Real Property

Question 1

Tacking

Answer 1

Periods of adverse possession of different parties can be aggregated (tacked) together to reach the statutory AP period if the parties are in privity of estate.

Question 2

covenants in a general warrantee deed (six)

Answer 2

1) Seisin (seller’s ownership and possession of the land)
2) right to convey
3) covenant against encumbrances
4) covenant of quiet enjoyment (no adverse title claims will come)
5) covenant of warranty
6) covenant of further assurances

Question 3

Adverse possession of land with an easement

Answer 3

The adverse possessor acquires the same title held by the original owner, and takes property burdened by an easement subject to that easement, unless he can show that he adversely possessed the easement as well.

Question 4

Privity of estate

Answer 4

if there has been an intentional transfer of possession between the parties.

Question 5

Abandonment of an easement

Answer 5

Elements:

(1) non-use of the easement AND
(2) some act which is evidence of an intent to abandon.

Question 6

If someone gives permission to an adverse possessor to be on the land…

Answer 6

…if it is the owner, then not hostile, so no AP.

But if someone else gives permission, then it is still hostile, can count towards AP.

Question 7

Do covenants bind Adverse Possessors?

Answer 7

Every possessory interest in land is bound by an equitable covenant burdening that land. Commentators have suggested that an adverse possessor would be bound by an equitable restriction, although no case has so held. One theory is that the adverse possessor’s occupation of the property was not adverse to the rights of those who would enforce the equitable restriction, and so they have not sat on their rights.

Question 8

Boundary line agreements

Answer 8

As a general rule, judicial recognition is extended to boundary-line agreements, even if not executed with the formalities prescribed by the Statute of Frauds. Application of the doctrine usually requires proof that the parties were not informed as to the true boundary line, that there was an express or implied agreement as to its location, and that possession conformed to the agreement.

Question 9

Lateral and Subjacent support

Answer 9

A landowner who engages in activities that cause the subsidence of unimproved land on an adjacent parcel is strictly liable for resulting damage.
For improves land the standard is negligence.

Question 10

Constructive Eviction

Answer 10

For a constructive eviction to exist, all of the following must occur:

1) The landlord must withhold something essential to the full enjoyment of the property that is included within the terms of the lease or is required by statute
2) The landlord’s act or failure to act must substantially and permanently interfere with the tenant’s use and enjoyment of the premises
3) The tenant must move out.

Question 11

Landlord’s acceptance of tenant’s surrender of the premises

Answer 11

Where a tenant surrenders his lease, the landlord may choose to accept the surrender or enforce the terms of the lease. If the landlord accepts, the tenant is no longer bound by the lease.
Acceptance of the surrender can be either express or implied by operation of law. An acceptance will be implied by operation of law where the tenant is able to prove that the landlord has taken unequivocal steps toward accepting the surrender. Retention of the keys by the landlord, without more, will not constitute acceptance

Question 12

Equitable Conversion

Answer 12

When a land-sale contract is formed, at that point there is a bifurcation of title.

a) Equitable title: passes to the buyer
b) Legal title: remains with the seller until the deed closes

Under the majority approach: risk of loss (along with appreciation benefits) is deemed to follow equitable title, and therefore the risk of loss is on the buyer unless the parties have made other arrangements

Question 13

Uniform Vendor and Purchaser Risk Act

Answer 13

Under this minority rule, after contract for sale of land, the risk of loss remains with the seller until there legal title or possession of the property has passed to the buyer

Question 14

Zoning law effect on marketability

Answer 14

Zoning laws only violated the warranty of marketability if there is a current zoning violation. Zoning laws that may conflict with the buyer’s intended future use to not affect marketablilty.

Question 15

Affect of encroachment on marketablity

Answer 15

a slight encroachment from adjacent property will not render title undermarketable. A more significant encroachment might render title unmarketable.

Question 16

duty of landowners to known trespassers

Answer 16

to exercise reasonable care to warn of hidden dangers

Question 17

estoppel by deed

Answer 17

if someone sell property that they don’t have and then they somehow get it, the are estopped from claiming ownership, and it goes to the buyer

Question 18

the Rule in Dumpor’s Case

Answer 18

a covenant against assignment, once waived, is unenforceable as to subsequent assignments. However, the landlord can reserve the right to restrict future assignments by expressly stating that the waiver is a one-time occurrence.

Question 19

If a lease is assigned (once or multiple times), who can the landlord sue?

Answer 19

If assignment was permitted, assignee and assignor are jointly and severally liable.
If assignment was not permitted, LL can choose to sue assignee, thereby ratifying the assignment, and original tenant is also still liable.
If multiple assignees, original tenant (in privity of contract) and final (permitted) assignee, are jointly and severally liable.

Question 20

Covenant against encumbrances

Answer 20

a covenant assuring that there are no encumbrances (such as easements, liens, mortgages) against the title.

Question 21

covenant of warranty

Answer 21

covenant wherein the grantor agrees to defend the grantee against claims of title by a third party, and to compensate the grantee for any loss sustained by the claim of superior title.

Question 22

to whom is a party who interferes with the use and enjoyment of rented property liable (i.e. nuisance tort)?

