Real Property

Question 1

In Virginia, does the rule in Shelley’s case apply?

Answer 1

No, this rule has been abolished

The rule in shelley’s case provides that

Question 2

Adverse Possession

What are the Elements of Adverse Possession?

Answer 2

Possession is: Hostile, Actual, Exclusive, Under a Claim of Right, Open and Notorious, Continuous, and Uninterrupted for the period prescribed by the statute (15 years in VA)

Question 3

Easement

Question 4

Easement by Express Grant

Answer 4

An express easement may be created by a valid conveyance that complies with the formal requisites of a deed

Question 5

Easement by Implication

Question 6

Easement by Prescription

Question 7

If a party attempts to create an easement orally, what is the result/effect?

Answer 7

The result is the creation of a license

While a license is normally a revocable privilege, it becomes irrevocable if the grantee invests substantial amounts of money or labor in detrimental reliance on the oral agreement, and then the grantor is estopped (i.e., consent, acquiescence etc.,) from revoking it

Detrimental reliance on consent, acquiescence, etc.

Question 8

When there is detrimental reliance and a license becomes irrevocable, what easement is created?

Answer 8

Equitable Easement also called “Easement by Estoppel”

Question 9

Enforcement of an Easement

Answer 9

To enforce an easement, courts look at the scope and the intended beneficiaries of the interest to determine the reasonable intent of the original parties

Question 10

What happens if the easement holder exceeds the scope of the easement?

Answer 10

The easement is surcharged; i.e., can obtain an injunction against the excess use and damages for any harm to the land

Question 11

Permanent Injunction

Merits of granting an injunction and likelihood of success in suing to enjoin/obtain an injunction

Answer 11

To obtain a permanent injunction, plaintiff must show that: (i) he has been harmed; (ii) there is no adequate legal remedy (i.e., money damages); (iii) an injunction is practicable, feasible, and effective; (iv) the balance of the hardships are in his favor; and (v) defendant has no equitable defenses

Question 12

Appurtenant Easement

Answer 12

An easement is appurtenant when it benefits the holder in her physical use or enjoyment of another tract

Thus, for an easement to be appurtenant, there must be two tracts: the Dominant tenement (the estate benefitted by the easement), and the servient tenement (the estate subject to the easement right)

Question 13

What is the effect of transferring a servient parcel?

Answer 13

The new owner takes it subject to the burden of the easement, unless he is a bona fide purchaser with no notice of the easement

Question 14

What notice jurisdiction does Virginia recognize?

Answer 14

VA is a Race-Notice Jurisdiction

Under VA race-notice statute, a subsequent bona fide purchaser prevails over the prior grantee who failed to record, if the subsequent purchaser had no actual or constructive notice at the time of the conveyance, and the subsequent grantee records first

Question 15

How does a person attain status as a Bona Fide Purchaser?

Answer 15

A person MUST: (1) be a purchaser, (2) take without notice, and (3) pay valuable consideration

Question 16

In VA, what ways can put a person that acquires servient land on notice of an easement?

Answer 16

(i) Actual Knowledge, or (ii) notice from a document creating the easement is recorded in public records

VA is not an inquiry jurisdiction (notice from the visible appearance of the easement on the land) where a purchaser is required to make reasonable inquiries into the land/easement

Notice from visible appearance would be another way to put a person on notice but not in VA

Question 17

Fixture

Answer 17

A chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty

Question 18

Annexation

Answer 18

An agreement between the landlord and tenant is controlling on whether the chattel annexed to the premises was intended to become a fixture

Where the lease is silent, a tenant may remove a chattel that he has attached to the premises as long as the removal does not cause substantial damage to the premises or the virtual destruction of the chattel

Removal generally must occur before the end of the lease term or it becomes the property of the landlord

Tenant is responsible for repairing any damage caused by the removal

Question 19

Inter Vivos Gift

Question 20

Priority

Doctrine of “After-Acquired Title” or Estoppel by Deed

Answer 20

When a party becomes an owner in tenancy in common, the lien created by the deed of trust attaches to his interest in the property

I.e., entitlement to balance of sale proceeds

Question 21

Priority

Part Performance

Question 23

Life Estate

Question 24

Fee Simple Determinable

Question 25

Vested Remainders

Question 26

Vested Remainder Subject to Total Divestment

Question 27

Deed of Trust

Question 28

Fee Simple Determinable

Question 29

Marketable Title

Question 30

Priority of Liens

Child Support Judgment

Answer 30

In VA, property held by the entirety is liable for the joint debts of both spouses, but the property is immune from the claims of creditors against either spouse alone

An effort on the part of one spouse, acting alone, to create a lien against entirety property creates no lien at all

Upon divorce, property held in tenancy by the entirety becomes tenancy in common

The issue was whether the lien of the child support judgment, on the home/property, docketed after the couple’s divorce has priority over a recorded deed of trust executed soley by one spouse prior to the divorce. After acquired title issue also applied to this fact pattern

Question 31

Distribution of Proceeds (according to priority order)

Question 32

Deficiency

Question 33

Partition Sale

Question 34

Permanent Injunction

Question 35

Doctrine of Equitable Conversion

Answer 35

Once a contract is signed and each party is entitled to specific performance, equity regards the purchaser as the owner of the real property

Conceptual connection to specific performance and risk of loss

Question 36

Risk of Loss

Answer 36

If the property is destroyed without fault of either party before the date of closing, becasue the buyer is deemed the owner of the property, the risk of loss is on the buyer

