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Rocking the Bar Exam > Real Property > Flashcards

Real Property Flashcards

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1
Q

ownership

what are the ways to transfer a property?

A
  1. sale
  2. gift
  3. devise (will)
  4. intestate succession (dies without will)
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2
Q

ownership

when is a gift in a will effective?

A

when decedent dies

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3
Q

ownership

how do you divide up ownership interests in time?

A

present interests + future interests

key distinction is timing of the possession

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4
Q

ownership / present estates

what are the types of present estate interests?

A
  • fee simple absolute
  • fee simple determinable (defeasible)
  • fee simple subject to a condition subsequent (defeasible)
  • fee simple subject to an executory interest (defeasible)
  • life estate

defeasible = may be terminated by the occurrence of an event, can last forever or terminate early

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5
Q

magic words - what type of interest is this?

” and her heirs”

A

fee simple absolute

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6
Q

magic words - what type of interest is this?

O conveys to CK while she uses it as a garden

A

fee simple determinable

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7
Q

magic words - what type of interest is this?

O conveys to CK, but if the land no longer is a garden, O may re-enter and re-take the property.

A

fee simple subject to condition subsequent

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8
Q

what is the default present estate?

A

fee simple absolute

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9
Q

ownership / present estates

fee simple absolute

A
  • capable of lasting forever, no associated future interest
  • inheritable
  • transferable
  • “my hope and wish” are not enough to show intent of FSA
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10
Q

ownership / present estates

fee simple determinable

A
  • limited by durational language
  • “so long as”
  • “while”
  • “during”
  • “until it is no longer used as a basil garden”

determinable = durational

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11
Q

ownership / present estates

fee simple subject to condition subsequent

A
  • limited by specific conditional language
  • grantor must exercise a right in order to take possession (grantor holds)
  • “but if”
  • “provided that”
  • “on the condition that”

if 3p has the future interest (not the grantor), then it’s FS subj to EI

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12
Q

ownership / future interests

what are the types of future interests?

A
  • possibility of reverter (defeasible fees)
  • right of entry (defeasible fees)
  • reversion
  • remainder
  • executory interest
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13
Q

ownership / future interests

possibility of reverter

A
  • future interest is held by grantor after fee simple determinable
  • interest vests automatically after durational period
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14
Q

ownership / future interests

executory interest

A
  • future interest that will terminate (divest) an earlier interest
  • future interest is held by 3p following fee simple determinable

two types
* springing EI - divests the grantor
* shifting EI - divests a prior grantee

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15
Q

ownership / future interests

right of entry

A
  • future interest held by the grantor following fee simple subject to condition subsequent
  • doesn’t vest automatically, must be reclaimed

also called power of termination

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16
Q

ownership / future interests

fee simple subject to executory interest

A
  • future interest is held by a transferee (3p) not grantor
  • ends upon happening of an event + future interest vests in 3p
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17
Q

ownership / present estate

life estate

A
  • possession by a life
  • look for “for life”
  • if ambiguous, look at grantor’s intent to create an estate that will end upon the death of the measuring life
  • ends naturally when measuring life ends
  • transferable (but still focus on measuring life)
  • can’t pass the property by will
  • no intestate succession
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18
Q

ownership / future interests

reversion

A

if possession goes back to grantor after life estate ends, grantor retains a reversion

if contingent remainder doesn’t vest becomes it becomes possessory, grantor has a reversion

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19
Q

ownership / future interests

remainder

A
  • if possession goes back to a 3p after life estate ends, 3p has a reminder
  • no reminder after vested fee simple
  • can be vested or contingent (two types)
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20
Q

ownership

Doctrine of Waste

A
  • more than one party has an interest in the same piece of property
  • affirmative waste - waste caused by voluntary conduct which causes a decrease in value
  • permissive waste - waste caused by neglect of property which causes decrease in value
  • ameliorative waste - person in possession changes use of property and increases its value (ex. renovation, construction of dam, fixing a fence)

key situations:

  • landlord / tenant
  • co tenant out of possession / tenant in possession (concurrent state)
  • mortgagee / mortgagor
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21
Q

tip

How do you spot a waste problem?

A
  1. do multiple parties have simultaneous interests?
  2. is there a change in value of the property due to actions/inactions of the party in possession?
  3. will the waste substantially change the interest taken but the party out of possession?
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22
Q

ownership / future interests

vested remainder vs. contingent remainder

A

interest that is
1. given to an ascertained grantee (you can ID them) AND
2. not subject to a condition precedent

if 1 + 2 met, vested remainder
if fails, contingent remainder

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23
Q

ownership / future interests

vested remainder subject to open

A
  • class gift
  • full class membership is unknown
  • at least one person in the class must be vested for it to be vested subject to open; if not, contingent remainder
  • class closes when all members of the class are identified
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24
Q

ownership / future interests + RAP

Rule of Convenience

A

way to close a class to avoid application of RAP to a class gift

if no express closing date, this rule closes the class when any member of the class becomes entitled to immediate possession

interpretative rule

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25
Q

ownership / future interests

Doctrine of Worthier Title

A

prevents remainders in a grantor’s heirs
creates a presumption of a reversion to the grantor
rebuttable by showing of contrary interest

A conveys “to B for life, remainder to A’s heirs.”
With Doctrine: B has life estate, A has reversion (unless contrary intent is established)
W/o Doctrine: B has life estate, A’s heirs have contingent remainder

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26
Q

ownership / future interests

Rule of Shelley’s Case

A

prevents reminders in a grantee’s heirs
uses doctrine of merger to create a fee simple
changes the remainder of heirs from fee simple absolute to contingent remainder

A conveys “to B for life, remainder to B’s heirs.”
With Shelley’s Case: B has life estate, heirs have FSA
Without: B has life estate, heirs have contingent remainder

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27
Q

tip

what’s an easy (not perfect) way to tell if springing or shifting executory interest?

A

two parties (grantor + grantee) –> likely springing b/c grantee will divest the grantor

three parties (grantor + two grantees) –> likely shifting b/c a grantee will divest another grantee

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28
Q

RAP

what is the context for RAP?

A
  • prevents remote vesting
  • testing for certainty
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29
Q

inter vivios transfer

A

interests created at time of the grant

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30
Q

devise

A

will

interests created at testator’s death NOT when will is drafted

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31
Q

RAP

what are the steps to a RAP analysis?

A
  1. when - ID when interests are created
    inter vivos - time of transfer
    devise - testator’s death
  2. what - are the interests subject to RAP; RAP applies to these
    contingent remainders
    executory interests
    class gifts subject to open (only vested remainders subject to open not closed ones)
  3. who - ID relevant and validating lives
    validating lives - look at whether interest vests within lifetime + 21 years
    if no validating life, interest is bad so get to stick
    if validating life, interest is okay
  4. strike out the violating interest as if it was never created
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32
Q

relevant life

A

person who affects vesting, usually mentioned or implied by the grant

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33
Q

validating life

A

person who tells us whether or not the interest vests within the perpetuities period (lifetime + 21 years)
must have been alive when interests were created
can validate her own interest

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34
Q

RAP

what is the special rule for RAP and class gifts?

