Property

Question 1

Tenancy for years

Answer 1

Leasehold estate for a fixed period of time, which automatically terms at the end of the lease period. A lease longer than a year requires a writing per the SOF

Question 2

Assignment

Answer 2

assignments occur when a Tenant transfers all of their remaining interests to a 3rd party.

Leases are freely assignable unless specified impermissible in the lease agreement.

A I waives that right to enforce the provision prohibiting assignment if they accept rent from assignee

Assignee is liable to the I for rent and all other covenants that run with the land.

Assignor also remains liable based on privity of K.

Question 3

Assignment clauses

Answer 3

Clauses are valid but narrowly construed against I if they know of and dont object, they effectively waive the clause

Question 4

Real Covenant def

Answer 4

a nonpossesory interest in a land that obligates the holder to either do something or refrain from doing something on the land. Breach of this is money damages

Question 5

To enforce the benefit of a RC

Answer 5

Requires

1) writing that satisfies the SOF
2) intent for the covenant to run
3) VP
4) covenant must touch and concern the land

Question 6

To enforce the burden of a RC

Answer 6

Requires

1) writing that satisfies the SOF
2) intent for the covenant to run
3) VP
4) covenant must touch and concern the land
5) HP
6) notice

Question 7

Notice to enforce the burden of a RC can be

Answer 7

Actual, Inquiry (revealed during inspection) or Constructive (as evidenced via proper recording).

Question 8

Equitable servitudes

Answer 8

covenant enforced by injunction. Enforcement of the benefit requires 1) a writing; 2) intent; and 3) it must touch and concern the land. To enforce a burden, you require all of the above plus notice.

Question 9

Easement

Answer 9

is a non-possessory interest (dominant) in land, for the use of someone else’s land (servient), which must be in writing to satisfy the statute of frauds. An easement is either in gross or appurtenant. Easements pass to subsequent owners as long as the new owner has notice.

Question 10

Gross easements

Answer 10

benefit a specific owner’s enjoyment and use of the land, but they are not attached to the land.

Question 11

Appurtenant Easement

Answer 11

easements benefit any owner’s enjoyment and use of the land and do attach to the land.

Question 12

To create an easement what are the 4 ways?

Answer 12

1) express grant; 2) prescription; 3) implication; or 4) necessity.

Question 13

Express grant (Easement)

Answer 13

express grant when it is in writing, signed by the grantor, identifies the land and parties involved, and indicates intent to convey. This writing must comply with the statute of frauds.

Question 14

Easement by Prescription

Answer 14

created in a similar manner as an adverse possession (less exclusivity), where the possessor’s use is open and notorious, continuous, hostile, and for the duration of the statutory period.

Question 15

Easement by Implication

Answer 15

created when a single tract of land is divided and the previous owner established use, the easement was intended to be permanent, the use affects the value of the land and is reasonably necessary for the new owner’s use and enjoyment of the land.

Question 16

Easement by necessity

Answer 16

An easement by necessity is created when a single owner subdivides their property and the access the easement provides is essential to the use of the property.

Question 17

Termination of an easement (END CRAMPS)

Answer 17

Estoppel
Necessity Ends
Destruction

Condemnation
Release
Abandonment
Merger
Prescription - servitude owner continuous interruperation for the use of the prescription period

Stated conditions terminate the easement

Question 18

Transfer of an easement

Answer 18

An easement appurtenant is transferred with the land to which it relates. The burden and benefit convey as well, but subject to the recording statute.

Question 19

Touch and concern means

Answer 19

it makes the land more useful or valuable

Question 20

Restraint on alienation

Answer 20

When a grantor attempts to forbid the sale of land that is being conveyed. Generally, a restraint is void, and the line item will be struck from the conveyance.

Question 21

Marketable tile

Answer 21

Implied in every land sales contract is an implied warranty that at closing the seller will give the buyer marketable title that is reasonably free of defects regardless of the type of deed contemplated in the contract. It need not be perfect, but it should be free from unreasonable risks of litigation involving the property.

Question 22

Purchasers have a duty to

Answer 22

report defects

Question 23

Marketability challenges as it relates to unmarketable title must be made

Answer 23

before deed transfer, otherwise they will merge into the deed.

