Real Property

Question 1

What is a life tenant obligated to pay?

Answer 1

Rule 1291: A life tenant is obligated to pay the property taxes assessed against the property only to the extent the life tenant receives income from the property. [1998]

Question 2

A devise to B, for life, with remainder to my descendants per stirpes” will result in what?

Answer 2

Rule 1292: A devise to B, for life, with remainder to my descendants per stirpes” will result in a life estate to B while the remainder is contingent if a court implies a condition that the remaindermen survive B. [1998]

Question 3

A conveyance to B and his heirs conveys the property to B in what? What interest does heirs have?

Answer 3

Rule 1293: A conveyance to B and his heirs conveys the property to B in fee simple and the heirs have no interest under this conveyance. [1998]

Question 4

If A conveys to B for life, with remainder to C’s children who are not yet born, C’s unborn children have what type of interest?

Answer 4

Rule 1294: If A conveys to B for life, with remainder to C’s children who are not yet born, C’s unborn children have a contingent remainder. [1992]

Question 5

If a deed conveys a life estate to be used for a specific purpose, if it is no longer used for that purpose what can be done?

Answer 5

Rule 1295: If a deed conveys a life estate to be used for a specific purpose, if it is no longer used for that purpose, you can enjoin the holder of the life estate, and damages can be recovered but impounded for future distribution. [1992]

Question 6

To prevent restraints on alienation, if there is a question as to the interpretation of a conveyance, it will be interpreted as what?

Answer 6

Rule 1296: To prevent restraints on alienation, if there is a question as to the interpretation of a conveyance, it will be interpreted as a fee simple absolute and restrictions in the conveyance will be regarded as contractual (fee simple absolute is default). [1992]

Question 7

A valid remainder after a life estate is still valid even if what?

Answer 7

Rule 1297: A valid remainder after a life estate is still valid even if provisions on the remainder interest are declared void as restraints on alienation. [1992]

Question 8

A grantor has a possibility of reverter if what?

Answer 8

Rule 1298: A grantor has a possibility of reverter if he conveys a fee simple determinable followed by a void executory interest. [1992]

Question 9

Rule 1299: The holder of a life estate is only obligated to pay the interest portion of a mortgage on the property; for property taxes, the life tenant is responsible only to the extent that he or she receives income. [1992]

Answer 9

Rule 1299: The holder of a life estate is only obligated to pay the interest portion of a mortgage on the property; for property taxes, the life tenant is responsible only to the extent that he or she receives income. [1992]

Question 10

The holder of a life estate must pay _____ and the remainderman must pay _______ and the life tenant is responisble for _____

Answer 10

Rule 1300: The holder of a life estate must pay the interest portion of the mortgage and the remainderman must pay the principal; thus, the life tenant is responsible for the mortgage interest only. [1992]

Question 11

: If a remainder is created in a class that could grow (thereby diluting each existing class member’s share, this remainder is vested subject to what?

Answer 11

Rule 1301: If a remainder is created in a class that could grow (thereby diluting each existing class member’s share, this remainder is vested subject to partial defeasance (i.e. subject to open). [1992]

Question 12

f a statute provides that any interest in land is freely alienable, a conveyance of a future interest by quitclaim deed is what?

Answer 12

Rule 1302: If a statute provides that any interest in land is freely alienable, a conveyance of a future interest by quitclaim deed is valid and title will vest in the grantee when the occurrence happens. [1992]

Question 13

An interest created in a third person to follow a fee simple determinable will be void if what?

Answer 13

Rule 1303: An interest created in a third person to follow a fee simple determinable will be void if it is not sure to vest within lives in being (people identified in the granting instrument). [1992]

Question 14

A conveyance “to B, his heirs and assigns, so long as the premises are used for residential purposes, then to C and his heirs and assigns what?

Answer 14

Rule 1304: A conveyance “to B, his heirs and assigns, so long as the premises are used for residential purposes, then to C and his heirs and assigns is a possibility of reverter. [1992]

Question 15

he owner of a defeasible fee simple has the right to take minerals from the land without what?

Answer 15

Rule 1305: The owner of a defeasible fee simple has the right to take minerals from the land without notice to any executory interests. [1992]

Question 16

f a life tenant wants to demolish a building on the property to build a shopping mall, this constitutes what?

Answer 16

Rule 1306: If a life tenant wants to demolish a building on the property to build a shopping mall, this constitutes waste. [1991]

Question 17

conveyance: To A for the purpose of constructing a day care center creates what?

Answer 17

Rule 1307: A conveyance: To A for the purpose of constructing a day care center creates a fee simple absolute because there is no durational language (the precatory language is not controlling). [1991]

Question 18

If a person mortgages his interest in a property, but he dies before the loan is fully repaid, the property will go to whom? What results with the mortgage?

Answer 18

Rule 1308: If a person mortgages his interest in a property, but he dies before the loan is fully repaid, the property will go to his heirs/ devisees as cotenants. The property remains subject to the mortgage and all co-tenants are obligated to pay their share of the mortgage, taxes, etc. Such co- tenants who obtain their interest in the same document are fiduciaries of one another, meaning that a cotenant who later acquires superior title to the property (e.g. by a subsequent tax or mortgage foreclosure sale) must give the other co-tenants a reasonable opportunity to acquire their proportional share. [2019]

Question 19

in a case of a tenancy in common, one of the co-tenants can lease his portion of the property interest without the consent of the other co-tenants - however, the non-joining tenant may NOT what?

Answer 19

Rule 1309: In a case of a tenancy in common, one of the co-tenants can lease his portion of the property interest without the consent of the other co-tenants - the non-joining tenant may not bring an ejection action to demand exclusive possession against the lessee who has an agreement with the other joining tenant - the only possible remedy is co-possession with the third party through a partition action. [2017]

Question 20

A joint tenant interest cannot be devised by ____ because?

Answer 20

Rule 1310: A joint tenant’s interest cannot be devised by will - when one joint tenant or tenant by the entirety dies, the survivor becomes the sole owner of the property - if a right of survivorship is not the desired disposition of the property (i.e. the testator does’t want his share to go to the joint tenant), the joint tenancy must be changed to a tenancy in common during the testator’s lifetime (e.g. if a husband and a wife own a farm in a joint tenancy with the right of survivorship and the husband dies after devising the property to a charity in his will, the wife will become the farm’s sole owner since, although a joint tenant can freely alienate his interest without a cotenant’s consent, he must do so during his lifetime and not through a will). [2013]

Question 21

The recording of a judgment against a joint tenant with right of survivorship allows the judgment creditor to do what?

Answer 21

Rule 1311: The recording of a judgment against a joint tenant with right of survivorship allows the judgment creditor to obtain a writ of execution but it does not sever the joint tenancy - a lien severs a joint tenancy only after a writ of execution has been granted by the court and the joint tenancy is severed by the sheriff`s sale (e.g. if joint tenant A’s creditor failed to execute on the judgment against A before A’s death, the surviving joint tenant receives the real property in fee simple free and clear of any liens against A’s interest). [2011]

Question 22

A co-tenant in a tenancy in common has the right to lease out his portion of the tenancy without the approval of the other co-tenants, BUT

Answer 22

Rule 1312: A co-tenant in a tenancy in common has the right to lease out his portion of the tenancy without the approval of the other co-tenants, BUT he must share the rent proceeds with other co- tenants and the renter must share possession of the premises with the other co-tenants. [2011]

Question 23

In a partition action, the option of physical partition is not available if what?

Answer 23

Rule 1313: In a partition action, the option of physical partition is not available if a zoning ordinance makes it impossible to divide the land fairly. [2008]

Question 24

At the death of a joint tenant, his interest goes to the other joint tenants, regardless of what

Answer 24

Rule 1314: At the death of a joint tenant, his interest goes to the other joint tenants, regardless of what the dead joint tenant’s will states. [2006]

Question 25

A cotenant of real property has a right to a what? What result does adverse possesion have on cotents?

Answer 25

Rule 1315: A cotenant of real property has a right to a partition and an accounting - adverse possession will not apply to co-tenancies unless one cotenant was ousted. [1998]

Question 26

if a property held by co-tenants is sold at a tax sale and purchased by one of the co- tenants, the other co-tenants can acquire the same interest they previously held by doing what?

