Ownership Issues

Question 1

Life Estates

Answer 1

[Ownership → Present Estates] An interest in property, the duration of which is measured by the lifetime of a person. The measuring life is the grantee’s life unless another life is specified.

Question 2

Tenancy in Common

Answer 2

[Ownership → Co-Tenancy] Interest in land held by two or more persons, each having a possessory right to equal use and possession of the land even if they have unequal shares in the property. No right of survivorship exists, and each tenant’s interest may be partitioned, sold, or encumbered. Compare with JT and TBE.

Question 3

Joint Tenancy

Answer 3

[Ownership → Co-Tenancy] A single estate in property owned by two or more persons whom each have an equal right in the use and enjoyment of the property and including survivorship rights. Creation of a JT requires the presence of the four unities of title, time, interest, and possession.

Question 4

Tenancy by the Entirety

Answer 4

[Ownership → Co-Tenancy] Ownership of the property by a husband and wife together, which requires the four unities of time, title, interest, and possession, and includes a right of survivorship. Neither party may alienate any part of the property nor sever the tenancy, except through mutual written agreement, divorce, annulment, or death. Compare with joint tenancy and tenancy in common.

Question 5

(Right of) Partition

Answer 5

[Ownership → Co-Tenancy → Rights and Obligations of Co-tenants] A judicial separation of the respective interest in land of joint owners or tenants in common, allowing each to take possession of, enjoy, and control his or her separate estate at his or her own pleasure. When partition of the land itself is not feasible, the judge may order a sale of the property and a partition of the proceeds.

Question 6

Contingent Remainders

Answer 6

[Ownership → Future Interests → Remainders →] A remainder created in favor of an ascertained person, but subject to a condition precedent in favor of an unboard person, or in favor of an existing, but ascertained person. Compare with vested.

Question 7

Executory Interests

Answer 7

[Ownership → Future Interests →] A future interest in land held by a third party which follows a qualified fee or any interest held by the grantor. Compare with shifting and springing interests.

Question 8

Executory Interests → Shifting Executory Interests

Answer 8

[Ownership → Future Interests → Executory Interests] A non-reversionary future interest following a qualified interest help by another grantee.

Question 9

Executory Interests → Springing Executory Interests

Answer 9

[Ownership → Future Interests → Executory Interests] A non-reversionary future interest following an interest in the grantor.

Question 10

Possibility of Reverter

Answer 10

[Ownership → Future Interests → Possibility of Reverter] The possibility of the return of an estate in land to the grantor, if a specific event should occur or a particular act be performed in the future.

Question 11

Covenant of Habitability

Answer 11

[Ownership → LL/T → Rent → Breach of Covenant of Habitability] A promise by a LL that at the inception of the lease, there are no latent defects in facilities vital to the use of the premises for residential purposes and that these facilities will remain in usable condition during the duration of the lease.

Question 12

Periodic tenancies

Answer 12

[Ownership → LL/T → Types of Holdings: Creation and Termination → Periodic Tenancies] pg. 63 A tenancy for a particular period of time, with the expectancy that the period will be repeated.

Question 13

Assignment

Answer 13

[Ownership → LL/T → Assignment & Subletting] pg. 64 Transfer of the lessee’s entire interest in the lease, making the assignee primarily liable to the LL for the rent, and the original tenant only secondarily liable. Compare with sublease.

Question 14

Constructive eviction

Answer 14

[Ownership → LL/T → Rent → Defenses to Rent Obligation → Eviction] pg. 69 Circumstance controlled by the LL that compel the T to leave the premises though he is not asked to do so by the LL. (For example, failure to maintain the premises in a condition fit for occupancy.)

Question 15

Rule Against Perpetuities

Answer 15

[Ownership → Special Problems → RAP] pg. 76

• Limits the kinds of conditions you can put on the transfer of an interest in property
• Restricts grantors
• Rule Statement 1: The rule that no [contingent] interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest. Designed to prevent the remoteness of vesting of estates or interests in property.
• Rule Statement 2: If there is ANY possibility (even if highly unlikely) that a non-reversionary future interest might VEST more than 21 years after the death of all the LIVES IN BEING present at the creation of the interest, then the interest is void. If the interest is void, it is treated as if it was never created.

Common DISTRACTOR ANSWER on the MBE.

Only 2-3 questions will actually apply this rule.

Question 16

Covenant that run with the land

Answer 16

[Non-Possessory Rights in Land of Another → Covenants that run with Land/Equitable Servitudes] pg. 82 aka Real Covenant Written promise, usually found in a deed, to do something on land (like cut the lawn), or not do something on the land (like park an RV there). For the burden to run to successive estates, the following requirements must be satisfied: intent, notice, horizontal and vertical privity, and it must touch and concern the land. For the benefit to run, the intent, vertical privity, and touch and concern prongs must be met. The remedy available is money damages only. Compare: equitable servitude. 11

Question 17

Equitable servitude

Answer 17

[Non-Possessory Rights in Land of Another → Covenants that run with Land/Equitable Servitudes] pg. 82 A covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of he burdened land who have notice of the covenant. The usual remedy, though, is an injunction, not damages.