Question 24

Tenants in common

Answer 24

concurrent estate held with no right to survivorship. Tenants can hold different interests in the property, but each is entitled to possession of the whole. Interests are alienable, devisable and inheritable.

Question 25

CO-tenancy repairs

Answer 25

Each co-tenant is responsible for their fair share of carrying costs (taxes, mortgage interest payments) based upon the undivided share that they hold. A co-tenant that makes repairs is entitled to contribution for reasonable and necessary repairs repairs provided they notified the others of the need.

Question 26

Contribution for taxes paid

Answer 26

A co-tenant who pays more than his share of necessary property related expenses (e.g., property taxes, mortgage payments), generally can compel the other co-tenants to contribute based on the ownership interest of each co-tenant. However, a co-tenant in sole possession of the property can collect only to the extent that those expenses exceed the rental value of the property.

Question 27

Sharing of rental fees by co-tenants

Answer 27

co-tenant must account to other co-tenants for rent received from third parties, but can deduct expenses, including necessary repairs, when calculating net proceeds. Net proceeds from a third party rental of the property are divided among the co-tenants based on the ownership interest of each co-tenant.

Question 28

Joint tenancy

Answer 28

is a conveyance of real property to two or more persons, which includes a right of survivorship.  Requires four unities, 1) time; 2) title; 3) interest; and 4) possession.  (Think T-TIP)

Question 29

Joint tenancy severance

Answer 29

A JT can be servered through a devise, sale or gift without approval or even notice from other joint tenants. A JT cannot be severed at death since title automatically passes to the other JT through right of survivorship

Question 30

If a joint tenant takes out a mortgage, in a lien theory jurisdiction the joint tenancy remains

Answer 30

inact

Question 31

If a joint tenant takes out a mortgage, in a title theory jurisdiction the joint tenancy

Answer 31

is severed and a TIC results

Question 32

Tenants in the entirety

Answer 32

is a joint tenancy held by a married couple with the right of survivorship.  It is only severable by divorce, death, a creditor of both spouses or mutual agreement.  Neither spouse alone can convey or encumber this real property interest.

Question 33

Legal possesion - American rule

Answer 33

landlord only has the duty to deliver legal possession, not actual possession.

Question 34

Legal possesion - English rule

Answer 34

actual possession is required.  The English Rule allows a lessee to terminate the lease and recover damages for the breach.

Question 35

Leaseholds

Answer 35

provides the tenant with a present possessory interest in real property.

Question 36

Periodic tenancy

Answer 36

tenancy that continues for a specified time until terminated by proper notice is a periodic tenancy.  Can be created by express agreement, or by implication if rent is paid at specific periods, or by law.  Requires notice of a full period, excepting a year to year tenant who only requires a 6-month notice.

Question 37

Tenancy at will

Answer 37

A tenancy at will is a tenancy that continues until either party terminates.  Requires notice of termination and reasonable time to quit the premises.

Question 38

Tenancy at sufferance

Answer 38

occurs when a tenant has wrongfully held over past the expiration of the lease.  The tenancy only lasts until eviction or landlord elects to hold the tenant to a new tenancy.

Question 39

Tenant Duties

Answer 39

A tenant must: 1) pay rent; 2) not commit waste; and 3) not use the property for illegality.  A landlord can terminate the lease or seek injunctive relief in the case of illegality by tenants.

Question 40

Ouster

Answer 40

tenant in common or joint tenant who is denied access to their property has been subjected to ouster.  A tenant in common cannot adversely possess an interest in a tenant in common absent an ouster. A co-tenant in exclusive possession of the property who merely rejects a demand by another co-tenant that the co-tenant in possession either pay rent or vacate a portion of the premises has not committed ouster. For an ouster to occur, the co-tenant in possession must refuse a demand by another co-tenant to use the property.

Question 41

Sublease

Answer 41

transfer of less than the full amount of the lease term to another.  A sub-lessee is only in privity with the sub-lessor and is not personally liable to the landlord for rent or for the performance of any of the covenants in the main lease unless the sub-lessee expressly assumes the covenants.  Someone who leases cannot sublease for longer than their own lease – if they do, the tenant can be ejected.

Question 42

Sublease from T does what for privity

Answer 42

Tenant 2 is not in privity of estate or privity of contract with the owner.