Answer 26

Rule 1316: If a property held by co-tenants is sold at a tax sale and purchased by one of the co- tenants, the other co-tenants can acquire the same interest they previously held by paying their respective portion of the purchase price at the tax sale. [1998]

Question 27

Rule 1317: Equal tenants in common may physically partition their land and can then grant cross-easements if they wish to continue to access each other’s land. [1992]

Answer 27

Rule 1317: Equal tenants in common may physically partition their land and can then grant cross-easements if they wish to continue to access each other’s land. [1992]

Question 28

joint tenant who orally agrees to a division of the property and that agreement is supported by the joint tenant’s conduct; the joint tenant may be estopped from ______

Answer 28

Rule 1318: A joint tenant who orally agrees to a division of the property and that agreement is supported by the joint tenant’s conduct; the joint tenant may be estopped from asserting title over the whole property when the co-tenant dies due to such conduct. [1992]

Question 29

: The estate created by a deed to a couple who were never formally married is a _____

Answer 29

Rule 1319: The estate created by a deed to a couple who were never formally married is a tenancy in common, not a tenancy by the entirety, and it is therefore subject to severance or partition. [1992]

Question 30

How can you destory a tenancy in the entirety?

Answer 30

Rule 1320: In a tenancy by the entirety, neither spouse can convey separately. The only way to destroy a tenancy in the entirety is by way of death of one of the spouses, divorce, or the dual transfer of the property. [1992]

Question 31

The ouster of a co-tenant requires what?

Answer 31

Rule 1321: The ouster of a co-tenant requires sufficient acts of hostility, and the mere exclusive possession of the premises by one co-tenant is insufficient. [1992]

Question 32

What duties do each other does a joint tenant have?

Answer 32

Rule 1322: Joint tenants have no fiduciary duty to each other; one joint tenant can straw sale to dissolve the joint tenancy. [1991]

Question 33

Under the common law, in a title theory jurisdiction a mortgage results in what? What results to a joint tenancy?

Answer 33

Rule 1323: Under the common law, in a title theory jurisdiction, a mortgage results in a transfer of ownership to the mortgagee. Under this rule, a mortgage given by a joint tenant terminates the joint tenancy. [1991]

Question 34

How may a tenancy of the entirety be severed?

Answer 34

Rule 1324: A tenancy of the entirety may not be severed by unilateral conveyance - the tenants must mutually agree to convey to another person or one must convey to the other. [1991]

Question 35

If one joint tenant has a lien on his share, and the joint tenant dies what results?

Answer 35

Rule 1325: If one joint tenant has a lien on his share, and the joint tenant dies, the other joint tenant owns the whole property and the lien is extinguished. [1991]

Question 36

What results when one joint tenant quitclaims his interest?

Answer 36

Rule 1326: If one joint tenant quitclaims his interest, the joint tenancy is severed. [1991]

Question 37

If there are two joint tenants, and one dies what results?

Answer 37

Rule 1327: If there are two joint tenants, and one dies, the other becomes sole owner of the interest that the two of them had previously held jointly, and that tenant can convey the property without joinder of any other person in the conveyance. [1991]

Question 38

In a joint tenancy, where one tenant takes out a mortgage, whose interest is subject to the mortgage interest?

Answer 38

Rule 1328: In a joint tenancy, where one tenant takes out a mortgage, only the mortgagor’s interest is subject to the mortgage (i.e. a 1/ 2 interest). [1991]

Question 39

At common law, a tenancy of the entirety could ONLY be held by whom?

Answer 39

Rule 1329: At common law, a tenancy of the entirety could ONLY be held by validly married couples. [1991]

Question 40

: If a person tries to buy property as tenants in common and forges the other perso’s name on the conveyance, what results to the title?

Answer 40

Rule 1330: If a person tries to buy property as tenants in common and forges the other perso’s name on the conveyance, that ½ share will be vested in the grantor, not the other tenant in common, because forgery does not transfer title. [1991]

Question 41

Under the doctrine of retaliatory eviction, a landlord cannot evict a tenant simply because what?

Answer 41

Rule 1331: Under the doctrine of retaliatory eviction, a landlord cannot evict a tenant simply because the tenant asserts his legal rights protected by the implied warranty of habitability. If a tenant makes a good-faith complaint regarding the habitability of the premises, many states presume a retaliatory motive if the landlord attempts to evict or penalize the tenant within a defined period of time after the tenant exercises these rights. These protections cannot be contracted away in the lease and the burden of proof is on the landlord to show that the eviction was not retaliatory. [2019]

Question 42

If a landlord elects to holdover a tenant who has wrongfully stayed on past the conclusion of the original lease, the tenant becomes what type of tenant? How is the period measured??

Answer 42

Rule 1332: If a landlord elects to holdover a tenant who has wrongfully stayed on past the conclusion of the original lease, the tenant becomes a periodic tenant with the period measured by the way the rent is tendered (e.g. if a tenant was paying monthly, an implied month to month periodic tenancy is created). If the landlord later elects to terminate this holdover periodic tenancy, the landlord must give the tenant notice at least equal to the length of the period itself (e.g. in an implied month to month periodic tenancy, the landlord must give 30 days’ notice prior to the beginning of the next period). [2019]

Question 43

under the common law, a landlord has no cause of action against a sublessee b/ c why?

Answer 43

Rule 1333: Under the common law, a landlord has no cause of action against a sublessee b/ c there is no privity of contract or privity of estate between them - the subtenant is only liable to the original tenant and the landlord can sue only the original tenant (e.g. if a tenant subleases an apartment to a sublessee, but the tenant absconds with the rents he collected from the sublessee, unless the court applies an equitable servitude theory, the sublessee is not liable to a landlord for unpaid rents since there is no privity of estate or privity of contract between the landlord and the sublessee since the sublessee made no promise either to the tenant or to the landlord to pay rent to the landlord). [2013]

Question 44

Under the American view of a tenant’s right of possession, a landlord has fulfilled his duties once what results?

Answer 44

Rule 1334: Under the American view of a tenant’s right of possession, a landlord has fulfilled his duties once he provides the tenant with legal possession of the leased premises - the landlord does not have to put the tenant in actual possession (e.g. under this view, a landlord is not in breach of the lease and has no duty to evict if the landlord can only give a new tenant the legal right to possess the premises but not actual possession because the old tenant failed to vacate the premises). [2011]

Question 45

If a written lease provides that the landlord is entitled to the entire condemnation award in the event of an eminent domain proceeding, a tenant is not entitled to share in the award even if what?

Answer 45

Rule 1335: If a written lease provides that the landlord is entitled to the entire condemnation award in the event of an eminent domain proceeding, a tenant is not entitled to share in the award even if the T’s possessory interest substantially exceeded the tenant’s obligation under the lease. [2008]

Question 46

it is considered a proper assignment if the tenant does what?

Answer 46

Rule 1336: If a tenant transfers all or some of the leased premises to another for the remainder of the lease term, retaining no interest in the assigned premises, it is a proper assignment, although the tenant remains liable on the contract/ lease. [2006]

Question 47

if the tenant sublets the premise, whom can the landlord enforce a claim for rent against?

Answer 47

Rule 1337: If a lease prohibits assignment, transferring exclusive use of the leased property to another for the remainder of the lease term is an assignment and a violation of the lease (i.e. transferring exclusive use of the property to another is an assignment). [1998]

Question 48

Under a Tenancy at Sufferance, if the Tenant has wrongfully held-over past the expiration of the lease, what leasehold estate does the tenant have?

Answer 48

Rule 1339: Under a Tenancy at Sufferance, if the Tenant has wrongfully held-over past the expiration of the lease, the Tenant has a leasehold estate (i.e. the tenancy at sufferance) to permit the Landlord to recover rent - the tenancy at sufferance lasts only until the Landlord either evicts the Tenant or elects to hold the Tenant to a new lease term. [1992]

Question 49

How are lease provisions limiting assignment or subletting construed? Why?

Answer 49

Rule 1340: Under common law, lease provisions limiting assignment or subletting are a restraint on the free alienation of land, are not favored by the law and are to be strictly construed. [1992]

Question 50

What is the doctrine of retaliatory eviction?

Answer 50

Rule 1341: Under the doctrine of retaliatory eviction, a landlord may not terminate a periodic lease, or deny a lease renewal because the tenant asserted his right to habitable premises. [1992]

Question 51

Why is the tenant unable to sue if a co-tenant assigns his lease?

Answer 51

Rule 1342: The Tenant is typically not the beneficiary if a non-assignment clause in a lease so the tenant cannot sue if a co-tenant assigns. [1992]

Question 52

If there is a non-assignment clause in a lease, what results when a co-tenant assigns his interest?

Answer 52

Rule 1343: If there is a non-assignment clause in a lease, a co-tenant assigning his interest does not give the other cotenants a right to sue (i.e. the tenant is generally not the beneficiary of the clause so the tenant cannot sue if a co-tenant assigns his interest). [1992]

Question 53

If a landlord can show that the occupier is a licensee rather than a tenant, the landlord can do what?

