Real Property Flashcards
1
Q
Give an example of a fee simple absolute.
A
To A or To A and his heirs.
2
Q
Give an example of a fee tail.
A
To A and the heirs of his body.
3
Q
Give an example of a fee simple determinable.
A
To A so long as …
To A until …
To A while …
4
Q
Give an example of a fee simple subject to a condition subsequent.
A
To A, but if [event] occurs, grantor reserves the right to re-enter and retake.
5
Q
Give an example of a fee simple subject to an executory limitation.
A
To A, but if [event] occurs, then to B
6
Q
Give an example of a life estate.
A
To A for life.
To A for the life of B. L.E. Pur Autre Vie.
7
Q
What is the duration of a fee simple absolute?
A
It is absolute and of potentially infinite duration.
8
Q
What is the duration of a fee tail?
A
It lasts as long as there are lineal descendants of grantee.
9
Q
What is the duration of a fee simple determinable?
A
Potentially infinite, so long as the limiting event does not occur.
10
Q
What is the duration of a fee simple subject to a condition subsequent?
A
Potentially infinite, so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination.
11
Q
What is the duration of a life estate?
A
The duration of the grantee’s life.
or
The duration of another life if it is a life estate pur autre vie.
12
Q
What is the transferability of a fee simple absolute?
A
It is devisable, descendible, and alienable. The grantee has absolute ownership of potentially infinite duration.
13
Q
What is the transferability of a fee tail?
A
It passes automatically to grantee’s lineal descendants.
14
Q
What is the transferability of a fee simple determinable?
A
It is alienable, devisable, and descendible, subject to condition.
15
Q
What is the transferability of a fee simple subject to a condition subsequent?
A
It is alienable, devisable, and descendible, subject to condition.
16
Q
What is the transferability of a fee simple subject to an executory limitation?
A
It is alienable, devisable, and descendible, subject to condition.
17
Q
What is the transferability of a life estate?
A
It is alienable, devisable, and descendible if pur autre vie and the measuring life is still alive.
18
Q
Who can hold a future interest in a fee simple absolute? What could he or she have?
A
No one. There is none.
19
Q
Who can hold a future interest in a fee tail? What could he or she have?
A
O (the grantor) could have a reversion.
A third party can have a remainder.
20
Q
Who can hold a future interest in a fee simple determinable? What could he or she have?
A
O (the grantor) has the possibility of reverter.
21
Q
Who can hold a future interest in a fee simple subject to a condition subsequent? What could he or she have?
A
O (the grantor) has a right of entry (Power of termination).
22
Q
Who can hold a future interest in a fee simple subject to an executory interest? What could he or she have?
A
A third party has an executory interest.
23
Q
Who can hold a future interest in a life estate? What could he or she have?
A
O (the grantor) can have a reversion.
A third party can have a remainder.
24
Q
Who can have heirs?
A
Dead people.
25
Can a living person have an heir?
No.
26
O made a will devising BA to his heirs. He has one son, A. Just now, O validly executed the will. Who is his heir?
We don't know; he is alive. He only has a prospective heir until he dies.
27
O made a will 10 years ago devising BA to his daughter. Since then his daughter has introduced herself as Sophia, heir to BA. Is she right?
No. She is not an heir until O dies. Until then she is a prospective heir.
28
In a fee simple determinable, what action must the grantor take to exercise his future interest? What is that future interest called.
The grantor has a possibility of reverter. Once the triggering event/clear durational language occurs, the reversion is automatic. The grantor need not take any additional action.
29
In a fee simple subject to a condition subsequent, what action must the grantor take to exercise his future interest? What is that future interest called.
The grantor has a right of entry. Once the triggering event/clear durational language occurs, the grantor must exercise his power of termination.
30
What is the main distinction between a fee simple determinable and a fee simple subject to a condition subsequent?
If the clear durational language/triggering event occurs in a fee simple determinable, the grantor's future interest automatically applies, whereas in a fee simple subject to a condition subsequent, the grantor must exercise his power of termination.
31
What is the distinguishing characteristic of a fee simple subject to an executory limitation compared to a fee simple determinable or fee simple subject to a condition subsequent?
A fee simple subject to an executory interest is similar to a fee simple determinable in that it automatically forfeits the estate; however, unlike a fee simple determinable or a fee simple subject to a condition subsequent, it divests the grantee in favor of a third party rather than O.
32
Give examples of language that does not constitute "clear durational language" for the purposes of defeasible fees.
Words of mere desire, hope, or intention are insufficient to create a defeasible estate, such as:
"for the purpose of"
"with the hope that"
"with the expectation"
33
"O to A so long as she never attempts to sell" is an example of a/an ...
absolute restraint on alienation. An absolute restraint on alienation is an absolute ban on the power to sell or transfer, that is not linked to a reasonable time or purpose. They are void because it is repugnant to public policy.
34
What is an example of an absolute restraint on alienation?
"O to A so long as she never attempts to sell."
35
What is an absolute restraint on alienation?
An absolute restraint on alienation is an absolute ban on the power to sell or transfer, that is not linked to a reasonable time or purpose. They are void because it is repugnant to public policy.
36
Will a court likely uphold an absolute restraint on alienation?
No. They are void because it is repugnant to public policy.
37
"O to A so long as she does not attempt to sell until the year 2016, when clouds on the title will be resolved" is an example of...
a valid restraint on alienation. It is temporary and is linked to a reasonable time and purpose.
38
"O to A so long as she never attempts to sell"
What interests do the parties have?
A has a fee simple absolute.
O has nothing.
This is an unlawful absolute restraint on alienation so the invalid language is struck leaving the conveyance reading "O to A."
39
"O to A so long as she does not attempt to sell until the year 2016, when clouds on the title will be resolved"
What interests do the parties have?
A has a fee simple determinable.
O has a possibility of reverter.
While this is a restraint on alienation, it is temporary and linked to a reasonable time and purpose; therefore, it is valid.
40
Which of the following creates a valid life estate?
(A) O to A for 50 years, if she lives that long.
(B) O to A for life.
(C) O to A for life, but in no event more than 10 years.
(D) All of the above
(E) B and C only
(B) O to A for life.
41
O's will contains the following devise. BA to A for life.
Then, A conveys her interest to B.
Name the interests of the parties?
B has a life estate pur autre vie. The measuring life is A's.
O has a reversion when A dies.
42
Under what circumstances may a life tenant consume or exploit natural resources on the property (e.g. timber, oil, and/or, minerals)?
As a general rule, a life tenant must not consume or exploit natural resources. However, he may do so under the following conditions:
PURGE
1) Prior Use/Open Mines Doctrine - the land had previously been used for such exploitation; therefore, the life tenant may continue to mine, but he is limited to the mines already open.
2) Repairs - the life tenant may consume natural resources to repair/maintain the property.
3) Grants - the life tenant was granted that right.
4) Exploitation - the land is only suitable to exploit the resources.
43
Are the following statements true or false?
A life tenant is entitled to all ordinary uses and profits from the land.
&
A life tenant must not commit waste.
Both statements are true.
44
What are the types of waste? Provide an example of each.
Voluntary or Affirmative Waste = willful destruction. E.g. removing timber.
Permissive Waste = the land falls into disrepair. E.g. neglecting to conduct routine maintenance.
Ameliorative Waste = an act that enhances value. E.g. converting the property from a residence into a commercial building.
45
O to A for life, then to B.
B is referred to as the ...
remainderman.
46
O to A for life.
O maintains what type of interest?
reversion.
47
Remainders can follow what types of estates?
Life estates and terms of years.
48
How does a remainder vest?
The holder is both ascertained (born and identified) and not subject to a condition precedent.
49
What is the difference between a remainder and an executory interest?
An executory interest cuts off the interest of another, remainder waits for the life estate or term of years to end.
50
What makes a remainder contingent?
It is in either an unascertained (either not born or unidentified) person or it is subject to a condition precedent.
51
Name the interest of each party.
To A for life, then, if B graduates from college, to B. A is alive. B is in high school.
Then...
Follow up: Re-name the interests if B graduates from college during A's lifetime.
```
A = life estate
B = contingent remainder
O = reversion
```
Follow up answer:
```
A = life estate
B = indefeasibly vested remainder
```
52
Name the interest of each party.
To A for life, and, if B has reached the age of 21, to B.
Then...
Follow up: Re-name the interests if B reaches 21 during A's life.
```
A = life estate
B = contingent remainder
O = reversion
```
Follow up answer:
```
A = life estate
B = indefeasibly vested remainder
```
53
O to A for life, and if B has reached the age of 21, to B. A has died, leaving behind B, who is still 19 years old.
What is the state of the title at common law?
What about in MA?
Historically, at common law this is the Destruction of a Contingent Remainder Rule.
A = life estate is now over, and he has nothing.
B = his contingent remainder is destroyed.
O = O and his heirs take the reversion.
Today, the rule has been abolished so under a modern theory, and in MA.
A = life estate is over, and he has nothing.
B = springing executory interest, which takes effect when B turns 21.
O = O and his heirs hold the estate in fee simple subject to B's springing executory interest.
54
O to A for life, then, on A's death, to A's heirs. A is alive.
What is the state of title at common law?
What about in MA?
Historically, at common law this is the Rule in Shelley's Case.
A and A's heirs interest merges and A has a fee simple absolute.
This promoted alienability, but was abolished because it would take effect despite the grantor's express intent.
Today, the rule has been virtually abolished, and has been abolished in MA.
A = life estate
A's heirs = contingent remainder
O = reversion, since A could die without heirs.
55
O to A for life, then to O's heirs. O is alive.
What is the state of title at common law?
What about in MA?
At common law this is called the Doctrine of Worthier Title.
A = life estate
O = reversion. The devise to his heirs is void since he is alive, and he does not have heirs. It promotes alienability.
Note*** The grantor can draft around this rule by clearly demonstrating that the Doctrine of Worthier Title shall not apply.
In MA
A = life estate
O's heirs = contingent remainder as long as O is alive since O has no heirs until he dies.
56
What are the different types of vested remainders and how do you know which is which?
1) Indefeasibly vested remainder = no strings attached to the remainder.
