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Cali Bar > Real Property > Flashcards

Real Property Flashcards

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1
Q

What are the elements of adverse possession?

A

Exclusive
Open notorious
Hostile
Continuous

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2
Q

What is adverse possession?

A

Allows one who has wrongfully entered a property to take possession of it where there has been exclusive, open and notorious, hostile, continuous possession of the land

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3
Q

Define actual possession for the purpose of adverse possession?

A

True owner excluded
Can only claim land used
Can lease to tenant to satisfy actual possession

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4
Q

How is open and notorious possession determined?

A

Using the land as a typical owner would

Puts true owner on notice of trespass

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5
Q

How is hostile possession determined for adverse possession?

A

No permission
Boundary disputes = hostile
Ouster of co-tenant

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6
Q

How is continuous possession defined for adverse possession?

A

20 years at common law

Owner does not regain possession

Seasonal use can satisfy (as long as only true owner would use land that way)

Tackling permitted where adverse possessors in privity

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7
Q

What is the effect of adverse possession?

A

Marketable title not conveyed unless title perfected and made marketable by judicial action to quiet title

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8
Q

What are the sof requirements for a land transfer?

A 
Writing 
Name parties 
Signed 
Describe land 
State consideration
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9
Q

What are the part performance exceptions to sof?

A

Possession + payment
Substantial improvements
Conveyance made by seller

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10
Q

What is the implied promise in every land transfer agreement?

A

Marketable title

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11
Q

What is the doctrine of equitable conversion?

A

Buyer is owner of property after signing of contract, before closing

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12
Q

What are the remedies for breach of land sale?

A

Specific performance

Damages

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13
Q

How are damages calculated in a sale of land contract?

A

Difference between market price and contract price

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14
Q

What are the requirements for specified performance to apply?

A 
Valid contract 
Conditions satisfied 
Inadequate legal remedy 
Mutual performance 
Feasible enforcement 
No defenses

Chocolate cheesecake is my favorite dessert

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15
Q

When might there be an inadequate legal remedy such that specific performance is appropriate?

A

Damages too speculative
Defendant insolvent
Possible multiple suits
Property unique

Speculative, insolvent, unique suits

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16
Q

What are the defenses to a breach of a sale of land contract?

A 
Laches
Unclean hands 
Lack of consideration 
Sof
Sale to a bona fide purchaser
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17
Q

Define mortgage

A

A financing agreement that conveys a security interest in the land where parties intend land to be collateral for the repayment.

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18
Q

Is there a writing requirement for a mortgage?

A

Yes!

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19
Q

What is the mortgage exception to sof?

A

An equitable mortgage

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20
Q

What are the buyer’s rights under a mortgage?

A

Possession

Title

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21
Q

What are the creditor’s rights in a mortgage?

A

Lien which allows him to look to mortgage in the event of default

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22
Q

Are mortgages transferable?

A

Yes

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23
Q

What is a foreclosure?

A

Mortgagee seeks land when mortgage defaults

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24
Q

What is the effect of an anti deficiency statute?

A

Limits lender to value of loan

Excess goes to buyer from proceeds of sale after paying off debts

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25
Q

What is a deficiency judgment?

A

A judgment holding someone personally liable for debt not recovered from foreclosure.

Property worth less than loan.

Lender can only sue debtor personally for difference if:

  • judicial foreclosure
  • loan was not purchase money mortgage
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26
Q

What is the difference between an installment contract and a mortgage?

A

Buyer does not get title until payment completed where there is an installment contract

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27
Q

What happens if a buyer defaults on an installment contract?

A

Seller gets back property

Seller keeps payments

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28
Q

What are the requirements of a conveyance by deed?

A

Identification of parties
Signature of grantor
Description of property
No consideration required

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29
Q

What is a quitclaim deed?

A

Conveys grantor’s interest in property, but contains no covenants of title

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30
Q

What are the present covenants for title that may be breached at the time of sale?

