Real Property

Question 1

Under zoning laws, what is a nonconforming use?

What rights does the owner of the nonconforming use have?

Answer 1

Arises when property was used in a lawful manner before a zoning law was enacted or amended and the nonconforming use continues even though it is prohibited by zoning law

“Grandfather right” to continue use until:
(1) use is enlarged, changed or abandoned
OR
(2) zoning law provides an amortization period that has passed or nonconforming use is not registered

Question 2

What are the 2 types of remainders?

Answer 2

(1) vested: future interest that is not subject to any conditions precedent and is held by an ascertainable person

(2) contingent: future interest that is subject to a condition precedent or held by an unknown or unborn person

Question 3

What is a life estate pur autre vie?

Answer 3

Life estate measured by the life of someone other than the life tenant

Question 4

What are the 3 types of defeasible fees?

What are the future interests for each?

Answer 4

(1) fee simple determinable; created by durational language.
Future interest: (a) grantor retains possibility of reverter

(2) fee simple subject to condition subsequent; created by conditional language
Future interest: (a) grantor’s right of re-entry

(3) fee simple subject to executory interest
Future interest: (a) third party

Question 5

What 4 requirements must be met for an equitable servitude to run with the land?

Answer 5

(1) writing: in writing in the original conveyance

(2) intent: original parties must have intended for servitude to run with the land

(3) touch and concern: relates to use, enjoyment or occupation of both estates

(4) new owner has either actual, constructive or inquiry notice

Question 6

Difference between shifting and springing executory interest?

Answer 6

Shifting = divest grantee’s estate and estate shifts from grantee to the executory interest holder

Springing = divests grantor’s estate and estate springs from grantor to executory interest holder

Question 7

What are 3 ways a mortgagor can avoid foreclosure?

Answer 7

(1) equitable redemption: pays full amount of outstanding debt plus interest

(2) deed in lieu: conveys all interest to mortgagee

(3) renegotiation: parties renegotiate terms of note and mortgage

Question 8

What are the differences between an easement appurtenant and an easement in gross?

Answer 8

Appurtenant = benefits easement holder’s land

Appurtenant benefit & burden transfer with the land automatically when land is conveyed

In gross = benefits the easement holder personally

In gross burden (not benefit) automatically transfer when the land is conveyed

Question 9

Absent a statutory or contractual duty, what are the 2 instances a commercial landlord has a duty to make repairs

Answer 9

(1) repair so substantial that it would not ordinarily fall within the tenant’s common law duty to repair
OR
(2) repair would primarily benefit value of the landlord’s property

Question 10

What are the 4 unities required to create a joint tenancy with the right of survivorship?

Answer 10

(1) possession: each tenant must have equal right to possess and enjoy while property

(2) interest: each tenant must have equal share of the same type of interest

(3) time: tenants must receive their interest at the same time

(4) title: must receive their interest in the same instrument of title

Question 11

Difference between the lien theory and the title theory?

Answer 11

Lien = mortgage considered a lien on property and the granting of a mortgage does not sever a joint tenancy

Title = mortgage considered transfer of title and the granting of a mortgage does sever joint tenancy

Question 12

What may a tenant do when landlord has breached the implied warranty of habitability?

Answer 12

Upon breach by landlord, tenant can:

(1) vacate premises and terminate the lease (note, that tenant is not required to vacate)

(2) withhold or reduce rent (if tenant does this, must notify landlord of the problem and give reasonable time for landlord to remedy)

(3) remedy the defect and offset the costs against the rent

(4) defend against eviction

Question 13

For the purposes of the implied covenant of quiet enjoyment, what is a constructive eviction?

Answer 13

Breach of the warranty = tenant is constructively evicted when:

(1) landlord causes premises to be unsuitable for intended purposes

(2) tenant notified landlord of the problem

(3) landlord did not correct problem

(4) tenant vacates premises after reasonable amount time has passed

Question 14

For the purposes of real covenants, what 4 elements must be present for benefit to run to successors?

Answer 14

(1) writing: covenant must be included in writing in original conveyance, satisfy SOF

(2) intent: original parties must have intended for covenant to run w/ land

(3) touch and concern: must touch and concern the land, meaning benefit must affect both the promisor and promisee as owners of the land

(4) relaxed vertical privity: successor need only take interest that is carved out of original party’s estate

Question 15

For the purposes of real covenants, what 6 elements must be present for burden to run to successors?

Answer 15

(1) writing: covenant must be included in writing in original conveyance, satisfy SOF

(2) intent: original parties must have intended for covenant to run w/ land

(3) touch and concern: must touch and concern the land, meaning benefit must affect both the promisor and promisee as owners of the land

(4) strict vertical privity: successor must take original party’s entire estate

(5) horizontal privity: instrument used in the conveyance of property b/w original parties must contain the estate and covenant

(6) notice: new owner must have notice of covenant. Notice may be either actual or constructive

Question 16

What are 7 ways an easement may be terminated?

Answer 16

(1) release: holder expressly releases it, must be in writing and satisfy SOF

(2) merger: holder acquires fee title to underlying estate, easement merges into title

(3) abandonment: holder demonstrates intent to never use easement through physical action

(4) prescription: holder fails to protect against trespassers for statutory period

(5) sale to BFP: landowner sells property

(6) estoppel: landowner reasonably relies to his detriment on easement holder’s assurance that easement will no longer be used

(7) end of necessity: when no longer necessary, terminates

Question 17

What are the 3 types of recording act statutes?

Answer 17

Race statute = first grantee to record acquires title

Notice statute = subsequent purchaser acquires title if purchase is made without notice of prior unrecorded conveyance

Race-notice = subsequent purchaser acquires title if the purchase is made without notice of prior unrecorded conveyance and subsequent purchaser records first

Question 18

What is the rule of convenience?

Answer 18

A rule of interpretation that can prevent application of the rule against perpetuities to a class transfer

Membership in a class closes whenever any member of the class is entitled to immediate possession of a share of the class gift

Question 19

In a jurisdiction that follows the lien theory, when does the mortgagee have the right to take possession of mortgaged property?

Answer 19

Because the mortgagor is considered the owner of the home, the mortgagee cannot take possession prior to foreclosure

Question 20

In a jurisdiction that follows the title theory, when does the mortgagee have the right to take possession of mortgaged property?

Answer 20

Because the mortgagee is considered the owner of the property until the mortgage has been paid in full, the mortgagee may take possession at any time (unless agreed otherwise)

Question 21

In a jurisdiction that follows the intermediate theory, when does the mortgagee have the right to take possession of mortgaged property?

Answer 21

Because the mortgagor is considered the owner of the property until a default, mortgagee obtains the right to possession upon default

Question 22

When can an equitable servitude by implied as an implied reciprocal servitude?

(3 elements)

Answer 22

(1) intent to create common scheme: owner intended to impose servitude on all lots in the subdivision

(2) restrictive servitude: intended servitude is a promise NOT to do something

(3) notice: person to be bound by the servitude had actual, record or inquiry notice of it

Question 23

What 4 elements must be present for a profit to be implied from existing prior use?

Answer 23

(1) severance of common ownership: dominant and servient estates were once a single tract, after which owner retained part of the tract and conveyed the rest

(2) prior existing use: owner used servient estate to benefit dominant estate

(3) apparent & continuous: prior use was discoverable by reasonable inspection and continued until tract was severed

Question 24

What is a profit?

Answer 24

Nonpossessory right to enter another’s land and remove specific natural resources

Question 25

In what 2 instances may a tenant remove chattel attached to the leased premises?

Answer 25

(1) attachment was not intended to be permanent

(2) chattel is not being used for some larger component or function of the land