Real Property

Question 1

Real Property: Future Interests When does the Rule in Shelley’s Case apply?

Answer 1

In only one case: “O conveys ‘To A for life, then, on A’s death, to A’s heirs.’ A is alive.” In this case, the present and future interests merge, giving A a fee simple absolute. Used to promote alienability. Has been virtually abolished (in MD too).

Question 1

Real Property: Servitudes What is a profit?

Answer 1

Entitles its holder to enter the servient land and take from it the soil or some substance of the soil like timber, minerals or oil. Profit has all of the same rules as easements.

Question 1

Real Property: Mortgages How does debt liability change when one takes “subject to” the mortgage vs. “assuming” the mortgage?

Answer 1

If buyer takes “subject to” the mortgage, buyer assumes no personal liability, and owner is personally liable. If buyer has “assumed” the mortgage, then both owner and buyer are liable (B primarily, O secondarily).

Question 2

Real Property: Present Estates Fee Simple Absolute 1. How to create it 2. Distinguishing characteristics 3. Accompanying future interest

Answer 2

1. O to A or O to A and his heirs 2. Absolute ownership in that it is freely devisable, descendable, alienable 3. A has absolute ownership and no heirs because he is living –A only has PROSPECTIVE HEIRS

Question 2

Real Property: Concurrent Estates What is a tenancy in common?

Answer 2

2 or more owners w/ no right of survivorship. 3 Features: - Each co-tenant owns an individual part and each has right to possess the whole. - Each interest is devisable, descendable, and alienable. No survivorship rights between tenants in common. - Presumption favors the tenancy in common

Question 2

Real Property: Land Conveyancing What is a general warranty deed?

Answer 2

Best deed a buyer could hope for. Warrants against all defects in title, including those due to grantor’s predecessors. Contains 6 covenants: - 3 Present Covenants: — Seisin: grantor owns this estate — Right to convey — Against encumbrances - 3 Future Covenants: — Quiet Enjoyment — Warranty: Grantor will defend grantee against lawful claims of title brought by others — Further assurances: Grantor will do what’s needed to prefect title

Question 3

Real Property: Present Estates 1. What is voluntary or affirmative waste? 2. Exceptions?

Answer 3

1. Conduct that causes a drop in value 2. Life tenant must not consume or exploit natural resources on the property unless, PURGE —Prior Use: meaning that prior to grant, the land was used to exploit ————–Open Mines Doctrine —Repairs: may consume natural resources for repairs and maintenance —Grant: May exploit if granted that right —Exploitation: Land is only good to exploit

Question 3

Real Property: Possessor Rights

Answer 3

The possessor has the right to be free from trespass and nuisance 1) Trespass - Invasion of land by physical object - Bring an ejectment action to remove a trespasser 2) Private Nuisance - Substantial and (objective) unreasonable interference with another’s land use —-Does not require physical intrusion, but can be caused by odors or noise

Question 4

Real Property: Mortgages Are interests in a mortgage transferable, and if so, how is this accomplished?

Answer 4

Yes- the mortgage automatically follows a properly transferred note. This is accomplished by either: 1. Endorsing the note and delivering it to transferee, OR 2. Executing a separate note of assignment NOTE: If (1) occurs, that transferee is eligible to become a holder in due course, meaning that he takes the note free of any “personal defenses” (no consideration, fraud in inducement, unconscionability, waiver, estoppel) that could have been raised

Question 5

Real Property: Present Estates Name the three Defeasible Fees

Answer 5

Fee Simple Determinable Fee Simple Subject to a Condition Subsequent Fee Simple Subject to Executory Limitation

Question 5

Real Property: Present Estates 2 Rules of Construction Regarding Defeasible Fees

Answer 5

1. Words mere desire, hope, or intention, are insufficient to create a defeasible fee 2. ABSOLUTE RESTRAINTS ON ALIENATION ARE VOID

Question 5

Real Property: Future Interests How do you know when a given class (vested remainder subject to open) has closed?

Answer 5

The class closes whenever any member can demand possession.

Question 5

Real Property: Concurrent Estates What are the three types of concurrent ownership?

Answer 5

1. Joint Tenancy 2. Tenancy by the Entirety 3. Tenancy in Common

Question 6

Real Property: Servitudes What is an easement?

Answer 6

The grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land.

Question 7

Real Property: Landlord/Tenant Law What does the common law of caveat lessee mean?

Answer 7

“Let tenant beware.” Means that, in tort, L has no duty to make the premises safe.

Question 7

Real Property: Land Conveyancing What are the two implied promises in every land contract?

Answer 7

1. Seller promises to provide marketable title at the closing - title free from reasonable doubt, free from lawsuits & threat of litigation - title is unmarketable due to adverse possession (marketable in MD), encumbrances or zoning violations 2. Seller promises not to make any false statements of material fact - majority of states also hold liable for failure to disclose latent material defects - disclaimers don’t relieve liability for fraud or failure to disclose

Question 8

Real Property: The Recording System What is estoppel by deed?

