be “co-possessing” with another) or have possession of an area matching the entire area of the purported deed.

• Adverse possession generally traces the legal boundaries of the property
• Exception—constructive adverse possession: Adverse possessor enters under color of title from
an invalid instrument (e.g., fraudulent deed) and occupies a portion of the property described in
the instrument. The adverse possessor is in actual possession of the occupied land and constructive possession of the remaining land described in the deed.

82
Q

Is a life tenant responsible for paying insurance on the property?

A

No, only taxes and mortgage interest. Life tenant cannot commit waste by, for example, cut down valuable trees on the property.

83
Q

Is rezoning benefiting one or a few properties permissible?

A

No.
A rezoning that affects a small number of parcels of land, most typically a single parcel, in manner that is inconsistent with the zoning of the neighboring land (and the comprehensive plan where one exists) and that usually benefits the owner of the parcel or parcels to the detriment of the neighboring land constitutes impermissible “spot zoning.”

84
Q

Is a city commission voting a legislative act?

A

Yes.

85
Q

How is the rule of convenience applied in cases of RAP?

A

The rule of convenience closes the class of persons who are entitled to take a future interest when any member of the class becomes entitled to immediate possession of the property if the instrument creating the future interest does not specify a closing date for determining the class members.

It does not allow the court to alter the express terms of the devise.

86
Q

What is the doctrine of marshalling?

A

[A] principle for doing equity between two or more creditors, each of whom are owed debts by the same debtor, but one of whom can enforce his claim against more than one security or fund and the other can resort to only one. It gives the latter an equity to require that the first creditor satisfy himself (or be treated as having satisfied himself) so far as possible out of the security or fund to which the latter has no claim

87
Q

What is the right of redemption?

A

Under the common law right of redemption, while the foreclosure is in progress, the mortgage debtor has the right to redeem the property from the mortgage by paying the full amount past due under the mortgage (missed payments or total amount if there is an acceleration clause) including interest and attorney fees. This common law right, however, is terminated as of the time of the foreclosure sale.