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Real Property Flashcards

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1
Q

Why is the following grant a fee simple absolute rather than a fee simple determinable?: Grantor conveys Blackacer “to B to be used for a horse farm.” B does not use Blackacker as a horse farm.

A

Grantor’s language merely indicates their desire, intent, or purpose for which the property should be used rather than imposing a condition that could limit the duration of the estate.

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2
Q

What are the 3 common types of recording acts?

A
  1. Notice - A purchase for value without notice of prior interest prevails.
  2. Race - A purchaser for value who records first prevails.
  3. Race-Notice - A purchaser for value without notice and records first prevails.
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3
Q

What is a major difference between a vested remainder subject to open and a contingent remainder?

A

A vested remainder subject to open - Is transferred to a group rather than individual, and at least one member of the group is individually ascertainable and entitled to the remainder interest.
A contingent remainder - Is created in a grantee who is unascertainable.

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4
Q

What kind of tenants have the right of unilaterally partition a piece of property?

A

A tenant in common or a joint tenant may unilaterally partition property.
-A tenant by the entirety does not have this right.

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5
Q

What 2 possible components denote a contingent remainder?

A
  1. The remainder is created in an unascertainable grantee; or
  2. If it is subject to a condition precedent to the grantee’s taking.
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6
Q

After a mortgaged property is sold at a foreclosure sale, in what order are the proceeds distributed to different stakeholders?

A
  1. Proceeds are used to pay costs related to the sale.
  2. The party who foreclosed on the property is paid, up to the amount outstanding on its mortgage interest.
  3. If any money remains, any junior interest are paid in order of their priority.
  4. If any money remains, the mortgagee is paid.
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7
Q

Regarding the effect of a mortgage on a joint tenancy, what is difference between a title theory jurisdiction and a lien theory jurisdiction, and which is the majority rule?

A

Lien theory states (Majority) - No severance because the mortgage is only a lien on the property.
Title theory states (Minority) - Severance because the joint tenancy is converted into a tenancy in common with respect to the mortgaging tenant.

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8
Q

What does it mean if a remainder is subject to a condition precedent?

A

The condition must first be met or satisfied for a remainderman to ever take possession.

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9
Q

What are 3 corresponding future interests to these 3 defeasible fees:
1. Fee simple determinable
2. Fee simple subject to a condition subsequent
3. Fee simple subject to an executory condition

A
  1. Fee simple determinable
    - Possibility of reverter; or
    -Executory interest.
  2. Fee simple subject to a condition subsequent
    -right of entry/right of reentry/power of termination
  3. Fee simple subject to and executory condition
    -Executory interest.
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10
Q

What are 2 major exceptions to a tenant’s duty to pay rent?

A
  1. Destruction of the premises not due to tenant’s fault; or
  2. Material breach of the lease by the landlord
    -Breach of the covenant of quiet enjoyment; or
    -The implied warranty of habitability.
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11
Q

What are the 2 types of executory interests and define each?

A
  1. Shifting executory interest - Divests the interest of the grantee by cutting short a prior estate created in the same conveyance and “shifts” the estate from 1 grantee to another on the happening of the condition.
  2. Springing executory interest: Divests the interest of the grantor or fills a gap in possession in which the estate reverts to the grantor.
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12
Q

A sublessee is not liable to the landlord for rent or any other covenants in the lease unless what happens?

A

If the sublessee expressly assumes the rent covenant, then the sublessee becomes personally liable to the landlord.

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13
Q

A tenant is considered a holdover tenant when they continue to occupy the premises without the landlord’s consent and after the expiration of the lease. What 2 remedies does a landlord have?

A
  1. The landlord may evict; or
  2. The landlord may bind the holdover tenant to a new periodic tenancy.
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14
Q

A conveyance by will by a joint tenant of their property interest has what effect?

A

None because the property passes automatically to the remaining joint tenant(s) due to the right of survivorship.

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15
Q

What is a mortgage?

