Real Property

Question 1

Restraint on Alienation

Answer 1

Restraint on alienation occurs when a grantor forbids the sale of land that is being conveyed. Generally, such a restraint is void, and the restrictive line item will be struck from the conveyance.

Question 2

Marketable Title

Answer 2

Implied in all land sale contracts is an implied warranty that at closing, the seller will give the buyer marketable title that is reasonably free form defects regardless of the type of deed that is contemplated in the contract. It does not need to be perfect, but it should be free from unreasonable risks of litigation involving the property. Purchasers have a duty to report defects to give the seller reasonable time to cure. Marketability challenges must be made prior to transfer, else it will merge into the deed.

Question 3

Tenancy in Common

Answer 3

A tenancy in common is a concurrent estate held by more than one person with no right of survivorship. Tenants can hold different interests in the proeprty, but each is entitled to possession of the whole. Interests are alienable, devisable, and inheritable.

Question 4

Joint Tenancy

Answer 4

A joint tenancy is a conveyance of real property to two or more people which includes right of survivorship. Joint tenancy requires four unities: 1) Time, 2) Title, 3) Interest, 4) Posession.

Question 5

Severance of Joint Tenancy

Answer 5

When one joint tenant unilaterally transfers their ownership interst, the new tenant takes the property as tenants in common with the remaining joint tenants, who retain joint tenancy. If a joint tenant takes out a mortgage, in a lien theory jurisdiction, the joint tenancy remain intact, however, in a title theory jurisdiction, the joint tenancy is severed and tenancy in common results.

Question 6

Tenancy by the Entirety

Answer 6

Tenancy b the entirety is a joint tenancy held by a married couple with the right of survivorship. It is only severable by divorce, death, a creditor of both spouses, or by mutual agreement. Neither spouse alone can convey or encumber the real property interest.

Question 7

Co-tenancy Repairs

Answer 7

Each co-tenant is responsible for their fair share of carrying costs (taxes, mortgage interest payments, etc.), based upon the undivided share they hold. A co-tenant that makes repairs is entitled to contribution for reasonable and necessary repairs provided they notify the others of the need.

Question 8

Legal Possession

Answer 8

Under American view, the landlord only has the duty to deliver legal possession, not actual possession. Under English rule, the landlord must deliver actual possession. In this situation, the lessee can terminate the lease and recover damages for the breach of this duty.

Question 9

Leaseholds

Answer 9

A leasehold provides the tenant with a present possessory interest in the property.

Question 10

Tenancy for Years

Answer 10

Tenancy for years is a leashold estate for a fixed period of time. This leasehold automatically terminates at the end of the lease period. Statute of Frauds requires that any lease longer than one year must be in writing.

Question 11

Periodic Tenancy

Answer 11

A periodic tenancy continues for for a time until terminaed by proper notice. This leasehold can be created by express agreement, or by implication if rent is paid in specific periods, or by law. Generally, termination requires notice of one full period, except for a year-to-year tenancy which requires 6 month notice.

Question 12

Tenancy at Will

Answer 12

Tenancy at will is an ongoing leasehold that continues until terminated by either the landlord or tenant,

Question 13

Tenancy at Sufferance

Answer 13

Tenancy at sufferance is a leasehold where the tenant has wrongfully remained on the property beyond the expiration of the lease.

Question 14

Holdover Tenant

Answer 14

A holdover tenant is one that remains in possession of the property despite expiration of the lease. If the landlord allows them to remain on the proeprty and accepts rent, the tenant becomes a month-to-month tenant.

Question 15

Tenant Duties

Answer 15

A tenant’s duties include payment of rent, not to commit waste, and not to use the property illegaly. A landlord can terminate the lease or seek injunctive relief in the event of illegality by the tenatns.

Question 16

Rental Fees

Answer 16

Rental fees earned from third parties must be shared with all joint tenants and tenant in common owners.

Question 17

Ouster

Answer 17

A tenant in common or joint tenant who is denied access to their property has been subject to an ouster. A tenant in common cannot adversely possess an interest in a tenancy in common absent an ouster.

