Real Property Cards

Question 1

Deed Requirements

Answer 1

To be valid, a deed conveying real property must (1) be in writing, (2) be signed by the grantor, (3) identify the land to be transferred, (4) identify the grantee, (5) contain language of the grantors present interest to transfer, and (6) be delivered to and accepted by the grantee.

Question 2

Adverse Possession

Answer 2

An individual may acquire ownership of land through AP if 1) their possession of the land is exclusive, 2) their possession is continuous for the statuary period, 3) their possession is hostile under a claim of right, and 4) their possession is open and notorious. The AP must be for the statutory period, if none is presented, it is presumed to be 7-10 years.

Question 3

Joint Tenancy

Answer 3

Is a form of ownership of property. To create a joint tenancy, the tenants must have the unities of possession, interest, time, and title. The deed conveying the property must also state that it is with the right of survivorship. Unity of possession exists when all joint tenants have an equal right to possess the land.

Question 4

Joint Tenancy: Unity of Interest

Answer 4

Means that all joint tenants have the same interest in the land.

Question 5

Joint Tenancy: Unity of Time (and Title)

Answer 5

Requires that the joint tenants’ interests must have been created at the same time and in the same conveyance.

Question 6

Ouster

Answer 6

Tenants may commit ouster when they take possession of the entire property that was once in common ownership with an intent to oust the other tenants. Ouster requires notice to the ousted tenants, whether that be constructive or actual notice, and intent to oust the other parties, and the taking of full possession of the property. Once ousted, the ousted parties may seek partition, while losing their right to possession of the property.

Question 7

Joint Tenancy Severance

Answer 7

A joint tenancy is severed as to a joint tenant whenever that joint tenant conveys his interests to a third party. At that point, the third party becomes a tenant in common.

Question 8

Tenant in Common

Answer 8

A joint tenancy is terminated and replaced by a tenancy in common upon the severance of the joint=tenancy arrangement, such as by the conveyance of a joint tenants possession to another. A tenancy in common exists when multiple parties hold equal interests to a property and have the right to possession of the entire property. The interests can be freely transferred.

Question 9

Self-conveyance of Deed

Answer 9

Some jurisdictions allow for an individual to convey land to themself via a deed. This would allow for joint tenant to become a tenant in common by self-conveyance.

Question 10

AP: Exclusive

Answer 10

To be exclusive, the possession cannot be shared with the rightful owner.

Question 11

AP: Continuous

Answer 11

“Adversely” lives on the area for the statutory period.

Question 12

AP: Hostile

Answer 12

To be hostile, the possession must be made under a claim of right or showing that they had used the land for their own interest.

Question 13

AP: Open and Notorious

Answer 13

During the time frame of “adversely” possessing the land, the AP’er does not hide the fact they are living/using the property and a reasonable owner of the property would frequently check on the land to make sure no one is using it for their own gain.

Question 14

AP: Tacking

Answer 14

A court adds the time of possession of the original AP’er to a descendent that is also attempting to AP the same property to meet the statutory period.

Question 15

Joint Tenant Taxes and Fees on Land

Answer 15

Joint tenants are all responsible for payment of taxes and entitled to the profits on the land they jointly hold. Tenants will not be reimbursed for improvements made to the property, though they may recover the increase in value from those improvement if the property is sold.

Question 16

Tenancy in Common Taxes and Fees on Land

Answer 16

A tenant in common is entitled to possession of the premises. However, a tenant in sole possession of the land is required to pay taxes on the land to the extend that the land produces income. Tenants will not be reimbursed for improvements made to the property, though they may recover the increase in value from those improvement if the property is sold.

Question 17

Partition in Kind

Answer 17

An action for a physical division of the property, if in the best interests of all parties.

Question 18

Partition by Forced Sale

Answer 18

An action when, in the best interests of all parties, the land is sold and the sale proceeds are divided up proportionally.

Question 19

Landlord Duty of Possession

Answer 19

In general, landlords owe tenants a duty to deliver possession. Following the modern rule, a landlord must deliver actual, physical possession of the property. Meaning, evicting holdover tenants to allow for the new tenant to take possession.

Question 19

Landlord Duty to Repair

Answer 19

Landlords in residential leases generally have a duty to make repairs. Even if a lease places this duty on the tenant, courts will still find that it rests with the landlord. Landlords are permitted to engage professionals to make repairs, but there is no obligation for the landlord to do it themselves.

Question 19

Covenant of Quiet Enjoyment

Answer 19

Landlords also generally are required to comply with the covenant of quiet enjoyment. This doctrine requires that landlords not interfere, or permit others to interfere, with one’s right to use, possess and enjoy their possessory interest. A tenant that has suffered a breach of this covenant must give notice to the landlord to take remedial action. Failing any remedial action, the tenant is permitted to give notice of her constructive eviction and cease paying rent.