A

A mortgage is a security device used to secure payment of a debt.

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16
Q

What durational language is often used with a fee simple determinable?

A

-So long as;
-While;
-During;
-Until

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17
Q

What estate requires clear language that the interest is measured in terms of a life, not a number of years?

A

A life estate is a present possessory estate that is limited in duration by a life.
-Upon the end of the measuring life, title reverts to the grantor or specified remainderman.

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18
Q

What is the fifth unity unique to a tenancy by the entirety?

A

The unity of person.

The 5 unities are:
1. Possession;
2. Interest;
3. Time;
4. Title; and
5. Person.

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19
Q

What is an ouster?

A

Ouster occurs when a co-tenant refuses to allow another co-tenant access to the property.
-In this event, the ousted co-tenant may seek an injunction to gain access to the property and to recover the value of the use of the property for the first time during which the co-tenant was denied access to the property.

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20
Q

What happens to a fee determinable upon the happening of the stated condidition?

A

It terminates automatically.

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21
Q

Which covenant is a promise by the landlord not to interfere with the tenant’s possession of the leased premises and how is this breached?

A

The implied covenant of quiet enjoyment, which is implied in every lease.

This warranty is breached only when the conduct of the landlord or someone with superior title prevents the tenant from possessing the leased premises.

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22
Q

What are the 2 types of mortgages?

A
  1. Purchase money mortgage - A person takes out a loan for the purpose of purchasing property.
  2. Future advance mortgage: A line of credit used for home equity, construction, business, and commercial loans.
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23
Q

A plaintiff must prove racial intent or purpose in order to establish a violation of the 14th Amendment’s Equal Protection Clause. What must a plaintiff show to establish racial discrimination under the Fair Housing Act?

A

A plaintiff needs to show a disparate racial impact.

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24
Q

What are the four types of landlord-tenant estates?

A
  1. Tenancy for years
  2. Periodic tenancy
  3. Tenancy at will
  4. Tenancy at sufferance
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25
Q

What remedies does a tenant have when a landlord breaches the warranty of habitability?

A

If a premises is not habitable, the a tenant may choose to:
1. Refuse to pay rent;
2. Remedy the defect and offset the cost against rent; or
3. Defend against eviction.

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26
Q

What is constructive eviction?

A

A constructive eviction occurs when a landlord breaches a duty to a tenant, such as failing to make a repair, that substantially interferes with a tenant’s use and enjoyment of the leasehold.

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27
Q

What is a will deed?

A

A will deed is a recorded deed that is not within the chain of title.
-It is recorded and indexed, but not in the correct way to give subsequent purchasers notice.

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28
Q

What is attornment and how does it happen?

A

Attornment is a tenant’s acknowledgement of a new landlord.

It can be accomplished:
-In writing; or
-By making rent payments to the new landlord.

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29
Q

Groundwater is natural water that flows or lies under the surface and either percolates to the surface naturally or is tapped by a well. What are the 4 doctrines that govern groundwater rights?

A
  1. Prior-appropriation;
  2. Correlative-rights;
  3. Reasonable-use;
  4. Common-law doctrine of absolute ownership.
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30
Q

What are the 3 requirements in a land sale contract to satisfy the Statute of Frauds?

A
  1. It must be in writing;
  2. It must be signed by the party to be charged; and
  3. It must contain all essential terms
    -Parties, description of the property, price/payment information.
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31
Q

What is an option contract?

A

In an option contract, 1 party acquires the right to purchase property, usually for a specific period of time, in exchange for consideration.
-The buyer usually pays for the option.

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32
Q

How do the remedies available for breach of a real covenant differ from the remedies available for breach of an equitable servitude?

A

The remedy for breach of a real covenant is money damages, while the remedy for breach of an equitable servitude is an injunction.
-When deciding whether to analyze facts under a real covenant analysis or an equitable servitude analysis, note what the party is seeking, damages or an injunction.

