Real Property Flashcards

Question

(4) Leasehold or Nonfreehold Estates

Answer 1

(1) Tenancy for years; (2) Periodic tenancy; (3) Tenancy at will; (4) Tenancy at sufferance.

Answer 2

(1) Known, fixed period of time; (2) Termination automatic (on end date); (3) No notice needed to terminate; (4) Writing typically not needed if less than (1) year. (5) Termination upon breach of lease - landlord reserves a right of entry, which allows them to terminate the lease if the tenant breaches (i.e. failure to pay rent) * Tenancy for years may terminate if the tenant surrenders the tenancy and the landlord accepts. If unexpired term is more than 1 year - SOF requirement.

Answer 3

(1) Continues for successive intervals until properly terminated; (2) Created expressly; (3) Created by implication (no mention of duration but rent at set intervals; oral terms of years violating SOF; holdover tenant after lease ends); (4) Notice of termination must equal length of period so week to week = 1 week; month to month = 1 month, year to year = 1 month (restatement - preferred) or 6 months (CL)

Answer 4

(1) No fixed duration; (2) Terminable at will of either party; (3) Creation by an express agreement explicitly indicating that it is terminable at the will of either party; (4) Can be terminated by either party at any time - but a reasonable time to quit (vacate) is required.

Answer 5

(1) Created when a tenant wrongfully holds over past lease expirations; (2) Landlord proceeds to recover rent; (3) Terminates when landlord moves to evict or holds tenant to new periodic tenancy (hold-over doctrine)

Answer 6

Commercial tenants may be held to a new year-to-year periodic tenancy if the original lease term was for one year or more. If the original term was for less than one year, the new tenancy is typically month-to-month tenancy.

Answer 7

Residential tenants generally held to a new month-to-month tenancy regardless of the original term. If the landlord notifies the tenant before the lease expires that occupancy after termination will be at an increased rent, the tenant, by holding over, is held to have acquiesced to the new terms. Holding over equals assent.

Answer 8

A tenant has two primary duties: (1) Repair; and (2) Pay rent.

Answer 9

If the lease is silent, Tenant need only: (1) Maintain the premises; (2) Make routine repairs; (3) NOT ordinary wear & tear repairs; (4) Cannot commit waste.

Answer 10

(1) Voluntary (Affirmative) Waste - Results when the tenant's overt conduct damages the premises; (2) Permissive Waste - Occurs when the tenant fails to take reasonable steps to protect the premises from damage from the elements; (3) Ameliorative Waste - Occurs when tenant unilaterally alters the leased property, thereby increasing its value. Generally, the tenant is liable for the cost of restoration. Modern exception - permits a tenant to make this type of change if the tenant is a long-term tenant and the change reflects changes in the neighborhood.

Answer 11

(1) Maintain in good repair/condition; (2) Common Law - tenant was responsible for any loss to the property including loss attributable to force of nature, such as hurricanes, earthquakes, or lighting; (3) Majority view - Tenant may terminate the lease if premises destroyed without Tenant's fault.

Answer 12

If Tenant breaches and remain on premises Landlord can: (1) Evict through the courts; or (2) Continue the relationship and sue for rent due; (2) Landlord must NOT engage in self-help (this includes changing the locks, forcibly removing the tenant or removing tenant's possession). *Self help is outlawed and is punishable civilly and criminally.

Answer 13

If Tenant breaches and Tenant wrongfully vacates with time left on a term of years lease. Landlord can: (SIR) (1) Surrender and end lease; (2) Ignore (minority of states) - do nothing and hold T liable for rent; (3) Relet - new lease and hold T liable for deficiency. Good faith reasonable effort to try to mitigate.

Answer 14

(1) Most states restrict the amount of security deposits to one month's rent; (2) Landlords must pay interest on security deposits; and (3) Allow statutory or punitive damages for a landlord's improper refusal to return a security deposit. *Clauses in leases that attempt to avoid these state laws are VOID. *Landlord is permitted to retain a security deposit for damages actually suffered to the premises as a consequence of the Tenant's wrongdoing.

Answer 15

If the entire leasehold is taken by eminent domain, the tenant's liability for rent is extinguished because both the leasehold and reversion have merged in the condemner and there is no longer a leasehold estate. The lessee is entitled to just compensation (FMV of the property) If the taking is temporary or partial, the tenant is NOT discharged from rent obligation but is entitled to compensation for the taking. *Eminent domain is the power of the government to take or condemn property for "public use" - very broad. Can be anything that benefits to the public.

Answer 16

Landlord may terminate the lease or obtain damages and injunctive relief if T uses the premises for an illegal purpose.

Answer 17

Landlord has duty to place Tenant in actual and physical possession of the premises at the beginning of the leasehold term. If at the start of the lease, prior holdover tenant is still in possession, Landlord has breached and new Tenant gets damages.

Answer 18

Tenant has right to quiet use and enjoyment without interference from Landlord (residential and commercial). Landlord can breach through (1) wrongful eviction; and (2) constructive eviction.

Answer 19

Wrongful eviction is a breach of the implied covenant of quiet Landlord excludes Tenant from whole or part of premises enjoyment. (1) Actual Eviction - Landlord excludes the tenant from the entire leased premises. Actual eviction terminates the tenant's obligation to pay rent ; (2) Partial Eviction - Tenant is physically excluded from only part of the leased premises. Partial eviction by the landlord relieves the tenant of the obligation to pay rent for the ENTIRE premises, even though the tenant continues in possession of the remainder.

Answer 20

Landlord's breach of duty renders the premises unsuitable for occupancy. T who has been constructively evicted may terminate the lease and may also seek damages. i.e. every time it rains, the apartment floods. *Tenant must show: (SING) (1) Substantial Interference (chronic/permanent problem); (2) Notice (T must notify L and L must fail to fix it); (3) Goodbye (Get out - T MUST vacate).

Answer 21

As a general rule, the landlord is not liable to a tenant for wrongful acts of other tenants. But there are (2) exceptions: (1) Landlord has a duty to abate a nuisance on site; (2) Landlord must control common areas

Answer 22

Assures that the premises will be fit for the bare living essentials for human dwelling. (1) Applies only to residential property; (2) Premises must be fit for a basic human habitation; (3) Standard applied - Case Law and Housing Code. *Does NOT apply to commercial tenants. i.e. No heat during winter; no working plumbing; no running water

Answer 23

Tenant's option if Landlord breaches: (1) Move out (does not HAVE to); (2) Repairs and deduct; (3) Reduce or withhold rent; (4) Remain (keep paying full rent) & affirmatively seek damages.

Answer 24

(1) Covenant of Quiet Enjoyment (applies to residential and commercial) - Tenant must vacate to file a claim; (2) Warranty of Habitability (applies only to residential) - Tenant does not have to vacate.

Answer 25

Landlord cannot terminate/penalize Tenant in retaliation for Tenant's exercise of legal rights. To overcome the presumption, the Landlord must show a valid, non retaliatory reason for their actions.

Answer 26

Civil Rights Act bars racial or ethnic discrimination in the sale or rental of all property.

Answer 27

The FHA protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status (Except in senior housing). Prohibited Actions: (1) Refusing to negotiate, rent, or sell housing, or give mortgage; (2) Providing different terms for sale/rental; (3) Falsely representing dwelling unavailable.

Answer 28

EXEMPTIONS: (1) Owner-occupied building with (4) or fewer units in which persons live independently of each other; and (2) Single-family homes sold or rented by an owner who owns no more than 30 single-family homes.

Answer 29

Under FHA, Landlord must permit disabled tenants to make reasonable modifications to existing premises to accommodate their disabilities at the tenants' own expense. Landlord must also make reasonable accommodations in rules, policies, and services when necessary to afford a disabled person an equal opportunity to use a dwelling.

Answer 30

Transfer of entire remaining term of lease. Assignee stands in the shoes of the original tenant in a direct relationship w/ the landlord. (1) Assignee T in privity of estate - Liable on covenants that run w/ the land; (2) Original T in privity of contract (but not estate) - Liable for original lease obligations.

Answer 31

(1) Transfer of part of remaining term of lease. The result of a sublease is that the Landlord and sublessees are in neither privity of estate nor privity of contract; (2) T1 and T2 responsible to each other; (3) Relationship between L and T1 remains intact.

Answer 32

Landlord may terminate the main lease for nonpayment of rent of breach of other covenants if the lease so states or the power is given by statute. The sublease automatically terminates w/ the main lease.

Answer 33

Sublessee cannot enforce any covenants made by the Landlord in the main lease, except a residential sublessee may be able to enforce the implied warranty of habitability against the landlord.

Answer 34

In the lease, the Landlord can prohibit a tenant from assigning or subletting without the landlord's prior written approval. A valid covenant against assignment is considered waived if the Landlord was aware of the assignment and did not object. Once a landlord consents to one transfer by a tenant, L waives the right to object to future transfers by T, unless L expressly reserves the right.

