Real Property

Question 1

An estate in land can be held ____ by several persons, all of whom have the right to enjoyment and possession of the land.

Answer 1

concurrently

Question 2

There are three forms of concurrent ownership:

Answer 2

1. The Joint Tenancy
2. The Tenancy by the Entirety
3. The Tenancy in Common

Question 3

The Joint Tenancy

Answer 3

Two or more own with the right of survivorship

Question 4

The Tenancy by the Entirety

Answer 4

A protected marital interest between spouses with the right of survivorship (recognized in 21 states)

Question 5

The Tenancy in Common

Answer 5

Two or more own without the right of survivorship

Question 6

A joint tenancy’s distinguishing feature is the ____

Answer 6

right of survivorship.

Question 7

A joint tenant’s interest is alienable ____

Answer 7

inter vivos.

Question 8

A joint tenant’s interest is neither ____

Answer 8

devisable nor descendible

Question 9

Joint tenancy property doesn’t become part of the deceased joint tenant’s ____, and an executor or administrator has ____ in the property.

Answer 9

estate; no interest

Question 10

A joint tenant’s attempt to dispose of the property by will is ____

Answer 10

void.

Question 11

The common law requires four unities to form a joint tenancy:

Answer 11

T-TIP
- T: at the same time;
- T: by the same title (meaning, in the same deed, will, or other document of title);
- I: with identical, equal interests; and
- P: with rights to possess the whole

Question 12

All interests in a joint tenancy must be ___ shares

Answer 12

equal

Question 13

In a tenancy in common, by contrast, equal shares are
___, but are not ____

Answer 13

presumed; required

Question 14

In addition to the four unities at CL, to create a joint tenancy the grantor must clearly express the ____

Answer 14

right of survivorship.

Question 15

A conveyance to two or more persons, without more (language stating right of survivorship), is presumed to be a ____

Answer 15

tenancy in common.

Question 16

The circumstances, a joint tenancy will be severed and a tenancy in common results

Answer 16

SAP
- Severance and Sale
- Severance and Partition

Question 17

A voluntary conveyance by a joint tenant of their interest ____

Answer 17

destroys the joint tenancy.
-> The transferee takes as a tenant in common.

Question 18

May a joint tenant transfer his interest secretly?

Answer 18

Yes! Don’t need consent

Question 19

If we started with more than two joint tenants in the first place,
remember, the joint tenancy ____ as between the other, non-transferring joint tenants.

Answer 19

remains intact

Question 20

Types of partition:

Answer 20

1. By voluntary agreement
2. By judicial action called partition in kind
3. By judicial action called a forced sale

Question 21

Judicial action called partition in kind

Answer 21

An action for a physical division of the property, if in the best interests of all parties

Question 22

An allowable and peaceful way to end the JT relationship.

Answer 22

By voluntary agreement

Question 23

When would a partition in kind work best?

Answer 23

When blackacre is “sprawling acreage”

Question 24

By judicial action called a forced sale

Answer 24

An action when, in the best interests of all parties, the land is sold and the sale proceeds
are divided up proportionately.

Question 25

When would a forced sale work
best?

Answer 25

Single building!

Question 26

In most states, a mortgage is a ____ and does not sever a joint tenancy.

Answer 26

lien on title

Question 27

In a lien theory state severance occurs only if the mortgage is ____.

Answer 27

foreclosed and the property is sold

Question 28

The execution of a mortgage in title theory states, however, does ____

Answer 28

sever a joint tenancy

Question 29

Under the Uniform Probate Code and modern statutes, when a beneficiary unlawfully and intentionally kills a joint tenant, any joint property is transformed into ____

Answer 29

a tenancy in common.

Question 30

A tenancy by the entirety is a ____ akin to a joint tenancy.

Answer 30

marital estate

Question 31

is a ____ can be created only between ____, who take as a fictitious “one person” with the right of survivorship.

Answer 31

married partners

Question 32

In states that recognize the tenancy by the entirety, it arises _____ unless the language of the grant clearly indicates otherwise.

Answer 32

presumptively in any conveyance to married partners

Question 33

The tenancy by the entirety is a ____ form of co-ownership.

Answer 33

very protected

Question 34

Creditors of only one spouse ____ the tenancy by the entirety for satisfaction of the debt.

Answer 34

cannot touch

Question 35

Under the tenancy by the entirety one spouse, acting alone, ____ the right of survivorship by unilaterally conveying to a third party.

Answer 35

cannot defeat

Question 36

An individual spouse ____ tenancy by the entirety property and a deed or mortgage executed by only one spouse is ineffective.

Answer 36

cannot encumber

Question 37

What severs a tenancy by the entirity

Answer 37

Only death, divorce, mutual agreement, or execution by a joint creditor of both the spouses can sever a tenancy by the entirety.

Question 38

On divorce, the tenancy by the entirety becomes a ____

Answer 38

tenancy in common.

Question 39

A tenancy in common is a concurrent estate with no ____

Answer 39

right of survivorship

Question 40

Two key features of the tenancy in common:

Answer 40

• Each co-tenant owns an individual part, and each has a right to possess the whole
• Each interest is devisable, descendible, and alienable.

Question 41

Each co-tenant has the right to possess ____ but has no right to ____ of any part

Answer 41

all portions of the property; exclusive possession

Question 42

If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, they’ve committed ____ (an actionable wrong).

Answer 42

ouster

Question 43

In most states, a co-tenant in exclusive possession has the right to ____ from their use of the property; that is, they don’t need to share profits with other co-tenants absent ____.

Answer 43

retain profits; ouster or an agreement to the contrary

-> i.e., not rental payments due to co-tenant not in possession

Question 44

A co-tenant who leases all or part of the premises to a third party must ____

Answer 44

account to their co-tenants, providing them their fair share of the rental income (by ownership %)

Question 45

Co-tenants in exclusive possession must also share net profits gained from ____

Answer 45

exploitations of the land, such as mining.

Question 46

Unless they’ve ousted the other co-tenant, the co-tenant in exclusive possession for the statutory adverse possession period ____ to the whole to the exclusion of the other co-tenant.

Answer 46

cannot acquire title

Question 47

Responsibility of co-tenants for carrying costs

Answer 47

Each pays his fair share (based on individual share in the whole)

Question 48

Carrying costs of co-tenants include

Answer 48

tax and mortgage interest payments

Question 49

Repairing co-tenant enjoys right to contribution for any ____ made provided that the repairing co-tenant ____
-> Contribute fair share (by ownership %)

Answer 49

reasonable, necessary repairs; notified the others of the need for the repair

Question 50

During the life of the co-tenancy, there is ____ to contribution for “improvements” made by one co-tenant.

Answer 50

no right

Question 51

At partition if one co-tenat unilaterally improved the property the improver gets ____

Answer 51

credit equal to any value increased

-> but inverse is true = debt for any diminution in value

Question 52

A co-tenant must not commit ____. ____, a co-tenant is permitted to bring an action for this against another co-tenant.

Answer 52

waste; During the life of the co-tenancy

Question 53

Types of waste

Answer 53

1. Voluntary waste
2. Permissive waste
3. Ameliorative waste is unilateral change that increases value

Question 54

Voluntary waste is ____

Answer 54

willful destruction

Question 55

Permissive waste is ____

Answer 55

neglect

Question 56

Ameliorative waste is ____

Answer 56

unilateral change that increases value

Question 57

A joint tenant or tenant in common has a right to bring an action for ____

Answer 57

partition.

Question 58

Courts prefer ___ but will permit partition by sale when ____.

Answer 58

partition in kind; a fair and equitable physical division of the property cannot be made

Question 58

In the case of a joint tenancy, a mortgagee or lienor runs the risk that the obligated co-tenant will ____, extinguishing the mortgagee’s or lienor’s interest.

Answer 58

die before foreclosure

Question 58

A joint tenant or tenant in common may encumber ____ (for example, by mortgage or judgment lien), but may not encumber the interests of ____

Answer 58

her interest; other co-tenants.

Question 58

Although generally the right to partition may be exercised at ____, restraints on partition by co tenants are valid, provided they are ____

Answer 58

any time; limited to a reasonable time.

Question 59

A ____ relationship exists among co-tenants; for example, one co-tenant’s acquisition of an outstanding title or lien that may affect
the estate is deemed to be on behalf of other co-tenants

Answer 59

confidential

Question 60

A leasehold is an estate in land, under which the tenant has a ____ interest in the leased premises and the landlord has a ____ interest.

Answer 60

present possessory; future (reversion)

Question 61

Leasehold estates

Answer 61

1. The tenancy for years
2. The periodic tenancy
3. The tenancy at will
4. The tenancy at sufferance

Question 62

The tenancy for years, also known as the estate for years or term of years, is for ____

Answer 62

a fixed, determined period of time (could be, for example, as short as one week or as long as 50 years).

Question 63

Whenever you know the ____ from the start, you have a tenancy for years.

Answer 63

termination date

Question 64

A tenancy for years ____

Answer 64

ends automatically at its termination date.

Question 65

How much notice is needed to terminate a term of years?

Answer 65

None! = set at the outset

Question 66

In most leases, the landlord reserves a right of ____, which allows them to terminate the lease if the tenant _____.

Answer 66

entry; breaches any of the lease’s covenants

Question 67

In many jurisdictions, a landlord may, by statute, terminate the lease upon the tenant’s failure to ____ —even in the absence of a reserved right of entry.

Answer 67

pay the promised rent

Question 68

A tenancy for years may also terminate if the tenant ____ the tenancy and the landlord ___

Answer 68

surrenders; accepts.

Question 69

The same formalities required for creation of the leasehold (see below) are required for ____

Answer 69

surrender (for example, if the unexpired term exceeds one year, surrender must be in writing).

Question 70

A term of years lease greater than ____ in writing to be enforceable.

Answer 70

one year

Question 71

A periodic tenancy is a lease which ____.

Answer 71

continues for successive intervals (for example, month to month) until either the landlord or the tenant gives proper notice of termination

Question 72

One of the hallmarks of the periodic tenancy is that it is ____

Answer 72

continuous until properly terminated.

Question 73

The periodic tenancy can be created ____

Answer 73

expressly or by implication/operation of law

Question 74

The periodic tenancy can also arise by implication, in any one of three ways

Answer 74

1. Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals.
2. An oral term of years in violation of the Statute of Frauds creates an implied periodic tenancy, measured by the way rent is tendered
3. In a residential lease, if a landlord elects to hold over a tenant who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises measured by the way rent is now tendered.

Question 75

How is a periodic tenancy terminated?

Answer 75

Notice, usually written, must be given.

Question 76

How much notice is needed to terminate a periodic tenancy?

Answer 76

At common law, notice must be at least equal to the length of the period itself, unless otherwise agreed.
-> Usually, the notice also must be timed to terminate the lease at the end of a period

• This applies for month to month, week to week, but special rule for year to year

Question 77

To terminate a year to year periodic tenancy at CL you need to give ____ notice, and under the restatement ____ (bar exam follows restatement)

Answer 77

6 months, 1 month

Question 78

By private agreement, the parties may ____ these common-law prescribed notice provisions for terminating a periodic tenancy.

Answer 78

lengthen or shorten

Question 79

The Tenancy at will

Answer 79

This is a tenancy of no fixed period of duration–it’s terminable at the will of either the landlord or the tenant.

Question 80

A tenancy at will must be created by ____.

Answer 80

an express agreement that the lease can be terminated at any time

Question 81

Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat the tenancy as an ____

Answer 81

implied periodic tenancy.

Question 82

If the lease gives only the landlord the right to terminate, ____ of the tenant. However, if only the tenant has a right to terminate, a similar right will ____ of the landlord.

Answer 82

a similar right will be implied in favor; not be implied in favor

Question 83

In theory, a tenancy at will can be terminated by ____. But today, in most states, ____ are required to terminate a tenancy at will. Alternatively, a tenancy at will can be terminated by operation of ____

Answer 83

either party at any time; notice and a reasonable time to quit (meaning, vacate)

law (for example, due to death or commission of waste).

Question 84

A tenancy at sufferance is created when ____

Answer 84

a tenant wrongfully holds over, meaning they remain in possession past the expiration of the
lease.

