Essay Rules Flashcards

Question

life tenant duties

Answer 1

WRITe waste repairs interest on mortgage taxes **for mortgages: If a preexisting mortgage obligation requires the periodic payment of interest only, then the life tenant pays the interest and the future-interest holder pays the later-due principal. But if periodic payment of interest and principal is required, then both payments must be allocated between the parties based on the present value of each interest.

Answer 2

NEVER ok for FSA otherwise must be reasonable, time limit unreasonable? strike it

Answer 3

undivided interest in entire property freely devisable/transferable

Answer 4

must be married can only mutually agree to break, divorce, execution by joint creditor no involuntary partition

Answer 5

Rights PREP repairs: can collect in accounting or partition action, but not for improvements. cannot get contributions possession (ouster/adverse possession as issue) rent from 3P and profits from removal of natural resources in proportionate share, do not owe rent to other coowners expenses: can collect unless in physical possession and value of use equals or outweighs possession partition: in kind or by sale repairs: contributions. can also sell/lease/mortgage

Answer 6

no interest in property is good unless it must vest if at all within 21 years of a life in being at time of creation of the interest

Answer 7

normal contract req's SoF describe land implied covenant of marketable title: no encumbrances (zoning, adverse possession, encumbrances) no false statements of material fact

Answer 8

-present intent to transfer -acceptance -written to satisfy SOF -delivered (recording means presumptively delivered) words in deed: writing and signed by grantor; ID grantor and grantee, ID land, words of transfer, price

Answer 9

delivered to grantee delivered to third party agents: ok unless grantee says I can take back testamentary transfers saying it'll be given in future is not intent recording means presumptively delivered

Answer 10

OCEAN open and notorious continous/tacking exclusive actual not consensual/hostile **look out for disabilities

Answer 11

present: seisen, right to convey, against encrumbrances future: quiet enjoyment, warranty, further assurances ## Footnote Sale Can't End, Quick While Fabulous

Answer 12

like mortgage but writing grants interest in property as security for obligation, but deed goes to third party as trustee

Answer 13

grantor owns property

Answer 14

grantor has right to make conveyance

Answer 15

no servitudes on land

Answer 16

grantor promises that grantee will not be disturbed in possession by a 3rd party’s lawful claim of title.

Answer 17

grantor promises to defend grantee should there be any lawful claims of title asserted by others. those claims must be successful for this to be triggered.

Answer 18

grantor promises to do whatever future acts are reasonably necessary to perfect the title if it later turns out to be imperfect.

Answer 19

presumed if delivered -oral condition: Evidence that the grantor gave the deed to the grantee subject to an oral condition is inadmissible to rebut this presumption, and the condition is unenforceable. written condition: admissible to rebut presumption

Answer 20

The Uniform Statutory Rule Against Perpetuities takes a "wait and see" with respect to the applicability of the Rule Against Perpetuities. Under this approach, an otherwise invalid interest is valid if it does in fact vest within 90 years of its creation

Answer 21

do not interrupt tenant's possession/enjoyment + take action against other tenants nuisance

Answer 22

reasonably suited for residency. need notice to LL and reasonable opportunity to fix

Answer 23

actual or minority-constructive can excuse nonpayment of rent

Answer 24

The grant of a nonposessory property interest that entitles its holder to go onto and do something on another’s land, called the servient tenement.

Answer 25

The grant of a nonpossessory property interest that entitles its holder to prevent the servient landowner from doing something that would otherwise be permissiable. LASS = light, air, support, stream of water from artificial flow

Answer 26

when it benefits the holder in his physical use or enjoyment of property. 1. It takes 2 parcels to make an easement appurtenant. 2. It passes automatically with the dominant tenement, regardless of whether it is even mention in the conveyance and with the servient estate (unless the new owner is a bona fide purchaser without notice of the easement).

Answer 27

confers upon its holder only some personal or pecuniary advantage that is not related to his or her use of enjoyment of his land. 3. Not transferable unless it is for commercial purposes.

