Real Property

Question 1

Implied Easement

Answer 1

Easement Implied by operation of law rather than written document (Quasi Easement). Exception to Statute of Frauds.

i. Easement implied from Existing Use - intended easement based on use that existed when dominant and servient estates were severed, intended to continue
- 1. Apparent and continuous at the time the tract is divided.
2. & Reasonably necessary for enjoyment of dominant part depending on cost and difficulty of alternatives

ii. Easement implied from a recorded subdivision
or iii. easement by necessity (owner sells part of his land and it lacks access to public road)

Question 2

easement appurtenant

Answer 2

right of special use benefits easement holder in her physical use or enjoyment of another tract of land (servient and dominant tenenment);

Benefit passes regardless of whether easement is mentioned in conveyance; Recording is not essential either - notice for burdened party;

Question 3

equitable servitude

Answer 3

a convenant that regardless of whether it runs with the land at LAW or not, Equity will enforce against the assignees of the burdened land who have Notice of the covenant

Benefit runs to successors if:

1. parties so intend (COMMON PLAN/SCHEME)
2. servitude touches and concerns land

Burden runs to successors if 1, 2 and
3. subsequent purchaser has actual or constructive Notice of covenant

-if violation of ES occurs, and P does not complain. He may be deemed to acquiesce and abandon the ES for future violators.

Question 4

horizontal privity

Answer 4

at the time they entered into covenant, they shared an interest in land independent of the covenant (grantor/ee)

Question 5

vertical privity

Answer 5

requires that the successor in interest to the covenanting party hold the entire durational interest held by the covenantor at the time he made the covenant.

Question 6

doctrine of worthier title

Answer 6

invalidates remainders that are limited to the grantor’s heirs.

Question 7

Holdover - Tenant fails to vacate after termination: landlord may

Answer 7

1. treat hold over tenant as trespasser and evict

2. bind tenant to new periodic tenancy. old terms apply to new tenancy. if commercial (+1 yr) will become 1 year lease

Question 8

equitable mortgage

Answer 8

give lender absolute deed, rather than acquiring mortgage; court concludes deed is for security purposes really and will require foreclosure sale in case of default.
Factors: 1.existence of a debt or promise of payment by deed, 2. grantee’s promise to return land if debt is paid, 3. fact that the amount was lower than value of property 4. degree of grantor’s financial distress, 5. parties’ prior negotiations

Question 9

delivery of deed =

Answer 9

words or conduct evidencing grantor’s intention that deed have some present operative effect
1) handed to grantee
or 2. acknowledged by grantor before a notary and recorded.

MUST ACCEPT, if rejected deed is not delivered or transferred.

Question 10

valid deed requires consideration. T/F

Answer 10

false

Question 11

A forfeiture restraint

Answer 11

provides that if the grantee attempts to transfer the property, it is surrendered to another person. A conveyance from “O to A, but if A attempts to transfer the land or any interest therein during her lifetime, to B” contains a forfeiture restraint. Reasonable (i.e., limited in time and purpose) forfeiture restraints on legal interests generally are valid.

Question 12

A disabling restraint

Answer 12

provides that any attempted transfer of the property is ineffective. A conveyance from “O to A, and neither A nor her heirs shall have the right to transfer the land or any interest therein” contains a disabling restraint. Disabling restraints on any legal interest are void.

Question 13

A promissory restraint

Answer 13

provides that the grantee covenants not to transfer the property. A conveyance from “O to A, and A hereby covenants not to transfer the land or any interest therein without O’s consent” contains a promissory restraint. Reasonable promissory restraints on legal interests generally are valid.

Question 14

Land sale not in writing?

Answer 14

Court may award the buyer specific performance in equity if the buyer has performed 2 of the 3 following acts:

1. Taken possession of the land;
2. Made substantial improvements to the land, and/or
3. Paid all or part of the purchase price.

Question 15

Land Sale - time is of the essence

Answer 15

closing date is absolutely binding in equity), a party who fails to tender performance on the closing date is in total breach and loses her right to enforce the contract.