2) Vested remainder subject to complete defeasance/subject to total divestment = there is no condition precedent, so the remainderman can take, but he remains subject to a condition subsequent.
3) Vested remainder subject to open = there is one person in a class who is qualified to take, but the class remains open.
57
O to A for life, remainder to B. A is alive. B is alive.
Name the interests of the parties.
What if B pre-deceases A?
```
A = life estate
B = indefeasibly vested remainder. No strings attached.
```
If B pre-deceases A, the interest passes by B's will or intestate statute.
58
O to A for life, then to B, provided, however, that if B dies under the age of 25, to C. A is live, B is 20 years old.
Name the interests of the parties.
A = life estate.
B = Vested remainder subject to complete defeasance. It is a condition subsequent, not a condition precedent because B still takes even if he is isn't 25, but he remains subject to forfeiture until he is 25. Note the placement of the triggering event and the placement of commas.
C = shifting executory interest if B dies before B is 25 (even if he has already taken possession.)
O = reversion because it is possible that neither C nor C's heirs will exist if and when the condition is breached.
59
O to A for life, and if B reached the age of 25, to B.
Name the interests of the parties.
A = life estate.
B = contingent remainder.
O = reversion.
60
O to A for life, then to B's children. A is alive. B has two children, C and D.
Name the interests of the parties.
A = life estate.
B's children = vested remainder subject to open.
61
When does an open class close?
Provide examples.
When no additional parties can join or when any member can demand possession.
O to A for life, then to B's children. A is alive. B has two children, C and D.
At B's death it closes because once B dies, he cannot have more children.
At A's death it closes because those within the class can demand possession.
Note*** - A child in gestation when the class closes counts as part of the class.
62
Define "executory interest"
An executory interest is a future interest in a third party that takes effect by cutting off another's interest.
63
What are the two types of executory interests? What is the difference? Provide examples.
Shifting executory interests divest someone other than the grantor.
Example: O to A, but if B returns from Canada sometime in the next year, to B and his heirs.
O to A, but if A uses the land for non-residential purposes in the next 20 years, then to B.
Springing executory interests divest a grantor.
Example: O to A, if and when he marries. A is unmarried.
O to A, if and when he becomes a lawyer. A is in high school.
64
# Define the common law Rule Against Perpetuities.
Same rule in MA?
The Rule Against Perpetuities is a rule that prevents the grantor from tying up the alienability of land well after he passes away. The Rule is violated if an interest might not vest or fail within 21 years of a life in being at the time the interest is created. If there is any chance that the interest will fail, then the interest that fails is void and stricken from the devise. The Rule only applies to contingent remainders, executory interests, and certain vested remainders subject to open. It NEVER applies to future interests in the grantor, an indefeasibly vested remainder, or vested remainders subject to complete defeasance.
MA has adopted the Uniform Statutory Rule Against Perpetuities. Under this Rule the interest must either satisfy the R.A.P. or vest within 90 years after the creation of the interest (i.e. @ transfer/conveyance, e.g. death or sale.) The USRAP allows the court to exercise cy pres and reform a violation of the rule in a way that most closely matches the grantor's intent while complying with the R.A.P. USRAP also allows for the reduction of an offensive age contingency to 21 years.
65
Explain the four step technique for assessing R.A.P. problems.
Step 1: Determine the type of future interest created by the conveyance. Is it subject to RAP?
Step 2: Identify the conditions precedent to the vesting of the suspect future interest. That is, what has to happen before a future interest holder can take?
Step 3: Find the measuring life, that is, a person alive at the date of conveyance, and determine his/her relevance.
Step 4: Ask this question, "Will we know, with certainty, within 21 of the death of the measuring life, if our future interest holders can or cannot take?
66
Does the following conveyance violate RAP?
How would this analysis change in MA?
O to A for life, then to the first of her children to reach the age of 30. A is 70. Her only child is B, and he is 29.
Yes. B's interest is a contingent remainder. B could die tomorrow, and based on the Fertile Octogenarian Rule, A could have another child. Therefore, when A dies, it could be longer than 21 years before we know if the interest vests or fails. Therefore RAP is violated. The devise should change to O to A for life.
In MA, the court would wait and see. If 90 years after the original conveyance from O to A for life, the contingent remainder has not vested or failed, the interest fails. Here, it will almost certainly vest within 90 years since B only has to survive one more year in order to change his contingent remainder to an indefeasibly vested remainder. Remember, the remainder is not a class, it is simply A's first child to reach the age of 30 who takes.
67
What are Barbri's two bright line rules for common law RAP?
1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP.
1a. Bad as to one bad as to all.
2. Many shifting executory interests violate RAP. An executory interest with no limit on the time within which it must vest violates RAP.
2a. e.g. To A and his heirs so long as the land is sued for farm purposes, and if the land ceases to be so used, to B and his heirs. = violates RAP. Strike the executory interest to B.
2b. e.g. To A and his heirs, but if the land ceases to be used for farm purposes, to B and his heirs. Strike the whole condition subsequent because the sentence is not gramatically correct if you only strike the shifting executory interest.
68
Does the following violate common law RAP?
O to the American Red Cross, so long as the premises are used for Red Cross purposes, and if they cease to be so used, then to the YMCA.
No. There is a charity to charity exception; therefore, a gift from one charity to another does not violate RAP.
69
Name the various types of concurrent interests.
1) Joint Tenancy
2) Tenancy By the Entirety
3) Tenants in Common
70
How is a joint tenancy created?
The Four Unities
(i) At the same time;
(ii) by the same instrument (with same title);
(iii) with each party taking the same interest; AND
(iv) each have an equal right to possess the whole.
71
Explain the transferability of a joint tenancy.
Joint Tenancies carry a right of surviorship; therefore, when one tenant dies, that tenants interests automatically passes to the other joint tenant without going through probate.
Joint tenancies are alienable, but not devisable or descendable because of the R.O.S.
72
Does using a straw man to create or sever a joint tenancy violate any laws or public policy?
No.
73
How does one sever a joint tenancy?
S: Sale - One joint tenant selling or transferring his interest during his lifetime. The purchaser and former joint tenant become tenants in common.
P: Partition - When the parties or the court partitions the land, or when the court sells the land and divides the proceeds among the joint tenants.
A: AND
M: Mortgage-
Title Theory States (Minority including MA) - A joint tenant's execution of a lien or mortgage on his share of a joint tenancy will sever the joint tenancy.
Lien Theory States (Majority) - In lien theory states, liens are ok. That is, a lien or mortgage executed by one joint tenant on his interest will not sever the joint tenancy.
74
O to Phoebe, Ross, and Monica as joint tenants with the R.O.S.
1. Phoebe sells her interest to Chandler. Explain the state of title.
2. Later, Ross dies, leaving behind an heir, Rachel. What is the state of the title.
1. Monica and Ross hold 2/3 as joint tenants, and Chandler holds 1/3 as a tenant in common.
2. Monica takes Ross' share. Monica now holds 2/3 and Chandler holds 1/3. They are tenants in common. Rachel takes nothing.
75
In equity, if one joint tenant enters into a contract for the sale of her share, will the joint tenancy be severed when the contract is entered into or when the deed is delivered? Why?
When the contract is entered into. This is due to the doctrine of equitable conversion. Equity regards as done that which ought to be done.
76
Paul, John, and Ringo hold a property as joint tenants. On January 1, Ringo enters into a contract to sell his interest in a joint tenancy to George, with the closing to take place on April 1. When does Ringo's interest in the joint tenancy sever and why?
On January 1 due to the doctrine of equitable conversion.
77
How is a Tenancy by the Entirety created?
| MA distinction?
The 4 Unities + the Unity of Marriage.
Same time, instrument, interest, and possession
+
Married.
Generally, in the states recognizing a T/E, a grant to a married couple is presumed to be a tenancy by the entirety. In MA, it is created only with an express statement indicating that intention. 2 married takers without the express statement creating the T/E are T in C.
78
Explain the transferability of a T/E.
One tenant in a T/E cannot alienate the property, and there is a right of survivorship.
Neither party can defeat the right of survivorship unilaterally.
79
Can creditors of only one spouse reach a T/E?
| MA distinction?
Generally, creditors of only one spouse may not reach a T/E.
In MA, creditors of one spouse may encumber that spouse's share, but cannot touch the other spouse's share, and the creditors cannot defeat the R.O.S.
80
Tony and Carmella are married and own BA as T/E. Tony secretly transfers his interest to Uncle Jun. What is the current state of the title?
No change. Tony cannot unilaterally transfer his interest in BA because it is a T/E.
81
What are the features of a tenancy in common? That is, describe what a tenancy in common entails.
1. Each tenant owns an individual part, and each has a right to possess the whole (undivided).
2. Each interest is devisable, descenable, and alienable. There are no survivorship rights.
3. The presumption favors a tenancy in common.
82
if Greg pays 90% of the purchase price, and Marcia pays 10%, can Greg exclude Marcia from 90% of the property? Why/Why not?
Each has equal right to possess the whole.
83
What is the term for a tenant who wrongfully excludes another tenant?
Ouster.
84
Part 1: If one tenant moves away, but does not sell her interest, must the remaining tenant pay rent?
Part 2: If the tenant who moved away stays away so long that the statutory terms of years for adverse possession runs, can the remaining tenant acquire the whole property by adverse possession?
Part 1: No. Absent ouster, a co-tenant is not liable to the other for rent.
Part 2: No. The possession is not adverse (hostile).
85
If A and B hold property held as T in C, and A rents to C. Is A liable to B for rent payments?
Yes. A must pay B, B's share.
86
In a T in C, who is responsible for carrying costs?
Each is responsible for paying carrying costs (taxes, mortgage interest payments, etc.) based upon his share.
87
In a T in C, who is responsible for repairs?
Each party may seek contribution from the other for reasonable necessary repairs provided that the party who does the repairs told the other of the need. Contribution is based on his share.
88
May one T in C seek contribution from the other T in C for improvements?
No because improvements are inherently subjective. However, at partition/sale, if those improvements increased the value of the property, that tenant is entitled to a credit.
That being said, if at partition/sale, those so called improvements lowered the value, that tenant is responsible for the drop.