Answer 28

END CRAMP i. Estoppel – If servient owner materially changes her position in reasonable reliance on the easement holder’s assurance that the easement will no longer be enforced – the easement holder is estopped from enforcing the easement. ii. Necessity: if created by necessity, it expires as soon as the necessity ends (but if created by express grant, no automatic end) iii. Destruction of the servient land, other than through the willful conduct of the servient owner will terminate the easement. iv. Condemnation of the servient estate by eminent domain will terminate the easement v. Release (written) given by the easement holder to the servient owner will terminate. vi. Abandonment: easement holder must demonstrate by physical action the intent to never use the easement again. vii. Merger doctrine: the easement is extinguished when title to the easement and title to the servient land become vested in the same person. viii. Prescription – adverse possession – interference w/ an easement which is COAH

Answer 29

Entitles its holder to enter the servient land and take from it the soil or some substance of the soil created in same way as easements but not by necessity A profit may generally be transferred (eg, assigned) unless the profit is personal or transfer would be contrary to the intent of the parties creating the profit.

Answer 30

the general or common scheme doctrine – an implied equitable servidude will hold an unrestricted lot holder to a restrictive covenant if: i. When the sale began, the subdivider had a general scheme of residential development which included the purchaser’s lot ii. The lotholder had notice of the promise contained in the prior deeds (actual, inquiry, record)

Answer 31

defense to equitable servitudes where the party seeking release from the terms of the equitable servitude must so that changed conditions are so pervasive that the entire areas has changed.e

Answer 32

once the contract is signed, Buyer is owner of the land, subject of course to the condition that he pay the purchase price at the closing so Buyer bears risk of loss

Answer 33

-marketable title -no false statements of material fact -NO implied warranty of habitability or fitness

Answer 34

seller liable for failing to disclose known latent material defects – seller is responsible for his material lies and his material omissions. disclaimers will not excuse, but can disclaim if no false statement or hiding of the defect and in K

Answer 35

one who takes from a BFP will prevail against any entity that the transferor BFP would have prevailed against.

Answer 36

if a deed, entered on the record (A to B), has a grantor unconnected to the chain of title (O to A), the deed is a wild deed. It is incapable of giving record notice of its existence.

Answer 37

one who conveys realty in which he has no interest, is estopped from denying the validity of that conveyance if subsequently acquires the interest that he previously transferred.

Answer 38

future interest in grantee springing: owner shifting: third party

Answer 39

absent express contrary intent, a class closes (i.e. no one born after that time may share in the gift) when some member of the class can call for distribution of her share of the class gift exception to general rule: (“bad as to one, bad as to all”)—if RAP voids a transfer to any class member, then the transfer is void as to all class members, even those whose interests have already vested

Answer 40

a remainder in a life tenant-grantee’s heirs is deemed to be in a life tenant herself.

Answer 41

A remainder in the grantor’s heirs is ineffective, so grantor has a reversion.

Answer 42

Contingent remainders are destroyed if not vested at time of termination of preceding estate

Answer 43

when grantor grants estate less than his own

Answer 44

LL can sue T1 or T2. granting of entire remainder of lease. T1 has privity of contract T2 has privity of estate

Answer 45

LL can only sue T1. granting of just one part of the remaining time on lease.

Answer 46

generally no liability unless CLAPS common areas: make safe latent/hidden defects: must warn but not duty to repair assumption of repairs public use: leasing spaces for public use short term furnished rentals

Answer 47

conveyance of a security interest in land, intended by the parties to be collateral, for the repayment of a monetary obligation.

Answer 48

a promise to pay back the money, and if they don't, the lender can take the property

Answer 49

The creditor-mortgagee can transfer his interest by (1) endorsing the note and delivering it to the transferee OR (2) Executing a separate document of assignment. the transferee is eligible to become a holder in due course. This means that he takes the note free of any personal defenses that could have been raised against the original mortgagee and can foreclose

Answer 50

If buyer has assumed the mortgage: both grantor and buyer are personally liable. Buyer is primarily liable, while grantor is secondarily liable. If buyer takes subject to the mortgage: buyer assumes no personal liability, only the grantor is liable. But, if recorded, the mortgage remains on the land. Thus if grantor doesn’t pay the mortgage, the property may be foreclosed.

Answer 51

Foreclosure will terminate interests junior to the mortgage being foreclosed, but will not affect senior interests junior interests must receive notice of mortgage proceedings for them to be extinguished

Answer 52

a mortgage given to secure a loan that enable the debtor to acquire the land is superior to previous interests As between two PMMs, a seller's PMM will take priority over a third-party PMM.

Answer 53

equitable: at any time prior to the foreclosure of the sale the debtor has the right to redeem the land and free it of the mortgage. pay outstanding payments and interest. statutory: gives the debtor a statutory right to redeem for some fixed period after the foreclosure sale has occurred (typically 6 mo. - a year). pay foreclosure sale price.