Answer 35

Landlord has no duty to make premises safe, EXCEPT: (CLAPS) - (1) Common areas (hallways, stairwells, elevators); (2) Latent defects; (3) Assumption of repairs; (4) Public use rule; (5) Short-term lease of furnished dwelling.

Answer 36

L has a duty to of reasonable care in maintaining all common areas i.e. hallways, stairwells, elevators, etc.

Answer 37

L must WARN a tenant of hidden defects of which the L has knowledge or reason to know. L's obligation in tort is a duty to warn, and not a duty to repair.

Answer 38

In tort, L is under no duty to make repairs, once repairs are undertaken, L must complete them w/ reasonable care.

Answer 39

L who leases public space and who should know, because of the significant nature of the defect and the short length of the lease, that a tenant will not repair, is liable for any defects on the premises that cause injury to members of the public.

Answer 40

L who rents a fully furnished premises for a short period is under a stricter duty. Such landlords are responsible for any defective condition which proximately injures a tenant.

Answer 41

Many courts now hold that L owes a general duty of reasonable care toward residential tenants, and will be held liable for injuries in tort resulting from ordinary negligence if the L had notice of a defect and an opportunity to repair it. (1) Defects Arising After Tenant Takes Possession; (2) Legal Duty to Repair; (3) Security.

Answer 42

L generally is held to have notice of defects existing before T took possession but is NOT liable in tort for defects arising after T takes possession unless L knew or should have known of them.

Answer 43

If L has a statutory duty to repair, L is liable in tort for injuries resulting from the L's failure to repair or negligence in making repairs.

Answer 44

Some courts hold L liable in tort for tenant injuries inflicted by the criminal conduct of 3d parties in cases where L failed to comply w/ housing code provisions dealing w/ security, maintain ordinary security measures, or provide advertised security measure.

Answer 45

Fixture is a chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty. A fixture passes w/ the ownership of the land and must stay put.

Answer 46

(1) Items are incorporated into the realty so that they lost their identity; (2) Chattel affixed to realty is a fixture when its removal would cause considerable damage to the premises. i.e. Plumbing, heating ducts, a furnace.

Answer 47

Intention is determined by: (1) Nature of the article; (2) Manner of attachment; (3) Amount of damages that would be caused by its removal, and the adaptation of the them to the use of the realty.

Answer 48

Grant of nonpossessory property interest entitling holder to use/enjoyment of another's land.

Answer 49

Right to go on to and do something on another's land.

Answer 50

Entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. Negative easements are generally recognized in (4) categories: LASS (1) Light (2) Air (3) Support (4) Stream water from an artificial Refraining your servient owner (neighbor) to build a high building to block light on your land.

Answer 51

Can only be created expressly, by writing signed by the Grantor. There is no natural or automatic right to a negative easement.

Answer 52

Benefits its holder in his physical use or enjoyment of his own land. (1) Two parcels of land must be involved; (2) Dominant tenement derives the benefit; and (3) Servient tenement bears the burden. B's easement appurtenant to B's dominant tenement.

Answer 53

Appurtenant easement passes automatically w/ transfer of the dominant tenement, regardless of whether it is even mentioned in the conveyance.

Answer 54

Burden of the easement appurtenant also passes automatically w/ the servient estate, unless the new owner is a bona fide purchaser without notice of the easement.

Answer 55

Confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land. (1) Holder has personal/commercial advantage unrelated to use/enjoyment of land; (2) Servient land burdened; (3) No benefited/dominant tenement. i.e. Right to place a billboard on another's lot; Right to swim in another's pond; utility company's right to lay power lines on another's lot.

Answer 56

Not transferable unless it is for commercial purposes.

Answer 57

Owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient.

Answer 58

There are (4) ways to create an affirmative easement: PING (1) Prescription (2) Implication (3) Necessity (4) Grant

Answer 59

Easement by prescription may be acquired by analogy to adverse possession: COAH (1) Continuous and uninterrupted use for the given statute's period; (2) Open and notorious use; (3) Actual use that need not be exclusive (4) Hostile use (without servient owner's consent) i.e. Continuing to cut across X's parcel to save time. If done during the statutory time, now have acquired easement by prescription.

Answer 60

Easement by implication are created by operation of law; they're an exception to the SOF. Two ways to get an easement by implication: (1) One guy owning land and severing and selling 1/2 but seller has had some sort of use where he has been cutting across both lands (implied by prior use)

Answer 61

Easement by necessity can be implied when a Landowner conveys a portion of her land w/ no way out except over some part of the grantor's remaining land. The owner of the servient parcel has the right to locate the easement.

Answer 62

Any easement must be: (1) Memorialized in writing; (2) Signed by the holder of the servient tenement unless its duration is brief enough to be outside the scope of the SOF (less than 1 year); (3) Writing must comply w/ all formal requisites of a deed.

Answer 63

An easement by reservation arises when a Grantor conveys title to land but reserves the right to continue to use the tract for a special purpose.

Answer 64

Determined by the terms of the grant or the conditions that created it. If an easement is created but not specifically located on the servient tenement, an easement of sufficient width, height, and direction for the intended use will be implied.

Answer 65

(8) ways to terminate an easement END CRAMP (1) Estoppel (2) Necessity (3) Destruction (4) Condemnation (5) Release (6) Abandonment (7) Merger (8) Prescription

Answer 66

(1) Oral expression of an intent to abandon an easement won't terminate an easement unless it's also committed to writing or accompanied by action. (2) Servient owner materially changes their position in reasonable reliance on the easement holder's assurances or representations.

Answer 67

Easements created by necessity expire as soon as the necessity ends, UNLESS the easement was reduced to an express grant.

Answer 68

Destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement.

Answer 69

Condemnation of the servient estate by gov't eminent domain power will terminate the easement. Courts are split as to whether easement holders are entitled to compensation.

Answer 70

Release given by the easement holder to the servient land owner will terminate the easement. Must be in writing.

Answer 71

Easement holder must show by physical action demonstrating the intent to never make use of the easement again. Stopping use + intent to not return to using it. i.e. Erecting a structure that precludes her from ever again reaching the servient's structure.

Answer 72

An easement is extinguished when title to the easement and title to the servient land become vested in the same person. (One land owner buys the other servient land) Even if the title is separated again, the easement is extinguished.

Answer 73

A servient owner may extinguish the easement by interfering w/ it in accordance w/ the elements of adverse possession: C - Continuous intereference O - Open and notorious A - Actual H - Hostile to the easement holder Servient owner erects a chain link face to preclude easement holder from reaching their parcel of land.

Answer 74

Courts will treat a wall erected partly on the property of each of two adjoining landowners as belonging to each owner to the extent it rests upon their land. Courts will also imply mutual cross-easements of support with the result that each party can use the wall or driveway and neither party can unilaterally destroy it.

Answer 75

Written agreement is required by the SOF for the express creation of a party wall or common driveway agreement, but an irrevocable license can arise from detrimental reliance on a parol agreement. Party walls and common driveways can also result from implication or prescription.

Answer 76

If party wall or common driveway owners agree to be mutually responsible for maintaining the wall or driveway, the burdens and benefits of those promises run to the successive owners of each parcel.

Answer 77

- Mere privilege to enter another's land for some delineated purpose - Not an interest in land - Revocable at the will of licensor - Personal to licensee and inalienable - Any attempt to transfer a license results in revocation by operation of law

Answer 78

- Writing is NOT required - NOT subject to SoF

Answer 79

Freely revocable at will of licensor UNLESS estoppel applies to bar revocation

Answer 80

A ticket creates a freely revocable license

Answer 81

No. If grantor orally grants an easement for more than one year, unenforceable because it's not in writing. Creates a freely revocable license.