Answer 8

One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later acquires the previously transferred interest.

Question 8

Real Property: Land Conveyancing What is delivery by escrow?

Answer 8

Can deliver by escrow. Grantor delivers deed to 3rd party escrow agent, w/ instructions that the deed be delivered to grantee once certain conditions are met title is passed to grantee. - Advantage: If grantor dies or becomes incompetent or is otherwise unavailable before the express conditions are met title still passes from the escrow agent to grantee once conditions are met.

Question 9

Real Property: Adverse Possession What is tacking when is it allowed?

Answer 9

One adverse possessor may tack on to his time with the land his predecessor’s time, so long as there is privity, which is satisfied by any non-hostile nexus, such as blood, contract, deed or will. Tacking is not allowed when there has been an ouster.

Question 10

Real Property: Landlord/Tenant Law Implied warranty of habitability

Answer 10

—Only in residential leases - It is non-waivable Not in MD - We have L’s duty to eliminate serious defects in residential leases 1. Standard - Premises must be fit for human dwelling - may be supplied by housing code or case law - L is obliged to repair these defects [no heat in winter, no plumbing] 2. T’s entitlements when the implied warranty of habitability is breach: MRRR MOVE OUT and end the lease, but T doesn’t have to REPORT AND DEDUCT, allowable by statute in a growing number of jurisdictions, T may make the reasonable repairs and deduct their cost from future rent REDUCE RENT - or withhold all rent until the court determines fair rental value. Typically, T must place withheld rent into escrow to show her good faith, especially in MD REMAIN IN POSSESSION - Pay rent and affirmatively seek money damages

Question 12

Real Property: Concurrent Estates What are the rights and duties of co-tenants?

Answer 12

1. Possession: Each co-tenant is entitled to possess the whole. Exclusion of one co-tenant by another= wrongful ouster. 2. Can’t collect rent from co-tenant in exclusive possession absent ouster 3. A co-tenant who leases all or part of the premises to a 3rd party must account to his co-tenants, providing them their fair share of rent income 4. Can’t acquire title from other co-tenants by adverse possession 5. Each co-tenant is responsible for his or her fair share of carrying costs (taxes, mortgage interest) based on their share 6. Repairs: right to contribution for reasonable and necessary repairs 7. No right to contribution for improvements, but improving co-tenant is entitled to a credit for any increase in value, but also has liability for drop in value caused. 8. Waste: Co-tenant must not commit waste 9. Partition: a JT or tenant in common has right to bring an action for partition.

Question 12

Real Property: Landlord/Tenant Law The Periodic Tenancy in General

Answer 12

Continues for a successive interval until L or T give proper notice to terminate “L conveys to T for month-to-month, week-to-week, etc.”

Question 12

Real Property: Servitudes What is a dominant tenement vs. a servient tenement?

Answer 12

Dominant: Land that gets the benefit Servient: Land that bears the burden

Question 13

Real Property: Zoning

Answer 13

Pursuant to its police power, government may enact statutes to reasonably control land use The variance is decided in an administrative action - the principal means to achieve flexibility in zoning - Proponent must show 1) undue hardship & 2) Variance won’t decrease surrounding property values Nonconforming Use - A once lawful, existing use now deemed nonconforming by a new zoning ordinance - It cannot be eliminate all at once unless just compensation is paid. Otherwise it could be deemed an unconstitutional taking Unconstitutional Exactions - Those amenities government seeks in exchange for granting permission to build — To pass scrutiny the exactions must be reasonably related in nature and scope to the impact of proper development

Question 14

Real Property: Landlord/Tenant Law Difference between an Assignment and a Sublease?

Answer 14

In the absence of some prohibition in the lease, T may freely transfer his or her interest in whole (ASSIGNMENT) or in part (SUBLEASE) L can prevent T from assigning or subletting without L’s prior written approval However, once L consents to one transfer by T, L waives the right to object to future transfers by that T, unless L reserves that right

Question 15

Real Property: Foreclosure What are the two methods of redemption? REMEMBER debtor/mortgagor may not waive the right to redeem the mortgage - “Clogging the equity of redemption”

Answer 15

1. Redemption in equity - Debtor can try to redeem the land up to the date of sale - universally recognized —-Must pay off the missed payment(s) plus interest plus costs or if there is an acceleration clause then must pay off the full balance plus interest plus costs 2. Statutory Redemption - NOT MD - For some time after the foreclosure sale, the debtor is allowed to pay the foreclosure sale price in order to get his house back

Question 16

Real Property: Present Estates What is ameliorative waste?

Answer 16

May not engage in acts that will enhance the property’s value, unless all future interest holders are known and consent

Question 16

Real Property: Landlord/Tenant Law What are the individual liabilities between tenants and landlords in a sublease?

Answer 16

L and T2 are in NEITHER privity of estate nor privity of contract. T2 is liable to T1 and vice versa. The original legal relationship between L and T1 remains fully intact.

Question 17

Real Property: Future Interests What are the 2 “species” of executory interests?

