Real Property MBE

Question 1

Present Estate

Answer 1

an estate is freehold if immobile and for indeterminate duration

Question 2

Fee Simple Absolute (FSA) or Fee Simple (FS)

Answer 2

absolute ownership of potentially infinite duration. No accompanying future interest.

Question 3

Defensible Fee

Answer 3

Potentially infinite duration, subject to term by occurrence of an event.

3 types, FS Determinable (FSD). FS Subject to Condition Subsequent (FSSCS), and FSSEI FS subject to executor interest/limitation

Question 4

FS Determinable (FSD)

Answer 4

Limited to specific duration language (so long as, while, until). Automatically terminates upon happening of stated event. Future interest –> grantor retains possibility of reverter.

Question 5

FS Subject to Condition Subsequent (FSSCS)

Answer 5

limited by specific conditional language (upon condition that, but if, provided that). Will term only if grantor intends to term. Future interest –> grantor has right to term if stated event, granter must specifically retain right to reenter.

Question 6

FSSEI FS subject to executor interest/limitation

Answer 6

limited by specific duration or conditional lang. auto term upon stated event and title passes to third P. Future interest –> executory interest held by the third p (not grantor).

Question 7

Life Estate

Answer 7

present possessory estate fully transferable during measured life. to A for life. if measured by grantee’s life, not devisable/descendible. LT has right to possess, to collect rents/lease/sell/mortgage, and Duty NOT to commit waste.

Question 8

Waste (limits rights of LE)

Answer 8

affirmative –> overt conduct causes decrease in prop value. Vested FI can bring suit for dams, Any FI can bring injunction. Exception for exploring natty resources IF authorized by granter, in effect when tenancy began, OR necessary to maintain prop.

Permissive –> occurs when LT permits premises to deteriorate thru neglect. LT must make rsbl repairs up to certain levels.

Ameliorative –> may alter structures when necessary in order to continue rsbl use so long as prop value not decreased.

Question 9

FI Reversion

Answer 9

held by grantor without conveying remaining FI to third p. Not subject to RAP.

Question 10

FI Possibility of Reverter

Answer 10

FI retained by grantor when FSD is conveyed.

Question 11

FI Right of Reentry

Answer 11

FI for grantor after FSSCS is granted.

Question 12

FI Remainder

Answer 12

FI that becomes possessory upon natural expiration of prior estate.

it is vested if not subject to any conditions precedent. But vested subject to open under class gifts. Those are group of unspecified persons with interests determined in future. The rule of convenience closes a class when any class member is entitled to immediate possession.

Don’t get contingent remainder at all. the fuck is that.

Question 13

Executory Interests

Answer 13

FI in third party (not remainder? why not?) that cuts prior estate short upon the occurrence of a specified condition, transferable and subject to RAP. Don’t get shifting or springing.

Question 14

Remainders and EIs are transferable

Answer 14

see title.

Question 15

RAP, Rule Against Perpetuities

Answer 15

Specific FIs are valid only if they must vest or fail by the end of a life in being plus 21 years. DOES NOT apply to FIs that revert to grantor. If any possibility that it will not be known whether interest vested or failed within period, then RAP failed. If RAP voids a transfer to any class member then transfer is void to all but see rule of convenience.

Question 16

Tenancy in Common (Tc) (Default co-tenancy)

Answer 16

two or more grantees with unity of possession. No ROS. Each CoT holds undivided interest with unrestricted rights to possess whole. Interest freely devisable/transferable.

Question 17

Joint Tenancy (Jt)

Answer 17

requires express lang creating JT. ROS and two or more own prop. Interest is alienable but NOT devisable/descendible.

Four Unities (PITT)

• equal right to possess the whole
• with identical equal interests
• created at the same time
• by the same title.

Severance converts JT to TC (for severed share). Happens with a sale, mortgage (not under lien theory), and judicial lien.

Question 18

Tenancy by Entirety (TE)

Answer 18

Only in half states. JT reqs plus marriage (unity of person). Neither can alienate or encumber without consent of other. Divorce makes TC, majority presume married couple is TE.