Answer 82

Only when licensee has invested substantial money or labor or both in reasonable reliance on the licensee's continuation. Licensee becomes an easement by estoppel, which lasts until the holder receives sufficient benefit to reimburse him for his expenditures

Answer 83

Irrevocable as long as the interest lasts Ex. buyer of chattel may enter seller's land to remove the chattel, or a future interest holder may enter and inspect the land for waste

Answer 84

Profit entitles holder to enter the servient land AND take some resource [soil, substance of soil like mineral, timber, oil] or some product of property [fish/game]

Answer 85

Same as easements **A profit may be extinguished through SURCHARGE = misuse that overly burdens the servient estate**

Answer 86

- Written promise to do or not do something related to land - Contractual limitation or promise regarding land

Answer 87

Found in deeds and when certain requirements are met they run w/ land at law = subsequent owners may enforce or be burdened w/ covenants

Answer 88

Promise to refrain from doing something related to land Most convents are restrictive Ex = "I promise not to build for commercial purposes"

Answer 89

Promise to do something related to land Ex = "I promise to maintain our shared fence"

Answer 90

- Depends on remedy the plaintiff seeks - If Plaintiff wants $ damages => covenant - If Plaintiff wants injunction => equitable servitude

Answer 91

If one tract is burdened by the promised and another is benefited Key Q to see when a covenant will run with land, I.e., when is a covenant capable of binding successors? when will burden/benefit run to successors? Always start analysis w/ burden side first -- harder for the burden to run than for the benefit to run

Answer 92

If the following requirements are met, any successor in interest to burdened estate will be bound by the covenant as if they themselves had expressly agreed to it. "WITHN" (1) Writing (2) Intent (3) Touch and concern (4) Horizontal and vertical privity (5) Notice

Answer 93

The original promise between A and B must have been in writing

Answer 94

The original covenanting parties (A and B) must have intended that the covenant would run (meaning they intended that successors to the originally promising parties would be bound by the covenant) This can be inferred from circumstances but usually found in language of conveyance itself

Answer 95

Affecting parties' legal relations as landowners and not simply as members of the community at large - Restrictive covenants = restrict parcel owner's use of land - Affirmative covenants = require holder of servient estate to do something that increases obligation in connection w/ land

Answer 96

(1) Horizontal = nexus b/w original promising parties; requires A and B share succession of estate, meaning at the time the promisor entered into covenant w/ promisee, the 2 must have shared some interest in the land independent of the covenant ** Difficult to establish** **Often present when A and B were each other's grantor and grantee** (2) Vertical = nexus b/w successor in interest and the originally covenanting party. Requires some non-hostile nexus, such as K, devise, descent. Absent when successor acquired her interest via adverse possession

Answer 97

Successor must have had notice of the promise when she took Under modern recording acts, to be bound by a covenant, a subsequent purchase for value must have had actual, inquiry, or record notice of the covenant at time of purchase

Answer 98

Does successor have standing to enforce the covenant? If following requirements are met, the promisee's successor in interest may enforce the covenant "WITV" W = writing I = intent T = touch and concern V = vertical privity

Answer 99

The original promise (between A and B) must have been in writing

Answer 100

The originally covenanting parties (A and B) must have INTENDED the benefit would run, intended that successors in interest to the promisee would be able to enforce the covenant

Answer 101

If promise performance benefits the promisee and her successors in their use and enjoyment of benefitted land, I.e, promise must have affected the parties as landowners

Answer 102

There must be a non-hostile nexus between original promisee and the successor in interest

Answer 103

Generally, promises to pay MONEY to be used in connection w/ land (HOA fees) and covenants NOT TO COMPETE run w/ land Racially restrictive covenants are unenforceable

Answer 104

Money damages from defendant's general assets

Answer 105

May terminate by: 1. Written release 2. Merger of benefitted and burdened estates or 3. Condemnation of the burdened property

Answer 106

Promise that equity will enforce against successors of the burdened land REGARDLESS of whether it runs with land at law, unless successor is a Bona fide purchaser Accompanied by INJUNCTIVE RELIEF

Answer 107

'WITNES' W = writing --> generally, but not always, original promise was in writing (SoF requirement) I = intent --> the original parties intend that the promise would be enforceable by and against successors T = touch & concern --> promise affects parties as landowners N = notice --> subsequent purchasers of land burdened by the covenant had actual, inquiry, record notice of the covenant when they acquired land ES = equitable servitude **no privity of estate required**

Answer 108

Exception to the general requirement that the original promise be in writing Under the common scheme doctrine, court will imply a reciprocal negative servitude, which is an implied equitable servitude. If a developer subdivides land and some deed contains restrictive covenant while others do not, the restrictive convents will be binding on all parcels provided there was a common scheme o development and notice of the covenants

Answer 109

(1) When sales began, subdivider had a GENERAL SCHEME OF RESIDENTIAL DEVELOPMENT which included defendant's lot (the scheme may be evidenced by a recorded plat, general pattern of restrictions, oral representations of early buyers) AND (2) Defendant had NOTICE of promise contained in those prior deeds when it took

Answer 110

AIR A = actual notice --> defendant had literal knowledge of the promise contained in the prior deed I = inquiry notice --> neighborhood seems to conform to the common restriction R = record notice --> form of notice sometimes imputed to buyers on the basis of the public recorded documents, so there is a prior deed with the covenant in grantee's chain of title

Answer 111

No implied servitude can arise w/ respect to the lots already sold w.o express covenants

Answer 112

A court will NOT enforce an equitable servitude if: 1) Doctrine of changed conditions --> neighborhood conditions have changed SO much that enforcement would be inequitable; not good enough = piecemeal change / mere pockets of limited change 2) Unclean hands 3) A benefited acquiesced in a violated of the servitude by a burdened party 4) Estoppel 5) Laches

Answer 113

1) Written release from benefit holders 2) Merger of the benefitted and burdened estates 3) Condemnation of burdened property

Answer 114

Possession for statutorily prescribed time can ripen into title if elements are met (COAH) (1) Continuous --> for statutory period, intermittent periods of occupancy not sufficient but constant use not required if possession is of a type that usual owner would make, no required to continuously possess by same person, adverse possessor can tack her own possession onto periods of adverse possession of her predecessors. (seasonal) (2) Open & Notorious --> occupation must be sufficiently apparent to put true owner on notice that a trespass is occurring (3) Actual & Exclusive --> literal actual occupation by possessor exclusive of parcel's true owner. Actual possession of ENTIRE parcel is not always required -- if adverse possessor enters under color of title, she is deemed to be in constructive possession of all land the deed describes, as long as she's in actual possession of a rx portion of land (4) Hostile --> possessor is there w/o true owner's consent. Permission defeats hostility. Adverse possessor's true state of mind is irrelevant!

Answer 115

possession by one co-tenant is not adverse to the other co-tenants voluntarily out of possession b/c each co-tenant has right to possess all property. Co-tenant must oust others or make an explicit declaration they're claiming exclusive dominion to create adverse possession

Answer 116

If grantor stays in possession of land after there conveyance, there presumed to be there w/ permission of grantee/

Answer 117

A possessor enters claim of right when they reasonably believe the property belongs to them -- usually due to invalid deed. Invalid deed does not give possessor permission to be on the land. when someone assumes possession w/ what they mistakenly believe is valid title, the possession is hostile and adverse. Most states use "claim of right" instead of/interchangeable w/ hostile

Answer 118

Begins to run when true owner Cana first bring suit Filing of suit will not stop the period from running, however, the suit must be pursued to judgment

Answer 119

most states do not require adverse possessor to pay taxes on property, but consider such payment good evidence of a claim of right

Answer 120

one adverse possessor may tack on to his time w/ the land his predecessor's time, so long as there is PRIVITY b/w possessors. PRIVITY satisfied by non-hostile nexus, such as a K, will, deed. By contrast, privity is absent when possessor acquires possession by ousting his predecessor in possession

Answer 121

SOL will not run against a true owner who is affected by a disability at inception of the adverse possession (when cause of action first accrued). Only the disability of owner existing at time the existing at the time the cause of action arose is considered. Common disabilities: - insanity - infancy - imprisonment

Answer 122

SOL does NOT run against holder of a future interest until the interest becomes possessory

Answer 123

if adverse possessor uses the land in violation of restrictive covenant in owner's deed for SOL period, they take free of the restriction But if possessor's use complies w/ covenant --> take title subject to restriction

Answer 124

Title to gov-owned land and land registered under a Torrens system cannot be acquired by adverse possession

Answer 125

(2) Step Process: (1) Contract (Conveys equitable title) *Escrow period - The gap between contract and closing is provided to give the buyer a chance to inspect and typically get a mortgage, and check the integrity of the title. (2) Closing (deed passes legal title)

Answer 126

(1) Contract must be in writing (SOF); (2) Signed by party against who enforcement is sought (defendant); (3) Must also identify parties, describe property, state consideration - price or means of determining the price.

Answer 127

If the contract overstates or understates the amount of land being transferred then Plaintiff can ask for specific performance w/ a pro rata reduction in price. Land is considered unique, so breach of a land contract is specific performance.

Answer 128

Allows buyer to enforce oral contract by specific performance if: (1) Contract is certain and clear; and (2) Acts prove existence of contract. Acts usually satisfied by 2/3 or following: (1) Buyer took possession; (2) Buyer paid purchase price or significant portion; (3) Buyer made substantial improvements.

Answer 129

(1) Legal title - Deed (Right to possess) (2) Equitable title - Contract (Risk of loss) * Buyer bears risk unless contract says otherwise.

Answer 130

If between contract and closing, Blackacre is destroyed through no fault of either party, who bears the risk? * Buyer, equitable title from the moment the contract is signed, unless the contract says otherwise. Modern law - Reallocation of risk of loss is on the seller. But go with the risk of loss rule unless stated reallocation.