Question 18

Easements

Answer 18

[Non-Possessory Rights in Land of Another → Easements, Profits and Licenses → Easements] pg. 88 A non-possessory right, created by an express or implied agreement, of one owner of land to make lawful and beneficial use of the land of another. An easement is a property right.

Question 19

Easements by implication

Answer 19

Non-Possessory Rights in Land of Another → Easements, Profits and Licenses → Easements → Creation of Easements → Easements by Implication] pg. 91 Easement created by the operation of law without a writing, where the dominant and servient estates muct have been held in common ownership at the time the easement was allegedly created, the servient estate was used in an apparent and continuous way such that a quasi easement could be said to exist, and the continued use of the quasi easement must be reasonably necessary to the enjoyment of the dominant estate.

Question 20

Easements by necessity

Answer 20

Non-Possessory Rights in Land of Another → Easements, Profits and Licenses → Easements → Creation of Easements → Easements by Necessity] pg. 92 Easement created by the operation of law without a writing, in which the dominant and servient estates much have been held in common ownership at the time the easement was allegedly created, and in which the easement is strictly necessary for the use of the land – that is, the land would be practically incapable of use without the easement.

Question 21

Profits (profit a prendre)

Answer 21

Non-Possessory Rights in Land of Another → Easements, Profits and Licenses → Profits] pg. 95 Easement right to go on the land of another and right to sever and own something from the land, such as gravel, trees or water.

Question 22

Licenses

Answer 22

Non-Possessory Rights in Land of Another → Easements, Profits and Licenses → Licenses] pg. 96 A right given by the owner of land that permits a person to go onto and use the owner’s land. It is revocable at will and is not considered to be a property interest.

Question 23

Prescription

Answer 23

[Non-Possessory Rights in the Land of Another → Easements, Profits and Licenses → Easements → (?)] Means of acquiring an easement by the open, continuous, adverse use of land of another over a statutory period. Requisite elements are similar to adverse possession.

Question 24

Waste

Answer 24

Act(s) by one rightfully possessing less than a fee simple in land (e.g., a life tenant) that decreases the value of the land or the value of a future interest in the land.

Question 25

Fixtures

Answer 25

An item of personal property which becomes part of the real estate because it becomes affixed or attached to the real estate.

Question 26

Eminent domain

Answer 26

[Non-possessory rights in the land of another → Taking and aspects of zoning → Eminent Domain] pg. 104 The power to take private property for public use by the state, municipalities and private persons or corporations authorized to exercise functions of public character.

Question 27

Statute of Frauds

Answer 27

Rule of law that requires that any contract affecting an interest in real property be in writing to b enforceable.

Question 28

Equitable conversion

Answer 28

Doctrine providing that a purchaser who as a valid and binding agreement to convey (and thus can compel a conveyance of the land in an action for specific performance) be treated as the equitable owner of the property, despite the fact that the purchase price has not been paid. As a result, if the property is destroyed before the price is paid and legal title transferred, the purchaser bears the liability.

Question 29

Mortgages

Answer 29

A conveyance of the interest in land of a debtor to his or her creditor, intended as a security for the repayment of a loan, usually part or all of the purchase price of the property itself. See lien theory and title theory. The debtor is the mortgagor, the creditor is the mortgagee (bank).

Question 30

Lien theory of mortgages

Answer 30

In a lien theory state, the mortgage conveys only a lien on the property to the mortgagee. Title to mortgaged property remains with the mortgagor (homeowner) pending payment of the note. Mortgagee (bank) holds only a lien on the property. The lender/mortgagee has a right to foreclosure.

Question 31

Title theory of mortgages

Answer 31

In a title theory state, the mortgage conveys title to land to the mortgagee (bank). The lender/mortgagee (bank) has legal title to the land. Title passes back to the homeowner only when full payment is made.

Question 32

Subrogation

Answer 32

Real Property Mortgages → Transfers by Mortgagor → Application of Subrogation and Suretyship Principles] pg. 119 One’s payment or assumption of an obligation for which another is primarily liable, (e.g., the payment of another’s mortgage debt, which entitles him or her to the security interest, the mortgage help by the creditor.)

Question 33

Adverse possession

Answer 33

[Titles → Adverse Possession] pg. 124 Way to acquire complete title to land as against all others, including the record owner, through Exclusive, Notorious and Open, Hostile, and Uninterrupted use of the property for the statutory period. (Compare with prescription) OCEANS • O → Open – not secretive • C → Continuous – uninterrupted • E → Exclusive – no one else possesses as owner • A → Adverse – w/o permission • N → Notorious – same as open • S → Statutory period – 20 years

Question 34

Tacking

Answer 34

• Applies to adverse possession • Current owner/possessor adds time of a former owner/possessor to meet 20 year period • Proper between owners or adverse possessors

Question 35

Covenants of title

Answer 35

[Titles → Conveyancing by Deed → Covenants of Title] pg. 132 Guarantee given by grantor to promise that title is of a particular quality.