Answer 54

If land is improved by buildings and an adjacent landowner’s excavation causes that improved land to cave in, the excavator will be liable only if he acted negligently. Strict liability does not attach to the excavator’s actions unless plaintiffs shows that, b/c of defendant’s actions, plaintiffs improved land would have collapsed even in its natural state.

Answer 55

1. The water belongs to those who own the land bordering the water course 2. These people are known as riparians who share the right of reasonable use of the water (natural use trumps unnatural use). 3. Thus, one riparian will be liable if his or her use unreasonably interferes with others’ use.

Answer 56

1. The water belongs initially to the state, but the right to divert it and use it can be acquired by an individual regardless of whether or not she happens to be a riprarian owner. 2. Rights are determined by priority of beneficial use. The norm for allocation is first in time, first in right. Any productive or beneficial use of the water, including use for agriculture, is sufficient to create the appropriate right.

Answer 57

surface owner is entitled to make reasonable use of groundwater.

Answer 58

i. The common enemy rule: a landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water. ii. Many courts have modified the rule to prohibit unnecessary harm to others land

Answer 59

so long as that increase does not unreasonably damage or interfere with the use or enjoyment of the servient estate. prescription: nature and extent of adverse use implication: existing quasi-easement necessity: extent of necessity express: written terms

Answer 60

The mortgagee can take possession of the mortgaged property if the mortgagor abandons it. Once in possession, the mortgagee incurs liability as if he/she were the owner.

Answer 61

Open Seller may use other brokers to sell listed property & commission goes to whichever broker finds buyer during listing period Exclusive agency contract Seller can find buyer &, if seller does so without broker's assistance, broker receives no commission Exclusive right to sell Commission goes to broker if property is sold during listing period, no matter who finds buyer

Answer 62

A real estate contract must be performed on the closing date when time is of the essence—ie, (1) the contract states that "time is of the essence," (2) circumstances indicate that the parties intended to strictly adhere to the closing date, or (3) one party notifies the other within a reasonable time before closing.

Answer 63

The common-law doctrine of exoneration applies when a testator makes a specific devise of real property subject to an encumbrance (eg, mortgage). It allows the devisee to have the property "exonerated" by payment of the encumbrance from the remaining assets in the testator's estate. most states have abolished

Answer 64

A promissory note can be assigned to another independent of the mortgage. And unless the parties agree otherwise, the mortgage automatically transfers with the note once the note has been properly assigned.

Answer 65

A property owner may proceed with plans for nonconforming use after a zoning change if he/she has a vested right in that use. A vested right exists if, at the time a zoning change takes effect, the property owner has (1) secured any necessary permits in good faith and (2) made substantial progress toward achieving the use.

Answer 66

A mortgagor can avoid foreclosure by conveying title to the mortgaged property to the mortgagee ("deed in lieu of foreclosure"). Deed-in-lieu transactions are generally valid so long as they are fair to the grantor-mortgagor and not simply a means of continuing the original mortgage (ie, equitable or "disguised" mortgage).

Answer 67

A builder or other commercial seller of a newly constructed residence gives a warranty of fitness or suitability to the buyer. The courts have implied such a warranty. The warranty covers material defects that could not have been uncovered by the buyer through a reasonable inspection prior to purchase must be brought within reasonable time

Answer 68

A mortgagor has a duty not to commit waste with respect to the mortgaged property when such waste impairs the mortgagee’s security interest in that property.

Answer 69

contingent remainders executory interests class gifts subject to open **doesn't apply to vested remainders unless subject to open and powers of appointment rights of first refusal and options may be unless commercial RAP does not apply to FIs that revert to the grantor (reversion, possibility of reverter, right of reentry)

Answer 70

Future interest that will divest, or terminate, an earlier interest.

Answer 71

first to the costs associated with the sale, second to the balance and interest of the mortgage obligation being foreclosed, and third to the mortgage obligations owed to junior interest holders in the order of the priority of their interests. Any remainder is paid to the debtor-mortgagor, while senior interests remain unaffected.

Answer 72

If a person enters property under color of title (a facially valid will or deed) and actually possesses only a portion of the property, then constructive adverse possession can give title to the whole.