Answer 131

The interests of the decedent pass to their estate. So because the buyer is deemed to own the property from the moment the contract is signed, a decedent buyer's interest passes as real property to their estate. A decedent seller's interest, the right to purchase price, passes to their estate as personal property. The contract remains enforceable, w/ the deceased party's estate taking the decedent's place in the transaction.

Answer 132

In every land contract, it contains an implied covenant that: (1) Seller will provide marketable title; and (2) Seller will not make false statements of material fact.

Answer 133

Marketable title meaning reasonably free from doubt/threat of litigation on closing. Unmarketable title includes: (1) Defects in record chain of title; (2) Encumbrances; (3) Zoning Violation

Answer 134

Most often, adverse possession. If even a portion of the title rests on adverse possession, it is unmarketable. Unless a suit has been brought to quiet title, title acquired by adverse possession does not appear in the record, thus unmarketable.

Answer 135

Generally mortgages, liens, restrictive covenants, easements, options to purchase, and significant encroachments render title unmarketable UNLESS the buyer has **waived** them.

Answer 136

Presence of a zoning restrictions (scheme) do not affect marketability, but an existing violation of a zoning ordinance does render title unmarketable. Unmarketable if the state of the title can potentially subject the buyer to a future lawsuit.

Answer 137

Folder of a future interest is unborn or unascertained, it is impossible to convey marketable title. Courts will not appoint a guardian ad litem to represent the unborn or unascertained parties for the purposes of conveying land.

Answer 138

On the day of closing. The seller has up until closing date to clear up whatever defect is making the title unmarketable. NOTE: In an installment land contract, the seller need not provide marketable title until the buyer has made his last payment.

Answer 139

The deed changes hands, the seller is no longer liable on this implied contractual covenant. The seller is then liable only for express promises made in the deed.

Answer 140

Buyer must notify the seller that title is unmarketable and give the seller reasonable time to cure the defects. If the seller fails to cure the defects, the buyer's remedies include: (1) Rescission; (2) Damages; (3) Specific performance w/ abatement; (4) Quiet title suit. But, if closing occurs, the contract and deed merge, and the seller's liability on the implied contractual covenant ends.

Answer 141

Implied that seller will not make any false statements of material fact. The seller will also be liable to the purchaser after the closing for failure to disclose latent material defects. To be liable for failure to disclose seller must have: (1) Known or had reason to know the defect; (2) Unlikely to discover the defect; and (3) Defect must be serious enough that the buyer would probably reconsider purchase. Courts consider whether the defect is dangerous, seller created the defect or made a failed attempt to repair it, if it is a personal residence.

Answer 142

General disclaimers are not upheld (i.e. property sold as is". But, if the disclaimer identifies specific types of defects (i.e. seller is not liable for any defects in the rood) it will likely be upheld.

Answer 143

The land contract contains no implied warranties of fitness or habitability. **Caveat** **emptor**: Buyer beware. During the gap in time of signing and closing, buyer must be duly diligent to check.

Answer 144

Most courts recognize a warranty of fitness or quality in the sale of new home by the builder. A person may sue a builder for negligence in performing a building contract.

Answer 145

Courts presume time is not of the essence in a real estate contracts. Generally, the closing date isn't absolutely binding, and a party late in tendering their own performance can still enforce the contract if they tender within a reasonable time (i.e. two months) after the closing date.

Answer 146

Time is of the essence in a real estate contracts if: (1) Contract so states, (2) Circumstances indicate that was the parties intent; or (3) One party gives the other notice that time is of the essence.

Answer 147

If a party fails to tender performance on the closing date is in breach and may not enforce the contract. Even if time is not of the essence, a party who is late in tendering performance is liable for incidental losses.

Answer 148

Buyer's obligation to pay and the seller's obligation to convey are concurrent conditions; so, neither party is in breach until the other tenders performance (even if the closing date passes). If neither party tenders performance, the closing date is extended until one of them does so.

Answer 149

A party is excused from performing if the other party has repudiated the contract or it is impossible for the other party to perform, such as when when unmarketable title can't be cured.

Answer 150

Nonbreaching party is entitled to damages because land is unique, specific performance. If the buyer wishes to proceed despite unmarketable title, they can usually get specific performance with an abatement of the purchase price.

Answer 151

Sales contracts usually require the buyer to deposit earnest money w/ the seller and provide that if the buyer defaults in performance, the seller may retain this money as liquidated damages.

Answer 152

Real estate brokers are the seller's agency but should disclose material information about the property if they have actual knowledge of it.

Answer 153

Under an exclusive listing agreement w/ a real estate broker, the broker's best efforts to sell the property is consideration for the broker's commission.

Answer 154

Title insurance policy insures that a good record title of the property exists as of the policy's date and promises to defend the record title if litigated. - An owner's policy protects only the person who owns the policy and does not run with the land to subsequent purchasers. - A lender's policy follows any assignment of the mortgage loan.

Answer 155

If the buyer permits the closing to occur, the contact is said to merge w/ the deed and in absence of fraud, the seller is no longer liable on the promises in the contract, only those in the deed. Controlling document is the deed. The deed transfers legal title from grantor to grantee.

Answer 156

Lawfully execution requires: (1) Writing signed by Grantor; (2) Unambiguous description; (3) Identification of parties (4) Words of intent, such as "grant" Description in the deed does not need to be perfect, so long as it is unambiguous. Consideration is not required in the deed!

Answer 157

If the description of the land is insufficient to provide a good LEAD, title isn't transferred. The Grantor retains title. If a description is ambiguous, rather than vague or inadequate, outside (parol) evidence is permitted to clear up the ambiguity.

Answer 158

A deed isn't effective to transfer an interest in realty unless it has been delivered. Delivery turn on the Grantor's intent and title pass immediately, even if possession is postponed. Acceptance is presumed. Delivery could be satisfied when the Grantor physically or manually transfers the deed to the Grantee - mail; agent; messenger. Delivery can also be satisfied through legal standard. Test solely of present intent. (manifesting present intent to be bound)

Answer 159

Rejection defeats delivery. Acceptance is presumed, but if a Grantee expressly rejects the deed, the deed is ineffective to pass title.

Answer 160

If the Grantor retains possession of the deed, it's presumed that it hasn't been delivered. If the Grantee has possession of the deed, it's presumed that it has been delivered. Additionally, delivery is presumed if the deed is: (1) Handed to the Grantee; (2) Acknowledged by the Grantor in front of a notary; or (3) Recorded.

Answer 161

All types of evidence, including the Grantor's conduct or statements before or after the alleged deliver, are admissible to prove the Grantor's intent to pass title. Outside evidence is not permitted to show that an unconditional deed given directly to a Grantee was subject to a condition.

Answer 162

If a deed, absolute on its face, is transferred to the Grantee w/ an oral condition then the oral condition is void and delivery is done. Oral conditions are too susceptible to fraud.

Answer 163

A deed containing a written condition is generally valid when delivered. If the condition is the Grantor's death, the deed creates a future interest (executory interest) in the Grantee.

Answer 164

A delivery to a 3d party w/ instructions to deliver the deed to the intended Grantee is considered valid delivery. Whether a delivery to a 3d party without instructions is a valid delivery often hinges on whether that 3d party is an agent of the Grantor or the Grantee.

Answer 165

Grantor may deliver an executed deed to an escrow agent, with instructions that the deed be delivered to the Grantee once certain conditions are met. If the escrow agent is given written instructions, the Grantor is bound by the delivery to the agent. But if the Grantor gives the escrow agent oral instructions, the Grantor may change the instructions and recall the deed while it's still in the agent's hands, unless there is a written contract of sale.

Answer 166

Condition of the Grantor's death conveys a future interest - delivery. Condition of conveyance "only if the Grantee survives the Grantor" indicates the Grantor does not intend to part w/ anything until death - so no delivery.

Answer 167

The three types of deeds used to convey property interests other than leaseholds includes: (1) Quitclaim deed; (2) General warranty deed; (3) Special warranty deed.

Answer 168

Quitclaim deed conveys only what the Grantor has at the time of the conveyance. Worst deed!!

Answer 169

General warranty deed warrants against ALL defects in title, including those attributable to Grantor's predecessors. It typically contains all (6) of the following covenants - (3) present covenants and (3) future covenants. Best deed!!!

Answer 170

The first (3) present covenants, meaning that the covenant is breached, if ever, at the time the deed is delivered - (1) Covenant of seisin - Grantor owns the estate. S/he is vested with seisin which she is entitled to transfer; (2) Covenant of the right to convey - Grantor has the power to transfer; (3) Covenant against encumbrances - There are no servitudes/liens.

