Real Property

Question 1

Fee Simple Absolute

Answer 1

Absolute ownership of potentially infinite duration, with no accompanying future interest

Question 2

Defeasible Fees

Answer 2

Ownership of potentially infinite duration, which may be terminated by occurrence of an event.

Question 3

Types of Defeasible Fees

Answer 3

Fee simple determinable
Fee simple subject to condition subsequent
Fee simple subject to executory interest

Question 4

Fee simple determinable

Answer 4

Limited by specific durational language, terminates automatically on occurrence of event.

Grantor interest: possibility of reverter

Question 5

Fee simple subject to condition subsequent

Answer 5

Limited by specific conditional I (language, grantor has right to terminate on occurrence of event (not automatic).

Grantor interest: right of entry

Question 6

Fee simple subject to executory interest

Answer 6

Limited by specific conditional language, title automatically passes to third party on occurrence of condition.

Third party interest: executory interest

Question 7

Life estate

Answer 7

Present possessory estate limited in duration by a life.

Grantor interest: reversion
3d party: remainder

Question 8

Types of Remainders

Answer 8

Vested
Contingent

Question 9

Vested Remainder

Answer 9

not subject to any conditions precedent, and created in ascertainable grantee.

Can be subject to open or subject to complete divestment

Question 10

Contingent remainder

Answer 10

Subject to express condition precedent, or created in grantee that is unascertainable

Question 11

Executory Interest

Answer 11

Future interest in third party that is NOT a remainder, generally cuts prior estate short upon occurrence of specified condition. Can be shifting or springing

Question 12

Shifting Executory Interest

Answer 12

Divests interest of grantee by cutting short a prior estate created in the same conveyance. Shifts from one grantee to another when condition happens.

Question 13

Springing Executory Interest

Answer 13

Divests the interest of the grantor or fills a gap in possession in which estate reverts to grantor.

Question 14

RAP

Answer 14

Future interests are valid only if they must vest or fail by the end of a life in being (at time of conveyance) plus 21 years.

APPLIES TO: CREIVSO (+)
Contingent remainders
Executory interests
Vested remainders subject to open (if not closed by rule of convenience)
Also:
- Powers of appointment
- Rights of first refusal and options (unless commercial)

Question 15

Tenancy in Common

Answer 15

Default concurrent interest; separate but undivided interests, no right of survivorship.

Question 16

Joint Tenancy

Answer 16

Right of survivorship.

Creation requires four unities (PITT):

Possession
Interest
Time
Title

Destroyed by conveyance.

Question 17

Tenancy by the Entirety

Answer 17

Joint tenancy between married people (marriage = fifth unity). Right of survivorship. Need consent to alienate. Can’t partition.

Question 18

Rights of cotenants

Answer 18

Possession! (Not required to pay rent or share profits from business.)

Natural resources! (in proportion to ownership)

Third party rents! (must account to each other, but can deduct expenses)

Property related expenditures!
Can compel other cotenants to contribute to necessary property-related obligations, to extent they exceed rental value of property

CANNOT compel for repairs, unless indirectly through another action

CANNOT compel for improvements, unless indirectly in partition

Question 19

FHA exemptions

Answer 19

Single family homes sold / rented without a broker

Rental places with four units including the owner’s

Housing operated by religious orgs and private clubs

Question 20

Types of tenancies

Answer 20

tenancy for years
periodic tenancy
tenancy at will
tenancy at sufferance

Question 21

Tenancy for years

Answer 21

Measured by a fixed and ascertainable amount of time.
CREATION: agreement
NOTICE: none required
TERMINATION: automatically at end

Question 22

Periodic Tenancy

Answer 22

Repetitive and ongoing until party give notice.
CREATION: intent (express or implied)
NOTICE: before intended last period
TERMINATION: renews automatically until notice

Question 23

Tenancy at will

Answer 23

Created at will of parties (express, or implied by allowing tenant to occupy).
NOTICE: reasonable notice
TERMINATION: all ways

Question 24

Tenancy at sufferance

Answer 24

Tenant holds over after lease has ended. Temporary, before eviction or re-rent. Tenant owes reasonable value & damages.
CREATION: actions of tenant alone
TERMINATION: leaves, eviction, re-rent

Question 25

Tenant Duties

Answer 25

Pay rent Avoid waste Contractual duty to repair (nonresidential) Other lease duties