89
What are T in C's obligations and rights when it comes to waste?
Ts in C must not commit any of the three types of waste (destructive, permissive, or ameliorative). If one does, the other may bring an action during the life of the tenancy.
90
If one tenant in a joint tenancy or T in C wants to partition and the other does not, what result?
A joint tenant or a T in C may bring an action for partition (by voluntary agreement, by partition-in-kind, or by forced sale).
91
Give an example of a term of years.
O to A for 10 years.
O to A for 2 days.
Both are examples of a term of years.
92
What notice is required to terminate a term of year?
None because parties know from the start date when the date of termination is going to be.
93
During the holidays, Nikki Kuckes and Jonathan Gutoff were eating Christmas cookies and talking. During their conversation Kuckes orally promises Gutoff that he can lease BA for 10 years. Gutoff moves in. The next day Kuckes shows up to BA and begins hurling candy at Gufoff demanding that he leave the property and claiming their agreement is unenforceable. Gutoff says, "I am high so thank you for the candy, but I am pretty sure we agreed to a term of years." Is he right?
No, terms of years for more than one year must be in writing.
94
Goldstein rents Ralston land to build a hair restoration clinic from month to month. This is an example of...
A periodic tenancy.
95
T rents an apartment from L, beginning June 1. Nothing is said about duration. T pays rent each month. What type of tenancy exists?
An implied month to month periodic tenancy.
96
L and T negotiate on the telephone for a commercial lease. They orally agree on a five year lease with rent at $1000 per month. What type of tenancy exists?
What would MA call this?
An implied periodic tenancy measured by the way rent is tendered. It is not a tenancy for years because it violates the SoF.
In MA, there is a tenancy at will.
97
T holds over after the expiration of her one year lease, but sends another month's rent check to L, who cashes it. What tenancy now exists?
What would MA call this?
An implied periodic tenancy measured by the way rent is now tendered (month to month, here)
In MA, there is a tenancy at will.
98
Aaron Hernandez was renting Ritchie's flop house month to month without a lease. Ritchie wants to terminate. How may he do so?
What if it was week to week?
What if it was from year to year?
What if Ritchie and Hernandez agreed that either party would give 90 days notice of termination?
Ritchie must give Hernandez notice, usually written, equal to the length of the period itself. Here, 1 month.
Or if it was week to week, 1 week.
Or if it was year to year, six months.
90 days is fine if that's what the parties agreed to. Freedom to Contract governs.
99
Ritchie leased BA to Hernandez on January 1, 2010, for a periodic tenancy of month to month. On May 15, 2010, Hernandez sends written notice of termination because he found a better flop house. Hernandez is still bound until...
June 30th. The tenancy must end at the conclusion of a natural lease period. Here, the natural lease period is at the end of the month. Therefore, while at first glance it may seem like Hernandez can leave on June 15 because that is one month notice, that is an incorrect conclusion based on the previously stated rule.
100
Robert Kraft leases Gillette Stadium to Brady for as long as Kraft or Brady desires is an example of...
How is a court likely to interpret this?
A Tenancy at Will.
However, a court will likely look to how often Brady pays rent and call it a periodic tenancy.
101
At common law, how can a party terminate a tenancy at will?
Either party can terminate by providing a reasonable demand to vacate.
102
Grasso leases Alves an office in his building. After the lease ends, she does not move out or pay Grasso rent. What is this called, and how long can this last?
This is called a Tenancy at Sufferance and it will last only until Grasso either evicts Alves or decides to hold Alves to a new tenancy.
103
What are a tenant's duties?
1) T is liable to third parties as a matter of tort law. That is T must keep the property in good repair. He is liable for injuries sustained by 3rd Parties T invited even if L promised to make all repairs.
2) T has a duty to make some repairs. That is T must make routine repairs other than those due to ordinary ware and tare. For example, T must unclog the sink, but need not re-tile aging bathroom tiles. That is, unless he contracts to make repairs.
3) T must not commit any of the three types of waste (voluntary, permissive, or ameliorative).
4) T must pay rent.
104
Coombs and Monestier rent a house in Canada for a year. While they are living there, Coombs installs a high powered heating system. When they are moving out, he begins uninstalling the heating system in order to take it with them. The landlord sees him and demands that he leave it installed lest Coombs cause substantial harm to the premises. What result?
Would this result change if there was an agreement in place regarding the heating system?
What if it was guaranteed that Coombs would not cause substantial harm to the premises?
At common law, when a tenant removes a fixture, he commits voluntary waste. The heating system is a classic example of a fixture, that is, a once movable chattel that, by virtue of its annexation to realty, objectively shows the intent to permanently improve the realty. Therefore, Coombs may not remove the fixture no matter that he installed it. Other common examples of fixtures include furnaces, certain lighting installations, and custom storm windows.
If there was an agreement in place, then that agreement governs.
If Coombs would not cause substantial harm to the premises, then he may remove the fixture.
105
Goldstein decides to go back to Kansas City for the summer and rents a small house. During the summer, a tornado rips through the house, destroying it. What is Goldstein's liability?
Historically?
Today?
Historically, Goldstein is liable for any loss to the property including loss due to forces of nature.
Today, Goldstein may end the lease as long as the tornado was not his fault (wink wink).
106
Judah rents Bogus a room at his house for the semester. Bogus stops paying rent about halfway through the semester so Judah changes the locks and dumps Bogus' possessions on the lawn.
Which of the following is true?
(A) Bogus is out of luck because he had not been paying rent.
(B) Judah could be punished civilly and criminally for his conduct because the law does not help those who help themselves.
How might this analysis change if it occurred in MA?
(B)
In MA, not only is Judah liable, but he is liable for treble damages or 3 month's rent, whichever is greater, as well as, attorney's fees, and costs.
107
What are a landlord's remedies if T does not pay rent, but remains on the property?
Landlords may evict tenants through the courts or continue the relationship and sue for rent due. Even a landlord decides to evict, he is still entitled to rent from the tenant at sufferance.
108
Coombs and Tanya decide to move to Canada. They rent their house to Tom Muscara for two years. One month into the agreement, Muscara takes off and stops paying rent. What are Tanya and Coombs' options?
1) S: Surrender. They may choose to treat Muscara's abandonment as an offer to surrender and accept it as such. Because there was more than one year left on the lease, the surrender must be in writing, and the landlords must send it to the tenant's last known address.
2) I: Ignore. In a minority of jurisdictions, they may ignore the abandonment and hold Muscara responsible for the unpaid rent as if he was still there.
3) R: Re-Let. They may re-let the premises on Muscara's behalf and charge him for any deficiency.
Majority Rule is that the landlord must at least try to re-let as a mitigation effort.
109
L rents a house to T, but the prior renter is still in the house on the first day of the lease. Has L breached...
Under the English Rule?
Under the American Rule?
Under the English Rule, which is also the majority, the Landlord has breached because he is responsible for putting T in the house on the date the lease starts. L is liable to T for damages.
Under the American Rule, which is the minority rule, the Landlord need only provide T with legal possession (a lease and a key) on the start date.
110
Explain the implied covenant of quiet enjoyment.
The implied covenant of quiet enjoyment applies to both residential and commercial leases, and means that T has a right to quiet enjoyment of the premises without interference from L. A breach would be a wrongful eviction or exclusion.
111
Every time it rains, James' apartment floods. What elements must be met in order for James to have a claim of constructive eviction?
SI: Substantial Interference due to L's actions or failures. The condition could be permanent or chronic.
N: Notice. T must notify L of the problem.
G: Get out. T must vacate within a reasonable time after L fails to fix the problem.
112
Is a landlord liable for acts of other tenants?
Under what circumstances might this change?
Generally, a landlord is not liable for the acts of other tenants, unless:
1) L must not permit a nuisance.
2) L must control common areas.
113
In MA, if a tenant is a victim of domestic violence, what are her rights against her landlord?
If the tenant is a victim of or in imminent danger of domestic violence, the tenant may end the lease by giving written notice within three months of the most recent incident.
Alternatively, the tenant may ask L to change the locks at the tenant's expense within 2 business days, or T may do it herself if L fails to act.
114
What is the implied warranty of habitability?
Are there special distinctions in MA?
The implied warranty of habitability is a non-waivable standard that requires residential premises to be fit for basic human dwelling. This is enforced by the housing code of the jurisdiction and case law. It unquestionably applies to heat in winter, plumbing, running water, and electricity.
In MA, L could be fined, imprisoned, and/or be sued for intentional failure to provide heat, water, and/or electricity. Also applies to hot water, gas, elevator service, refrigerator service, willful interference of quiet enjoyment, or regain possession by force without judicial process.
In MA, this statute now applies to both commercial and residential leases.
The rule in MA states that a landlord of any real estate except an owner-occupied two or three family unit dwelling must, within a reasonable time following written notice of an unsafe condition, exercise reasonable care to correct the unsafe condition. Tenants or lawful visitors injured as a result of the failure to correct within a reasonable time has a right of action.
This is non-waiverable.
115
Teitz rents a house to Jamie in Seekonk, MA. Right after Jamie moves in, Teitz cuts down the electrical wires running to the house, cackling away as she does so. What landlord duty has Teitz violated, and what are Jamie's options?
Teitz has breached the implied warranty of habitability. Jamie may:
M: Move out and end the lease, but she does not have to move out. This is different from a constructive eviction of quiet enjoyment.
R: Repair and Deduct. In a majority of jurisdictions, Jamie may make reasonable repairs and deduct the cost of repair from the rent.
R: Reduce or withhold all rent until the court determines fair rental value. Typically, Jamie would have to put the money in escrow to show good faith, but in MA, escrow is not strictly required, but a court may order it.
R: Remain. Jamie can stay, pay rent, and affirmatively seek money damages.
116
Jamie rents a house from Teitz and reports Teitz to the housing commission for code violations. Two months later, Teitz evicts Jamie even though Jamie had not breached the lease in any way. Jamie thinks it is in retaliation for reporting Teitz to the commission. What result?
Any change in the analysis in MA?
Teitz is barred from evicting Jamie as a retaliation for reporting house code violations. Teitz is also barred from raising rent or harassing Jamie in retaliation.