Question 19

Rights/Obligations of Co-Ts

Answer 19

Right to possess entire prop. Not generally req to pay rent. Liable to others for third party rents. Can collect from others for operating expenses. Can only compel repairs sharing IF necessary and seeks accounting or partition. No right to reimbursement for improvements. Owes a duty of fair dealing. TC and JT can partitions, which is a physical division of the prop.

Question 20

Tenancy for Years vs periodic tenancy

Answer 20

Main differences are no notice needed in T4Y but need one in PT. SOF applies to T4Y greater than a year, so needs parties,premises, lease duration, and rent to be paid in signed writing. T4Y must be express, PT doesn’t need to be. Term notice in PT must be given before last period starts.

Question 21

Tenancy by Sufferance (holdover tenancy)

Answer 21

T wrongfully remains in possession after expiration of lease. Bound to rent terms.

Question 22

Duties of T

Answer 22

Pay rent unless mat breach or premises destroyed.

Avoid waste. Can add value if reasonably necessary thru ameliorative waste. Duty to keep in pre-rental condition but not repair normal wear and tear. Liable for all damage to property.

Question 23

L’s remedies for T’s breach

Answer 23

Maj says can sue for dams and evict and term lease for failure to pay rent (wasn’t that way at CL). Can get dams for late rent. For future rent, usually not available but when available, dams limited to diff between future rent and either reasonable rental value or actual rent collected from re-letting.

Abandonment, L accepts then lease terms and future rent ends, but if L rejects, L can collect but has duty to mitigate damages.

For a holdover T, L can accept as PT or tenant at sufferance or sue after notice to vacate.

Question 24

Duties of L

Answer 24

L must deliver possession or no rent obligation. L must repair for residential but not for commercial leases.

Warranty of habitability (residential) –> must be fit for basic human habitation (health/safety) and if breached T must notify L, give time to repair, AND then T can refuse to pay rent, make reasonable repairs and deduct repair costs, or remain in possession pay rent and seek dams.

Cov of quiet enjoyment (commercial and residential). T has right to quiet use and enjoyment. L has duty to control other tenants’ nuisance in common areas. Breach of this may amount to eviction if L excludes T from premises, then lease terminated. also partial and constructive evictions. Can’t be evicted in retaliation.

Question 25

Assignment and Sublease

Answer 25

assignment is complete transfer of T’s remaining lease term. Assignment T liable to L. sublease T is not. OG T liable for original covenants unless novation.

When L assignment and you pay rent, that’s attornment.

Assignment generally can’t be limited (even if lease says so) but can term for breach and recover damages. L can withhold permission to grant assignment or sublease only on reasonable grounds in relationship to the property being leased.

Question 26

Dual Agents

Answer 26

Rep both seller and buyer, prohibited in most jx

Question 27

SOF for Land Sale

Answer 27

SOF applies. Must be in writing, signed by the party to be charged, and contain all the essential terms (parties, prop, description, terms of price/payment). Deeds don’t need to satisfy SOF but have reqs still.

Exceptions for part performance, detrimental reliance, and admission. Part performance exception requires two of these three = payment of all or part of purchase price, possession by purchaser, and substantial improvement by purchaser.

Options and rights of first refusal need SOF.

Question 28

Performance of Sale

Answer 28

Marketable title, free from defects or unreasonable risk of litigation.

Time of essence only enforced if part of k.

Implies warranty of fitness only for new homes. Duty to disclose defects for all homes (all not readily observable).

B must give time to cure title defect.

Land sale K obligations merge into deed upon delivery usually.

Question 29

Adverse Possession

Answer 29

4 requirements.

Continuous/Uninterrupted (thru statutory period, tacking ok if no gapes and non-hostile)
Actual (actual exclusive possession that is open and notorious)
Hostile (must possess land without owner’s permission, maj is objective intent, min considers subjective).
Exclusive (possession cannot be shared with true owner).

Some jx have gf requirement that you believe prop is unowned or yours.

Question 30

Deeds

Answer 30

need ID parties, grantor’s sig, words of transfer, and rsbl definite description. Some jx need an attorney to review before k.

