Real Property

Question 1

What are the three types of fee simple and their corresponding future interest?

Answer 1

• Fee Simple Determinable (FSD) (“so long as”) –> Possibility of Reverter (Grantor) or Executory Interest (3P)
• Fee Simple Subject to Condition Subsequent (FSSCS) (“but if” / “upon condition that”)–> Right of Reentry
• Fee Simple Subject to Executory Interest (FSSEI) –> Executory Interest (3P)

Question 2

What are the rights/obligations of a life tenant?

Answer 2

• Right of possession, collect rents, lease, sell, mortgage, pay taxes on financial benefit from the land
• Avoid waste - LT must make reasonable repairs (up to amount of income produced by property or, if LT is in actual possession, fair rental value)
• LT must pay property taxes to the extent LT receives financial benefit from the land
• Pre-existing mortgage obligations and assessments for public improvements are allocated between LT and future interest holder

Question 3

What are the four unities of a joint tenancy

Answer 3

PITT (Possession, Interest, Time, Title) (Plus Person for Tenancy by Entirety)

Question 4

What is the main difference between JT and TBE besides marriage requirement?

Answer 4

Interest in JT is severable without consent of others; Interest in TBE cannot be alienated or encumbered without the consent of the other

Question 5

What are the right and obligations of a co-tenant?

Answer 5

• Possess entirety property
• Collect contribution from co-ts for operating expenses (e.g. taxes), but if in sole possession, only if they exceed rental value of property
• Cannot compel co-Ts to share expenses for repairs in contribution action (minority rule –> separate action if they had notice). Otherwise, recoup indirectly in partition action.
• No right to contribution for improvements
• Account for rent from 3rd parties (deduct expenses)
• Duty of fair dealing, but not fiduciary (unless buying back property tat tax/foreclosure sale)

Question 6

Can co-T unilaterally create easement?

Answer 6

Yes, but will only be enforceable against co-T who created it.

Question 7

What are the duties of a tenant?

Answer 7

• Pay rent
• Avoid waste
• Can make changes that increase property value if reasonably necessary to use in reasonable manner
• T has default duty to repair premises to keep in pre-rental condition, but no duty to repair normal wear and tear

Question 8

What are the duties of a landlord?

Answer 8

• Deliver possession
• Repair if residential lease (unless T caused)
• Warranty of habitability (residential)
• Covenant of quiet enjoyment (commercial and residential)

Question 9

What is the warranty of habitability?

Answer 9

• Residential only
• Must be fit for basic human habitation (health/safety)
• T must notify L of defect and give reasonable time repair AND
• T can refuse to pay rent, make reasonable repairs and deduct cost from future rent, or remain in possesion, pay rent, and seek damages

Question 10

What is covenant of quiet enjoyment?

Answer 10

• T has right to quiet use and enjoyment of premises without interference
• Partial eviction –> still on hook for part of rent
• Contsructive eviction: Substantial intereference caused by L’s actions or failure to act
• CE: T must give notice of problem and reasonable time to cure, and T must vacate premises within reasonable time after failure to cure

Question 11

What does a deed need in order to be valid?

Answer 11

• In writing
• Signed by grantor
• Contain description of property
• Identify grantee
• Contain words of transfer
  EXCEPTIONS: Partial performance or detrimental reliance

Question 12

What is the implied warranty of fitness?

Answer 12

Only for new homes, warrants use of adequate materials and workmanship, includes latent construction defects
Buyer still has duty to reasonably inspect, and can sue builder/developer/contractors within reasonable time after discovery.

Question 13

What is the general maximum reasonable amount for liquidated damages in land sale contract?

Answer 13

10% of purchase price

Question 14

What are the requirements of adverse possesion?

Answer 14

• Exclusive - can’t share land with true owner
• Continuous - continuous and uninterrupted (may include tacking)
• Hostile - without owner’s permission
• Open and Notorious - make use of land as reasonable owner would
• Actual - actual possesion of land
  Color of Title –> constructive adverse possesion

Question 15

What is required to make valid transfer of deed?

Answer 15

• Valid deed (e.g. signed by grantor, in writing)
• Present intent to transfer property interest (either by delivery, recording, or the facts)
• Doesn’t count if grantor retains absolute right to recover deed or gift intends to be post-death

Question 16

What are the covenants associated with a general warranty deed?

Answer 16

• Seisin (grantor owns land)
• Right to convey (right to transfer title)
• Against encumbrances (no undeclared encumbrances)
• Quiet enjoyment (not disturbed by 3P’s lawful claim)
• Warranty (defend against 3P claim)
• Further assurances

Question 17

What is the difference between ademption and lapse?

Answer 17

• Ademption: Devise fails because testator doesn’t own property on death
• Lapse: Devisee dies before testator and no alternate beneficiary names (but see: anti-lapse statutes)

Question 18

What are the types of easements?

Answer 18

• Express Easement: Complies with Statute of Frauds
• Easement by Necessity: Dominant property is useless without benefit of easement across neighboring servient property
• Easement by Implication: Owner of two parcels used one to benefit the other and parties intended easement to continue after sale (must be continous, apparent, and reasonably necessary)
• Easement by Prescription: ECHOA but no E (exclusivity)

Question 19

How can easements be terminated?

Answer 19

• Abandonment (requires act, not just non-use)
• Merger (owner of easement becomes owner of servient estate)
• Sale to BFP (if not recorded)
• Severance
• Release (in writing)

Question 20

What is required for a covenant to run with the land?

Answer 20

• Writing
• Intent
• Touch and Concern
• Notice (burden only)
• Horizontal Privity (burden only)
• Vertical Privity (strict if burden)

Question 21

What is required for equitable servitude?

Answer 21

• Writing
• Intent
• Touch and Concern
• Notice (burden only)
• NO PRIVITY (unlike covenant)

Question 22

What is an implied reciprocal servitude?

Answer 22

• Intent to create a servitude on all plots (common scheme); no writing required
• Negative servitude (promise to refrain)
• Notice (actual, record, or inquiry) by party against whom enforcement is sought
• Can defend against by arguing “changed circumstances”

Question 23

What is the order of the distribution of proceeds of a foreclosure?

Answer 23

• Costs associated with the sale
• Mortgage obligation being foreclosed
• Mortgage obligations owed to junior interest holders
• Debtor-mortgagor

Question 24

What is equity of redemption?

Answer 24

After default but before foreclosure sale, mortgagor may regain title by paying amount of loan obligation currently owed, plus interest (can be full amount of unpaid loan if there is an acceleration clause).