Question 43

Implied warranty of habitability

Answer 43

– Implied in every residential (not commercial) lease, requires the landlord provide a place to live that is reasonably suitable for human needs, including heat, running water and sewage disposal.  If breached, the tenant may move out and terminate the lease, withhold or reduce the rent, repair and deduct from the rent, or remain and sue for damages.

Question 44

Constructive Eviction

Answer 44

A breach of the lease’s implied covenant of quiet enjoyment, enjoyment, a constructive eviction occurs when 1) the landlord breached a duty to the tenant; 2) the breach caused a loss of substantial use and enjoyment of the premises; 3) the landlord was given notice and failed to remedy; and 4) the tenant vacated the premises. 

Question 45

Constructive Eviction damages

Answer 45

term lease and seek damages

Question 46

Self-help

Answer 46

Self-help refers to the actions a landlord takes to eject a tenant from their property.  Most states do not allow self-help; the landlord must, instead; 1) properly serve the tenant with notice of a lawsuit; and 2) obtain a court judgment of possession.  Tenant doesn’t pay + landlord changes the locks = Self-help.

Question 47

Waste

Answer 47

Affirmative waste is voluntary waste, permissive waste is through neglect, and ameliorative waste can be affected via improvements to the land that do not benefit later landowners.

Question 48

Fixtures

Answer 48

chattel attached to the land, thereby converting it from personal property to fixture.  Fixtures that can be removed from the land without causing damage and trade equipment are typically exceptions.

Question 49

Affrimative easement

Answer 49

allows the holder to affrimatively use another's land

Question 50

Negative easement

Answer 50

allows the holder to compel the owner not to use the land in a particular way

Question 51

Implied reciprocal negative easement

Answer 51

– Usually found in housing developments to enforce a common plan or scheme.  Requires 1) common grantor; 2) common plan or scheme; 3) other restricted lots; and 4) notice.

Question 52

Easement relocation

Answer 52

– An easement appurtenant cannot be moved if it was already reasonably decided. After the easement is created, the reason for location selection is irrelevant.  (Look for the MBE question relating to the access road that is no longer in a helpful place)

Question 53

Easement maintenance

Answer 53

An easement holder is required to make any repairs to the easement that become necessary over time.  If the land is damaged by the holder, they are responsible for repair.

Question 54

Profit

Answer 54

is an agreement that entitles its holder to enter the servient estate to extract resources.

Question 55

License

Answer 55

a privilege to enter another’s land for some identified narrow purpose.  A license need not be in writing and is freely revocable at the will of the licensor, unless estoppel applies to bar revocation.

Question 56

Recording statutes

Answer 56

recording statute provides guidance for the priority of ownership in real estate.  There are three types or recording statutes: race, notice, and race-notice.

Question 57

Race

Answer 57

whomever records first prevails, notice is irrelevant.

Question 58

Notice

Answer 58

subsequent bonafide purchaser will prevail in a title contest over a previous purchaser that failed to record.  The order of recordation is irrelevant.

Question 59

Race - Notice

Answer 59

subsequent bonafide purchaser prevails over a prior grantee only if they take the property without notice and record first.

Question 60

Notice to purchaser can be received by

Answer 60

actual inquiry or record

Question 61

Actual notice

Answer 61

personal knowledge from any sources

Question 62

inquiry

Answer 62

gained during a required and reasonable inspection

Question 63

record

Answer 63

you look to see if the deed is properly recorded to determine if there is record notice

Question 64

Shelter rule

Answer 64

Grantee (and donee) who takes from a BFP will prevail against an interest that the grantor BFP would have prevailed against, even if the grantee had actual notice of an unrecorded conveyance

Question 65

Doctrine of merger

Answer 65

Obligations contained in the contract, such as seller’s duty to deliver marketable title, merge into the deed and cannot thereafter be enforced unless the deed contains the obligation.

Question 66

Present covenant warranties

Answer 66

sesin, right to convey, covenant against encumbrances

Question 67

Seisin

Answer 67

grantor warrants that they own the estate they now claim to convey.

Question 68

Right to convey

Answer 68

grantor promises that they have the authority to make the conveyance.

