Real Property

Question 1

What are the elements of adverse possession in Virginia?

Answer 1

(1) continuous for 15 years
(2) open and notorious
(3) actual
(4) exclusive
(5) hostile

Question 2

If land is possessed by a family member, it [is/is not] presumed to be hostile for adverse possession purposes.

Answer 2

is not

Question 3

In order for possession to be exclusive…

Answer 3

…it cannot be shared with the true owner, although two or more people can join together to create a tenancy in common by adverse possession.

Question 4

What is an easement?

Answer 4

An easement is the right held by one person to make specific, limited use of land owned by another.

Question 5

For an easement by necessity to be granted…

Answer 5

…the property must be virtually useless without the benefit of the easement.

Generally, easements by necessity arise when property is divided and as a result a portion becomes landlocked and cannot be accessed without use of an easement.

In order for an easement by necessity to be recognized, both the dominant and servient estates must have been under common ownership in the past and the necessity must have arisen at the time that the property was severed and the two estates were created.

Question 6

What are the elements for an easement by prescription in Virginia?

Answer 6

Continuous, actual, open, and hostile use for a period of 20 years.

The use need not be exclusive and the scope of an easement by prescription is limited to the nature and extent of the adverse use.

Question 7

Possession is open and notorious if…

Answer 7

…a reasonable true owner would become aware of the claim

Question 8

The Statute of Frauds requires that a land sale contract must be:

Answer 8

(i) be in writing
(ii) be signed by the party to be charged; and (iii) contain all of the essential terms (i.e., parties, property description, terms of price and payment).

Question 9

What is the remedy for a breach of a land sale contract?

Answer 9

Specific Performance

Question 10

The defense of part performance is established by a showing that:

Answer 10

(i) the parol evidence agreement has certain and definite terms,
(ii) the part performance was made pursuant to the agreement, AND
(iii) the agreement has been executed in a way that requires full execution to prevent a fraud upon the party that has partially performed.

Substantial improvements to the property by the purchaser is part performance that often evidences a contract.

Question 11

An express easement arises when…

Answer 11

… it is affirmatively created by the owner of the servient estate in a writing that is in compliance with the Statute of Frauds.

Question 12

What is the difference between an easement appurtenant and an easement in gross?

Answer 12

An easement appurtenant benefits the owner of the dominant estate in his use and enjoyment of his property (i.e., it is tied to the land). The benefit/burden is transferred automatically with transfer of either sub/dom estate. VA presumes that an easement is appurtenant.

An easement in gross is given to an individual to benefit them personally. The burden transfers automatically, but the benefit only transfers if parties intend it to be transferrable or the easement was for commercial use.

Question 13

What are the covenants contained in a general warranty deed (also known as “English covenants of title” in Virginia)?

Answer 13

(1) Seisin—grantor owns land as described in deed
(2) Right to convey—grantor has right to transfer title
(3) Against encumbrances—no undeclared encumbrances against land
(4) No act to encumber— grantor has taken no act that results in the encumbrance of the property
(5) Quiet enjoyment—grantee not disturbed in possession by third party’s lawful claim
(6) Further assurances—grantor will do whatever future acts reasonably necessary to pass title if later determined title is imperfect

Question 14

What is the difference between a general warranty deed and a specific warranty deed?

Answer 14

A special warranty deed is a guarantee by a grantor that no defect of title occurred during his ownership of the property.

A general warranty deed is a guarantee by a grantor no defect not occur during his or any preceding ownership of the property.

Question 15

If covenants of title are breached, at what point in time are they considered breached?

Answer 15

At the time of conveyance

Question 16

Under the common law doctrine of merger, obligations contained in the contract of sale…

Answer 16

…are merged into the deed and cannot thereafter be enforced unless the deed contains the obligation.

However, this doctrine generally is not applicable to obligations that are collateral to and independent of the conveyance itself.

Question 17

Between tenants in common, joint tenants, and tenants by the entirety, which has/have the right to partition property unilaterally?

Answer 17

TiC and JT can partition unilaterally. Tenants by the entirety can only partition by mutual agreement in writing or by court order.