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33
Q

What protection does a buyer have with an option contract?

A

During the time specified in the contract, buyer is protected against revocation by the grantor and termination if the grantor of the option dies or becomes incapacitated.

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34
Q

What are the requirements for adverse possession?

A

Possession must be:
-Continuous;
-Actual;
-Open and notorious;
-Hostile; and
-Exclusive for the statutory period.

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35
Q

Explain the 2 doctrine that govern the rights that a landowner has to take or use water from a watercourse that flows through or adjacent to the owner’s land?

A

Responsible-use - Favored in the eastern U.S. and allows the owner to make any reasonable use of the water, although the water rights cannot be sold or transferred separately.

Prior-appropriation - Favored in the western U.S. and states where water rights are determined by priority of beneficial use (first in time, first in right) and water rights can be sold or transferred separately.

36
Q

For a deed to be effective, what must the grantor and grantee do?

A

In general a deed transfers title only when:
1. The grantor INTENDS to convey an interest,
2. The grantor DELIVERS a deed to the grantee, and
3. The grantee ACCEPTS the deed.

37
Q

What is an actual eviction?

A

An actual eviction occurs when the landlord removes the tenant from the premises.
-This total eviction terminates the lease and ends the tenant’s obligation to pay rent.

38
Q

A covenant running with the land means that subsequent owners may be burdened by or may have to enforce the covenant. What are the 6 requirements for a burden to run with the land?

A
  1. Writing to satisfy the Statute of Frauds
    -Exception: Implied reciprocal servitude
  2. Intent
  3. Notice
  4. Horizontal privity
  5. Vertical privity
  6. Touch and concern
39
Q

Name 4 real property instruments that must comply with the Statute of Frauds (Aside from the land sales contract)?

A
  1. Promise to create an interest in real property
  2. Assignment of a right to purchase
  3. Option contract
  4. Promise to give a mortgage or other lien security
40
Q

Restrictions on the transferability of property (restraints on alienation) are generally prohibited. However, what 2 restraints on alienation can be valid on a life estate?

A
  1. A forfeiture restraint - Property forfeited if interest owner attempts to transfer; and
  2. A promissory restraint - Promise by interest holder not to transfer.
41
Q

If a buyer is purchasing property using an installment land contract, when do they obtain legal title?

A

A buyer obtains legal title upon final payment under the installment payment plan.

42
Q

What terms must a valid deed contain?

A

-Identities of the grantor and grantee;
-Words of transfer;
-Description of the property interest being transferred; and
-Grantor’s signature.

43
Q

What is a novation?

A

A novation is an agreement by the landlord to release the original tenant from liability after an assignment or sublease.
-Absent a novation, the original tenant remains liable to the landlord for the entire duration of the lease.

44
Q

When analyzing facts concerning a party’s liability for changing the flow of surface water, what 3 theories should you consider?

A
  1. Common enemy;
  2. Natural flow;
  3. Reasonable use.
45
Q

What are the 6 covenants of title that a grantor guarantees with a general warranty deed?

A

Present covenants:
1.Covenant of seisin;
2. Covenant of the right to convey;
3. Covenant against encumbrances

Future covenants:
4. Covenant of quiet enjoyment;
5. Covenant of warranty;
6. Covenant of further assurances.

46
Q

If one co-tenant rents out the property, how must profits be split among all co-tenants?

A

A co-tenant must account to other co-tenants for rent received from third parties, and rend is divided based on ownership interest of each tenant.

47
Q

What is a landowner’s liability if they excavate on their land and cause the adjacent, undeveloped land to collapse or subside?

A

The excavating land owner is strictly liable.

48
Q

In a lien theory state, a mortgage interest is treated as a lien that does not affect a joint tenancy until foreclosure. What does a mortgage do to a joint tenancy in a title theory state?

A

In a title theory state, the joint tenancy is severed upon the granting of the mortgage, and the interest is converted into a tenancy in common.

