Property Flashcards

Question

DONATIVE TRANSFER (requirements of a gift) AID

Answer 1

AID Acceptance, Intent, Delivery 1. Acceptance (or no rejection) 2. Intent to give (intent to transfer, intent to receive nothing in return) 3. Delivery (such as Actual Delivery, Constructive Delivery, Symbolic Delivery)

Answer 2

1. Death must be imminent (not necessarily rational, but expected) 2. Recovery invalidates the gift Traditionally, recovery automatically revoked the gift Modern day requires express revocation within a reasonable time of recovery 3. Constructive possession does not count; Constructive delivery does count in some circumstances

Answer 3

OLDTR Occupied, Lease, Definite, Time, Rental 1. Space must be capable of being legally occupied 2. If period is longer than one year, must be a written lease (Statute of Frauds) 3. Parties must have agreed, expressly or by operation of law, to rent A definite space For an agreed-upon period of time At an agreed-upon rental amount

Answer 4

1. English: landlord must put tenant in legal and actual possession Actual Possession - tenant can physically occupy land Legal Possession - tenant can sue for possession Landlord sues hold-over tenant for possession Tenant can deduct rent until actual possession given English Rule is majority rule for residential tenancies 2. American: landlord must put tenant in legal possess. Tenant must sue the hold-over tenant for possession Tenant cannot deduct rent; tenant must sue hold-over tenant for damages American Rule is majority rule for commercial tenancies

Answer 5

Leasehold that has a definite term of duration Tenancy has a definite ending date once it starts, even if the starting date is uncertain Could be for one day, one month, one year, one decade, etc.

Answer 6

- Year to year, month to month, week to week are most common - Proper notice in advance of the end of a period must be given to terminate a periodic tenancy - Common Law: six months in advance for periods 1+ years; one period in advance for <1 year - Many states have modified this by statute

Answer 7

any leasehold that is not a tenancy for years or periodic tenancy No duration, it exists until either party terminates it Traditionally no advanced notice required, though many states have changed this by statute Tenancy at will can be created expressly or by a failed attempt to create another nonfreehold estate

Answer 8

the right of possession that follows the termination of another form of tenancy - Gives the right to the tenant to await a court eviction - For residential tenancies, it also gives the right to continue to receive critical services, e.g. heat and water - not a true nonfreehold estate - only the courts and authorities can lawfully remove a tenancy at sufferance

Answer 9

tenant who keeps possession of premises after lease has been terminated 1. Landlord may treat tenant as a tenant at sufferance and seek a court eviction OR 2. Treat tenant as a tenant on a periodic tenancy; period is length of duration of the original estate for years Maximum length period to be created is one year; there is a trend to shift toward periodic tenancy based on time between rent payments

Answer 10

- Most restrictive states limit defense strictly to tenants who complained about housing code violations to government agency - Intermediate states allow defense to any tenant being evicted because of any housing-related action the tenant took - Most permissive states allow defense to tenant being evicted because of the tenant’s assertion of any statutorily or constitutionally protected right

Answer 11

- Most restrictive states limit defense strictly to tenants who complained about housing code violations to government agency - Intermediate states allow defense to any tenant being evicted because of any housing-related action the tenant took - Most permissive states allow defense to tenant being evicted because of the tenant’s assertion of any statutorily or constitutionally protected right

Answer 12

Landlord cannot sue new tenant for rent No landlord-sublessee relationship Original tenant becomes a tenant AND lessor Subtenants pay rent to original tenant Removing a subtenant would be bringing an action of trespass, not eviction Traditional Rule: sublease does not extend until end of original lease NY Rule: when original tenant reserves any reversionary interest, such as right to evict Contractual Rule: intent of parties (Jaber rule)

Answer 13

- Utah allows commercial tenant to apportion rent if significant and material breach of covenant by landlord occurs - Mass. allows commercial tenant to apportion rent for any breach of lease - Texas allows commercial tenant to apportion rent for any breach of lease OR the implied warranty of suitability

Answer 14

Traditional: rent due until end of lease term; landlord can leave empty; landlord cannot retake possession unless provision in lease allowing landlord to act as agent, but landlord would owe fiduciary duty Modern: landlord must “mitigate” damages; landlord must retake possession, attempt to relet to lessen defaulting tenant’s damages; tenant liable for their rent LESS whatever rent landlord is collecting from new tenant or would be collecting if attempt made

Answer 15

Landlord:assignee = privity of estate Landlord:tenant = privity of contract Tenant: assignee = privity of contract Landlord can sue either for rent Assignees pay rent to landlord Assignees do NOT pay rent to tenant Traditional Rule: assignment extends until end of original lease NY Rule: when original tenant reserves no reversionary interest, such as right to evict Contractual Rule: intent of parties (Jaber rule)

Answer 16

APITA Ascertained, Possession Immediate upon Termination, Alive

Answer 17

UCPU Created for an ascertained person but is subject to a condition precedent Created in favor of an unborn person OR Created in favor of an unascertained person