Question 31

I don’t really get recording acts.

Answer 31

Three types of statutes on these. Notice, Race, and race-notice.

Notice is purchaser without notice of prior interests records and prevails. BFP doesn’t need to record to win over prior interest but does to win over subsequent interest.

Race is minority of states. whoever records first prevails.

Race-notice requires sub purchaser to take interest without notice of a prior conflicting interest AND be first to record.

Question 32

I don’t really get recording acts.

Answer 32

Three types of statutes on these. Notice, Race, and race-notice.

Notice is purchaser without notice of prior interests records and prevails. BFP doesn’t need to record to win over prior interest but does to win over subsequent interest. If BFP and no notice, then you win

Race is minority of states. whoever records first prevails. If first, then you win

Race-notice requires sub purchaser to take interest without notice of a prior conflicting interest AND be first to record. If BFP and no notice AND first, you win.

when these aren’t present, first in time, first in right is the rule.

Question 33

I don’t really get delivery

Answer 33

Basically for a real property transfer, need both intent to make a present transfer (delivery) and the grantee must accept the interest.

Question 34

General Warranty and other Warranties in Deeds

Answer 34

General Warranty is present covenants (Seisin, right to convey, against encumbrances) and future covenants (quiet enjoyment, warranty to defend, and further assurances).

Special Warranty is same as above but only as to defects arising from grantor’s time of title.

Quitclaim deed is no convents of title.

Question 35

Other Notice Rules

Answer 35

Notice is considered that the time of conveyance. If actual notice, can’t prevail under N or RN recording statute.

Inquiry notice is when a reasonable inquiry would have given notice to prior interest.

Constructive notice of all prior conveyances that were properly recorded.

A wild deed is recorded but it is not recorded as such to give notice, so it doesn’t.

Question 36

Mortgage Generally

Answer 36

interest in RP that serves as security for an obligation. Must satisfy SOF. Mortgagor is the citizen, the mortagagee is the creditor. So under maj lien theory, mortgagor has title and right to possession until foreclosure. Mortgagee has lien and right to land if default,

Question 37

Mortgage Alternatives

Answer 37

Deed of Trust, Installment Land K, Absolute Deed, or Conditional Sale and Repurchase

Question 38

Mortgage Transfer

Answer 38

unless creditor agrees, borrower remains liab after transfer. Transferee can assume mortgage. OG mortgagor can be released IF lender impairs OG’s right of recourse against transferee by modifying loan terms or releasing transferee of liability.

Due-on-sale clause and due-on-encumberance clause can fix these as well.

Transferee’s liability, can assume OG mortgage.

Question 39

Lien theory and Title Theory states

Answer 39

Lien Theory mortgagee (bank) can’t take possession until foreclosure. In title theory, entitled to possession whenever BUT can’t take until default (so same thing really, or close).

OG gor duty not to commit waste. Equity of redemption where OG can regain title by paying amount owed plus interest before foreclosure sale.

Question 40

Foreclosure

Answer 40

when bank (ee) takes RP when gor defaults.

Priority can be fucked up, but generally foreclosure with two or more mortgages terms jr interest and doens’t effect sr. First in time, first in right.

Effect is gor interest eliminated. Purchaser of RP takes prop free of jr interest subjec to sr.

Question 41

Express Easement

Answer 41

affirmatively created by parties in writing that satisfies SOF, by grant, or reservation

Question 42

Implied Easements

Answer 42

Easement by Necessity. when prop virtually useless without ben of easement across adjacent prop. Rare, needed common ownership and necessity arising when estate severed.

Easement by Implication. similar to above but needs continuous, apparent, and reasonably necessary to dom estate’s use/enjoyment.

Question 43

Prescriptive Easement

Answer 43

like AP, continuous, actual, open, and hostile for SOL.

Question 44

Easement by Estoppel

Answer 44

gf, rsbl, detrimental reliance on permission, issued to prevent unjust enrichment.

Question 45

Negative Easement

Answer 45

Prevents owner from using land in specific ways. Expressly created by writing, and usually only for like light, air, support, stream of water.