A

Seisin (grantor owns property)
Right to convey
Against encumbrances

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31
Q

What are future covenants that may be breached when grantee is disturbed in possession?

A

Warranty of title
Quiet enjoyment
Further assurances

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32
Q

How may a deed be delivered?

A

Physical transfer
Intent to present transfer
Acceptance of deed by grantee

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33
Q

When does title pass from grantor to grantee?

A

Immediately upon delivery of the deed

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34
Q

What factors create a presumption of intent to make a present transfer of deed?

A

Recording of deed

Grantor giving deed to grantee

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35
Q

What is the merger doctrine?

A

Upon closing, the deed rather than the land sale contract becomes the operative document.

Obligations in the contract are discharged at closing unless repeated in the deed.

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36
Q

What is ademption?

A

A testator decided a specific property to a specific party under his will, but that property is no longer part of his estate.

A gift that is adeemed fails.

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37
Q

What is exoneration?

A

Where a party receives a bequest of a specific property that is subject to a lien, the encumbrance is paid off with estate’s personal property.

Recipient receives a free and clear property.

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38
Q

What is lapse?

A

If a beneficiary named in a will predecessors the testator, the bequest fails.

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39
Q

What is an antilapse statute?

A

If beneficiary predeceases the testator, decreased’s heirs take the property

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40
Q

What time applies in absence of a recording act?

A

Common law, first in time, first in right

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41
Q

What are the three types of recording acts?

A

Pure race
Pure notice
Race-notice

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42
Q

What is a pure race statute?

A

First to record wins

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43
Q

What is a pure notice statute?

A

Subsequent bona fide purchaser wind over a grantee who didn’t record

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44
Q

What is a race-notice statute?

A

A subsequent bfp that records first prevails over a grantee that didn’t record first

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45
Q

What is a bona fide purchaser?

A

One who takes property for value

Without notice of prior interest

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46
Q

Do recording acts protect donees?

A

No, they don’t take for value

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47
Q

Who do recording acts protect?

A

Bfps

Subsequent grantees

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48
Q

What instruments do recording acts apply to?

A 
Conveyances 
Easements 
Mortgages 
Life estates 
Restrictive covenants

Mr. Cel

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49
Q

What are the three types of notice of a prior interest?

A

Actual notice
Record notice
Inquiry notice

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50
Q

What is inquiry notice?

A

Purchaser is property is in possession of facts that would lead a reasonable person to make a further inquiry

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51
Q

What is estoppel by deed?

A

One purporting to own property conveys interest, later obtains interest, cannot dent validity of that conveyance

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52
Q

What is the shelter doctrine?

A

One who takes property from a bfp will stand in the shoes of the bfp and will prevail against any entity against which the transferor-bfp would have prevailed

53
Q

What is fee simple absolute?

A

A freehold estate that conveys absolute ownership

54
Q

What is fee tail?

A

Allows landowner to ensure real property remains within family

55
Q

What is fee simple defeasible?

A

Allows property to be held/conveyed to another subject to a stated limitation

56
Q

What are the stated limitations under fee simple defeasible?

A

Fee simple determinable
Fee simple subject to condition subsequent
Fee simple subject to executory limitation

57
Q

What is fee simple determinable?

A

A type of fee simple defeasible that:

Automatically terminates a possessory interest in land at the occurrence of a specified event

Grantor retains possibility of reverter

Created by words of duration

58
Q

What is fee simple subject to condition subsequent?

A

A type of fee simple defeasible which can terminate the possession of an estate at the occurrence of a stated event, but not automatically

Grantor retains right of reentry

59
Q

What is fee simple subject to executory limitation?

A

Automatically terminated a preceding estate at the occurrence of a stated event, but estate passes to third party rather than revert to grantor

Third party holds future interest

60
Q

What is a life estate per autre vie?

A

A life estate that lasts for lifetime of third party

61
Q

May a life estate be defeasible?

A

Yes

62
Q

May a holder of a life estate convey his interest?

A

Yes, but not more than what he holds

63
Q

What duty does the holder of a life estate have?