Answer 17

1. Shifting executory interest- always follows a defeasible fee and cuts short the interest of someone other than the grantor 2. Springing executory interest- always follows a defeasible fee and cuts short the interest of the grantor

Question 17

Real Property: Land Conveyancing What is a quitclaim deed?

Answer 17

It contains no covenants. Grantor isn’t even promising that he has title to convey, but is promising implicitly in the K to provide marketable title. Any problems post-closing, grantor is off the hook.

Question 17

Real Property: Foreclosure How can a mortgagee foreclose?

Answer 17

Through proper judicial action

Question 18

Real Property: Land Conveyancing What is a statutory special warranty deed?

Answer 18

Provided for by statute in many states, this deed contains two promises that grantor makes only on behalf of himself. 1. Grantor promises she hasn’t conveyed Blackacre to anyone other than grantee AND 2. Blackacre is free from encumbrances made by grantor

Question 20

Real Property: Foreclosure What are the various priorities among creditors?

Answer 20

Until recording the deed, creditor has no priority Once recorded, priority is determined by 1st in time, 1st in right Purchase money mortgage is given superpriority and is always granted 1st priority

Question 22

Real Property: Future Interests What is the basic concept of the Rule Against Perpetuities?

Answer 22

Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.

Question 23

Real Property: Land Conveyancing What are the three types of deeds?

Answer 23

• Quitclaim - General Warranty Deed - Special Warranty Deed

Question 24

Real Property: Future Interests 3 future interests held by someone other than the grantor?

Answer 24

1. Vested remainder 2. Contingent Remainder 3. Executory Interest

Question 26

Real Property: Servitudes When are negative easements recognized?

Answer 26

LASS L ight A ir S upport S treamwater from artificial flow NOTE: In minority of states: (-) easements may be acquired for scenic view. Negative easements can ONLY be created expressly, by a writing signed by the GRANTOR. No natural or automatic right to one of these!

Question 26

Real Property: Servitudes How is the scope of an easement determined?

Answer 26

By the terms that created it.

Question 26

Real Property: The Recording System How is deed properly recorded?

Answer 26

The deed must be recorded properly within the chain of title, which refers to that sequence of recorded documents capable of giving notice to later takers. In most states, this is established through a title search of the grantor-grantee index.

Question 28

Real Property: Future Interests 3 future interests capable of creation in the grantor?

Answer 28

1. The Possibility of Reverter - Fee simple determinable 2. Right of Entry - Fee simple subject to condition subsequent 3. Reversion - Any time O transfer some, but not all of his interest in land that is not a determinable or a condition subsequent

Question 28

Real Property: The Recording System What is a bona fide purchaser?

Answer 28

One who has (i) bought for value (any substantial pecuniary consideration, even a “bargain basement” sale), and (ii) without notice that someone else got there first.

Question 30

Real Property: Future Interests Describe the common law Rule of Destructibility of Contingent Remainders, and whether this rule remains.

Answer 30

At CL, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended, and the grantor would take in fee simple absolute. Has been abolished- the contemporary rule states that if a contingent remainder is still contingent at the time the preceding estate ends, the grantor’s then hold the estate subject to a springing executory interest.

Question 32

Real Property: Servitudes How do you terminate an easement?

Answer 32

END CRAMP - Estoppel - Necessity- easement created by necessity end need ends - Destruction of the servient land, other than through the willful conduct of the servient owner - Condemnation of the servient estate by eminent domain - Release- written release from the easement holder to the servient owner - Abandonment- demonstrated by the easement holder by physical action - Merger doctrine- easement is extinguished when title to the easement and title to the servient land become vested in the same person - Prescription- servient owner extinguishes by adverse possession

Question 33

Real Property: Adverse Possession How do disabilities affect adverse possession?

Answer 33

The SOL will not run against a true owner who is afflicted by a disability at the start of the adverse possession. Common disabilities include insanity, infancy, and imprisonment.

Question 34

Real Property: Mortgages How does one create a mortgage?

Answer 34

A mortgage is the conveyance of a security interest in land intended by the parties to be collateral for the repayment of a debt (union between a debt and a voluntary lien in debtor’s land to secure that debt)

Question 35

Real Property: Landlord/Tenant Law 1. Law of Fixtures for tenants? 2. How to tell when it is installed?

Answer 35

When tenant removes a fixture she commits waste A fixture is a once movable chattel that, by virtue of its annexation to realty: OBJECTIVELY SHOWS the intent to permanently improves the realty, therefore T MUST NOT REMOVE A FIXTURE, NO MATTER THAT SHE INSTALLED IT 2. Express agreement controls In the absence of agreement, T may remove a chattel that she has installed so long as removal does not cause SUBSTANTIAL HARM to the premises ALWAYS REMEMBER - If removal will cause substantial damage, then in OBJECTIVE JUDGMENT T has shown the intent to install a fixture; the fixture stays put

Question 36

Real Property: The Recording System What language tips us off as to whether the jurisdiction follows a notice or a race-notice statute?

