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2022 PA Bar > Property > Flashcards

Property Flashcards

1
Q

What duties does a life tenant have?

A
  1. Duty to pay current charges
  2. Duty to prevent waste
  3. Duty to make ordinary repairs
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2
Q

Who presumptively bears the risk of loss in a land sale contract?

A

The buyer (equitable title) before closing (majority)

Uniform Vendor and Purchaser Risk Act imposes loss on seller before closing (minority)

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3
Q

Adverse possession

A
  1. Exclusive
  2. Continuous (PA: 21 years)
  3. Hostile (PA: implied if other elements satisfied)
  4. Open
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4
Q

What does the Shelter Rule do?

A

A person who receives property from a bona fide purchaser is entitled to the same protection under the recording act as the BFP.

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5
Q

When is an easement of necessity implied?

A
  1. Necessity
  2. Common ownership
  3. Easement arose from severance
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6
Q

When is an express equitable servitude enforceable?

A
  1. In writing (cf SOF)
  2. intent to run
  3. Touch and concern
  4. Notice
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7
Q

What rights does a life tenant have?

A
  1. Right of possession
  2. Right to rents
  3. Right to lease, sell, or mortgage interest
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8
Q

Rule of Shelley’s Case

A

Prevents contingent remainders in grantee’s heirs (fee simple absolute to grantee)

NOT in PA

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9
Q

Doctrine of Worthier Title

A

Prevents contingent remainders in the grantor’s heirs (reversion to grantor)

NOT in PA

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10
Q

Rule against perpetuities

A

Specific future interests are valid only if they must vest or fail by the end of a life in being plus 21 years.

In PA dead as of Dec 31, 2006

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11
Q

Rule of convenience

A

A rule of interpretation that closes membership in a class (and prevents RAP csqs) whenever any member of the class is entitled to immediate possession of a share of the class gift.

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12
Q

“Wait and see” approach to RAP

A

The Uniform Statutory Rule Against Perpetuities adopts a wait and see stance, which make an otherwise invalid interest valid if it actually vests within 90 years of its creation.

PA approach before December 31, 2006

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13
Q

How can a joint tenancy be determined?

A

Four unities (PITT)

Possession
Interest
Time
Title

For a tenancy in entirety, fifth unity: person

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14
Q

Does a mortgage sever a joint tenancy?

A

In lien theory states (majority), no; only upon foreclosure following default

In title theory (minority), granting of mortgage is a transfer of title that severs JT and gives mortgagee a tenancy in common.

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15
Q

What does a tenancy by the entirety do?

A

Prevents either spouse from alienating or encumbering the property without the consent of the other.

Where recognized, rebuttable presumption that it is created when conveyed.

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16
Q

What does the FHA prohibit?

A
  1. Discrimination on the basis of race, religion, national origin, sex, disability, and family status
  2. in (eg) rent, advertisement, of housing)
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17
Q

Who is exempt from the FHA?

A
  1. buildings with 4 or less units
  2. SF homes sold/rented without broker
  3. housing by religious orgs and private clubs that limit to members
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18
Q

How can discrimination be proved under the FHA?

A
  1. Disparate impact for race

2. Occupancy restrictions except reasonable zoning restrictions on maximum occupancy

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19
Q

What must a lease agreement contain for a tenancy for years?

A
  1. parties
  2. Premises
  3. Duration
  4. Rent
  5. Signed by tenant
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20
Q

When does a landlord have a duty to repair in commercial leases?

A
  1. So substantial it would not fall within CL repair duty OR
  2. Value would primarily inure to landlord
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21
Q

What may a tenant do in breach of the warrant of habitability?

A
  1. Refuse to pay rent
  2. Remedy the defect and offset
  3. Defend against eviction
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22
Q

When is the covenant of quiet enjoyment breached?

A

When the landlord or someone with superior title prevents the tenant from possession

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23
Q

What are a landlord’s duties of care?

A

CL: common and public areas, areas in landlords control, or hidden defect or faulty repair

Modern/PA: general duty of reasonable care

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24
Q

What are the essential terms of a land sale contract?

A
  1. Parties
  2. Property description
  3. Price
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25
Q

What are the six covenants of a general warranty deed?

A
  1. Seisin
  2. Right to convey
  3. Against encumbrances
  4. quiet enjoyment
  5. warranty
  6. further assurances
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26
Q

What is the covenant of seisin?

A

Grantor owns the land as described in deed

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27
Q

What is the difference between a special warranty deed and general warranty deed?

A

Only warrants against defects arising during the time the grantor has title (superior interests)

28
Q

Who is the mortgagee?

A

The lender

29
Q

How does a deed of trust differ from a mortgage?

A

The borrower delivers title to a third-party trustee as security. On default (and unlike a mortgage), the beneficiary-lender can purchase the property at a sale held by the trustee

30
Q

How does an installment land contract differ from a mortgage?

A

Seller retains title until buyer makes final payment under installment plan.

Traditionally, the seller retained the land and payments if buyer failed to pay, but state schemes differ.

31
Q

What is an absolute deed?

A

Transfer title free of all liens and encumbrances.

32
Q

What standard of proof applies for proving an absolute deed?

A

Clear and convincing evidence

33
Q

Who is liable when a mortgagor transfers a mortgage?

A

The mortgagor and transferee both

34
Q

What does a due-on-sale clause do?

A

Upon transfer of a mortgage, lender has option to demand immediate repayment of outstanding obligation.