In MA, there is a presumption of retaliation if a tenant is evicted within 6 months following of filing a report for housing code violations or joining a tenant's union. If liable, landlord is liable for 1-3 months' rent or actual damages sustained, whichever is greater. In addition, landlord shall pay T's costs and attorney's fees.
This right is non-waivable
117
What is the difference between an assignment and a sublease?
An assignment transfers a tenant's entire remaining interest to the new tenant.
A sublease only transfers a part of the tenant's lease to a new tenant.
118
True or False: Tenants may assign or sublet their interest no matter what the lease says.
False. Landlords can prohibit assigning or subletting without the Landlord's prior written approval, but once L consents to one transfer by T, L waives the right to future transfers by that T, unless L reserves the right.
119
True or False. Courts interpret a provision in a lease preventing subleases as intent to prevent assignments as well, and vice versa.
False. The contract provision is construed against the landlord so a provision preventing assignments will not prevent subleases and vice versa.
120
L leases BA to T1. T1 assigns to T2. T2 assigns to T3. T3 then abuses the property. Who can L proceed against and why?
L can proceed against T1 and T3.
T1 because there is privity of contract. However, T1 is only secondarily liable, so T1 must pay if T3 is insolvent.
T3 because there is privity of estate.
L cannot proceed against T2 because there is neither privity of contract or estate.
121
L leases BA to T1. T1 subleases to T2. During the sublease, T2 stops paying rent. Who can L proceed against and why?
L can proceed only against T1 because only T1 and L are in privity of estate and/or privity of contract. However, T2 is liable to T1 and vice versa. Likewise, if T2 wants something from the landlord, he must go through T1.
122
What is the common law of caveat lessee?
Does it apply in MA?
The common law of caveat lessee, places the entire duty to make premises safe on the tenant subject to 5 exceptions.
1. C: Common Areas. L must maintain common areas.
2. L: Latent defects. L must warn of hidden defects, but need not fix them.
3. A: Assumption of Repairs. If L voluntarily makes the repair, then he must do so with reasonable care.
4. P: Public Use. A landlord who leases a space such as a convention hall or museum and knows or should know, based on the length of the lease and the nature of the repair, that T will not fix.
5. S: Short term leases of furnished dwellings.
The common law rule has been abrogated by statute in MA. In MA, the landlord is liable for unsafe conditions, not caused by T, of which L has received written notice.
Exception: Does not apply to owner-occupied two or three family dwellings.
Waiver is void.
123
What is the difference between an affirmative and a negative easement?
An affirmative easement gives the holder the right to do something on the servient land. A negative easement allows the holder to prevent the servient landowner from doing something on the land.
124
What is the difference between a negative easement and a negative covenant?
A negative easement is only recognized in four or five categories:
L: Light (the most common on the bar) - Remember the John Hancock Building.
A: Air
S: Support
S: Stream water from an artificial source
S: Scenic view (minority)
125
What is an easement?
A grant of a nonpossessory property interest that entitles the holder to some form of use or enjoyment of another's land, called the servient interest.
126
How does one create a negative easement?
Negative easements must be created expressly, in a writing, signed by the grantor.
127
What are the two types of easements? What is the difference?
The two types are easements appurtenant and easements in gross.
Easements appurtenant involve two parcels of land (one dominant, one servient) and the interest runs with the dominant tenement whether it is mentioned in the conveyance or not. It passes with the servient tenement unless the new owner is BFP w/o notice. The dominant interest is the parcel receiving the benefit. The servient interest is the parcel carrying the burden.
Easements in gross only involve one parcel of land, and give the easement holder a personal right to use. It cannot be transferred unless the easement is for commercial purposes.
128
In a writing, Goldstein gives Gutoff the right to ride his bike across Goldstein's lawn for 10 years. This is an example of a...
Easement in Gross.
129
Goldstein owned a 30 acre farm abutting a main road. He sold Gutoff the back 10 acres so Gutoff could ride his bike and build some sweet jumps. There is no road access from Gutoff's new tract. Therefore, in the deed Goldstein granted Gutoff an easement to cross the Goldstein farm in order to get to the main road. Later, Gutoff sold the land to James who took without notice of the easement. Does James have an easement? What kind?
James has an easement appurtenant because Gutoff had an easement appurtenant and such an easement passes with the dominant tenement whether it is in the deed or not.
Note*** Since this easement was created by grant, even if the necessity ends, the easement persists. If it was created simply by implication, then lack of necessity would end the easement.
130
Starkist has an easement to use B's lake to fish for bait for Starkist's tuna company. What type of easement is this? Is it transferable?
This is an easement in gross. It is transferable because it is for commercial purposes.
131
How is an affirmative easement created?
An affirmative easement may be created in one of the following ways:
P: Prescription
I: Implication
N: Necessity
G: Grant
132
What are the requirements for an easement by grant?
An easement by grant must be in writing and comply with the elements of a deed if it is for more than one year. That way it satisfies the SoF.
This writing is called a deed of easement.
133
What are the requirements for an easement by implication?
An easement by implication is created if:
1) Previous use was apparent; and
2) The parties expected it would continue because it is reasonably necessary to the dominant land's use and enjoyment.
e.g. A owns two lots (1 and 2). 1 is hooked up to a sewer drain located on 2. A sells 1 to B with no mention of an easement to use the drain. The court may imply B's use of the drain.
134
When will an easement by necessity be created?
An easement by necessity will be created if a grantor conveys a portion of his land with no way out except over part of his remaining land.
135
How does one create an easement by prescription?
An easement by prescription is created similar to the manner of adverse possession.
There must be:
(i) open and notorious;
(ii) hostile use;
(iii) that is continuous and uninterrupted;
(iv) for the statutory period (20 years in MA).
Permission from the owner will defeat the acquisition.
136
How does one determine the scope of an easement and what is the servient tenement's remedy if it is exceeded?
The scope is determined by the terms or conditions that created it, and the remedy for exceeding the scope is an injunction or damages (IT IS NOT TERMINATION).
137
How can an easement be terminated?
E: Estoppel. The servient owner materially changes his or her position based on the easement holder's assurances that the easement will not be enforced.
N: Necessity. The need ends unless the easement attributable to necessity was created by grant.
D: Destruction of the servient land, other than through willful conduct of the servient owner.
C: Condemnation of the servient land (eminent domain).
R: Release in writing given by the easement holder to the servient owner.
A: Abandonment. Must be more than mere non use. Must be a physical action like the easement holder building a structure blocking him from using his easement.
M: Merger. That is, complete unity of ownership.
P: Prescription
There must be:
(i) open and notorious;
(ii) hostile use;
(iii) that is continuous and uninterrupted;
(iv) for the statutory period (20 years in MA).
Remember, once it's gone, it's gone. It cannot be revived without creating it from scratch.
138
Part I
Grasso orally told MacDonald that he could enter his land for the next three months for the purpose of helping Grasso with his law practice pro bono. What interest does MacDonald have in Grasso's land?
Part II
Four months later, Grasso said, "John, enough with going to the Pats games. I need you here helping me with my cases. You know what?! You aren't allowed on my land anymore."
MacDonald says, "Joke is on you. You gave me permission to be on your land."
What result then?
Part I
MacDonald has a license. Licenses are not subject to the SoF; therefore, Grasso's oral promise was enough to create the license.
Part II
MacDonald is wrong. Grasso gave MacDonald a license and licenses are freely revocable unless estoppel applies. Unless MacDonald can show some detrimental reliance ($ or labor or both), Grasso may revoke the license.
139
What are the two classic cases for licenses?
1) Tickets
| 2) Neighbors talking by the fence.
140
Nikki Kuckes' land sits on a vast diamond reserve. Cecily Banks comes over, and they validly execute a writing that gives Banks the right to come over any time in the next two years and remove a reasonable amount of diamonds. After they execute the writing, Kuckes says, "Great, now let's rub it in Travers' face when we see him at the grocery store." What sort of interest does Banks have in Kuckes' land?
Banks has a Profit. It has all the characteristics of an easement, but, because Banks can both enter and take from the land, it is called a profit. This usually arises with minerals, oil, or timber.
141
When one party promises to do or not do something on real property, and the other party seeks to enforce the promise at law by seeking damages, what is the original promise called?
A real covenant. They can be affirmative or negative (restrictive).
e.g. I promise to build for commercial purposes.
142
I promise not to build for commercial purposes is most likely an example of...
A restrictive covenant.
143
Under what circumstances will a real covenant run with the land?
To answer that question use the following steps:
1 - Start with the burden side.
a. Writing - Was the original promise between the original parties in a writing?
b. Intent - Did the parties intend that the promise run to follow on parties? - Courts are generous in finding this intent.
c. Touch - Did the promise touch and concern the land, that is, did it affect the parties' legal relations as land owners?
Note***HOA fees and non-compete covenants do not touch and concern the land according to Paula Fransceze, but the long outline says HOA fees for maintenance of land does touch and concern the land.
d. Horizontal and Vertical Privity - Both are needed.
Horizontal Privity refers to the original parties, and they are in horizontal privity if they enjoy a grantor/grantee, landlord/tenant, or mortgagor/mortgagee relationship.
Note***This is hard to establish, and its absence is the reason most burdens will not run. On the bar, expect to see a grantor/grantee relationship.
Vertical Privity refers to the nexus between those in the burdened parcel chain. This require any non-hostile nexus (contract, devise, or descent, but not adverse possession.)
e. The new party in vertical chain must have notice of the promise when she took the land.
2 - If it passes, the burden side, analyze the benefit side.
a. Writing - Same as above.
b. Intent - Same as above.
c. Touch and Concern: Same as above.
d. Vertical Privity only is required.
144
How does one tell the difference between an equitable servitude and a real covenant?
Look to the remedy sought. If the party is seek an injunction at equity, then it is an equitable servitude. If the party is seeking money damages at law, then it is a real covenant.
145
What is an equitable servitude?
It is a promise that equity will enforce against successors using injunctive relief.
146
How does one create an equitable servitude that will bind successors?
W - Writing - Original parties must make the promise in writing.
I - Intent - Original parties must intend that the promise will bind successors.