Answer 171

Next (3) future covenants, meaning that the covenant is NOT breached, if ever, until the Grantee is **disturbed** **in** **possession**. (4) Quiet enjoyment - Grantee promises that Grantee will not be disturbed in possession by a 3d party lawful claims; (5) Warranty - (additional assurance) Grantor promises to defend against reasonable claims of title by 3d party and to compensate the Grantee for any loss sustained by the claim of superior title; (6) Further assurances - Grantor promises to do whatever is needed to perfect Grantee's title if it later turns out to be imperfect.

Answer 172

Special warranty deed contains the same covenants as the general warranty deed BUT here the Grantor makes those promises ONLY on behalf of himself. Grantor makes no representations on behalf of his predecessors in interest.

Answer 173

Many states contain statutes that provide for what type of deed is conveyed by the use of the word "grant" in a conveyance without a designation of the type of deed. Often these statutes provide for a deed that creates by implication two limited assurances against acts of the Grantor (not her predecessors): (1) That the Grantor has not conveyed the same estate or any interest therein to anyone other than the Grantee; and (2) Estate is free from encumbrances made by the Grantor.

Answer 174

Present covenants cannot be enforced by remote Grantees, but future covenants run with the Grantee's estate. If there are successive conveyances by general warranty deed and the last Grantee is evicted by lawful claim of title, he may sue ANYONE up the line.

Answer 175

A void deed will be set aside by the Court even if the property has passed to a bona life purchaser, but a voidable deed will be set aside only if the property has not passed to a bona fide purchaser. Void deeds include those that are: (1) Forger; (2) Never delivered; (3) Issued to a nonexistent Grantee; or (4) Obtained by fraud in the fact (Grantor was deceived and did not realize that s/he was executing a deed) Voidable deeds: (1) Executed by minors or incapacitated person; (2) Obtained through fraud in the inducement, duress, undue influence, mistake, and breach of fiduciary duty.

Answer 176

Even when a deed complies w/ the required formalities, it may be set aside by the Grantor's creditors if it was made: (1) Actual intent to hinder, delay, or defraud any creditor of the Grantor; or (2) Without receiving a reasonably equivalent value in exchange for the transfer. However, deed will NOT be set aside as against any Grantee who took in good faith and paid reasonably equivalent value.

Answer 177

Most real estate closings require more than the exchange of a deed. Must have: (1) Closing disclosure; (2) Notification of defects; (3) Environmental Report; (4) Conveyance by gift and will; - Ademption; - Land under executory contract; - Other Proceeds not subject to ademption.

Answer 178

Residential mortgage lenders must provide a closing disclosure to mortgagors at least 3 business days prior to closing. Disclosure must provide: (1) Principal interest and payment amounts (tax and insurance); (2) Closing costs; (3) Potential surprise to mortgagor's (future changes in interest rates/balloon payment); (4) Cash required to close. If the mortgagee fails to provide the disclosure, the mortgagor may be able to cancel the mortgage or recover damages.

Answer 179

A seller of a residential property must provide a form to the buyer at closing, notifying the buyer of any physical defects of which the seller is aware. A seller who fails to disclose a known defect that must be disclosed in this form will be liable for the defect after closing.

Answer 180

Owner of real property must generally pay to cure any environmental damage (i.e. soil contamination by leaked gasoline) to the property, even if the damage occurred before the owner owned the property. Buyers of commercial real estate often ask sellers to guarantee that the property complies w/ environmental laws. Sellers want to avoid making these guarantees and the parties must ultimately negotiate an environmental report: (1) Signed by BOTH parties at closing; and (2) Identifies which environmental guarantees the seller makes.

Answer 181

In addition to sales, real estate may be conveyed by gift or will. A deed may validly convey real property by inter vivos gift so long as there is: (1) Donative intent; (2) Delivery; and (3) Acceptance. In the case of real estate passing by will, must consider: (1) Ademption; (2) Land under executory contract; (3) Other proceeds not subject to ademption.

Answer 182

If property is specifically devised or bequeathed in the testator's will, but the testator no longer owns it at the time of death, the gift fails. Ademption applies only to specific bequests, which can be satisfied only by the delivery of a particular item, NOT by money. A gift of land is always a specific devise. If the testator specifically devises property and then sells or gives away a part of that property, only that portion is adeemed; the rained passes to the devisee.

Answer 183

By statute, the ademption doctrine does not apply to the proceeds of a contract for sale of land that was executory at the time of the testator's death. These statutes take precedence over the equitable conversion doctrine. Ademption also does NOT apply when the contract is entered into by the representative of an incompetent testator.

Answer 184

When property is damaged or destroyed before the testator's death but the casualty insurance provides are not paid until after the testator's death, ademption does not usually apply. The beneficiary of the specific bequest takes the insurance proceeds. Similarly, ademption usually does not apply to property condemned by the gov't where the taking was before death but the condemnation award was paid after death.

Answer 185

At Common Law and in some states, the devisee of specific property is entitled to have the land exonerated by the payment of liens and mortgages from the testator's residuary estate. Majority of states have statutorily abolished the exoneration doctrine, requiring the will to expressly provide for payoff.

Answer 186

A lapse occurs when the beneficiary of a gift in a will dies before the testator. Under the Common Law, if a lapse occurred, the gift was void. However, nearly all states now have statutes that prevent lapse by permitting the gift to pass to the predeceasing beneficiary's living descendants under certain circumstances. *Anti-lapse statutes apply only when the named beneficiary is a descendant of the testator.

Answer 187

Anti-lapse status does not save the gift for the predesign beneficiary's estate; rather, it substitutes the beneficiary's descendants for the beneficiary. Property will never pass under the anti-lapse statute to a predesign beneficiary's spouse.

Answer 188

If a class member within the coverage of an anti-lapse statute predeceases the testator leaving surviving issue, the statute will apply and the issue will take the deceased class member's share of the gift.

Answer 189

If there is a contrary will provision (i.e. gift is contingent on the beneficiary's surviving the tester) the anti-lapse statute does NOT apply.

Answer 190

If the estate assets are not sufficient to pay all claims against the estate and satisfy all devises and bequests, the gifts are abated (reused). Absent a contrary will provision, estate in most states abate in the following order: (1) Property passing by intestacy; (2) Residuary estate; (3) General legacies; and (4) Specific devises and bequests.

Answer 191

To the extent that a will disposes of real property, its validity and effect are determined by the law of the state where the property is located. With respect to dispositions of personal property, the law of the testator's domicile at the time of their death controls the validity and effect of the will.

Answer 192

1) Race Jx - B wins, if he records properly before A does. 2) Notice Jx - B wins if he was a BFP when he took, regardless whether he records before A does. In a notice state, the last BFP to take wins. 3) Race-Notice Jx - B wins if B is a BFP AND he records properly before A does.

Answer 193

To be a BFP, a grantee must: (1) Be a purchaser (or a mortgage lender), not one who received the property by gift, will, or inheritance (2) Pay valuable consideration (3) Take WITHOUT notice (Actual, Constructive, or Inquiry) of the prior conveyance

Answer 194

Only purchasers. Donees, heirs, devisees are NOT protected because they do not give value

Answer 195

Yes; as long as substantial pecuniary consideration was remitted.

Answer 196

B loses UNLESS shelter rule applies.

Answer 197

1) Actual 2) Inquiry 3) Record Inquiry and record are types of constructive notice.

Answer 198

Prior to B's closing, B learns of A

Answer 199

* Whether he examines Blackacre prior to closing or not, B is on inquiry notice of whatever an examination of Blackacre would have revealed. * Buyer of real estate has a DUTY to inspect the premises before transfer of title, to see, for example, whether anyone else is in possession * If another is in possession, B is charged with inquiry notice of that fact, regardless of whether B actually bothered to inspect or not * Inquiry notice means that if a recorded instrument makes reference to an unrecorded transaction, grantee is on inquiry notice of whatever a reasonable follow-up would have revealed

Answer 200

B is on record notice A's deed if, at the time B takes, A's deed was properly recorded within the CHAIN of TITLE. Although no one has a legal duty to perform a title search, a subsequent purchaser would be charged with the notice that such a search would provide, whether or not she actually searches

Answer 201

Notice of a prior conveyance by the grantor does not matter. The first party to record wins. "A conveyance of an estate in land shall not be valid against a subsequent for value unless the conveyance is first recorded"

Answer 202

A subsequent purchaser who had no notice of a prior conveyance by the grantor will prevail over a prior grantee who failed to record. Subsequent purchaser prevails even if they don't record -- as long as they don't have notice of prior conveyance, they win Last BFP to enter fact pattern wins! "A conveyance of an interest in land, other than a lease for less than one year, shall n to be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded"

Answer 203

Subsequent purchaser must not have any notice of the prior grant AND must record first "Any conveyance of an interest in land, other than a lease for less than none year, shall not be valid against any subsequent purchaser of value, without notice thereof, whose conveyance is first recorded"