A

if gift to any member of the class is void under RAP, THEN the gift is void to all members of the class

all or nothing rule

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35
Q

RAP

what are exceptions to the class gift rule

A

all or nothing doesn’t apply

  • transfers of a specific dollar amount to each class member
  • transfers to a subclass that vests at a specific time
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36
Q

RAP

exceptions to RAP

A
  1. charities - doesn’t apply to a gift from one charity to another charity
  2. options - doesn’t apply to option held by a current tenant to purchase a fee interest in a leasehold property
  3. options - doesn’t apply to option or right of first refusal in a commercial transaction
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37
Q

RAP

what is the modern approach to traditional RAP?

A
  • Uniform Statutory Rule Against Perpetuities
  • wait and see approach
  • wait and see if an interest is subject to RAP within the perpetuities period
  • some states use vesting period of 90 years
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38
Q

cy pres

A

equitable doctrine that allows a court to reform a transfer to avoid RAP

trusts

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39
Q

concurrent estates

what are concurrent estates - definition + basic rule

A

ownership or possession of real property by 2+ people simultaneously

concurrent owners each have right to use/possess the entire property

BUT can contract out of the basic rule

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40
Q

concurrent estates

types of concurrent estates / concurrent ownership

which one is the default?

A
  1. tenancy in common (default)
  2. joint tenancy
  3. tenancy by the entirety
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41
Q

concurrent estates / tenancy in common

tenancy in common

A
  • default
  • concurrent owners have separate but undivided interests in the property
  • no right of survivorship
  • each co-tenant can transfer the property freely during life or at death
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42
Q

concurrent estates / joint tenancy

joint tenancy - definition / key characteristic

A

right of survivorship - surviving joint tenant(s) automatically take the deceased tenant’s interest

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43
Q

concurrent estates / joint tenancy

how do you create a joint tenancy?

A
  1. grantor must make clear expression of intent AND
  2. must be survivorship language (“as joint tenants with a right of survivorship”)
  3. four unities
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44
Q

concurrent estates / joint tenancy

what are the four unites?

A

PITT

  1. possession - each JT has an equal right to possess the whole of the property
  2. interest - JTs must have an equal share of the same type of interest
  3. time - must receive their interests at the same time
  4. title - must receive their interests in the same instrument of title
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45
Q

concurrent estates / joint tenancy

how do you sever a joint tenancy?

A
  • if one of the four unities is lost, JT is severed and becomes tenancy in common
  • inter vivos transfers - transfer during life will sever the right of survivorship and convert to tenancy in common
  • mortgages (see other flashcard)
  • leases (see other flashcard)
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46
Q

concurrent estates / joint tenancy

does a lien against a joint tenant’s interest sever the joint tenancy?

A

no b/c the lien terminates upon tenant’s death so surviving tenants’ interests are not encumbered

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47
Q

concurrent estates / joint tenancy

does a mortgage sever a joint tenancy?

JT grants a mortgage interest in the JT to a creditor

A

majority: lien theory –> mortgage is treated as a lien, doesn’t destroy JT

minority: title theory –> mortgage severs title, tenancy b/c JT and creditor is converted to tenancy in common

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48
Q

concurrent estates / joint tenancy

does a lease sever a joint tenancy?

JT leases her share in the property to a tenant

A

some juris: lease severs the JT

other juris: treat the lease as temporary suspension of JT

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49
Q

concurrent estates / tenancy by the entirety

tenancy by the entirety

A
  • JT b/t married people (marriage is the fifth unity)
  • right of survivorship
  • can’t alienate or encumber their shares without consent of spouse
  • need clear expression like “as tenants by the entity, with a right of survivorship”
  • if grant is ambiguous, cts presume it’s JT or tenancy in common
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50
Q

concurrent estates / rights and obligations

what is the tenant’s right to possess the property?

A

each co-tenant has right to possess all of the property, regardless of their share and type of co-tenancy

EXCEPT if co-tenants entered into an agreement to contrary

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51
Q

concurrent estates / rights and obligations

what is ouster?

A

co-tenant in possession denies another co-tenant access to the property

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52
Q

concurrent estates / rights and obligations

what remedies are available for ouster? (for the ousted tenant)

A
  • injunction granting access to the property
  • recover damages for value of use while they were unable to access the property
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53
Q

concurrent estates / rights and obligations

how is rent from a 3p divided?

A

subtract operating expenses

divided based on ownership interests of each co-tenant

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54
Q

concurrent estates / rights and obligations

how are operating expenses divided?

A

necessary charges are divided based on ownership interests

can collect contribution from other co-tenants for payments in excess of their share

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55
Q

concurrent estates / rights and obligations

how are the costs of repairs and improvements divided?

A

no right to reimbursement for necessary repairs or improvements

BUT can get credit in a partition action

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56
Q

concurrent estates / rights and obligations

what is partition? what type of holders is it available to?

A
  • equitable remedy
  • available to tenancy in common OR joint tenancy (NOT tenancy by the entirety)
  • unilateral right
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57
Q

concurrent estates / rights and obligations

what is the effect of partition?

A

court will divide the property into distinct portions

  1. physical partition / partition in kind (preferred)
  2. partition by sale - if physical partition is not practical OR not fair to all parties
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58
Q

concurrent estates / rights and obligations

how are the proceeds from a partition divided?

A

divided among co-tenants based on ownership interests

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59
Q

concurrent estates / rights and obligations

can you agree not to partition a property?

A

yes, can agree not to partition

it is enforceable IF (1) agreement is clear AND (2) time limitation is reasonable

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60
Q

discrimination / FHA

Fair Housing Act (FHA)

A

FHA prohibits discrimination in the sale, rental, and financing of dwellings
prohibits advertising that states a discriminatory purpose

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61
Q

discrimination / FHA

what is covered and not covered by FHA?

(types of housing)

A
  • includes multi-family residential housing

exemptions:

  • single-family housing without a broker
  • owner-occupied buildings with 4 or fewer living units
  • religious organizations and private clubs
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62
Q

discrimination / FHA

what traits are protected?

A
  • race, color, religion, national origin, sex (sexual orientation + gender identity), disability, familial status
  • families with children under 18 + pregnant

special exemptions for senior living

reasonable accommodations for people with disabilities

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63
Q

discrimination / FHA

what actions are prohibited?

A
  • refusing to rent, sell, or finance a dwelling
  • requiring different rents
  • falsely denying that a unit is available
  • providing different services to facilities (except making reasonable accommodations for disability)
  • stating a discriminatory preference in an ad (doesn’t apply to single-fam w/o broker + boarding house unless shared living areas and restriction is sex-based)
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64
Q

discrimination / FHA

what intent is required?

A

disparate treatment (intent) + disparate impact (effect)

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65
Q

discrimination / FHA

what causation is required?

A

prohibited behavior must be linked to the protected basis

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66
Q

conflict of laws

for property, what is the controlling law (baseline rule)?

A

based upon where the property is located (law of the situs)

applies to these cases:

  • foreclosure
  • land contract dispute
  • equitable interests
  • intestate succession
  • interpretating conveyances
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67
Q

conflict of laws

what are the exceptions to the baseline rule (law of situs)?

A
  • choice of law provision
  • cases involving marriage, especially classifying property as marital or separate –> domicile of party may override law of the situs
  • mortgages: mortgage docs may require repayment to be made in another state
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68
Q

landlord + tenant

what does a lease create?

A

contract interest + property interest

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69
Q

landlord + tenant / tenancies

what are the four tenancies that govern the landlord-tenant relationship?

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

how is each created? how is each terminated?