Answer 36

Notice: “A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, UNLESS THE CONVEYANCE IS RECORDED” Race-Notice: “Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, WHOSE CONVEYANCE IS FIRST RECORDED”

Question 37

Real Property: The Recording System What is the Shelter Rule?

Answer 37

Means that one who takes from a BFP will prevail against any entity that the transferor-BFP would have prevailed against. Results in transferee “taking shelter” in the status of her transferor, in that she would be allowed BFP status even if she herself might fail to meet those requirements.

Question 38

Real Property: Water Ground Water

Answer 38

Water beneath the surface of the Earth that is not confined to a known channel The surface owner is entitled to make reasonable use of ground water, however, the use must not be wasteful

Question 39

Real Property: Landlord/Tenant Law Duty to deliver possession?

Answer 39

1. English Rule - [Majority & MD] - L put T in actual possession of the premises. Thus, if at the start of T’s lease a prior holdover T is still in possession, L has breached and the new T gets damages 2. American Rule [minority] - T must get the holdover out, L must only deliver legal possession

Question 41

Real Property: Water 2 Main Water Rights

Answer 41

1 Riparian Doctrine - MD —Water belongs to those who own the land bordering the water course - They are known as riparians, who share the right of REASONABLE use of the water 2. Prior Appropriation Doctrine –Water belongs initially to the state, but the right to divert it and use it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner –Any productive or beneficial use of water, including use for agriculture is sufficient to create the appropriation right

Question 42

Real Property: Future Interests What are the 3 “species” of vested remainders?

Answer 42

1. Indefeasibly vested remainder- Holder is certain to acquire an estate in the future (“no strings attached”) 2. Vested remainder subject to complete defeasance/divestment- Holder’s right to possession may be cut short because of a condition subsequent 3. Vested remainder subject to open- Holder is but one in a group of takers, whose share is subject to partial diminution because additional members may join

Question 43

Real Property: Servitudes What is a covenant?

Answer 43

The covenant is a promise to do or not to do something related to land. It is UNLIKE the easement b/c it is not the grant of a property interest, but rather a contractual limitation or promise regarding the land. Can be negative or affirmative. - Negative= promise to refrain from doing something related to the land - Affirmative= promise to do something related to the land

Question 44

Real Property: Foreclosure When do the proceeds move on to a junior lien holder?

Answer 44

When each superior lien holder obtains satisfaction in full

Question 46

Real Property: Land Conveyancing What are the requirements for a land contract?

Answer 46

To satisfy the SOF, the contract must be in writing signed by the party to be bound, it must describe the land & state some consideration. - EXCEPTION to the SOF: Doctrine of Part Performance: If B takes possession, pays for all or part of the price and/or makes substantial improvements the doctrine is satisfied and equity will decree specific performance of an oral K for the sale of land (need 2 of the 3)

Question 47

Real Property: Landlord/Tenant Law Tenancy at Sufferance

Answer 47

Created when T has wrongfully held over past the expiration of the lease Gives the wrongdoer a leasehold estate, to permit L to recover rent Lasts only until L either evicts T or elects to hold T to a new tenancy

Question 48

Real Property: Future Interests What is the Doctrine of Worthier Title?

Answer 48

Applies when ), who is alive, tries to create a future interest in his (yet unascertained) heirs (“To A for life, then to O’s heirs). Results in the contingent remainder (to O’s heirs) being void, with A having a life estate and O having a reversion. Aims to promote free transfer of land. Still viable, although grantor’s intent controls.

Question 49

Real Property: Concurrent Estates What is a joint tenancy?

Answer 49

2 or more owners with the right of survivorship. A joint tenant’s rights are alienable, but not devisable or descendable. Creation: need the 4 unities “T-TIP”- Time, Title, Identical Interests, AND right to Possess the whole. Also grantor must clearly express the right of survivorship

Question 50

Real Property: Mortgages Do recording statutes apply to mortgages as well?

Answer 50

Yes. Recording statutes apply to both deeds AND mortgages. Same rules apply (depending on notice or race-notice jurisdiction).

Question 51

Real Property: Landlord/Tenant Law Tenancy at Will

Answer 51

A tenancy for no fixed duration - Increasingly rare Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat this as a an implied periodic tenancy The tenancy at will may be terminated by either party at any time, but a reasonable demand to vacate is usually needed —MD must have one month’s notice

Question 52

Real Property: Future Interests What is the 4-step technique for assessing potential Rule Against Perpetuities problems?

Answer 52

1. Determine which future interests have been created by the conveyance (RAP applies only to contingent remainders, executory interests, and certain vested remainders subject to open). 2. ID the conditions precedent to the vesting of the suspect future interest (ask: What has to happen before a future interest holder can take?). 3. Find a measuring life (a person alive at the date of the conveyance whose life or death is relevant to the condition’s occurrence) 4. Ask: Will we know, with certainty, within 21 years of the death of our measuring life, if our future interest holder(s) can or cannot take? If YES: Conveyance good. If NO: Conveyance void

Question 54

Real Property: Landlord/Tenant Law What are the individual liabilities between tenants and landlords in an assignment?