Question 26

Landlord duties

Answer 26

Give physical possession Duty to repair Warranty of habitability (residential) Covenant of quiet enjoyment

Question 27

Warranty of habitability

Answer 27

Landlords of residential premises keep premises suited for residential use, avoid threats to health or safety. Cannot be waived. REMEDY: refuse to pay rent; remedy defect and offset cost; defend against eviction

Question 28

Covenant of quiet enjoyment

Answer 28

Duty not to interfere with possession of the premises. Actions that breach amount to actual or constructive eviction. Actual eviction: terminates lease, ends obligation to pay rent. Partial eviction: if landlord’s fault, tenant excused from rent. If third party’s fault, tenant pays reasonable value of occupied portion. Constructive eviction: if tenant gives notice and time to fix, then obligation to pay rent is excused.

Question 29

Tenant duties under tort law

Answer 29

Duty of care to invitees, licensees, foreseeable trespassers, dangerous conditions or activities

Question 30

Landlord duties under tort law

Answer 30

Injuries occurring in common and public areas, or hidden defects/faulty repairs (common law) General duty of reasonable care – existing defects, failure to make repairs, criminal activity of third persons (modern trend)

Question 31

Formation of Land Sales Contract

Answer 31

i) in writing ii) signed by party to be charged iii) contains essential terms (parties, description, price, payment)

Question 32

Statute of Frauds and Land Contracts

Answer 32

SOF APPLIES: Promise to create interest in real property Assignment of right to purchase Most option contracts Promise to give mortgage as security Leases over a year SOF DOES NOT APPLY Leases under a year Licenses Options/Rights of first refusal granted in LEASE, or COMMERCIAL

Question 33

Implied Covenant of Marketable Title

Answer 33

Title free from defects that create risk of litigation, including: - Unquieted adverse possession - Future interests, where haven’t agreed - Private encumbrance (mortgage, covenant, option, easement) - Violation of zoning - Physical defect - Right of first refusal, option contracts Buyer remedies: rescind; sue; specific performance

Question 34

Time of the essence in land contracts

Answer 34

Not assumed, must be specifically stated. If not stated, strict adherence to closing date not grounds for rescission, though treated as breach and other party liable for damages.

Question 35

Implied warranty of fitness or suitability

Answer 35

Implied for sales of newly constructed homes. Implied against professional builders/developers/contractors, available to initial purchaser and maybe subsequent purchasers within reasonable time. Damages = cost of repairs, or difference between value with warranty and as built Can be disclaimed, if very specific!

Question 36

Duty to disclose defects

Answer 36

Seller must disclose all known material physical defects that aren’t observable to buyer Remedy: rescind, damages

Question 37

Merger doctrine (land contracts)

Answer 37

Contract terms are merged into the deed and can’t thereafter be enforced unless in the deed. EXCEPTIONS: things intended to survive deed; collateral obligations; defenses

Question 38

Equitable title

Answer 38

Equitable title passes to buyer upon entering contract, but seller holds legal title so has right to possess the property (and duty to upkeep) until closing. Buyer bears risk of loss unless seller intentional/negligent (or UVPRA)

Question 39

Right of First Refusal

Answer 39

Preemptive right that gives holder opportunity to acquire property before it is transferred to another; valid unless UNREASONABLE. RAP appplies, unless in lease or commercial

Question 40

Adverse possession

Answer 40

ECHOS: exclusive, continuous, hostile, open/notorious/actual, statutory period

Question 41

REquired elements of deed

Answer 41

- Writing - grantor’s signature - identity of parties - words of transfer - property description WILL GRANT INTEREST WHEN PROPER - Grantor must demonstrate intent to make a present transfer of the interest and the grantee must accept the interest - Transfer must be evidenced by writing (SOF)

Question 42

Transfer of deed

Answer 42

Grantor must, at time of transfer, intend to make a present transfer of property interest to grantee. Physical delivery helpful, but not required. Transfer to own agent = treated as retention Transfer to grantee agent = treated as delivery Transfer to third party = language matters. - If absolute right to recover, no delivery - conditional transfer creates future property interest - if conditioned on death of grantor, valid with proper intent Transfer to independent agent on contract = agent must deliver on occurrence of condition Recording = delivery presumed