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70
Q

landlord + tenant / tenancies

tenancy in years

A
  • measured by a fixed and ascertainable amount of time
  • created by agreement by landlord and tenant
  • need to demonstrate intent to create the leasehold
  • if longer than 1 year, needs to be in writing (SOF)
  • automatically ends at expiration of term (no notice require)
  • can end early if tenant surrenders the lease OR if tenant or landlord commits a material breach
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71
Q

landlord + tenant / tenancies

periodic tenancy

A
  • estate that is repetitive and ongoing for a set period of time
  • renews automatically at end of each period until one party gives proper notice of termination
  • must intend to create this
  • intent can be express (signed lease) or implied (payment of rent)
  • old approach to termination: must give 6 month notice for year-to-year lease
  • new approach to termination: shorter notice requirements
  • proper notice = gives notice before start of last term (generally written)
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72
Q

landlord + tenant / tenancies

tenancy at will

A
  • may be terminated by either landlord or tenant at any time for any reason
  • created by express agreement or implication
  • can be terminated by either party without notice
  • if agreement gives ONLY landlord right to terminate at will, tenant gets right too by implication
  • if agreement gives ONLY tenant right to terminate, landlord does NOT get the right too
  • terminates at death of landlord or tenant
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73
Q

landlord + tenant / tenancies

what is the only tenancy that ends automatically when landlord or tenant dies?

A

tenancy at will

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74
Q

landlord + tenant / tenancies

tenancy at sufferance

A
  • created when tenant holds over after lease ends
  • temporary tenancy exists before landlord evicts the prior tenant OR re-rents the property to the tenant (creates a new tenancy with holdover tenant)
  • tenant owes landlord reasonable value of their daily use + reasonably foreseeable special damages
  • created by actions of tenant alone
  • termination if (1) tenant voluntarily leaves, (2) landlord evicts tenant, or (3) landlord re-rents to tenant
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75
Q

landlord + tenant / tenant duties

what are the tenant’s two basic duties?

A
  1. pay rent
  2. avoid waste
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76
Q

landlord + tenant / tenant duties

in what situations is the duty to pay rent suspended?

A
  1. premises are damages (as long as tenant didn’t cause the damage)
  2. landlord completely or partially evicts the tenant
  3. landlord materially breaches the lease

partial eviction is when they’re removed from part of the property

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77
Q

landlord + tenant / tenant duties

implied covenant of quiet enjoyment

A

tenant can withhold rent when landlord takes actions that makes the premises wholly or substantially unstable for their intended purposes + tenant is constructively evicted

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78
Q

landlord + tenant / tenant duties

constructive eviction

A
  1. premises were unstable for their intended purposes (breach of covenant of quiet enjoyment)
  2. tenant notifies landlord of the problem
  3. landlord doesn’t correct the problem AND
  4. tenant vacates the premises after a reasonable amount of time has passed
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79
Q

landlord + tenant / tenant duties

implied warranty of habitability

A
  • landlord has an obligation to maintain the property such that it is suitable for residential use
  • conditions that threaten tenant’s heath and safety
  • can’t waive
  • residential only, not commercial
  • if premises are not habitable, tenant may (1) refuse to pay rent, (2) remedy the defect and deduct costs from rent, or (3) defend against eviction
  • can use offensively or defensively
  • does not require tenant to move out
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80
Q

landlord + tenant / tenant duties

what is the major different between implied warranty of habitability vs. quiet enjoyment and constructive eviction?

A

habitability does NOT require tenant to move out

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81
Q

landlord + tenant / tenant duties

duty to avoid waste

A
  • background rule, doesn’t need to be expressed in lease
  • tenant has duty not to commit affirmative (voluntary) or permissive (neglectful) waste
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82
Q

landlord + tenant / tenant duties

duty to repair

A

in residential lease: landlord is presumed to be responsible for repairs

tenant must notify landlord of any needed repairs

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83
Q

landlord + tenant / landlord duties

duty to mitigate damages

A

if tenant abandons property early or is evicted, does the landlord have an obligation to mitigate damages by re-renting the property?

majority rule:

  • landlord must make reasonable efforts to re-rent the property
  • must treat property as if it were vacant stock
  • tenant is relieved from obligation to continue paying rent if landlord doesn’t make diligent efforts to mitigate
  • landlord gets different between original rent vs. rent received from replacement tenant

minority rule:

  • landlord doesn’t have to mitigate damages
  • more common in commercial leases
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84
Q

landlord + tenant / landlord duties

how can the landlord deal with a holdover tenant?

A
  • evict them
  • continue the relationship by treating them as a periodic tenant (accept rent)

rent is amount under old lease UNLESS landlord notified tenant of increased rent before expiration of old lease

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85
Q

landlord + tenant / landlord duties

duty to deliver possession

A

majority:
landlord must deliver actual (physical) possession of leasehold premises

minority:
landlord is only required to deliver legal possession (right of possession)

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86
Q

landlord + tenant / landlord duties

how does quiet enjoyment apply?

A

landlord can’t deny the tenant quiet enjoyment –> violated when landlord (or agent) renders the premises unstable for intended purpose

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87
Q

landlord + tenant / landlord duties

what does the landlord control on the leased premises?

A

common areas and nuisance-like behaviors of other tenants

does NOT control

  • off-premises actions of 3p beyond landlord’s control
  • in residential lease, landlord must provide habitable premises

can’t retaliate by evicting tenant if tenant complains

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88
Q

landlord + tenant / tort liability

what duty does the tenant owe?

A

duty of care

extends to invitees, licensees, and foreseeable trespassers

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89
Q

landlord + tenant / tort liability

who does landlord owe duty to?

A

liability to invitees, licensees, and foreseeable trespassers

common law:
responsible for negligent for latent (hidden) defects in which tenant hasn’t been warned
responsible for faulty repairs completed by landlord negligently
responsible for negligence that causes injuries in common areas (NOT inside your apt)

modern trend:
landlords have general duty of reasonable care

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90
Q

tip

if conveyance is ambiguous, discuss fee simple determinable + fee simple subject to condition subsequent

A

:)

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91
Q

landlord and tenant / subleases and assignments

what is an assignment

A

complete transfer of the tenant’s remaining term

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92
Q

landlord and tenant / subleases and assignments

what is a sublease

A

transfer for less than the entire duration of the lease

tenant retains a reversionary interest in the leasehold

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93
Q

landlord and tenant / subleases and assignments

in an assignment, who can landlord collect rent from?

A

tenant (b/c of privity of contract) OR subsequent tenant (b/c of privity of estate)

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94
Q

landlord and tenant / subleases and assignments

in a sublease, who can the landlord collect rent from?

A

only the tenant (they have privity of contract + privity of estate)

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95
Q

landlord and tenant / subleases and assignments

if a lease is silent on assignment and subleases, what is the default rule?

A

may assign or sublet freely

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96
Q

landlord and tenant / subleases and assignments

if lease requires landlord’s permission to transfer but doesn’t provide a standard, what is the default standard?

A

majority: landlord may deny only for a commercially reasonable reason

minority: landlord may deny at their discretion, reason isn’t required

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97
Q

land sale contracts

what are the two stages of land sale contracts?

A
  1. contract stage - negotiate terms
  2. deed stage - transfer property

covenants under contract are merged into the deed and any remedy flows from the deed

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98
Q

land sale contracts

what is liability based on in the two stages?