-> In such cases, we give this wrongdoer a leasehold estate (the tenancy at sufferance) to permit the landlord to recover rent.

Question 85

The tenancy at sufferance lasts only until ____.

Answer 85

the landlord either evicts the tenant or elects to hold the tenant to a new tenancy

Question 85

No notice of termination is required for the ____

Answer 85

tenancy at sufferance

Question 86

Where the LL holds a tenant at sufferance to a new periodic tenancy the length of the new tenancy generally depends on ____

Answer 86

the way the rent was computed under the lease that has ended.

-> If the rent was computed on a monthly basis, the election creates a month-to-month periodic tenancy.
-> If the rent was computed on a quarterly basis though payable monthly, a quarter-to-quarter periodic tenancy is created
-> and if computed on an annual
basis payable monthly, a year-to-year periodic tenancy is created.

Question 87

No matter how the rent is computed, the maximum tenancy that can be created by the election to hold the tenant to another term is a ____ tenancy.

Answer 87

year-to-year

Question 88

For a hold over tenant being held to new lease the various promises made by the landlord and
the tenant in ____ become part of the tenancy for the additional term.

Answer 88

the original lease

Question 89

Holdover commercial tenants may be held to a new year-to-year periodic tenancy if the original lease term was for ____. While, technically, the length of the new tenancy is based on the way rent was computed (and could be quarterly or some other time frame), if the original term was less than one year, the new tenancy is typically a ____ tenancy.

Answer 89

one year or more; month-to-month

Question 90

Holdover residential tenants, however, are generally held to a ____ tenancy, regardless of the original term.

Answer 90

new month-to-month

Question 91

If the landlord notifies the tenant before the lease expires that occupancy after the termination will be at an increased rent, the tenant, by holding over, is held to have ____

Answer 91

acquiesced to the new terms (even if the tenant actually objected to the new terms).

Question 92

Exceptions to the hold-over doctrine:

Answer 92

(1) the tenant remains in possession for
only a few hours after termination or leaves a few articles of personal property
(2) the delay is not the tenant’s fault

-> In such cases, the landlord cannot bind the
tenant to a new tenancy.

Question 93

At common law, covenants (meaning promises) in the lease were ____; that is, if one party breached a covenant (such as the promise to pay rent or to repair the premises), the other party could recover damages for that breach but the landlord-tenant relationship
persisted and the lease endured.

By contrast, today, the landlord can terminate the lease for ____, and the tenant can terminate the lease when the landlord breaches ____

Answer 93

independent

nonpayment of rent; the covenant of quiet enjoyment or the implied warranty of habitability.

Question 94

An option to purchase real property is a separate contract supported by consideration
that is a continuing offer to sell the land at a specified price. As long as the option is contained within the lease itself, the consideration for the lease ____

Answer 94

supports the option.

Question 95

Because it is an interest in land, an option to purchase real property as part of a lease agreement must be evidenced by ____

Answer 95

a signed writing to satisfy the Statute of Frauds.

Question 96

Absent a contrary provision, the option in a lease lasts ____. The method of exercise is determined by the agreement. Generally, the party granting the option may keep the consideration regardless of whether ____; the consideration is for the continuing offer, and not money for the purchase.

Answer 96

as long as the lease; the option is exercised

Question 97

Although the Rule Against Perpetuities applies to options, there is an exception for ____.

Answer 97

options attached to leases
-> so an option to purchase in a lease is enforceable even if it would otherwise violate the Rule.

Question 98

The usual remedy for enforcement of an option to purchase is ____, but damages are also available.

Answer 98

specific performance

Question 99

A tenant has two primary duties:

Answer 99

(1) to repair, and (2) to pay rent

Question 100

A tenant need only ____ the premises.

Answer 100

maintain

Question 101

It’s important to distinguish between a ____ (which a tenant is obliged to make) and a repair occasioned by ____ (which a tenant is not obliged to make).

Answer 101

routine repair; ordinary wear and tear

Question 102

A tenant’s duty to repair is linked to the doctrine of ____

Answer 102

waste.

Question 103

A tenant cannot damage (meaning, commit ____ on) the leased premises.

Answer 103

waste (all three types)

Question 104

If the duty to maintain the premises is shifted to the landlord (by lease or statute), the tenant has a duty to ____

Answer 104

report deficiencies promptly.

Question 105

Generally, a tenant may not commit ameliorative waste but there is a modern exception to this rule which permits a tenant to _____

Answer 105

make this type of change if the tenant is a long-term tenant and the change reflects changes in the neighborhood.

Question 106

At common law, historically (not the rule now!), a tenant was responsible for ____ to the property, including loss attributable to ____

Answer 106

any loss; force of nature, such as hurricanes, earthquakes, or lightning strikes

Question 107

If a residential tenant covenants to repair, the landlord usually remains obligated to repair (except for damages caused by the tenant) under the _____

Answer 107

nonwaivable “implied warranty of habitability”

Question 108

A nonresidential tenant’s covenant to repair is enforceable, and a landlord may be awarded damages for breach based on ____

Answer 108

the property’s condition when the lease terminates compared with its condition when the lease commenced.

Question 109

In the absence of a specific reference to ordinary wear and tear, a covenant to repair usually ____ such repairs. However, repair covenants frequently ____ ordinary wear and tear.

Answer 109

includes; exclude

Question 110

If a tenant remains on the premises and fails to pay rent, the landlord can ____

Answer 110

evict through the courts or continue the relationship and sue for rent due.

Question 111

It’s important to remember that the landlord must not engage in ____

Answer 111

self-help, such as changing the locks, forcibly removing the tenant, or removing any of the tenant’s possessions.

-> Self-help is flatly outlawed and is punishable civilly and criminally.

Question 112

Suppose that a tenant wrongfully vacates with time left on a term of years lease. What are the landlord’s options?

Answer 112

S I R

• Surrender: The landlord could choose to treat the tenant’s abandonment as an implicit offer of surrender, which the landlord accepts, thereby ending the lease
• Ignore the abandonment (meaning, do nothing) and hold the tenant responsible for the unpaid rent until the natural end of the lease, just as if the tenant were still there. (only MINORITY of states agree)
• Re-let the premises on the wrongdoer-tenant’s behalf, and hold the wrongdoer-tenant liable for any deficiency.

Question 113

Under the majority rule where a TT wrongfully vacates, the landlord must at least try to ____

Answer 113

re-let.

Question 114

Most states restrict the amount of security deposits to ____, require landlords to pay interest on security deposits, and allow ____ for a landlord’s improper refusal to return a security deposit.

Answer 114

one month’s rent; statutory or punitive damages

–> Clauses in leases that attempt to avoid these state laws are void.

Question 115

The landlord is permitted to retain a security deposit for damages ____ to the premises.

Answer 115

actually suffered

Question 116

If the entire leasehold is taken by eminent domain, the tenant’s liability for rent is ____ because both the leasehold and reversion have merged in the condemnor and there is no longer a leasehold estate. The lessee is entitled to ____. However, if the taking is ____, the tenant is not discharged from the rent obligation, but is entitled to ____ (that is, a share of
the condemnation award) for the taking.

Answer 116

extinguished; compensation

temporary or partial; compensation

Question 117

If the tenant uses the premises for an ____ purpose, the landlord may terminate the lease or obtain damages and injunctive relief.

Answer 117

illegal

Question 118

The majority rule requires that the landlord put the tenant in ____ of the premises at the beginning of the leasehold term.

If prior holdover T is still on sight = LL has ___ and new T gets ___

Answer 118

actual physical possession

breached; damages

Question 119

THE IMPLIED COVENANT OF QUIET ENJOYMENT arises by implication in ____

Answer 119

every residential and commercial lease.

Question 120

THE IMPLIED COVENANT OF QUIET ENJOYMENT provides that a tenant has a right ____

Answer 120

to quiet use and enjoyment of the premises, without interference from the landlord or a paramount title holder

Question 121

Actual eviction occurs when the landlord, a paramount title holder, or a hold-over tenant excludes the tenant from ____.

Answer 121

the entire leased premises

Question 122

Actual eviction terminates the tenant’s obligation to ____

Answer 122

pay rent.

Question 123

Partial actual eviction occurs when the tenant is physically excluded from ____.

Answer 123

only part of the leased premises

Question 124

Partial eviction by the landlord relieves the tenant of the obligation to pay rent for ____

Answer 124

the entire premises, even though the tenant continues in possession of the remainder.

Question 125

Constructive eviction occurs when the landlord’s breach of duty renders the premises ____

Answer 125

unsuitable for occupancy

Question 126

Elements of constructive eviction:

Answer 126

S I N G

• Substantial Interference
• Notice
• Goodbye

Question 127

A tenant who has been constructively evicted may ____

Answer 127

terminate the lease and may also seek damages.

Question 128

Is the landlord liable to a tenant for the wrongful acts of other tenants? As a general rule, ___.

But there are two exceptions:

Answer 128

no

1. A landlord has a duty to abate a nuisance on site
2. A landlord must control common areas

Question 129

Most jurisdictions imply a covenant of habitability into ____ leases.

Answer 129

residential

Question 130

THE IMPLIED WARRANTY OF HABITABILITY is not ___

Answer 130

waivable

Question 131

The implied warranty of habitability provides that the premises must be fit for ____

Answer 131

basic human habitation

Question 132

If the implied warranty of habitability is breached, the tenant’s options are

Answer 132

Move, Repair, Reduce, Remain

• Move out and terminate the lease
• Repair and deduct (allowable by statute in a growing number of jurisdictions; a tenant may make the reasonable repairs and deduct their cost from future rent)
• Reduce rent or withhold all rent until the court determines fair rental value (typically, the tenant must place withheld rent into an escrow account to show their good faith)
• Remain in possession, pay full rent, and affirmatively seek money damages

Question 133

Remember the difference between the covenant of quiet enjoyment (where to plead constructive
eviction successfully the tenant must ____), and the implied warranty of habitability, where the tenant could but ____.

Answer 133

vacate; is not required to vacate

Question 134

In many states, a landlord may not terminate a lease or otherwise penalize a tenant in retaliation for the tenant’s ____

Answer 134

exercise of their legal rights.

Question 135

If a tenant lawfully reports a landlord for
housing code violations, the landlord is barred from penalizing the tenant by ____

Answer 135

raising rent, ending the lease, harassing the tenant, or taking any other reprisals.

Question 136

Many statutes presume a ____ motive
if the landlord acts within, for example, 90 to 180 days after the tenant exercises their rights. To overcome the presumption, the landlord must show ____

Answer 136

retaliatory; a valid, nonretaliatory reason for their actions.

Question 137

The Civil Rights Act bars ____ discrimination in the sale or rental of all property

Answer 137

racial or ethnic

Question 138

The Fair Housing Act protects tenants and potential tenants from discrimination based on ___

Answer 138

race, color, religion, national origin, sex, or disability, as well as familial status (except in senior housing).

Question 139

Except as relates to advertising, the Fair Housing Act does not apply to:

Answer 139

(1) owner-occupied buildings with four 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 three single-family homes.

Question 140

Under the Fair Housing Act, it is unlawful to take certain actions because of a person’s race, color, religion, sex, disability, familial status, or national origin, including:

Answer 140

• Refusing to negotiate, rent, or sell housing or make available a mortgage loan or other financial assistance;
• Providing different terms or conditions for the sale or rental of a dwelling or for a mortgage or other financial assistance; and
• Falsely representing that a dwelling is not available for inspection, sale, or rental.

Question 141

It is also unlawful under the Fair Housing Act to ____ that indicates any preference or
limitation based on race, color, religion, sex, disability, familial status, or national origin.

This provision may be violated by ____ who makes a discriminatory advertisement (such as a landlord) as well as by the ____ that prints it.

-> The exemptions stated above do not apply in relation to advertising.

Answer 141

make, print, or publish any notice or advertisement

the person; newspaper or other publisher

Question 142

When the Fair Housing Act applies, landlords must permit disabled tenants to make ____ to existing premises to accommodate their disabilities at the ____ expense. Landlords must also make reasonable accommodations in rules,
policies, and services when necessary to afford a disabled person an ____

Answer 142

reasonable modifications; tenants’ own

equal opportunity to use a dwelling.