Question 46

Transferring Easement

Answer 46

Appurtenant –> benefit transferred with land automatically.

In Gross –> benefits individ or entity, not RP, freely transferable to other parties.

Question 47

Terminating Easements

Answer 47

release by writing subject to SOF

Merging the properties.

Severance (don’t get)

abandonment –> affirmatively act to show clear intent to abandon right. (intent without conduct or mere non-use not enough).

Question 48

Duty to Maintain Easement

Answer 48

easement owner has right and duty to maintain the easement. Who is the owner?

Question 49

Covenants Running with the Land

Answer 49

easements are usually affirmative rights to use property, whereas covs are usually restrictions on right to use rp or impose obligations on the owners of rp.

a cov where you see damages to enforce is a real cov.

Real covenants need SOF writing. intent to run implied via TOC or thru explicit language. Burden or benefit must touch and concern the owners of land. Can be negative or affirmative. Notice must be constructive or actual. Notice means without notice, a purchaser is not bound if protected by recording act. notice is a burden only requirement. For the burden to run.

touch and concern means person seeking enforcement must establish that benefit or burden affects as owners of land not merely personally. Modern trend is to presume that covs are valid so burden may be reversed.

Privity thing here that I don’t get but modern is no priv required. Privily is 5th requirement. Horizontal priv is a budren only running req. Vertical priv is for all. I don’t really get privity.

But the 5 are SOF writing, intent, touch and concern, notice (burden only), and privity.

Question 50

Equitable servitude (type of cov)

Answer 50

a cov when you seek an injunction to enforce.

in writing. requires intent to run. must touch/concern. need notice to run against purchaser.

Does not need privity, which i still don’t get. If real cov, then also this, but not vice versa.

Question 51

Implied reciprocal servitude (type of cov)

Answer 51

intent to create common scheme but no writing required. Negative servitude. notice against whom enforcement is sought.

in unction remedy. usually for large tracts of land being broken up.

Question 52

Ds and Transfers of Covs

Answer 52

transfered with RP itself. Notice generally required to enforce against BFP. Term with release, merger, abandonment, estoppel, condemnation.

Question 53

Fixtures

Answer 53

chattel attached to RP so that it is part of RP in ownership. become part of realty BUT can be removed if seller reserves right to remove, or leased prop can be restored to former condition without damage in rsbl time?

Question 54

Zoning Stuff

Answer 54

can be void due to lack of authority, irrational or arb (must be rationally related to legit gov’t purpose (ROR)).

Can challenge in a lot of ways. May be grandfathered in or seek post ordinance non-conforming variance IF unique unnecessary hardship. hardship not self-induced, unique circs on prop causing hardship, and granting variance keep with overall purpose of ordinance, and variance would not result in substantial harm.

Don’t save you from a cov violation and vice versa.

Generally need a comprehensive plan and development must adhere to plan.

Grandfathered violation may have to register it. Nonconformity is often ok up to a certain point in time and non-conformity starts with zoning law in effect. Can usually be transferred.

Question 55

Air, water, and support property

Answer 55

For water, riparian is reasonable use doctrine vs prior appropriation theories. RUD is who borders water, can make rsbl use, and can’t be transferred separate. Prior Appropriation is rights determined by priority of beneficial use, subsequent users can’t infringe on prior users, and water rights may be separate.

Support rights are weird and I don’t get them really. Sometimes SL, sometimes just negligent. Lateral support, so if your neighbor’s land is undeveloped and you cause his land to collapse, you are SL. If your neighbor’s land is developed then you are only liab for negligence in destroying his land IF his development aided the collapse (but for type thing). Owner of land can sell mining rights but mineral rights buyer is SL for failure to support land. Owner of land only liab for negligence?

Air rights are can use them as long as it doe snot interfere with another’s reasonable use and enjoyment of land.

Question 56

HOA

Answer 56

The HOA section of the outline is very large but that seems a little ridiculous. Not going to read with detail.

Question 57

Emblements (Crops)

Answer 57

Crops, both real and planted, are conveyed with land unless harvested or something like that.