T - Touch and Concern - The promise must affect the parties as land owners.
N - The successors of the burdened land must have notice of the promise.
ES - Equitable Servitudes do not have a privity requirement.
147
Chung divides his land into 50 lots. He sells lots 1 though 45 through deeds that contain covenants restricting use to residential purposes. Chung then sells one of the remaining lots to a Starbucks, by deed, which contains no such covenant. Starbucks now seeks to build a cafe on the lot. Can Starbucks be enjoined from doing so?
Would the result change in MA?
Yes, as an implied equitable servitude under the common scheme doctrine, assuming the following:
1) When the sales began, the subdivider, Chung, had a general scheme of residential development which included Starbucks lot.
2) The defendant, Starbucks, had notice (actual, inquiry, or record) of the promise in the prior deeds.
With regards to record notice, courts are split. Some courts hold that subsequent purchasers are responsible to knowing the prior deeds of a common grantor. The Better View is that the subsequent buyer does not have notice of the prior deeds.
In MA, this whole doctrine does not exist. MA does not recognize the Common Scheme Doctrine.
148
Are there any defenses to an equitable servitude once established?
Yes, accordidng to Professor Franceze, there is one we need to worry about.
Change in circumstances are so pervasive that the entire area has changed, e.g. commercialization has not just entered the area, but it has fundamentally changed the area.
There are more in the long outline.
149
What is adverse possession, and how does a party acquire title by it?
Adv. Poss. is a form of acquiring title by which a party occupies land in a certain manner for a prescribed period of time.
A party seeking to establish title by adverse possession must establish the following:
(i) Open and notorious;
(ii) Hostile (that is, not consented to);
(iii) Continuous and uninterrupted;
(iv) Actual, exclusive possession
(v) For the statutory period (20 years in MA).
Note****In MA, even a 3 week break could be considered a break in continuous and uninterrupted possession thus taking a party outside the grounds for adverse possession.
Note***Subjective state of mind of the possessor is irrelevant.
Note***In MA, registered land may not be adversely possessed.
Note***In MA, removal is usually the remedy, but if the encroachment is de minimis, D acted in good faith, and the cost of removal is grossly disproportionate to the benefit conferred, damages is the remedy.
150
Poggi owned BA in 1990 when Erin entered adversely. Erin was well on her way to satisfying the elements of adverse possession when, in 1996, Jen ousted her. Jen stays on the property through 2010. If BA is in MA, in 2010, who owns BA?
Poggi. Jen cannot tack on to Erin in this case. They were not in privity because Jen ousted Erin.
151
Poggi (born in 1971) owned BA in 1990 when Erin entered adversely. In 2000, Poggi went insane. In 2010, Poggi recovered just in time to go to law school. In MA, who owns BA?
Erin. Poggi cannot use her insanity as a defense because she was sane when Erin entered adversely.
In other words, if the owner is not incapacitated when the adverse possession begins, the owner cannot use it as a defense.
Contrarily, if the owner is incapacitated when the adverse possession begins (insanity, infancy, imprisonment) then the statutory period does not begin to run until they are no longer incapacitated.
152
What remedies may result from violating an easement?
Injunction or damages.
153
What is the remedy for violating a real covenant?
Damages
154
What is the remedy for violating an equitable servitude?
Injunction.
155
What is a reciprocal negative servitude?
Same as the General/Common Scheme Doctrine.
156
A land contract governs the transaction until _______________, after which point, the ___________ governs.
1. the closing
| 2. the deed
157
To be valid, land contracts must:
(i) Be in writing;
(ii) Describe the land;
(iii) Be signed by the party sought to be bound; and
(iv) State consideration.
158
Rory enters into a contract to purchase a farm. The contract recites that the farm is 100 acres. When Rory has a survey done, he finds out that the farm is actually on 98 acres. What is Rory's remedy?
Specific performance with a pro-rata reduction in price for the 2 acres. This is because land is a unique good so specific performance is the preferred remedy.
159
In general, the SoF governs contracts for the sale of land. Are there exceptions?
What about in MA?
At common law, a contract for the sale of land is still valid even if it was not reduced to writing if two of the following three conditions are satisfied:
(i) Buyer is in possession.
(ii) Buyer paid all or part of the purchase price.
(iii) Buyer made substantial improvements to the land.
In Massachusetts, all three must be satisfied.
160
On June 1, Rory and Shilo Vermont McHipster entered into a contract for Rory to buy BA. Closing was set for July 15. On June 20, BA burned down, but neither party was at fault. The contract is silent on the matter. Who bears the RoL? Why?
What about in MA?
At common law, the RoL is on the buyer after the parties sign the land sale contract, but have not closed, that is, unless the contract says otherwise. This is because of the doctrine of Equitable Conversion.
In MA, the RoL remains on the party in possession of the property leading up to the closing. The only exception is if damages are not substantial, in which case, the buyer must still buy and the court can adjust the price.
161
What promises are implied in every contract for the sale of land?
1. Promise to provide marketable title. That is, "TITLE FREE FROM REASONABLE DOUBT." (Even if it is a quitclaim deed, seller promised to provide marketable title at closing. Just remember that post closing, buyer sues on the deed, not the contract.)
2. Promise not to make any false statements of material fact.
NO IMPLIED PROMISE OF HABITABILITY unless the builder and the seller of a new home are the same person, in which case, the seller warrants that the house was built in a workmanlike manner.
162
What is the implied promise to provide marketable title?
This promise refers to the implied promise attached to a land sale contract in which the seller promises the following:
1. No part of the title rests on adverse possession. Seller is able to provide good record title.
2. The land is free from encumbrances. That is, owner owns land in unencumbered fee simple. No servitudes (e.g. easements unless beneficial, visible, or known), liens, restrictive covenants, and/or mortgages remain on the property.
Two Notes
* Buyer may waive these encumbrances.
* * Seller has the right to use the proceeds of the sale at closing to pay off a lien or mortgage.
3. The land does not violate a zoning ordinance. Presence of an ordinance does not render title unmarketable. The land must be actually violating that ordinance. The reason for this is that selling land that violates a zoning ordinance creates the threat of litigation.
4. Future interests held by unborn or unascertained parties.
163
James and Rory enter into a land sale contract. James, the seller, promises Rory that the roof was just re-shingled two years ago. In fact, it had been 30 years since any work had been done on the roof. James also failed to mention that the wiring throughout the house was out of code. Do James' statements or lack of disclosure result in liability? Either? Both? Or neither?
In a majority of states both would result in seller's liability. In the land sale contract, James made an implied promise not to make false statements of material fact. In a majority of states, he also made an implied promise that he would not fail to disclose a latent material defect.
164
Theon Greyjoy sold Winterfell to Ramsey Bolton. The contract stated that the castle was being sold "as is, with all faults." Theon neglected to mention that the facade on the west tower was about to crumble and was in serious need of repair. Does the "as is" clause protect Theon from liability?
No. Such a disclaimer does not release the seller from liability from fraud or failure to disclose.
165
Does the implied warranty of habitability apply to a land sale contract?
No, caveat emptor. Unless, the builder and the vendor of a new home are the same person, in which case, the seller warrants that the home was built in a workmanlike manner.
166
Following closing, may a buyer sue the seller for breach of the land sale contract?
No, once closing happens, the deed is the governing instrument, and the contract dies.
167
How is equitable title to land passed?
| How is legal title to land passed?
Equitable title passes in the contract.
| Legal title passes in the deed.
168
How is a deed properly passed?
It must be lawfully executed and delivered.
***Acceptance is also required, but it is presumed unless there is an express rejection.
169
What does it mean to lawfully execute a deed?
Differences in MA?
A lawfully executed deed must be in writing, describe the land, contain words, of intent, and be signed by the grantor. The description of the land must only provide a reasonably good lead. The deed need not state consideration to be valid.
Example of a "reasonably good lead" = "all of O's land in Essex County."
Example of a bad description = "some of my land in Essex County."
The difference is that we can research and know the meaning in the first one, but not the second.
However, in MA, the land must be "adequately described", and deeds cannot be recorded unless they state consideration and contain the full name, residence, and post office address of the grantee.
In the description of land, more weight is given to the plan, then monuments (e.g. ways watercourses, walls, fences etc.), then courses, then distances. The monument is included unless the grantor retains other land along that boundary, in which case the grantor may expressly reserve his right.
170
How does one properly deliver a deed?
A grantor may use the mail, an agent, or a messenger.
Physical transfer is not required, the seller/transferor/grantor must simply have the intent to be bound.
Acceptance is also required, but it is presumed unless there is an express rejection.
171
Rick gives Carl the deed to Alexandria (an estate). The deed is absolute on its face, but Rick says to Carl, "Alexandria is yours only if you survive me."
What is the state of the title? Why?
Alexandria belongs to Carl. The oral condition is void and drops out. Delivery is done. Oral conditions are too susceptible to fabrication.
172
What is delivery by escrow? Is it valid?
Delivery by escrow is acceptable. It involves the grantor executing a deed to a third party (the escrow agent) with instructions to deliver the deed to grantee once certain conditions are met.
173
What are the different types of deeds?
What are these deeds called in MA?
Common Law:
1. Quitclaim Deed (MA = Release Deed).
2. General Warranty Deed (Same in MA).
3. Special Warranty Deed (MA = Quitclaim Deed).
174
What is a quitclaim/release deed?
This is the worst deed a buyer could hope for because it is a deed with no covenants. Grantor does not even promise that he has good title.
That being said, the implied promise to provide marketable title applies to the land contract, and, even here, Seller is promising to provide marketable title at closing. Any problems after the closing must be sought against the deed, and the grantor will be off the hook.
175
What is a general warranty deed?
This is the best deed a buyer can hope for because warrants against all defects in the title including those due to grantor's predecessors. It contains six covenants:
1) Seisin - Warranty that grantor owns the estate.
2) Right to convey - Grantor has power to transfer.
3) Against encumbrance - No servitudes or mortgages on BA.
These three are present covenants and are breached at the moment of delivery, if at all, so SoL begins at the moment of delivery.
4) Quiet enjoyment - Won't be disturbed by a 3rd Party's claim of possession.