A
  1. contract sage - any liability must be based on a contract provision
  2. deed stage - . . . deed warranty
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99
Q

land sale contracts

what is the statute of frauds for land sale contracts?

A

they are subject to SOF

  1. must be in writing
  2. must be signed by party to be charged
  3. must include essential terms - parties (seller + buyer), description of the property, price and payment info
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100
Q

land sale contracts

what are the two main exceptions to SOF?

A
  1. part performance by either buyer or seller
    basically need 2/3
    (a) payment of all or part of purchase price
    (b) possession by purchaser
    (c) improvements by purchaser
  2. detrimental reliance / estoppel
    party has reasonably relied on the contract and would suffer hardship if the contract were not enforced
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101
Q

tip

“FP orally agrees to purchase CK’s home for $1.6mm”

what is this a flag for?

A

SOF for land sale contracts

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102
Q

land sale contracts

what does every land sale contract include?

A

implied covenant of marketable title

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103
Q

land sale contracts

what is the implied covenant of marketable title?

A

marketable title –> title is free from an unreasonable risk of litigation

  • title acquired by adverse possession that hasn’t been quieted
  • private encumbrances (mortgage, convent, easement)
  • violation of zoning ordinance

applies to quit claim deeds too (PQs Set 1)

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104
Q

land sale contracts

when does a defect in the marketable title need to be cured by?

A

needs to be cured or fixed before closing

closing is when deed and contract merge and deed controls

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105
Q

land sale contracts

what is the standard to determine whether title is unmarketable? what is the remedy?

A

standard is of a reasonable buyer

if seller cant’ deliver marketable title, buyer’s ready is rescission of the contract

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106
Q

land sale contracts

what is the basic rule for delays?

A

unless the contact or parties notify, time is NOT of the essence (rip)

failure to close on the closing date may be a breach, but NOT grounds for rescission
specific performance is still available

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107
Q

land sale contracts

implied warranty of fitness or suitability

A

applies to defects in new construction

most jurisdictions: both initial homeowner/purchaser and subsequent purchasers may recover damages
minority: only OG buyer can enforce

suit must be brought within reasonable time after discovery of the defect

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108
Q

land sale contracts

duty to disclose defects

A

duty on the seller to disclose to the buyer all known, physical and material defects

materially defect must substantially affect the value of the home, health and safety of occupants, or desirability

general disclaimers (“as is”) don’t satisfy seller’s duty

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109
Q

land sale contracts

seller’s remedy if buyer breaches

A
  • damages - difference b/t contract price and market price
  • rescission - seller can sell to someone else
  • specific performance
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110
Q

land sale contracts

buyer’s remedy if seller breaches

A
  • damages - difference b/t contract price and market price on date of breach
  • if seller breaches and acted in good faith, can only recover out of pocket expenses
  • rescission - return payments to buyer and cancel contract
  • specific performance
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111
Q

land sale contracts

who bears the risk of loss if there is damage to or destruction of the property?

A

majority:
buyer holds equitable title b/t execution of contract and closing/delivery of deed
buyer is responsible for damage during that period
seller has right to possess the property (they hold legal title)

minority:
risk of loss on seller until closing and delivery of deed

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112
Q

adverse possession

what are the basic rationales for adverse possession?

A
  • punish true owner for sleeping on their rights
  • reward adverse possessor for earring good title

when they get the property via AP, new title relates back to date of the person’s entry on the property
property owned by govt can’t be AP

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113
Q

adverse possession

elements of adverse possession

A

OCEAN
1. O pen
2. C ontinous
3. E xclusive
4. A ctual
5. N on-permissive (hostile)

114
Q

adverse possession

what are the stages of adverse possession?

A
  1. entry phase - AP enters the land, triggers cause of action
  2. end phase - SOL runs out so AP is now the legal owner
  3. middle - AP makes use of the property
115
Q

adverse possession

what is required for (2) continuous?

A
  • seasonal or infrequent use may be okay if use is consistent with type of property being possessed
  • tacking - can tack on predecessor’s time on the property to meet SOL; current AP must be in privity with prior AP
  • SOL will not run against a true owner who has a disability at the time AP begins
  • true owner can eject AP (stops the clock)
116
Q

adverse possession

what is required for (1) open?

A

use would put a reasonable true owner on notice of AP
can’t be hidden
must use property as if they were the true owner

117
Q

adverse possession

what is required for (5) non-permissive (hostile)?

A

possession must be adverse to owner’s interest

three frameworks
1. majority: ignores AP’s state of mind
2. minority / good faith: AP’s claim is hostile if they think land is unowned or that they are the rightful owner, based on a mistake
3. minority / bad faith: AP knows the land is not theirs and try to acquire title by AP, based on aggressive trespass

118
Q

adverse possession

what is required for (3) exclusive?

A

can’t share possession with true owner

if multiple people possess together via AP, can acquire title and become tenants in common

119
Q

adverse possession

what is the scope of AP?

A

generally traces legal boundaries of the property, including subsurface rights (unless those belong to 3p)

easements can be acquired by AP

EXCEPTION: constructive AP - AP enters under color of title from an invalid instrument and occupies a portion of the property described in the instrument; in actual possession of the occupied land and gets constructive possession for the rest of the land on the deed

120
Q

deeds

what is a deed? what is needed for it to be valid?

A

legal instrument that transfers ownership of real property

  1. must be delivered (includes intent)
  2. must be accepted
121
Q

deeds

what is required for delivery?

A
  • whether the grantor had the present intent to transfer the property
  • physical transfer is NOT required
122
Q

tip

what to look for with deeds

A

whether delivery is incomplete or seemingly revocable

123
Q

deeds

what is required for acceptance?

A

presumed if the transfer is for value

124
Q

deeds

what is required for the contents of a deed?

A

PTSD
1. parties identitifed (grantor + grantee)
2. transfer (words of transfer - any words that evdience a present intent to transfer)
3. signed by grantor (SOF)
4. description of the property (doesn’t need to be a legal description, just sufficient)

125
Q

deeds

what is required for execution of a deed?

A
  • only grantor needs to sign
  • doesn’t need to be witnessed or notarized
  • deed is void if signature is forged (even if bona fide purchaser)
  • equal dignities rule: if agent is required to sign, then agency relationship must be created in writing
126
Q

deeds

when is a deed valid?

A

at delivery

127
Q

deeds

what is the common law recording rule?

A

deed does not have to be recorded to be valid

first in time, first in right principle

this rule controls if state doesn’t have their own recording statute

128
Q

recording acts

what interests are covered in recording acts?

A
  • deeds
  • mortgages
  • leases
  • options
  • judgments affecting title
  • other instruments creating an interest in land (easements, convent)
  • NOT title by adverse possession
129
Q

recording acts

who is covered/not covered by recording acts?

A
  • subsequent purchasers (someone who has acquired an interest in land)
  • NOT grantees who acquire title by gift, intestacy, device

protecting those with economic investments

130
Q

recording acts

what are the three kinds of notice?

A
  1. actual - subsequent grantee has real, personal knowledge of a prior incident
  2. constructive - recorded
  3. inquiry - reasonable investigation would have disclosed existence of prior claims

inquiry notice ex. –> dude on the land, mentioned interest

131
Q

recording acts

“first recorded”

what type of recording statute is this?