Answer 204

conveyance ; not

Answer 205

1. Race 2. Notice 3. Race-notice

Answer 206

Chain of title

Answer 207

Sequence of recorded documents capable of giving record notice to subsequent takers

Answer 208

Title search of the grantor-grantee index

Answer 209

1) Shelter Rule 👠 2) Wild Deed 🤠 3) Estopped by Deed ✋

Answer 210

Anyone who takes from BFP will prevail against any interest in the BFP would have prevailed against. I.e., transferee "takes shelter" in the statutes of transferor; thus, steps into shoes of BFP even though she otherwise fails to meet the requirements of BFP status. True even if grantee had actual notice of prior unrecorded conveyance

Answer 211

A recorded deed that is not connected to chain of title. It doesn't impart constructive notice b/c a subsequent purchaser could not feasibly find it Rule --> If a deed, entered on the records, has a grantor unconnected to the chain of title, the deed is wild and incapable of giving record notice of its existence Recording a wild deed = nullity

Answer 212

One who conveys realty in which he has NO interest, is estopped from denying the validity of that conveyance if he subsequently acquires the title that he had previously purported to transfer. - Grantor purports to convey to grantee realty they don't then own - Grantor later acquires title to the property - Title automatically vests in grantee - Grantor is estopped from denying validity of reacquisition conveyance - But watch out for BFP. Early recording is outside chain of title

Answer 213

Deed records after grantor parts w/ title through a subsequent deed is not constructive notice in most states, but is in some race-notice jdx

Answer 214

reference to another instrument in a recorded document that is in chain of site may impart constructive notice of instrument referred to -- even if it is unrecorded or not itself in the chain of title

Answer 215

courts are split on whether deeds to adjacent lots or lots in a subdivision, executed by the same grantor and containing restrictions and easements involving the subject lot, are within chain of title of subject lot. The better view is they are not

Answer 216

P who obtains money judgment can place judgment on D's real property by filing judgment I n appropriate county office Whether judgment creditors are protected by the recording statute against a prior unrecorded conveyance by D depends on the state statute but most states do not grant them protection Unlike mortgage lenders, who are the same as any other BFP, judgment creditors and liners are not usually protected by recording acts Because they are not covered by the recording act, their notice or lack of notice of prior claims is irrelevant

Answer 217

Real estate is so expensive most people go to a bank or a lending institution for a loan. To secure the debt, the borrower gives the lender a mortgage on the property. Mortgage is an agreement that says that if the mortgagor quits paying, the land can be sold to pay the mortgagee.

Answer 218

Debtor (person owing the lender)

Answer 219

Creditor (lender)

Answer 220

Mortgage transaction involves (2) documents: (1) Promissory Note; and (2) Mortgage Promissory note is the mortgagor's personal obligation. Mortgagee is not limited to the land when seeking a remedy for default. If the mortgagor quits paying, in addition to foreclosure, the mortgagee has the option to sue the mortgagor personally for payment of the note.

Answer 221

Lender's security interest in real estate that their loan enables debtor to acquire. If the debtor cannot pay back the debt, the creditor is within its right to foreclose upon the land to made whole.

Answer 222

(1) Debt (note) + lien in land to secure debt (mortgage); and (2) In writing (legal mortgage) - this is referenced as: mortgage deed, deed of trust, sale lease back, security interest in land on the exam!

Answer 223

Mortgagee can transfer their interest by: (1) endorsing the note; or (2) choose to execute a separate document of the assignment.

Answer 224

Typically mortgagor will transfer the interest. (1) Recording statutes protect mortgagees (creditors); (2) If recorded properly, mortgages sticks w/ the land. When a mortgagor transfers the property, the buyer either assumes the mortgage or takes the property subject to the mortgage. - If grantee assumes the mortgage, they're agreeing to be personally liable on the mortgage note. - If they take the property subject to the mortgage, they are not agreeing to personal liability: the mortgagee's only recourse is foreclosure (they cannot maintain a suit against the grantee)

Answer 225

If mortgagor transfers title to the property: If the grantee signs an assumption agreement, they become primarily liable to the lender, while the original mortgagor is secondarily liable as a surety. However, the mortgagee may opt to sue either the grantee or original mortgagor on the debt. If no assumption agreement is signed, the grantee is not personally liable on the loan, only the original mortgagor remains primarily and personally liable.

Answer 226

Discharges the original mortgage of ALL liability.

Answer 227

Due-on-Sale Clause appears in most modern mortgages, allow the lender to demand full payment of the loan if the mortgagor transfers any interest in the property without the lender's consent.

Answer 228

If O (mortgagor) sells Blackacre to B: B "assumes mortgage" then BOTH O and B are liable. B is primarily liable and O remains secondarily liable.

Answer 229

If O (mortgagor) sells Blackacre to B: B takes "subject to mortgage" then ONLY O, but if properly recorded, Blackacre can be foreclosed. If properly recorded, the mortgage REMAINS ON THE LAND. If O cannot repay the loan, the mortgage can be FORECLOSED.

Answer 230

Mortgagee must foreclose by proper judicial proceeding. At foreclosure, the land is sold. he sale proceeds go to satisfying the debt.

Answer 231

Mortgagor may tender the mortgagee a deed in lieu of foreclosure, which permits the mortgagee to take immediate possession without a foreclosure sale.

Answer 232

Creditor can proceed against the debtor under a deficiency action hoping for a deficiency judgment. If there is more than the amount owed - Junior liens are paid off in order of their priority. Any remaining surplus goes to the debtor.

Answer 233

Following foreclosure, the sale proceeds are paid in order of priority: - Attorneys' fees and expenses of the foreclosure and then any accrued interest on the first priority mortgage. Then pay off the mortgages in order of their priority. Each claimant is entitled to satisfaction in FULL before any junior creditor may take.

Answer 234

Junior interests terminated (paid in descending order from sale proceeds) Necessary parties - All junior lienholders + debtor. Senior interests are unaffected (buyer takes subject to them)

Answer 235

Creditor can proceed against the debtor under a deficiency action hoping for a deficiency judgment. BUT: Once foreclosure of a superior claim has occurred with the proceeds distributed appropriately, junior creditors cannot look to Blackacre for satisfaction.

Answer 236

Junior lienholders and Debtor (mortgagor) Failure to include a necessary party results in a preservation of the given party's claim. Their mortgage remains on the land despite the foreclosure and the sale.

Answer 237

Foreclosure does NOT affect any interest senior to the mortgage being foreclosed. The buyer at the sale takes subject to such interest. Buyer (Grantee) is NOT personally liable on the senior debt but the senior creditor will foreclose against the land.

Answer 238

Will the foreclosure brought by junior lien holder affect the senior lien holder? NO. Junior lien holder's interest does NOT affect senior lien holder.

Answer 239

Creditor who records first takes first - first in time, first in right. Purchase money mortgage - First priority in parcel financed. Enables debtor to acquire the encumbered parcel.

Answer 240

By private agreement, a senior creditor may agree to subordinate its priority to a junior creditor. Subordination agreements are permissible.

Answer 241

At any time prior to the foreclosure sale the debtor has the right to redeem the land by freeing it of the mortgage. BUT: Once a valid foreclosure has taken place the right to equitable redemption is cut off.

Answer 242

Permits the mortgagee to declare the full balance due in the event of default.

Answer 243

If the note does NOT contain an acceleration clause, and debtor defaulted, debtor can exercise her rights to equitably redeem Blackacre by: - Paying off the missed payments, plus accrued interest and costs

Answer 244

Debtor must pay off the ENTIRE balance owed, plus accrued interests, plus costs. To redeem on an acceleration costs debtor must pay off the FULL balance.

Answer 245

As a matter of public policy, Debtor cannot waive right to redeem in mortgage itself.

Answer 246

(1) Deed of Trust; (2) Absolute Deed; (3) Installment Land Contract; (4) Equitable Vendor's Lien; (5) Sale-leaseback

Answer 247

Debtor/notemaker is the trustor. The trustor gives a deed of trust to a 3d party trustee, who is usually closely connected to the lender (the beneficiary). On default, the lender instructs the trustee to foreclose the deed of trust by sale.

Answer 248

Treated by the court as an equitable mortgage to be treated as any other mortgage - creditor must foreclose by judicial action.

Answer 249

Installment purchaser obtains legal title only when the full contract price has been paid off.

Answer 250

Lien does not result from an agreement but rather arises by implication of law when a seller transfers title to the buyer, and the purchase price or a portion thereof remains unpaid.

Answer 251

Landowner may sell her property for cash and then lease it back from the purchaser for al long period of time. Like an absolute deed, this may be treated as a disguised mortgage.

Answer 252

Right of a mortgagor to recover the land AFTER the foreclosure sale has occurred - usually by paying the foreclosure sale price.