Question 16

seller’s liability for defects in the improvements to real property may be based on the seller’s

Answer 16

(i) misrepresentation, (ii) active concealment, or (iii) failure to disclose serious defects known to her and which the buyer is not likely to discover.

Question 17

doctrine of equitable conversion

Answer 17

the buyer of land is considered to own (i.e., hold equitable title to) the real property once the contract is signed. (in relation to risk of loss, or death of seller, NOT breach of closing date K)

Question 18

Essay Approach Real Property

Answer 18

1. Classify and Validate Interest (ownership, non possessory)
2. State characteristics of Interest
3. State Limitations to the Interest
4. Any Conveyancing Issues?
5. Remedies

Question 19

Lease defn

Answer 19

An estate in land in which tenant has present possessory interest and landlord has future interest.

Question 20

Tenancy for years

Answer 20

continues for fixed period of time (anywhere from 2 days); usually written if +1 year; ends automatically at end of period;
LL reserves right of entry if tenant breach (surrender of +1 yr must be in writing)

Question 21

Tenant Duties

Answer 21

Pay Rent; to Repair (waste); Not to use for illegal purpose;

Question 22

LL duties

Answer 22

Deliver possession of premises, quiet enjoyment, implied warranty of habitability; Tort duty to make certain areas safe;

Question 23

periodic tenancy

Answer 23

continues for successive periods until terminated by proper notice on either party; can be made by express agmt, implication, or operation of law

TO TERMINATE - if monthly lease, must give 30 days notice (full period in advance) ;
if yearly lease, must give six months

Question 24

tenancy at will

Answer 24

terminable at will of either party, non assignable/sublettable;
in absence of agmt to create at will Ten, monthly rent payments will lead to periodic tenancy.

Question 25

Assignment

Answer 25

Transfer entire estate; steps into shoes of original lessee and has privity of estate with lessor as long as she is in possession and has same defenses as original lessee; Absent any express restrictions in a lease, a lessee may freely transfer;
Orig lessee keeps privity of K

Question 26

Sublease

Answer 26

transfer of lesser estate; Absent any express restrictions in a lease, a lessee may freely transfer;

Unless expressly assumed, NOT personally LIABLE for to LANDLORD for rents/covenants bc no privity of contract or full estate, (VS an Assignee IS LIABLE)

Question 27

Implied Warranty of Habitability

Answer 27

Reasonably suitable for human residence and cannot be waived.

Remedy for breach: MRRR
1. Lessee may move out and terminate lease; 2. make repairs and offset cost against future rent;
3. abate the rent in sum equal to
fair rental value in view of defects;
4. or remain in full possession, pay full
rent, and sue for damages.

Question 28

Implied Covenant of Quiet Use and Enjoyment

Answer 28

lessor/title holder will not interfere with lessee’s quiet use/enjoyment of premises. Breached by:
1. actual (entire premises), 2. partial, or 3.constructive eviction.

Question 29

Constructive Eviction:

Answer 29

Occurs when landlord does something, or fails to do something, that renders property uninhabitable/unusable;
Lessee must vacate within reasonable time, may terminate lease and seek damages.

Question 30

Tenancy at Sufferance

Answer 30

Tenant wrongfully holds over after termination of tenancy; terminates when LL evicts or elects to hold tenant to new term

Question 31

CL Property Breach of Covenant

Answer 31

all duties were independent and a breach by one party would not suspend the duty of the other party

Question 32

MODERN Property Breach of Covenant

Answer 32

covenants deemed dependent, such that one party’s breach of a duty suspends the other party’s duty under the corresponding covenant

Question 33

life tenant is obligated to

Answer 33

pay all ordinary taxes on land to extent of income or profits from land

Question 34

Fee Simple Determinable expires when

Answer 34

condition occurs automatically

Question 35

Fee Simple subj to Condition subsequent expires when

Answer 35

when condition is violated and person exercises right of entry

Question 36

RAP does NOT apply to

Answer 36

Rights in Grantor; Charity to Charity, most vested remainders, Options and Rights of First Refusal when connected to LEASEHOLDS