Question 18

Subleases

Answer 18

A sublease is a transfer of less than the fll amount of the lease term/property to another. A sub-lessee is only in privity with the sub-lessor by contract, and is not personally liable to the landlord for rent or for the performance of any covenants in the main lease unless the sub-lesee expressly assumes the covenants or mainains privity of estate. Subleases cannot extend beyond the term of the original lease, if it does, the sublessee can be ejected.

Question 19

Implied Warranty of Habitability

Answer 19

Implied in every residential lease is the implied warranty of habitability, requiring that the landlord provide a place ot live that is reasonably suited for inhabitation, including heat, running water, and sewage disposal. If breached, the tenant may move out and terminate the lease, withold or reduce the rent, repair and deduct from the rent, or remain and sue for damages.

Question 20

Constructive Eviction

Answer 20

A construcive eviction can occur as a result of the landlord’s breach of implied covenant of quiet enjoyment if the landlord substantially interferes with the tenant’s use and enjoyoment of the premises by their actions or failure ot act to resolve a problem. The breach must cause a loss of substantial use and enjoyment of the premesis, and the tenant must give the landlord notice and opportunity to remedy the problem. Once the tenant vacates the premesis, the tenant may terminate the lease and seek damages.

Question 21

Self-Help

Answer 21

Self-Help refers to the actions a landlord may take to eject a tenant from the property. Most states do not allow self-help, rather the landlord msut instead: 1) properly serve the tenant with notice of lawsuit; and 2) obtain a court judgment of posession

Question 22

Assignment of the Lease

Answer 22

Assignment of a lease occurs when a tenant transfers all of their remaining interest in the leasehold to a third party. Leases are freely assignable unless prohibited in the lease agreement. Assignee is liable to the landlord for rent and all other covenatns that run with the land. The Assignor also remains liable based on privity of contract.

Question 23

Assignment Clauses

Answer 23

Assignment clauses are valid, but narrowly construed against the Landlord. If they know of the assignment and don’t object, they have waived the claus. If the assignment clause is violated, the landlord accepts the assignment if they accept rent from the new tenant.

Question 24

Real Covenants

Answer 24

A real covenant is non-possessory interest in land, obtained via contract, and recorded to establish that it runs with the land. This contract is a formal obligation of the burdened party to either do or or refrain from doing something on the land. Breaches of real covenants are remedied with monetary damages.

Question 25

Enforcing a Benefit of a Real Covenant

Answer 25

Enforcement of a real covenant requires a writing that satisfies the Statute of Frauds, intent for the covenant to run with the land, vertical privity, and the covenant must touch and concern the land.

Question 26

Vertical Privity

Answer 26

A transfer of right or burdens between a party that enters a covenant and their successors in ownership have vertical privity.

Question 27

Horizontal Privity

Answer 27

The originalk parties owning real property that intially agree into a real covernant have horizontal privity

Question 28

Equitable Servitudes

Answer 28

An equitable servitude is a non-possessory agreement regarding how the land can be used, enforecable by injunction. Enforcement requires a writing that satisfies the statute of frauds, an intent to enter into such an agreement, and the agreement must touch and concern the land. To enforce a burden, all of the above is required, along iwth notice. No horizontal or vertical privity is required.

Question 29

Easements

Answer 29

An easement is an agreement where a party (dominant estate) buys the right to use another's land (servient estate). These writings must be in writing to satsfiy the Statute of Frauds, except for necessity and presecription (like adverse possession).

Question 30

Easement in Gross

Answer 30

An easement n gross is one that provides use or benefit to a particular person or persons, such as for a utility company personnel to enter property to service equipment.

Question 31

Easement Appurtenant

Answer 31

An easement appurtenant beneifts any successive owner's enjoyment and use of the land. Unlike easements in gross, these attach to the land. Burdening easemenets pass to subsequent owners so long as the new owner has notice.

Question 32

Easement Creation

Answer 32

An easement can be created by express grant or by implication, necessity or prescription.

Question 33

Express Grant of an Easement

Answer 33

An easement is created by express grant when it is specified in a valid, signed writing detailing conveyance of the rright to the dominant party.

Question 34

Easement by Implication

Answer 34

An easement by implication is created when a signle tract of land is divided, and the previous owner established use of the easement. The easement must affect the value of the land when intiialy crated and was not intended to be temporary.