5) Warranty - If a 3rd Party claim arises, grantor will defend grantee.
6) Further assurances - Grantor will do what is needed in the future to perfect title. That is, if the parties screwed up some procedural issue, grantor will fix it.
These last three covenants are future covenants and are breached, if ever, when grantee's possession is disturbed. SoL runs as of that future date of disturbance.
176
What is a special warranty/quitclaim deed?
It is a deed that contains only two promises that the grantor makes on his own behalf, not on behalf of his predecessors in interest.
1) Grantor has not conveyed the land to anyone besides grantee.
2) Grantor has not encumbered the land.
177
What is a BFP?
One who purchases for value, without notice that someone else "got there first."
178
What is a notice jurisdiction?
A jurisdiction in which the subsequent BFP can claim good title.
179
Whom do recording statutes protect?
Both BFPs and Mortgagees.
180
What type of recording system does MA have?
Notice
181
What is the easiest way to tell whether a statute is a notice statute or race notice?
If the words "notice" and "first recorded" are in the statute, it is a race notice statute.
***Ralston would even go as far to say that if "first" is in the language then it is race notice because the bar examiners do not test on race jurisdictions.
If only the word "notice" appears = notice jurisdiction
If only the words "first recorded" appear = race jurisdiction.
182
Jen and Alex buy a house in North Providence for $50,000. Fair Market Value is $100,000. Are Jen and Alex BFP's?
Yes, they gave substantial pecuniary consideration. That is, not nominal consideration. Therefore, they are BFPs, even though it was below FMV.
183
James' grandfather conveys a marina to James. James is a mere donee. Is he a BFP? Why might that not matter?
James is not a BFP because he did not purchase for value. Nevertheless, under the Shelter Rule, if James' grandfather was a BFP, James will prevail against anyone his grandfather would have prevailed against. In other words, he is treated as a BFP because he is stepping into the shoes of a BFP. Courts want to allow those with good title to transfer successfully.
184
What are the three types of notice?
Any differences in MA?
Actual - Buyer knew of a prior interest
Inquiry - (NOT RECOGNIZED IN MA) - Buyer would have known of a prior interest based on a reasonable inspection of the land.
Record - A reasonable inspection of the record would have given Buyer notice of a prior interest.
Three Notes
* Inquiry and Record are both forms of constructive notice.
* * If a recorded instrument makes a reference to an unrecorded transaction, the grantee is on inquiry notice of whatever a reasonable follow up would show.
* **To give record notice, the deed must be recorded properly (no wild deeds).
185
What is a race notice jurisdiction?
A jurisdiction in which good title rests with the BFP who records first.
186
Jordan conveys to Lebron James, who does not record. Later, Jordan conveys to Steph Curry, a BFP who records. Steph then conveys to Kevin, a mere donee who has knowledge of the Jordan to Lebron transfer. In a contest between Lebron and Kevin, who wins?
Kevin, no matter if it was a notice or a race notice jurisdiction. Even though Kevin was a donee not a BFP, the grantor, Steph, was a BFP. Kevin steps into his shoes under the Shelter Rule. Because Steph had good title over Lebron, Kevin also does.
187
What is a wild deed?
A deed outside the chain of title. A subsequent purchaser would not be able to find it in the grantor-grantee index.
188
James' Grandfather sells a marina to James, who does not record. Then James sells the marina to Judah. Judah records the deed from James. James' grandfather then sells the marina to Rory, a BFP who records. If Judah and Rory contest ownership, who wins?
Rory. Rory was a BFP who recorded, and Judah's title was based on a wild deed. Therefore, Judah's recording is a nullity.
189
In 1950, Tom owns The Breakers. He mentions to Kevin that will probably sell it to Kevin in the future, but Tom is going to hold on to it for now. Kevin, then sells The Breakers to Rita. Rita records.
In 1960, Tom finally does sell The Breakers to Kevin, who promptly records. Who owns at this point?
In 1970, Kevin sells The Breakers to Rachel, who promptly records.
In 1960, Rita owns based on Estoppel by Deed.
In 1970, Rachel owns as long as she is a BFP because, assuming she had no notice, she is a BFP who also recorded first. In either jurisdiction, she previals.
While Rita recorded, her recorded deed was wild, and outside the chain of title, therefore, a nullity.
190
What is a mortgage?
A mortgage is a security interest in land, intended to be collateral for the repayment of a debt.
191
How is a mortgage created?
Two elements:
1) A debt
2) A lien in the debtor's land to secure the debt.
Must be in writing to satisify the SoF.
Note***The writing creating the mortgage is called a legal mortgage, the note, the mortgage deed, the deed of trust, the sale leaseback, or the security interest in land.
192
Who is the mortgagor, who is mortgagee?
Debtor = Mortgagor
| Holder of the security interest (usually a bank) = Mortgagee.
193
What is an equitable mortgage?
When the creditor lends the debtor a sum of money with land as collateral. The parties intend to execute a note to create a legal mortgage, but instead, the debtor executes a deed to the land that is absolute on its face.
Because the parties simply intended this to be a mortgage, this is called an equitable mortgage.
Parol evidence is admissible to show this intent.
If creditor sells the land, the sale is valid, but the debtor can sue the creditor for fraud.
194
Once a mortgage has been created, what are the parties' rights?
The debtor mortgagor has title and the right to possess.
Creditor-mortgagee has a lien.
195
True or false: All parties to a mortgage can transfer their interests.
True.
196
How does a creditor-mortgagee properly transfer that interest?
1) Endorse the note and deliver it to transferee.
OR
2) Execute a separate document of assignment.
197
What is the significance of being a holder in due course?
A holder in due course takes a note free of any personal defenses that could have been raised, but the holder in due course is still subject to real defenses.
A personal defense is a defense that could be raised in an ordinary breach of K situation, e.g. lack of consideration, fraud in the inducement, unconscionability, waiver, and estoppel.
198
What is a personal defense?
A personal defense is a defense that could be raised in an ordinary breach of K situation, e.g. lack of consideration, fraud in the inducement, unconscionability, waiver, and estoppel.
199
What is a real defense?
A real defense is a defense that a party may raise even against a holder in due course.
MAD FIFI4
```
MA: Material Alteration.
D: Duress.
FIF: Fraud in the Factum - A lie about the instrument (e.g. "This is just a CC app." In reality it is a mortgage.)
I: Incapacity.
I: Infancy.
I: Insolvency.
I: Illegality.
```
200
How does a party qualify as a holder in due course?
1) The note he holds must be negotiable, made payable to the named mortgagee.
2) The original note must be indorsed, signed by the named mortgagee.
3) The original note must be delivered to the transferee. A photocopy is unacceptable.
4) The transferee must take the note in good faith without notice of any illegality.
5) The transferee must pay value for the note, meaning some amount that is more than nominal.
201
If a debtor/mortgagor sells his land while it is still subject to a mortgage what happens to the lien?
It remains on the land as long as it was properly recorded. If it was not recorded, look to the recording statute.
202
On January 10, Margie took out a $50,000 mortgage on BA with First Bank. On January 15, Margie sold BA to Andy. Andy had no knowledge of the lien. On January 20, First Bank recorded its mortgage on BA. On January 30, Andy recorded his deed to BA. Does Andy hold subject to First Bank's mortgage?
It depends on the recording statute?
In a race notice jurisdiction: Buyer holds subject to First Bank's mortgage because he lost the race to record.
In a notice jurisdiction: Buyer holds not subject to the mortgage assuming he was a BFP.
203
Under what circumstances do buyers become personally liable for the seller's mortgage?
The buyer will only be liable for the seller's outstanding mortgage if he assumes the mortgage. This makes the buyer primarily liable and the seller secondarily liable.
If the buyer does not assume the mortgage then the seller is the only one who is personally liable, but if the mortgage was properly recorded, it sticks with the land, and if the seller does not pay the mortgage, the mortgagee can foreclose.
204
How does a mortgagee foreclose?
What specific rules must the mortgagee follow in MA?
She proceeds by proper judicial action.
In MA, if the mortgagee is foreclosing on a residential property, the mortgagee cannot begin a foreclosure action unless it sent a 90 day notice to debtor stating the debtor's right to cure the default. Debtor has that 90 day grace period to pay missed payments and interest and reasonable late fees. For cure, no acceleration of debt is allowed. The right to cure is granted to the debtor only once in every 5 year period.
205
If the proceeds from a foreclosure sale do not satisfy the outstanding mortgage, what are the mortgagee's options?
Mortgagees may seek a deficiency judgement against the debtor. This action asks the court to make the mortgagee whole by attaching money from another asset owned by the debtor.
206
What happens if there is a surplus in the foreclosure sale?
Junior debts are paid in order of their priority. If there is still a surplus, it passes to the debtor.
207
BA has a FMV of $50k. It is subject to three mortgages. First Bank has first priority and is owed 30k. Second Bank has second priority and is owed 15k. Third Bank has third priority and is owed 10k. First Bank forecloses, and the other banks join. BA is sold for 50k. How will the funds be distributed?
30k to First Bank.
15k to Second Bank.
5k to Third Bank. Third Bank should then seek a deficiency judgement against debtor.
208
BA has a FMV of $50k. It is subject to three mortgages. First Bank has first priority and is owed 30k. Second Bank has second priority and is owed 15k. Third Bank has third priority and is owed 10k. Second Bank forecloses, and third bank joins. First Bank either is not in default or has not gotten around to foreclosing. BA is sold for 20k. How will the funds be distributed?
Second Bank receives 15k
Third Bank receives 5k. Third Bank should then seek a deficiency judgment against the debtor.
First Bank's mortgage is unaffected because it is a senior lien. It continues on BA, in the Buyer's hands. Since BA has a senior mortgage, the buyer at the foreclosure sale was correct to bid no higher than 20k. The property is worth 50k, but there is an outstanding 30k mortgage not discharged by Second Bank's foreclosure. The Buyer should pay that mortgage because if Buyer does not, First Bank could still foreclose.
Third Bank is a necessary party because their lien is subordinate to Second Bank's and it will be terminated unless it joins.
209
Who are the necessary parties in a foreclosure action?
