Real Property

Question 1

How does the government take land through eminent domain?

Answer 1

If just compensation was paid, the land is taken in fee simple regardless of whether the government ends up using the land

Question 2

With a life estate, who is responsible for the mortgage payments? Ordinary taxes?

Answer 2

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

Question 3

Special Power of Appointment - Creditors

Answer 3

A special power of appointment protects property from being reached by creditors

Question 4

Who is responsible for repairs and maintenance to an easement?

Answer 4

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.

Question 5

Doctrine of Accession

Answer 5

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

Question 6

Can an adverse possessor of land also adversely possess an easement on the land?

Answer 6

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

Question 7

Lateral and Subadjacent Support

Answer 7

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

Question 8

Vested Indefeasibly

Answer 8

If you can determine who has an interest in the land at the time of the operation of the will

Question 9

Vested Subject to Partial Defeasance

Answer 9

You can determine what interest will necessarily obtain in some person, but cannot determine with certainty who exactly

Question 10

Vested Subject to Complete Defeasance

Answer 10

If they could lose all of their remainder

Question 11

Foreclosure: Equitable right to redemption

Answer 11

This right only applies until the foreclosure; After that, the homeowner can only redeem if the jurisdiction has a redemption statute

Question 12

Can an option to purchase in a lease be assigned separately from the lease?

Answer 12

Courts are split over whether this is allowed

Question 13

Liquidated damages in real estate contracts

Answer 13

Usually anything over 3% is invalid unless the party seeking to enforce it can establish that the amount actually to be paid is reasonable

Question 14

Exclusive Agency v. Exclusive Right to Sell

Answer 14

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.

Question 15

Can a life tenant sell off any natural resources?

Answer 15

Generally no, they can only maintain the property but there’s an exception for existing exploitation of resources

Question 16

Ameliorative Waste

Answer 16

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

Question 17

Partition

Answer 17

When tenants in common cannot agree on the use of the property (the tenant does not have to first be wrongfully ousted, just disagreement)

Question 18

Are landlords generally liable for latent defects?

Answer 18

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

Question 19

Can the landlord change the lease terms when a tenant holds over?

Answer 19

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

Question 20

Do changed neighborhood conditions void a restrictive covenant on all lots?

Answer 20

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

Question 21

Is title through adverse possession marketable?

Answer 21

Only if judicial action is taken to quiet title

Question 22

Partial Eviction: By the landlord v. by a paramount lien holder

Answer 22

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

Question 23

When a landlord consents to a transfer that violates a covenant against assignment, do they waive the right to avoid future transfers?

Answer 23

Yes, restraints are also strictly construed so a restraint against assignment only does not also restrict subleases

Question 24

What does is mean for an easement to be surcharged?

Answer 24

The easement’s legal scope was exceeded

Question 25

Does an existing violation of a zoning ordinance render land unmarketable?

Answer 25

Yes

Question 26

If the buyer determines the land is unmarketable, what must the buyer do?

Answer 26

The buyer must notify the seller and give a reasonable time to cure

Question 27

Can land subject to a future interest be acquired by adverse possession?

Answer 27

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)

Question 28

What happens when a taker in fee simples violates a prohibited event?

Answer 28

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

Question 29

After a foreclosure sale by a junior mortgagor, is the senior mortgagor entitles to any proceeds?

Answer 29

No even if there is a surplus, because the senior mortgage remains on the property

Question 30

If a senior mortgagor fails to name a junior mortgagor in the foreclosure proceedings, is the foreclosure void?

Answer 30

No, the sale is still valid but the junior lien is not discharged

Question 31

Are donees of a bona fide purchaser also BFPs?

Answer 31

They can be protected under the shelter rule

Question 32

Does a bona fide purchaser take priority over title obtained through adverse possession?

Answer 32

No

Question 33

Is an oral lease for a term of more than one year valid?

Answer 33

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)

Question 34

Joint Tenancy and Mortgages: Lien v. Title Theory

Answer 34

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

Question 35

Shelter Doctrine

Answer 35

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

Question 36

Can a mortgagor prohibit pre-payment of a loan?

Answer 36

Yes as well as prepayment penalties unless a state statute specifically states otherwise

Question 37

When does the bona fide purchaser rule not apply?

Answer 37

When there is fraud involved

Question 38

Is an oral rescission of a contract to sell land valid?

Answer 38

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

Question 39

Equitable Subrogation

Answer 39

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

Question 40

Can a bigamous marriage create a tenancy by the entirety?

Answer 40

No, it will be considered a tenancy in common

Question 41

Future Advances Mortgage v. junior lender’s lien

Answer 41

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

Question 42

What does validity of the conveyance of the land depend on?

Answer 42

Delivery of the deed, not consideration being paid (whether recited or not)

Question 43

Can a co-tenant adversely possession the co-owned property?

Answer 43

Yes, if they do so openly, notoriously, and adversely sufficient to constitute an ouster

Question 44

Can a joint tenancy be altered or conveyed by an oral agreement?

Answer 44

No, even as to between the parties

Question 45

What is and is not subject to the Rule Against Perpetuities?

Answer 45

Is: contingent remainders, executory interests, and vested remainders
Is Not: Reversions and restrictive covenants

Question 46

Is a deed obtained through fraud void?

Answer 46

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

Question 47

What is a profit à prendre?

Answer 47

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

Question 48

When a tenant holds over, what is the new term of the lease?

Answer 48

If the original lease was for a year or less, month to month

Originally for more than a year, year to year

Question 49

When a recorded plat and a survey conflict, which prevails?

Answer 49

The actual, physical survey prevails