Answer 22

only to the renter/current possessor, not to the landlord, who has no standing to sue

Question 23

functional equivalency doctrine

Answer 23

applies in situations where there is a foreclosure, the purchaser who has paid a substantial portion of the purchase price is entitled to a redemption right (because in Installment Land Sale Contract is the functional equivalent of a mortgage)

Question 24

upsetting a foreclosure sale

Answer 24

In order to upset the sale, a mortgagor must show fraud in the conduct of the sale and the inadequacy of the sale price. A party not paying fair market value is not enough alone to upset the sale.

Question 25

“clogging” the right of redemption

Answer 25

“clogging” is usually used to prevent the mortgagee from inserting terms in the mortgage instrument limiting or restricting the mortgagor’s right of redemption.
Rule: “once a mortgage always a mortgage.” This, in effect, means that a mortgagee cannot circumscribe the mortgagor’s right to redeem by disguising the transaction as an outright conveyance (i.e. as a deed absolute held in security)

Question 26

hypo: validity of a provision limiting redemption to the mortgagor himself, as distinct from his executor or heirs).

Answer 26

likely invalid, b/c it clogs the right of redemption

Question 27

rules for a deed absolute intended to be held as security

Answer 27

treated by courts as a mortgage, same rules

Question 28

enforceability of prepayment penalty clauses in mortgages

Answer 28

a prepayment penalty clause contained in a mortgage instrument is enforceable. Rationale is that a lender will lose an anticipated interest in the event that the mortgage principal is paid before the due date.

Question 29

Shelter rule

Answer 29

A grantee who has received an interest in property from a BFP will also be protected as a BFP, even if she grantee would not legally qualify for this status. Grantee is
“sheltered” from other claims by grantor’s status as an actual BFP.
This allow a BFP who is entitled to hold and enjoy the property, to have a congruent entitlement to sell that property. Also prevents use of the property from being held up in litigation

Question 30

common enemy rule

Answer 30

CL rule for surface waters, basically keep or get rid of whatever you want, not riparian (that’s for rivers and lakes, etc)

Question 31

Open Mines Doctrine

Answer 31

A life tenant has the right to continue
operation of existing mines on the
leased premises, but a remainderman
can enjoin the opening of any new
mines (i.e. voluntary waste).
Tip- no injunction, no accounting if existing

Question 32

RAP only applies in:

Answer 32

[COPER]

1. Contingent remainders/Class gifts
2. Option to purchase connected with a fee
3. Powers of appointment (not possibility of reverter)
4. Executory interests
5. Rights of first refusal (not rights of reentry)

Question 33

are judgment creditors BFPs?

Answer 33

only if they purchase the debtor’s property at a judicial sale. Mere entry of the judgment, creating a lien against the judgment debtor’s property, is not considered a “purchase for value.”

Question 34

PMM (purchase money mortgager)

Answer 34

A PMM takes priority over earlier recorded
mortgages, and even recording statutes, as long
as it is properly recorded.
Could lose priority if there’s a material modification

Question 35

mortgage modifications

Answer 35

Rule: if a senior mortgage is modified, a junior mortgage prevails over the modification to the extent that the modification materially prejudices the holder of the junior mortgage. e.g. an increase in the interest rate if the rate under the original mortgage was fixed would be a prejudicial modification

Question 36

effect of: partial actual eviction, partial constructive eviction, total constructive eviction

Answer 36

Partial actual eviction: no rent owed
Partial constructive eviction: rent reduction
Total constructive eviction: no rent owed

Question 37

privity effects when a lease is assigned

Answer 37

In an assignment by a tenant, the assignee comes into privity of estate with LL, while the tenant remains in privity of contract with LL.
With multipe consecutive assignees, Middle-of-the-chain assignees are not liable to the landlord (b/c middle on loses p of estate), only to the original tenant.

Question 38

effect of death or incapacity on a lease

Answer 38

In most jurisdictions, a lease does not terminate upon the death or incapacity of either party to the lease. Rather, the deceased or incompetent party’s interest passes to his or her estate.

Question 39

effect of destruction on an easement

Answer 39

Destruction of the dominant (and perhaps the servient) estate will terminate an easement.
Destruction of the easement itself will not terminate it; rather it gives the easement holder a right to rebuild the easement.

Question 40

covenant of quiet enjoyment

Answer 40

promises that the purchaser of property will not have any interference in his possession of the land. The covenant of quiet enjoyment is considered breached only where the interference with possession of the land is by a person with superior title.

Question 41

marketable title act

Answer 41

A marketable title act provides a “cut-off” point, which limits the time period during which a subsequent purchaser is required to search the records. The cut-off point is fixed by identifying a deed that has been of record for the required period, usually 30 or 40 years. Any interest that is not recorded or refiled within the required period is extinguished. A recorded deed becomes the “root of title” after that period has passed, at which point all competing interests recorded prior to the root of title are extinguished.

Question 42

can the owner of an implied easement upgrade or improve the easement?

Answer 42

The owner of an implied easement has a limited right to upgrade the easement and generally may not develop or upgrade it beyond the reasonable contemplation of the parties at the time the property was divided.

Question 43

govt response to zoning violations

Answer 43

1) issuance of a Notice of Zoning Violation, containing a cease and desist and listing potential penalies
2) civil fines that may be assessed if violator does not cease and desist by the deadline set in the notice.
3) if it is a jurisdiction where statute allows it, possible misdemeanor prosecution if violator does not cease and desist by the deadline.