Answer 54

In an assignment: L and T2 are in privity of estate, which means that they are liable to each other for all covenants in the original lease that run with the land. They are NOT in privity of contract, unless T2 assumed performance of all promises in original lease. L and T1 are no longer in privity of estate, but remain in privity of contract. They are secondarily liable to each other.

Question 55

Real Property: Concurrent Estates How do your sever a joint tenancy?

Answer 55

SPAM: Sale, Partition And Mortgage Sale- a JT can sell or transfer her interest during her lifetime. Buyer becomes a tenant in common, other JTs remain JTs. ALSO- in equity a JT’s mere act of entering into a K for sale of her share will sever the JT as to the contracting party’s interest: Doctrine of Equitable Conversion Partition- By voluntary agreement, Partition in kind (judicial action for physical division), Forced Sale Mortgage- One JT’s execution of a mortgage or a lien on his or her share will sever the JT as to that share in a minority of states- NOT MD. IN MD & MAJORITY lien theory of mortagages, no severance of JT.

Question 57

Real Property: Present Estates Fee Simple Subject to Executory Limitation 1. Creation? 2. Characteristics? 3. Future interests?

Answer 57

1. O to A, but if X event occurs, then to B 2. Estate automatically ends in favor of someone other than the grantor 3. Shifting executory interest

Question 58

Real Property: Future Interests What is the definition of a remainder?

Answer 58

A remainder is a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created. KEY CONCEPTS: Remainders always accompany a preceding estate of known, fixed duration (usually life estate or term of years). Remainders also never cut short or divest the possessory interest in which it is created- the preceding possessory interest always comes to its natural conclusion.

Question 59

Real Property: Adverse Possession What is adverse possession?

Answer 59

Possession for a statutorily prescribed period of time can, if certain elements are met the possession will ripen into title. 4 elements of adverse possession (COAH): - Continuous - Open and Notorious - Actual - Hostile elements gaged objectively

Question 61

Real Property: The Recording System What are the 3 forms of notice a buyer may potentially be charged with?

Answer 61

“AIR” A ctual notice I nquiry notice (on notice for whatever an inspection of Blackacre or follow-up on a recording instrument would show) R ecord notice (B on notice of a properly recorded deed)

Question 62

Real Property: Landlord/Tenant Law 3 Tenant’s duties?

Answer 62

1. T’s liability to 3rd parties 2. T’s duty to repair 3. T’s duty to pay rent

Question 62

Real Property: Land Conveyancing How does the deed pass legal title from seller to buyer?

Answer 62

Must be LEAD- Lawfully Executed And Delivered -Lawful Execution: Must be in writing signed by grantor (don’t need consideration) & include an unambiguous description of the land - Delivery: Grantor physically transfers the deed to the grantee but this is a legal standard and is solely a test of present intent. Delivery doesn’t require physical transfer of the deed itself, just need manifestation of intent to be bound – Express rejection defeats delivery

Question 64

Real Property: Present Estates Fee Simple Determinable 1. Creation? 2. Distinguishing characteristics? 3. Future interest?

Answer 64

1. O to A [for so long as, during, until] - durational language ——if the state condition is violated, forfeiture is automatic 2. Devisable, descendable, alienable, BUT ALWAYS SUBJECT TO THE CONDITION 3. Grantor has a POSSIBILITY OF REVERTER —- FSDPOR

Question 66

Real Property: Land Conveyancing What is the process for conveying land?

Answer 66

Two-step process 1. The land contract, which endures until step 2 2. The closing, where the deed becomes the operative document

Question 67

Real Property: Servitudes What is an Equitable Servitude?

Answer 67

A promise that equity will enforce against successors. It is accompanied by injunctive relief. Remember WITNES: - Writing: original promise was in writing - Intent: parties intended that promise would bind - Touch and Concern: promise affects parties as landowners - Notice: Successors of burdened land had notice of promise - ES: Equitable Estoppel PRIVITY NOT REQUIRED TO BIND SUCCESSORS

Question 68

Real Property: Servitudes What is the transferability of an easement appurtenant and an easement in gross?

Answer 68

EA: Passes automatically with the dominant tenement, regardless of whether it is mentioned in the conveyance (burden also passes this way, unless new owners is a bona fide purchaser without notice) EIG: Not transferable UNLESS it is for commercial purposes

Question 70

Real Property: Servitudes What is an easement in gross?

Answer 70

An easement that confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his own land. Only ONE parcel involved for this.

Question 71

Real Property: Servitudes How is an affirmative easement created?