Federally enforceable except for property with five or fewer dwellings.

35
Q

What does it mean to take title “subject to” a mortgage?

A

Take title without personal liability, but on default may be foreclosed on.

36
Q

When can a mortgagee take possession of real property?

A

In a lien theory state, only after foreclosure because the mortgagor is the owner

In a title theory state, at any time, although terms may vary this.

37
Q

Exceptions to first in time, first in right

A
  1. Purchase-money mortgage: seller or 3P lender. Priority regardless of recording
  2. Recorded over unrecorded
  3. Subordination agreements
  4. Subsequent mods to extent they are materially prejudicial to junior mortgagee’s interest
  5. lines of credit
38
Q

What is an appurtenant easement?

A

Tied to the land

39
Q

What is an easement in gross?

A

Personal to holder

40
Q

What are the requirements for a covenant to run with the land?

A
  1. Writing (SOF)
  2. Intent
  3. Touches and concerns the land
41
Q

What is required for the burden to run with the land?

A
  1. Writing
  2. Intent to run
  3. Touch and concern
  4. Horizontal and vertical privity
  5. Notice
42
Q

What is required for a benefit to run with the land?

A
  1. Writing
  2. Intent to run
  3. Touch and concern
  4. Limited vertical privity
  5. NO notice
43
Q

What is required for an implied reciprocal servitude?

A
  1. Intent to create common scheme
  2. restrictive servitude
  3. notice
44
Q

What is required to be entitled to a zoning variance?

A
  1. Unnecessary hardship
  2. Unique to property
  3. Not created by owner
  4. Variance would be consistent purpose of ordinance
  5. No substantial harm to general welfare
45
Q

When is the owner of land liable for excavations?

A
  1. Strictly liable if would have collapsed in natural state

2. Otherwise negligent

46
Q

Are contingent remainders destroyed if they have not vested by the termination of the preceding estate?

A

Most states: yes

PA: no

47
Q

Joint tenancies (PA)

A

No right of survivorship is presumed; must be clear from instrument.

Mortgage severs for mortgagors if not all JTs have it.

48
Q

What does a sherriff’s sale upon execution of a judgment against a joint tenant’s interest do?

A

Involuntary severance of joint tenancy

49
Q

How long must a lease be in PA to be subject to be subject to SOF?

A

3 years

50
Q

If breaching a periodic lease, when must a tenant remove?

A

15 days from service of notice; 30 if a lease of more than a year.

If for no rent, 10 days.

51
Q

What is the covenant of quiet enjoyment?

A

Landlord promises that no one with paramount title will interfere with tenant’s enjoyment and possession of premises

52
Q

What is a vested remainder?

A

A future interest in real property that is

  1. not subject to any condition precedent AND
  2. held by an identifiable living person
53
Q

What is a contingent remainder?

A

A future interest in real property that is

  1. subject to some condition precedent OR
  2. held by an unknown or unborn person
54
Q

What is required for an express equitable servitude?

A
  1. Writing
  2. Intent to run
  3. Touch and concern
  4. Notice
55
Q

What is the exoneration of liens doctrine?

A

A devisee is entitled to pay off encumbrances on property from the remaining assets of the testator’s estate (CL rule)

56
Q

When do crops pass with the land?

A

If cultivated, then pass with the land, unless harvested, ripe, or planted by tenant with indefinite leasehold or adverse possessor

If wild, pass automatically with land

57
Q

When is the transfer of a deed effective?

A
  1. Has essential deed components
  2. Delivered
  3. Accepted
58
Q

What are the essential components of a deed?

A
  1. Writing signed by grantor
  2. Identity of grantor and grantee
  3. Description of land
  4. Words of transfer
59
Q

What is required for a deed to be delivered?

A

Grantor’s present intent to transfer title

60
Q

When is a grantor’s present intent to transfer title presumed?

A
  1. Physical delivery
  2. Recording
  3. Unconditional delivery to an agent
  4. Grantee’s possession
61
Q

What defects render title unmarketable?

A
  1. Unconsenting future interests
  2. Private encumbrances (e.g., mortgage)
  3. Significant physical defects
  4. Unquieted adverse possession
  5. zoning ordinance violations
62
Q

What is “hostile” for purposes of adverse possession?

A

Majority: objective intent to claim the land

Minority: consider subjective intent

63
Q

When do co-tenants owe each other fiduciary obligations?

A
  1. When jointly purchasing the property in reliance on each other
  2. Acquire interest from a common source, such as by gift, will, or inheritance

Usually related or in confidential relationship

64
Q

When may a tenant remove a fixture that they have attached to the property?

A
  1. Property can be restored after removal

2. Within a reasonable time

65
Q

When will a closing date in a land sale contract be striclty enforced?

A

Any of:

  1. express time is of the essence language
  2. circumstances strongly suggest as much
  3. notice of time is of the essence

otherwise reasonable time after closing

66
Q

What are common exceptions to the enforceability of a due-on-sale clause?

A
  1. Transfer to JT
  2. Transfer to spouse or child
  3. Transfer to ex-spouse in divorce
  4. Transfer to borrower’s living trust
  5. Creation of subordinate lien without occupancy rights
  6. Leasehold of less than 3 years without option to purchase
67
Q

When is the owner of mining rights liable for a failure to provide subjacent support?

A

Strictly liable for any failure for buildings pre-existing conveyance of mineral rights

Negligence for damages to buildings built after conveyance of mineral rights

2022 PA Bar (19 decks)

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