Question 69

Covenant against encumbrances

Answer 69

grantor promises that there are no non-possessory interests, servitudes or mortgages on the land, other than those previously disclosed.

Question 70

Future covenant warranties

Answer 70

quiet enjoyment, warranty, and further assurances

Question 71

Quiet enjoyment

Answer 71

A promise that the grantee won’t be disturbed in possession by 3rd party’s lawful title claim.

Question 72

Warranty

Answer 72

A promise to defend the grantee if lawful claims of title asserted by others arise.

Question 73

Further assurances

Answer 73

A grantor promises to do whatever future acts are reasonably necessary to perfect the title conveyed.

Question 74

Quit claim deed

Answer 74

A deed that offers no warranties or assurances, and only passes whatever rights the seller has – even if the seller has no rights at all.

Question 75

Special warranty deed

Answer 75

covenants against title defects the grantor themselves create rather than all defects by all prior owners.

Question 76

Breach of warranty against encumbrances

Answer 76

If an encumbrance is found to exist after the sale, damages are equal to the difference in value of the property due to the encumbrance.

Question 77

Taking of a private property test

Answer 77

Rational basis – the government’s exercise of its eminent domain power is valid so long as the taking is rationally related to a legitimate government interest.

Question 78

Taking by exacations

Answer 78

government requests conveyance of title or granting access to the public, this is an illegal exaction, unless: 1) the government can show the condition the taking supports a legitimate government interest; 2) there is a rough proportionality between the size of the give-back demanded by the city and the burden on the public caused by the proposed development.

Question 79

Public benefit

Answer 79

Land taken for public benefit is proper if used to improve safety, health, education, political, social, welfare or aesthetics of the community.

Question 80

Adverse possession

Answer 80

allows someone in possession of land owned by another to acquire title if possession is 1) continuous; 2) hostile; 3) open and notorious; 4) exclusive; and 5) they actually possess the land.

Question 81

Hostile

Answer 81

adverse possessor must possess the land without the owner’s permission. The possessor, by possessing the land, must objectively demonstrate an intent to claim the land as his own. In the case of a co-tenant as the adverse possessor, the hostility requirement may be demonstrated by ouster.

Question 82

Open and notorious

Answer 82

Possession must be open and notorious such that a reasonable person upon an inspection would be aware of the possessor’s claim and use of land.

Question 83

Actual and exclusive

Answer 83

means the possessor is in actual possession of the property.

Question 84

Continuous

Answer 84

possession must be continuous for the statutory period. An adverse possessor may tack his predecessor's time on the land in order to meet the statutory period, provided there is privity between the successive possessors. Further, there cannot be any gaps in use. In addition, seasonal use may be continuous if it is consistent with the type of property that is being possessed

Question 85

3 defeasible fees

Answer 85

1) a Fee Simple Determinable, followed by a Possibility of Reverter; 2) a Fee Simple Subject to Condition Subsequent, followed by a Right of Re-entry; and 3) a Fee Simple Subject to Executory Interest, followed by an Executory Interest.

Question 86

Remainder

Answer 86

future interest held by a third person that becomes possessory upon the natural termination of a preceding estate.  (Normally following a life estate)

Question 87

Vested remainder

Answer 87

A vested remainder is a future interest in an existing and ascertained person that is guaranteed to become possessory.  Open – if there are other persons that may vest in the future, such as children that can be born that take an equal share of ownership.

Question 88

Contingent remainder

Answer 88

A potential future interest in land that is dependent upon the happening of a later event, or satisfaction of some condition precedent.

Question 89

Spring EI

Answer 89

future interest that cuts short a grantor’s reversionary interest in an estate, and doesn’t follow the natural termination of the preceding estate.  “To A for life, then to A’s oldest child over 18.”

Question 90

RAP

Answer 90

rule invalidates any interest in property if there is any chance the interest may vest more than 21 years after a measuring life in being at the creation of the interest.

Question 91

RAP Applies to

Answer 91

- Contingent Remainders (to A for life, then to the heirs of B) -           Executory Interests (To A, but if A marries, to B; to A for life, then to B if , but only if B grows a mustache) - Class Gifts (even vested remainders – to A for life, then to A’s children) - applies to right of first refusal if they are contract or covenant rights

Question 92

Life tenants responsibilities

Answer 92

A life tenant has a duty not to waste the land.  A future interest holder may sue for damages or enjoin such acts.  If they fail to keep the property in repair, pay taxes or pay interest on the mortgage, they are committing waste.  They do not, however, need to pay the mortgage, which is the responsibility of the remainderman.