Answer 53

Rule 1344: If a landlord can show that the occupier is a licensee rather than a tenant, the landlord can institute a cause of action to gain immediate possession of the premises without notice to the occupier. [1992]

Question 54

Unless the entire premises are taken in condemnation and the tenant gets an appropriate portion of any condemnation award, the landlord- tenant relationship is unaffected by the condemnation and the tenant is obligated to do what?

Answer 54

Rule 1345: Unless the entire premises are taken in condemnation and the tenant gets an appropriate portion of any condemnation award, the landlord- tenant relationship is unaffected by the condemnation and the tenant is obligated to continue paying rent. [1992]

Question 55

A writing stating that you will accept rent from the assignee instead of the assignor may be regarded as a _____?

Answer 55

Rule 1346: A writing stating that you will accept rent from the assignee instead of the assignor may be regarded as a novation that releases the assignor from liability. [1992]

Question 56

The fair Housing Act does what?

Answer 56

Rule 1347: The Fair Housing Act strictly prohibits the printing, making, or publishing of ads that state a preference, discrimination, or limitation based on color, race, sex, religion, handicap, national origin, or familial status - under the Act, advertising for the sale or rental of real property can NEVER be discriminatory, even in regard to a single-family home or owner-occupied multifamily property (e.g. if a landlord states a racial or gender preference in an advertisement for a house he is renting, the rental advertising must still comply with the FHA even if the landlord’s motives are innocent). [2019]

Question 57

nder the common law Rule Against Perpetuities (with no applicable statutory reforms to the rule), a right of first refusal or preemptive right to a grantee, his heirs and assigns violates RAP (making the interest void at the time of its creation), BUT the trend of modern decisions is to DO WHAT?

Answer 57

Rule 1348: Under the common law Rule Against Perpetuities (with no applicable statutory reforms to the rule), a right of first refusal or preemptive right to a grantee, his heirs and assigns violates RAP (making the interest void at the time of its creation), BUT the trend of modern decisions is to avoid applying RAP to commercial transactions in land by reading a reasonable time limit into the transaction or by holding that the policies behind RAP would not be advanced by applying it to a particular transaction. [2008]

Question 58

A devise of “my entire estate” may be interpreted by a court to include

Answer 58

Rule 1349: A devise of “my entire estate” may be interpreted by a court to include the devisee’s Power of Appointment. [1998]

Question 59

A conveyance that contains a restriction on the use of the land by the grantee and her heirs and assigns or else the grantor has the power of termination violates the Rule against Perpetuities. [1998]

Answer 59

Rule 1350: A conveyance that contains a restriction on the use of the land by the grantee and her heirs and assigns or else the grantor has the power of termination violates the Rule against Perpetuities. [1998]

Question 60

Since interests in a will are not created until the testator dies, class gifts to a testator’s children or grandchildren are valid under the common law Rule against Perpetuities if ______

Answer 60

Rule 1351: Since interests in a will are not created until the testator dies, class gifts to a testator’s children or grandchildren are valid under the common law Rule against Perpetuities if all interests created under a will vest or fail within a life in being at the time of testator’s death plus twenty-one years. [1992]

Question 61

Under the common law Rule against Perpetuities, all interests created under a will must ____

Answer 61

Rule 1352: Under the common law Rule against Perpetuities, all interests created under a will must vest or fail within a life in being plus twenty-one years and interests in a will are not created until the testator dies. [1992]

Question 62

Under the common law Rule against Perpetuities, class gifts to grandchildren that take effect when the grandchildren reach age 21 are only valid in ____ and not _____

Answer 62

Rule 1353: Under the common law Rule against Perpetuities, class gifts to grandchildren that take effect when the grandchildren reach age 21 are only valid in wills, and not valid in inter vivos conveyances. [1992]

Question 63

in a conveyance from A to “B, her heirs and assigns, so long as the premises are used for residential purposes, then to C and his heirs.” , C’s interest is void under what?

Answer 63

Rule 1354: In a conveyance from A to “B, her heirs and assigns, so long as the premises are used for residential purposes, then to C and his heirs.” , C’s interest is void under the common law Rule Against Perpetuities. [1992]

Question 64

a right of first refusal to repurchase property in a deed is valid so long as what?

Answer 64

Rule 1356: A first right of refusal falls within the Rule against Perpetuities - a right of first refusal to repurchase property in a deed is valid so long as the right to purchase will vest or fail within the period prescribed by the Rule against Perpetuities. [1992]

Question 65

A conveyance of land by deed to G, but if H is living 40 years from now, then to H is valid because

Answer 65

Rule 1357: A conveyance of land by deed to G, but if H is living 40 years from now, then to H is valid because the interest will vest, if at all, within a life in being. [1992]

Question 66

What type of language does a Fee Simple Determinable use?

Answer 66

Rule 1358: A Fee Simple Determinable uses language such as so long as or until where the estate automatically reverts to the grantor upon the violation of the condition. RAP does not apply here because there is no interest in a 3rd person. [1991]

Question 67

A right of first refusal to buy land does not violate the Rule Against Perpetuities if

Answer 67

Rule 1359: A right of first refusal to buy land does not violate the Rule Against Perpetuities if it vests during a measuring life’s lifetime (e.g. a right of first refusal during the grantor’s lifetime). [1991]

Question 68

RAP does not apply to what?

Answer 68

Rule 1360: The Rule Against Perpetuities does not apply to options to purchase where the one who holds the option is the current lessee. [1991]

Question 69

What are the requrments for an enforcment of a restrictive covenant against a party?

Answer 69

Rule 1361: In order to enforce a restrictive covenant against a party, the burdened party must have notice; the parties creating the restrictive covenant must have intended the restrictive covenant to continue indefinitely and against successor parties; the restrictive covenant must touch and concern the land; and both horizontal privity, and vertical privity must exist. If a restrictive covenant is valid, it will bind all successors of the covenantee, even those who obtain an interest as a gift, devise, or inheritance. [2019]

Question 70

: An equitable servitude is valid if there is what? (4 requir)

Answer 70

Rule 1362: An equitable servitude is valid if there is WITN: (1) a writing satisfying the statute of frauds (meaining if it is signed by the grantor only, it is still enforceable against the grantee); (2) the original party intended to bind the grantee’s heirs and assigns; (3) it touches and concerns the land, and (4) there is notice to subsequent grantees in the form of actual, inquiry, or record notice (e.g. recording the deed containing the covenant). [2011]

Question 71

If a landowner sells a portion of his property, but places a valid restrictive covenant on the property being sold, the landowner can do what?

Answer 71

Rule 1363: If a landowner sells a portion of his property, but places a valid restrictive covenant on the property being sold, the landowner can later enforce a violation of the covenant (even 40 years later b/ c RAP does not apply to covenants). [2008]

Question 72

A restrictive covenant placed on property by the grantor after the grantor conveyed the property is what?

Answer 72

Rule 1364: A restrictive covenant placed on property by the grantor after the grantor conveyed the property is not binding. [2006]

Question 73

A covenant in a deed runs with the land even if what?

Answer 73

Rule 1365: A covenant in a deed runs with the land even if it is not mentioned in subsequent deeds and other grantees burdened by the same covenant can bring suit to enforce the covenant. [1998]

Question 74

An equitable servitude can be enforced against any subsequent owner of the land even if it was’t in the deed to the current owner so long as what?

Answer 74

Rule 1366: An equitable servitude can be enforced against any subsequent owner of the land even if it was’t in the deed to the current owner so long as it was in a deed in the chain of title. [1998]

Question 75

A negative covenant will be enforced against a new part of a subdivision if what?

Answer 75

Rule 1368: A negative covenant will be enforced against a new part of a subdivision if there is evidence that a common building or development scheme was established for the entire subdivision (i.e. an equitable servitude). [1992]

Question 76

A negative covenant will not be enforced if what?

Answer 76

Rule 1369: A negative covenant will not be enforced if there is no evidence a common building or development scheme was established for the entire subdivision. [1992]

Question 77

A negative equitable servitude may be implied from a common scheme for the development of a residential subdivision, so long as what?

Answer 77

Rule 1370: A negative equitable servitude may be implied from a common scheme for the development of a residential subdivision, so long as the landowners have notice of the agreement. [1992]

Question 78

When is a property owner not obligated to adhere to the coveant of the land?