Question 19

Implied Warranty of Habitability

Answer 19

Residential leases only are subject to an implied warranty of habitability. This requires that the landlord deliver the property in a condition fit for ordinary residential use. A tenant must give notice to the landlord if a breach has occurred, and they may either refuse rent during the period of breach, make repairs and deduct the costs from their rent, or vacate the premises until remedied.

Question 19

Affirmative Waste

Answer 19

When a tenant intentionally destroys or reduces the value of the property

Question 20

Permissive Waste

Answer 20

When a tenant’s negligence causes damage or otherwise reduces value of property

Question 21

Ameliorative Waste

Answer 21

When a tenant alters the property, even in an economically valuable way, without landlords permission

Question 22

Tenant Duties

Answer 22

A tenant has a duty to pay rent and not commit waste. There are three kinds of waste: Affirmative, Permissive, and Ameliorative.

Question 23

Tenancy for Years

Answer 23

Also known as an estate for years. Is for a fixed, determined period of time. Continued tenancy following the termination of the lease can give rise to a periodic tenancy or a holdover tenancy.

Question 24

Periodic Tenancy

Answer 24

Is a lease which continues for successive intervals (eg, month to month) until either the landlord or the tenant gives proper notice of termination.

Question 25

Tenancy at Will

Answer 25

This is a tenancy of no fixed period of duration. It is terminable at the will of either the landlord or the tenant.

Question 26

Tenancy at Sufferance

Answer 26

Is created when a tenant wrongfully holds over, meaning they remain in possession past the expiration of the lease.

Question 27

Termination of Lease

Answer 27

Generally, a lease terminates through an action for eviction or by mutual agreement by parties.

Question 28

Tenancy Damages

Answer 28

A tenant/landlord may seek damages from the opposing party when there has been breaches to the duties owed by either side. A tenant may seek damages when they have been constructively evicted by the landlord, when there has been a breach of quiet enjoyment, and a breach of warranty. A landlord may be entitled to damages for unpaid rent if the tenant improperly or fails to raise a breach.

Question 29

Constructive Eviction

Answer 29

Occurs when the landlord's breach of duty renders the premises unsuitable for occupancy, whether it is through a hazard or a holdover tenant. There must be a showing of some substantial interference and notice of it.

Question 30

Surrendering Lease

Answer 30

When a tenant breaks a lease and surrenders, it generally must be in writing if the lease term was over 1 year. When a tenant surrenders the lease, and the landlord accepts, the landlord owes a duty to mitigate losses.

Question 31

Private Nuisance

Answer 31

Is any substantial and unreasonable interference with the use and enjoyment of property

Question 31

Private Nuisance: Substantial

Answer 31

An interference is substantial if it would be offensive or annoying to an average member of the community. This is an objective standard, there is no requirement that the plaintiff actually be annoyed nor is there any special allowance if they are actually annoyed or offended.

Question 31

Private Nuisance: Unreasonable

Answer 31

The activity causing the nuisance must be unreasonable. This is a balancing test. If the utility of the activity outweighs its interference with the plaintiff's property rights, it is reasonable. Otherwise, it is unreasonable.

Question 31

Private Nuisance: Interference

Answer 31

The activity must actually interfere with the use of land. Generally, this has been expressed as requiring that the activity have a trespass component.

Question 31

Private Nuisance: Use and Enjoyment of Property

Answer 31

The substantial and unreasonable interference must directly interfere with the use of private property. Interfering with public spaces does not create a private nuisance.

Question 31

Remedy for Private Nuisance

Answer 31

Generally, the remedy for a private nuisance is an injunction. If the activity is essential to a community's economic health or otherwise of exceptional utility, money damages may be awarded instead.

Question 31

Public Nuisance

Answer 31

Is any activity that interferes with the health or safety of the public at large.

Question 32

Public Nuisance: Standing

Answer 32

Public Nuisance has strict standing requirements. In order to collect under public nuisance, a private individual must demonstrate that they have suffered a harm that is different in kind than the general public. A harm different in degree is insufficient.

Question 33

Public Nuisance: Statute of Limitations

Answer 33

Serves as an absolute bar to legal action. For most causes of action, the statute of limitations is one year from the time the cause of action arises. However, continuous actions can be recovered for any violation within the previous year.

Question 34

Trespass

Answer 34

AA trespass is any physical occupation of real property without permission

Question 35

Trespass: Intent

Answer 35

A trespass only occurs if the trespasser actually intended to occupy the land. The trespasser's knowledge about the ownership of the land is irrelevant. A mistaken belief that they had the right to enter the land is not a defense.