49
Q

A landlord’s failure to comply with applicable housing code requirements constitute a breach of which warranty?

A

The implied warranty of habitability, which applies to residential leases and is nonwaivable.

50
Q

What is a major difference between a vested remainder subject to complete divestment and a contingent remainder?

A

A vested remainder subject to complete divestment - Is subject to a condition subsequent that can completely divest the remainder interest.

A contingent remainder: Is subject to a condition precedent to grantee’s taking.

51
Q

Regarding a seller’s duty to disclose, what is difference between the common law rule and the modern rule, and which is the majority rule?

A

Modern rule (Majority) :
-When selling residential property, one must disclose all known material defects that a buyer could not reasonably discover, except when there is an “as is” clause or specific disclaimer without seller’s fraud.
-When selling commercial property, there is no duty to disclose defects unless otherwise provided.

Common law rule (Minority): Caveat emptor - there is no duty to disclose property defects unless otherwise provided regardless of whether the property is commercial or residential.

52
Q

What does it mean to take subject to a mortgage versus to assume the mortgage.

A

Subject to - The transferee is NOT personally liable for the debt.

Assume the mortgage - The transferee becomes primarily liable for the debt and the mortgagor becomes secondarily liable as a surety.

53
Q

What are the 4 types of recourse available to a secondary obligor under the law of suretyship?

A
  1. Specific performance - Court order requiring primary obligor to specifically perform all or part of their contractual duties.
  2. Reimbursement - Repayment for secondary obligor fulfilling all or part of primary obligor’s underlying contractual duties.
  3. Restitution - Repayment to secondary obligor to avoid unjust enrichment to primary obligor even when no duty exists.
  4. Subrogation - Secondary obligor given rights of primary obligor and is protected as through an assignment of rights has occurred.
54
Q

In a majority of jurisdictions, what doctrine applies when a land sale contract is silent regarding the risk of loss?

A

The doctrine of equitable conversion - The risk of loss is place on the party with equitable title at the time the property was destroyed.
*A buyer receives equitable title once the contract is formed and can be specifically enforced.

55
Q

What type of fixtures can a tenant remove without a landlord’s consent?

A

Trade fixtures: Items attached to real property by the tenant for use in their trade or business.

A tenant can remove trade fixtures without the landlords consent if:
-The items were removed before, or within a reasonable time after the lease terminates; and
-The removal will not substantially harm the property.
*After removal, the tenant must reasonably restore the property to its prior condition or pay restoration costs.

56
Q

Define the rule of convenience.

A

Under the rule of convenience, a class closes once any member is entitled to immediate possession of the property, and anyone born after the class closes cannot claim an interest in that property.
*Those born after a class closes are excluded from the class, but those already in utero upon closing are included.

57
Q

When is a conveyance to an innocent purchaser void?

A

When the conveyance stems from:
-Forgery;
-Illegality;
-Fraud in the factum;
-Duress by physical compulsion.

*When a conveyance is void it is invalid upon creation.

58
Q

What is the difference between a condominium and a cooperative?

A

Condo: Each unit is responsible for their own mortgage.

Cooperative: Has a blanket mortgage that generally has priority over occupancy leases.
-A default on the mortgage can result on foreclosure proceedings on the property which in turn terminate all leases.

59
Q

What is a cooperative?

A

-Consists of land and 1 or more buildings owned by a corporation that leases individual residential units to shareholders.
-A resident is a tenant who also owns 1 or more shares of stock in the corporation and is prohibited from transferring interest separately from the lease.
-A cooperative has a blanket mortgage.

60
Q

When is marketable title included in a land sale contract?

A

Absent contrary language, every land sale contract implies that the seller will give marketable title to the buyer at closing.

61
Q

What is the standard for marketable title?

A

The title must be reasonably free from doubt and under no threat of litigation, such that a reasonable person would accept and pay for the land.

62
Q

Is a land-sale contract enforceable if the seller did not have title to the land when they entered the contract?