A

race

132
Q

recording acts

“first recorded”

what type of recording statute is this?

A

race

133
Q

recording acts

“in good faith”

what type of recording statute is this?

A

notice

134
Q

recording acts

“without notice”

what type of recording statute is this?

A

notice

135
Q

recording acts

“in good faith and first duly recorded”

what type of recording statute is this?

A

race-notice

136
Q

recording acts

notice statute

A

subsequent purchaser wins if they acquired without notice of prior, unrecorded conveyance

“in good faith”
“without notice”

flowchart
X gives to A, then to B
1. did A record before mortgage to B? if yes, A wins.
2. did B know of mortgage to A? if yes, A wins. If no, B wins.

137
Q

recording acts

race-notice statute

A

subsequent purchaser wins if (1) acquired without notice of prior unrecorded conveyance and (2) records first

“in good faith” + “first recorded”

flowchart
1. did A record before mortgage to B? if yes, A wins
2. did B know of mortgage to A? if yes, A wins.
3. who filed first after mortgage to A? if A, A wins. if B, B wins.

138
Q

recording acts

what are the special rules to be aware of?

A
  1. Shelter Rule
  2. Estoppel by Deed
139
Q

recording acts

Shelter Rule

A

person who takes from a bona fide purchaser proceed by recording act has the same rights as the grantor

140
Q

recording acts

Estoppel by Deed

A

grantor conveys land they don’t own

if a grantor subsequently acquires title to the land, the grantor is estopped from trying to repossess on grounds that they didn’t have title when they made the original conveyance

141
Q

deeds

what are the kinds of deeds? which offers the most protection?

A
  1. general warranty deed (most protection)
  2. special warranty deed
  3. quit claim deed (least)
142
Q

deeds

general warranty deed

A

grantor warrants against all defects even if they didn’t cause the defect

6 implied covenants (first 3 = present convents, last 3 = future)
1. covenant of seisin
2. covenant of the right to convey
3. covenant against encumberances

  1. covenant of quiet enjoyment
  2. covenant of warranty
  3. covenant of further assurances

first you’ve gotta “SCE” (sick) it then F with queens (FWQ)

143
Q

deeds

covenant of seisin

A

warrants that the deed describes the land in question

144
Q

deeds

covenant of the right to convey

A

warrants that the grantor has the right to convey the property

145
Q

deeds

covenant against encumberances

A

warrants that there are no undisclosed encumbrances on the property that could limit its value

146
Q

deeds

covenant of quiet enjoyment

A

grantor promises that the grantee’s possession will not be disturbed by 3p claim

147
Q

deeds

covenant of warranty

A

grantor promises to defend against future valid claims of title by 3p

148
Q

deeds

covenant of further assurances

A

grantor promises to fix future title problems

149
Q

deeds

special warranty deed

A

grantor warrants against defects only caused by the grantor

includes the six covenants but only apply to acts/omissions of grantor

150
Q

deeds

quitclaim deed

A

grantor makes no warranties as to the health of the title

151
Q

deeds

when does a breach of a present covenant occur?

A

at the conveyance

152
Q

deeds

when does a breach of a future covenant occur?

A

after the conveyance, once there is interference with possession

153
Q

deeds

what is the remedy for breaches?

A

damages

154
Q

wills

what is the guiding principle in interpretation of wills?

A

testator’s intent

if they die without a will, estate is distributed by intestate succession

155
Q

wills

heirs

A

people who take decedents intestate estate
have to survive the dead person

156
Q

wills

devisee

A

person who takes a devise by will

legatee

157
Q

wills

escheat

A

if decedent dies without a will and without heirs, decedent’s property goes to the state

158
Q

wills

ademption

A

device of property that fails (adeems) b/c it is not in testator’s estate at death

basic rule: gift fails and intended recipient gets nothing

satisfaction: if testator gives the promised gift during life, beneficiary keeps the gift (ademption by satisfaction)

159
Q

wills

lapse

A

intended beneficiary predeceases (dies before) testator

gift fails and would fall to the residuary gift

160
Q

wills

anti-lapse

A

every state has an anti-lapse statute to prevent a gift from failing b/c intended recipient dies before testator

to qualify, predeceasing beneficiary must be a relative of testator

the intended beneficiary (dead now) is replaced with a family member to take the gift

161
Q

trusts

definition of trust

A

device for managing property with bifurcated ownership

trustee owns the property (legal title) for the benefit of another person (beneficiary) who holds equitable title

162
Q

trusts

who has legal title?

A

trustee

163
Q

trusts

who has equitable title

A

beneficiary

164
Q

trusts

res

A

property that is subject to the trust

generally trust can’t be empty

165
Q

trusts

bifurcated transfer

A

ownership is divided

one person gets legal title to act as owner
and someone else gets equitable title to benefit from that ownership

166
Q

restraints on alienation

what is a restraint on alienation?

A

restriction on transferring property

167
Q

restraints on alienation

situations where there are restrictions on transferring property

A
  • inter vivos grant of an estate smaller than fee simple
  • devise of an estate smaller than fee simple
  • co-tenant agreement
  • covenants that run with the land
  • easements
168
Q

restraints on alienation

can you have an absolute restraint on alienation?

A

nope, void

169
Q

restraints on alienation

can you have a partial restraint on alienation?

A

valid if it is (1) for a limited time and (2) reasonable purpose

170
Q

restraints on alienation

can you have a restriction on use?

A

yep, generally permissible –> these are covenants

171
Q

restraints on alienation

what is the effect of the restraint on alienation?

A

if restraint is valid: any attempt to alienate will be null and void

if restraint is invalid: restraint is rejected and property can be alienated in violation of the restraint

172
Q

mortgages

what are the components of a mortgage?

A
  1. note - borrower’s promise to repay the loan/debt
  2. mortgage - instrument that provides security for the note
173
Q

mortgages

what are the kinds of mortgages?

A
  1. purchase money mortgage - person takes out a loan to buy property
  2. future advance mortgage - line of credit for home equity
174
Q

mortgages

what is the majority rule for how mortgages are treated with joint tenancies?

A

lien state

treats mortgage as lien that does NOT sever a joint tenancy

175
Q

mortgages

what is the minority rule for how mortgages are treated with joint tenancies?

A

title state

mortgage DOES sever a joint tenancy and converts it to a tenancy in common

176
Q

mortgages / equitable mortgages

list the equitable mortgages (alternatives to mortgages)

A
  • deed of trust
  • installment land contract
  • absolute deed
  • conditional sale and repurchase
177
Q

mortgages / equitable mortgages

deed of trust

A

operates like a mortgage but uses a trustee to hold title for the benefit of the lender

178
Q

mortgages / equitable mortgages

installment land contract

A

seller finances the purchase, seller retains title until buyer makes final payment on installment plan

traditional rule: if buyer breaches (missing payment), seller keeps all payments made and the property

modern approaches: some treat installment contracts as mortgage requiring seller to foreclose
some give buyer equitable right to redemption to stop FCL
some allow seller to retain ownership, but require some restitution for what’s been paid

feels like rent to own

179
Q

mortgages / equitable mortgages

absolute deed

A

mortgagor (borrower) transfers the deed to the property instead of conveying a security interest in exchange for the loan

if this is a mortgage disguised as a sale, borrower must prove a mortgage-like agreement by clear and convincing evidence

parol evidence is admissible

SOF doesn’t bar oral evidence

180
Q

mortgages / equitable mortgages

conditional sale and repurchase

A

sale lease back

owner has option to repurchase after loan is paid off

181
Q

mortgages / transfers

transfer by mortgagor/borrower - what is the liability of the mortgagor/borrower?