Question 35

Easement by Necessity

Answer 35

An easement by necessity is created when a single owner subdivides their property and access to the subdivided property would be impossible without usage of the easement. Once the necessity is resolved, the easement is rescinded.

Question 36

Easement by Prescription

Answer 36

An easement by prescription is created similar to adverse possession, except for the requirement of exclusivity. The possessor's use must be 1) continuous, 2) open and notorious, 3) hostile, and 4) for the duration of the statutory period.

Question 37

Waste

Answer 37

Affirmative waste is volutary waste, permissive waste is thorugh neglect, and ameliorative waste can be affected via improvements to the land that do not benefit later landowners.

Question 38

Fixtures

Answer 38

A fixture is a chattel that is attached to the land, thereby converting it from personal property to a fixture. Fixtres that can be removed from the land without causing damage and trade equipment are typically exceptions.

Question 39

Termination of an Easement

Answer 39

An easement is terminated thorugh non-use, abandonment (requires phyical act), agreement, merger, or end of necessity.

Question 40

Transfer of an Easement

Answer 40

An easement appurtenant transfers with the encumbered real property is transferred to a new owner. The burden and benefit convey as well, but subject to the recording statutes.

Question 41

Affirmative/Negative Easement

Answer 41

An affirmative easement allows the holder to affirmatively use another's land. A negative easement allows the holder to compel the owner of the other land to not use it in a particular way.

Question 42

Easement Relocation

Answer 42

An easement appurtenant cannot be moved if it's location was already reasonably decided. After the easement is created, the reason for location selection is irrelevant.

Question 43

Easement Maintenance

Answer 43

An easement holder is required to make any necessary repairs to the easement. If the land is damaged by the holder, they are responsible for the repair.

Question 44

Profit

Answer 44

A profit is an agreement that entitles its holder to enter the servient estate to extract resources, such as timber, oil, or quarried material.

Question 45

License

Answer 45

A license is permission to enter another's land for some identified narrow purpose. A licence does not need to be in writing, and is freely revocable by the licensor, unless estoppel bars revocation.

Question 46

Recording Statutes

Answer 46

A recording statute allows for documentation of real property ownership transfers, and provides guidance for priority of ownership. These statutes are critical when determining the ownership of a parcel of property that has been transferred to multiple parties. There are three types of recording statutes: 1) race, 2) notice, and 3) race-notice.

Question 47

Recording Statutes - Race

Answer 47

In a race recoding statute jurisdiction, the owner is whomever records the transfter first.

Question 48

Recoding Statutues - Notice

Answer 48

In a notice recoding statute jurisdiction, an subsequent bonafide purchaser that provides notice of ownership first will own the property when a previous purchase failed to record.

Question 49

Recording Statutes - Race-Notice

Answer 49

in a race-notice recording statute jursidction, a subsequent bonafide purchaser prevails over a prior grantee if they did not know of the earlier transfer and their deed was recorded before the first purchaser's deed. (Ex: gift of property to someone, then sale to another. The person who pays and records wins, unless the second party knew of the earlier transfer)

Question 50

Bonafide Purchaser

Answer 50

A bona fide purchaser is a purchaser who purchases real proeprty for some value that is not aware of some defect in the ownership of the property. As a bona fide purchaser, as long as they record their purchase of the proeprty, they will likely gain good title, despite no-notice third-party challenges of ownership.

Question 51

Shelter Rule

Answer 51

A gratee is protected by their bona fide purchasor grantor. This was established to protect donees and devisees that did not take the proeprty for consideration.

Question 52

Notice to Purchaser

Answer 52

A purchaser can receive notice in three methods: (AIR) Actual, Inquiry or Record. Actual requires personal knowledge from any source, Inquiry is gained uring arequired and reasonable inspection. Record notice is affected when the deed is properly recorded.

Question 53

Doctrine of Merger

Answer 53

Obligations contained in the contract, such as seller's duty to deliver marketable title, merge into the deed and cannot thereafter be enforced unless the deed contains the obligation.