Question 58

Nuisance Law

Answer 58

More in torts, but priv nuisance is substantial, unreasonable interference with another individ’s use or enjoyment of his prop. substantial if annoying or worse to average person in community and unreasonable if injury caused outweighs the usefulness of D’s actions.

Pub nuisance is unreasonable interference with health, safety, or prop rights of the community.

Remedies can be damages or injunctive relief.

Question 59

future Interests and Taxes?

Answer 59

Life tenants have the obligation to pay all ordinary taxes on the land and interest on the mortgage to the extent he receives a financial benefit from the property. When the life tenant occupies the property, his financial benefit is measured by the fair market rental value of the property. When the holder of a future interest pays the taxes because the life tenant fails to do so, the holder can bring an action against the life tenant personally to recover these payments from the life tenant, up to the value of the financial benefit the life tenant received from the property. Because the property in question is not producing income but has a reasonable rental value of $48,000 per year ($4,000 per month), the life tenant is liable to the holder of the remainder interest for the full amount of the taxes paid by the holder of the remainder interest, $10,000, as that amount does not exceed the reasonable rental value

Question 60

Shelter Rule

Answer 60

Although grantees who acquire title to property by gift, intestacy, or devise are not protected by the recording act against prior claims, grantors who are protected by the recording act protect (or “shelter”) their grantees who would otherwise be unprotected.

Question 61

Estoppel by Deed?

Answer 61

under the “estoppel by deed” doctrine, a grantor who conveys a real property interest by warranty deed before actually owning it is estopped from later denying the effectiveness of his deed. Consequently, when the grantor does acquire ownership of the land, the after-acquired title is transferred automatically to the prior grantee.

Question 62

Breach of Contract Claim

Answer 62

Absent contrary language, an implied covenant of marketable title (i.e., a title free from defects) is part of a contract to sell real property. However, under the doctrine of merger, obligations contained in the contract of sale, including the seller’s duty to deliver marketable title, are merged into the deed and cannot thereafter be enforced through a breach of contract action. Consequently, the speculator cannot sue the original owner for a breach of the covenant to deliver marketable title.

Question 63

What? What the fuck is any of this?

Answer 63

Under the doctrine of equitable conversion, equitable title to real property passes to the buyer upon entering the contract, even though the seller retains legal title. Most jurisdictions place the risk of loss between the contract and the closing on the buyer. However, if the seller has casualty insurance on the property, the seller must give the buyer credit in the amount of insurance proceeds against the purchase price.

Question 64

Constructive Eviction

Answer 64

The issue is whether the tenant can raise the excuse of constructive eviction. When a landlord substantially interferes with the tenant’s use and enjoyment of the property by breaching a duty to the tenant, the tenant’s obligation to pay rent may be excused under the theory of constructive eviction. In order to end a lease before the end of its term by constructive eviction, the landlord must have breached a duty, which caused the loss of the substantial use and enjoyment of the premises, the tenant must give the landlord notice of the problem and reasonable opportunity to cure, and the tenant must vacate the property within a reasonable period of time. Not every interference with the use and enjoyment of the premises amounts to a constructive eviction. Temporary or de minimis acts which do not amount to a permanent expulsion generally do not amount to constructive eviction.

Question 65

Terminating a Lease

Answer 65

The issue is when the lease was terminated. Termination of a lease occurs automatically upon the expiration of the term. Termination may also occur before the expiration of the term when the tenant surrenders the leasehold, and the landlord accepts the return of the leasehold. When a tenant abandons the leasehold without justification, the landlord may treat the abandonment as an offer of surrender and could accept that surrender by retaking the premises.

Question 66

Landlord Mitigation

Answer 66

When a tenant abandons the leasehold, the landlord may treat the abandonment as an offer of surrender and accept such surrender, or the landlord may attempt to re-rent the premises on the tenant’s behalf and hold the tenant liable for any deficiency. The majority of jurisdictions now require a landlord to mitigate damages by attempting to re-rent the premises in the event that the tenant abandons the property and breaches of the lease. Accordingly, the landlord has a responsibility to make a good-faith attempt to re-rent the property. Because the landlord did not take any steps to re-rent the property, he is likely not entitled to any unpaid rent.

