Real Property

Question 1

Present Possessory Interest in Land.

Answer 1

1. Ideafeasible interest - It is not subject to early termination ( Fee simple absolute and life estate)
2. Defeasible interest- allows a fee simple or life estate to be terminated if a stated event occurs ( Fee simple determinable, subject to condition subsequent and subject to executory interest)

Question 2

Types of Tenancies

Answer 2

1. Tenancy for years- it is for a fixed period e.g 10 days or 10 years. It is created expressly and ends automatically on its termination date.
2. Periodic Tenancy - for a fixed period that continues for succeeding periods e.g month to month.
3. Tenancy at will- no stated duration as long as the parties desire
4. Tenancy at sufferance- Hold over doctrine where a tenant remains in possession after the tenancy has expired. - Landlord may evict tenant or create a periodic tenancy by accepting rent

Question 2

Joint Tenancy

Answer 2

Right of Survivorship- deceased shares go automatically to surviving JT
Alienable inter vivos- they can sell or give during the cause of a lifetime

Devisable- Not capable of passing by will.
Descendible- pass to heirs, it’s not descendible

Creation of Joint Tenancy
T-at the same time
T-by same title
I-Identical equal interest
P-right to possess whole

Ways to sever

Sale:JT sells / transfers during lifetime without the others knowledge or concern
The new buyer becomes a tenant in common

Question 3

What is an easement?

Answer 3

An easement is a grant of a nonpossessory interest in property that entitles its holder to have the enjoyment of another person’s land.

Question 4

If an easement is said to be surcharged, this means:

Answer 4

The easement’s legal scope was exceeded The holder of an easement has the right to use another’s land (i.e., the servient tenement), but has no right to possess the land. The scope of an easement is determined by the reasonable intent of the original parties, and when the scope has been specified, these specifics will govern.

Question 5

What is a remainder?

Answer 5

It is a future interest created in a third-party
It is possession on a natural expiration of the preceding estate (Life estate or term of years)

Example
To A for life and then to B

Contingent remainder
Taker as yet unascertainable or subject ti condition precedent

Vested Remainder

Question 6

Adverse Possession

Answer 6

(i) An actual entry giving exclusive possession that is (ii) Open and notorious, (iii) Adverse (hostile), and (iv) Continuous throughout the statutory period.

For purposes of determining title by adverse possession, tacking is not available when one adverse claimant ousts the other or the first claimant abandons and the next claimant goes into possession.

Note**

Periods of adverse possession between two successive claimants may be tacked together to make up the full statutory period if there is privity of possession between the claimants. Privity is satisfied if the first adverse claimant purports to transfer the land to the next; i.e., the subsequent possessor takes by descent, by devise, or by deed purporting to convey title.

If an adverse possessor uses land in violation of a recorded real covenant for the limitations period, she takes title free of the real covenant.

An adverse possessor will gain title only to the land she actually occupies.

Question 7

Statutory redemption

Answer 7

Statutory redemption is the right of a mortgagor to recover the land after the foreclosure sale has occurred, usually by paying the foreclosure sale price.

Question 8

Equitable redemption

Answer 8

In contrast, equitable redemption is the right of a mortgagor to recover the land by paying the amount overdue on the mortgage, plus interest, at any time before the foreclosure sale.

Question 9

Who is liable when a grantee assumes a mortgage?

Answer 9

When a grantee assumes the mortgage, the grantee expressly promises the grantor-mortgagor that he will pay the mortgage obligation as it becomes due. The mortgagee then becomes a third-party beneficiary of the grantee’s promise to pay and can sue the grantee directly if the grantee fails to pay. After the assumption, the grantor-mortgagor becomes a surety who is secondarily liable to the mortgagee on the note if the grantee fails to pay.

Question 10

Tenants in Common

Answer 10

This is created when there are two or more tenants and no right of survivorship, right to possess the whole.
interest is divesable, descindable and alienable.

Question 11

Tenancy by the entirety

Answer 11

Creation- parties must be married at the time of creation.

Termination, by death, divorce, mutual agreement, or a mutual creditor of both executing on its interest.

Question 12

Implied warranty of habitability,

Answer 12

The landlord must keep the property in a habitable condition.
This condition is not waivable and it only applies to residential leases.

It provides that the premises must be fit for basic human habitation.

Question 13

Lease

Answer 13

A lease is a contract that governs the landlord-tenant relationship.

Question 14

Types of Waste

Answer 14

Voluntary or affirmative waste- It occurs when the tenant’s actions cause damage to the property.

Permissive waste- This is when the tenant fails to take reasonable steps to protect the premises from damage from the elements.