Thus, the buyer must pay the contract price despite a loss due to fire or other casualty, unless the contract provides otherwise

Question 37

Specific Performance

Question 38

Statute of Frauds

Question 40

Specific Performance in Absence of Land Contract in Writing

Answer 40

A court may give specific performance of a contract despite the absence of a writing if there has been acts of part performance

In most states, two of the following are required for part performance

If acts done by a party in reliance on the contract would result in hardship to such to an extent that it would be fraud on that party were the contract not specifically enforced, the other party may be estopped from asserting Statute of Frauds as a defense

Question 41

When property is conveyed to spouses, Virginia law presumes against a tenancy by the entirety unless?

crossover with Wills

Answer 41

(1) All required common-law unities exist (time, title, interest, marriage and possession); AND (2) the instrument uses (i) the language designating the spouses as “tenancy by the entireties” or “tenants by the entirety” OR (ii) expressly stating the expression “with survivorship” or similar language in the instrument

Although the presumption is against finding a tenancy by the entirety, coupled with common law unities and language of a right of survivorship, a tenancy by the entirety is created

Question 42

In the context of Tenancy by the Entirety, the right of suvivorship means?

Answer 42

Upon the death of either spouse, the whole estate by the entireties remains in the surviving spouse

Rights with survivorship is non-probate assets

Question 43

**

What are the Common-Law Unities in a tenancy by the entireties?

Question 44

Suretyship Provision of the Statute of Frauds

crossover with contracts

Answer 44

No action concerning an agreement shall be brought against any person upon a promise to answer for the debt, default, or misdoings of another, unless that agreement is in writing and signed by the party to be charged or his agent

Question 45

Collateral Undertaking

Answer 45

Applies when the promisor is merely a surety or guarantor, receives no direct benefit, and is liable only if the debtor defaults

Question 46

A grantee who assumes an existing mortgage is not a

crossover with SOF contracts

Answer 46

Surety; The grantee makes no promise to the mortgagee to pay the debt of another, but promises the grantor to pay the mortgagee the debt the grantee owes to the grantor

Question 47

Is the contracts Parol Evidence Rule applicable to Deeds?

Crossover with Contracts

Answer 47

Yes, Evidence in relation to a deed is subject to the parol evidence rule, which applies to written instruments, including deeds

Question 48

Parol Evidence General Rule & Relation to Deeds

Answer 48

Parol evidence is inadmissble to vary or contradict a complete and unambiguous written instrument

Where the language of a deed is explicit, the “intention is clear, and the result is not repugnant, the court should look no further than the four corners of the instrument

Question 49

Doctrine of Merger

Answer 49

The land sale contract merges with the deed at closing, and the seller is no longer liable for breach of contract provisions pertaining to title

However, contract terms collateral to title does not merge into the deed (In VA, doctrine of merger is inapplicable to contract provisions unrelated to title even where the parties have expressly agreed in the land sale contract that representations and warranties shall be merged into the deed).

Example:

Question 50

Collateral Rule as to Doctrine of Merger

Answer 50

Not all agreements between the parties regarding the purchase and sale of property are contained in the deed

Such agreements are considered collateral to the sale if they are distinct agreements made in connection with the sale of the property, if they do not affect the title to the property, if they are not addressed in the deed, and if they do not conflict with the deed

Provisions in the contract for sale which are collateral to the passage of title and not covered by the deed are not merged into the deed and survive its extinction (under merger, provisions in a contract for sale are extinguished and merged into deed).

Question 51

Does a Condo Owner have Standing to sue for claims related to common elements and limited common elements?

Answer 51

No, under VA code, only the Condominium Unit Owner’s Association has standing

Example:

Question 52

General Warranty Deed vs. English Covenants of Title

Answer 52

General Warranty Deed: Grantor covenants against title defects that either he or his predecessors created

English Covenants of Title: Includes Seisin, the right to convey, quiet possession, further assurances, and no encumbrances

Question 53

Covenant of Seisin

Answer 53

A covenant that the grantor has the interest that he purported to convey

Question 54

Covenant of Right to Convey

Answer 54

Covenant that assures that the grantor has the right, power and authority to convey the property

Question 55

Covenant of Quiet Possession

Answer 55

Covenant that the grantee can peaceably and quietly hold and possess the property without demand or claim to the property from a third party

Question 56

Covenant of Further Assurances

Answer 56

Covenant to execute deeds or otherwise take action to perfect title if necessary

Question 57

Covenant against Encumbrances

Answer 57

Covenant that assures that there are no encumbrances against the title or interest in the property

Question 58

Breach of Covenants

Question 59

A deed may validly convey real property by inter vivos so long as there is ____

Elements/Requirements

Answer 59

1. Donative Intent
2. Delivery
3. Acceptance

Question 60

Requirements of a Deed

Crossover and tie into Inter Vivos Gift through a Deed

Answer 60

The deed must:
1. Be in writing
2. Signed by the grantor
3. Reasonably Identifies the parties (parties’ names need only be reasonably identifiable)
4. Reasonably Identifies the land

Both Inter Vivos Gift of RP elements plus Deed Elements/Requirements Must be met

Question 61

The grantee becomes bound by the terms of the deed by his ____ of a deed delivered by the grantor, even if the deed is signed only by ____

Answer 61

Acceptance; The Grantor

Question 62

Delivery of Deed can occur by various methods including

Question 63

Acceptance of the deed by the Grantee can be ____ since the conveyance is presumed to be ____

Answer 63

Implied; Beneficial