Real Property

Question 1

Does a Tenant in Common have a right to judicial partition?

Answer 1

YES

Question 2

Creation of a Valid Death Escrow

Answer 2

To create a valid death escrow, grantor must place the deed beyond their control, reserving no power over it once it has been given to third party, etc.

(Instructions to “return a deed” when asked does not place a deed beyond the grantor’s control)

Question 3

Time Period Necessary to Acquire Title by Adverse Possession

Answer 3

As applied in the jurisdiction, but must be continuous for the entire period

Question 4

Title Insurance Protection

Answer 4

An owner’s policy of title insurance continues to protect the owners if the owner is ever successful sued on a title covenant in a future conveyance.

Question 5

Variance

Answer 5

A variance permits a waiver from a zoning requirement. A variance will be granted when an owner convinces a zoning appeals board that without the variance, the owner would suffer a hardship regarding the use of the land.

Question 6

Limitation on duty of life tenant to pay all general property taxes

Answer 6

Life tenant has no duty to expend more than the income that can be generated from the land.

Question 7

When it title marketable?

Answer 7

Title does not have to be marketable until the closing date, when all payments have been received.

Question 8

Easement by Prescription

Answer 8

Created when a landowner allows a trespasser to use his land continuously for the statutory period. The trespasser’s use must be:
1) hostile (without permission)
2) open and notorious (not hidden); AND
3) Continuous for the Statutory Period

Question 9

Is Timing of Performance Required under the statue of frauds?

Answer 9

There is no rule requiring parties to a contract for the sale of real property to agree in writing to the timing of performance. In such a case, a court will infer that performance within a reasonable time was intended.

Question 10

Defects on the Property

Answer 10

With regards to defects on a property, sellers are required to disclose all known defects that will not be open and obvious to a buyer, and are prohibited from concealing such defects in an by way.

Question 11

Is a Creditor a BFP?

Answer 11

No, unless the applicable recording act in the fact patter provides.

Question 12

Liability of Life Tenant as to Waste

Answer 12

The life tenant is held liable to the remainderman for any waste during his or her life tenancy.

Question 13

Rule Against Perpetuity Unexercised Options

Answer 13

Unexercised options are considered under the common law to be “unvested” future interests that are subject to the Rule Against Perpetuities

Question 14

Life Tenant Tax Exemption

Answer 14

If the life tenant is not occupying the property, and not renting the property, then the future interest holder upon coming into possession of the property will be unable to sue the former life tenant for unpaid taxed on the property.
Life tenant will not have to pay property taxes

Question 15

Removal of Fixture by a Tenant

Answer 15

An agreement between the landlord and tenant is controlling on whether the chattel annexed to the premises was intended to become a fixture

In the absence of an agreement to the contrary, a tenant may remove chattel that he has attached to the premises as long as the removal does not leave unrepaired damage to the premises or cause the virtual destruction of the chattel.

This removal must occur before the end of the lease term and the tenant does have a duty to repair damages resulting from the removal of chattel.

Question 16

Trade Fixtures Exception

Answer 16

Tenant can remove an item used in their trade or business that would have otherwise become a fixture on the realty

Question 17

Lessor Duty to Warn to Lessee

Answer 17

A lessor must warn the lessee of existing defects in the premises of which the lessor is aware, and which he knows that the lessee is not likely to discover on a reasonable inspection

Failure to disclose the danger will make the lessor liable for any injury resulting from the condition.

Question 18

Illegal use of a Property

Answer 18

If a tenant’s illegal use of a property is continuous, the landlord may:
I) terminate the lease
II) recover damages; AND/OR
III) pursue injunctive or monetary relief

A security deposit may be retained for
I) failure to pay rent, AND/OR
II) Damage to the premise beyond normal wear and tear

Question 19

Deed to Non-Existing Grantee

Answer 19

A deed to a non-existent grantee is void

Question 20

Co-tenant Possession

Answer 20

Although one co-tenant has the right to possess the entire property, that possession in no way alters their ownership rights or those of the other co-tenants

Question 21

When to Trigger “Mortgagee in Possession”

Answer 21

When the mortgagor abandons the premises and stops paying their mortgage, the mortgagee is entitled to take possession and administer the property to maintain the value of the security interest.

Will be liable for any actions against the “owner”

Question 22

Does a landowner have a right to sunlight, fresh air, or view?

Answer 22

No

Question 23

Common Interest Common Interest Community Power to Ensure Compliance

Answer 23

Power to ensure compliance using fines or penalties or revoking privileges

Question 24

Liquidated Damages Clause Enforcement

Answer 24

Will not be enforce if it is deemed to be a penalty or unconscionable (over 10% of purchase price)
Also invalid if it gives one party a choice of possible remedies while not providing any pre-determined remedy for the other party

Question 25

Modifications to Senior Mortgages

Answer 25

Modifications to the senior mortgage that are detrimental to the junior mortgage, such as raising the interest rate or the principal amount, thus making it more burdensome, will give the junior mortgage priority.

Question 26

Liquidated Damages Clause Enforcement

Answer 26

Will not be enforced if it is deemed to be a penalty or unconscionable. Amount must be reasonable (greater than 3%?)