Question 43

General Warranty Deed

Answer 43

guarantees the grantor holds six covenants of title

Question 44

Present covenants

Answer 44

seisin: grantor owns land as described (recovery: purchase price or cost of perfecting title) right to convey: grantor has right to transfer (recovery: purchase price or cost of perfecting title) against encumbrances: no undisclosed encumbrances. (recovery: diff in value between title with or without, or cost of removing encumbrance)

Question 45

Future covenants

Answer 45

quiet enjoyment: no third party interference via lawful claim for title (recovery: with notice, purchase price or cost of defending title) warranty: grantor will defend against third party claim (recovery: with notice, purchase price or cost of defending title) further assurances: grantor will perfect title (recovery: purchase price or cost of perfecting title)

Question 46

special warranty deed

Answer 46

Contains same covenants, but only warrants against defects arising during time grantor had title

Question 47

quitclaim deed

Answer 47

promises no covenants

Question 48

Notice recording act

Answer 48

Purchaser who purchases without notice of prior interest prevails. “in good faith” / “without notice”

Question 49

Race recording

Answer 49

Purchaser who records first prevails, regardless of notice “first recorded”

Question 50

Race notice

Answer 50

Purchaser who takes the interest without notice AND first prevails. “in good faith and first duly recorded”

Question 51

Assuming mortgage liability

Answer 51

transferee-buyer becomes personally liable, and lender may sue either or both

Question 52

subject to mortgage obligation

Answer 52

TB is not personally liable, though property can still be sold at foreclosure (DEFAULT IF AMBIGUOUS)

Question 53

Equity of redemption

Answer 53

mortgagor can retain property under doctrine of EoR by paying amount of loan obligation currently owned, if do it BEFORE foreclosure sale.

Question 54

Easement

Answer 54

Non-possessory interest in land allowing a person to use another’s land for a specific limited purpose. Servient estate: subject to easement Dominant estate: benefits from the easement Appurtenant: tied to land (runs with both) In Gross: tied to person (runs with servient)

Question 55

Types of easements

Answer 55

Express: owner grants or reserves; defined by terms Implied: prescription, implication, necessity, or estoppel

Question 56

Easement by Prescription

Answer 56

Like adverse possession. Requires: - continuous - hostile - open - statutory period SCOPE: extent of AP use

Question 57

Easement by Implication

Answer 57

when owner of two parcels previously used one to benefit the other, and on transfer of one parcel parties intend use to continue if use was continuous/apparent/known and reasonably necessary to use and enjoyment (a “quasi easement”) SCOPE: existing quasi-easement

Question 58

Easement by necessity

Answer 58

Created when a property is virtually landlocked. Requires: - estates must have been under common ownership; - strict necessity arose at time of severance SCOPE: extent of necessity

Question 59

Easement by Estoppel

Answer 59

Good faith, reasonable, detrimental reliance on permission to make limited use of servient estate. Must be necessary to prevent injustice.

Question 60

license

Answer 60

Nonpossessory right to use another’s land for specific purpose that is FREELY REVOCABLE unless coupled with an interest or detrimentally relied upon. Binds only licensor, not successors.

Question 61

Covenants

Answer 61

Restrictions on use of land that run with the lands and bind successive owners. Transferable. Remedy is DAMAGES! REQUIREMENTS TO RUN: (WINTP) 1) writing 2) intent 3) notice 4) touch and concern 5) privity

Question 62

Equitable Servitude

Answer 62

Promise concerning use of land that runs to successors, with easier standard. Requirements to run: WINT Remedy is injunctive relief!

Question 63

Privity requirements for burden to run

Answer 63

Horizontal privity = original parties must have had privity of estate (some shared property interest) at time covenant is created Vertical privity = successor must hold estate of same or longer duration (life estate can run to life estate)

Question 64

Direct restraints on alienation

Answer 64

Direct restraints on alienation (e.g., restrictions that prohibit some or all types of transfers) are disfavored and are valid only if they are deemed reasonable. To determine reasonableness, courts weigh the utility of the restraint against the harm resulting from its enforcement.

Question 65

Ouster

Answer 65

When a co-tenant refuses to allow another co-tenant access to the property, then there has been an ouster. The ousted cotenant may bring a court action (e.g., an injunction) to gain access to the property and to recover the value of the use of the property for the time during which the cotenant was denied access to the property.