The debtor and any junior lien holders.
210
Who has priority among creditors?
Properly recorded creditors have priority over unrecorded creditors.
Among properly recorded credit holders, priority is generally determined by "First in time, first in right."
The purchase money mortgagee retains a "superpriority."
211
What is a purchase money mortgage?
A mortgage given to secure a loan that enables the debtor to acquire the encumbered land.
e.g. First Bank lends Rita 100k so that Rita can purchase BA. First Bank takes a security interest in BA as collateral. First Bank is a purchase money mortgagee because they loaned Rita the money she used to buy BA.
212
Part I.
First Bank lends Rachel 200k, taking a security interest in all of Rachel's real estate holdings, "whether owned now or hereafter acquired."
What is this called? Is it permissible?
Part II.
First Bank records the mortgage note. Six months later, Second Bank lends Rachel 50k so that Rachel can buy BA, taking a security interest in BA and recording that interest. Rachel then defaults on all outstanding obligations. All she has left is BA. Who has first priority on BA, First or Second Bank?
Part I
This is called an after acquired collateral clause or a "floating lien." it is permissible.
Part II
Second Bank has priority because it is a purchase money mortgage.
213
What is a subordination agreement? Is it permissible?
A subordination agreement allows a creditor to agree to subordinate its claim to another junior creditor. It is permissible.
214
What is equitable redemption?
How do states differ on this right?
Equitable redemption refers to the right of the buyer to pay the creditor any outstanding payments, interest, and costs prior to the foreclosure sale.
The right to equitable redemption prior to sale is universal. Some states allow Statutory Redemption whereby the debtor has a fixed period following the foreclosure sale during which she can nullify the sale and restore title in her name by paying the foreclosure sale price.
In MA, there is a statutory right of redemption that allows the mortgagor to reclaim the property after default by paying the entire amount of the mortgage debt before the mortgagee has been in possession for three years or has held a foreclosure sale.
215
What does it mean if the mortgage contains an acceleration clause?
How do these clauses work in Massachusetts?
An acceleration clause means that, in the event of default, the mortgagee can demand the entire balance, interest, and costs.
In MA, for residential property, the mortgagee must wait 90 days after default to accelerate the debt. During those 90 days, Debtor can cure the default by paying the unaccelerated amount due.
216
Rachel and Rita enter into a mortgagor/mortgagee relationship. Rachel, the mortgagor waives the right to redeem in the mortgage itself. Later, after Rachel defaults, Rita forecloses. Prior to the foreclosure sale, Rachel comes up with the missing payments, interest, and costs. She tries to pay Rita, but Rita says, "Sorry, you waived that right in the mortgage itself. I'm selling this property." What will a court decide?
A debtor/mortgagor may not waive the right to redeem in the mortgage itself. This is called "clogging the equity of redemption", and it is prohibited.
217
In most states recognizing Statutory Redemption, who possesses the property at issue during the statutory period?
The mortgagor/debtor.
218
Judah decides he needs to dig up his backyard. He personally does the excavating. While digging, his neighbor's, the Deputy Attorney General, land caves in. Under what theories is Judah liable?
If the neighbor's land is improved with buildings and other structures, then Judah is only liable if he was negligent.
Judah may only be strictly liable if plaintiff can show that because of the defendant's actions, the land would have have collapsed even in an unadorned state (no shrubs, fountains, structure, etc.) That is, the structures on the land had nothing to do with the collapse.
219
What are the two major systems for determining the allocation of water in water courses?
Which one does MA use?
1) The Riparian Doctrine - Water belongs to those who own the land bordering the water course (riparians), and they share the reasonable use of the water. One is liable to the other only if one interferes with the other's use. Note that natural uses (e.g. household) prevails over artificial uses (e.g. irrigation)
MA applies this but great ponds (10 acres+) are available for use by the general public, not just the riparian landowners.
and
2) The Prior Appropriation Doctrine - The water belongs initially to the state, but the right to divert it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner.
Rights are determined by priority of beneficial use (e.g. agriculture.) Usually, first in time, first in right applies.
220
What is groundwater and who has the right to it?
Groundwater or percolating water is water beneath the surface of the earth that is not confined to a known channel. The surface owner may make reasonable use of the groundwater as long as he is not wasteful.
221
What is surface water and who has the right to it?
Surface water is water that comes from rain, springs, or melting snow, and has not yet reached its natural watercourse or basin. It is considered a nemesis, and landowners may make improvements to their land to combat its flow. Many courts have added that it is prohibited to combat the flow in such a way that it causes unnecessary harm to the other's land.
MA applies the reasonable use theory.
222
What is trespass in property law? What are a property owner's rights in equity?
Invasion of land by a physical object (NOT odors or noise). Owner's may bring an ejectment action.
223
What is private nuisance?
A substantial, unreasonable interfernce with another's land use (e.g. odors and noise.)
224
Jen operates a dog kennel located near a power plant. Jen notices that her dogs, including Georgie, are chronically agitated causing her to lose business. She learns that the power plant emits a high frequency sound heard by animals but not humans. Jen sues the plant for nuisance. What result?
Jen will lose because her use is hypersensitive.
225
What is eminent domain?
The government's Fifth Amendment Power to take private property for public use in exchange for just compensation.
e.g. the government buys your land to make a public highway. = An Explicit Taking
226
What is an implicit taking?
An implicit or regulatory taking is when a government regulation has the effect of a taking even if it does not intend to do so. In practice it must render your land worthless.
227
What is a landowner's remedy for a government taking?
1) Compesation for the property
or
2) Terminate the regulation and pay owner for damages that occurred.
228
What are zoning statutes? Are they allowed?
Zoning ordinances are statutes that reasonable control land use. They are allowed.
229
How does a landowner overcome a zoning statute?
Getting a variance by showing
1) undue hardship as a result of the ordinance; and
2) that the variance will not work a detriment to the neighboring property values.
Sought and granted by an administrative action, usually before a zoning board.
230
Rory owns a beard trimming shop. The town in which it is located then passes a new zoning ordinance banning commercial enterprises on that land. The town demands that Rory shut his business down immediately. What result?
If the town is demanding that the non-conforming use be eliminated all at once, as it seems to here, then it is a taking, and the government must pay Rory just compensation.
231
What are exactions? When are they allowed?
Exactions are amenities the government seeks in exchange for granting permission to build. They are allowed only if they are reasonably related in nature and scope to the impact of the proposed development. They are inherently suspect because they are ripe for abuse.
232
Blais is seeking to build a series of "My Little Pony" merchandise stores in town. The town gives Blais permission to build as long as he also builds a swimming pool for the public's use. This is an example of...
An unconstitutional exaction. The swimming pool is in no way related in nature and scope to the proposed development.
233
In MA, if the stated condition in a fee simple subject to a condition subsequent or a fee simple determinable does not occur after 30 years from the date the defeasible fee becomes possessory, what result in MA?
The possessory interest transforms into a fee simple.
234
In Massachusetts, Blais passes his land to Kaitlyn so long as she continues to operate his "My Little Pony" store, and if she stops, then back to Blais. Thirty-five years later, Kaitlyn is still operating the store, but wants to stop? What are her options in MA?
At this point, in MA, Kaitlyn owns the store in fee simple because the condition limiting her has not occurred for thirty years following the date she took possession. Therefore, she can do what she wants with the land.
235
In Massachusetts, Judah inherits land from his father. The conveyance reads, from Judah's Dad to Judah and the heirs of his body. Judah later conveys to Eli in fee simple absolute. What interest does Eli have in MA?
Eli owns in fee simple absolute because, in MA, when the grantor owns in fee tail, he can destroy the tail by conveying a fee simple absolute.
236
Part I
Tom and Jenna buy a home in Massachusetts. They wish to create a T/E. What do they need to do?
Part II
Later, Jenna encumbers her interest in the property without Tom's consent. 10 years later, with the encumbrance still on her interest, Jenna passes. What does Tom own in MA?
Part I
In order to create a T/E in MA, there must be an express statement that a T/E is being created. Without this express language, there is only a T in C.
Part II
In MA, one spouse may encumber the property without the consent of the other spouse and not destroy the T/E. However, that encumbrance does not affect the R.O.S. Thus, when Jenna died, Tom took the property under the R.O.S. and free of the encumbrance.
237
A and B are spouses and own a home together in MA as T/E. B encumbers the land without A's knowledge or consent. A and B are still alive, and the creditor wants to use the encumbrance to protect himself against other creditors. What result in MA?
Both spouses are jointly and severally liable for one another's debts incurred for necessaries furnished to either spouse or the family. Necessaries is more than just food and clothing.
While the property held in T/E will not be subject to seizure or execution by a creditor so long as the non-debtor spouse uses the land as his principal residence. However, the creditor can attach the property to protect himself against other creditors.
238
In MA, an oral lease creates...
A tenancy at will, called a periodic tenancy at common law.
239
Blais leases Erin a home in MA as a tenant at will. Now, Blais wants to terminate. What are his options?
What are his options if she stops paying the rent?
In MA, tenancies at will may be terminated by either party with three months notice in writing or, if the rent is payable at periods less than three months apart, then notice equal to a payment period. In no case shall fewer than 30 days notice be given.
If she refuses or neglects to pay rent due, landlord must give 14 days written notice in the manner prescribed by statute. However, Tenant has 10 days to cure from the date she received notice if it is her first notice within 12 months. (Same rule if it was a written lease, but tenant has until the D's answer is due to pay rent, interests, and costs in an action by the landlord to recover possession.)
240
How does a landlord evict hold over tenants in MA?
Hold Over Tenants may be evicted only through judicial summary process and ot through an action for ejectment or trespass.
241
In MA, how does a landlord terminate a tenant in a rooming house?
Provide 7 days written notice if rent is payable daily or weekly and if T is committing a nuisance, substantially damaging the unit, or substantially interfering with the comfort, safety, or enjoyment of the landlord or other occupants.
242
A and B are living together in a domestic relationship. A begins to physically abuse B. B wants to terminate her lease and move away, but there are six months remaining on the lease. She also thinks that she may have waived her right to vacate in the event of DV. Can B terminate without penalty in MA?