A
  • mortgagor may transfer by deed (sale), will, intestate succession
  • retains personal liability after transfer unless (1) mortgagee releases mortgagor or (2) lender modifies the transferee’s obligation
  • due-on-sale clause: lender has option to demand immediate full payment upon transfer; acceleration clause
  • due-on-encumbrance clause: mortgagor obtains a second mortgage encumbers the property; acceleration clause
182
Q

mortgages / equitable mortgages

transfer by mortgagor/borrower - what is the liability of the subsequent transferee?

A
  1. assumes the mortgage
    upon default, transferee is personally liable for the mortgage + original mortgagor
    doesn’t need to be in writing
  2. takes subject to the mortgage
    transferee is not personally liable upon default
    if deed is silent or ambiguous, subject to is default
183
Q

mortgages / equitable mortgages

transfer by mortgagee/lender - what happens?

A

mortgage follows the note

if bank transfers mortgage but not the note –> transfer is either (1) void b/c note is evidence of the debt or (2) note and mortgage are considered single entity so note follows the mortgage

banks can transfer mortgages ofc

184
Q

foreclosure / before foreclosure

when can mortgagee/lender take possession in a lien theory state?

three types of jurisdictions - lien theory state, title theory state, intermediate title theory state

A

can’t take possession prior to FCL b/c lender has a lien until FCL is complete

mortgagor is owner until FCL

185
Q

foreclosure / before foreclosure

when can mortgagee/lender take possession in a title theory state?

three types of jurisdictions - lien theory state, title theory state, intermediate title theory state

A

lender specifically has the right to possess the property at any time (b/c they hold the title)

186
Q

foreclosure / before foreclosure

when can mortgagee/lender take possession in an intermediate title theory state?

three types of jurisdictions - lien theory state, title theory state, intermediate title theory state

A

mortgagor retains title until default, then lender can take possession

minority of juris

187
Q

foreclosure / before foreclosure

what is the rule for homeowners and waste?

A

homeowner can’t commit waste that will impair lender’s security interest
any type of waste except ameliorative waste

188
Q

foreclosure / before foreclosure

what is the equity of redemption?

A

common law right held by mortgagor to reclaim title and prevent FCL upon full payment of the debt

mortgagor must exercise before FCL sale

  • deed in lieu of FCL
  • clogging equity of redemption concerns
189
Q

foreclosure / foreclosure methods

is notice required for a foreclosure?

A

mortgagee must give notice before FCL

190
Q

foreclosure / foreclosure methods

what are the methods for foreclosure?

A
  1. judicial sale
  2. power of sale (private sale)

proceeds are used to pay off the debt
extra proceeds will satisfy other creditors

191
Q

foreclosure / foreclosure methods

is mortgagor responsible if the sale produces less than they owe?

A

yep, court can issue deficiency judgment for remaining balance

192
Q

foreclosure / priorities

what type of interests survive / don’t survive after FCL?

A
  1. senior interests survive
  2. junior interests are extinguished
193
Q

tip

how to analyze priority of foreclosure claims

A

classify interest as junior or senior
apply rules to determine whether interest survives FCL

194
Q

foreclosure / priorities

what it the basic rule for FCL priority?

A

first in time rule

surviving debts are satisfied chronologically # foreclosure / priorities

195
Q

foreclosure / priorities / exceptions

list exceptions to basic priority rule

A
  • purchase-money mortgage exception
  • recording act exception
  • subordination agreement between mortgages - agree to lower priority
  • mortgage modifications
  • future-advances mortgage - line of credit
  • after-acquired property
196
Q

foreclosure / priorities / exceptions

what is the exception for purchase-money mortgages?

A

mortgage given to lender in exchange for a loan to buy real property

has priority over mortgages/liens created by/against mortgagor prior to mortgagor’s acquisition

197
Q

foreclosure / priorities / exceptions

what is the recording act exception?

A

junior mortgage that satisfies recording statute may sometimes take priority over unrecorded senior mortgage

198
Q

foreclosure / priorities / exceptions

what is the rule for mortgage modifications?

A

if mortgage is more burdensome –> the modification is subordinate, OG mortgage stays superior

replace with a new mortgage –> get same priority except if the change is materially prejudicial to junior mortgage holder

199
Q

foreclosure / priorities / exceptions

what is the rule for after-acquired property?

A

mortgage must clearly state that it applies to after-acquired property

upon FCL, interest in after-acquired property is junior to purchase-money mortgage

200
Q

foreclosure / effects after FCL

what happens to mortgagor after FCL?

A

eliminates their interest in the property

EXCEPTION: statutory redemption - some states allow mortgagor to redeem property even after FCL sale, will restore title to homeowner

201
Q

foreclosure / effects after FCL

what happens to the purchaser of property at a foreclosure sale?

A

take the property fee and clear of any junior mortgage + subject to any senior mortgage

BUT

may be subject to mortgagor’s statutory right of redemption (if it exists)

202
Q

foreclosure / effects after FCL

what happens to senior and junior interests after a foreclosure sale?

A
  • senior interests aren’t affected
  • junior interests are destroyed
203
Q

easements / terms

easement

A

rights held by one person to make use of another person’s land

204
Q

easements / terms

servient estate

A

land burdened by the easement

205
Q

easements / terms

dominant estate

A

land benefited by the easement

206
Q

easements / terms

affirmative easement

A

holder has the right to do something on someone else’s property

207
Q

easements / terms

negative easement

A

holder has the right to prevent someone from doing something on their land

208
Q

easements / terms

easement appurtenant

A

easement is tied to the use of the land

fully transferable, goes with the land

209
Q

easements / terms

easement in gross

A

easement benefits the holder personally

only servient estate, no dominant estate

210
Q

easements / creation

what are the two ways to create an easement?

A

express or implied easement

211
Q

easements / creation

express easement

A
  • subject to SOF (must be in writing)
  • can be treated by grant or reservation
  • subject to recording statutes
  • negative easement must be express
212
Q

easements / creation / implied easements

implied easements

A
  • informal, arise out of facts
  • transferable
  • not subject to SOF
  • not subject to recording statues UNLESS subsequent purchaser had notice of the easement
213
Q

easements / creation / implied easements

what are the types of implied easements?

A
  1. easement by necessity
  2. easement by implication (easement by prior use)
  3. easement by prescription
  4. easement by estoppel
214
Q

easements / creation / implied easements

implied easement by necessity

A
  • created only when property is virtually useless (like it’s landlocked)
  • (1) common ownership (dominant and servant estates were owned in common by one person) AND (2) necessity at severance (when it was severed, one of the properties became virtually useless w/o easement)
  • strictly necessary
  • ends when no longer necessary
215
Q

easements / creation / implied easements

implied easement by implication / prior use

A

created by an existing use on a property

  1. common ownership - land owned by one person
  2. before severance, owner uses land as if there’s an easement on it (quasi-easement)
    at this point, the land is split up
  3. after severance, use must be continuous and apparent
  4. necessity - use must be reasonably necessary to dominant estate’s use and enjoyment
216
Q

easements / creation / implied easements

implied easement by prescription

A
  • like acquiring via adverse possession, but this is about use (not possession)
  • same elements as adverse possession except exclusivity
217
Q

easements / creation / implied easements

implied easement by estoppel

A
  1. permission - permissive use (license)
  2. reliance - second neighbor relies on the first neighbor’s promise –> must be reasonable + in good faith
  3. permission withdrawn by first neighbor

if reliance was detrimental to second neighbor, first neighbor is estopped from withdrawing permission (creates an easement)

218
Q

easements / scope

what is the scope of express easement?

