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Bar Prep - MEE > Real Property > Flashcards

Real Property Flashcards

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1
Q

What are the 5 Present Estates?

A
  1. ) Fee Simple Absolute
  2. ) Fee Simple Determinable
  3. ) Fee Simple Subject to Condition Subsequent
  4. ) Life Estate
  5. ) Restraint on Alienation
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2
Q

What are the 2 types of Co-tenancy?

A
  1. ) Tenancy in Common

2. ) Joint Tenancy

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3
Q

What is “Fee Simple Absolute?”

A

Absolute Ownership

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4
Q

What is Fee Simple Determinable?

A

Ownership automatically terminates upon a condition and passes to grantor.

“as long as” …… “until”

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5
Q

What is Fee Simple Subject to Condition Subsequent?

A

When the condition occurs, the grantor CAN exercise a right of reentry.

“But if” …. “right to re-enter”

(If the conveyance is ambiguous, discuss both fee simple determinable and fee simple subject to condition subsequent.

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6
Q

What is a Life Estate?

A

Ownership terminates upon the end of the measuring life.

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7
Q

What are the 2 rules on Restraints on Alienation?

A
  1. ) A grantor can place a reasonable restraint on the grantee’s ability to freely transfer property.
  2. ) If the restraint is unreasonable, a court will strike it from the conveyance.

Example: Grantor conveys his estate as follows: “to A so long as he does not make any transfer of Greenacre. In the event of such a transfer, Greenacre shall automatically revert back to Grantor.” This is likely an unreasonable restraint on alienation and a court will strike it from the conveyance.

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8
Q

What are the two types of Concurrent Estates?

A
  1. ) Tenants in Common

2. ) Joint Tenancy with Right of Survivorship

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9
Q

What are the 3 points for a tenant in common?

A
  1. ) Unified possession of estate - each tenant owns an undivided interest in the entire property.
  2. ) No right of survivorship; interest is freely devisable or transferable.
  3. ) In most states, there is a presumption that a conveyance to two or more people is a tenancy in common.
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10
Q

What is required to create a Joint Tenancy with Right of Survivorship?

A
  1. ) Requires EXPRESS language, and;

2. ) The 4 unities. (PITT).

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11
Q

What are the 4 unities when it comes to a Joint Tenancy with Right of Survivorship.

A
  1. ) Possession
  2. ) Interest
  3. ) Time
  4. ) Title
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12
Q

What is Severance when it comes to a Joint Tenancy with Right of Survivorship?

A

If one joint tenant conveys his interest, it severs (destroys) the joint tenancy and creates a tenancy in common.

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13
Q

What is the Majority Lien Theory when it comes to severance by mortgage?

A

A mortgage is simply a lien and DOES NOT sever the joint tenancy.

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14
Q

What is the Minority Title Theory when it comes to severance by mortgage?

A

A mortgage is a transfer of title and severs the joint tenancy.

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15
Q

What are the Rights and Obligations of Co-tenants?

A
  1. ) Possession
  2. ) Rent: a co-tenant does not owe rent for use of property. A co-tenant must share rents received from a third party.
  3. ) Operating Expenses: (taxes, mortgage payments) a co-tenant can generally collect expenses if he paid more than his share.
  4. ) Repairs and Improvements: a co-tenant does not have a right to be reimbursed by other co-tenants for repairs, even if necessary.

A co-tenant may only seek contribution for necessary repairs if the co-tenant gave notice of the need for repairs.

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16
Q

What element does a promissory restrain on alienation need to be enforceable by an injunction?

A

REASONABLE

Right of first refusal common in commercial leases (tenant can ultimately buy the building).

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17
Q

Are assignee tenants (in a lease) liable to the landlord?

A

Yes, if the assignee tenant is staying for the remainder of the entire lease, and the original lessor assigned all rights.

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18
Q

Does a landlord owe a tenant notice at the end of a tenancy for years?

A

No, it terminates automatically.

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19
Q

Name the conveyance: “No unrecorded conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice, who shall first record.”

A

A race notice-statute

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20
Q

What is required to win in a race-notice Statute?

A

A race-notice statute requires a subsequent purchaser to take the interest without notice of a prior conflicting interest and be the first to record.

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21
Q

What is the “estoppel by deed” doctrine?

A

a grantor who conveys a real property interest by warranty deed before actually owning it is estopped from later denying the effectiveness of his deed.

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22
Q

What are the requirements for an equitable servitude to be enforced?

A

(i) there must be intent for the restriction to be enforceable by and against successors in interest,
(ii) the servitude must touch and concern the land, and
(iii) if the person against whom the servitude is to be enforced is a purchaser, he must have notice (whether actual, record, or inquiry notice) of the servitude.