Answer 78

Rule 1371: If a covenant does not change the value, use, or utility of the land, a property owner is not obligated to adhere to the covenant since it does not touch and concern the land (i.e. the covenant must change the value use or utility of the land). [1992]

Question 79

covenant can be created to require lot owners in a development to pay annual dues for the maintenance of the property (e.g. an affirmative covenant). [1992]

Answer 79

Rule 1372: A covenant can be created to require lot owners in a development to pay annual dues for the maintenance of the property (e.g. an affirmative covenant). [1992]

Question 80

A covenant that requires the payment of money in installments over an indefinite period may not be enforced by the courts because why?

Answer 80

Rule 1373: A covenant that requires the payment of money in installments over an indefinite period may not be enforced by the courts because of the burden imposed on the future owners of the land. [1992]

Question 81

Why can a restrictive covenant be enforced in a court of law?

Answer 81

Rule 1374: A restrictive covenant in a deed runs with the land and can be enforced in a court of law. [1992]

Question 82

A restrictive covenant in a prior deed that is not contained in a later deed is ____

Answer 82

Rule 1375: A restrictive covenant in a prior deed that is not contained in a later deed is still a valid restrictive covenant as it runs with the land and can be enforced against those who should be on inquiry notice. [1992]

Question 83

A restrictive covenant runs with _____ and can be enforced again _____

Answer 83

Rule 1376: A restrictive covenant runs with the land and can be enforced against those who should be on inquiry notice. [1992]

Question 84

Courts are divided as to whether an affirmative covenant to pay money (other than rent) touches and concerns the burdened property. [1991]

Answer 84

Rule 1377: Courts are divided as to whether an affirmative covenant to pay money (other than rent) touches and concerns the burdened property. [1991]

Question 85

An equitable servitude can be enforced by a successor to the original parties without consideration of privity, so long as the servitude:

Answer 85

Rule 1378: An equitable servitude can be enforced by a successor to the original parties without consideration of privity, so long as the servitude: (1) touches and concerns the land; (2) was intended by the parties to bind the successors; and (3) the party burdened had notice of the servitude. [1991]

Question 86

An equitable servitude is what?

Answer 86

Rule 1379: An equitable servitude is a restriction on the use of land enforceable in a court of equity - it is more than a covenant because it is an interest in the land itself. [1991]

Question 87

Under the merger doctrine, an easement is extinguished when what?

Answer 87

Rule 1380: Under the merger doctrine (also known as unity of ownership), an easement is extinguished when title to the easement and title to the servient land become vested in the same person and the duration of the servient tenement was equal to or longer than the duration of the dominant tenement (e.g. A owns a lot in fee simple and has a right of way easement across land B owns in fee simple; if B later sells his land to A, the easement is extinguished, so if A later sells the parcel over which he once enjoyed the right of way, the easement is not reinstated automatically and A must start from scratch to re-create it). [2019]

Question 88

Once a parcel becomes landlocked, an easement by necessity may be obtained over the land-locking parcel so long as what?

Answer 88

Rule 1381: Once a parcel becomes landlocked, an easement by necessity may be obtained over the land-locking parcel so long as there was prior unity of the tracts (i.e. both were originally owned by the same individual) and the necessity arose at the time of the severance, meaning the grantor conveyed a lot of land from a larger parcel, and that conveyed tract was landlocked and could not be accessed by a road or highway, except over some part of the remaining parcel. It does’t matter whether the grantor previously owned and is now landlocked or whether the property granted to the grantee is landlocked. [2019]

Question 89

What is the duration of an easement?

Answer 89

Rule 1382: An easement is of infinite duration unless limited by conditions in the grant and an appurtenant easement is automatically transferred with the dominant estate. The mere non-use of the easement (e.g. because the dominant estate has alternate access) does not result in its destruction, nor can the owner of the servient estate impair, frustrate or obstruct the right of the dominant estate to use the easement (e.g. the servient estate cannot block an access easement with a fence). [2019]

Question 90

What is an oral license?

Answer 90

Rule 1383: An oral license is a revocable privilege, but the license can become irrevocable if the licensee expends substantial time or money into the property in reliance on the grantor’s oral representation because the licensor will be estopped from revoking the license as the license has become the equivalent of an affirmative easement (e.g. if a farmer spends substantial money and effort each year to build and maintain a building within a one-acre parcel owned by his neighbor after receiving oral permission to use the land, if the neighbor’s son later inherits the land and revokes his permission, the court will find for the farmer because an irrevocable license or an equitable easement was created when the farmer expended significant investments and efforts in reliance on the oral license, and the son, as the farmer’s heir, is estopped from revoking the license). [2013]

Question 91

Openly using part of a neighbor’s land for a footpath for a period of more than 10 years without interruption will result in _____ and if the use was exclusive, it could also result in ___________

Answer 91

Rule 1384: Openly using part of a neighbor’s land for a footpath for a period of more than 10 years without interruption will result in a prescriptive easement, and if the use was exclusive, it could also result in adverse possession of the footpath. [2008]

Question 92

A landowner can use, impound, or dam any diffuse surface water on his own property, so long as what?

Answer 92

Rule 1385: A landowner can use, impound, or dam any diffuse surface water on his own property, so long as the landowner does not maliciously waste water to the detriment of a neighbor. [2006]

Question 93

A landowner’s oral or written permission for another to use his land is a license that can generally be _______

Answer 93

Rule 1386: A landowner’s oral or written permission for another to use his land is a license that can generally be revoked at any time. [2006]

Question 94

Buying season tickets to a sporting arena creates a license to enter into the sporting arena that is ___________

Answer 94

Rule 1387: Buying season tickets to a sporting arena creates a license to enter into the sporting arena that is revocable at will. [1998]

Question 95

An adjacent landowner is only liable for subsidence that would have occurred to the neighboring parcel in an ______- condition

Answer 95

Rule 1388: An adjacent landowner is only liable for subsidence that would have occurred to the neighboring parcel in an unimproved condition. [1998]

Question 96

Visible use of an easement by the dominant owner gives a subsequent purchaser __________

Answer 96

Rule 1389: Visible use of an easement by the dominant owner gives a subsequent purchaser actual notice of that easement and they will take subject to the easement. [1998]

Question 97

a road being used in accodrance with the easement is sufficent to establish the location of the easement for a _____________ easement

Answer 97

Rule 1390: For an express easement, the existence of a road being used in accordance with the easement is sufficient to establish the location of the easement. [1998]

Question 98

A development plan that will dedicate a road to a municipality as a public street does not give adjacent landowners __________ the adjacent landowners can only have access once _______

Answer 98

Rule 1391: A development plan that will dedicate a road to a municipality as a public street does not give adjacent landowners private easements by implication - the adjacent landowners can only have access once the road is public. [1992]

Question 99

What is a profit a prenre?

Answer 99

Rule 1392: A profit a prendre (non-possessory interest in land giving the holder the right to take natural resources) is a property right protected by the due process clause and the owner of a profit a prendre is entitled to compensation if the property is condemned. [1992]

Question 100

: If A has a valid easement over O’s land, O cannot be reimbursed for any damages to the improved land over the easement area if what?

Answer 100

Rule 1393: If A has a valid easement over O’s land, O cannot be reimbursed for any damages to the improved land over the easement area if A was acting within the scope of the easement. [1992]

Question 101

A-right-of-way easement created by express grant is not extinguished if what occurs?

Answer 101

Rule 1394: A right-of-way easement created by express grant is not extinguished if the need for the easement no longer exists. [1992]

Question 102

a right-of-way easement whose scope is initally undefined can be regarded ad defined by the initial use of the easement by what?

Answer 102

Rule 1395: A right-of-way easement whose scope is initially undefined can be regarded as defined by the initial use of the easement by the dominant estate. [1992]

Question 103

An owner is on record notice of an easement even if a deed does not mention an easement if what?

Answer 103

Rule 1396: Even if a deed does not mention an easement, if the easement is in the chain of title, the owner is on record notice of it. For example, if A has a valid easement over O’s land, O cannot get an injunction to stop A from maintaining the easement, even if O has improved the land over the easement. [1992]

Question 104

An adjacent landowner can erect a building that will obstruct the land owner’s view (absent zoning or building regulations to the contrary) unless what? [1992]

Answer 104

Rule 1397: Unless a land owner possesses an easement for light, air, or view, an adjacent landowner can erect a building that will obstruct the land owner’s view (absent zoning or building regulations to the contrary). [1992]

Question 105

If you have permission to use a road, you cannot acquire an easement by ____

Answer 105

Rule 1398: If you have permission to use a road, you cannot acquire an easement by prescription (which requires Adverse Possession elements). [1992]

Question 106

What duty does the owner of an easement have?

