Real Property

Question 1

Easements

Answer 1

An easement holder has the right to use another’s land for a special purpose, but has no right to possess or enjoy that land; easements can be appurtenant or in gross.

Question 2

Easement Appurtenant

Answer 2

An easement appurtenant benefits the dominant estate and burdens the servient estate; it passes with the transfer of the BENEFITED land, mention of the easement in the conveyance is irrelevant. The easement burden will not pass if conveyance is to a bona fide purchaser with no ACTUAL or CONSTRUCTIVE notice of the easement.

Question 3

Easement in Gross

Answer 3

An easement in gross benefits the holder, not an estate, and is not transferable unless it serves an economic or commercial interest.

Question 4

Foreclosure

Answer 4

Foreclosure is a process by which the mortgagor’s interest in the property is terminated. Foreclosure destroys all interest junior to the mortgage being foreclosed, including easements. Priorities among mortgages on the same real estate are normally determined by chronology; the earliest mortgage is first in priority. However, failure to record may change chronological priority.

Question 5

Recording Acts

Answer 5

Where a party fails to record, the result depends on whether jurisdiction applies race, notice, or race-notice recording statute. Mortgagees for value are treated as “purchasers” either expressly by the recording act or by judicial classification.

Question 6

Notice Statutes

Answer 6

Under a notice statute, a subsequent BFP prevails over a prior grantee who failed to record provided the BFP had NO ACTUAL OR CONSTRUCTIVE NOTICE AT THE TIME OF THE CONVEYANCE.

Question 7

Race - Notice Statutes

Answer 7

Under a race-notice statute, a subsequent BFP is protected only if she TAKES WITH OUT NOTICE AND RECORDS BEFORE prior grantee.

Question 8

Race Statutes

Answer 8

Under a pure race statute, whoever records first, wins; notice is irrelevant.

Question 9

Bona Fide Purchaser

Answer 9

A bona fide purchaser is one who takes without notice and pays valuable consideration for the land.

Question 10

Actual Notice

Answer 10

Actual notice includes knowledge obtained from any source.

Question 11

Constructive Notice

Answer 11

Constructive notice refers to recordation of deeds in such a manner that a researcher could reasonably find it.

Question 12

Inquiry Notice

Answer 12

Under certain circumstances, a purchaser is required to make reasonable inquiries and is charged with the knowledge of whatever the inquiry would have revealed. Quitclaim deeds do not charge purchaser with inquiry notice.

Question 13

Foreclosure - Inclusion of Necessary Parties

Answer 13

Because foreclosure destroys all junior interests, such interests are necessary parties and must be included in the foreclosure action. Failure to do so preserves a subordinate party’s interest despite foreclosure and sale.

Question 14

Easements - Transfer

Answer 14

If the servient parcel is transferred, its new owner takes subject to the burden of the easement, UNLESS she is a BFP with no notice.

Question 15

Deed Formalities

Answer 15

A deed must be IN WRITING, be SIGNED by the GRANTOR, and reasonably IDENTIFY the PARTIES and the LAND. Conveyance requires DEED, DELIVERY, and ACCEPTANCE (presumed).

Inter vivos gift conveyances must show:

1) donative intent
2) delivery
3) acceptance

Question 16

General Warranty Deed - Covenants

Answer 16

With a general warranty deed, the grantor covenants against title defects made by himself and prior title holders.

Against Encumbrances
Further Assurances
Quiet Enjoyment
Right to Convey
Seisin
Warranty

Question 17

Covenant of Seisin

Answer 17

The grantor covenants that she has the estate she purports to convey including both title and possession at the time of the grant.

Question 18

Covenant if Right to Convey

Answer 18

The grantor covenants that she has the authority to make the grant; this can be satisfied by title alone.

Question 19

Covenant Against Encumbrances

Answer 19

The grantor covenants against the existence of PHYSICAL or TITLE encumbrances (i.e., encroachments, mortgages).

Question 20

Covenant of Quiet Enjoyment

Answer 20

The grantor covenants that the grantee will not be disturbed in possession by a third party’s LAWFUL claim of title.

Question 21

Covenant for Further Assurances

Answer 21

The grantor promises to perform acts reasonably necessary to perfect the title conveyed.

Question 22

Breach of Covenants

Answer 22

S RC E are breached, if at all, at time of CONVEYANCE

F Q W are breached ONLY upon disturbance of grantee’s possession.