A

Yes, if the seller acquires marketable title at or before closing because once a land sale contract is executed, the promises become binding.

63
Q

When is the removal of fixtures permissible?

A

A tenant, licensee, or life tenant may remove a fixture that they have attached to the leased property if:
-The leased property can be and is restored to its former condition after the removal; and
-The removal and restoration is made within a reasonable time.

64
Q

What is required for a covenant to run with the land and what is its effect?

A
  1. Writing: The covenant is in a writing that satisfies the statute of frauds.
  2. Intent to run: Promising parties intend for the covenant to run to their successors in interest.
  3. Touch and concern: The covenant relates to the use, enjoyment, or occupation of the benefited and burdened lands.
  4. Horizontal privity: Promising parties simultaneously transfer the land and create the covenant.
  5. Vertical privity: Successor of the benefited stated has possessory interest and successor of the burdened estate has a promising party’s entire ownership interest.
  6. Notice: If the person to be bound was a purchaser, that person had notice of the covenant.

Only if the covenant runs with the land, can the covenant bind successors in interest.

65
Q

What is the difference between an appurtenant and in gross easement?

A

Appurtenant
-Benefits the easement holder’s land.
-The benefit and burden automatically transfer when the land is conveyed.

In gross
-Benefits the easement holder personally.
-The burden but not the benefit automatically transfers when the land is conveyed.

66
Q

What are 4 ways that an easement can be created?

A
  1. Express: An easement created by the parties in writing that satisfies the statute of frauds.
  2. Irrevocable license: A license becomes irrevocable due to estoppel or coupling with another servitude.
  3. Implied: The easement is either implied by law due to necessity or implied by fact due to prior use.
  4. Prescription: Adversely acquired through adverse possession.
67
Q

When does an assignee-landlord have the right to enforce a covenant in the lease?

A

Only if the covenant runs with the land.

68
Q

When does a covenant run with the land?

A

A covenant runs with the land if:
1. The original parties intended to bind their successors;
2. The covenant touches and concerns the land; and
3. There is privity of estate (A mutual or successive relationship in the same property interest).

69
Q

How is payment of a preexisting mortgage obligation allocated between a holder of a life estate and future interest holder?

A

If the obligation requires the periodic payment of interest until the principal amount is due, then:
-The life tenant is responsible for the interest payments; and
-The future interest holder is responsible for the principal payments due at a later date.

If the obligation requires the periodic payment of both interest and the principal amount, then:
-The obligation is allocated between the life tenant and the future interest holder based on the present value of each interest.

70
Q

When is a nonjudicial foreclosure allowed in most states?

A

Nonjudicial foreclosures are allowed in most states if the mortgage or deed of trust contains a power-of-sale clause.

*However, the court can overturn the foreclosure if the auction or sales process violated due process or the purchase price was grossly inadequate.

71
Q

When is a tenant in common bound by the transfer of the other tenant?

A

A tenant in common can freely transfer their interest to a 3rd party.

A tenant in common cannot transfer another tenant’s interest or bind the other tenant to a contract affecting the shared property.

72
Q

What is servient estate versus a dominant estate?

A

Servient estate: Land that is subject to an easement.

Dominant estate: Land that benefits from an easement on a servient estate.

73
Q

What is the difference between easements appurtenant and easements in gross?

A

Easements appurtenant: Easements tied to the land.
-Easements are presumed appurtenant.
-The benefits of an easement must correspond directly to the use and enjoyment of the dominant estate.
-Transfers automatically with the land to which it relates.

Easements in gross: Easements personal to the holder.
-Must be clear facts showing the easement is not tied to the land.
-It is granted to benefit a particular person.
-Traditionally, could not be transferred.
-Majority allows transfer if it is commercial rather, than personal use, or if the parties intended it to be transferable,

74
Q

When is an easement by necessity created?

A

An easement by necessity is only created when property is virtually useless without the benefit of an easement across neighboring property.
-Both the dominant and servient estate must have been under common ownership in the past; and
-The necessity must have arisen at the time that the property was severed.