Question 93

Income produced on the land belong to the

Answer 93

life tenant but if the land is vacant and unproductive, not required to pay taxes

Question 94

Fee simple mineral rights

Answer 94

If a grantee holds land in fee simple, they have a right to remove minerals.  Only a life tenant has to account to future interest holders regarding

Question 95

subject to the mortgage

Answer 95

the mortgagor sells the property and conveys a deed, a grantee takes subject to mortgage which remains on the land. The grantee can sign an assumption agreement, promising to pay the mortgage loan.  If so, they become primarily liable to the lender, while the original mortgagor becomes secondarily liable to the mortgagee as a surety.  Mortgagee can then go after either party to get the mortgage repaid.  The mortgagor will always be personally liable on the mortgage, only subsequent grantees who assume the mortgage will be personally liable, and all subsequent grantees, whether they assume the mortgage or not, can lose the property if it is foreclosed upon for the mortgage default.

Question 96

Foreclosure

Answer 96

Upon foreclosure, the mortgagor’s interest in the property is terminated.  The priority of a mortgage is determined by the time it was placed on the property.  A foreclosure will terminate interests junior to the mortgage being foreclosed. 

Question 97

what happens If proceeds from the foreclosure sale are insufficient? 

Answer 97

Foreclosed unpaid parties will then seek a deficiency judgment.

Question 98

Deed Conveyance

Answer 98

– Requires lawful execution, delivery and acceptance.  Lawful execution requires the deed be in writing, identify the parties, be signed by the grantor and provide an adequate property description.  For delivery to be valid, the grantor must demonstrate a present intent to transfer the interest - physical transfer is not required.

Question 99

Fair housing act

Answer 99

It is unlawful to refuse to sell or rent due to race, color, religion, sex, familial status or origin.  The act also prohibits discriminatory terms of sale, or discriminatory advertisement. 

Question 100

Exceptions to fair housing act

Answer 100

Exceptions exist for religious organizations, private clubs or apartment buildings with four or less units when the owner occupies one unit.  Here, the owner can discriminate, however cannot advertise preference

Question 101

Land sale contracts require

Answer 101

Require a writing, identifying the parties, signed by the party to be bound, description of the land or parcel, and state the consideration.

Question 102

Zoning laws

Answer 102

Zoning laws enforce land usage based upon city planning.  They are enforced by state or local government police power, and seek to control land use for the protection of the health, safety, morality and welfare of citizens.

Question 103

Non conforming use

Answer 103

Allows a landowner to continue to use his land in violation of a later enacted zoning law.  Requires the previous use be legal, that the use be continuous, and the use is not substantially increased.

Question 104

Variance

Answer 104

1) property owner may obtain a zoning variance if 1) the ordinance imposes a hardship; and 2) the variance will not be contrary to the public welfare.

Question 105

Spot Zoning

Answer 105

– If a zoning amendment confers a special benefit on a small land parcel regardless of public interest, it is generally invalid.  (If the regulation benefits a small group, then raise this issue.)

Question 106

Liquidated damages in sales K

Answer 106

A seller can keep deposits up to 10% if the buyer breaches.

Question 107

Title insurance

Answer 107

An owner’s policy continues to protect if the owner is ever successfully sued.

Question 108

dedication

Answer 108

a donation of land or creation of an easement for public use.  These dedications can be express or implied, and are typically associated with housing subdivisions, where a map or plan has been approved and recorded.

Question 109

Valid conveyance

Answer 109

requires deed formalities, delivery and acceptance

Question 110

Fees Simple Absoulte

Answer 110

is the most common form of property ownership and the broadest ownership interest recognized by law. It is absolute ownership of potentially infinite duration

Question 111

Doctrine of estoppel by deed

Answer 111

ensures that if a grantor purports to convey title tha t he does not actually hold and he subsequently acquires title to the property, it will automatically effucate the prior benefit conveyed to the grantee