In MA, a tenant who is a victim of or in imminent threat of DV, rape, sexual assault, or stalking may terminate her lease by providing written notice within three months of the most recent incident. The victim must then vacate within three months of the notice or the notice is void. The victim remains liable for 30 days rent after quitting, after which she is entitled to return of any due prepaid rent or security deposit. If the victim vacates but leaves behind belongings, they are considered abandoned. Other non-victims and co-tenants are not released fro obligation.
This right is non-waivable.
243
Rory owns a house in MA and rents it to Tenant for a term of years, but Rory stops making payments on his mortgage halfway through the lease. The mortgagee forecloses. What is the status of the lease in MA?
Does the analysis change if the rent was subsidized?
This converts the lease to a tenancy at will. However, if the rent is subsidized under federal or state law, then the foreclosing entity must accept the lease and rental subsidy contract.
244
Hank owns a house in MA. He rents that house to Walter White and Jesse Pinkman who use it for making meth. Hank discovers that Walt and Jesse are making meth, and, rather than seek a court order, he forcibly removes them from the home. Walt and Jesse come to see you to ask if they can get damages in MA. What do you tell them?
In MA, if a tenant is evicted from the premises without a court order, the victim(s) are entitled to treble damages or three months rent, plus attorney's fees.
Self help evictions are not permitted, even if they are for public nuisances like prostitution, lewdness, illegal gambling, illegal alcohol/controlled substance production/sale/storing.
245
Brandon Stark and Hodor rent an apartment in Boston. Bran is handicapped and Hodor is over 60. For reasons unknown, their landlord is about to lawfully evict them. Bran and Hodor ask the court to stop the eviction. May the MA court do so?
Yes. In MA, the court may stay the execution of an eviction of a handicapped person or an individual over 60 for up to twelve months.
246
In MA, how does one determine whether a tenancy or lease is created in a certain situation?
The court will look to the intent of the parties to determine whether a tenancy or a license is created.
In other situations such as when a buyer occupies early, an employee is supplied accommodations, or a tenant shares with a roommate not on the lease, MA looks to the intent one party had control of the premises.
247
What is limit on the number of years in a lease in MA?
Leases beyond 7 year are only valid against the grantor, his heirs or devisees, and persons with actual notice thereof, unless the lease is recorded.
248
In MA, may a tenant waive his right to a jury trial in the lease?
No. It is void as against public policy.
249
In MA, under what circumstances may a landlord reserve the right enter the premises in the lease?
1) Inspect
2) Make repairs
3) Show property to prospective tenants
4) The property appears to be abandoned
5) Inspect within final 30 days of rent period.
250
In MA, if a landlord does not want to rent to a family with children and includes a provision forbidding it, is that permissible?
No. A provision terminating a lease because the occupants have children is void unless
(1) Dwellings contain three units or less, one of which is occupied by an elderly or infirm person for whom the presence of children would be a hardship.
(2) It is a temporary leasing or temporary subleasing by the owner or sublessor who ordinarily occupies the unite as a principal place of residence.
(3) The lease is of one dwelling unit within a two family dwelling, the other unit of which is owner-occupied.
251
In MA, may a landlord include a provision requiring a breaching tenant to pay the landlord's attorney's fees?
Yes, if the provision is reciprocal, that is, landlord must pay for tenant's attorney's fees if landlord breaches or if tenant wins a suit by the landlord.
252
In MA, what restrictions are on landlords when it comes to rent deposits/pre-possession charges?
Limited to:
(1) First month's rent
(2) Last month's rent.
(3) A security deposit equal to a month's rent; and
(4) A Key and Lock Fee
If a security deposit is accepted, L must provide T with a written statement of conditions within 10 days of the start of the tenancy.
The security deposit must be in a separate bank account.
Landlord owes interest of security deposit and last month's rent.
Security deposit, if owed back to T, must be returned within 30 days.
253
Walter White and Jesse Pinkman started making meth in the common area of a Boston slum even though no one has given them permission to do so. The tenants bring an action against the landlord for breach of the implied warranty of quiet enjoyment and the implied warranty of habitability. Will they succeed in an MA court?
They will succeed in the suit for quiet enjoyment but not the suit for the breach of the implied warranty of habitability.
Presence of uninvited persons in the common areas engaged in unlawful activity breaches the implied warranty of quiet enjoyment, but not the warranty of habitability because such activity does not concern the provision, maintenance, and repair for the physical facility.
254
Against what classes is a landlord prohibited from discriminating against in MA?
Discriminating against the following for housing is prohibited:
(1) Sexual orientation (unless minor children are the sex object)
(2) age (except 55+ and 62+ communities)
(3) Marital status
(4) Previous victims of DV who have terminated a lease because of that DV or demanded that locks be changed.
There are federal laws that apply in MA that prohibit more discrimination.
255
What is the landlord's responsibility for lead paint in MA?
If child under 6 resides in a building with lead paint or lead-containing structural materials, the owner must remove or contain the lead paint or material. Failure to do so will result in strict liability.
256
How does MA reign in unlimited (as to time) conditions or restrictions placed on real property?
In MA, conditions or restrictions on real property that are unlimited as to time are restricted to 30 years. This does not apply to devises for public, charitable or religious purposes. If it has an expiration date (beyond 30 years), it expires in 30 years unless it is re-recorded in which case they can run for another 20 or until the expiration date (whichever is sooner.)
257
How does MA enforce unreasonable restrictions?
In MA, no restriction will be enforceable unless it is determined that the restriction is an actual and substantial benefit to a person claiming rights of enforcement.
258
In MA, an easement protecting a view is
(A) Affirmative
(B) Negative
(A) Affirmative because the owner has been vested with the affirmative right to ensure the protection of the view.
259
What two types of negative easements are specifically banned in MA?
Restrictions on solar energy systems
and
Prohibiting use of property for community residences for disabled persons.
260
In MA, when does a real estate broker earn a commission?
(i) She produces a ready, willing, and able buyer.
(ii) Buyer enters into a binding K with the seller.
AND
(iii) Closing occurs or fails due to the seller's default.
261
True of False:
In MA, recording raises the presumption of delivery.
True.
262
What is the consequence of MA's Marketable Title Acts?
In MA, defects or irregularities in deeds are cured once the deeds are on record for 10 years, unless, within the 10 year period, a proceeding is commenced on account of the defect, and notice is recorded.
263
What alternative does MA offer to recording for land owners to secure their land?
Registration.
After a participant files with the land court, the land court researches title, orders notice given to interested parties, holds a hearing, and then decides whether to register title.
Encumbrances other than tax liens are not valid unless they are on the certificate of title on file at the registry of deeds. On request, the land court will also confirm title by issuing a decree of ownership.
264
How does legacy property abate in MA?
Pro rata within each category, in the following order (absent a contrary will provision)
(i) intestate property
(ii) the residuary estate
(iii) general legacies
(iv) specific devises and bequests
265
In MA, how much of the beach do oceanfront property holders own?
Owners of oceanfront property own down to the low water mark, subject to the public's right under the Public Trust Doctrine to hunt, fish, fowl, and to navigate between the high water mark and the low water mark.
266
How does one create a condominium in MA?
(1) Record a master deed at the registry of deeds.
(2) Master deed states
(a) intent to create condo
(b) intent to be governed by chapter 183A
(c) describe the land, the building, and the units, each unit's % interest of the condominium, the method by which the master deed may be amended, and the name of the entity that will manage and regulate the condo.
267
What are common assessments and are they permissible?
They are permissible. Common assessments are fees in condo complexes that go toward the upkeep and maintenance of common facilities.
They are based on a % of interest of each party equal to the % of room taken up by their condo.
Failure to pay gives the condo a super priority lien for up to 6 months of unpaid fees + attorney's fees + costs. Higher priority over everything except federal tax liens. Assoc. may also collect rent from tenants if they give the owner notice of unpaid $ and intent to collect rent.
The owner may not set off $ owed to him by cond assoc. to set off his debt regarding common assessment fees.
268
Do condominium owners have the right to partition?
Yes, if 75% agree.
269
Can condominium associations grant an easement for exclusive use of any limited common area or facility?
Yes, but only upon the written consent of any owners abutting the limited common area or facility and of any unit owners directly affected thereby.
270
How does one register for a homestead?
The owner must occupy the home as his principal residence and record an estate of homestead with the register of deeds. Only one homestead may be acquired by a family.
This protects the first $500,000 against certain laws.
It may be terminated by a deed from the owners or a release recorded at the registry of deeds.
Absent a declaration, an automatic exemption exists in the amount of $125,000.
271
Papa Rayburn sells an easement to the gas company to put pipes underneath his B&B. The gas company lays the pipes underground and restores the surface of the land to its previous condition. The gas company does not record its easement. Later, Papa Rayburn sells the B&B to Danny for fair market value. Danny has no knowledge of the easement. Danny records. Later, Danny sells the B&B to John for fair market value, but John knows the gas company laid pipes underneath the hotel because he worked on the project. John records. Does John take subject to the easement? This occurred in a notice jurisdiction.
No. While John is not a BFP because he knew of the easement, he took from a Danny, who was a BFP. Therefore, John takes against all who Danny could have taken against under the shelter rule.
272
A life tenant is living on BA. There are currently taxes and a mortgage payment due on the land. Who must pay the mortgage and the taxes, the life tenant or the future interest holder?
The life tenant must pay the taxes and the interest on the mortgage.
The future interest holder must pay the principal on the mortgage.
273
Mom owns two adjoining parcels of land (E and W). She conveys E to Son, and grants him an easement over W. Later she conveys a LE in W to Son, remainder to Daughter. Son then conveys E to Friend. Then, Son dies. Friend wants to use the easement over W. Daughter says no. Does Friend have the right to the easement?
Yes. Son's interest in the servient estate was not equal to or greater than his interest in the dominant estate. Therefore, merger does not apply.
274
If a brewer installs pipes and tanks in a leased property, may the brewer remove those items when he leaves?
Yes. While these things are fixtures, they are trade fixtures, which, generally, may be removed at the end of a lease if it is not an integral part of the building and the tenant will pay for any damages caused by removal.
275
Do Question 26 from Practice MBE
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