Real Property Flashcards
Does a restrictive covenant render title unmarketable such that the buyer need not go through with the purchase?
YES any third party rights in the land, such as the right to enforce a restrictive covenant in the land, renders the title unmarketable
An easement appurtenant is one that
benefits the dominant estate and “runs with the land” and so generally transfers automatically when the dominant estate is transferred.
The basic ways of creating an easement are by express grant, implication, and prescription. Explain how to create each.
An easement by express grant
* is one that is recorded and signed by the grantor and must comply with all the formalities of a deed.
An easement by implication is created by operation of law rather than a written instrument. There are three types of easement by implication:
(i) an intended easement based on a use that existed when the dominant and servient estates were severed;
(ii) an easement implied from a recorded subdivision plan; and (iii) an easement by necessity.
An easement by prescription is analogous to acquiring property by adverse possession.
* To acquire a prescriptive easement, the use must be open and notorious, adverse, and continuous and uninterrupted for the statutory period.
Erie did not take away the authority of federal courts to create and apply “federal common law.” Federal courts will apply federal common law in certain instances, even if the basis for federal jurisdiction is diversity. In diversity cases involving subject matter that bears some relation to a federal statute, courts will
balance federal and state interests around whether to apply federal common law
A life tenant has a duty not to commit voluntary or permissive waste with respect to the property during their life tenancy. What are these types of waste?
Permissive
* A failure to keep the property in repair,
* to pay taxes on the property, or
* pay interest on any mortgage on the property
Voluntary waste
* an affirmative act that serves to somehow damage the land.
* This “damage,” however, is not necessarily an act that reduces the value of the land. For example, a life tenant’s affirmative act of changing the basic use of the land during his tenancy would be characterized as “damage” to the land that constitutes voluntary waste even if the land value increased as a result.
The life tenant is held liable to the remainderman for any waste during his or her life tenancy.
May a landlord keep the interest earned in an escrow account from holding a tenant’s security deposit?
NO. In a majority of states it belongs to the tenant.
If there is a lien on a joint tenants joint tenancy, does that sever the joint tenancy?
NO. what severs the joint tenancy is the foreclosure of that interest. If the joint tenant dies before the lien is foreclosed on, the creditor’s interest will be extinguished
A common interest community like a homeowners association may do what in response to a violation of a rule?
Impose fines, issue penalties, or revoke privileges
Is a buyer entitled to specific performance if there is no enforceable contract for the sale of land under the statute of frauds?
Yes if she has detrimentally relied on the oral contract or part performance
If a creditor holds an equitable mortgage what is their remedy if the borrower breaches?
Foreclosure proceedings
If an agent signs a deed when they were given authority to do so orally, is the deed valid?
NO because the agent had to have his authority provided in writing becuase this is an SOF contract (sale of land) and thus the agent’s authority also needs to be in writing
Unless the agent signs in the presence of the grantor
Can an easement by prescription be acquired if the servient estate permitted it?
NO OCAN
Open
Continous
Actual use of land
Nonpermissive
A license is a
a grant of permission to enter and use another’s land for a specific purpose (enter anothers land for specific, limited use) can be oral and can be revoked at any time unless detrimentally relied or coupled with an interest
can be oral
Shelter Rule is
Under the Shelter Rule, a person who takes from a BFP will prevail against any interest that transferor-BFP would have prevailed against. This is true even where the transferee had actual knowledge of the prior unrecorded interest. If the rule were otherwise, a BFP might not be able to convey an interest in the land
What is the doctrine of amortization?
It is a means to used to terminate a non-conforming use which was in existence at the time of the zoning change, and was allowed at that time, but is not permitted under the new zoning