Question 67

Public Nuisance

Answer 67

A public nuisance is an unreasonable interference with the health, safety, or property rights of the community. Although the smells emanating from the project site are adversely affecting those who live in the area, to recover for a public nuisance, a plaintiff must show that he suffered a different kind of harm than that suffered by the rest of the community.

Question 68

One Sided Termination Rights

Answer 68

A tenancy at will is a leasehold estate that may be terminated by either the landlord or the tenant. If only one party is expressly given the right to terminate the leasehold, the lease may, when taking into account all other circumstances, be unconscionable. In such a case, either party is given the ability to terminate the lease. In this case, the landlord—being the owner of the only commercial shopping center in town—had such superior bargaining power that enforcing the terms of the lease against the tenant would be unconscionable. Accordingly, both parties had the right to terminate this lease. Answer choice A is incorrect because an at-will tenancy terminable by only one party is often unconscionable, and if so, the tenant’s right of termination exists by implication.

Question 69

Death and Debts

Answer 69

The devisee of real property is entitled under the common-law doctrine of exoneration of liens to have any outstanding balance of a mortgage or other encumbrance on the property to be paid from the remaining assets of the testator’s estate. Note that today, most jurisdictions have abolished this doctrine and property passes subject to any encumbrance.

Question 70

Wild and Industrial Crops in Life Estate

Answer 70

Fructus naturales are wild crops that are not cultivated; such crops are considered real property and pass automatically with the land. Here, title to the land, including the unharvested berries, reverted to the remainderman at the time of the widow’s death. Accordingly, the remainderman has the sole right to the berries. Had the berries been fructus industriales, that is, had the widow purposely planted and cultivated the berries, then they would have been considered personalty.

Question 71

Ademption

Answer 71

Under the doctrine of ademption, the transfer of property by a testator subsequent to the execution of a will removes the property from his estate and the devise of the property is adeemed.

Question 72

“Intent” in “Delivering” a Deed

Answer 72

Although it is often stated that a deed must be delivered in order for a real property interest to pass (i.e., a delivery requirement), the term “delivery” is used as shorthand for the existence of the necessary grantor intent. Physical transfer of a deed is not required and is not conclusive evidence of the grantor’s intent. The execution and recording of a deed creates a rebuttable presumption that the deed is to be presently operative.

Question 73

Foreclosure and Junior Interests

Answer 73

Generally, the foreclosure of a senior mortgage by a sale eliminates any junior mortgages. However, when a junior mortgagee is not given notice of the foreclosure proceedings, the junior mortgage is not eliminated.

Question 74

Living Trust Exemption Lol

Answer 74

Generally, an acceleration clause (due-on-sale clause) in a mortgage loan document is enforceable. However, federal law provides a residential real property exemption, exempting certain transfers of residential real property from the requirement that states give effect to an acceleration clause. Among the exempt transfers is a transfer by the mortgagor-borrower to her living trust. Consequently, it is unlikely that the court will give effect to the acceleration clause in this situation and find the loan in default due to the transfer of ownership from the homeowner to her living trust.

Question 75

Divorce Exemption Lol

Answer 75

Generally, an acceleration clause (due-on-sale clause) in a mortgage loan document is enforceable. However, federal law provides a residential real property exemption exempting certain transfers of residential real property from the requirement that states give effect to an acceleration clause. Among the exempt transfers are a transfer of property to a spouse or child and a transfer of property to an ex-spouse due to a divorce. Consequently, it is unlikely that a court would find that either of the ownership changes effected by the homeowner will allow enforcement of the acceleration clause.

Question 76

Rents as Tenants in Common?

Answer 76

The cousin is entitled to the rents received by the sister from the third party in proportion to his ownership interest in the farm.

Question 77

Note Transfer without a Mortgage

Answer 77

If the promissory note is transferred without the mortgage, the mortgage is treated as having been transferred as well under the principle that the mortgage follows the note.

Question 78

Something about equitable conversion?