Answer 253

(1) Expenses of the sale, including attorneys' fees, and court costs; (2) The principal and accrued interest on the foreclosing party's loan; (3) Any junior lienors in the order of their priority; and then (4) The mortgagor.

Answer 254

Pursuant to its police powers, gov't may enact statutes to reasonably control land use for the protection of the health, safety, morals, and welfare of its citizens. Zoning power is based on the state's police power and is limited by the Due Process and Equal Protection Clauses of the 14A, and no taking without just compensation under the 5A.

Answer 255

- Permission to DEPART from the literal restriction. - Must show undue hardship AND no diminution to neighboring property values. The variance is granted OR denied by administrative action, typically in the form of a zoning board. Usually, a variance will not be granted if the hardship has been created by the applicant themselves.

Answer 256

Generally invalid if they have no reasonable relation to public welfare, are too restrictive, are discriminatory as to a particular parcel, are beyond the grant of authority, violate due process, or are racially discriminatory.

Answer 257

Previously allowed use cannot be eliminated all at once UNLESS just compensation paid.

Answer 258

A nonconforming use cannot be extended or intensified in ways that constitute a substantial change, but insubstantial changes are permitted. Owners can make reasonable changes to repair their premises and make them practicable for their purposes.

Answer 259

Land ranked and categorized to create hierarchy of uses (single family home is highest use)

Answer 260

Creates a hierarchy of uses of land, where a single-family home the highest use, followed by a two family home, and then an apartment building, and then a strip mall, and then a factory. Under a cumulative zoning ordinance, land that is zoned for a particular use may be used for the stated purpose.

Answer 261

But not the other way around!

Answer 262

Under a noncumulative zoning ordinance, land may be used ONLY for the purpose for which it is zoned.

Answer 263

Also known as the special exception: Refers to a list of uses deemed appropriate and allowable pursuant to the zoning scheme. Already permitted in but a special use permit must be obtained even though zoning proper for intended use. Example: Hospitals, drive-ins, funeral homes. Peculiar safety concerns, in order to be allowed in they must check off certain criteria i.e. safety standards.

Answer 264

Condominium, each owner owns the interior of their individual unit plus an undivided interest in the exterior and common elements. Fee simple ownership, the ordinary rules against restraints on alienation apply (tenant in common with all the other dwellers). Common walkways; Subdivision's pool; Community room; Game room.

Answer 265

- Each condo owner is a member; - Oversee common elements; - Board enforces Covenants, Conditions, Restrictions (CC&R); - Special assessment = one-time fee if dues don't cover an expense

Answer 266

Each condo unit owner must pay regular dues to the HOA which are used by association to maintain the common elements.

Answer 267

Title to the land and buildings is held by a corporation that leases individual apartments to its shareholders.

Answer 268

Natural rights of an owner of real property has the exclusive right to use and possess the: (1) Surface; (2) Air space; and (3) Soil of the property.

Answer 269

Ownership of land includes the right to have the land supported in its natural state by adjoining land. If landowner causes adjacent land to subside: (1) Land in natural state: Strict Liability; (2) Land improved: Liability if negligent.

Answer 270

A landowner is strictly liable if their excavation causes adjacent land to subside (slip or cave in)

Answer 271

If land is improved by buildings and an adjacent landowner's excavation causes that improved land to cave in, the excavator will be liable only if negligent. However, strict liability will apply to the defendant if Plaintiff can show that because of the defendant's actions, the plaintiff's improved land would have collapsed even in its natural state.

Answer 272

An underground occupant of land must support the surface and buildings existing on the date the subjacent estate was created. Liability for subsequently erected buildings requires negligence.

Answer 273

Different rules apply to: (1) Watercourses; (2) Groundwater; and (3) Surface waters.

Answer 274

Includes streams, rivers, and lakes. There are (2) major systems for determining allocation of water in watercourses: The riparian doctrine and the prior appropriation doctrine.

Answer 275

The water belongs to those who own the land bordering the watercourse. Riparian rights attach to all contiguous tracts held by the same owner as long as one of the tracts abuts the water. Riparian owners can use water only in connection with riparian parcel. (1) Natural Flow Theory -Riparian owner's use is enjoyable if it results in substantial or material diminution of the water's quantity, quality, or velocity. (2) **Reasonable Use Theory** - Riparians share the right of reasonable use of the water. (3) Natural v. Artificial Use - natural uses (consumption/gardening) prevail over artificial uses (irrigation/manufacturing).

Answer 276

Water belongs to State. Right to divert/use can be acquired through actual use. First in time, first in right. Any benefit use of water including use for agriculture is sufficient.

Answer 277

Water beneath the surface of the earth that isn't confined to a known channel. Four doctrines determines the rights in groundwater: (1) Absolute Ownership Doctrine; (2) Reasonable Use Doctrine; (3) Correlative Rights Doctrine; (4) Appropriative Rights Doctrine; (5) Restatement Approach.

Answer 278

The surface owner can take all the water they wish, for any purpose, including export.

Answer 279

Exporting is only allowed if it does not harm other owners who have rights in the same aquifer. Must be reasonable.

Answer 280

Owners of overlaying land own the underground water basin as joint tenants, and each is allowed a reasonable amount for his own use.

Answer 281

Priority of use (not ownership of overlaying land) is determinative. Whoever takes first.

Answer 282

Surface owner may pump groundwater UNLESS: (1) Unreasonably harms neighboring landowners; (2) Exceeds the pumper's reasonable share; or (3) Directly and substantially affects surface waters and unreasonably harms surface water users.

Answer 283

Water that are passing across your land (i.e. consequence of heavy rain, melting snow) has not reached its natural basin, resting place. But because it is stagnating on a landlord's property, L can apply theory the state follows: (1) Natural Flow Theory; (2) Common Enemy Theory; (3) Reasonable Use Theory.

Answer 284

Owners CANNOT alter natural drainage patterns. This rule has been softened in most states to allow "reasonable changes".

Answer 285

Owner can take any protective measures to get rid of surface water/combat its flow. Build a dam/build a levy. **BUT**, the owner must not reasonably harm or interfere others use and enjoyment of their own parcels.

Answer 286

Balancing the utility of the use against the gravity of the harm

Answer 287

Right to airspace above a parcel is not exclusive, but the owner is entitled to freedom from excessive noise.

Answer 288

Possessor of real property has the right to exclude others. Their remedies include: (1) Trespass (land invaded by tangible physical object); (2) Private nuisance (land invaded by intangibles - i.e. odors or noise); (3) Continuing trespass (land repeatedly invaded by trespasser); and (4) Ejectment or Unlawful Detainer (Remove a trespasser or tenant. This action can be joined w/ a demand for money damages)

Answer 289

A present possessory estate is an interest that gives the holder the right to present possession. Three categories of present possessory freehold estates: (1) Fee Simple Absolute (2) Defeasible fees * Fee Simple Determinable * Fee Simple Subject to Condition Subsequent * Fee Simple Subject to Executory Interest (3) Life Estate

Answer 290

Devisable = Capable of passing by will Descendible = Capable of passing by intestacy Alienable = capable of transfer inter vivos

Answer 291

* "To A" or "To A and his heirs" * Potentially limitless duration * Devisable, descendible, alienable

Answer 292

Nothing. Only A has absolute ownership. A living person has no heirs.

Answer 293

Fee simples with a condition attached (defeasance = forfeiture)

Answer 294

* Terminates automatically upon on happening of stated event and automatically reverts to the grantor. * Created by clear durational language - so long as - while - during - until * Devisable, descendible, alienable [ALWAYS SUBJECT TO CONDITION] * If the condition is violated, forfeiture is automatic

Answer 295

* Use of conditional language + explicit right to re-enter (= power of termination) * No automatic termination (grantor's prerogative) * Beware --> conveyance that contains both durational language AND a power of termination = fee simple subject to condition subsequent because the forfeiture is OPTIONAL at grantor's election rather than automatic. * Between FSD and FSSCS = courts interpret as FSSCS

Answer 296

* To A, but if X event occurs, then to B * Third party, not grantor, takes if condition betrayed * Forfeiture automatic in favor of someone other than grantor * Shifting executory interest accompanies fee simple subject to executory interest

Answer 297

(1) Words of mere desire, hope, intention don't create defeasible fee --> clear, durational language required! (2) Absolute restraints on alienation void

Answer 298

If purpose of conditions is to penalize marriage or encourage divorce, likely struck down. If the purpose is to give support until marriage or in the event of divorce, likely upheld

Answer 299

* Measured in lifetime terms, NOT in term of years * To A for life (A = life tenant)

Answer 300

* Measured by life other than the grantee's (To A for the life of B) * Also results when life tenant conveys their life state to another (A, holder of life estate, conveys their interest to B, B has life estate for the life of B) * If future interest is held by O = reversion * If held by third party = remainder