Answer 106

Rule 1399: The owner of an easement (dominant tenement) has a duty to maintain the easement and will be liable if his failure to maintain the easement causes anunreasonable interference with the use of the servient tenement (however, although the easement owner has a duty to maintain the easement, if both parties are using the easement, the court will apportion repair costs). [1992]

Question 107

What results to the the marketability of title when the property has a beneficial easemen that is visible or known to the buyer?

Answer 107

Rule 1400: A beneficial easement that is visible or known to the buyer does not constitute an encumbrance, so marketable title is not affected. [1991]

Question 108

The benefits of an easement appurtenant pass with transfers of the benefited land regardless of what?

Answer 108

Rule 1401: The benefits of an easement appurtenant pass with transfers of the benefited land, regardless of whether the easement is mentioned in the conveyance. [1991]

Question 109

How long can someone grant an easement for?

Answer 109

Rule 1402: A person can grant an easement that lasts only a few years. [1991]

Question 110

Who is responsible for the reapir costs of an easement road?

Answer 110

Rule 1403: Only the servient tenement is responsible for the repair costs of an easement road. [1991]

Question 111

he owner of a Profit is entitled to compensation in a condemnation proceeding, even if

Answer 111

Rule 1404: The owner of a Profit is entitled to compensation in a condemnation proceeding, even if the Profit is non-exclusive, because a Profit is still an interest in land (although it is a nonpossessory interest). [1991]

Question 112

Can the expanded use of an easement terminate the easement?

Answer 112

Rule 1405: The expanded use of an easementdoes not terminate it. [1991]

Question 113

What are trade fixtures?

Answer 113

Rule 1406: Trade fixtures are items of personal property used by a tenant in a trade or business that have been affixed to the real estate in such a manner that the law would ordinarily treat them as personal property - absent evidence that the parties had a contrary intention, a tenant is generally entitled to remove trade fixtures upon the termination of a lease (including periodic tenancies created after a tenant holds over). [2019]

Question 114

Items custimized to fit into or onto real property are fixtures even though _____

Answer 114

Rule 1407: Items customized to fit into or onto real property, such as window screens or storm shutters, are fixtures even though they could easily be removed - anything attached to real property that is so adapted to the realty as to become a part of it is deemed to be a fixture (e.g. custom drapes that are designed and made specifically to match the decor of a room are a fixture). [2017]

Question 115

A tenant cannot remove chattels once they are deemed to be fixtures UNLESS (2 req)

Answer 115

Rule 1408: In the absence of an express agreement in the lease, the tenant cannot remove chattels once they are deemed to be fixtures unless:(1) the landlord gives the tenant permission in writing to remove the fixtures; or (2) the chattel is a trade fixture, that is, brought to the premises by the tenant for use in the tenant’s particular business or trade (e.g. if a tenant leases a commercial property and receives oral permission from the landlord to install fixtures such as counters, display cases, shelving, and special lighting, the tenant may remove these trade fixtures even if they are bolted to the floor provided he restores the premises to its prior condition or pays for its restoration, b/c a commercial tenant has the right to remove a trade fixture before the end of the lease so long as no substantial damage would result by its removal). [2013]

Question 116

Personal property installed by a tenant that attaches to the rented real estate does not become a fixture if what?

Answer 116

Rule 1409: Personal property installed by a tenant that attaches to the rented real estate does not become a fixture if it was the intent of the parties that it remain the tenant’s property. [1998]

Question 117

What priority does a perfected security interest in fixtures or goods have over a conflicting interest?

Answer 117

Rule 1410: A perfected security interest in fixtures or goods has priority over a conflicting interest of an encumbrancer of real property (such as a bank mortgage) if before the goods become fixtures, the security interest is perfected and the fixtures are readily removable replacements of domestic appliances that are consumer goods (e.g. if you have a security interest in windows and they are removable, you can take them back if the bank forecloses on the house). [1991]

Question 118

What is a nonconforming use of property?

Answer 118

Rule 1411: A nonconforming use is a use of property that was allowed under the zoning regulations at the time the use was established, but due to subsequent zoning changes, is no longer a permitted use. Once in place, a nonconforming use can continue and run with the land (e.g. if a commercial area is rezoned to a residential area, an existing commercial use may continue in such a rezoned area). Generally, a nonconforming use cannot be enlarged or changed to a different nonconforming use (you can only continue the existing use). In addition, a nonconforming use may eventually be legislated out of existence by the use of an amortization period, which acts as a grace period, putting owners on fair notice of the law and giving them a fair opportunity to recoup their investment. [2019]

Question 119

In the event that the strict application of a zoning regulation leads to an unreasonable, unfair, and unintended result, a variance procedure exists to do what?

Answer 119

Rule 1412: In the event that the strict application of a zoning regulation leads to an unreasonable, unfair, and unintended result, a variance procedure exists to grant waivers in particular instances when the person subject to the regulation demonstrates that the application of the regulation would create a substantial hardship or violate principles of fairness (e.g. a zoning board may grant a variance to a homeowner when she asks the board to permit her to start a daycare service at her home located in an area recently zoned only for residential purposes if the owner demonstrates that without the variance she will suffer an unnecessary hardship regarding the use of the land and nearby properties are already zoned for commercial purposes). [2011]

Question 120

Regulations that decrease the value of property must do what?

Answer 120

Rule 1413: Regulations that decrease the value of property must promote an important public purpose and permit continued use of the property. [1991]

Question 121

What priority does a recorded purchase money mortgage have over a non-record purchase money mortgage?

Answer 121

Rule 1414: A purchase money mortgage (where the loan is used to finance the purchase of the property) that is recorded has priority over non- PMMs , even if the non-PMM was recorded first; if the PMM is not recorded, it has priority over mortgages, liens, and other claims against the mortgagor that arise prior to the mortgagor’s acquisition of title, BUT an unrecorded PMM does NOT have priority over any subsequently recorded mortgage (e.g. if seller lends purchaser 10% of the purchase price to buy seller’s property, and a note is signed but the mortgage is not recorded, if the buyer also obtains a PMM from a bank for the remaining 90% owed, the bank PMM has priority because the seller’s PMM is unrecorded). [2019]

Question 122

What priority will an instrument that is silent give to purchase money mortgages?

Answer 122

Rule 1415: Where the instruments are silent, a purchase-money mortgage given to the vendor of the property will have priority over one given to a third-party lender, BUT an unrecorded PMM does NOT have priority over ANY recorded mortgage (e.g. if a buyer purchasing a home borrows 70% of the purchase price from a bank and gives the bank a purchase-money mortgage which is promptly recorded, and he also borrows 30% of the purchase price from the seller and gives the seller a purchase-money mortgage which is NOT recorded, if the buyer later defaults on both loans, the bank’s PMM will have priority over the seller’s PMM because the seller’s PMM is unrecorded). [2013]

Question 123

When does a purchase money mortgage have priority over non-purchase money mortgages?

Answer 123

Rule 1416: A purchase money mortgage (where the seller acts as the lender and provides a loan to the buyer to purchase the property) that is recorded has priority over non-PMMs, even if the non- PMM was recorded first (e.g. if a credit card company properly obtains and records a judgment lien against a defaulting debtor’s real property, and the debtor subsequently purchases a house after obtaining a mortgage from a bank and also defaults on the mortgage, the bank can foreclose on the property and its mortgage will be senior to the judgment lien since a recorded PMM has priority over non-PMM claims to the property, even those recorded prior to the PMM). [2013]

Question 124

What is a mortgage?

Answer 124

Rule 1417: A mortgage is the conveyance of an estate, or pledge of property, as security for the payment of money or the performance of some other act, and conditioned to become void upon such payment or performance (e.g. if a man gives a mortgage to a bank on his farm to secure a bank loan made to his friend who subsequently defaults, the bank may foreclose on the farm because it has a valid mortgage - a mortgage can be granted to secure the performance of an obligation such as a loan payment by EITHER the mortgagor OR by some other person such as a friend). [2013]

Question 125

Rule 1418: There is judicial reluctance to recognize an affirmative burden to pay money in installments over an indefinite period as a burden which can be affixed to bind future owners of land. [1992]

Answer 125

Rule 1418: There is judicial reluctance to recognize an affirmative burden to pay money in installments over an indefinite period as a burden which can be affixed to bind future owners of land. [1992]

Question 126

If a deed is given for security purposes rather than as an outright transfer, what results?

Answer 126

Rule 1419: If a deed is given for security purposes rather than an outright transfer, this is an equitable mortgage, and foreclosure is necessary before you can sell the property. [1991]

Question 127

in equity, an absolute deed that is intended for security will be construed as what?