Question 143

In the absence of some prohibition in the lease, a tenant may ____ their interest in whole or in part.

Answer 143

freely transfer

Question 144

In the lease, a landlord can prohibit a tenant from assigning or subletting without ____. However, once a landlord consents to one transfer by a tenant, the landlord waives the right to ____, unless the landlord expressly reserves the right (again) = known as the Rule in Dumpor’s Case.

Answer 144

the landlord’s prior written approval; object to future transfers by that tenant

Question 145

A transfer will be considered a sublease, rather than an assignment, only when the original tenant reserves ____

Answer 145

time for herself

Question 146

An assignee stands in the shoes of the ____ in a direct relationship with the landlord; that is, the assignee and the landlord are in “____,” and each is liable to the other on all covenants in the lease that “____.”

Answer 146

original tenant; privity of estate; run with the land

Question 147

After assignment, the original tenant is no longer in ____ with the landlord, but their ____remains in effect and enforceable.

Answer 147

privity of estate; lease contract (privity of contract)

Question 149

When there is an assignment what does it mean that the original tenant is in privity of contract

Answer 149

They are secondarily liability to each other

Question 150

A covenant runs with the land if the original parties to the lease so___ and if the covenant “____” the land

Answer 150

intend

touches and concerns (that is, benefits the landlord and burdens the tenant (or vice versa) with respect to their interests in the property).

Question 151

Because a covenant to pay rent ____, the assignee owes rent directly to the landlord

Answer 151

runs with the land

Question 152

If a tenant’s assignee fails to pay rent (or breaches another covenant), the landlord can sue the ____ because of privity of estate and, if the assignee cannot pay, can also sue the ____ because of privity of contract.

Answer 152

assignee; original tenant

Question 153

If the assignee reassigns the leasehold interest, their____ with the landlord ends, and they have ____ for the subsequent assignee’s failure to pay rent.

Answer 153

privity of estate; no liability

Question 154

A sublessee is the tenant of ____ and usually pays rent to them, who then pays the landlord

Answer 154

the original lessee

Question 155

A sublease arises when T1, the original tenant, transfers ____ entire interest to T2.

Answer 155

less than her

Question 156

A sublessee is not personally liable to the ____ for rent or for the performance of any of the covenants in the main lease unless the sublessee ____

Answer 156

landlord; expressly assumes the covenants.

Question 157

If there’s a sublease, the relationship between L and T1 remains ____

Answer 157

fully intact

Question 158

The sublease ____ terminates with the main lease.

Answer 158

automatically

Question 159

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

Answer 159

the main lease

Question 160

A valid covenant against assignment is considered waived if the landlord was ____

Answer 160

aware of the assignment and did not object

Question 161

Lease covenants restricting assignment and sublease are strictly construed against
the ____.

Answer 161

landlord (Thus, a covenant prohibiting assignment does not prohibit subleasing and vice versa.)

Question 162

If a tenant assigns or sublets in violation of a lease provision, the landlord usually may ___, but
the transfer is ___

Answer 162

terminate the lease or sue for damages; not void.

Question 163

A landlord may assign the rents and reversion interest they own. This is usually done by deed when the landlord conveys a building to a
new owner. The tenants’ consent is ____

Answer 163

not required.

Question 164

Where the landlord assigns there right, the original landlord and tenant remain in ____

Answer 164

privity of contract.

-> The original landlord also remains liable on all of the covenants they made in the lease.

Question 165

Once tenants are given reasonable notice of the LL’s assignment, they must ____ the new owner as their landlord.

Answer 165

recognize and pay rent to

Question 166

Caveat Lessee

Answer 166

Goes to LL’s Tort liability = The common law norm is: Let the tenant beware.

Thus, in tort, a landlord was under no duty to make the premises safe.

Question 167

The benefit of all tenant covenants that touch and concern the land runs with the____ to the new owner.

Answer 167

landlord’s estate

Question 168

Exceptions to caveat lessee

Answer 168

CLAPS:
- Common areas
- Latent defects
- Assumption of repairs
- Public use rule
- Short-term lease of furnished dwelling

Question 169

A landlord has a duty of reasonable care in maintaining all ____

Answer 169

common areas (for example, hallways, stairwells, elevators).

Question 170

A landlord must warn a tenant of ____.

-> Otherwise, the landlord will be liable for any injuries resulting.

Answer 170

hidden defects (meaning, a dangerous condition that the tenant couldn’t discover by reasonable inspection) of which the landlord has knowledge or reason to know

Question 171

If the tenant accepts the premises after disclosure of latent defects, the tenant ____

Answer 171

assumes the risk; the landlord is no longer liable in tort.

Question 172

The landlord’s obligation for latent defects in tort is a duty to ___, and not a duty to repair.

Answer 172

warn

Question 173

While in tort a landlord is under no duty to make repairs, once repairs are undertaken, the landlord must ____

Answer 173

complete them with reasonable care.

what does this mean = if they are negligently done, then they are liable

Question 174

A landlord who leases public space (for example, a convention hall or a museum), and who should know, because ____, that a tenant will not repair, is liable for any defects on the premises that cause injury to members of the public.

Answer 174

of the significant nature of the defect and the short length of the lease

Question 175

A landlord who rents a fully furnished premises for a short period (for example, a summer cottage) is under a stricter duty. Such landlords are responsible for____ which proximately injures a tenant.

Answer 175

any defective condition (whether or not they knew of the defect)

Question 176

Many courts now hold that a landlord owes a general duty of ___ toward residential tenants, and will be held liable for injuries in tort resulting from ____ if the landlord had notice of a defect and an opportunity to repair it.

Answer 176

reasonable care; ordinary negligence

Question 177

A landlord generally is held to have notice of defects existing before the tenant took possession but is not liable in tort for defects arising ____ unless the landlord knew or should have known of them.

Answer 177

after the tenant takes possession

Question 178

If the landlord has a statutory duty to repair (for example, housing codes), the landlord is liable in tort for injuries resulting from the landlord’s ____ in making repairs

Answer 178

failure to repair or negligence

Question 179

Some courts hold landlords liable in tort for tenant injuries inflicted by the criminal conduct of third parties in cases where the landlord ____

Answer 179

failed to comply with housing code provisions dealing with security, maintain ordinary security measures, or provide advertised security
measures (for example, surveillance cameras).

Question 180

A fixture is a chattel that has been so affixed to land that it has ____. A fixture passes with the ownership of the land and must ___.

Answer 180

ceased being personal property and has become part of the realty; stay put

Question 181

How to tell that a given chattel is a fixture and must stay put: there are two ways to tell.

Answer 181

• First, when items are incorporated into the realty so that they lose their identity.
• Second, a chattel affixed to realty is a fixture when its removal would cause considerable damage to the premises.

-> Common examples here: plumbing, heating ducts, a furnace.

Question 182

A common ownership case is one in which the person who brings the chattel to the land owns both the chattel and the land. That item is a fixture if the party who made the annexation objectively intended to ____. This intention is determined by: ___

Answer 182

make the item part of the realty

the nature of the article, the manner of attachment, the amount of damage that would be caused by its removal, and the adaptation of the item to the use of the realty.

Question 183

In divided ownership cases, the chattel is owned and brought to the realty by someone other than the landowner (for example, by a
tenant, licensee, or trespasser). ____ the annexor’s intent to make the chattel a permanent part of the real estate.

Answer 183

Accession

Question 184

Suppose that a tenant installs a chandelier onto the leased premises’ ceiling. How can you tell whether that tenant installation qualifies as a fixture, in which case it must stay put because fixtures pass with ownership of the land?

Answer 184

An agreement between the landlord and tenant is controlling on whether an annexed chattel is a fixture.

Question 185

Absent an agreement, a tenant is deemed to lack the intent to permanently improve the property, and thus may ____

Answer 185

remove his annexed chattels if removal does not substantially damage the premises or destroy the chattel.

Question 186

Annexed chattels must be removed by the end of the lease term (or within a reasonable time after the termination of an indefinite tenancy), and the tenant is responsible for ____

Answer 186

repairing any damage caused by the removal.

Question 187

The same rules apply in the life tenant-remainderman context as in landlord-tenant situations, except that the life tenant’s representative may remove annexations within a reasonable time after ____

Answer 187

the life tenant’s death.

Question 188

Licensees are treated much like tenants, whereas trespassers normally ____ annexations.

Some courts, however, allow a good faith trespasser recovery measured by ____

Answer 188

lose their = Thus, absent a statute, an adverse possessor or good faith trespasser cannot remove fixtures (for example, house erroneously constructed on a parcel that possessor believed she owned).

the value added to the land (not construction costs).

Question 189

An easement is a grant of a ____ property interest that entitles its holder to some form of use or enjoyment of ____

Answer 189

nonpossessory; another’s land.

Question 190

An easement is presumed to be of ____ duration unless the grant specifically limits the interest.

Answer 190

perpetual

Question 191

TYPES OF EASEMENTS - grants

Answer 191

Affirmative and negative

Question 192

An affirmative easement is the right to ____

Answer 192

go onto and do something on servient land (meaning, the land that is imposed upon by the easement).

Question 193

The negative easement entitles its holder to ____

Answer 193

prevent the servient landowner from doing something that would otherwise be permissible.

Question 194

Negative easements are generally recognized in only four
categories

Answer 194

Remember L A S S :
- Light
- Air
- Support
- Stream water from an artificial flow
+ A minority of states also allow a negative easement for scenic view.

Question 195

Negative easements can only be created ___, by a writing signed by the ____.

Answer 195

expressly; grantor
-> There is no natural or automatic right to a negative easement.

Question 196

TYPES OF EASEMENTS - rights

Answer 196

Appurtenant and in Gross

Question 196

An easement is appurtenant when it ____.

Answer 196

benefits its holder in his physical use or enjoyment of his own land

Question 197

How will you know when you’ve got an easement appurtenant?

Answer 197

Two parcels of land must be involved:
- a dominant tenement, which derives the benefit
- a servient tenement, which bears the burden

Question 198

An easement is in gross if it ___

Answer 198

confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land.

Question 199

How will you know when you’ve got an easement in gross?

Answer 199

only one parcel is involved = Servient land is burdened. However, there is no benefited or dominant tenement (because the easement benefits the holder rather than another parcel).

Question 200

The appurtenant easement passes automatically with transfers of the ____ tenement, regardless of whether it is even mentioned in the conveyance

Answer 200

dominant

Question 201

The burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is ____

Answer 201

a bona fide purchaser without notice of the easement.

Question 202

The benefit of an easement appurtenant cannot be conveyed apart from the ____

Answer 202

dominant tenement.

-> The only exception to that rule is a conveyance of the easement to the owner of the servient tenement to extinguish the easement.

Question 203

An easement in gross is not transferable unless ____

Answer 203

it is for commercial purposes.

Question 204

Basic methods of creating an easement

Answer 204

P I N G:
- Prescription
- Implication
- Necessity
- Grant

Question 205

Any easement must be memorialized ___ and signed by the holder of the ____ tenement unless its duration is brief enough to be outside the coverage of a particular state’s Statute of Frauds (< 1 year).

Answer 205

in writing; servient

Question 206

Easements by implication are created by operation of law; they’re an exception to the ____

Answer 206

Statute of Frauds

Question 207

Easement Implied from Preexisting Use (also known as a “quasi-easement”) elements

Answer 207

• the previous (prior to division) use on the servient part was apparent and continuous AND
• the parties expected that the use would survive division because it is reasonably necessary to the dominant tenement’s
  use and enjoyment

Question 208

In two limited situations, easements may be implied without preexisting use.

Answer 208

• Subdivision Plat
• Profit à Prendre

Question 209

When lots are sold in a subdivision with reference to a recorded plat or map that shows streets leading to the lots, buyers of the lots have implied easements to ____

Answer 209

use the streets to access their lots.

Question 210

The holder of a profit à prendre has an implied easement to pass over the surface of the servient land and to use it as reasonably necessary to _____, as specified by the terms of the profit.

Answer 210

extract from the servient property its minerals or some product of the servient property (such as timber, fish, or game)

Question 211

For easements by necessity the owner of the servient parcel has the right to ____

Answer 211

locate the easement.