Answer 71

“PING” P rescription (may be acquired by satisfying elements of adverse possession) I mplication (court may imply if previous use is apparent, and parties expected it to continue b/c of reasonable necessity to dominant land’s use) N ecessity (commonly tested via landlock scenario) G rant (for more than 1 year- needs to be in writing for SoF)

Question 72

Real Property: Landlord/Tenant Law 4 Landlord’s Duties

Answer 72

1. Duty to deliver possession 2. The implied covenant of quiet enjoyment 3. Implied warranty of habitability 3. Bar from retaliatory eviction

Question 73

Real Property: Landlord/Tenant Law 3 Periodic Tenancy by Implication How to Terminate? 2 Important notes

Answer 73

1. Land is leased with no mention of duration, but provision is made for rent at set intervals 2. An oral term of year in violation of the Statute of Frauds creates an implied periodic tenancy measured by the way rent is tendered 3. The Holdover: In a residential lease, if L elects to hold over a T who has wrongfully stayed on past the conclusion of the original lease: An implied periodic tenancy arises measured by the way rent is now tendered Termination by Notice - usually in writing at least equal to the length of the period itself unless otherwise agreed Exception: year to year or greater MBE = 6 months MD = 3 months, but if its a farm tenancy its 6 months Note 1: By private agreement, the parties may lengthen or shorten these common-law prescribed notice provisions MD may only lengthen Note 2: The periodic tenancy must end at the conclusion of a natural lease period

Question 74

Real Property: Future Interests What are the two bright line rules of the Rule Against Perpetuities?

Answer 74

1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP - Bad as to one, bad as to all: Condition precedent applies to every class member and must occur for every class member w/in the perpetuities period or the entire class gift is void 2. Many shifting executory interests violate the RAP. An executory interest w/ no limit on the time within which it must vest violates the RAP - Charity-to-charity exception: A shifting executory interest from one charity to another does not violate RAP.

Question 75

Real Property: Servitudes When will the covenant run with the land (ie. bind successors)?

Answer 75

First, determine if the promise runs with the burdened parcel of land. For a burden to run remember WITHN: - Writing: the promise between A & B was in writing - Intent: Original parties A & B, intended that the covenant would run - Touch and concern the land: promise must affect the parties’ legal relations as land owners and not simply as members of public at large - Horizontal and vertical privity: both are needed for the burden to run. Horizontal= nexus between original parties and requires that they be in succession of estate (grantor/grantee, landlord/tenant, mortgagor/mortgagee relationship), Vertical= nexus between original party and successor. Simply requires a non-hostile nexus (blood, contract, devise, descent). - Notice: successor had notice of the promise when took the land Second, determine if benefit runs from benefitted parcel’s original owner to successor. Remember WITV: -Writing -Intent -Touch and concern -Vertical privity

Question 76

Real Property: Landlord/Tenant Law What are the 5 exceptions to the common law of caveat lessee?

Answer 76

“CLAPS” C ommon Areas (L must maintain these) L atent Defects Rule (L must warn of known/should of known hidden defects- no duty to repair!) A ssumption of Repairs (if voluntarily but negligently made, L is liable) P ublic Use Rule (L who leases public space and who should know because of nature of defect and length of lease, that T will not repair, is liable) S hort-Term Lease of Furnished Dwelling (L liable for any defects on site)

Question 77

Real Property: Servitudes What are defenses to enforcement of an equitable servitude?

Answer 77

Changed Conditions- the changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area has changed. Mere pockets of limited change not enough.

Question 78

Real Property: Mortgages Must a mortgage be in writing?

Answer 78

Typically yes, to satisfy the SoF. The writing is referred to as the “legal mortgage,” “the note,” “the mortgage deed,” “the security interest,” “a deed of trust,” or “a sale lease-back.”

Question 79

Real Property: Water Surface Waters

Answer 79

Those which come from the rain, springs, or melting snow, and which have not yet reached a natural watercourse or basin Surface water is subject to the common enemy rule A landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water - but may not cause unnecessary harm to another’s land

Question 80

Real Property: Land Conveyancing Who has the risk of loss once a land contract has been signed?

Answer 80

Once the K is signed buyer owns the land, subject to course of the condition that he pay the purchase price at closing. SO, if Blackacre is destroyed through no fault of either party between K and closing, B bears the ROL unless the K says otherwise.

Question 81

Real Property: Servitudes What is a license?

Answer 81

A mere privilege to enter another’s land for a delineated purpose. - Not subject to SOF - Freely revocable unless estoppel applies

Question 83

Real Property: Present Estates Fee Simple Subject to Condition Subsequent 1. Creation? 2. Characteristics? 3. Future interests?

Answer 83

1. O to A, but if event occurs, grantor reserves the right to re-enter and retake ——-Clear durational language and grantor carves out the right to re-enter 2. Does not automatically end, grantor must exercise power to termination once the condition subsequent occurs 3. Right of entry, not automatic

Question 84

Real Property: Mortgages How does a transferee become a holder in due course?

Answer 84

1. Note must be negotiable, made payable to transferee (new mortgagee); 2. Original note must be indorsed, signed by the named mortgagee; 3. Original note must be delivered to transferee (no photocopies); 4. Transferee must take note in good faith, without any notice of illegality; AND 5. Transferee must pay value for the note, meaning some amount that is more than nominal.

Question 85

Real Property: Mortgages What are the rights of the parties (debtor/mortgagor and creditor/mortgagee) once a mortgage has been created?