A

Not to commit waste on the land

64
Q

What language establishes a fee tail?

A

To “a” and the heirs of her body

65
Q

Modernly, what does an attempt to create a fee tail establish?

A

Fee simple absolute

66
Q

What are the characteristics of fee simple absolute?

A 
Absolute ownership 
Infinite duration 
Freely divisible
Freely descendable 
Freely alienable
67
Q

Does a living person have heirs?

A

No, just potential heirs

68
Q

Historically, what was the effect of a fee tail?

A

Title passed by operation of law to blood descendants upon death

69
Q

What is a defeasible fee?

A

An interest in real property that has the possibility of being taken away

70
Q

What language indicates a fee simple determinable?

A

So long as
Until
During
Provided that

71
Q

What is the effect of a violation of a fee simple determinable?

A

Automatic reversion to the grantor

72
Q

Where there is a fee simple subject to condition subsequent, what happens when the condition occurs?

A

Nothing until the grantor exercises her right of reentry

73
Q

How do courts generally interpret defeasible fees?

A

Disfavored, policy against restraints on alienation.

Require clear durational language.

74
Q

What is the effect of absolute restraints on alienation?

A

Void and unenforceable

75
Q

What are the rights of a life tenant?

A

Ordinary use and profits of the land

76
Q

What are the duties of a life tenant?

A

Duty not to commit waste

77
Q

When may a life tenant exploit land?

A

Where exploitation was prior use of land

Reasonable repairs and maintenance

Only suitable use of land

Open mines

Express authorization

78
Q

What’s the difference between fee simple determinable and fee simple subject to condition subsequent?

A

Fee simple determinable = automatic reverter

Fee simple subject to condition subsequent = right of reentry

79
Q

What does a failed attempt at an easement create?

A

A license

80
Q

Whose interests are being divested in a springing executory estate?

A

The grantor

81
Q

Whose interests are being divested in a shifting executory estate?

A

The transferee

82
Q

Do joint tenants have the right of survivorship?

A

Yes

83
Q

What is a tenancy in common?

A

A concurrent estate where each co-tenant retains an undivided interest in the whole property.

84
Q

What is a joint tenancy?

A

A concurrent estate where each tenant owns an undivided interest in the whole property with right of survivorship.

85
Q

How is joint tenancy created?

A

With unity in time, title, interest, possession

86
Q

What is the effect of an oral easement?

A

Unenforceable, creates a freely revokable license

87
Q

What is required for a covenant burden to run with the land?

A 
Writing 
Intent 
Touch and concern land 
Horizontal privity 
Vertical privity 
Notice

Witch van

88
Q

What is a reversion?

A

A future interest retained by the grantor when he transfers less than a fee interest

Transferable, devisable and descendable

89
Q

When is a remainder vested?

A

No condition precedent

Will be received by ascertainable person

90
Q

What is a vested remainder subject to open

A

Made to a class
One ascertainable member
Others may join later

Subject to rap

91
Q

What kind of language for

  • fee simple determinable
  • fee simple subject to condition subsequent
A

Durational

Conditional

92
Q

What is a remainder?

A

An interest created in a third party which follows naturally the termination of a proceeding estate

93
Q

What is permissive waste?

A

Damage to the property by failure to take reasonable steps to protect it.

Ex. Not putting up hurricane shutters

94
Q

What’s the difference between ameliorative waste at common law and at modern law?

A

At common law couldn’t improve property and liable to restore land to original condition; at modern law, can improve property if not impacting market value and permitted by owner or if justified by a change in the neighborhood.

95
Q

What is the difference between a vested remainderman’s and a contingent remainderman’s right to sue?

A

Vested can sue for injunction and damages, contingent can only sue for injunction

96
Q

When is a total restraint on alienation permissible?

A

If it’s on less than a fee and is reasonable

97
Q

What is the common law rule against perpetuities?

A

No interest is good unless it must best within 21 years in some life in being at the creation of the instrument.