Question 211

An easement by necessity (another form of easement by implication) will be implied when

Answer 211

a landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land.

Question 212

Elements to acquire a prescriptive easement

Answer 212

C O A H:
- C: Continuous and uninterrupted use for the given statute’s period
- O: Open and notorious use (that is, it’s discoverable upon inspection)
- A: Actual use that need not be exclusive
- H: Hostile use (meaning, use without the servient owner’s consent)

Question 213

An easement by prescription is acquired by analogy to ___

Answer 213

adverse possession

Question 214

____ defeats the acquisition of an easement by prescription because it makes it non-hostile.

Answer 214

Permission

Question 215

Prescriptive easements cannot be acquired in ____

Answer 215

public land

Question 216

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

Answer 216

reservation

Question 217

Under the majority view, an easement can be reserved only for the ____. An attempt to reserve an easement for anyone else is ____.

Answer 217

grantor; void

Question 218

The scope of an easement is 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 ___ will be implied.

Answer 218

intended use

Question 219

If there are no specific limitations in the grant, courts assume that an easement was intended to meet both ____ of the dominant tenement (so, for example, an easement may widen to accommodate
new, wider cars). If, however, the dominant parcel is ____, the lot owners will not succeed to the easement if to do so would unreasonably overburden the servient estate.

Answer 219

present and future needs; subdivided

Question 220

When confronted with an exam question involving overuse or misuse of an easement, remember that such use does not ____ the easement. The appropriate remedy for the servient owner is a ____ against the misuse.

Answer 220

terminate; injunction

Question 221

The servient owner generally may use her land in any way she wishes so long as her conduct does not ____.

The easement holder has the duty to make repairs to the easement if she is the____; but if both the easement holder and the servient owner are users, the court will ____ the repair costs.

Answer 221

interfere with the easement

sole user; apportion

Question 222

Eight ways to terminate an easement

Answer 222

END CRAMP:
- Estoppel
- Necessity
- Destruction
- Condemnation
- Release
- Abandonment
- Merger
- Prescription

Question 223

An oral expression of an intent to abandon an easement won’t terminate an easement unless it’s also ____.

But if the servient owner materially changes their position in reasonable reliance on the easement holder’s assurances or representations (such as that the easement will no longer be enforced), the easement terminates
through ____

Answer 223

committed to writing (a release) or accompanied by action (abandonment).

estoppel.

Question 224

Easements created by necessity expire as soon as ____, unless the easement was ____.

Answer 224

the necessity ends; reduced to an express grant

Question 225

Destruction of the servient land, other than through the ____, will terminate the easement.

Answer 225

willful conduct of the servient owner

Question 226

Condemnation of the servient estate by ____ will terminate the easement.

Answer 226

governmental eminent domain power

-> Note: Courts are split as to whether easement holders are entitled to compensation.

Question 227

A release given by the easement holder to the servient land owner will terminate the easement, this release must be ___.

Answer 227

In writing

Question 228

What must an easement holder show to terminate an easement by abandonment?

Answer 228

They must show by physical action an intent to never use the easement again.

Question 229

Mere nonuse, or mere words (such as expressing a wish to abandon), are
____ to terminate by abandonment

Answer 229

insufficient
–> though oral expressions combined with a long period of nonuse may be sufficient.

Question 230

An easement is extinguished when title to the easement and title to the servient land become vested in ____

Answer 230

the same person (because a person doesn’t need an easement over their own land).

-> Those estates merge and the easement is destroyed.

Question 231

After merger of a dominant/servient estate they are separated again the easement is ____ reinstated.

Answer 231

not automatically

Question 232

A servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession, referred to as:

Answer 232

by prescription

Question 233

Elements of terminating an easement by prescription

Answer 233

C O A H:
- C: Continuous interference
- O: Open and notorious
- A: Actual
- H: Hostile to the easement holder

Question 234

Courts will treat a wall erected partly on the property of each of two adjoining landowners as belonging to ____. Courts will also imply mutual cross-easements
of support, with the result that ____

Answer 234

each owner to the extent it rests upon their land.

each party can use the wall or driveway and neither party can unilaterally destroy it.

Question 235

A written agreement is required by the Statute of Frauds for the express creation of a party wall or common driveway agreement, but an ____ can arise from detrimental reliance on a parol agreement. Party walls and common driveways can also result from ____

Answer 235

“irrevocable license”

implication or prescription.

Question 236

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 ____

Answer 236

the successive owners of each parcel

Question 237

The license is a ____

Answer 237

mere privilege to enter another’s land for some delineated purpose.

Question 238

Unlike an easement, a license is not an interest in land; it’s merely a privilege, revocable ____

Answer 238

at the will of the licensor.

Question 239

License is personal to the licensee and, thus, ___. An attempt to transfer a license results in ____

Answer 239

inalienable; revocation by operation of law.

Question 240

A writing is ____ to create a license.

Answer 240

not needed

Question 241

A failed attempt to create an easement results in a ____

Answer 241

license.

Question 242

Licenses are ____, at the will of the licensor, unless ____ applies to bar revocation.

Answer 242

freely revocable; estoppel

Question 243

The classic license cases

Answer 243

• The ticket cases (freely revocable license)
• Neighbours talking by the fence (beware of seemingly oral easements = license_

Question 244

When will estoppel apply to bar revocation of a license?

Answer 244

Only when the licensee has invested substantial money or labor or both in reasonable reliance on the license’s continuation.

Question 245

When a licensee detrimentally relies on a license it becomes an
____, which lasts until the holder receives ____

Answer 245

easement by estoppel; sufficient benefit to reimburse him for his expenditures.

Question 246

A license coupled with an interest is irrevocable as long as the ____

Answer 246

interest lasts.

E.g., the buyer of a chattel may enter the seller’s land to remove the chattel, or a future interest holder may enter and inspect the land for waste.

Question 247

The profit entitles its holder to enter the servient land and____

Answer 247

take from it some resources, for example, the soil, some substance of the soil (such as minerals, timber, or oil), or some product of the property (such as fish or game).

Question 248

All of the rules governing creation, alienation, and termination of easements are applicable to profits. In addition, a profit may be extinguished through ____

Answer 248

surcharge (misuse that overly burdens the servient estate).

Question 249

The covenant is a written promise to ___

Answer 249

do or not do something related to land.

Question 250

A covenant is unlike the easement because it is not the grant of a
___. Instead, it is a ____ or promise regarding land

Answer 250

property interest; contractual limitation

Question 251

Type of covenants

Answer 251

Negative and Affirmative

Question 252

A restrictive covenant is a promise to ____

Answer 252

refrain from doing something related to land.

Question 253

The affirmative covenant is a promise to ____

Answer 253

do something related to land.

Question 254

Covenant vs. Equitable Servitude - How will you know which analysis to apply?

Answer 254

• If the plaintiff wants money damages = you must construe the promise as a covenant.
• If the plaintiff wants an injunction = you must construe the promise as an equitable servitude.

Question 255

In covenant parlance, one tract is ____ by the promise and another is ____.

Answer 255

burdened; benefited (need to be analyzed separately for determining if the convenant can be enforced)

Question 256

If the following requirements are met, any successor in interest to the burdened estate will be bound by the covenant as if they themselves had expressly agreed to it:

Answer 256

Remember W I T H N:
- Writing: Original promise (between A and B) must have been in writing
- Intent: The original covenanting parties (A and B) must have intended that the covenant would run (Courts are generous in finding the requisite intent)
- Touch and concern: The promise must affect the parties’ legal relations as landowners and not simply as members of the community at large.
- Horizontal and vertical privity
- Notice

Question 257

Restrictive covenants touch and concern the land if they ____.

Affirmative covenants touch and concern the land if they require the holder of the servient estate to do something that ____.

Answer 257

restrict the burdened parcel owner in her use of that parcel of land

increases her obligations in connection with the land

Question 258

Covenants to pay money to be used in connection with the land (such as homeowners’ association fees) and covenants not to compete ___ touch and concern the land.

Answer 258

do

Question 259

Both ____ privity are required for the burden to run.

Answer 259

horizontal and vertical

Question 260

Horizontal privity refers to the nexus between the ____

Answer 260

original promising parties (A and B).

Question 261

Horizontal privity requires that they be in succession of estate, meaning that they were in a ____ relationship when the covenant was created.

In other words, at the time the promisor
entered into the covenant with the promisee, the two must have shared ___ in the land independent of the covenant.

Answer 261

grantor-grantee or landlord-tenant or mortgagor-mortgagee

some interest

Question 262

___ privity is difficult to establish. Its absence is the reason why many ___ will not run.

Answer 262

Horizontal; burdens

Question 263

Vertical privity refers to the nexus between _____.

Answer 263

the successor in interest (A-1) and the originally covenanting party (A)

Question 264

Vertical privity simply requires some ____.

Answer 264

non-hostile nexus, such as contract, devise, or descent

Question 265

The only time vertical privity will be absent is when ____

Answer 265

the successor acquired her interest through adverse possession.

Question 266

The successor of the burdened estate must have had ___ of the promise when she took.

Answer 266

notice (actual, inquiry, or record notice of the covenant)

Question 267

Elements for the benefit of a covenant to run

Answer 267

Remember W I T V

• Writing: original promise (between A and B) must have been in writing.
• Intent: the originally covenanting parties (A and B) must have intended that the benefit would run
• Touch and concern: the promised performance benefits the promisee and her successors in their use and enjoyment of the benefited land.
• Vertical privity: non-hostile nexus between the original promisee (B) and the successor in interest (B-1)

Question 268

Horizontal privity is not required for the ____ to run

Answer 268

benefit

Question 269

Where horizontal privity is lacking, the promisee B’s successor (B-1) can enforce the covenant against the ____, but not against the ___

Answer 269

original promisor (A); promisor’s successor (A-1)

Question 270

Generally, promises to pay money to be used in connection with the land (for example, homeowners’ association fees) and covenants not to compete ___

Answer 270

run with the land.

Question 271

Racially restrictive covenants are ____

Answer 271

unenforceable.

Question 272

A covenant may be terminated by:

Answer 272

(1) a written release,
(2) the merger of the benefited and burdened estates, or
(3) the condemnation of the burdened property

Question 273

An equitable servitude is a promise that equity will enforce against successors of the burdened land regardless of whether ____, unless the successor is a bona fide purchaser (meaning, a subsequent purchaser for value without notice of the
covenant).

Answer 273

it runs with the land at law

Question 274

Elements to create an equitable servitude that will bind successors:

Answer 274

Remember W I T N E S:
- Writing: Generally, but not always, the original promise was in writing
(the common scheme doctrine, discussed below, is an exception to this requirement)
- Intent: The original parties intended that the promise would be enforceable by and against successors
- Touch and concern: The promise affects the parties as landowners
- Notice: Subsequent purchasers of land burdened by the covenant had actual, inquiry, or record notice of the covenant when they acquired the land.
–> Note: This rule is part of the law of equitable servitudes, and exists apart from the recording acts, so notice is required to bind a subsequent purchaser regardless of whether they seek the protection of a recording act.
- ES, for equitable servitudes

Question 275

In most states, successors of burdened land who are not purchasers (such as donees) are bound by the covenant whether or not ____.

Answer 275

they had notice

Question 276

In contrast to real covenants, which require vertical and horizontal privity of estate for burdens to run, and vertical privity for benefits to run, _____ is required for an equitable servitude to be enforceable by and against assignees.

Answer 276

no privity of estate

Question 277

The Implied Equitable Servitude is essentially an exception to the general requirement that ____

Answer 277

the original promise be in writing

Question 278

Under the common scheme doctrine, the court will imply a ____ to hold the unrestricted lot holder to the promise.

Answer 278

reciprocal negative servitude

–> Thus, if a developer subdivides land, and some deeds contain restrictive covenants while others do not, the restrictive covenants will be binding on all parcels provided there was a common scheme of development and notice of the covenants.

Question 279

Elements of the general or common scheme doctrine:

Answer 279

1 - When the sales began, the subdivider (A) had a general scheme of residential development which included the defendant’s lot (the scheme may be evidenced by: a recorded plat, a general pattern of restrictions, or oral representations to early buyers); and

2 - The defendant lot-holder (B) had notice of the promise contained in those prior deeds when it took.