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23
Q

When does a restriction from an equitable servitude “run with the land.”

A

When it affects the owners as property owners, not merely as individuals.

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24
Q

When does an easement by necessity occur?

A

arises when property is virtually useless without the benefit of the easement across neighboring property, such as when it is landlocked.

there must be a necessity, the dominant and servient estates must have once been owned by the same person, and the necessity must have arisen at the time that the property was severed and the two estates were created.

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25
Q

What is the effect of taking a mortgage “subject-to”?

A

The transferee-buyer is not personally liable upon default.

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26
Q

What happens when a person buikds fixtures, or structures on land that is sold to a buyer?

A

They become part of the realty. The buyer takes the land subject to.

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27
Q

What is a private nuisance?

A

a substantial, unreasonable interference with another individual’s use or enjoyment of his property. The interference may be intentional, negligent, reckless, or the result of abnormally dangerous conduct. Anyone with possessory rights in the property may bring a nuisance claim.

28
Q

To run with the land, a covenant must what?

A

Touch and concern the land.

Which means that the benefit or burden must affect both the promisee and the promisor as owners of the land, and not merely as individuals.

29
Q

What happens when a buyer takes land subject to the banks mortgage?

A

The buyer is not personally liable to repay the loan, but the bank has the right to enforce its security interest through foreclosure.

30
Q

When is the statute of limitations tolled for the owner of land?

A

The statute of limitations does not run against a true owner who is afflicted with a disability at the inception of the adverse possession

Insanity, infancy, and imprisonment may all qualify as disabilities that to,l the statute of limitations.

31
Q

Whom may terminate a tenancy at will?

A

May be terminated by either the landlord or the tenant.

If only one party has the ability to terminate, it will likely be unconscionable, so both parties get to terminate.

32
Q

Can a lower ranking lender foreclosure even though the primary mortgage is not in default?

A

Yes.

33
Q

When does a landowner enjoy the right to subjacent support?

A

When the landowner transfers the rights to access and removal of oil or minerals from the property.

The transferee of such rights is strictly liable for any damage that occurs to existing structures on the land as a consequence of subsidence caused by the removal of the oil or minerals.

34
Q

Under the common law doctrine of exoneration of liens, what is the devisee entitled to?

A

Devisee is entitled to have any outstanding balance of a mortgage of other encumbrance in the property to be paid from the remaining assets of the Testators estate.

(ABOLISHED IN MOST JDX)

(Like if the son gets the residence, and the daughter gets the remainder).

35
Q

Are uncultivated wild crops personal property, or part of real property?

A

Real property, pass automatically with the land

36
Q

What is the doctrine of a ademption?

A

the transfer of property by a testator subsequent to the execution of a will removes the property from his estate and the devise of the property is adeemed.

37
Q

In a title theory state, who has legal title?

A

The mortgagee (bank, credit union) until the mortgage is satisfied.

38
Q

If a person records a deed to their fee absolute property, but doesn’t tell the person to whom it’s transferred, does the interest pass?

A

Yes,

the term “delivery” is used as shorthand for the existence of the necessary grantor intent. Physical transfer of a deed is not required and is not conclusive evidence of the grantor’s intent. The execution and recording of a deed creates a rebuttable presumption that the deed is to be presently operative.

39
Q

What are the four requirements for a valid deed?

A
  1. ) must identify the parties
  2. ) must be signed by the grantor
  3. ) must include words of transfer
  4. ) must contain a reasonably definite property description
40
Q

To transfer a deed, what must the grantor have?

A

Grantor must intend to make a present transfer of the property interest to the grantee

41
Q

What are the rules when a grantor makes a transfer to a third party?

A

To an independent third party for delivery to the grantee, but the grantor reserves the right to take the deed back—not deemed delivered

42
Q

If the grantor does not reserve the right to take the deed back (from a 3rd party), what facts are used to determine if it’s a valid transfer?

A
  1. ) if the grantor intended to presently transfer, he cannot void the gift later
  2. ) if the grantor did not intend to presently transfer, the transfer is not valid
43
Q

If the grantor delivers deed to 3rd party, intending for it to be delivered upon his death, is there a present intent to transfer?

A

No, it is a testamentary transfer and is governed by the wills requirement.

44
Q

A general warranty deed contains contains how many covenants? And what are they?

A

3 present covenants:

  1. ) covenant of seisin - the grantor owns the land as described in the deed
  2. ) covenant of the right to convey - the grantor has the right to transfer title
  3. ) covenant against encumbrances - no undisclosed encumbrances

3 future covenants:

  1. ) covenant of quiet enjoyment - the grantees possession will not be interfered with by a third party’s claim for title
  2. ) covenant of warranty - the grantor will defend against a third party’s claim for title
  3. ) covenant of further assurances - the grantor will do whatever is necessary to pass the title to the grantee
45
Q

What does a grantee receive in a quitclaim deed?