98
Q

When does the rule against perpetuities apply?

A

Three future interests:

Executory interest
Contingent remainder
Vested remainder subject to open

99
Q

A concurrent estate under modern majority rule is that a conveyance to two or more people is presumed to be…

A

A tic

Unless stated right of survivorship specifically

100
Q

What four unities for joint tenancy?

A

Time
Title
Interest
Possession

Modernly, just interest and possession.

101
Q

Which unities does tic require?

A

Possession

102
Q

What happens if a JT mortgages his interest?

A

JT not severed - Lein Theory

JT seceded - title theory

103
Q

What are common defects to title?

A

Mortgage
Adverse possession
Zoning violation
Easement

104
Q

What are the requirements of a valid deed?

A

Id parties
Intent to transfer
Id property
Signature of grantee

105
Q

Who is a bona fide purchaser of land?

A

Pays value

Doesn’t know about other claim

106
Q

In a notice jurisdiction, how does a subsequent grantee win ownership of property?

A

Be a bfp

Not have notice of prior grant

107
Q

In a race-notice jurisdiction, how does a subsequent grantee win?

A

Be a bfp

Record first

108
Q

What is estoppel by deed?

A

Someone conveys property they don’t have, later acquire, can’t deny title

109
Q

What is the order of payment from proceeds from a foreclosure sale?

A

Pay cost of sale

Pay debt

110
Q

What is the statutory right of redemption where there is a foreclosure sale?

A

Debtor can buy property from whoever bought it at foreclosure for the price they bought it at the foreclosure sale

111
Q

What’s the difference between taking a property subject to mortgage and assuming the mortgage?

A

If mortgage assumed, grantee personally liable on it

If subject to mortgage, debt is on the land

112
Q

What is required for an easement by conveyance?

A

Previous common ownership of dominant and servient estate

Prior use/quasi easement

Reasonable necessity

113
Q

What happens when an easement is surcharged?

A

Overused, servient estate can sue to enjoin or seek damages from dominant estate

114
Q

How is an easement terminated?

A
  1. Merger
  2. Abandonment = lack of use + word/act indicating intent to abandon
  3. Written release - per sof
  4. Detrimentally relying on abandonment
  5. Attempt at severance.

Wadma

115
Q

What happens to an easement when the servient estate is sold to a bona fide purchaser without notice?

A

Easement terminates

116
Q

What is a profit right to a property?

A

Can enter and take something off someone’s land (minerals, water)

Can only be created expressly or by prescription

117
Q

What is a license interest?

A

Personal right, not land interest
Can be oral
Freely revocable

118
Q

What is the difference between a breach of a covenant v. an equitable servitude?

A

Covenant breach = damages

Equitable servitude breach = injunction

119
Q

What is the riparian view of water rights?

A

If you’re using a reasonable amount, not liable for causing lower users to suffer

120
Q

When is the sale of crops a sale of goods and when is it a sale of real property?

A

If seller severs, sale of goods

I’d buyer severs, sale of land

121
Q

Can a lease be oral?

A

Yes if for less than one year

122
Q

What is a periodic tenancy?

A

Self-renewing tenancy
Created by words or implication
Holdover tenant; indefinite term

Must give notice of intent to terminate.

123
Q

How much notice must be given to end a periodic tenancy?

A

Equal to the rental period up to 6 months

124
Q

What factor determines whether a holdover tenant is a periodic tenant or a tenant at sufference?

A

Whether the landlord accepts rent

125
Q

What does a tenant at sufferance owe?

A

Reasonable rental value of property

126
Q

What is a partial eviction by a landlord?

A

Landlord puts stuff on tenant’s property preventing tenant from full use of property.

Excuses tenant from paying any rent.

127
Q

What is the difference between an equitable servitude and a covenant?

A

Equitable servitudes have no privity requirement and are enforced in equitable relief only

128
Q

How is an implied equitable servitude established?

A
  1. Original owner intended a common plan or scheme

2. Purchaser has notice of scheme

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