Real Property

Question 1

When is a right of way by absolute necessity created?

Answer 1

When the owner of a tract of land sells part of it, and the division deprives one lot of access to a public road.

Question 2

Who gets the right to locate a right of way via absolute necessity?

Answer 2

Owner of servient tenement

Question 3

What kind of easement is an easement by necessity?

Answer 3

Easement appurtenant

Question 4

What are the requirements to enforce the benefit of a covenant?

Answer 4

Must have:
1) a writing satisfying statute of frauds,
2) intent that the covenant runs with the land,
3) vertical privity, AND
4) covenant touches and concerns the land

Question 5

What elements are required to enforce the burden of a covenant?

Answer 5

Must have:
1) a writing satisfying statute of frauds,
2) intent that the covenant runs with the land,
3) vertical privity,
4) covenant touches and concerns the land
5) horizontal privity between original parties AND
6) new owner has notice

Question 6

What payments is the life-tenant responsible for during their lifetime?

Answer 6

Ordinary expenses and taxes for the property

Question 7

What is a vested remainder?

Answer 7

Future interest in land given to an identifiable person with no conditions

Question 8

What is a contingent remainder?

Answer 8

A future interest in land conditioned upon the occurrence or non-occurrence of a specific event

Question 9

What are the four unities for creation of a joint tenancy?

Answer 9

1) Unity of time
2) Unity of title
3) Unity of interest
4) Unity of possession

Question 10

What are the two different views for what happens if a joint tenant takes out a mortgage on their interest?

Answer 10

Lien theory (majority) -> does not sever
Title theory (minority) -> mortgage does sever

Question 11

Does an out-of-possession co-tenant have the right to receive rent?

Answer 11

no, unless
a) otherwise agreed OR
b) they were wrongfully ousted

Question 12

What is the modern view of the tenancy created when a hold-over occurs?

Answer 12

An implied month-to-month tenancy is created with identical terms to the original lease

Question 13

If the implied warranty of habitability is breached, what can the tenant do?

Answer 13

1) Move out and terminate lease
2) Withhold or reduce rent
3) repair the issue & deduct the cost; OR
d) remain on the premises and sue for damages

Question 14

When is the implied covenant of quiet enjoyment breached?

Answer 14

When the tenant is constructively evicted

Question 15

What are the elements of constructive eviction?

Answer 15

1) Landlord breached a duty to tenant
2) the breach caused a loss of substantial use and enjoyment of the premises
3) tenant gave landlord notice of condition;
4) landlord failed to remedy within reasonable time AND
5) Tenant vacated premises

Question 16

Is a sublessee liable to the landlord for anything?

Answer 16

No–not liable to landlord for rent or other covenants (no privity of estate or contract)

Question 17

What is an equitable servitude?

Answer 17

A covenant that equity will enforce if the burdened estate had notice of covenant (regardless of whether it runs with the land)

Question 18

Does an easement in gross pass to subsequent owners?

Answer 18

No, UNLESS the easement is for commercial activity

Question 19

What are the four ways to create an easement?

Answer 19

1) Grant
2) Prescription
3) Implication
4) Necessity

Question 20

When is an easement by prescription created?

Answer 20

Possessor’s use of land is:
1) open and notorious
2) continuous;
3) hostile (without permission from the land owner) AND
4) for the statutory period (i.e. 10 years)

Question 21

What is required for an easement to be terminated by abandonment?

Answer 21

Must have a physical action showing an intent to never use the easement again

Question 22

When can a licensor be estopped from revoking the license?

Answer 22

Normally can be revoked at any time, but may be estopped if licensee invested substantial money/labor in reasonable reliance

Question 23

What is a fixture?

Answer 23

Personal property so affixed to the land that it becomes part of the land

Question 24

What is the test for whether something is a fixture?

Answer 24

Objective intent of the installer

Question 25

What are the elements of adverse possession?

Answer 25

Possession must be:
1) Continuous for the statutory period
2) Open and notorious - would put true owner on notice
3) Exclusive
4) Actual (possess as true owner would) AND
5) Hostile (without consent)

Question 26

What is the doctrine of constructive adverse possession?

Answer 26

Even if you only possess a portion of land under color of title, adverse possession extends to the entire portion of land

Question 27

What are the requirements for a valid land sale contract?

Answer 27

1) Writing (SOF)
2) describe property
3) identify parties
4) contain purchase price, AND
5) be signed by grantor/grantee (depending on whoever is enforced against)

Question 28

Do zoning restrictions make title unmarketable?

Answer 28

No–only zoning violations make it unmarketable

Question 29

How does the time for performance in a land sale contract change with a “time is of the essence clause”?

Answer 29

If buyer fails to perform on closing, it’s a material breach and seller can keep down payment

Question 30

What is the home builder’s implied warranty?

Answer 30

Protects buyers of newly built homes from LATENT defects and warrants home is safe and fit for human habitation

Question 31

What are the requirements for a valid deed?

Answer 31

1) in writing
2) signed by grantor;
3) identifies parties (grantor/grantee)
4) describes the property AND
5) indicates intent of grantor to convey land

Question 32

When will intent of a grantor to convey land NOT be found?

Answer 32

If
a) grantor expressly reserves right to revoke deed or
b) gives an instruction to only deliver the deed upon grantor’s death