Answer 78

Upon execution of the land sales contract, the couple became the equitable owners of the house; the owner merely held legal title which he was required to convey at closing to the couple. Consequently, the creditor’s judgment lien, which was obtained after the contract was executed, was not enforceable against the house because the house no longer belonged to the owner.

Question 79

Subsurface Rights

Answer 79

If the structure was constructed before the rights were acquired, the owner of the mining rights is strictly liable for the failure to provide subjacent support. If the structure was constructed after the rights were acquired, as is the case here, the owner of mining rights is liable for the failure to provide subjacent support only if the owner failure to exercise reasonable care in removing the minerals

Question 80

A Dying Buyer

Answer 80

A deed to a nonexistent grantee is void as to the nonexistent grantee. Therefore, the purported conveyance of a one-half interest in the real property to the buyer’s brother failed, and the original owner retains this one-half interest. The conveyance of a one-half interest in the property to the buyer is unaffected.

Question 81

Seeking Specific Performance when the Other Side is at Fault

Answer 81

A buyer is entitled to specific performance when a seller breaches a contract to sell a real property interest because the buyer’s remedy at law (i.e., damages) is considered inadequate due to the unique nature of land. In addition, when the buyer seeks specific performance with respect to property for which there is a title defect (e.g., an encumbrance), the buyer may also obtain an abatement in the purchase price to compensate the buyer for the defect. Here, because the seller breached the contract, the buyer is entitled to specific performance, if it wants the property despite the defect

Question 82

Warranty of Fitness for Suitability (New homes)

Answer 82

Most jurisdictions have created an implied warranty of fitness or suitability for the purchase of newly constructed homes. Under this warranty, the seller asserts that he used adequate materials and workmanship for the residence. The warranty generally covers latent construction defects, including any problems that do not manifest themselves until after the sale. The buyer has a duty to reasonably inspect the residence but is not required to employ an expert home inspector. Generally, a suit for breach of the implied warranty may be brought against builders, developers, and contractors within a reasonable time after discovery of the defect. A majority of jurisdictions permit both the initial homeowner-purchaser and subsequent purchasers who do not contract directly with the commercial developer to recover damages.

Question 83

Marketable title Requirement

Answer 83

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.

Question 84

UVPRA and Equitable Conversion (still don’t get)

Answer 84

The primary issue in this case is the party upon whom the risk of loss falls. Most states, following the logic of the doctrine of equitable conversion, place the risk of loss during the time between the execution of the contract and the closing on the buyer, regardless of whether the buyer takes possession of the property. A minority of jurisdictions have adopted the Uniform Vendor and Purchaser Risk Act. Under this act, the risk of loss falls upon the owner because the buyer did not have possession of the warehouse at the time of the destruction of the warehouse

Question 85

Lien vs Mortgage

Answer 85

The driver granted the bank a mortgage prior to the rendering of the judgment against him. Consequently, the bank’s mortgage interest has priority over the judgment lien subsequently filed by the pedestrian. Even in a jurisdiction that extends the protection of the recording act to a judgment lien, the bank’s interest is not subject to challenge under the applicable race-notice statute: the bank filed first and, by virtue of the filing, the pedestrian is deemed to have constructive notice of the bank’s interest.

Question 86

Condemnation (Read up on this)

Answer 86

Condemnation is the taking of land for public use or because it is unfit for use. The right of a tenant upon condemnation depends upon whether the condemnation is partial or complete. If the condemnation is partial, meaning only a portion of the leased property is taken, the tenant must continue to pay rent. The tenant is entitled to compensation for the portion that was taken

If the condemnation of a leased property is partial, meaning that only a portion of the leased property is condemned or the property is temporarily condemned, then the tenant must continue to make his rent payments. The tenant is entitled to compensation for the portion of the property that was condemned or the time that he was dispossessed from the leased property

Question 87

LQ Damages

Answer 87

A non-breaching seller may collect liquidated money damages for costs relating to reselling the property, as long as the seller actually suffered a loss and the liquidated damages are reasonable.

Question 88

Junior Interest Notice

Answer 88

For a foreclosure sale to eliminate a junior interest, the holder of the junior interest must be made a party to the foreclosure action.