A
  • determined by the terms
  • if terms are ambiguous, ct considers intent of OG parties
  • changes in use are tested under reasonableness standard (reasonably foreseeable)
  • if use exceeds the scope, dominant estate is trespassing on servient estate
219
Q

tip

fact patterns where a person with easement and holder of easement wants to redevelop or subdivide the property

A

considerations:
can the easements be transferred to the new holders of the estate?
was the new use an ordinary foreseeable development?

220
Q

easements / scope

is the holder of the dominant estate entitled to use the easement to access property acquired after the easement is created?

A

nope

221
Q

easements / scope

what is the scope of implied easements?

A

determined by nature and scope of prior use or necessity

222
Q

easements

who has the duty to maintain?

A

owner has the duty to maintain the property subject to an easement

unless parties contract out of this

223
Q

easements / termination

what are the methods to terminate an easement? (list)

A
  • release - holder expressly releases it + in writing (SOF)
  • merger - owner acquires the other land so it merges into the title
  • abandonment - (1) non-use + (2) act demonstrating intent to abandon
  • prescription - fail to protect against adverse possessor
  • sale to purchaser
  • estoppel
  • end of necessity - easement is no longer needed
224
Q

easements / termination

what is needed for abandonment?

A

owner acts in an affirmative way to show a clear intent to relinquish the right

usually need (1) non-use + (2) act demonstrating intent to abandon

225
Q

easements / other interests that aren’t easements

profit

A

right to enter another’s land and remove a specific natural resource

operates similarly to an easement but can’t be created by necessity

226
Q

easements / other interests that aren’t easements

license

A

revocable permission to use another’s land

can’t revoke if detrmintal reliance (PQs Set 2)

elements aren’t revocable // easements bind successors, license only binds licensor

227
Q

real covenants

what is a real covenant?

A

promise conquering the use of the land that runs to successors to the promise

covenant includes interest in the land

228
Q

real covenants

what are benefits and burdens?

A
  • benefit of the convent is the ability to enforce the covenant
  • burden is being subject to it
229
Q

real covenants

what are the requirements for real covenants?

A

TWIN-P (almost like wimy)

  1. touch and concern the land - benefit or burden must affect both parties
  2. writing (SOF)
  3. intent - OG parties must intend for the covenant to run with the land (look for express language)
  4. notice - actual or constructive, maybe inquiry if equitable servitude
  5. privity
230
Q

real covenants

what is required for (3) touch and concern the land?

A

benefit or burden must affect both parties

negative covenant - restriction on use will touch and concern b/c restrict what you can do

affirmative covenant - covenant to pay money (modern trend says that these do touch and concern)

231
Q

real covenants

what is horizontal privity? what is vertical privity?

A
  • horizontal privity is about the transfer of property b/t original parties
  • vertical privity is about an original party and their successor to the property
  • horizontal refers to privity of estate where covenant and estate are in the same instrument
  • only need horizontal privity for burdens
  • strict vertical privity - successor must take the original party’s entire interest
  • relaxed vertical privity - takes only an interest that is carved out of the original party’s estate
232
Q

tip

how to analyze real covenants

A
  1. does this run the benefit or the burden
  2. if benefit, you need relaxed vertical privity only (horiz privity doesn’t matter)
  3. if burden, you need horizontal privity + strict vertical privity
233
Q

real covenants

what is the remedy for breach of a real covenant?

A

damages

234
Q

what are the two ways to bind a successor to an original party’s promise?

A
  1. real covenant
  2. equitable servitude
235
Q

what are the main differences b/t real covenant and equitable servitude?

A
  • equitable servitude doesn’t have privity requirement (privity required for real covenant)
  • remedy for equitable servitude is inductive relief (real covenant is damages)
236
Q

equitable servitude

what is required to bind a successor?

A
  1. writing
  2. intended to run with the land
  3. must touch and concern the land
  4. notice (actual, record, or inquiry)

same standards as real covenant BUT no privity

237
Q

equitable servitude

implied reciprocal servitude

A
  • equitable servitude that is implied, writing not required
  • usually come up in planned communities
  1. developer must intend to create a covenant to all plots in subdivision
  2. promises must be reciprocal (benefits and burdens on each and every parcel equally)
  3. successor must be on notice of the restriction (at least inquiry notice)
  4. must be a common plan or scheme –> look for recorded map, marketing or ads, oral or written mention that the lots are burdened by common restriction
238
Q

equitable servitude

what is the remedy for a breach?

A

injunctive relief

239
Q

tip

if I see a planned community (suburbia), what should I think of?

A

implied reciprocal servitude

240
Q

equitable servitude

changed circumstances doctrine

A

look for situations where the restriction no longer makes sense due to drastic changes in the surrounding area since the restriction was put in place

does the property subject to the restriction still retain some benefit from the restriction?

241
Q

equitable servitude

what equitable defenses are available?

A
  • unclean hands (P not acting in good faith)
  • laches (unreasonable delay)
242
Q

what are common interest communities?

A

like condos, cooperatives, owners’ associations

243
Q

what is a fixture?

A

tangible personal property that is attached to real property in a manner that is treated as part of the real property

244
Q

what are the two basic approaches to water rights?

A
  1. riparian rights - landowners who border a waterway own the rights to the waterway, share the right to reasonable use of the water
  2. prior approbation - first in time, firs tin right; first person gets the rights; must put water to beneficial use
245
Q

what are the two basic approaches to support rights?

A
  1. lateral support rights - neighboring landowner can’t excavate as to cause a cave in on an adjacent owner’s land; strict liability standard (neighbor’s buildings didn’t contribute to cave in) or negligence standard (did contribute)
  2. subjacent support - like mineral rights, surface landowners have the right not to have their land subside from the activities of owners of underground rights
246
Q

does a life estate tenant have to pay ordinary taxes on the property?

PQs Set 1

A

yes, but only to the extend that the life tenant receives a financial benefit from the property

if they occupy the property –> financial benefit is fair market rent
if they don’t occupy –> measured by income derived from the land

247
Q

what is the doctrine of equitable conversion?

PQs Set 1

A

when land-sale contract is silent about risk of loss

  • majority apply this doctrine - risk of loss is placed on party with equitable title at time property was destroyed UNLESS other party is at fault for the loss
  • Uniform Vendor and Purchaser Risk Act (minority) - seller retains risk of loss unless and until buyer takes possession or title is transferred
  • applies to events that occur during the executory time period (b/t signing and closing)
  • determination of who will receive proceeds depends on who had equitable title
248
Q

what happens to junior interests if there’s a deed in lieu of foreclosure?

PQs Set 1

A

junior interests remain attached
mortgagee’s interest is extinguished unless it was reserved

249
Q

if there are 3 joint tenants, what happens if there’s a sale of one interest? after the sale, what is one of the OG JTs dies?