Answer 18

Number and identity of the holders of the remainder can change, but the class of holders of the remainder is fixed AKA vested remainder subject to partial divestiture Once in the class, never out of the class: “Closes” if… Producer of new class members dies “Rule of Convenience” - possessor dies while producer lives Can be overcome if the grantor expressly states an intent to do so

Answer 19

Can be possessed immediately but has a condition that has to be satisfied later or possession of the remainder will be terminated

Answer 20

Creates a merger... applies to contingent remainders If an estate ends before the condition of a contingent remainder is met, remainder is destroyed (to A for life, then to B if B does X; A dies before B does X; B’s contingent remainder is destroyed and grantor’s reversion becomes possessory) Most jurisdictions have abolished doctrine of destructibility (MA did in 1836)

Answer 21

applies when inter vivos transfer of remainder interest to grantor’s heirs Rule: if owner of A conveys to heirs a remainder in A, remainder void, A retains ownership. If A conveys to B a life estate, remainder in A’s heirs, remainder void, A’s heirs take reversion if A dies intestate. Rule of law: grantor cannot transfer a remainder interest to his or her heirs rule of construction: Override rule ONLY IF intent to is made EXPLICITLY clear ONLY APPLIES TO REMAINDERS ~50% of states repealed; MA in 1973

Answer 22

when possessory estate and reversionary estate are held by the same party, like when: Possessory estate ends, but contingency on remainder has not been satisfied Grantor subsequently conveys reversion to party holding possessory estate Party holding possessory estate conveys it to grantor An intervening contingent remainder will not cancel a merger from being created Exceptions: A fee tail will not merge into a fee simple A contingent remainder between life estate and vested remainder will not be destroyed created at the same time

Answer 23

FIG RCH SI ST Freehold Interest to Grantee, Remainder to Class of Heirs, Same Instrument, Same Type All must be “yes”: Was a freehold interest in real property given to the grantee? Was the remainder interest in the same property given to the grantee’s heirs or heirs of the body as a class? Were the interests created by the same instrument? Were the interests both equitable or both legal?

Answer 24

“No 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” - John Grey

Answer 25

PIG T Possessory, Indefeasibly, Grantor, Total Interests maintained by Grantor Indefeasibly Vested Remainders Vested Remainders Subject to Total Divestiture Possessory Estates

Answer 26

Gifts to someone’s children are usually valid because the parent can be the measuring life Gifts to a dead person’s grandchildren are also usually valid, the children of the deceased grandparent can be the measuring life Gifts to someone’s children or grandchildren when they reach an age older than 21 can often cause problems Gifts to a living person’s grandchildren are a BIG problem and will usually be void

Answer 27

PITT Possession, Interest, Title, Time Unity of possession - each tenant is seized of the entire estate, not a divided portion Unity of interest - each tenant owns an equal share of the estate Unity of title - each tenant received ownership through the same conveyance Unity of time - each tenant’s interest vested at the same moment

Answer 28

ACHOSEN Actual, Continuous, Hostile, Open, Statutory, Exclusive, Notorious Actual Possession of the Land Continuous Hostile Open and Notorious (aka “visible”) For the Statutory Period Exclusive

Answer 29

Drainage - concerned with “diffuse surface waters” - water in the form of precipitation Watercourse - concerned with rivers, lakes, and other bodies of fresh water Law needs to balance… Rights of earlier users of water against later users The importance of the actual use of the water that is being made The rights of upstream users against downstream users Aquifer - water found beneath the ground Littoral - water found in the ocean

Answer 30

A mortgage is a LIEN Most states consider a mortgage to be a lien A lien is a security device, it does not constitute a conveyance of land If there is a foreclosure, title will be conveyed at that time If the mortgage is paid off, the lien is “extiinguished”

Answer 31

(majority view) Each riparian owner has the right to be free from other’s unreasonable uses of the water which would cause harm to his own reasonable use of the water Most reasonable use riparian and water use laws relate to the priority of water needs: 1st drinking water 2nd agriculture 3rd industrial

Answer 32

VOID Deeds - transfer of deed is invalid and cannot be enforced by bona fide purchaser if (FAN, Forged, Altered, Nature): Grantor’s signature is forged Deed is forged (i.e., materially altered or falsely made with intent to defraud), OR Grantor is deceived about nature of executed document

Answer 33

Basic Lien Priority on Real Property (Highest to Lowest) (P FR OR U, Purchase, First Recorded, Other Recorded, Unrecorded) Purchase Money Mortgage (super priority over prior liens) First Recorded Liens (senior priority) All Other Recorded Liens (junior priority) Unrecorded Liens (lowest priority)

Answer 34

APWEC Another, Protected, Will, [not] Extended, Conveyance An interest in land possessed by another allowing limited use or enjoyment of the land The interest can be protected from interference by others The interest is not subject to the will of the title holder The interest is not a right extended to all non-possessors of the land The interest can be created by conveyance