Question 280

Forms of Notice for the Elements of the Common Scheme Doctrine

Answer 280

• Actual notice, meaning the defendant had literal knowledge of the promises contained in the prior deeds
• Inquiry notice, meaning the neighborhood seems to conform to the common restriction (it’s the “the lay of the land”)
• Record notice, meaning the form of notice sometimes imputed to buyers on the basis of the publicly recorded documents (so, there’s a prior deed with the covenant in grantee’s chain of title)

Question 281

If the Common scheme arises after some lots are sold, no implied servitude can arise with respect to the lots ____

Answer 281

already sold without express covenants.

–> Example: if Lots 1 through 5 are sold without a restrictive covenant and the deeds to Lots 6 through 50 contain one, the covenant cannot be enforced as a servitude against the owners of Lots 1 through 5.

Question 282

A court will not enforce an equitable servitude if:

Answer 282

• The neighborhood conditions have changed so significantly that enforcement would be inequitable.
• The person seeking enforcement is violating a similar restriction on his own land (unclean hands);
• A benefited party acquiesced in a violation of the servitude by a burdened party;
• A benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived
  (estoppel); or
• The benefited party fails to bring suit against the violator within a reasonable time (laches).

Question 283

The changed circumstances exception to the enforcement of an implied equitable servitude alleged by the party seeking release from the terms of an equitable servitude must be ____

Answer 283

so pervasive that the entire area or subdivision has changed.

-> What’s never good enough here is piecemeal change or mere pockets of limited change

Question 284

Like other nonpossessory interests, an equitable servitude may be extinguished by:

Answer 284

(1) written release from the benefit holders,
(2) merger of the benefited and burdened estates, or
(3) condemnation of the burdened property.

Question 285

Title by adverse possession results from the operation of the statute of limitations for ___

Answer 285

ejectment

Question 286

Elements of adverse possession

Answer 286

Remember C O A H

• Continuous
• Open and notorious
• Actual and exclusive
• Hostile

Question 287

An adverse claimant’s possession must be ____ throughout the statutory period.

Answer 287

continuous;

Question 288

Intermittent periods of occupancy are not sufficient for AP. However, constant use by the claimant is not required as long as possession is of a type that ____

Answer 288

the usual owner would make.

Question 289

There need not be continuous possession by the same person; an adverse possessor can ____ her own possession onto the periods of adverse possession of her predecessors in certain circumstances

Answer 289

tack

Question 290

When is possession open and notorious?

Answer 290

The adverse possessor’s occupation must be sufficiently apparent to put the true owner on notice that a trespass is occurring.

Question 291

What does actual possession mean?

Answer 291

An adverse possessor will gain title only to the part of the land they actually occupy. (with exception under color title for all)

Question 292

If an adverse possessor enters under color of title (meaning by invalid deed), she is deemed to be in constructive possession of ____ that the deed describes, as long as she ___

Answer 292

all the land; is in actual possession of a reasonable portion of that land.

Question 293

Exclusive possession means that the possessor is ____.

Answer 293

not sharing with the true owner or the public

Question 294

Two or more people acting together could succeed in obtaining title by adverse possession; they would take title as ____

Answer 294

tenants in common.

Question 295

The hostility requirement is satisfied if the possessor enters ____.

Answer 295

without the owner’s permission

Question 296

Note that the adverse possessor’s state of mind is ____

Answer 296

irrelevant
-> It doesn’t matter whether the possessor actually thought that they were on their own land or knew that they were encroaching on another’s land.

Question 297

When possession starts permissively (for example, by lease), possession does not become adverse until the possessor ____

Answer 297

makes clear to the true owner the fact that they are claiming “hostilely.”

Question 298

A co-tenant must oust ___ or make an ____ to create adverse possession.

Answer 298

others; explicit declaration that they’re claiming exclusive dominion

Question 299

Where a grantor stays in possession of land after their conveyance, they’re presumed to be there ____ of the grantee.

Likewise, if a tenant remains in possession after the expiration of the
lease, they’re presumed to have ____ of the landlord.

Answer 299

with permission; permission
-> and thus doesn’t satisfy hostility element of AP

Question 300

When someone assumes possession with what they mistakenly believe is valid title, the possession is ____

Answer 300

hostile and adverse.

Question 301

The statute of limitations begins to run when the true owner can first ____. Filing a suit will not stop the period from running, however; the suit must be ___

Answer 301

bring suit; pursued to judgment.

Question 302

Most states ____ the adverse possessor to pay taxes on the property, but consider such payment good evidence of a claim of right for AP.

Answer 302

do not require

Question 303

One adverse possessor may tack on to his time with the land his predecessor’s time, so long as there is ____

Answer 303

privity between the possessors.

Question 304

Privity for AP is satisfied by ____. By contrast, privity is absent when the possessor acquires possession by ___ his predecessor in possession.

Answer 304

any non-hostile nexus, such as a contract, deed, or will; ousting

Question 305

The statute of limitations for AP will not run against a true owner who is afflicted by a disability at the ___ of the adverse possession

Answer 305

inception

Question 306

Only the disability of the ____ the cause of action arose is considered for AP exception.

Answer 306

owner existing at the time -> if someone with disability received after SOL started running, doesn’t matter

Question 307

The statute of limitations does not run against a holder of a future interest until the interest becomes ____

Answer 307

possessory.

Question 308

The event or condition giving rise to a grantor’s right of entry does not trigger the statute of limitations for purposes of adverse possession. The statute does not
begin to run until the right is ____ because, until that time, the grantee’s continued possession of the land is proper.

Answer 308

asserted by the grantor

Question 309

If an adverse possessor uses the land in violation of a restrictive covenant in the owner’s deed for the statute of limitations period, they take ____. If, however, the possessor’s use complies with such a covenant, they take title ____.

Answer 309

free of the restriction

Question 310

Title to government-owned land and land registered under a Torrens system (in place in a small minority of states, whereby title is established with a governmental authority that issues title certificates to owners) cannot be acquired by ____

Answer 310

adverse possession.

Question 311

Every conveyance of real estate consists of a two-step process:

Answer 311

Step I: The land contract, which conveys equitable title.
-> The land contract endures until step II.
Step II: The closing, where the deed passes legal title and becomes our operative document.

Question 312

The land contract, which conveys ___ title.

Answer 312

equitable

Question 313

The closing is where the deed passes ____ title and becomes our operative document.

Answer 313

legal

Question 314

The ____ date is generally set in the land contract

Answer 314

closing

Question 315

Before the closing, ___ rules apply; after closing, we’re strictly in the realm of ___ law

Answer 315

Contracts; Real Property

Question 316

If there are going to be problems in the sale of land, they generally arise during the period between the signing of the contract and the closing date. This is sometimes called the ____ period.

Answer 316

escrow

Question 317

The land contract is the same as any other in terms of what is required to ____

Answer 317

make it enforceable (offer, an acceptance, and consideration + The contract must comply with the Statute of Frauds and there must not be any defenses to enforcement.)

Question 318

Because the real estate contract involves an interest in land, the ____ requires a writing signed by _____—in other words, signed by the party currently
being sued.

Answer 318

Statute of Frauds; the party against whom enforcement is sought

Question 319

In addition to that signature, to satisfy the SOF, the
land contract must:

Answer 319

• Identify the parties
• Describe the property, and
• Include the price (the consideration) or a means of determining the price (such as the fair market value as determined by an appraisal)

–> These terms must be definite enough for a court to enforce the contract

Question 320

If a land contract overstates the size of a parcel what is the remedy?

Answer 320

Specific performance with a pro-rata reduction in price

Question 321

Exception to the SOF for land contracts

Answer 321

the doctrine of part performance (specific performance remedy)

Question 322

Part performance is an equitable doctrine allowing a buyer to enforce an oral real estate contract by specific performance if:

Answer 322

• The oral contract is certain and clear, and
• The acts of partial performance clearly prove the existence of a contract (two of possession, payment of purchase price or a significant portion of the purchase price, substantial improvements)

Question 323

Under the doctrine of equitable conversion, once the land contract is signed, equity regards the ____ as the owner of the real property.

Answer 323

buyer

Question 324

The right to possession rests with the party who holds ____ title. Thus, seller is entitled to possession until ____.

Answer 324

legal; closing

Question 325

Remember that the contract conveys equitable title to the buyer. One important result flows from this:

Answer 325

DESTRUCTION

Question 326

If between contract and closing, Blackacre (the property) is destroyed through no fault of either party, who bears the risk of loss?

Answer 326

The Buyer!

Question 327

Even though the risk of loss is on the buyer after the land contract is executed, if the property is damaged or destroyed, the seller must ____ against the purchase price the buyer is required to pay.

Answer 327

credit any fire or casualty insurance proceeds they receive

Question 328

What happens if one of the parties meets an unexpected end after the contract but before the closing?

Answer 328

The interests of the departed party pass to their estate.

Question 329

Because the buyer is deemed to own the property from the moment the contract is signed, a deceased buyer’s interest passes as ____ to their estate.

Answer 329

real property

Question 330

A deceased seller’s interest, the right to the purchase price, passes to their estate as ____. The contract remains enforceable, with the deceased party’s estate taking the decedent’s place in the transaction.

Answer 330

personal property

Question 331

TWO PROMISES IMPLIED IN EVERY LAND SALE CONTRACT

Answer 331

1. Seller Will Provide Marketable Title
2. Seller Will Not Make False Statements of Material Fact

Question 332

Marketable title is title ____

Answer 332

reasonably free from doubt and the threat of litigation.

Question 333

The common defects that render title unmarketable are:

Answer 333

• Defects in record chain of title (most often, adverse possession)
• Encumbrances (mortgages, liens, easements, restrictive covenants)
• Zoning violations

Question 334

If even a portion of the title rests on adverse possession, it is ____

Answer 334

unmarketable.

Question 335

Unless a suit has been brought to ____, title acquired by adverse possession does not appear in the record.

Answer 335

quiet title

Question 336

Generally, mortgages, liens, restrictive covenants, easements, options to purchase, and ____ encroachments render title unmarketable unless ____

Answer 336

significant; the buyer has waived them.

Question 337

If an encroachment is ____, the encroachment won’t render title unmarketable.

Answer 337

very slight (a matter of inches) and doesn’t inconvenience the owner of the encroached-on parcel

Question 338

An encroachment of a ____ likely will render title unmarketable

Answer 338

foot or more

Question 339

An easement that is ____ to the buyer does not impair the marketability of title.

Answer 339

beneficial, visible, or known

-> Purchasers are generally presumed to have contracted to accept the land subject to visible (obvious) easements.

Question 340

A seller has the right to satisfy a mortgage or lien at ____ with the proceeds of the sale.

Answer 340

closing

–> Thus, prior to closing, the buyer cannot claim that title is unmarketable because it is subject to a mortgage if the closing will result in that mortgage’s discharge.

Question 341

Zoning restrictions do not affect marketability, but an ____ of a zoning ordinance does render title unmarketable.

Answer 341

existing violation

Question 342

When a holder of a future interest is _____, it is impossible to convey marketable title. Courts will not appoint a guardian ad litem to represent them for the purposes of conveying land.

Answer 342

unborn or unascertained

Question 343

Title must be marketable on ____. The seller has up until that time to clear up whatever defect is making the title unmarketable.

Answer 343

the day of closing

Question 344

In an installment land contract, the seller need not provide
marketable title until ____

Answer 344

the buyer has made his last payment.

Question 345

Once the closing occurs and the deed changes hands
the seller is ____ on this implied covenant of marketable title.The seller is then liable only for express promises made in the deed.

Answer 345

no longer liable; in the deed.

Question 346

The buyer must ____ the seller that title is unmarketable and give the seller _____

Answer 346

notify; reasonable time to cure the defects.

Question 347

If the seller fails to cure the defects in the marketable title, the buyer’s remedies include _____.

Answer 347

rescission, damages,
specific performance with abatement, and a quiet title suit

Question 348

A ____deed does not in
any way affect the implied covenant to provide marketable title.