Question 54

Warranty Deeds

Answer 54

General warranty deeds contain three Present Covenants and three Future Covenants. The Present Covenants are: 1) Seisin - The grantor warrants that they own the estate they now claim to convey; 2) Right to Convey - The grantor warrants that they have the right to make the conveyance; 3) Covenant Against Encumbrances - The grantor warrants that there are no non-posessory interests, servitudes, or mortgages on the land other than those previously disclosed. The Future Covenants are: 1) Quiet Enjoyment - A promise that the grantee won't be disturbed in possession by 3rd party's lawful title claim 2) Warranty - A promise to defend the grantee if lawful claims of title asserted by others arise 3) Further Assurances - A grantor promises to correct any future problems and do what is reasonably necessary to perfect the title conveyed.

Question 55

Quitclaim Deed

Answer 55

A deed that offers no warranties or assurances, and only passes whatever rights the seller has - even if the seller has no rights at all.

Question 56

Special Warranty Deed

Answer 56

A special warranty deed covenants against title defects the grantor themselves create rather than all defects by prior owners

Question 57

Breach of Warranty Against Encumbrances

Answer 57

If an emcumbrance is found to exist after the sale, damages are equal to the differencei nvalue of the property due to the encumbrance.

Question 58

Adverse Possession

Answer 58

Adverse possession allows someone in possession of land owned by another to acquire title if the possession is: 1) Actual; 2) Continuous for the statutory period; 3) Open and Notorious; 4) Hostile; and 5) Exclusive.

Question 59

Future Estates

Answer 59

An interest in property where the holder of the interest will enjoy the right to own and possess the property at a future date. This interest can be held by a grantor, where they would receive the property in reversion, or in a party that may receive the property via an executory interest or as a remainder.

Question 60

Defeasible Estates

Answer 60

A defeasible fee is a conditioned conveyance of real property, where a violation of the conditions terminates the conveyance. Requires express language and reserves a future interest in either the grantor or a third person. There are three types of defeasible fees: 1) Fee Simple Deteriminable; 2) Fee Simple Subject To Condition Subseqent; and 3) Fee Simple Subject To Executory Interest

Question 61

Fee Simple Deteriminable

Answer 61

A fee simple determinable has a possibility of reverter, where the grantor includes language that spells out a condition where the grantee may lose the property. The grantee will retain the property, however, ownership is "determinable", meaning the grantee can determine their fate - if the breach the condition, the possessory interest autormatically reverts back to the grantor.

Question 62

Fee Simple Subject to Condition Subsequent

Answer 62

A fee simple subject to condition subseqent contains a right of re-entry, where the grantor can specify a grant of the property, but to retain the property, the grantee must meet a condition subsequent. If the grantee doesn't meet that condition at the later date, the grantor can take the property back with right of re-entry ("I give you the property, but you must graduate HS")

Question 63

Fee Simple Subject to Executory Interest

Answer 63

A fee simple subject to executory interest is where the grantor can specify a condition, that, if not met, will allow a third party to take possession based on their executory interest.

Question 64

Life Estate

Answer 64

A possessory interest in real property granted till the death of the life tenant. Upon the death of the life tenant, ownership of the property will pass to the specified remainderman. A life tenant cannot pass the property by will.

Question 65

Life Tenant Responsibilities

Answer 65

A life tenant has a duty to not waste the land. If they do, the future interest holder can sue for damages or injunctions. If they fail to keep the property in repair, pay taxes, or pay interest on the mortgage, they are committing waste. They do not need to pay the mortgage principal, which is the responsibility of the remainderman. Any income produced on the land is the life tenant's property, but, if the land is vacant and unproductive, the life tenant does not have to pay taxes.

Question 66

Remainders

Answer 66

A remainder is a future interest that is held by a third party that becomes possessory upon the natural termination of the preceeding estate. If the remainderman passes away prior to the life tenant, upon the death of the life tenant, the property passes to the remainderman's estate.

Question 67

Vested Remainder

Answer 67

A vested remainder is a future interest in an existing and ascertained person that is guaranteed to become possessory. An open vested remainder interest exists if there are other people that may vest in the future, such as future born children that can take an equal share of ownership.

Question 68

Contingent Remainder

Answer 68

A contingent remainder is a future interest in land that is dependent upon the happening of a later event, or satisfaction of some condition precedent.