Answer 301

* All ordinary uses and profits from the land * Don't commit waste * Life tenant cannot do anything that injures interest of remainder man or holder of reversion. A future interest holder may sue for damages or to enjoin such acts, and if they spend money to perform the life tenant's obligations, they are entitled to reimbursement

Answer 302

* Actual overt conduct causing drop in value * Natural Resources = A life tenant's depleting a property's natural resources could be voluntary waste * Exploitation of natural resources by a life tenant is limited to situations when: (1) Necessary for repair or maintenance of land (2) Land is suitable only for such use (3) It's expressly or impliedly permitted by the grantor

Answer 303

If mining was done on the land prior to the life estate, the life tenant can continue mining, but they are limited to the mines already open

Answer 304

Failure to take reasonable measures to protect land (neglect)

Answer 305

1) Preserve land and structures in a reasonable state of repair 2) Pay ordinary taxes on land - limited to extent of total income/profits generated from land since the life tenant acquired ownership. But if no income/profit, limited to extent to premises' fair rental value 3) Pay interest on mortgages (not principal) AND 4) Pay special assessments for public improvements of short duration [improvements of long duration are apportioned b/w life tenant and future interest holder] Note --> life tenant is not obligated to insure premises for benefit of remainder men and not responsible for damages caused by third party tortfeasor

Answer 306

* Unilateral change that enhances value * Life tenant cannot engage in acts that will enhance property's value unless all future interest holders are known and consent * Today, a life tenant may alter or demolish existing building if (1) Market value of future interest is NOT diminished AND either: (2) Remandermen do not object OR (3) Substantial and permanent change in the neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness **compare-leasehold tenant where they remain liable for ameliorative waste even if the property has changed and market value of the premises was increased. **compare-worthless property: if land is worthless in its present state, life tenant may seek a partition sale, the proceeds of which are put in trust with income paid to the life tenant

Answer 307

If life tenant who receives the estate by will or intestacy renounces their interest, the future interest following the life estate is generally accelerated so that it becomes immediately possessory

Answer 308

* Possibility of reverter = accompanies fee simple determinable * Right of entry / power of termination = accompanies fee simple subject to condition subsequent * Reversion = accompanies when grantor conveys estate of lesser duration (other than above)

Answer 309

1) Contingent remainder 2) Vested remainder 3) Executory interest

Answer 310

* Possession on natural expiration of preceding estate (e.g., life estate) * "Sociable" --> Remainder always accompany a preceding estate of known, fixed duration (life estate or term of years) * "Patient/Polite" --> Remainder never cuts short or divests the prior taker; waits its turn and won't take until present life estate or term of years comes to its conclusion. Will never follow a fee simple estate * To A for life, then to B. A = life tenant; B = remainderman

Answer 311

(1) Created in unborn or unascertained person OR (2) Taker is subject to a condition PRECEDENT or both. * I.e., a remainder may be contingent as to PERSON🧍or as to EVENT 📆 * Note ---> A condition is precedent if it must be satisfied before the remainder man has a right to possession. Look for the condition to appear BEFORE the language creating the remainder or for it to be woven into the grant to the remainder man. Think of it as a PREREQUISITE to the remainder man's admission; something they must do to succeed in taking possession.

Answer 312

Abolished doctrines no longer apply (likely wrong answer) * Destructibility of contingent remainders = contingent remainder was destroyed if it failed to vest before or upon termination of the preceding freehold estate * Rule in Shelley's Case = if same instrument created a life estate in A and gave reminder only to A's heirs, remainder was no recognized, and A took life estate and the remainder * Doctrine of Worthier Title = remainder in grantor's heirs is invalid and becomes a reversion in grantor

Answer 313

* Created in an existing and ascertained person and not subject to condition precedent (1) Indefeasibly Vested Remainder = certain to acquire an estate n the future, no strings or conditions attached (2) Vested Remainder Subject to Total Divestment (complete defeasance) = Subject to condition subsequent. Here, remainder man exists. His taking is NOT subject to any condition precedent. But his possession could be cut short b/c of a condition subsequent

Answer 314

When conditional language in a transfer follows language that taken alone and set off by commas would create a vested remainder, the condition is a condition subsequent and you have a vested remainder and subject to complete defeasance Condition precedent = appears before language introducing you to remainderman Condition subsequent = appears after language that, alone and set off by commas, creates vested remainder

Answer 315

Created in a class of persons that is certain to become possessory but is subject to diminution (birth of a 👶🏻 who will share in remainder as a class) I.e., a group of persons, at least one of whom is qualified to take possession, but each group member's share could get smaller b/c additional takers, not yet ascertained, may still join class

Answer 316

In the absence of express contrary intent, a class closes (no one born after that time may share in the gift) when some member of the class can call for distribution of their share of the class gift. I.e., class closes when any member o the class can demand possession

Answer 317

Persons in gestation at the time the class closes are included in the class

Answer 318

Survival of class member to the time of closing is usually unnecessary to share in a future gift -- unless survival was made an express condition However, certain terms are construed to create implied survivorship conditions (widow, issue, heirs, etc) Under some anti-lapse statutes, a gift will e saved for the party's descendants even if there is an express survival condition

Answer 319

Future interests in third parties that either (1) divest a transferee's preceding freehold estate (shifting interest) OR (2) follow a gap in possession or cut short a grantor's estate (springing interest)

Answer 320

Always follows a defeasible fee and cuts short someone other than grantor

Answer 321

Cuts short the interest of grantor

Answer 322

Vested remainders are fully transferable, descendible by intestacy, and devisable by will At CL, contingent remainders and executory interests were not transferable inter vivos, but most courts today hold they are freely transferable Contingent remainders and executory interests are descendible and devisable, provided that survival is not a conjoin to the interests's taking Any future interest that is transferable is subject to involuntary transfer (creditor)

Answer 323

Certain kinds of future interests are void if there is any possibility, that the interest might vest more than 21 years after a person alive at the time of the grant has died

Answer 324

* Contingent remainders * Executory interests * Vested remainders subject to open * Options to purchase * Rights of first refusal **Grantor's interests (reversions, possibilities of reverter, rights of entry) are safe from RAP -- don't need to consider them

Answer 325

The time the interest is created and perpetuities period begins to run depending on the instrument and interest created. * Interests granted by will = runs from tenth date of testator's death * For deeds = date of delivery * Irrevocable trust = date it is created * Revocable trust = date it becomes irrevocable

Answer 326

When it becomes (1) Possessory or (2) Indefeasibly vested remainder or a vested remainder subject to total divestment

Answer 327

Unless other measuring lives are specified, one connected with the vesting of interest is sed. You are looking for a person alive at date of conveyance whose life and/or death is relevant to the prescribed condition's occurrence

Answer 328

* Except for vested remainders subject to open, RAP n/a to vested interests * RAP n/a any disposition from charity --> charity * exception for options to purchase held by a concurrent tenant

Answer 329

(1) Determine the future interest - RAP applies only to contingent remainders, executory interests, certain vested remainders subject to open. - RAP n/a any of three future interests capable of creation in grantor [possibility of reverter/right of entry/right of reversion], indefeasibly vested remainders, vested remainders subject to total divestment. (2) What has to happen for future interest holder to take? (3) Find measuring life - look for people alive at date of conveyance whose lives/deaths are relevant to what has to happen for future interest holder to take (4) When will we know if future interest holder can take? - whether we'll know for sure within 21 years of the death💀 of a measuring life if the future interest holders can take. If so, conveyance is good. But if we wont know for sure within 21 yearsof death of a measuringv life whether the future interest holder can take, the future interest is void

Answer 330

* An executory interest that follows a defeasible fee, with no limit on the time within which it must vest violates RAP and executory interest is striken * Ex. "To A and his heirs so long as the land is used for farm purposes and if the land ceases to be so used, to B and his heirs" --> Strike violation = "To A and his heirs so long as the land is used for famr purposes"

Answer 331

* Wait and see = validity of any suspect future interest is determined on the basis of the facts as they exist at the conclusion of our measuring life * Uniform Statutory RAP = provides alternative 90-year vesting period * Cy pres = court can redraft "as near as possible" to grantor's intent

Answer 332

Any restriction on transferability of a legal interest (opposed to equitable) is void

Answer 333

* Disabling restraint: Absolute ban on transfer (=void) * Forfeiture: attempted transfer forfeits interest (=valid if reasonable time/limited) * Promissory: attempted transfer breaches covenant (=valid if reasonable/time limited) * Discriminatory: based on race, religion, ethnicity (=void)

Answer 334

Restrains on vested future interests generally are valid to the extent that restrinats on present interests of the same type are valid

Answer 335

- rx restrictions in commercial transactions, options and rights of first refusal - restrictions on assignment and sublease of leaseholds