Answer 348

quitclaim

Question 349

The second implied promise in all land contracts is that the seller will not make any _____

Answer 349

false statements of material fact

Question 350

The seller may be liable to the purchaser after ____ for defects, if they ____ that the buyer relied on, actively ____ or failed to ____

Answer 350

the closing

knowingly made a false statement of material fact; concealed a defect; disclose known defects in the property.

Question 351

To be liable for failure to disclose under the implied covenant in a land contract:

Answer 351

• The seller must know or have reason to know of the defect;
• The seller must realize that the buyer is unlikely to discover the defect; and
• The defect must be serious enough that the buyer would probably reconsider the purchase.

Question 352

Factors increasing the likelihood that liability will be imposed in these cases include :

Answer 352

whether the property is a personal residence, whether the defect is dangerous, and whether the seller created the defect or made a failed attempt to repair it.

Question 353

Can the seller avoid liability for fraud or failure to disclose by
including in the contract a disclaimer? (general vs. specific disclaimers)

Answer 353

General disclaimers = NO GOOD

If the disclaimer identifies specific types of defects = likely be upheld

Question 354

The land contract contains no implied warranties of fitness or habitability. ____ is the common law norm.

Answer 354

Caveat emptor

Question 355

Most courts recognize a warranty of fitness or quality in the sale of _____

Answer 355

a new home by the builder.

Question 356

A person may sue a builder for ____ in performing a building contract. Some courts permit the ultimate buyer to sue the builder despite ____

Answer 356

negligence; lack of privity.

Question 357

Courts presume that time is not “____” in real estate contracts. Thus, the closing date isn’t _____, and a party late in tendering their own performance can still enforce the contract if they ____ after the closing date.

Answer 357

of the essence; absolutely binding; tender within a reasonable time (for example, two months)

Question 358

Time is of the essence in a land contract if

Answer 358

(1) the contract so states,
(2) the circumstances indicate that was the parties’ intent, or
(3) one party gives the other notice that time is of the essence.

Question 359

If time is of the essence, a party who fails to tender performance on the closing date is ____. Even if time is not of the essence, a party who is late in tendering performance is liable for ____

Answer 359

in breach and may not enforce the contract

incidental losses.

Question 360

The buyer’s obligation to pay and the seller’s obligation to convey are ____ conditions

Answer 360

concurrent

-> 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.

Question 361

A party to a land contract is excused from performing if the other party has ____ or it is ____ for the other party to perform, such as when unmarketable title can’t be cured.

Answer 361

repudiated the contract; impossible

Question 362

The non-breaching party in a land contract is entitled to damages measured by the difference between ____ or, because land is unique, ____.

Answer 362

contract price and market value on the date of breach, plus incidental costs; specific performance

Question 363

If the buyer wishes to proceed despite unmarketable title, they can usually get specific performance with ____

Answer 363

an abatement of the purchase
price.

Question 364

Sales contracts usually require the buyer to deposit “____” with the seller and provide that if the buyer defaults in performance, the seller may retain this money as liquidated damages.

Courts routinely uphold the seller’s retention of earnest money if the amount appears to ____

Answer 364

earnest money; be reasonable in light of the seller’s anticipated and actual damages.

Question 365

Real estate brokers are the seller’s agents but should disclose material information about the property if they ____

Answer 365

have actual knowledge of it

Question 366

Traditionally, agents earned their commissions when they
produced a buyer who was ready, willing, and able to purchase the property = Therefore, the commission was owed regardless of ____.

The growing trend, however, is to award the commission only if the sale ____ or if it fails to close because of the fault of the ____.

Answer 366

whether the deal actually closed

actually closes; seller

Question 367

Under an exclusive listing agreement with a real estate broker, the ____ is consideration for the broker’s commission

Answer 367

broker’s best efforts to sell the property -> “Best efforts” includes expenditure of time, effort, or money.

Question 368

If the property is sold by the seller or another agent
during an exclusive listing period, the seller ____ to pay a commission.

Answer 368

still may have

Question 369

A ____ 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.

Answer 369

title insurance

Question 370

Re title insurance

An owner’s policy protects only ____ (usually either the owner of the property and their successors to the property by operation of law, such as heirs or devisees, or the mortgage lender) and does not run with the land to subsequent purchasers. A lender’s policy follows ____.

Answer 370

the person who owns the policy; any assignment of the
mortgage loan

Question 371

If the buyer permits the closing to occur, the contract is said to ____ with the deed (it disappears) and, in the absence of ____, the seller
is no longer liable on the promises in the contract, only those in the deed.

Answer 371

merge; fraud

Question 372

To pass legal title from grantor to grantee the deed must be

Answer 372

“LEAD”: Lawfully Executed And Delivered

Question 373

Executing a valid deed requires the following:

Answer 373

• A writing signed by the grantor
• An unambiguous description of the land
• Identification of the parties by name or description
• Words of intent to transfer, such as “grant”
  + The deed need not recite consideration, nor must consideration pass to make a deed valid (that’s in the land the contract)

Question 374

The description of land in the deed need not be perfect, but it must be ____ and at least provide a ____

Answer 374

unambiguous; good “lead.”

Question 375

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, ____ is permitted to clear up the ambiguity.

Answer 375

outside (parol) evidence

Question 376

If a deed is delivered with the name of the grantee left blank, the court presumes ____

If, however, the ____ is left blank, the deed is void unless the grantee was explicitly given authority to fill in the description.

Answer 376

the person taking delivery has authority to fill in the name of the grantee

land description

Question 377

A deed isn’t effective to transfer an interest in realty unless it has been ____.

Answer 377

delivered

Question 378

Delivery turns on ____ that title pass immediately, even if possession is postponed. Acceptance is ____.

Answer 378

the grantor’s intent; presumed

Question 379

The delivery requirement could be satisfied when the grantor physically or manually transfers the deed to the grantee. It’s permissible here to use ____

Answer 379

the mail or agent or messenger.

Question 380

The standard for delivery is a legal standard and is a test solely of present intent. Ask:

Answer 380

did the grantor have the present intent to part with legal control

Question 381

Acceptance of the deed is presumed, but if a grantee ____ the deed, the deed is ineffective to pass title

Answer 381

expressly rejects

Question 382

If the grantor retains possession of the deed, it’s presumed that ____

Answer 382

it hasn’t been delivered

Question 383

Conversely, if the grantee has possession of the deed, ___ is presumed

Answer 383

delivery

Question 384

Delivery is presumed if the deed is:

Answer 384

• Handed to the grantee,
• Acknowledged by the grantor in front of a notary, or
• Recorded

Question 385

All types of evidence, including the grantor’s conduct or statements before or after the alleged delivery, are admissible to prove ____.

Outside evidence is not permitted to show that an unconditional deed given directly to a grantee was ____.

Answer 385

the grantor’s intent to pass title

subject to a condition

Question 386

A deed containing a written condition is ____ when delivered.

If the condition is the grantor’s death, the deed creates a ____ in the grantee.

Answer 386

generally valid

future interest (an executory interest)

Question 387

A delivery to a third party with _____ is considered valid delivery.

Answer 387

instructions to deliver the deed to the intended grantee.

Question 388

Whether a delivery to a third party without instructions is a valid delivery often hinges on
whether ____.

Answer 388

that third party is an agent of the grantor or the grantee = a delivery to the grantor’s lawyer is probably not delivery, while delivery to the grantee’s lawyer probably is.

Question 389

Grantor may deliver an executed deed to a third party, known as an escrow agent, with instructions that the deed be delivered to the grantee once ____

Answer 389

certain conditions are met.

Question 390

If anescrow agent is given written instructions, the grantor is ____. But, if the grantor gives the escrow agent oral instructions, the grantor may ____ while it’s still in the agent’s hands, unless there is a written contract of sale

Answer 390

bound by the delivery to the agent; change the instructions and recall the deed

Question 391

If the grantor gives a deed to a third party with instructions to
turn it over to the named donee only when certain conditions occur, is there a valid delivery or can the grantor change her
mind and demand the deed back before the conditions occur?

It depends on the condition. If the condition is something other than ____ the grantor may retrieve it. If that is the condition, the grantor cannot get the deed back because they intended to presently convey a future interest

Answer 391

the grantor’s death (Although a condition that the grantee survive the grantor seems like the same thing as a condition of the grantor’s death, it isn’t)

Question 392

There are three (+1) types of deeds used to convey property interests other than leaseholds

Answer 392

1. The general warranty deed, 2. The special warranty deed, and
2. The quitclaim deed
   +4. Statutory Special Warranty Deed

-> The difference among these deeds is the scope of title assurance

Question 393

Which covenants does a quitclaim deed contain?

Answer 393

It conveys only what the grantor has at the time of the conveyance.

Grantor isn’t even promising that he has title to convey.

This is the worst deed a buyer could hope for.

Question 394

The General Warranty Deed

Answer 394

Warrants against all defects in title, including those attributable to grantor’s predecessors.

Question 395

The general warranty deed typically contains all six of the following covenants

Answer 395

The three present covenants:
1. The covenant of seisin:
2. The covenant of the right to convey:
3. The covenant against encumbrances

The three future covenants:
4. The covenant for quiet enjoyment
5. The covenant of warranty
6. The covenant for further assurances

Question 396

Present covenants means that the covenant is breached, if ever, at the time ____

Answer 396

the deed is delivered.

Question 397

For real estate contracts,
remember that a purchaser is generally presumed to have contracted to accept the land subject to ____ (and therefore such easements do not impair marketability). For deeds, however, remember that most jurisdictions hold that the covenant against encumbrances is breached even if ____

Answer 397

visible easements; the grantee knew of the encumbrance (whether or not it is visible).

Question 398

Covenant of seisin

Answer 398

Grantor owns this estate

Question 399

Covenant of right to convey

Answer 399

They have the power to transfer

Question 400

Covenant against encumbrances

Answer 400

no servitudes or liens on the land

Question 401

A future covenant is not breached, if ever, until ____

Answer 401

the grantee is disturbed in possession (SOL runs at that time)

Question 402

The covenant for quiet enjoyment

Answer 402

Grantor promises that grantee
will not be disturbed in possession by a third party’s lawful claim of title.

Question 403

The covenant of warranty

Answer 403

Grantor promises to defend against reasonable claims of title by a third party and to compensate the grantee for any loss sustained by the claim of superior title.

Question 404

The covenant for further assurances

Answer 404

Grantor promises to do whatever is needed to perfect grantee’s title if it later turns out to be imperfect.

Question 405

The Special Warranty Deed

Answer 405

This deed contains the same covenants as the general warranty deed, but here the grantor makes those promises only on behalf of himself.

Question 406

Statutory Special Warranty Deed - what is it

Answer 406

Many states have 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.

Question 407

Statutory Special Warranty Deed - assurances

Answer 407

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) that the estate is free from encumbrances made by the grantor.

Question 408

Present covenants can’t be enforced by ___ 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 ____

Answer 408

remote; anyone up the line

–> Some
states allow him to recover to the extent of consideration received by
a defendant-covenantor. Other states limit recovery to the lesser of what he paid or what the defendant-covenantor received.

Question 409

A void deed will be set aside by the court even if the property has passed to a bona fide purchaser, but a voidable deed will be set aside only if ____

Answer 409

the property has not passed to a bona fide purchaser.

Question 410

Void deeds include those that are ____

Answer 410

forged, were never delivered, were issued to a nonexistent grantee, or were obtained by fraud in the factum (that is, the grantor was deceived and did not realize that she was executing a deed).

Question 411

Voidable deeds include those executed by ____, and those obtained through ____

Answer 411

minors or incapacitated persons; fraud in the inducement, duress, undue influence, mistake, and breach of fiduciary duty.

Question 412

In a situation in which a joint owner attempts to convey property by forging the signature(s) of the other
owner(s): Such a conveyance would be valid as to the
interest of the owner whose ____ but void as to the
____.

Answer 412

signature is genuine; other owner(s)

-> Thus, if one joint tenant executes a deed for the
entire property with his own signature and the forged signature of the other joint tenant, the conveyance works a severance; the buyer would hold as a tenant in common with the joint tenant whose signature was forged.