Answer 127

Rule 1420: In equity, an absolute deed that is intended for security will in fact be construed as a mortgage. [1991]

Question 128

What percentage of liability is each co-owner of a property encumbered by a mortgage liable for?

Answer 128

Rule 1421: Each co-owner of a property encumbered by a mortgage is liable for 100% of the mortgage - a co-owner cannot pay the mortgagee 50% of the mortgage and demand a release. [1998]

Question 129

Under the title theory of mortgages, if one joint co-owner takes out a mortgage on a jointly owned property, what results?

Answer 129

Rule 1422: Under the title theory of mortgages, if one joint co-owner takes out a mortgage on jointly owned property, the taking of a mortgage terminates the joint tenancy as to that co-owner. [1992]

Question 130

What results when a person takes property and assumes a mortgage?

Answer 130

Rule 1423: When a person takes property and assumes a mortgage, he or she becomes personally liable on the debt - the original debtor is also personally liable on the debt unless that debtor is released from personal liability by a novation or release from the mortgagee. [2017]

Question 131

What is the personal liability of a purchaser who takes property subject to the mortgage?

Answer 131

Rule 1424: If the purchaser merely takes “subject to” the mortgage, he is not personally liable for payment of the mortgage debt, and although the bank/ mortgagee can foreclose if the buyer does not make the payments, the bank/ mortgagee can only seek deficiency from the seller/mortgagor after foreclosure since a buyer’s express assumption of the mortgage, and not his physical possession of property, is required to make him personally liable on the mortgage (e.g. if S sells land to B that is subject to a recorded mortgage but the deed from S to B is silent as to whether B is assuming the mortgage, if B fails to make the payments, the mortgagee may foreclose and sue S for any deficiency, but the mortgagee cannot obtain a deficiency judgment against B). [2013]

Question 132

A buyer-grantee propertly accepts a valid deed when what?

Answer 132

Rule 1425: If a buyer-grantee properly accepts a valid deed, he accepts all the conditions/ terms within the deed, even if the deed is not signed by the buyer-grantee (e.g. if a mortgage provision is contained in a deed, and the grantee subsequently fails to repay the loan to the mortgagee, the mortgagee can foreclose on the mortgage and also seek a deficiency judgment from the grantee who became primarily liable on the mortgage when he accepted the deed containing the mortgage assumption clause). [2011]

Question 133

If there is no statute to the contrary, a buyer who assumed an existing mortgage is what?

Answer 133

Rule 1426: If there is no statute to the contrary, a buyer who assumes an existing mortgage is primarily liable for the mortgage debt and any foreclosure deficiency. [2008]

Question 134

What results if a mortgage contains a valid due-on sales clause?

Answer 134

Rule 1427: If a mortgage contains a valid due-on- sale clause, if the mortgagor conveys the land (even in an installment land contract) without the prior consent of the bank, the bank may lawfully accelerate the debt. [2008]

Question 135

a grantee who takes subject to a mortgage but does not expressly assume the mortgage is _______

Answer 135

Rule 1428: A grantee who takes subject to a mortgage but does not expressly assume the mortgage is not personally liable for the loan. [2006]

Question 136

if a mortgagor defaults and a mortgagee takes possession of the premise, what results?

Answer 136

Rule 1429: If a mortgagor defaults and a mortgagee takes possession of the premises, the mortgagee is subject to the same liabilities in tort as the property owner. [1998]

Question 137

A grantee that purchases property subject to a mortgage is what?

Answer 137

Rule 1430: A grantee that purchases property subject to a mortgage is not personally liable on the mortgage unless the grantee assumes the mortgage. [1998]

Question 138

If a grantee signs an assumption agreement, becoming primarily liable to the lender what results?

Answer 138

Rule 1431: If a grantee signs an assumption agreement, becoming primarily liable to the lender, the original mortgagor is secondarily liable as a surety. [1991]

Question 139

If the transferee has assumed the mortgage, what results?

Answer 139

Rule 1432: If a transferee has assumed the mortgage, the transferee is primarily liable and mortgagor is secondarily liable (meaning both are personally liable). [1991]

Question 140

What results if a transeree takes subject to the mortgage?

Answer 140

Rule 1433: If a transferee takes subject to the mortgage, the transferee has no personal liability and the mortgagor is personally liable. [1991]

Question 141

What results if you take a property by quitclaim deed and there is no mention of a mortgage?

Answer 141

Rule 1434: If you take property by quitclaim deed and there is no mention of a mortgage, if there is a mortgage on the property, you tak subject to the mortgage and the mortgagee cannot institute an in personam action against you for default. [1991]

Question 142

If the note or mortgage does not provide for prepayment, a prohibitio of prepayment is ____ and the mortgagor has what rights?

Answer 142

Rule 1435: If the note or mortgage does not provide for prepayment, a prohibition of prepayment is implied and the mortgagor has no right to prepayment. The mortgage may also provide for a prepayment fee or a total prohibition of prepayment for part or all of the mortgage term. A prepayment penalty or prohibition is valid because the lender will lose anticipated interest if the mortgage is prepaid before the due date. Such provisions will be regarded as agreed-upon alternative forms of performance under the contract, provided the terms are reasonable and not a disguised (and therefore unenforceable) penalty. [2019]

Question 143

If a mortgage is in default, the mortgagor and mortgagee can agree that the mortgagor will give the mortgagee fee simple title to the property in satisfaction of the mortgage debt, BUT

Answer 143

Rule 1436: If a mortgage is in default, the mortgagor and mortgagee can agree that the mortgagor will give the mortgagee fee simple title to the property in satisfaction of the mortgage debt, BUT a deed in lieu of foreclosure may be set aside later by a court if not found to be fair and equitable in all respects. [2019]

Question 144

A mortgage has both a ______ claim against the mortgagor and a _____ claim?

Answer 144

Rule 1437: A mortgagee has both an in personam claim against the mortgagor on the debt and an in rem action against the security. [1991]

Question 145

If there is a valid assumption of a mortgage debt what result?

Answer 145

Rule 1438: If there is a valid assumption of a mortgage debt, the grantee becomes the principal debtor (the one who is primarily obligated to repay the debt to the lender) and the grantor-mortgagor becomes a surety who would be secondarily liable on the promissory note. Thus, if there is a deficiency not paid by the grantee, the grantor- mortgagor will be liable as a surety to pay off the rest of the lender’s mortgage loan. [2019]

Question 146

modification of the original debt which has a material adverse effect upon a junior lienholder may cause a loss in the priority of a portion or all of the security unless what?

Answer 146

Rule 1439: A modification of the original debt which has a material adverse effect upon a junior lienholder may cause a loss in the priority of a portion or all of the security unless the junior lienholders have consented, BUT if the junior lienor ca’t show material prejudice or substantial impairment of its security b/c of the modification of the senior loan, his priority does NOT change (e.g. if modification by senior mtgee extends amortization period but does’t alter interest rate or increase principal amt, senior mtgee still has priority). [2019]

Question 147

What results if a property owner takes out more than one mortgage on his property?

Answer 147

Rule 1440: If a property owner takes out more than one mortgage on his property. the first mortgage has priority over later mortgages (provided the first mortgage is recorded and the second mortgagee has notice of it), and if the borrower defaults on payments to the first mortgagee and the property is sold through a foreclosure process, the proceeds are paid to the first mortgagee and if there are assets left, they go to pay off the second mortgage and so on down the priority list of junior liens and any remainder would then go to the property owner. [2019]

Question 148

Under the two funds rule of marshaling, a senior creditor who has two or more funds to satisfy its debt must do what?

Answer 148

Rule 1441: Under the two funds rule of marshaling, a senior creditor who has two or more funds to satisfy its debt must first dispose of the fund not available to a junior creditor - in regards to mortgages, this rule is inapplicable if there is only one parcel of land with multiple mortgages because the marshaling rule requires two or more mortgages covering the same parcel of land and one mortgage covering another track of land (e.g. if a bank and a finance company both have properly recorded mortgages covering the entire land but the bank’s mortgage was recorded first, the bank can foreclose on the entire land when the landowner defaults because it was recorded first - the two funds rule of marshaling is inapplicable since there is only one parcel of land with multiple mortgages). [2011]

Question 149

If a jux provides a statutory right to redemption, the mortgagor has the option to do what?

Answer 149

Rule 1442: If a jux provides a statutory right of redemption, the mortgagor (and perhaps others) has the option to redeem the title to the property by paying off the purchase price, plus certain costs and interest within a limited time period after there has been a foreclosure of the mortgage. [2008]

Question 150

If a property is encumbered by a valid 1st & 2nd mortgage and the 1st mortgagee validly forecloses on the property, and the property is sold to a 3rd party at a valid foreclosure sale, the 3rd party can do what?