Question 37

RAP DOES apply to

Answer 37

contingent remainder, vested remainder subject to open, executory interests…

CcOPER
Contingent remainders / class gifts(Vested remainders subject to Open)
Options to purchase 
Power of appointment 
Executory interests 
Right of first refusal

Question 38

Defeasible Fee

Answer 38

Fee simple that is of potentially infinite duration, but which may terminate on happening of a specified event
(Fee simple owner (even if subj to divestment) can do whatever he wants on land unlike life estate holder who is subject to concerns of future interests)

Question 39

Right of Redemption

Answer 39

Statutory power to redeem property AFTER foreclosure sale has occurred. 1/2 the states give borrower STATUTORY right to redeem for some fixed period AFTER sale has occurred -generally at sale price, not debt.

All states Provide borrower w/ equitable right, to redeem land PRIOR to sale by paying off amount due, or if acceleration applies the whole amount.

Question 40

Marketable title

Answer 40

implied promise by seller to deliver to buyer marketable title at time of closing. title free from reasonable doubt; free from questions that might present unreasonable risk of litigation.

Marketable = if reasonably prudent buyer would accept it in exercise of ordinary prudence.

if not marketable prior to closing, buyer must give seller reasonable time to cure. If seller is unable to cure BY CLOSING buyer can rescind, sue for damages caused by breach, or obtain specific performance w/ abatement of purchase price. BUT BUYER CANNOT PULL OUT EARLY!!! Only at Time of Delivery

Unmarketable IF

1. title rests on Adverse Possession (need to quiet title
2. Encumbrances (ES, Easements, Mortgates) Unless easement BENEFICIAL and KNOWN; (only Significant encroachments that could interfere w/ enjoyment)
3. Zoning Violations

Question 41

Joint Tenancy

Answer 41

T-TIP

Lien on 1 Tenant’s prop stays with land, but expires once JT takes w/ right of survivorship. Debt goes to estate.

Question 42

Modification of Mortgate

Answer 42

orig deal is still SENIOR, but modification will be junior to loans made after orig and before modification….so mod must be joined or stays alive

Question 43

General Warranty Deed

Answer 43

@ Delivery:

1. Seisin (Grantor owns land)
2. Right to convey (power to sell)
3. No encumbrances (no visible or invisible servitudes/liens/mort/easements)

Future, disturbed in possession - Continuous

4. Quiet Enjoyment (only claim to land)
5. Warranty (defend against TP lawful or reasonable claimants, compensate grantee for any loss sustained)
6. Further Assurances (do what is reasonably necessary to perfect title if turns out to be imperfect)

Question 44

Profit

Answer 44

like an easement, profit is a non-possessory interest in land Entitles holder to enter servient tenement and take soil or substance of soil.

• Has value apart from land itself and is alienable.
• may be in gross or appurtenant

-if appurtenant, can ONLY be transferred w/ the dominant estate
vs
-if in gross, may be transferred separate and apart from dominant estate

Question 45

license

Answer 45

revocable, unless coupled with an interest.

Question 46

share and share alike

Answer 46

equal shares

Question 47

share undivided interest

Answer 47

share 1/2 interest as to the ENTIRE tract; NOT 1/2 each separately. (Tenants in common or JT)

Question 48

undue influence

Answer 48

K voidable if executed by minor or incapacitated person or obtained through fraud in the inducement, duress, undue influence, mistake or breach of fid duty.

Undue influence exists where
1. influence is exerted on grantor
2. effect of influence is to overpower mind and free will of the grantor
and 3. product of influence is a deed that would not have been executed for the influence

Question 49

title by adverse possession

Answer 49

possessor must show
1. actual entry giving exclusive possession that is
2. open and notorious
3. adverse/hostile
and 4. Continuous for whole statutory period.

Question 50

easement and running w/ land

Answer 50

if servient parcel is transferred, its new owner takes it subject to the burden of the easement, UNLESS she is a bona fide purchase with NO notice of the easement. (AIR)