Question 36

Requirements of a valid deed

Answer 36

[Titles → conveyance by deed → Generally – Requirements of a Valid Deed] pg. 129 Evidence of intent to transfer title. Requirements: (Deeds Need Simple Words) • D → Description of the property • N → Name of the grantee • S → Signature of the grantor • W → Words of conveyance • In MD: o Notary required o Recorded – in order to be effective against 3rd party (unrecorded deed is only effective between grantor and grantee) o Leases of more than 7 years must be recorded. Does NOT require: Precise description, seal, witness, consideration

Question 37

Quitclaim deed

Answer 37

[Titles → conveyance by deed → Types of deeds → Quitclaim] pg. 129 A deed that conveys only whatever right title or interest the grantor has, without any covenants of title or other representations that the grantor even has any interest whatever in the property for which the deed was given.

Question 38

Purchase money mortgages

Answer 38

A purchase money mortgage [PMM] must contain an Affidavit of Consideration to have priority over third party pre-existing liens of the buyer. PMM has priority over prior judgment liens of the BUYER (the PMM mortgagor) PMM does NOT have priority over the seller’s prior mortgages or liens attached to the property due to judgments against seller

Question 39

Lateral support

Answer 39

[Non-Possessory Rights in the Land of Another → Other Interests in Land → Scope and Extent of Real Property → Superadjacent, adjacent, and subjacent space] pg. 99 Right of an owner of real property to have his or her land, in its natural condition, supported and help in place from the sides by his or her neighbor’s land.

Question 40

Subjacent support

Answer 40

[Non-Possessory Rights in the Land of Another → Other Interests in Land → Scope and Extent of Real Property → Superadjacent, adjacent, and subjacent space] pg. 99 Right of an owner of real property to have the surface of his or her land supported by the underlying strata of the earth. Where someone else owns, leases, or has an easements in the areas of land below the surface, the right is to support of the land in the condition it was in at the time of the conveyance of the right to subjacent areas

Question 41

Priority of liens

Answer 41

The priority of liens follows the first in time, first in right rule with limited exceptions.

Question 41

Named vested remainderman dies before the life tenant. Does NOT leave a will. Who takes interest?

Answer 41

If the named vested remainderman does before the life tenant and does NOT leave a will (dies intestate), his heirs take the interest.

Question 41

Fee Simple Determinable

Answer 41

To X so long as the premises are used for church purposes Creates a possibility of reverter as the type of interest created in the grantor

Question 42

There is a class gift - afterborn members of the class can join until when?

Answer 42

If there is a class gift (a gift to children or grandchildren) afterborn members of the class can join the class until the class closes. The class closes at the time any member of the class is capable of taking possession of the gift UNLESS the grantor indicates otherwise.

Question 42

Fee simple subject to a condition subsequent

Answer 42

To X but if alcoholic beverages are served on the premises, then the grantor has a right to reenter Creates a right of reentry for condition broken as the interest in the grantor (transferor)

Question 43

If there is a remainder to the children of a living person and one or more children are in existence, then during the prior estate the interest in the children is called what?

Answer 43

Subject to open or Subject to partial divestment

Question 43

A fee simple determinable (“to x so long as…”) or fee simple subject to a condition subsequent (“to x but if y happens then the grantor has the right to reenter”) are the only devices which will allow a seller who retains no land to…what?

Answer 43

Control use of the property

Question 44

Can a future interest be alienated prior to it’s becoming possessory?

Answer 44

Yes. A future interest can be alienated prior to it’s becoming possessory

Question 44

The interest created in a third person after a fee simple determinable or a fee simple subject to a condition subsequent is…

Answer 44

An executory interest, which is subject to the rule against perpetuities. Unless that interest must vest or fail within the period of the Rule (lives in being plus 21 years) it is void.

Question 45

The interest in the “heirs” of a living person is contingent - why?

Answer 45

The interest in the heirs of a living person is contingent, because heirs cannot be determined until death.

Question 45

Remainder (starter statement/definition)

Answer 45

An interest created in a third party in the same instrument as the prior possessory interest and can take in possession upon the termination of the prior interest.

Question 46

If there is a mortgage on property at the time it is conveyed to a life tenant and a remainderman, the life tenant is responsible for what?

Answer 46

If there is a mortgage on property at the time it is conveyed to a life tenant and a remainderman, the life tenant is responsible for paying the principle.

Question 46

Contingent remainder (foundational statement/definition)

Answer 46

A remainder is contingent if there is a condition precedent to its becoming possessory or the holders are unascertained.

Question 47

Any remainderman (including a contingent remainderman) can enjoin a life tenant from committing what?

Answer 47

Any remainderman (including a contingent remainderman) can enjoin a life tenant from committing waste.

Question 48

Interests NOT subject to the Rule Against Perpetuities (RAP)

Answer 48

1. Interests held by the grantor (such as reversion, possibility of reverty, right of entry); and,
2. Vested interests (other than vested remainders subject to open)