Real Property Flashcards
Does a Tenant in Common have a right to judicial partition?
YES
Creation of a Valid Death Escrow
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)
Time Period Necessary to Acquire Title by Adverse Possession
As applied in the jurisdiction, but must be continuous for the entire period
Title Insurance Protection
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.
Variance
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.
Limitation on duty of life tenant to pay all general property taxes
Life tenant has no duty to expend more than the income that can be generated from the land.
When it title marketable?
Title does not have to be marketable until the closing date, when all payments have been received.
Easement by Prescription
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
Is Timing of Performance Required under the statue of frauds?
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.
Defects on the Property
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.
Is a Creditor a BFP?
No, unless the applicable recording act in the fact patter provides.
Liability of Life Tenant as to Waste
The life tenant is held liable to the remainderman for any waste during his or her life tenancy.
Rule Against Perpetuity Unexercised Options
Unexercised options are considered under the common law to be “unvested” future interests that are subject to the Rule Against Perpetuities
Life Tenant Tax Exemption
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
Removal of Fixture by a Tenant
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.
Trade Fixtures Exception
Tenant can remove an item used in their trade or business that would have otherwise become a fixture on the realty
Lessor Duty to Warn to Lessee
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.
Illegal use of a Property
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
Deed to Non-Existing Grantee
A deed to a non-existent grantee is void
Co-tenant Possession
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
When to Trigger “Mortgagee in Possession”
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”
Does a landowner have a right to sunlight, fresh air, or view?
No
Common Interest Common Interest Community Power to Ensure Compliance
Power to ensure compliance using fines or penalties or revoking privileges
Liquidated Damages Clause Enforcement
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