Answer 85

Mortgagor: Title and right to possess (unless/until foreclosure) Mortagee: Lien

Question 87

Real Property: Landlord/Tenant Law What is T’s liability to 3rd parties?

Answer 87

T is responsible for keeping the premises in good repair (tort based) T is liable for injuries sustained by 3rd parties T invited, even where L promised to make repairs

Question 88

Real Property: Eminent Domain

Answer 88

Government’s 5th Amendment power to take private property for public use in exchange for just compensation Explicit Takings - Taking your land to build a highway Implicit or regulatory takings - a governmental regulation that although not intended to be a taking, has the same effect —Remedy fore regulatory taking is to compensate owner or terminate the regulation and pay owner for damages that occurred while it was in effect

Question 89

Real Property: Servitudes What is an easement appurtenant?

Answer 89

An easement that benefits its holder in his physical use or enjoyment of his property. Need TWO parcels for this.

Question 90

Real Property: Concurrent Estates What is a tenancy by the entirety?

Answer 90

Recognized in 21 states incl. MD. Created between married partners w/ right of survivorship. Protected form of co-ownership: Creditors of 1 spouse can’t touch this tenancy and neither tentant acting alone can unilaterally transfer to a 3rd party

Question 92

Real Property: The Recording System What are the two bright line rules to remember about recording systems?

Answer 92

1. If B is a BONA FIDE PURCHASER, and we are in a notice jurisdiction, B wins, regardless of whether or not she records before A does. 2. If B is a BFP and we are in a race-notice jurisdiction, B wins if she records properly before A does.

Question 93

Real Property: Servitudes What are the elements of adverse possession for purposes of a prescription for an affirmative easement?

Answer 93

“COAH” C ontinuous use for statutory period O pen and notorious A ctual use H ostility (w/out servient owner’s consent- permission defeats this!)

Question 94

Real Property: Foreclosure What if the proceeds from the sale of Blackacre are less than the amount owed?

Answer 94

Mortgagee brings a deficiency action against debtor

Question 96

Real Property: Landlord/Tenant Law Implied covenant of quiet enjoyment?

Answer 96

Applies to both residential and commercial leases T has a right to quiet use and enjoyment of the premises without interference from L 1) Breach by actual wrongful eviction: This occurs when L wrongfully evicts T or excludes T from the premises 2) BREACH BY CONSTRUCTIVE TRUST: SING SUBSTANTIAL INTERFERENCE - Due to L’s actions or failures chronic or persistent problems exist NOTICE - T must tell L of the problems and L must fail to act meaningfully GET OUT - T must vacate within a reasonable time after L fails to fix the problem 3) Generally landlord is not liable for acts of other tenants - Exceptions: a) L must not permit a nuisance on site b) L must control common areas

Question 97

Real Property: Extras What is Lateral Support?

Answer 97

If land is improved by buildings and an adjacent landowner’s excavation causes that improved land to cave in, the excavator will be liable if negligent Strict liability attaches if plaintiff can show that plaintiff’s improved land did not contribute to the collapse

Question 98

Real Property: Future Interests How has the Rule Against Perpetuities been reformed?

Answer 98

1. “Wait and see” or “second look” doctrine - Majority reform effort, the validity of any suspect future interest is determined on the basis of the facts as they now exist, at the end of the measuring life. 2. Uniform Statutory Rule Against Perpetuities - Codifies the common law RAP and provides an alternative 90 yr vesting period BOTH embrace the cy pres doctrine- “as near as possible” to the grantor’s intent while complying with the RAP. AND reduction of any offensive age contingency to 21 years.

Question 99

Real Property: Landlord/Tenant Law What is Retaliatory Eviction?

Answer 99

If T lawfully reports L for housing code violations, L is barred from penalizing T, by example, raising rent or ending the lease or harassing T

Question 100

Real Property: Landlord/Tenant Law What is T’s duty to repair?

Answer 100

1. T’s duty to repair when the lease is silent —-T must maintain the premises and make ordinary repairs (In residential MD the lease must state each party’s duties as to repair) —-T must not commit waste (voluntary, permissive, ameliorative) LOOK OUT FOR LAW ON FIXTURES REGARDING WASTE 2. T’s duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease: CL — T was liable for any loss to the property including loss due to force of nature Today – T is off the hook when the premises are destroying without T’s fault

Question 101

Real Property: Foreclosure Which proceeds are taken off the top in a foreclosure sale?

Answer 101

Attorney’s fees, foreclosure expenses and any interest on the First Bank’s lien

Question 102

Real Property: The Recording System What is a wild deed?

Answer 102

A recorded deed which is not connected to the chain of title because of a failure to record properly before the present conveyance. A wild deed is unable to give notice of its existence- owner of wild deed usually suffers the consequence.

Question 103

Real Property: Servitudes What is an affirmative easement vs. a negative easement?

Answer 103

Affirmative: The right to do something on servient land. Negative: Entitles holder to prevent the servient landowner from doing something that would otherwise be permissible.