Question 69

Springing Executory Interest

Answer 69

A springing executory interest is a futre interest that cuts short a grantor's reversionary interest in an estate and doesn't follow the natural termination of the preceding estate. (Ex "To A for life, then to A's oldest child over 18").

Question 70

Rule Against Perpetuities

Answer 70

The rule against perpetutities invalidates any interest in property if there is any cance that the interest may vest more than 21 years after the measuring life in being at the creation of the interest. This rule applies to: 1) Contingent remainders ("To A for life, then to the heirs of B") 2) Executory Interest ("To A, but if A marries, to B" or "To A for life, then to B, but only if B grows a mustache") 3) Class Gifts ("To A for life, then to A's children") 4) Applies to rights of first refusla if they are contract or covenant rights The Rule Against Perpetutities prevents dead-hand control over property, or allowing prior owners to control the property indefinitely, even after death. It ides not apply to vested remainders, reversions, or a remainder where the property will return to the grantor.

Question 71

Fee Simple Mineral Rights

Answer 71

If a grantee owns land in fee simple, they have the right to remove minerals. Only a life tenant has to account to future interest holders regarding the removal of minerals

Question 72

Subject to Mortgage

Answer 72

If a mortgagor sells the property and conveys a deed, a grantee takes subject to mortgage which remains on the land. The grantee can sign an assumption agreement, promising to pay the mortgage loan. If they do, they become primarily liable to the lender, while the origninal mortgagor becomes secondarily liable to the mortgagee as a surety. Mortgagee can go after either party to get the mortgage repaid.

Question 73

Foreclosure

Answer 73

Upon foreclosure, the mortgagor's interest in the proeprty is terminated. The priority of the mortgage is determined by the time it was placed on the property. A foreclosure will terminate all interest junior to the foreclosed mortgage. If proceeds from the foreclosure sale are insufficient, there can be deficiency judgements that are sought.

Question 74

Deed Conveyance

Answer 74

Deed conveyance requires lawful execution, delivery and acceptance. Lawful execution means that the deed is in writing, identifying the parties, signed by the grantor, and adequately describe the property conveyed. For valid delivery, the grantor must express a present intent to convey at the time of conveyance, but physical transfer is not required.

Question 75

Fair Housing Act

Answer 75

It is unlawfl to refuse to sell or rent due to color, race, religion, sex, familial status or origin. The act also prohibits discriminatory terms of sale, or discriminatory advertisements. Religious organization, private clubs, and apartment buildings with four or less units where the owners occupy one of the unitsa are excepted from this act, but preferences cannot be advertised.

Question 76

Land Sale Contracts

Answer 76

Land sale contracts require a writing, identifying the parties, the property description, signed by the party that is to be bound, and the consideration.

Question 77

Zoning

Answer 77

Zoning lawws enforce land usagle based upon city planning, where land is assigned to residential, commercial or industrial use. They are enforced by state or local government police power and seek to control land use for the protection of health, safety, morality and welfare of citizens.

Question 78

Non-Conforming Use

Answer 78

Non-conforming use allows a landowner to continue to use their land despite a change in zoning that makes the present usage illegal. Requires the previous use be legal, that there be no break in continuous use, and the use is not substantially increased.

Question 79

Variance

Answer 79

A property owner can obtain a zoning variance if the new zoning law imposes an undue hardship and the variance will not be contrary to the public safety.

Question 80

Spot Zoning

Answer 80

If a zoning amendment confers a special benefit on a small land parcel regardless of public interest, it is generally invalid.

Question 81

Dedication

Answer 81

A dedication is a donation of land or creation of an easement for public use. These dedicaitons can be express or implied, and are typically associated with housing subdivisions, where a map or plan has been approved and recorded.

Question 82

Lateral/Subjacent support

Answer 82

Every land owner is entitled to lateral or subjacent support of their soil in its natural condition, from adjoining land. Neighbors will be found strictly liable for excavating and casing neighboring property to crumble under its own weight. If the plaintiff's land has a structure that is damaged and the weight of the structure likely contributed to the land collapse, liability will attach only if the Plaintiff can prove negligence.