Ameliorative waste - This is when the tenant does something to increase the value of the property

Question 15

An assignment under a lease

Answer 15

The assignee and landlord are in the privity of the estate.
This is when a tenant assigns his entire interest, he is still liable under the lease because he is in privity of contract. The assignee is liable under the privity of estate.

Question 16

Sublease

Answer 16

This is when a tenant rents less than his interest in an estate. The subleasor is not liable under the contract or privity of estate but the subleasor is still liable under privity of estate and contract.

Note, the sublessor can sue the sublessee

Question 17

Latent defects Rule

Answer 17

A landlord must warn a tenant of hidden defects which the tenant would not have discovered by reasonable inspection.

Question 18

Types of Easements

Answer 18

Affirmative- This is the right to go into servient land, ie the land that is imposed upon by the easement.

Negative- This entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. It can only be created expressly by writing and signed by the grantor.

Question 19

Easement in Gross

Answer 19

An easement in gross provides a specific right to an individual or other entity and belongs to that individual rather than to their property.

In general, easements in gross are irrevocable throughout the life of the person who holds the easement in gross. It is not transferable unless it is for commercial purposes.

Question 20

Easement Appurtenant

Answer 20

An easement appurtenant is a specific type of easement where two properties are linked together as servient tenement and dominant tenement estates.

It automatically passes with the transfer of the dominant tenement.

Question 21

Quasi-easement (Implied from preexisting use)

Answer 21

consider the original intention of usage on a piece of property. Property that is being used for reasonable purposes can be considered legal and equitable and granted an implied easement by a court. Property being used in adverse ways against the will of the property owner is not legal.

Question 22

Easement by prescription

Answer 22

Continuous and uninterrupted use
Open and notorious
Actual use which does not need to be exclusive
Hostile use means without the consent of the servient owner

Permission defeats an easement by prescription.

Question 23

Restrictive covenants.
What is the Covenant?

Answer 23

The covenant is a written promise to do or not do something related to land. It is a contractual limitation or promise regarding land. Real covenants are normally found with deeds and when the requirements are met, they run with the land.

Question 24

Negative covenant

Answer 24

These are restrictive covenants. It is a covenant to refrain from doing something related to land,

Question 25

Affirmative covenant.

Answer 25

It is a promise to do something related to land.

Question 26

Running with the land

Answer 26

when it is binding successors
Requirements for burden to run.
WITHN
Writing- it must be in writing between A and B
Intent- it would have intended that the covenant would run with the land
Touch and concern- It must affect the parties’ legal relations as landowners - ie if they restrict the burdened owner in her use of that parcel.
Horizontal and Vertical privity - It requires they must be successors of the estate and vertically suggests a non-hostile nexus between the original promisee and the successor in interest.

Question 27

Land sale contracts

Answer 27

It is an enforceable contract for the sale of land, it must have an offer, acceptance, and consideration with no defenses to performance.

Note
In Georgia Land sale contracts are known as bonds for title.

Question 28

Statute of Frauds applicable for Land Sale contracts

Answer 28

A real estate contract involves an interest in land, it has to satisfy the statute of fraud.
1. It has to be signed by the party against whom enforcement is sought- ie person currently being sued.
2. It must identify the parties.
3. Describe the property and
4. Include the price or means of determining the price (such as fair market value as determined by an appraisal)

These terms must be definite enough so the courts can enforce the contract.

Question 29

Exception to Statute of Frauds- Doctrine of Part Performance

Answer 29

When there is no writing the courts will look and will allow the buyer to enforce an oral contract by specific performance.
The oral contract is certain and clear and
acts of partial performance prove the existence if a contract.

Question 30

Partial performance

Answer 30

It can be satisfied if the buyer can prove three actions
1. They have taken possession of the property
Suppose the buyer has moved into the property and there must be no other explanation of their occupation of the land such as tenancy.
2. Buyer has paid the purchase price or a significant portion of the purchase price.
The buyer has paid the purchase price which cannot be disputed or explained as money meant for other duties.
3. The buyer has made substantial improvements to the premises.
The buyer has made improvements to the house.

All three must be able to be proven for it to be considered partial performance under the oral contract.

Question 31

Georgia Distinction

Answer 31

To enforce an oral land contract, there must be
1. Full payment accepted by the buyer
2. Possession plus partial payment or
3. Possession plus valuable improvements

Question 32

Doctrine of equitable conversion

Answer 32

Under this doctrine, once the contract is signed, equity regards the buyer as the owner of the real property.

The contract conveys equitable title to the buyer.