Question 89

Ez by implication

Answer 89

If the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the sale of the dominant parcel, the parties intended the easement to continue if the prior use was continuous, apparent (open and obvious), and reasonably necessary to the dominant land’s use and enjoyment.`

Question 90

Rain Water

Answer 90

Rainwater is classified as surface water or more precisely as diffused surface water. As such, although there are restrictions on the ability of a landowner to prevent such water from entering his property or altering the flow of such water off his property, a landowner may generally impound such water on her property and may make whatever reasonable use she wishes of that water.

Question 91

Boundary Line Agreements?

Answer 91

Unless there is an agreement to the contrary, one co-tenant may not bind another co-tenant to a boundary line agreement. In this case, because the elder brother did not enter into the agreement made by his younger brother, the court should recognize the original boundary as the legal boundary between the two farms.

Question 92

Boundary Line Agreements?

Answer 92

Unless there is an agreement to the contrary, one co-tenant may not bind another co-tenant to a boundary line agreement. In this case, because the elder brother did not enter into the agreement made by his younger brother, the court should recognize the original boundary as the legal boundary between the two farms.

Question 93

When restraints on transfer are cool?

Answer 93

the restraint in this instance is permissible because it is on a beneficial interest in the property and is only temporary.

Question 94

Optional payments and priority mortgages

Answer 94

If an original mortgagee loans an additional amount to a mortgagor that is optional rather than obligatory such amount may not enjoy priority over a second mortgage if the original mortgagee has notice of the second mortgage. This is true even though the mortgage by its terms serves as security for future advances.

Question 95

Death Escrow

Answer 95

When the man delivered the deed to his attorney with instructions to deliver it to the nephew on his death, he was attempting to create a valid death escrow. To create a valid death escrow, however, the man had to place the deed beyond his control, reserving no power over it once it had been given to the attorney. Because the man instructed the attorney to return the deed to the man if he asked, the man did not place the deed beyond his control, and no death escrow was created.

Question 96

Some crazy thing about subdivided mortgages

Answer 96

Generally, upon default of an obligation, a mortgagee may foreclose on any and all parcels of real property of the mortgagor that serve as security for the obligation. If there are junior security interests with respect to some of those parcels of real property, however, those junior interests may petition the court for protection of their interests under the doctrine of marshaling of assets. Under this doctrine, the holder of a senior security interest must first proceed against the property on which there are not any junior security interests, and then against the property on which the junior interest was more recently created, before proceeding against property on which the junior interest was more remotely created.

Question 97

More Ademption Stuff that I don’t get

Answer 97

When the seller of real property pursuant to a contract dies before the conveyance of the property, the buyer can compel the executor of the seller’s estate to honor the contract and transfer the property to the buyer. At common law, the proceeds from the sale of the property under contract were treated as personal property that passed to the devisee of the seller-decedent’s personal property. The devise of the real property itself was treated as having been adeemed. In a jurisdiction that has adopted an anti-ademption statute, however, the devisee of the seller-decedent’s real property is entitled to the sale proceeds

Question 98

More Redemption Stuff :(

Answer 98

Until property that is subject to a mortgage or a deed of trust is foreclosed upon by sale, the borrower has a right to redeem the property by satisfying the obligation for which the property serves as security. While this right may be waived after the borrower has defaulted, the terms of the mortgage or deed of trust cannot waive this right as a matter of course. Consequently, because the clause in the deed of trust in question is invalid and the court should permit the auto mechanic to regain title to the garage by paying the loan obligation in full.

Question 99

title Insurance

Answer 99

Although the lender’s policy of title insurance ended when the loan was repaid, an owner’s policy of title insurance continues to protect the owner if the owner (here, the buyer) is ever successfully sued on a title covenant in a future conveyance.

Question 100

After added property in appertenant easement

Answer 100

he individual granted the corporation an easement appurtenant because the easement was granted to the corporation as owner of the adjacent property. As such, the easement cannot be used for the benefit of property other than the dominant estate. Here, the corporation intended to use the road for the benefit of not only property owned at the time of the granting of the easement (i.e., the dominant estate), but also property subsequently acquired