Real Property Flashcards
What controls if the deed is written with “fee simple” but along with conditions? What will prevail?
The conditions will prevail over the “fee simple”, since we should try to enforce the wishes of the conveyor
Is a life tenant responsible for damages caused by a third-party tortfeaser?
No. A life tenant is not responsible for damage caused by a third-party tortfeaser.
Does a right of entry die with the grantor?
No, a right of entry will be passed on by the force of a will or intestacy.
Does a contract for interest in land need to be rescinded in writing and with consideration?
No. Although a contract to transfer an interest in land must be in writing pursuant to the Statute of Frauds, the majority rule is that the rescission of such a contract may be oral. Giving up to compel the other party to honor their part of the bargain may be enough consideration.
Which standard should the court apply in determining whether the title is marketable?
The marketable title requirement, which is implied in a real property contract unless it is specifically disclaimed, is sometimes characterized as one that protects the purchaser of real estate from buying a lawsuit.
Does a warranty deed mean remedies for physical defects of the real property? No.
a warranty deed provides remedies for breaches of title matters. Termite damage affects the physical quality of the property, not title to the property. A seller may disclaim any duty to disclose physical defects if the disclaimer is sufficiently clear and specific. In this case, the contract specifically noted that the house was being sold “as is.”
Which has priority? A seller’s non-recorded financed amount in a record-state, or a bank recorded mortgage?
A seller-financed purchase money mortgage generally takes precedence over a third-party purchase money mortgage.
Can a lender increase the time for the borrower to pay a mortgage without losing its priority?
Yes.
Here, since neither the interest rate nor the principal amount of the mortgage is increased, the modification is not materially prejudicial to the credit union’s interest, and thus the bank’s mortgage continues to have priority over the credit union’s mortgage.
Are the standards for wild animals and vicious dogs the same?
No. Strict liability applies only to wild animals. Owners of wild animals may be liable for injuries resulting from a fearful reaction to those animals.
A landowner is not strictly liable for injuries inflicted by his animals against a trespasser, except for injuries inflicted by a vicious watchdog.
landowners are not strictly liable for injuries inflicted by their animals unless the animals are vicious watchdogs, wild animals, or domestic animals when the animal’s owner knows or has reason to know of the animal’s dangerous propensities and the harm results from those dangerous propensities.
Trespasser defense applies to domestic animals (even aggressive) but not to wild ones.
When is a lease prohibited from placing the duty to make repairs on the tenant?
Only in a residential lease.
Is a business tenant required to make repairs if damage was caused by the criminal act of a third party?
Yes, if the lease says so.
Is a covenant of marketable title implied in only residential contracts?
No, a covenant of marketable title is implied in every land sales contract.
What is the effect of a forged instrument, such as deed or release from a mortgage, on property rights?
A forged instrument, such as a deed or release from a mortgage, is void and has no effect on property rights, even if relied upon by a bona fide purchaser.
Consequently, the forged release is not effective to terminate the mortgagee’s rights, even though the release was properly recorded and relied on by the buyer.
How are real covenants different from real servitudes?
Servitudes are promises (e.g.: refrain from doing something). Covenants are enforced by money damages while servitudes are enforced by injunctions.
What are the requirements for a reciprocal servitude in a planned community?
(i) there must be intent to create a servitude on all plots (i.e., a common scheme),
(ii) the servitude must be negative (i.e., a promise to refrain from doing something), and
(iii) the party against whom enforcement of the servitude is sought must have actual, record, or inquiry notice.
Will moral pressure or future threats constitute confinement or restraint?
No, the defendant may confine or restrain the plaintiff by the use of physical barriers, physical force, direct or indirect threats (to the plaintiff, a third party, or plaintiff’s property), failure to provide a means of escape, or invalid use of legal authority. The defendant’s use of moral pressure or future threats does not constitute confinement or restraint, and a plaintiff is not imprisoned if she willingly submits to confinement.
Can conversion occur without the D have exercised dominion over the P’s personal property?
No, for conversion there must be intent to convert—to take or exercise dominion over personal property. Accidentally damaging the plaintiff’s chattel is not conversion if the defendant had permission to use the property.
What are the main characteristics of a fee simple determinable?
Oliver conveys Blackacre to Anna so long as the land is used as a farm.
Interest terminated instantly if triggered by the language.
In common law, would a life tenant be able to engage in act to enhance the value of the property’s value?
No, in common law even ameliorative waste is prohibited.
When can a life tenant alter a property’s structure substantially?
Majority rule
1) substantial and permanent change in neighborhood
2) makes it necessary in order to continue reasonable use of the property
3) so long as the property value is not diminished
In common law, under no circumstances.
Is a sublessee in privity of estate with the landlord?
No, a sublessee is not in privity of estate or contract with the landlord. As a consequence, the sublessee is not liable to the landlord for the rent or any other covenants in the original lease, unless the sublessee expressly assumes the rent covenant or any other lease covenants.
Will an appliance bought by the tenant be included in a sale of the property by the landlord to a third party?
No, although an item that becomes a fixture is transferred as part of the real property interest to which it relates, when there is an agreement between the landlord and tenant regarding an item that may be a fixture, that agreement will control.
Can the right to a nonconforming use of property be passed along with title to the property to another person?
Yes, most courts permit a property owner whose nonconforming use predated a zoning change to transfer not only the property itself, but also the right to use the property in the preexisting nonconforming manner.
Will a sale of interest in the property between joint tenants severe the unity of title?
Yes, the interest sold will be a common-tenancy interest and the unsold part remain as joint-tenancy.
What says the doctrine of attornment?
Under the doctrine of attornment, the tenant is bound to honor any covenant in his lease that has been assigned by the landlord to a third party, if the covenant touches and concerns the land (e.g.: gym equipment in the gym facility).
Can a buyer sue after closing for termite infestation unknown to both parties while a clause in the contract represented that there was no infestation?
No, under the doctrine of merger, a buyer of property generally cannot sue on promises contained in the contract, such as a termite warranty, once closing has taken place.
Will a warranty of fitness or suitability apply to every land transaction?
No, while the warranty of fitness or suitability does apply to the sale of a residence, it only applies to a newly constructed residence and is imposed only on a commercial seller, typically the builder or developer of the residence.
Will violation of a zoning ordinance result in a title being unmarketeable?
Yes, violation of zoning ordinance will preclude a title from being marketeable.
Will someone be liable for selling a house with a serious material problem, if this seller didn’t know about the problem when selling?
No, as long as the seller is truthful when disclosing the knowing problems and don’t know about the material problem at that time.
Can a buyer ask for specific performance when the seller breaches the covenant of marketable title and refuses to close?
Yes, and, in addition to obtain specific performance, the buyer may also obtain an abatement of the purchasing price to compensate the buyer for the defect.
Will a credit judgment attach to a property after the property is sold to someone else, but before the buyer has recorded the title?
No, a credit judgment will not prevail after the buyer has obtained equitable title to the house. For the creditor to attach real property based on a lien only, the debtor must have both legal and equitable title at the moment of the lien execution.
Will an earlier registered wild deed prevail over a later non-wild deed?
No, the regular deed will prevail over the wild deed even if registered later.
A “wild deed” is a deed not within the chain of title due to the failure of the seller to promptly record his deed received from the original owner.
Is a deed involving a nonexisting grantee entirely voidable?
No, this deed is void as to only the nonexisting grantee.
How can “notice acts” for value operate against creditors?
When a debtor transfers the property by deed only to any other party, since the creditor tries to attach the property without value (being paid) they will lose even if the new buyer has not recorded a deed.