Answer 73

The holder of a future interest, such as a remainder interest, has a license to inspect the property for waste

Answer 74

Majority: Must disclose known material defects that buyer could not reasonably discover for residential property Exception: "as is" clause or specific disclaimersa without seller's fraud minority: caveat emptor no duty

Answer 75

while an outstanding mortgage does constitute an encumbrance, if the amount of the mortgage is less than the selling price, at closing the seller can apply the proceeds from the sale of the property to pay off the balance of the mortgage and remove the encumbrance.

Answer 76

A tenant can remove trade fixtures—items the tenant attached to real property for use in his/her trade or business—without the landlord's consent if: the removal will not substantially harm the property (eg, will not degrade the building's structural integrity) and the items are removed before, or within a reasonable time after, the lease terminates.

Answer 77

Accessions are items that are so attached to other property that they cannot be removed without causing substantial damage.

Answer 78

Under the intermediate theory of mortgages, a mortgagor is entitled to possession until default, at which time the lender acquires legal title (ie, the right to own and possess) to the mortgaged property.

Answer 79

A minority of jurisdictions apply the doctrine of merger when the same person acquires the mortgagee's interest in real property and the mortgagor's interest in that same property. When this occurs, the mortgage merges into the fee estate and is thereby extinguished. As a result, the mortgagee has no lien on which to foreclose and any junior liens are promoted in status. However, most jurisdictions have adopted the Restatement's position that the merger doctrine does not apply to mortgages (default rule on the MBE). Instead, a mortgagee that receives a deed in lieu of foreclosure is treated as having impliedly retained the right to foreclose on its mortgage—unless it had actual knowledge of a junior lien. If so, then the mortgagee cannot foreclose on its mortgage to eliminate that junior lien

Answer 80

cut short by specified event

Answer 81

o Permissive—occurs when LT permits the premises to deteriorate through neglect, failure to preserve, or a failure to reasonably protect the property; LT must make reasonable repairs (up to amount of income produced by property or, if LT is in actual possession, the fair rental value) o Voluntary— occurs when the condition of the property is substantially changed due to LT’s affirmative action Decrease in property value—not permitted No decrease in property value—ameliorative waste; permitted when the change results in a reasonable use of the property unless future interest holders have reasonable objection Holder of any future interest—may bring suit against LT for an injunction

Answer 82

RAP does not apply

Answer 83

Co-T owes a duty of fair dealing to other co-Ts, but generally does not owe fiduciary duties to other co-Ts; exception: a co-T buys the property at a tax or foreclosure sale (the other co-Ts can buy back their interests within a reasonable time)

Answer 84

federal Fair Housing Act (FHA) prohibits discrimination in the sale, rental, and financing of homes and in other housing-related transactions (such as advertising, homeowner’s insurance, and zoning) Exemptions—owner-occupied buildings with no more than four units (including the owner’s unit) and single-family homes sold or rented without a broker are generally not subject to FHA (but are subject to advertising rules) Protected classes—prohibition applies to discrimination based on race, color, religion, national origin, sex, disability, and familial status Racial discrimination—plaintiff need only show a disparate racial impact, not a racial intent or purpose

Answer 85

o Generally, L may assign lease rights and obligations to a third party (e.g., as part of a transfer of ownership) but L remains liable to T for all covenants in the lease o T must pay rent to assignee-L and obey lease covenants; assignee-L must perform any burden imposed by lease covenant o Attornment (T’s acknowledgment of a new L)—usually arises automatically upon payment of rent to assignee-L or notice to T but formal acknowledgment of an assignee-L’s ownership may be required in commercial leases

Answer 86

buyer’s deposit as liquidated damages—generally, deposits of no more than 10% of the purchase price have been found to be reasonable liquidated damages,

Answer 87

protects policy holder (owner or lender) against defects that could have been uncovered by careful title search or forged/undeliverable/unenforceable deeds

Answer 88

o Disabling restraint—total prohibition on the transfer of the property interest by its owner; always void o Forfeiture restraint—property is forfeited if the interest owner attempts to transfer his interest; restraint on a future interest or a life estate can be valid o Promissory restraint—a promise by the property interest holder not to transfer the property interest; enforceable by an injunction or a suit seeking damages; restraint on a life estate can be valid

Answer 89

transfers unrestricted title to RP (may actually be a disguised mortgage if an obligation is created contemporaneously with the transfer)

Answer 90

RP sold and then leased back to the seller; if the lease is for a long time with option to repurchase, may be a disguised mortgage