75
Q

What are the different types of easement by implication?

A

-Prior use: If an owner transfers one parcel that they used to use to benefit another, courts may find that the parties intended the use to continue if it is continuous, apparent or known, and reasonably necessary to the dominant land’s use and enjoyment.

-Recorded Plat

-Easement by prescription: Requires that the use is continuous, actual, open, and hostile for a specific period, but does not need to be exclusive.

-Easement by estoppel: Good-faith, reasonable, detrimental reliance on permission by a servient estate holder to make a limited use of the property can create an easement if necessary to prevent unjust enrichment.

76
Q

Does the holder of a life estate have a duty to pay current charges on land that becomes due during the life tenancy?

A

Yes, but a life tenant must only pay for current charges up to the financial benefit received from the property.

*If a life tenant is not in possession of the land and does not receive income from the land there is no financial benefit.

77
Q

What is the shelter rule?

A

A person receiving a property interest from a BFP is protected from prior interest by the Recording Act to the same extent as the BFP.

78
Q

What is an equitable servitude?

A

Equitable servitudes are covenants regarding land that are enforceable in equity against the promising parties and their successors in interest.

79
Q

What 3 elements must be met for an equitable servitude to be implied from a common scheme?

A

An equitable servitude can be implied if:
1. There is intent to create a common scheme: The owner intended to impose a servitude on all lots in the subdivision;
2. The servitude is restrictive: The intended servitude is a promise not to do something on the land; and
3. There is notice: The person to be bound by the servitude had actual, recorded, or inquiry notice of it.

80
Q

Can a co-tenant acquire sole ownership of property through adverse possession?

A

Yes, if they oust the other co-tenant.

81
Q

What elements are required to create an express equitable servitude?

A

An express equitable servitude requires:
1. Writing: The covenant is expressed in a writing that satisfies the SOF;
2. Intent to run: The promising parties intended for the promise to bind their successors in interest;
3. Touch and concern: The covenant relates to the use, enjoyment, or occupation of both the dominant and servient estates.
4. Notice: The owner of the servient estate has actual, record, or inquiry notice of the covenant.

82
Q

Define the riparian doctrine.

A
  1. Water belongs to owners of adjoining land;
  2. Reasonable use that does not unreasonably interfere with downstream use is permitted;
  3. Domestic use trumps commercial use; and
  4. Water rights cannot be sold or transferred separately from the adjoining land.
83
Q

Define the prior-appropriation doctrine

A
  1. Water rights determined by priority of beneficial use (first in time, first in right)
  2. Water rights are unconnected to adjoining land and can be sold or transferred separately.
84
Q

What is a fee tail and how is it applied today?

A

A fee tail lasts until the original grantee’s lineage dies out: “to A and the heirs of his body.”

Majority of jurisdictions have abolished the fee tail and convert such into a fee simple absolute grant in the first grantee.

85
Q

How does the transfer of a note and/or mortgage affect the right of foreclosure?

A

One who pays value for the interest without notice of another’s prior interest in the property has the ultimate right of foreclosure whether or not they are transferred the documents.

Note and mortgage transferred: The transferee acquires the right of foreclosure.
Note but not mortgage is transferred: The transferee acquires the right of foreclosure.

86
Q

Are both vested and contingent remainders transferable?

A

Yes, in a majority of jurisdictions both types of remainders are fully transferable during the grantee’s lifetime, deviable by will, and inheritable through intestate succession.

87
Q

Define the doctrine of equitable conversion.

A

Under this doctrine, the buyer receives equitable title to the property once the parties enter a specifically enforceable land-sales contract, while the seller retains legal title to the property and acquires the equitable right to receive the purchase price upon closing.
-The buyer’s equitable title is treated as a real property interest that is freely alienable.
-The seller’s right to the sale proceeds is treated as a personal property interest.

MBE (8 decks)

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