Risk of loss
Even though the buyer is the equitable owner if destruction occurs, the seller must submit any proceeds to the buyer.

Passage of title at Death
A deceased buyer’s property is deemed as real property in their estate.

Question 33

Marketable title

Answer 33

The seller will provide a marketable title at the time of closing.

Question 34

Defects in the Record chain of title

Answer 34

1. Adverse possession makes the title unmarketable
2. Encumbrances - liens, restrictive covenants unless the buyer has waived them.
   Small encroachments that do not bother the owner less than a foot will not make the title unmarketable.
3. Zoning violations- existing violations make the title unmarketable
4. Future interests held by unborn or unascertained parties.

Question 35

What is a quitclaim deed?

Answer 35

This is when the grantor is making no promises of the title being conveyed. It conveys only the interest the grantor has at the time.

Question 36

General Warranty Deed

Answer 36

It contains 6 covenants and it warrants against all defects in title including those attributed to the grantor’s predecessors.

Present covenants
Covenant of seisin
Covent of the right to convey
covenant against encumbrances

Future Covenants
1. The covenant of quiet enjoyment
The grantor promises the grantee will not be disturbed in possession by a third party who claims the title.
2. The covenant of warranty
The grantor promises to defend against reasonable claims of title by a third party and to compensate the grantee for any loss sustained by a third party and to compensate the grantee for any loss sustained by the claim to superior title.
3. Covenant of further assurances
This is a promise to make perfect grantee’s title if any defects occur or the title turns out to be imperfect

Question 37

Special Warranty Deed

Answer 37

This is similar to the general warranty deed but the grantor makes promises only as it relates to himself

Question 38

Void deeds

Answer 38

If a deed is
Forged
No delivery
Deed or nonexistent grantee
Obtained by fraud in factum-grantor did not know what they were signing.

Question 39

Voidable deeds

Answer 39

Executed by minor
Executed by one without mental capacity
Deed obtained by fraud in the inducement
Deed obtained by duress or undue influence
The deed was obtained by mistake
Deed through breach of fiduciary duty

Question 40

Fraudulent Conveyance

Answer 40

Conveyance with intent to hinder, delay, or defraud the grantor’s creditor.

A conveyance made without receiving equivalent value by an insolvent debtor- that one becomes insolvent because of the transfer.

Question 41

Recording statute under the Common Law

Answer 41

It is first in time, first in right. Ie whoever receives the interest first is entitled to the property.

Question 42

Race Jurisdiction

Answer 42

Whoever records first wins
A conveyance if an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded.

Question 43

Notice Jurisdiction

Answer 43

Whoever records without prior notice wins ie last BFP takes
A conveyance of an interest in land, other than a lease for less than a year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.

Question 44

Race Notice

Answer 44

BFP who takes and records before another record.
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 45

BFP

Answer 45

Paid for value
bought the property
takes without notice

Question 46

Types of Notice

Answer 46

Actual notice- has literal knowledge
Inquiry notice- visiting the property to inspect will provide an inquiry notice
Record notice- If the deed is recorded- must be within the chain of title and not a wild deed.

Question 47

Shelter Rule

Answer 47

Anyone who takes from a BFP is protected under the shelter rule. Ie the transferee takes shelter under the under the BFP, ie steps into the BFP’s shoe.

Question 48

What is a mortgage and identify the parties

Answer 48

A mortgage is a security interest when a bank lends money. It indicates the existence of debt.

The borrower is the mortgagor and the lender is the mortgagee.

Question 49

Purchase money mortgage

Answer 49

It is the extension of value by a lender who takes as collateral a security interest in the very real estate that the loan enables the debtor to acquire.

Question 50

Assumption of Mortgage or subject to

Answer 50

When a mortgagor transfers the property without paying off the mortgage, the purchaser either assumes the mortgage or takes the property subject to the existing mortgage. That is, they are agreeing to take liability on the mortgage note.
If they are taking subject to, they are not agreeing on being personally liable for the mortgage.

Question 51

Cumulative zoning ordinance

Answer 51

It creates a hierarchy of uses of land where a single-family home has the highest use, followed by a two-family home, and then an apartment complex or building that has the lowest use.

Question 52

Noncumulative zoning ordinance

Answer 52

Land may be used only for which it is zoned.

Question 53

Special use permit

Question 54

Fee simple determinable

Answer 54

A fee simple determinable is an estate that automatically terminates on the happening of a stated event and goes back to the grantor. The interest that is left in a grantor who conveys a fee simple determinable is a possibility of reverter, which in almost all jurisdictions is transferable, devisable, and descendible.