A

Only the interest the grantor possessed, whatever that is.

46
Q

What is the common law rule regarding transfer of title?

A

First in time, first in right.

47
Q

What is a “Notice” statute?

A

If a person purchases land without notice of a prior interest, the person will prevail in an ownership dispute against the prior interest.

48
Q

What is a race statute?

A

The first person to record their deed will prevail in an ownership dispute, regardless of knowledge.

49
Q

What is a race-notice statute?

A

If a person purchases land without notice of the prior interest, and records first, the person will prevail in an ownership dispute against the prior interest.

50
Q

What is a bona fide purchaser?

A

A BFP is a person who pays value for the property and takes it without notice of prior claims

Notice and race-notice statutes protect BFPs

A BFP must pay value for the interest, it cannot be a gift.

51
Q

What are the three types of notice?

A
  1. ) actual - actual knowledge
  2. ) inquiry - reasonable investigation would have disclosed the prior claims
  3. ) constructive - grantees are on notice of all prior interests that were properly recorded.
52
Q

What are the 2 classifications of easements?

A
  1. ) appurtenant - attached to the land

2. ) in gross - specific to the person

53
Q

What are the 4 types of instruments?

A
  1. ) express easements - created by the parties in a writing that complies with the Statute of Frauds
  2. ) easements by necessity- createdwhenthedominantpropertyisuselesswithoutthebenefit of an easement across the neighboring servient property
  3. ) easements by implication- created when the owner of two parcels used one to benefit the other (I.e. a quasi-easement) and the parties intended the easement to continue upon the sale of the dominant parcel
  4. ) easements by prescription - obtained like adverse possession except there is no exclusivity requirement.
54
Q

What type of easement usually continues after land is transferred?

A

Easement appurtenant

55
Q

What are the top 3 ways an easement can be terminated?

A
  1. ) abandonment - occurs when the owner of an easement acts affirmatively to show a clear intent to relinquish the easement
  2. ) merger - Occurs when the owner of the easement becomes the owner of the servient estate in addition to the dominant estate.
  3. ) sale to a bona fide purchaser -If a written easement has been granted but not recorded, it is not enforceable against a bona fide purchaser
56
Q

Between whom can covenants exist?

A

Between landowners, or between landowners and tenants

57
Q

What are the requirements for a covenant to “Run with the Land?”

A
  1. ) writing - must comply with the statute of Frauds
  2. ) Intent - original parties must intend for the promise to run with the land
  3. ) touch and concern - must affect how both pieces of land are used.
  4. ) notice - only required for the burden to run with the land
  5. ) horizontal privity - only required for the burden to run
  6. ) vertical privity - concerns the relationship between the original party and the successor party. Burden: for the burden to run with the land, the owner must transfer the entire interest.
58
Q

What is required for an equitable servitude?

A
  1. ) writing
  2. ) Intent
  3. ) touch and concern
  4. ) notice
59
Q

What is the biggest difference between a mortgage and a deed of trust?

A

After foreclosure a bank May sell the property, but cannot be the buyer.

A trustee can actually buy the property if it wants.

60
Q

Does the Mortgagor remain liable when he transfers the mortgaged property?

A

Yes, even after selling to a third party.

BUT,

The buyer might assume the mortgage and become personally liable to the lender in addition to the original Mortgagor.

61
Q

What is a Deed of Trust?

A

a writing that grants an interest in property as security for an obligation, but the deed goes to a third party as trustee.

62
Q

What is a Purchase Money Mortgage?

A

the borrower uses the loan in order to purchase the mortgaged property. (A home mortgage is usually a purchase money mortgage.

HAS PRIORTY UPON FORECLOSURE.

63
Q

What happenes upon the transfer or mortgaged property?

A

The original mortgagor remains personally liable on the mortgage even after selling the mortgaged property to a third party. (Unless the buyer ASSUMES the mortgage).

64
Q

What is an Assumption of a mortgage?

A

The buyer might assume the mortgage and become personally liable to the lender in addition to the original mortgagor.

65
Q

Generally, what is Priority of Interests?

A

The First mortgage gets priority over later mortgages.

Exception: when a state recording act applies.

Exception: a purchase money mortgage will take priority over non-purchase money mortgages.

66
Q

What is a Future Advance Mortgage?

A

Arises when a borrower grants an interest in their property in exchange for the right to receive future payments (i.e., a line of credit).

A priority issue arises when the mortgage is granted but no amount is actually given on the loan.

67
Q

Can a future advance mortgage who came first still have priority if it hasn’t paid out any money.

A

YES.

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