PQs Set 2

A

after sale: the new owner is tenant in common (1/3), other two are joint tenants (1/3 each)

after one of the JTs dies: there is a right of survivorship so the remaining JT gets 2/3

250
Q

what is the rule for withdrawal of lateral and subjacent supports?

PQs Set 2

A

if land is in its natural state: strict liability

if land is in improved state (like a house): if damage would have occurred in land were in natural state, SL
if not, liable if negligent

251
Q

what is the common law exoneration-of-liens doctrine?

PQs Set 2

A

applies when a devisee receives a specific devise of real property that is subject to an encumbrance

devisee is entitled to pay off any encumbrances on that property from the remaining assets of testator’s estate

252
Q

in installment land contracts, what are the ways to handle a buyer’s failure to pay?

PQs Set 2

A
  1. allow seller to retain ownership but require some form of restitution to the buyer
  2. offer the buyer an equitable right of redemption
  3. treat as a mortgage, so seller must FCL to gain property + buyer has equitable right of redemption, etc.
253
Q

“No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law.”

what type of statute is this?

A

notice

254
Q

“No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice who shall first record.”

what type of statute is this?

A

race-notice

254
Q

“No conveyance or mortgage of real property shall be good against subsequent purchasers for value unless the same be first recorded according to law.”

what type of statute is this?

A

race

255
Q

When is an acceleration clause (due on sale) on residential property NOT enforceable?

PQs Set 3

A
  • devise, descent, or transfer to joint tenant upon death
  • transfer to spouse or child
  • transfer to ex-spouse in divorce
  • transfer to borrower’s living trust
  • creation of subordinate lien w/o occupancy rights
  • granting leasehold interest < 3 yrs w/o option to purchase
256
Q

priority for mortgages with future advances

Essay 2614

A

this is like an installment loan

if future advances are obligatory, then a senior future advance loan has priority over junior loans
even if some of the money was paid out after the junior loan was created

257
Q

is a mortgage subject to the same defenses as the underlying obligations by that mortgage? what if the mortgaged property is transferred to a donee?

PQs Set 4

A

A mortgage is subject to the same defenses (e.g., mistake, duress, fraud) as the underlying obligation or debt secured by that mortgage

when mortgaged property is transferred to a donee, the donee is entitled to assert the donor-mortgagor’s defenses against the mortgagee-lender
purchaser who assumes an existing mortgage obligation as part of the purchase price may not assert the donor-mortgagor’s defenses

258
Q

future interests of grantor

from Trusts Lecture Handout

A
  • possibility of reverter (goes with FS determinable)
  • right of entry (goes with FS subj to condition subsequent)
  • reversion (goes with life estate)
259
Q

future interests of transferees

from Trusts Lecture Handout

A
  • remainder (vested or contingent or vested subject to open / class gift)
  • executory interest (springing or shifting)
260
Q

what happens if class member dies

from Trusts Lecture Handout

A

generally automatic right of survivorship
on death of class member, that member’s share is automatically redivided among surviving class members

R3d - share of deceased class member goes to class member’s surviving issue

261
Q

“Trustee shall distribute support to son for life, then to my grandchildren, with the children of any deceased grandchild taking in their parent’s place.”

what happens if grandchild dies without issue before Son?

from Trusts Lecture Handout

A

UPC: future interests under a trust are contingent on beneficiary surviving until distribution
grandchild takes nothing (gift fails)

common law: survival of child is not essential, deceased grandchild’s estate takes the interest

this is from an old MEE question, confusing

262
Q

how to you validly escrow a deed?

NCBE Simulated MBE 1

A

need to place the deed beyond your control - can’t reserve power over it once given to the attorney

263
Q

who is responsible for paying current charges (property taxes, mortgage interest, etc.) on a concurrent estate?

one party is life tenant, other is remainder

UWorld

A

life tenant has duty to pay current charges up to the amount of income that can be generated from the land

264
Q

is an easement for “CK and her heirs and assigns” an easement in gross or easement appurtenant?

UWorld

A

likely appurtenant

b/c heirs and assigns are included, it’s probs to benefit the land generally, not just CK

265
Q

what happens if a 3p pays another’s mortgage in full?

MBE PQs

A

doctrine of subrogation

3p becomes owner of loan + mortgage
so they can seek reimbursement from debtor or enforce the mortgage

266
Q

what changes can an owner make to a grandfathered prior nonconforming use?

Essay 4945

A

nature and character of use cannot be a substantial change

owner may be permitted to increase the frequency of the nonconforming use to upgrade the means to accomplish the nonconforming use, so long as the nature and character of the use does not constitute a substantial change

267
Q

tip

new construction - which warranty is this a flag for?

Essay 4843

A

implied warranty of fitness or suitability

268
Q

delivery of a deed - what is the presumption? what happens if grantor dies?

UWorld

A
  • delivery presumed if recorded
  • BUT can be rebutted by evidence that grantor didn’t intend to presently transfer ownership
  • IF deed is NOT delivered during grantor’s lifetime, it is void + conveys no interest
269
Q

what does warranty deed protect against?

NCBE Simulated #2

A

remedies for breach of title matters

270
Q

what does selling a house “as is” disclaim?

NCBE Simulated #2

A

disclaims the seller’s duty to disclose defects IF the disclaimer is sufficiently clear and specific

assuming no statutes require disclosure of known defects

271
Q

when can a variance be granted? (what does the landowner have to show)

UWorld Assessment #2

A
  1. variance does NOT deviate from the comprehensive zoning plan
  2. compliance with zoning ordinance would cause the landowner unnecessary hardship (can’t be self-imposed)
272
Q

doctrine of after-acquired title

UWorld Assessment #2

A

applies when grantor coveys property to a grantee by warranty deed BEFORE acquiring title

once grantor receives title, the after-acquired title will automatically transfer to earlier grantee

273
Q

tip

if notice recording statute, at what point is notice relevant?

MBE Practice Exam #4

A

when the person obtained the property (like did they have notice when they bought it NOT did they get notice later on)

274
Q

can an easement be abandoned or terminated by non-use?

MBE Practice Exam #4

A

nope, not by mere non-use

owner must affirmatively act in a way that expresses clear intent to terminate the easement

275
Q

right of first refusal - what happens with RAP?

UWorld

A

to comply with RAP, right of first refusal must be set to vest or fail within the perpetuities period

so probs fails unless there’s an end date or it’s tied to a life in being

276
Q

when does a deed transfer ownership?

UWorld

A

once delivered and accepted

  • delivered - evidenced by grantor’s intent to presently convey ownership (CAN’T be conditional delivery)
  • accepted - presumed when transfer is beneficial to grantee

delivery presumed if recorded BUT can rebut if grantor did not intend to presently transfer ownership

277
Q

title insurance policy - when is insurer responsible for title defects?

UWorld

A

only responsible for title defects that
1. are not disclosed in the insurance policy AND
2. affect the named insureds

278
Q

if no acceleration clause, what is mortgagee entitled to keep from a foreclosure sale?

MBE Practice Set 5

A

only the amount of the obligation that is currently due and owing

279
Q

equitable right of redemption vs. statutory right of redemption

NCBE Simulated #3

A
  • equitable right of redemption is before foreclosure
  • statutory right is an additional time period after FCL sale for prior mortgagor and others have the option to pay a certain sum of money and redeem the title to the property

Rocking the Bar Exam (16 decks)

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