Question 36

Trespass: Physical Presence

Answer 36

The trespasser must be physically present on the property.

Question 37

Trespass: Without Permission

Answer 37

The property owner must not have consented to the trespass, impliedly or expressly.

Question 38

Trespass: Damages

Answer 38

There is no requirement of actual harm. Nominal damages are recoverable.

Question 39

Defense: Private Necessity

Answer 39

Exists when exigent circumstances cause the trespass. Allows the avoidance of nominal damages and ejectment.

Question 40

Private Necessity Limitations

Answer 40

Involves a balancing of the risk of not trespassing and harm inflicted by trespassing. The trespasser has the ultimate decision on the balance of these factors. As such, the trespasser is traditionally held responsible for any actual damages that occur as a result of the trespass.

Question 41

Defense: Public Necessity

Answer 41

Exists when the trespass is necessary to prevent harm to the public at large. Unlike private necessity, the landowner cannot collect actual damages from public necessity.

Question 42

Easement by Prescription (EbP)

Answer 42

Functions similarly to adverse possession of a property, but only for a limited use. In order to establish that there is an easement by prescription, the seeker of the easement must demonstrate 1) continuous use of the subservient estate, 2) for a statutory period, 3) that was open and notorious, and 4) hostile. Unlike in AP, there is no requirement that the easement holder have had exclusive use over the property, since the easement does not eliminate the property owners rights entirely.

Question 43

Easement

Answer 43

Grant the dominant estate the right to use the subservient estate for limited purpose. Can be in writing or implied, which has no writing requirement.

Question 44

EbP: Continuous Use

Answer 44

The use must have been continuous throughout the statutory period. It need not have been constant, but must have been reliable enough for the scope of the easement sought.

Question 45

EbP: Statutory Period

Answer 45

The use must have lasted for the statutory period stated by the fact pattern. If no period is mentioned, it is presumed around 7-10 years.

Question 46

EbP: Open and Notorious

Answer 46

The use must have been such that an observant landowner would be aware of it. In essence, the landowner must have been put on inquiry notice of the use.

Question 47

EbP: Hostile

Answer 47

The use must have been without the permission of the landowner. Otherwise, there is a freely revocable license.

Question 48

Government Taking "Eminent Domain"

Answer 48

Government entities have the right to "take" property, providing that "just compensation" is provided. In order to take, the government must merely show that the taking is rationally related to a legitimate government interest.

Question 49

Eminent Domain: Legal Taking

Answer 49

A taking must be rationall

Question 50

Eminent Domain: Relocation Costs

Answer 50

A government may be liable for losses resulting from reliance on the assumption that there would be no taking. However, the government is not responsible for other costs, such as the cost of finding a replacement property.

Question 51

Express Easement

Answer 51

An express easement by deed must meet the deed formalities to be valid, including a valid writing, and other statute of fraud requirements . Moreover, easements are deemed to be perpetual in nature unless otherwise indicated.

Question 52

Easement Scope

Answer 52

An easement must usually be used reasonably within the scope of the granting instrument if an express easement. This typically allows the holder of the easement to improve the land where the easement lies and to enter on to it to repair it.

Question 53

Easement Termination

Answer 53

Termination of an easement may occur where the easement is abandoned, where the granting instrument states a specific condition to occur, or where the properties that the easement lies on and the adjacent property holder are merged. Typically easements are perpetual in nature unless stated otherwise.

Question 54

Transfer of Land with Easement

Answer 54

Generally when land that is burdened by the easement, the servient estate, transfers title the easement runs with the land. However, a bona-fide purchaser (unknowing new purchaser) that had no knowledge of the easement upon purchase generally terminates the easement.

Question 55

Recording Act

Answer 55

Under the common law, title in land was measured by first in time, first in right. However, under the modern law, people who record their interest in land can preserve their title by putting the world on notice of that interest in land. There are three kinds of notice: race, race-notice, and notice.

Question 56

Race State

Answer 56

Notice of a prior conveyance by the grantor doesn't matter. The first party to record wins. A very small amounts of jurisdictions follow this notice method.

Question 57

Notice Statute

Answer 57

A subsequent purchaser who had no notice of a prior conveyance by the grantor will prevail over a prior grantee who failed to record.

Question 58

Race-Notice Statute

Answer 58

To be protected under a race-notice statute, the subsequent purchaser must not have any notice of the prior grant and must record first.

Question 59

Subsequent Bona Fide Purchaser

Answer 59

In order to actually argue that one did not have notice to the easement, they must be a SBP. Typically, a SBP is someone who took title to land subsequently to the current holder of the land and they did so for value.

Question 60

Shelter Rule

Answer 60

Anyone who takes from a BFP will prevail against any interest the BFP would have prevailed against.