Question 104

Real Property: Mortgages What is an equitable mortgage?

Answer 104

A deed that is absolute on its face.

Question 105

Real Property: Landlord/Tenant Law 2 scenarios for when T’s duty to pay rent is an issue?

Answer 105

1. T breaches this and is in possession of the premises: –The landlord’s only options are to evict through the courts or continue the relationship and sue rent due. —If the landlord evicts, she is nonetheless entitled to rent from the tenant until the tenant, who is now a tenant at sufferance, vacates LANDLORD MAY NOT ENGAGE IN SELF-HELP 2. T breaches this duty but is out of possession - SIR -SURRENDER- L could choose to treat T’s abandonment as an offer of surrender that L accepts - Surrender is when T shows by words or actions that she wants to give up on the lease - If term is longer than 1 year then must satisfy the SoF -IGNORE the abandonment and hold T responsible for the unpaid rent, just as if T were still there ————-not available in most states -RE-LET the premises on the wrongdoer tenant’s behalf, and hold him or her liable for any deficiency —-Majority rule is that L must at least TRY to re-let in order to mitigate damages —-MD agrees with the majority rule except for commercial leases

Question 106

Real Property: Mortgages Although a holder in due course may foreclose on a mortgage regardless of any “personal defenses” the mortgagor may raise, the HIDC is still subject to any “real defenses” the mortgagor may raise. What are “real defenses?”

Answer 106

“MAD FIFIIII” M aterial A lteration D uress FIF: Fraud in Factum (lie about the instrument) I ncapacity I llegality I nfancy I nsolvency

Question 107

Real Property: Landlord/Tenant Law Tenancy for Years (Term of Years) 1. What is it? 2. Things to look for 3. SoF?

Answer 107

1. A lease for a fixed period - perhaps as short as 2 days or as long as 50 years 2. When you know the termination date from the state, you have a term of years, therefore no notice is needed to terminate 3. If a term of years is greater than one year it must be writing

Question 108

Real Property: Servitudes What is an implied equitable servitude?

Answer 108

Under the common scheme doctrine, the ct. will imply a reciprocal negative servitude to hold an unrestricted holder to a restrictive covenant. 2 elements to general or common scheme doctrine: 1. When sales began there was a general scheme of residential development, which included the lot in question 2. The lot holder in question had notice of the covenant in the prior deeds. 3 forms of notice potentially imputed to defendant. Remember AIR: - Actual notice: literal knowledge of promises in prior deeds - Inquiry notice: the neighborhood conforms to common restriction - Record notice: the form of notice sometimes imputed to buyers on the basis of publicly recorded docs. —- Some state, incl MD say subsequent buyer is on record notice of contents of prior deeds transferred to others by common grantor. Other states say subsequent buyer is not on record notice.

Question 109

Real Property: Future Interests What is an executory interest?

Answer 109

A future interest created in a transferee (3rd party) which takes effect by either cutting short some interest in another person (“shifting”) or in the grantor/his heirs (“springing”)

Question 110

Real Property: Foreclosure 1. What is the effect of foreclosure on various interest? 2. How would you classify the interests or parties

Answer 110

1. Foreclosure will terminate interests junior to the mortgage being foreclosed but will not affect senior interests 2. Those with interests subordinate to those of the foreclosing party are necessary parties for the foreclosure action - debtor-mortgagor is also considered a necessary party —Failure to include a necessary party results in the preservation of that party’s claim, despite the foreclosure and sale —Thus if a necessary party is not joined, his mortgage remains on the land

Question 111

Real Property: Future Interests What does the Rule Against Perpetuities NOT apply to (3)?

Answer 111

1. Any future interest in O the grantor 2. Indefeasibly vested remainders 3. Vested remainders subject to complete defeasance

Question 112

Real Property: Present Estates Life Estate 1. Creation 2. Distinguishing characteristics 3. Future Interests?

Answer 112

1. O to A for life: A has a life estate and O has a reversion Life estate pur autre vie - a life estate measure by a life other than the grantees 2. Life tenent’s entitlements are rooted in the important doctrine of waste —-Life tenant is entitled to all ordinary uses and profits from the land —Life tenant must not commit waste 3. If held by O it is a reversion; if held by a third party it is a remainder

Question 113

Real Property: Future Interests What is the difference between vested and contingent remainders?

Answer 113

Vested Remainders: Created in an ascertained (known) person AND is not subject to any condition precedent Contingent Remainders: Created in an unascertained (as yet unknown or unborn) person OR is subject to a condition precedent, or both.

Question 114

Real Property: Present Estates What is permissive waste?

Answer 114

Life tenant allows the land to fall into disrepair Life tenant must simply maintain the premises in reasonably good repair. –Life tenant is obligated to pay all ordinary taxes on the land, to the extent of income or profits from the land, or if no income or profits, then all ordinary taxes to the extent of the premises fair rental value

Question 115

Real Property: Mortgages Mortgage Vocabulary

Answer 115

Debtor: Mortgagor Creditor: Mortgagee