Question 413

Even when a deed complies with the required formalities, it may be set aside by the grantor’s CREDITORS if it was made

Answer 413

(1) with 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, and the debtor was insolvent or became insolvent as a result
of the transfer.
–> However, the deed will not be set aside as against any grantee who took in good faith and paid reasonably equivalent value.

Question 414

Most real estate closings require more than the exchange of a deed. They are complex events involving the signing of numerous documents and sometimes last-minute negotiations. These documents include:

Answer 414

1. Closing Disclosure
2. Notification of Defects
3. Environmental Report

Question 415

Residential mortgage lenders must provide a closing disclosure to mortgagors at least ____ prior to closing.

Answer 415

3 business days

Question 416

The residential closing disclosure to mortgagors includes:

Answer 416

(1) principal, interest, and payment amounts (including taxes and insurance);
(2) closing costs;
(3) potential surprises to mortgagors (for example, future changes in interest rates or balloon payments); and
(4) cash required to close.

Question 417

Notification of Defects

Answer 417

A seller of 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.

Question 418

Environmental Report

Answer 418

An owner of real property must generally pay to cure any environmental damage to the property, even if the damage occurred before the owner
owned the property.

As a result, buyers of commercial real estate often ask sellers to guarantee that the property complies with
environmental laws.

Question 419

Sellers want to avoid making these environmental guarantees, and the parties must ultimately negotiate an environmental report, to be signed by both parties at closing, that identifies ____

Answer 419

which environmental guarantees the seller makes.

Question 420

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

Answer 420

(1) donative intent, (2) delivery, and (3) acceptance.

Question 421

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 ___

Answer 421

fails

Question 422

Ademption applies only to ____, which can be satisfied only by the delivery of a particular item, not by money. A gift of land is always a ____

Answer 422

specific bequests; specific devise.

Question 423

If the testator specifically devises property and then sells or gives away a part of that property, only that portion is ____; the remainder_____

Answer 423

adeemed; passes to the devisee.

Question 424

By statute, the ademption doctrine does not apply to the proceeds of a contract for sale of land that was ____ at the time of the testator’s death (that is, the devisee gets the proceeds in place of the land). These statutes take precedence over the equitable conversion doctrine.

Answer 424

executory

Question 425

When property is damaged or destroyed before the testator’s death but the casualty insurance proceeds are not paid until after the testator’s
death, ____ does not usually apply. The ____ takes the insurance proceeds.

Answer 425

ademption; beneficiary of the
specific bequest

Question 426

Similarly, ademption usually does not apply to property condemned by the government where the taking was ____ but the condemnation award was paid ____.

Answer 426

before death; after death

Question 427

In addition, ademption does not apply when the contract is
entered into by the representative of an ____

Answer 427

incompetent testator.

Question 428

At common law and in some states, the devisee of specific property is entitled to have the land “____” by the payment of liens and mortgages from the testator’s ____.

However, a majority of states have statutorily abolished the exoneration doctrine, requiring the will to ____

Answer 428

exonerated; residuary estate.

expressly provide for payoff.

Question 429

A lapse occurs when the beneficiary of a gift in a will ___

Answer 429

dies before the testator.

Question 430

Under the common law, if a lapse occurred, the gift was ___. However, nearly all states now have statutes that prevent lapse by permitting the gift to ____

Answer 430

void; pass to the predeceasing beneficiary’s living descendants under certain circumstances (Others apply to any relative, and still others apply to any beneficiary at all)

Question 431

Many of the anti-lapse statutes apply only when the named beneficiary is a descendant of ___. Others apply if the beneficiary is more ____related, such as a descendant of the testator’s grandparent. Others apply to any ____, and still others apply to any ____ at all.

Answer 431

the testator; remotely; relative; beneficiary

Question 432

The anti-lapse statute does not save the gift for the predeceasing beneficiary’s estate; rather, it substitutes the beneficiary’s descendants for the beneficiary. Thus, property will never pass under the anti-lapse statute to a predeceasing beneficiary’s
____

Answer 432

spouse.

Question 433

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

Answer 433

the issue (descendants or offspring of a deceased class member)

Question 434

The anti-lapse statute does not apply if there is a ____.

Answer 434

contrary will provision (for example, the gift is contingent on the beneficiary’s surviving the testator.)

Question 435

If the estate assets are not sufficient to pay all claims against the estate and satisfy all devises and bequests, the gifts are abated (that is, reduced). Absent a contrary will provision, estates in most
states abate in the following order:

Answer 435

(1) property passing by intestacy,
(2) the residuary estate,
(3) general legacies, and
(4) specific devises
and bequests.

Question 436

To the extent that a will disposes of real property, its validity and effect are determined by the law of the state where ____. With respect to dispositions of personal property, the law of the ____ controls the validity and effect of the will.

Answer 436

the property is located; testator’s domicile at the time of their death

Question 437

Practically any kind of instrument ____ can be recorded, including deeds, mortgages, contracts to convey, or judgments affecting title to property.

Answer 437

affecting an interest in land

Question 438

A subsequent BFP is not protected by the recording acts against interests that arise by ____

Answer 438

operation of law

Question 439

In a race jurisdiction, B wins, if

Answer 439

he records properly before A does

Question 440

In a notice jurisdiction, B wins if he was ____

Answer 440

a BFP when he took, regardless of whether he records before A does. In a notice state, the last BFP to take wins.

Question 441

Types of recording statutes

Answer 441

Race, Notice, Race-Notice

Question 442

In a race-notice jurisdiction, B wins if B

Answer 442

he is a BFP and he records properly before A does.

Question 443

In both a notice and race-notice state, to prevail in a recording system question B must demonstrate that when he took he was a ___

Answer 443

BFP.

Question 444

To be a bona fide purchaser, a grantee must:

Answer 444

• Be a purchaser (or a mortgage lender), not one who received the property by gift, will, or inheritance
• Pay valuable consideration
• Take without notice (actual, constructive, or inquiry) of the prior conveyance

Question 445

The recording statutes protect _____. ____ are not protected because they don’t give value (unless the shelter rule applies).

Answer 445

purchasers; Donees, heirs, and
devisees

Question 446

Two Routine Value Questions in recording issues

Answer 446

1. The bargain basement sale (doesn’t need to be the FMV = doesn’t matter if he got a good deal)
2. The case of the doomed donee: recording statutes do not protect donees, heirs, or devisees unless the shelter rule applies.

Question 447

The notice element for BFP includes

Answer 447

actual, constructive (record), or inquiry notice

Question 448

If another is in possession, B is charged with ____ of
that fact, regardless of whether B actually bothered to inspect or not.

Answer 448

inquiry notice

Question 449

Inquiry notice also means that if a recorded instrument makes reference to ____, grantee is on inquiry notice
of whatever a reasonable follow-up would have revealed.

Answer 449

an unrecorded transaction

Question 450

B is on record notice of A’s deed if, at the time B takes, A’s deed was properly recorded within the ____

Answer 450

chain of title.

Question 451

Although no one has a legal duty to perform a title
search, a subsequent purchaser will be charged with the notice that such a search would provide, whether or not
____

Answer 451

she actually searches.

Question 452

This is language of what type of recording statute: “A conveyance of an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded.”

Answer 452

Race Statute

Question 453

This is language of what type of recording statute: “less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.”

Answer 453

Notice Statute

Question 454

This is language of what type of recording statute: “Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent
purchaser for value, without notice thereof, whose conveyance is first recorded.”

Answer 454

Race-Notice Statute

Question 455

The subsequent purchaser under a notice statute prevails
even if they don’t ____.

Answer 455

record

Question 456

In determining who is a BFP for purposes of protection of
the recording statutes, remember that the purchaser must be without notice at the time of ____

Answer 456

conveyance (It does not matter if she learns of an adverse claim after the conveyance but
before recording)

Question 457

BFP—The Shelter Rule

Answer 457

Anyone who takes from a BFP will prevail against any interest the BFP would have prevailed against

–> This is true even if the grantee had actual notice of a prior unrecorded conveyance.

Question 458

A “wild deed” is a deed that

Answer 458

is recorded but that isn’t connected to the chain
of title.

Question 459

____ doesn’t impart constructive notice because a subsequent purchaser could not feasibly find it.

Answer 459

A wild deed

Question 460

Estoppel by Deed rule

Answer 460

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

Question 461

Exception to estoppel by deed

Answer 461

If the dirty double dealer sells to another BFP after they actually get title = the later BFP will generally win (but analyze based on recording statute in the state)

Question 462

A deed recorded ___ the grantor parts with title through a subsequent deed is not constructive notice in most states

Answer 462

after

Question 463

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 the chain of title of the subject lot. The better view is that they ___

Answer 463

are not.

Question 464

A plaintiff who obtains a money judgment can place a ____ on the defendant’s real property by filing the judgment in the appropriate
county office.

Answer 464

judgment lien

Question 465

Unlike mortgage lenders, who are the same as any other BFP, judgment creditors and lienors ____ protected by the recording acts.

Answer 465

aren’t usually

Question 466

In a mortgage the borrower is called the ____, and the lender is the ____.

Answer 466

mortgagor; mortgagee

Question 467

The mortgage transaction involves two documents

Answer 467

the promissory note (personal obligation) and the mortgage (if the mortgagor quits paying, the land can be sold to pay the mortgage)

Question 468

If the mortgagor quits paying,
in addition to foreclosure, the mortgagee has the option to sue the mortgagor ____ for payment of the note.

Answer 468

personally

Question 469

It is possible for the debtor/notemaker and mortgagor to be _____

Answer 469

different people (for example, if a mother agrees to place a mortgage on her house to secure a loan given to her daughter).

Question 470

There are two primary ways to mortgage Blackacre

Answer 470

the purchase money mortgage and the non-purchase-money mortgage.

Question 471

The purchase-money mortgage is

Answer 471

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

Question 472

The mortgage typically must be in ____

Answer 472

writing to satisfy the Statute of Frauds.

Question 473

Both the mortgagee or the mortgagor ____ transfer their interests

Answer 473

may

Question 474

The creditor-mortgagee can transfer her interest by:

Answer 474

• Indorsing the note and delivering it to the transferee, or
• Executing a separate document of assignment

Question 475

A mortgagee can freely transfer the note, and the mortgage ____ a properly transferred note.

Answer 475

automatically follows

Question 476

When a mortgagor transfers the property, the buyer ____

Answer 476

either assumes the mortgage or takes the property subject to the mortgage

Question 477

If a grantee ____ the mortgage, they’re agreeing
to be personally liable on the mortgage note. If they take the property ____ 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 477

assumes; subject

Question 478

If the grantee signs an assumption agreement, they become

Answer 478

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 the original mortgagor on the debt

Question 479

When transferring land subject to a mortgage if no assumption agreement is signed, the grantee is not personally liable on the loan, and the original mortgagor ____

Answer 479

remains primarily and personally liable.

Question 480

Once a grantee has assumed a mortgage, any modification of the obligation by the grantee and mortgagee _____

Answer 480

discharges the original mortgagor of all liability.

Question 481

Due-on-sale clauses, which appear in most modern mortgages, allow the lender to demand full payment of the loan if the mortgagor ____

Answer 481

transfers any interest in the property without the lender’s consent.

Question 482

Generally, when a mortgagor transfers title to the property, the grantee _____

Answer 482

automatically takes the property subject to the mortgage.

Question 483

For grantees the mortgage remains on the land as long as ____

Answer 483

the mortgage instrument was properly recorded (recording statutes protect mortgagees!)

Question 484

The mortgagee must foreclose by _____. At foreclosure, the land is sold. The sale proceeds go to satisfying the debt.

Answer 484

proper judicial proceeding

Question 485

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

Since the deed in lieu of foreclosure is not an actual foreclosure, it doesn’t operate to terminate _____

Answer 485

any junior liens
that may be present on the mortgaged real estate.

Question 486

What if the proceeds from the sale of Blackacre are less than the amount owed?

Answer 486

1 - First pay out attorney’s fees and foreclosure expenses
2 - Order of mortgages including accrued interest in order of priority (each claimant is entitled to satisfaction IN FULL before any junior creditor may take)
3 - Junior liens are paid off in order of their priority.
4 - Any remaining surplus goes to the debtor.
+ More senior interests to the foreclosed mortgage are unaffected

Question 487

The default rule is that the priority of a mortgage depends on ____

Answer 487

when it was placed on the property

Question 488

After a foreclosure sale all interests ___ to that one remain on the property, and all interests ___ to that one are extinguished.

