Real Property Flashcards
Regarding zoning laws, may a party transfer their non-conforming use?
Yes, courts generally allow the right to use the property in the preexisting nonconforming manner to be transferred.
Does not apply if the new owner’s use goes beyond the preexisting nonconforming use!
Regarding recording a deed that is intended to be transferred, can you rebut the presumption of delivery?
Yes, if there is evidence of contrary intent in the fact pattern.
EX: A falling out, never truly delivering, etc.
What is a contigent remainder?
Any sort of remainder where 1) A grantee is not ascertainable; or 2) the remainder is subject to an express condition precedent.
If a condition is not satisfied, the grantee’s interest is terminated!
May one co-tenant bind another co-tenant to a contract/agreement?
No, absent an agreement to the contrary between co-tenants.
When may a landlord retain some or all of a security deposit?
1) When the tenant breaches the lease (failing to pay rent for the rest of the month)
2) When damages of the premises are in excess of normal wear and tear.
Can an express easement limit the expansion and use of the easement?
Yes, and such limitations are binding on any subsequent holders of the dominant estate!
In determining whether an easement is in gross or appurtenant, what is the presumption?
An easement is generally presumed to be appurtenant [runs with the land, not the person]
Does a liscence to use someone’s land terminate upon the death of the licensor?
Yes!
What is an implied reciprocal servitude?
Typically, equitable servitudes need t be in writing….
However, existence of a common scheme is enough to demonstrate a implied reciprocal servitude.
Such servitude does not require actual or record notice.
What are the present covenants in a general and special warranty deed?
Covenant of Seisin: Grantor owns the land described in deed
Covenant of the right to Convey: Grantor has right to transfer title
Covenant against Encumbrances Deed has no undisclosed encumbrances
What are the future covenants in a general and special warranty deed?
Covenant of Quiet Enjoyment: Grantees possession will not be interfered with by a 3rd party’s lawful claim for title
Covenant of Warranty: Grantor will help defend against 3rd party’s lawful claim for title
Covenant for Further Assurances: Grantor will do whatever is necessary to perfect title should it be defective.
What is the difference between a general warranty deed and a special warranty deed?
General Warranty: Grantor liable for defects at any time
Special Warranty: Grantor liable for defects during time grantor had title
What are the requirements for a covenant?
1) Writing, SOF
2) Intent
3) Touch and Concern (affects value)
4) Privity
Horizonal Privity: For burden to run, OG parties must have privity of estate at time of agreement.
**Vertical Privity:: Relationship between OG and successor; burden runs if successor has same possessory interest
Does a successor or purchaser need notice to be burdened by a covenant?
Generally yes; but remember that there is actual and constructive notice.
Does a mortgagor have a duty not to commit waste with respect to mortgaged property?
Yes, when the waste impairs the mortgagee’s security interest in that property.
What is the after acquired title doctrine or estoppel by deed?
When a transferor of real property (who does not own it at the time) becomes owner of said property….
The title of the property is automatically vested in the transferee.
For the purposes of a land sale contract, is the closing date an essential term?
No!
What are the essential terms of a land sale contract?
1) Parties
2) Property description
3) Terms of price and payment
What does the implied warranty of fitness or suitability apply in land sale contracts?
1) Newly constructed residences
2) Any defects that could not have been uncovered by buyer’s reasonable inspection
What is the doctrine of equitable conversion?
During the period between contracting and closing, the risk of loss is on the buyer because the buyer has equitable title.
UNLESS the state follows the Uniform Vender Act, which places the risk of loss on the seller.
[Majority rule says possession of property does not determine of risk]
What is subrogation?
Occurs when a person pays off another person’s ENTIRE mortgage obligation
At that point, the subrogator can seek to foreclosure on said mortgage because they have paid the obligation off and to avoid unjust enrichment.
What is the effect of a recorded deed in determining whether someone is a bona fide purchaser?
It prevents them from claiming it was without notice because they would have had constructive notice!
Does the holder of a future interest in property have a license to inspect the property for waste?
Yes!
Further, the license is not subject to revocation by the holder of the current possessory interest in the property.
Adverse Possession: What type of possessory interest do you possess?
You are entitled to the current possessory interest of the person who had the current right to the land.
EX: Person has a LE; I take the property via adverse possession. I know how a LE interest, based on the original possessor’s property.
In a partition action, what contributions are considered?
Repairs that are necessary!
In contrast, net income from a business is not required to be shared by other co-tenants.