Question 61

Land Sale contract- Marketable Title

Answer 61

A contract for the sale of land is required to be in a valid writing satisfying the statute of frauds. Generally, in every contract for the sale of land there is the doctrine of marketable title which ensures that there would be no encumbrances brought with the purchase of the land.

Question 62

Merger

Answer 62

Under the merger doctrine, the contract is said to merge into the deed and the buyer may not use the contract to recover for defects on the property.

Question 63

Types of Deeds

Answer 63

There are three kinds of deeds: general warranty deeds, special warranty deeds, and quitclaim deeds. Quitclaim deeds do not provide any relief under a covenant. General warranty deeds provide relief under several different kinds of covenants.

Question 64

Covenant against Encumbrances

Answer 64

States that at closing there will be no encumbrances on property. This is breached immediately at closing and is considered a present covenant on the property.

Question 65

Remedies

Answer 65

Typically the remedy for a defect in the title to land is the difference of the value of the land with the easement on it and the value of the land without the easement on it.

Question 66

Fee Simple Determinable

Answer 66

Is a fee simple interest that may be cut short by a subsequent event. When a fee simple defeasible contains terms of duration it is a fee simple determinable. It will be a fee simple until an event occurs inscribed in the conveyance, in which it will revert back to the original owner.

Question 67

Possibility of Reverter

Answer 67

The grantor of a fee simple determinable interest retains a possibility of reverter. Meaning, the fee simple automatically reverts to the grantor at the time the designated even occurs.

Question 68

Restraint on Alienation

Answer 68

A possibility of reverter may not be valid if it brought an undue restraint on alienation. Generally, courts do not allow conveyances that absolutely prohibit future transfer of the property. Restraints may be allowed if it is for a reasonable time period, but generally, absolute retraints are invalid. If a reverter is considered invalid, any language indicating such restraint will be struck from the instrument and only the resulting interest remains.

Question 69

Zoning Ordinances

Answer 69

Are an effective way for states and localities to regulate the land use of their jurisdiction. However, a person who seeks to violate a zoning ordinance may seek a variance that will be granted or denied in the form of a permit.

Question 70

Restrictive Covenants

Answer 70

Is a promise to refrain from doing something related to the land.

Question 70

Nonconforming Use

Answer 70

Uses that are in effect prior to an ordinance change are allowed to continue unless they cause harm to residents or adjoining property. This usually is allowed through "grandfathering" since the older use was in effect prior to the new ordinance.

Question 70

Deed of Trust

Answer 70

Is an arrangement where a third party holds a deed in a trust to stand as collateral for a debt owed. With a deed of trust, if the debtor fails to make payments and ends up in default on the loan, the party that made the loan can foreclose and execute a private sale of property.

Question 70

Mortgage

Answer 70

Is an arrangement where a party who has or is buying property gets a loan and has the property itself stand as security for the debt. If a debtor fails to make the loan payments and ends up in default, then the holder of the mortgage may initiate public foreclosure proceedings against the property.

Question 70

Priority of Creditor Interest

Answer 70

Upon a foreclosure sale, how proceeds from the sale are distributed is determined by the priority of the creditors interest. Priority is determined by 1) whether or not the loan was a purchase money security interest and 2) when the interest or mortgage was recorded. All purchase money security interests have priority over other creditor interests executed at the time.

Question 70

Order of Payment

Answer 70

Foreclosure proceeds are not distributed in proportion. When a foreclosure is executed, the priority of payment is 1) all fees are paid for the foreclosure, 2) senior creditor interests are paid first and in order to the junior interests, and 3) anything left over is given the debtor, or owner of the property.

Question 71

Fee Simple Subject to Condition Subsequent

Answer 71

Is an ownership interest in land whereby the present possessor owns the land until a specified condition occurs, whereby the grantor then has the option of exercising his right of reentry and re-taking possession of the land. There must be express conditional language in the conveyance and reserves a right of reentry using words like "but if" and "the grantor shall have the right to re-enter"

Question 72

Assignment

Answer 72

Occurs when a person who is in rightful possession of property transfers all of their rights to another. Is presumed valid, unless there is a no-assignment provision in the lease which is valid and has not been waived. The original assigning party remains in privity of contract, the new assignor is in privity of estate.

Question 73

Equitable Servitude

Answer 73

Is a promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is a bona fide purchaser. For an equitable servitude to be binding, must include: Writing, Intent, Touch and Concern, and Notice

Question 74

ES: Writing

Answer 74

Generally, but not always, the original promise was in writing

Question 75

ES: Intent

Answer 75

The original parties intended that the promise would be enforceable by and against successors.

Question 76

ES: Touch and Concern

Answer 76

The promise affects the parties as landowners.