Answer 150

Rule 1443: If a property is encumbered by a valid 1st & 2nd mortgage and the 1st mortgagee validly forecloses on the property, and the property is sold to a 3rd party at a valid foreclosure sale, the 3rd party can then sell the property back to the owner free and clear of the 2nd mortgage, provided there was no fraud between the owner and the 3rd party b/ c the 2nd mortgagee chose not to bid at the foreclosure sale. [2008]

Question 151

What results from the surpulus from a foreclosure sale?

Answer 151

Rule 1444: Any surplus from a foreclosure sale goes to any judgment creditors in order of priority and then any remainder goes to the foreclosed owner. [2006]

Question 152

A lender who forecloses on a mortgage is entitled to what?

Answer 152

Rule 1445: A lender who forecloses on a mortgage is entitled to be paid in full from the proceeds of the foreclosure sale and the sale of any other liened property with any surplus being returned to the owner. [1998]

Question 153

What is the result of a foreclosure?

Answer 153

Rule 1446: Foreclosure terminates junior interests, but not senior interests - senior mortgages remain intact on the property. [1991]

Question 154

Failure to include a necessary party in a foreclosure has what result?

Answer 154

Rule 1447: Failure to include a necessary party in a foreclosure preserves that party’s interest (meaning it is not extinguished even if it was subordinate). [1991]

Question 155

Under the exclusive-right-to-sell listing agreement, a broker is entitled to commision if what?

Answer 155

Rule 1448: Under an exclusive-right-to-sell listing agreement, a broker/ agent is entitled to the commission if anyone (including the seller) procures a ready, willing, and able buyer during the listing period (e.g. if the seller finds that his brother is interested in purchasing the house and accepts the brother’s offer within the listing period, the seller is obligated to pay the broker the commission even though the broker/ agent did nothing to procure the buyer). [2019]

Question 156

When can someone recover the down payment?

Answer 156

Rule 1449: A vendee who breaches a real estate contract without lawful excuse generally cannot recover the down payment - if the contract is silent about liquidated damages, the seller may retain the entire down payment if the seller’s actual losses exceed the amount of the earnest money. [2019]

Question 157

An executory contract for the sale or exchange of real estate may be rescinded by ______

Answer 157

Rule 1450: An executory contract for the sale or exchange of real estate may be rescinded by mutual oral agreement - the statute of frauds is held to apply only to the initial creation of the contract, and subsequent changes may be by mutual parol agreement. This is because rescission involves cancellation of the contract rather than its enforcement, so courts are more willing to permit oral rescissions. [2019]

Question 158

Real estate contracts can be assigned if what?

Answer 158

Rule 1451: Real estate contracts (including option contracts) can be assigned if there is no express provision against assignment - if the contract is validly assigned, the assignee is entitled to specific performance if the other party breaches. [2019]

Question 159

In order for a memo to constitute sufficent evidence of a contract for the sale of land, it must be what?

Answer 159

Rule 1452: In order for a memorandum to constitute sufficient evidence of a contract for the sale of land, it must be in writing, signed by the party to be charged, and must identify the parties, state the price, and describe the land (e.g. if a tenant sends an e-mail to his landlord that reads, I will buy your building for $100,000. Signed/ Tenant’s name, and the landlord sends an e-mail that reads, OK. Must close in 90 days. Signed/ Landlord’s name, the tenant can sue for specific performance when he tenders full payment but the landlord refuses to convey b/ c the email messages serve as a sufficient memorandum under the statute of frauds, which requires a contract for the sale of land to contain the parties’ identities, a sufficient description of the land, the parties’ intent to sell and buy, adequate signatures, and a price term). NOTE: A contract for the sale of land MUST state the price and manner of payment, BUT only if agreed upon - if the price is not agreed upon yet, the contract can still satisfy the Statute of Frauds and the court will imply a reasonable price, usually fair market value. [2013]

Question 160

In a land conveyance contract, the buyer can compel specific performance despite missing the exact closing date because?

Answer 160

Rule 1453: In a land conveyance contract, the buyer can compel specific performance despite missing the exact closing date, because such delays are reasonable, and there was no time of the essence clause or special circumstances. [2011]

Question 161

What is an essential element for a valid and enforceable real state contract?

Answer 161

Rule 1454: An essential element for a valid and enforceable real estate contract is an accurate description of the real property to be conveyed - the description can be by street address, full legal description, or reference to a public map, or by a plat attached to the contract, or a combination thereof (e.g. if a written contract for a sale of real property fails to adequately describe which specific part of the seller’s 500-acre land is to be sold, but the parties agree in writing to determine which part to sell before they perform the contract, the contract is still unenforceable as it fails to meet the statute of frauds which requires a sale of interest in land to be evidenced by one or more writings containing all the essential terms including the description of land). [2011]

Question 162

What is an exception to the SOF

Answer 162

Rule 1455: An exception to the Statute of Frauds for the transfer of an interest in land is the doctrine of part performance which requires proof that the buyer paid all or part of the purchase price and also either possessed the premises or constructed on the premises. [1998]

Question 163

Transfers of interest in land must be _______

Answer 163

Rule 1456: Generally, transfers of interests in land must be in writing under the Statute of Frauds and proof of oral agreements is not allowed. [1992]

Question 164

What will result in a verabl agreement by tenants in common for the property to pass to the survivor if one of them dies?

Answer 164

Rule 1457: A verbal agreement by tenants in common for the property to pass to the survivor if one of them dies is invalid because the Statute of Frauds applies. [1992]

Question 165

In a contract to purchase or sell real estate, the description of the property must be sufficient to enable the court to do what?

Answer 165

Rule 1459: In a contract to purchase or sell real estate, the description of the property must be sufficient to enable the court to identify and locate the parcel of land definitely and with certainty so a discrepancy in area is not fatal. [1992]

Question 166

When can a seller of real property enforce specific performance against a buyer?

Answer 166

Rule 1460: The Seller of real property can enforce specific performance against a Buyer who breaches. [1992]

Question 167

If a contract is time of the essence and you perform it one day late what result?

Answer 167

Rule 1461: If a contract is time of the essence, and you perform just one day late, it is a MATERIAL BREACH that excuses the other party’s duty. [1991]

Question 168

An accord and satisifcation is what?

Answer 168

Rule 1462: An Accord and Satisfaction is where one party to a contract agrees to receive a lesser performance than called for by the contract in order to avoid complete default or to resolve the dispute. [1991]

Question 169

What does an accord do?

Answer 169

Rule 1463: An accord suspends the original obligation which is discharged when the accord is satisfied - if the debtor breaches the accord, the creditor can sue under the original obligation. [1991]

Question 170

What does the time of the essence clause need to say?

Answer 170

Rule 1464: A time of the essence clause can simply say: This Contract is null and void if not performed by a Certain Day. [1991]

Question 171

A party to a contract can notify the other party at a later date that time is of the essence, and the other party must do what?

Answer 171

Rule 1465: A party to a contract can notify the other party at a later date that time is of the essence, and the other party must comply, so long as notice is given a reasonable time prior to the date for performance. [1991]

Question 172

What are 3 circumstances that will render title unmarketable?

Answer 172

Rule 1466: Generally, the three circumstances that will render title unmarketable are adverse possession, encumbrances, and zoning violations. Thus, a mere conveyance by quitclaim deed does not make title unmarketable. An encumbrance such as an easement that reduces the value of the property (e.g. a right-of-way easement) renders title unmarketable, BUT an easement that is obviously visible and beneficial to the land (e.g. the installation of utilities) does not render title unmarketable. [2019]

Question 173

What obligation does the seller have to convey marketable title in a real estate contract?

Answer 173

Rule 1468: In the absence of an express agreement to the contrary, there is an obligation to convey marketable title in a real estate contract (including installment contracts), but title does not have to be marketable until the closing date (meaning that mortgages/ liens on the property can be paid off at the closing). [2008] although the buyer can waive his right to marketable title (e.g. if a buyer agrees to buy undeveloped land for commercial purposes with the contract specifying a conveyance by a warranty deed without exceptions (but fails to mention the quality of title), if the buyer then discovers a restrictive covenant limiting the use of the land to residential purposes only, the buyer may cancel the contract because the seller has a duty to transfer a marketable title at the time of closing, and an encumbrance such as a restrictive covenant that has not been waived or removed by the closing date makes the title unmarketable). [2013]

Question 174

If a real estate contract is silent as to the quality of the title, what is implied?

Answer 174

Rule 1469: If a real estate K is silent as to quality of title, marketable title is implied, and while an easement on the property can make the title unmarketable, a buyer (but not the seller) can waive his right to marketable title. [2008]

Question 175

If title to a property is unmarketable when must a buyer object?