Question 18

Which form of partition is favored by courts?

Answer 18

Courts generally prefer partition in kind to partition by sale.

However, if physical division of the property is not practicable or fair, the court may order a partition by sale and distribute the proceeds.

Question 19

Generally, a co-tenant [does/does not] have a right to reimbursement from other co-tenants for improvements made to the property?

Answer 19

Does not.

Generally, co-tenant does not have a right to contribution from other co-tenants for improvements made to the property.

But in a partition action, the co-tenant may be entitled to the additional value attributable to the improvement if the property is sold or if the property is divided among the co-tenants.

Question 20

A joint tenancy exists when…

Answer 20

…two or more persons own property with the right of survivorship expressly reserved in the grant.

Question 21

To transfer ownership of real property, the grantor must, at the time of transfer, intend […]. Typically, this intent is manifested by delivery of the […].

Answer 21

[to make a present transfer of a property interest to the grantee]

[deed]

Delivery may be completed by physically handing or mailing the deed to the grantee or the grantee’s agent.

Question 22

an encumbrance is a claim or liability that is attached to property that may…

Answer 22

…lessen its value (such as a lien or mortgage).

A zoning regulation is not an encumberance.

Question 23

Grantee’s constructive or actual knowledge of encumbrance [does/does not] constitute a defense to grantor’s breach of covenant free from encumbrances or the covenant of “no act to encumber.”

Answer 23

does not

Question 24

With respect to a home, a partition in kind [is/is not] generally possible.

Answer 24

is not

Question 25

In a joint tenancy or tenancy by the entirety, neither party can encumber the property without the…

Answer 25

…consent of the other.

Question 26

What are the elements to create a tenancy by the entirety?

Answer 26

The tenancy by the entirety must be created
(i) with each joint tenant having the equal right to possess or use the property,
(ii) with each interest equal to the others,
(iii) at the same time,
(iv) in the same instrument, AND
(v) when the joint tenants are married.

Question 27

What effect does divorce have on a tenancy by the entirety?

Answer 27

It automatically severs it.

Thereafter, the ex-spouses hold the property as tenants in common.

Question 28

A grantor who conveys an interest to land before actually owning it is…

Answer 28

…estopped from later denying the effectiveness of the deed.

Consequently, when the grantor does acquire ownership of the land, the after-acquired title is transferred automatically to the prior grantee.

Question 29

Defects in title rendering title unmarketable include:

Answer 29

(i) title acquired by adverse possession that has not yet been quieted;
(ii) future interests wherein the holders of such interests have not agreed to the transfer;
(iii) private encumbrance (e.g., mortgage, covenant, option, or easement);
(iv) violation of a zoning ordinance; OR
(v) significant physical defect.

Question 30

If the original purpose for which an easement is created no longer exists, then…

Answer 30

…the easement will be terminated.

Question 31

A license is a…

Answer 31

non-possessory right to enter another’s land for some delineated purpose.

A license generally cannot be transferred.

Question 32

How does ownership work in a condominium and who has standing to enforce claims relating to the conduminium?

Answer 32

Each unit owner of a condominium also owns the common areas of the building together with the other unit owners as tenants in common. In Virginia, the common elements of a condominium include all parts of the condominium other than the living units.

Only the owners’ association has standing to sue for claims or actions related to the common elements of the condominium. The individual owners of the units do not have standing to bring such claims.

Question 33

A license is freely revocable unless it is coupled with an interest or detrimentally relied upon, in which case the license is…

Answer 33

…irrevocable and amounts to an equitable easement.

Detrimental reliance requires the licensee to expend money in reasonable reliance on the license.

Question 34

If a written easement is granted but not recorded against the servient estate, the easement [is/is not] enforceable against a bona fide purchaser (i.e., a purchaser with no notice of the easement).

Answer 34

is not

Question 35

A seller is required to deliver […] at closing.

Answer 35

[marketable title]

Question 35

the risk of loss between execution of the land sale contract and the closing date is placed on […].

Answer 35

the buyer