Answer 488

senior; junior

Question 489

Junior lienholders will be paid in ____ order with the proceeds from the sale, assuming funds are left over after full satisfaction of superior claims

Answer 489

descending

Question 490

Junior lienholders whose interest in the mortgage are extinguished but weren’t fully paid out should be able to proceed for a ____. But once foreclosure of a superior
claim has occurred, with the proceeds distributed appropriately, junior lienholders can no longer ____

Answer 490

deficiency judgment; look to Blackacre for satisfaction.

Question 491

Who are the necessary parties to the foreclosure action?

Answer 491

all junior lien holders + debtor

Question 492

Failure to include a necessary party in a foreclosure proceeding results in ____ of that party’s claim, despite the foreclosure and sale.

Answer 492

the preservation
-> Thus, if a necessary party is not joined, their mortgage will remain on the land.

Question 493

Foreclosure does not affect any interest senior to the mortgage being foreclosed. The buyer at the sale takes subject to such interest.

BUT Is the buyer personally liable on the senior debt?

Answer 493

No = but the property could be foreclosed on

Question 494

As a creditor, you must ___ to get priority in foreclosure

Answer 494

record

Question 495

Exception to first in time first in right rule for mortgages

Answer 495

Purchase money mortgage is a first (super) priority parcel (even if not first in time as long as they record properly)

Question 496

By private agreement, a senior creditor may agree to ____. These Subordination agreements are ____

Answer 496

subordinate its priority to a junior creditor; permissible.

Question 497

Equitable redemption is universally recognized up to the date of ___

Answer 497

sale.

Question 498

Redemption in Equity

Answer 498

At any time prior to the foreclosure sale the debtor has the right to redeem the land by freeing it of the mortgage

Question 499

How is the right of equitable redemption exercised when the note does not contain an acceleration clause?

Answer 499

Making the missed payment + accrued interest + costs

Question 500

How is the right of equitable redemption exercised when the note does contain an acceleration clause?

Answer 500

Need to pay entire amount + accrued interest + costs to exercise right

Question 501

A debtor-mortgagor cannot waive right to redeem in the mortgage itself on ____

Answer 501

THE FRONT END = no clogging the equity of redemption

Question 502

Many states give the mortgagor a ____ to redeem for some fixed period after the foreclosure sale has occurred

Answer 502

statutory right

Question 503

For the statutory right of redemption the amount to be paid is usually the _____

Answer 503

foreclosure sale price, rather than the amount of the original debt.

Question 504

Mortgage Alternatives

Answer 504

• Deed of Trust
• Absolute Deed
• Installment Land Contract
• Equitable Vendor’s Lien

Question 505

Sale leasback (A landowner may sell her property for cash and then lease it back from the purchaser for a long period of time). Like an absolute deed, this may be treated as a ____

Answer 505

disguised mortgage.

Question 506

Deed of Trust

Answer 506

Some states call a security interest in land a deed of trust rather than a mortgage. The debtor/notemaker is the trustor. The trustor gives a deed of trust to a third-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.

Question 507

An absolute deed, if given for security purposes, can be treated by the court as an ____ to be treated as any other
mortgage (that is, creditor must foreclose by judicial action).

Answer 507

“equitable” mortgage

Question 508

An installment purchaser obtains legal title only when ____. Forfeiture clauses, allowing the vendor upon default to cancel the contract, retake possession, and retain all money paid, are common and ____ enforceable.

Answer 508

the full contract price has been paid off; generally

Question 509

Equitable Vendor’s Lien

Answer 509

This 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.

Question 510

The zoning power is based on
the state’s police power and is limited by _____

Answer 510

the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the “no taking without just compensation” clause of the Fifth Amendment

Question 511

Cities and counties can exercise zoning power only if _____

Answer 511

so authorized by a state enabling act

Question 512

Zoning ordinances are generally invalid if ____

Answer 512

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.

Question 513

Variance

Answer 513

Permission to depart from zoning restriction (principal means to achieve flexibility in zoning)

Question 514

What must a proponent of a
variance show?

Answer 514

undue hardship + no diminution to neighbouring property values

–> Usually, a variance will not be granted if the hardship has been created by the applicant themselves.

Question 515

Previously allowed use that violates new zoning ordinance cannot eliminate all at once unless ____

Answer 515

just compensation paid

Question 516

A nonconforming use cannot be ____ in ways that constitute a substantial change, but ____ changes are permitted.

Owners can make ____ to repair their premises and make them practicable for their purposes.

Answer 516

extended or intensified; insubstantial
–> If there is any doubt as to whether a change is substantial or insubstantial, the doubt is resolved against allowing the change.

reasonable changes

Question 517

There are two types of zoning ordinances:

Answer 517

cumulative and noncumulative.

Question 518

A cumulative zoning ordinance creates a ____

Answer 518

hierarchy of uses of land

Question 519

Under a cumulative zoning ordinance, land that is zoned for a particular use may be used for

Answer 519

the stated purpose and anything higher

Question 520

Hierarchy of zoning in cumulative ordinance system

Answer 520

a single-family home the highest use, followed for example by a two-family home (which is a lesser use), and then an apartment building (an even lesser use), and then a strip mall (even lesser), and then a factory (even lesser).

Question 521

Under a noncumulative zoning ordinance, land may be used ____

Answer 521

only for the purpose for which it is zoned.

Question 522

A ___ permit is one that must be obtained even though the zoning is proper for the intended use. It is often required for ___

Answer 522

special use; hospitals,
funeral homes, drive-in businesses, and so on.

Question 523

In a condominium, each owner owns the ____ plus an undivided interest in the ____.

Answer 523

interior of their individual
unit; exterior and common elements

Question 524

condominium unit ownership is treated as ____

Answer 524

fee ownership

Question 525

The owner of each condominium is a member of the ____. The members vote to elect a ____, which manages the property.

Answer 525

homeowners’ association (HOA); board

Question 526

What does the HOA oversee?

Answer 526

• the common elements
• enforce/run the governing rules

Question 527

Each condominium unit owner must pay:

Answer 527

• regular (for example,
  monthly) dues to the HOA to manage common elements
• if monthly fees are not enough = one time fees can be due (special assessment)

Question 528

In a ____, title to the land and buildings is held by a corporation that leases individual apartments to its shareholders.

Answer 528

cooperative

Question 529

A cooperative because of
their economic interdependence and because the individual owners
are regarded as tenants, a direct restraint on the alienation of an individual interest is ____

Answer 529

valid.

Question 530

An owner of real property has the exclusive right to use and possess the

Answer 530

surface, the airspace, and the soil of the property.

Question 531

Ownership of land includes the right to have the land supported in its ____ by adjoining land.

Answer 531

natural state

Question 532

A landowner is ____ if their excavation causes adjacent land in its natural state to subside (meaning, slip or cave in).

Answer 532

strictly liable

Question 533

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 ____. However, strict liability will apply to the defendant excavator’s actions if the plaintiff shows that, because of the defendant’s
actions, the plaintiff’s improved land would ____

Answer 533

negligent; have collapsed even in its natural state.

Question 535

An underground occupant of land (for example, a mining company) must support the ____. Liability for subsequently erected buildings requires ___

Answer 535

surface and buildings existing on the date the subjacent estate was created; negligence.

Question 536

For water rights different rules apply to ____

Answer 536

watercourses, groundwater, and surface
waters.

Question 537

There are two major systems for determining allocation of water in watercourses: ____. A boundary line also can be affected by ____

Answer 537

the riparian doctrine and the prior appropriation doctrine; accretion or avulsion.

Question 538

Riparian doctrine

Answer 538

the water belongs to those who own the land bordering the watercourse.

Question 539

Riparian rights attach to ____ as long as one of the tracts abuts the water. Riparian owners can use water only in connection with the ___

Answer 539

all contiguous tracts held by the same owner; riparian parcel.

Question 540

Natural Flow Theory (re: Riparian doctrine)

Answer 540

Under this theory, a riparian owner’s use is enjoinable if it results in substantial or material diminution of the water’s quantity, quality, or velocity.

Question 541

Reasonable Use Theory (re: Riparian doctrine)

Answer 541

Under this theory, which is the most common, all riparians share the right of “reasonable use” of the water (that is, one owner’s use is not enjoinable unless it substantially interferes with the use of other riparian owners).

Question 542

In determining “reasonable” use of Riparian rights, courts balance the utility of the owner’s use against the gravity of the harm. Six factors are helpful in making this determination:

Answer 542

alteration of flow, purpose of use, pollution, extent of use, destination of water taken, and miscellaneous conduct that may give rise to litigation.

Question 543

Natural vs. Artificial Use (re: Riparian doctrine)

Answer 543

Under either theory, natural uses (human uses, for example, consumption, gardening) prevail over artificial uses (for example
irrigation, manufacturing).

Question 544

Prior Appropriation Doctrine

Answer 544

The water initially belongs to the state, but the right to divert it and use it can be acquired by an individual through their actual use, regardless of whether or not they happen to be a riparian owner.

Question 545

Appropriative rights are determined by priority of ____

Answer 545

beneficial use (The norm for allocation is first in time, first in right.)

Note that an appropriative right can be lost by abandonment.

Question 546

Groundwater is water beneath the surface of the earth that isn’t confined to a known channel. Four doctrines determine rights in groundwater (+ one more)

Answer 546

1. Absolute Ownership Doctrine
2. Reasonable Use Doctrine
3. Correlative Rights Doctrine
4. Appropriative Rights Doctrine
5. Restatement Approach

Question 547

Absolute Ownership Doctrine

Answer 547

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

Question 548

Reasonable Use Doctrine

Answer 548

It is like absolute ownership,
but exporting is allowed only if it does not harm other owners who have rights in the same aquifer.

Question 549

Correlative Rights Doctrine

Answer 549

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

Question 550

Appropriative Rights Doctrine

Answer 550

Priority of use (not ownership of overlying land) is determinative.

Question 551

Restatement Approach to ground water

Answer 551

A surface owner may pump groundwater unless it (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.

Question 552

Surface water is water ___

Answer 552

without a channel that passes over land, such as water coming from rain, springs, or melting snow, which has not yet reached a natural watercourse or basin.

Question 553

A landowner can use surface water within their boundaries for ____

Answer 553

any purpose they desire

Question 554

Questions on surface water usually concern liability for changing natural flow by dikes, drains, and so on. Liability depends on which theory the state follows, theories include:

Answer 554

1. Natural Flow Theory
2. Common Enemy Theory
3. Reasonable Use Theory

Question 555

Natural Flow Theory of surface water

Answer 555

owners cannot alter natural drainage patterns. This rule has been “softened” in most states to allow “reasonable changes.”

Question 556

Common Enemy Theory of surface water

Answer 556

an owner can take any
protective measures to get rid of the water or combat its flow (for example, dikes or drainage changes). The rule has been modified by many courts to prohibit unnecessary damage to others’ lands.

Question 557

Reasonable Use Theory of surface water

Answer 557

involves balancing the utility of the use against the gravity of the harm.

Question 558

The above theories apply to redirecting surface water. A landowner can ____ as much surface water as they wish.

Answer 558

capture

Question 559

Owners below have no cause of action for diversion of surface water unless the diversion was ____

Answer 559

malicious.

Question 560

The right to airspace above a parcel is not exclusive, but the owner is entitled to ____

Answer 560

freedom from excessive noise.

Question 561

The possessor of real property has the right to exclude others. Their remedies for invasions include actions for:

Answer 561

1. Trespass
2. Private nuisance
   c. Continuing trespass ;
   and
   d. Ejectment or unlawful detainer + This action can be joined with a demand for money damages.

Question 562

Trespass

Answer 562

Land invaded by tangible physical object

Question 563

Private nuisance

Answer 563

land invaded by intangibles such as odors or noise

Question 564

Continuing trespass

Answer 564

Land repeatedly invaded by trespasser

Question 565

Ejectment or unlawful detainer

Answer 565

to remove a trespasser or tenant.

+ This action can be joined with a demand for money damages.