Answer 175

Rule 1470: If title to a property is unmarketable, the buyer must object prior to his acceptance of the deed, because under the doctrine of merger, the deed then becomes the sole measure of the parties’ rights and liabilities (e.g. if a property has no access to a public right of way, if the buyer does not object prior to his acceptance of the deed, the buyer has no recourse against the seller b/ c even a warranty deed does not covenant against lack of access). [2008]

Question 176

If property being sold is subject to a covenant or condition containing a right of re- entry or a possibility of reverter, the title is unmarketable

Answer 176

Rule 1471: If property being sold is subject to a covenant or condition containing a right of re- entry or a possibility of reverter, the title to the property is unmarketable. [2006]

Question 177

When can a buyer sue for unmarketable title under a contract theory?

Answer 177

Rule 1472: Even though marketable title is implied in a contract for the sale of land, after the deed is delivered and accepted, the buyer cannot sue for unmarketable title under a contract theory. [2006]—never

Question 178

When is a vendor of real estate required to deliver marketable title?

Answer 178

Rule 1473: A vendor of real estate is not required to deliver marketable title until closing, even in installment contracts where there is a lien on the property. [1998]

Question 179

A buyer can refuse to accept a deed if the contract is what?

Answer 179

Rule 1474: A buyer can refuse to accept a deed if the contract is “subject to easements, covenants, and restrictions of record” and the seller burdens the property after contract with an easement. [1992]

Question 180

A real estate title is unmarketable if contains governmental building restrictions which might what?

Answer 180

Rule 1475: A real estate title is unmarketable if it contains governmental building restrictions which might cause a prospective purchaser to suffer litigation and possible loss. [1992]

Question 181

A real estate title is unmarketable if what?

Answer 181

Rule 1476: A real estate title is unmarketable if it contains substantial defects such as violations of zoning ordinances which might cause a prospective purchaser to suffer litigation and possible loss. [1992]

Question 182

In a land sale contract, an obligation to convey marketable title will be implied by the court if what?

Answer 182

Rule 1477: In a land sale contract, an obligation to convey marketable title will be implied by the court if the contract is silent on this issue. [1992]

Question 183

If it uncertain that a lot is subject to building restrictions, what results to the tile?

Answer 183

Rule 1478: If it is uncertain that a lot is subject to building restrictions, the title is unmarketable. [1991]

Question 184

Title which is subject to an unreasonably burdensome risk of litigation is considered what?

Answer 184

Rule 1479: Title which is subject to an unreasonably burdensome risk of litigation is considered unmarketable. [1991]

Question 185

Encroachment of a significicant dimension on property or adject land does what to the property?

Answer 185

Rule 1480: Encroachments of a significant dimension on the subject property or onto adjacent land make a property unmarketable. [1991]

Question 186

What happens to the marketablity of property title due to violation of zoning ordinances?

Answer 186

Rule 1481: The violation of zoning ordinances make a property title unmarketable. [1991]

Question 187

Title is not marketable absent WHAT?

Answer 187

Rule 1482: Absent tangible proof that the property has been acquired by adverse possession, title is not marketable. [1991]

Question 188

If one of the parties to a contract for the sale of land dies, under the doctrine of equitable conversion what results?

Answer 188

Rule 1483: If one of the parties to a contract for the sale of land dies, under the doctrine of equitable conversion, the seller’s interest is personal property and the buyer is treated as the owner of the land (e.g. O, owner of Blackacre, contracts to sell Blackacre to A for $10,000. Before closing, O dies intestate. By the applicable intestacy statute, B succeeds to O’s real property and C succeeds to O’s personal property. Under equitable conversion, C is entitled to the $10,000 when it is paid, and B takes nothing). [2011]

Question 189

If the real estate K is silent and there is no statutue to the contrary, under the doctrine of equitable conversion what results?

Answer 189

Rule 1484: If the real estate K is silent and there is no statute to the contrary (e.g. UVPRA), under the doctrine of equitable conversion, the risk of loss passes to the buyer when the K is fully executed, even if the buyer does not take possession until the closing (meaning the buyer would have to pay K price if the seller’s house burns down prior to closing and no one insured the house. [2008]

Question 190

Under the doctrine of equitable conversion, upon the execution of the contract what results?

Answer 190

Rule 1485: Under the doctrine of equitable conversion, upon the execution of the contract the buyer becomes the equitable owner of the land and bears the risk of loss (unless there is a statute to the contrary), meaning the buyer must pay the full purchase price even when the premises has been totally destroyed before the closing. [2006]

Question 191

Under the principle of equitable conversion, if the seller dies before closing what results?

Answer 191

Rule 1486: Under the principle of equitable conversion, courts treat the signing of the contract as vesting in the purchaser equitable ownership of the land. If the seller dies before closing, the proceeds from the sale are regarded as personal property. [1992]

Question 192

Under the principle of equitable conversion, if the contract has been executed and the buyer dies before closing, what result?

Answer 192

Rule 1487: Under the principle of equitable conversion, if the contract has been executed and the buyer dies before closing, the buyer’s heirs may specifically enforce the agreement. [1992]

Question 193

If a fire occurs prior to closing, what doctrine will apply? What results?

Answer 193

Rule 1488: If a fire occurs prior to closing, the doctrine of equitable conversion applies, and the risk of loss falls on the buyer, even if the seller is in possession of the property at the time of the fire, unless the contract states otherwise. [1992]

Question 194

After a contract is signed, what occurs?

Answer 194

Rule 1489: After a contract is signed, the buyer is the owner of the land, subject to the condition that he pay for it at the closing. [1991]

Question 195

Under the doctrine of equitable conversion, if the seller dies after the contract is made but before closing, and the seller’s will gives his personal property to A and his real property to B what will result?

Answer 195

Rule 1490: Under the doctrine of equitable conversion, if the seller dies after the contract is made but before closing, and the seller’s will gives his personal property to A and his real property to B, A will receive the proceeds of the sale because equitable title is with the buyer, not B. [1991]

Question 196

If a buyer dies after signing the contract, but before the closing, the buyers heirs can do what?

Answer 196

Rule 1491: If a buyer dies after signing the contract, but before the closing, the buyer’s heirs can enforce the contract. [1991]

Question 197

If the buyer dies under the majority view of equitable conversion, the buyers heirs are entitled to what?

Answer 197

Rule 1492: If the buyer dies, under the majority view of equitable conversion, the buyer’s heirs are entitled to specific performance (and not rescission, unless the buyer’s existence was necessary for the performance of the contract). [1991]

Question 198

If the seller dies begore the closing, the proceeds from the sale are consiered what?

Answer 198

Rule 1493: If the seller dies before the closing, the proceeds from the sale are considered the personal property of the seller. [1991]

Question 199

Under the implied warranty of habitability doctrie, a builer-vendor is responsible for what?

Answer 199

Rule 1495: Under the implied warranty of habitability doctrine, a builder-vendor is responsible for delivering a house in a condition suitable for habitation to the buyer of a newly constructed home. Generally, this implied warranty of habitability/ reasonable workmanship extends only from the builder-vendor to the original purchaser-user of a new residence. However, a subsequent purchaser of the home may sue the original builder for breach of the implied warranty of habitability if the defect was latent (i.e. not readily visible or discoverable) when the purchaser bought and appeared within a reasonable time after construction. [2019]

Question 200

Under the modern majority rule a seller of real property is liable for ___________?

Answer 200

Rule 1496: Under the modern majority rule, a seller of real property is liable for material misrepresentations or failing to disclose latent material defects, and “As is” language will not protect a seller from tort claims based on nondisclosure of significant latent defects known to the seller (e.g. if a seller inherits a house she has never seen and agrees to sell it “As is” to a buyer and conveys title to the buyer using a full warranty deed, if the buyer later discovers heavy termite damage in the house, the buyer has no claim against the seller since the house was sold “As is” and the seller made no misrepresentations regarding the condition of the house). [2013]

Question 201

What occurs when a deed is accepted?

Answer 201

Rule 1497: When a deed is accepted, the contract terms that are contained in the land sale agreement will merge into the deed. [1992]

Question 202

When is the implied contractual covenant to convey marketable title superseeded?

Answer 202

Rule 1498: The implied contractual covenant to convey marketable title is superseded by the doctrine of merger when the deed is accepted. [1991]

Question 203

A right of First Refusal is within _____ and therefore must be _____

Answer 203

Rule 1494: A Right of First Refusal is within the Statute of Frauds and therefore must be in writing. [1991]