Real Property Flashcards
How does the government take land through eminent domain?
If just compensation was paid, the land is taken in fee simple regardless of whether the government ends up using the land
With a life estate, who is responsible for the mortgage payments? Ordinary taxes?
The life holder is liable only for the interest, and the remainderman is liable for the principal
The life estate holder has the obligation to pay all ordinary taxes to the extent that the property can produce income
Special Power of Appointment - Creditors
A special power of appointment protects property from being reached by creditors
Who is responsible for repairs and maintenance to an easement?
The owner of the easement absent any other agreement. They can seek contribution from the holder(s) of the servient estate, but that duty is dependent upon the reasonableness of the repairs, AND the repairing party must give the contributing parties adequate notification and a reasonable opportunity to participate in decisions regarding the repairs.
Doctrine of Accession
Applies only in situations in which one person annexes chattels to real property owned by another under such circumstances that the law will not permit the chattels’ removal
Can an adverse possessor of land also adversely possess an easement on the land?
Yes, but only if their possession interfered with the rights of the easement holder (at which point they can cancel the easement); Otherwise, if there’s no interference, the adverse possessor takes the title subject to the easement
Lateral and Subadjacent Support
There is a duty of one landowner to maintain his/her land in such a way as it naturally upholds the neighboring lands, to include support against subsidence
This only applies to the land as it naturally is, and does not apply to buildings or structures on the land
Vested Indefeasibly
If you can determine who has an interest in the land at the time of the operation of the will
Vested Subject to Partial Defeasance
You can determine what interest will necessarily obtain in some person, but cannot determine with certainty who exactly
Vested Subject to Complete Defeasance
If they could lose all of their remainder
Foreclosure: Equitable right to redemption
This right only applies until the foreclosure; After that, the homeowner can only redeem if the jurisdiction has a redemption statute
Can an option to purchase in a lease be assigned separately from the lease?
Courts are split over whether this is allowed
Liquidated damages in real estate contracts
Usually anything over 3% is invalid unless the party seeking to enforce it can establish that the amount actually to be paid is reasonable
Exclusive Agency v. Exclusive Right to Sell
An “exclusive agency” agreement, prohibiting the owner from selling property through another broker during the listing period, but permitting the owner to sell property through his own efforts, is distinguishable from an “exclusive right to sell” agreement, which prohibits the owner from selling personally or through another broker without incurring liability for a commission to the original broker.
Can a life tenant sell off any natural resources?
Generally no, they can only maintain the property but there’s an exception for existing exploitation of resources
Ameliorative Waste
Destruction of improvements on the life estate that increase the value of the property; Generally a life tenant cannot tear down improvements for a more profitable use of the land but there is an exception where changed conditions have made the destruction reasonably necessary
Partition
When tenants in common cannot agree on the use of the property (the tenant does not have to first be wrongfully ousted, just disagreement)
Are landlords generally liable for latent defects?
No unless they knew/should have known about the defect; However, if the lease is a short term lease and the property is furnished, they are liable regardless of whether they knew/should have known
Can the landlord change the lease terms when a tenant holds over?
No, there is an implied month-to-month lease on the same terms unless the landlord notified the tenant of a new rent amount prior to the expiration of the lease
Do changed neighborhood conditions void a restrictive covenant on all lots?
Yes but only if the conditions have made the property unusable for the specified use; The entire subdivision must have changed so significantly that enforcement of the restriction would be inequitable
Is title through adverse possession marketable?
Only if judicial action is taken to quiet title
Partial Eviction: By the landlord v. by a paramount lien holder
Partial eviction by the landlord relieves the tenant from paying rent
Partial eviction by a paramount lien holder only results in apportionment of the rent
When a landlord consents to a transfer that violates a covenant against assignment, do they waive the right to avoid future transfers?
Yes, restraints are also strictly construed so a restraint against assignment only does not also restrict subleases
What does is mean for an easement to be surcharged?
The easement’s legal scope was exceeded
Does an existing violation of a zoning ordinance render land unmarketable?
Yes
If the buyer determines the land is unmarketable, what must the buyer do?
The buyer must notify the seller and give a reasonable time to cure
Can land subject to a future interest be acquired by adverse possession?
Yes but the statute will not begin to run as against the future interest holder until their interest becomes possessory (the possessor can take possession of the life estate but not the future interest)
What happens when a taker in fee simples violates a prohibited event?
The fee simple automatically ends and adverse possession begins; If the owner does not exercise the right of reverter, they will lose the right after the statutory adverse possession period
After a foreclosure sale by a junior mortgagor, is the senior mortgagor entitles to any proceeds?
No even if there is a surplus, because the senior mortgage remains on the property
If a senior mortgagor fails to name a junior mortgagor in the foreclosure proceedings, is the foreclosure void?
No, the sale is still valid but the junior lien is not discharged
Are donees of a bona fide purchaser also BFPs?
They can be protected under the shelter rule
Does a bona fide purchaser take priority over title obtained through adverse possession?
No
Is an oral lease for a term of more than one year valid?
It is voidable until the tenant takes possession and the landlord accepts rent, then the lease becomes either at will or periodic (the longer the term of rent payment, the more likely the lease is periodic)
Joint Tenancy and Mortgages: Lien v. Title Theory
Lien Theory: the mortgagor retains title and the mortgagee only takes a lien on the property
Title Theory: the mortgagee takes title for the duration of the mortgage and severs the joint tenancy
Shelter Doctrine
When a BFP acquires title free of a prior encumbrance, they convey the title to subsequent purchasers free of the encumbrance even if the subsequent purchaser had actual notice of the encumbrance
Can a mortgagor prohibit pre-payment of a loan?
Yes as well as prepayment penalties unless a state statute specifically states otherwise
When does the bona fide purchaser rule not apply?
When there is fraud involved
Is an oral rescission of a contract to sell land valid?
Generally no under the statute of frauds, but it will be upheld when the seller, in reliance on the rescission, enters into a new contract to resell the land or where a party has breached the agreement
Equitable Subrogation
A new mortgage held by a mortgagor who uses the proceeds of the new mortgage to extinguish an earlier mortgage may receive the same priority once given to the earlier mortgage
The subrogee must make the payment to protect their own interest, cannot act as a volunteer, cannot be primarily liable for the debt paid, must pay off the entire encumbrance, and subrogation cannot work any injustice to the rights of the junior lienholder
Can a bigamous marriage create a tenancy by the entirety?
No, it will be considered a tenancy in common
Future Advances Mortgage v. junior lender’s lien
If the payments are obligatory, the junior lien is junior to all payments; If the advances are only optional, the junior lender has priority over amounts lent after the junior lender recorded
What does validity of the conveyance of the land depend on?
Delivery of the deed, not consideration being paid (whether recited or not)
Can a co-tenant adversely possession the co-owned property?
Yes, if they do so openly, notoriously, and adversely sufficient to constitute an ouster
Can a joint tenancy be altered or conveyed by an oral agreement?
No, even as to between the parties
What is and is not subject to the Rule Against Perpetuities?
Is: contingent remainders, executory interests, and vested remainders
Is Not: Reversions and restrictive covenants
Is a deed obtained through fraud void?
It is not void as of right, but rather voidable
If a bona fide purchaser has already bought the land, it is no longer voidable
What is a profit à prendre?
It is a right to enter the land of another person and to take some profit of the soil, or a portion of the soil itself, for the use of the owner of the right; It is a protected right under due process
When a tenant holds over, what is the new term of the lease?
If the original lease was for a year or less, month to month
Originally for more than a year, year to year
When a recorded plat and a survey conflict, which prevails?
The actual, physical survey prevails