Answer 35

Affirmative Easement - allows holder to do things on the other’s land Negative Easement - allows holder to prevent land possessor from doing certain things Doesn’t mean it impacts the holder negatively, it just means that it benefits the easement holder by forcing the servient estate owner NOT to do something Appurtenant Easement - benefits the title holder of a neighboring parcel Easement in Gross - benefits someone who does not hold title to a neighboring estate

Answer 36

PINE By Prescription By Implication By Necessity Expressly By Deed

Answer 37

CB AOC PNB Clinton’s a Bitch; AOC is Pretty and Not a Bitch Conveyance, Before, Apparent Obvious Continuous Permanent, Necessary and Beneficial Common ownership of the dominant and servient parcels followed by a conveyance of one or the other Before the severance of ownership, the use by the dominant estate of land inside the servient estate The use was apparent, obvious, continuous, and permanent The claimed easement is necessary and beneficial to the dominant estate

Answer 38

TCKSRUNC Terms, Consideration, Known, Simultaneous, Reciprocal, Use, Necessity, Claimant Whether the claimant is the conveyor or conveyee The terms contained in the conveyance The consideration given for the conveyance Whether the claim is made against a simultaneous conveyance The extent of necessity of the easement to the claimant Whether reciprocal benefits result to the conveyor and conveyed Manner in which the land was used before the conveyance Extent to which the use of land was known to the parties

Answer 39

COACU Continuously, Openly, Adversely, Claim, Uninterruptedly For longer than the duration given in the statute of limitations: Openly: use must be apparent/visible, not secretive Adversely: the use must be against the title of the estate holder Continuously: the use must be constant Uninterruptedly: the use must be continuous and regular, not starting and stopping Under a Claim of Right: the party claiming the easement must act like an owner

Answer 40

The servient estate holder’s objection or permission prevents a prescriptive easement from vesting Estate holder must actually or constructively know of adverse use and not object to the use continuing Rejection of the use resets the statute of limitation clock to zero; rejection could be simply saying “no” or a no trespassing sign, for instance This is a minority rule; Maine is one state that uses it In states that don’t use acquiescence, saying “no” does not impact the statute of limitations clock; instead, in these majority states the servient estate owner must create a physical barrier or file a lawsuit

Answer 41

An unreasonable increase in use of an easement is known as “surcharging” it In the event of a surcharge, the court will require the new owners to use the easement collectively rather than individually

Answer 42

Implement the wording that created the easement Rather than automatically making it void, discrepancy or uncertainty can be clarified by “rule of reasonableness,” balancing the uncertain easement details in a way that benefits one party without harming the other (or benefiting both!)

Answer 43

MEAP Merger, Express, Abandonment, Prescription Express: dominant estate conveys a release to the servient (most common) Merger: dominant estate acquires servient estate or vice a versa Abandonment: dominant estate ceases easement use with the objective intent never to use it again Prescription: servient estate interferes with easement use for statute of limitations time in an open, adverse, continuous, uninterrupted manner Acquiescence plays a large part in certain jurisdictions

Answer 44

DLACTIV Dispute, Long, Area, Consent, Type, Interruption, Violated Must... Have been a long & general use of a servient estate Have been exercised without interruption Have been exercised without dispute Be a reasonable use of the type of land in question Be limited to a particular area of the land Have never obtained consent for the use by title holder Have violated no other laws by the use

Answer 45

Dry Sand: if the sand is dry most of the day, it is the dry sand area Wet Sand: if you’re getting splashed or your feet are wet, it is the wet sand area Majority Rule: owner of an oceanfront estate has title up to the mean high tide line; public/state owns the wet sand area of the beach Minority Rule: (includes MA) owner has title to the mean low tide line; public/state owns the part of the beach usually under water

Answer 46

All real covenants must run with the land (otherwise not a real covenant) Covenantor/Promissor: party performing promise Covenantee/Promisee: party receiving promise Real Covenant: benefits land/estate Personal Covenant: person benefits from covenant Burdened: must act on the covenant Benefit: receives benefit of the covenant

Answer 47

TIP Touch, Intent, Privity Touch and concern the land Be entered with the intent that the promise will run with the land Be entered and enforced by parties with the appropriate privity of estate

Answer 48

Powell and Bigelow’s View: If the covenantor’s estate is rendered less valuable because of the promise, the burden runs with the land (think “sacrifice”) If the covenantee’s estate is rendered more valuable because of the promise, the benefit runs with the land (think “enhanced”) Considered outdated now due to exceptions and inconsistencies (mutually beneficial covenants, for instance) Restatement View (modern day approach) Requires that the promise be of benefit to the use or enjoyment of the land

Answer 49

Mutual Privity (English Rule) The original parties had a continuing interest in the same land (i.e. tenant/landlord, possessor/future interest, cotenants) Horizontal Privity (Minority American Rule) The original parties were grantor and grantee on the deed that contained the promise Vertical Privity (Majority American Rule) The enforcement parties are successors in interest to the original contracting parties - no specific relationship is needed between the original contracting parties

Answer 50

A non-possessory interest that fell just shy of being considered an official legal real covenant Typically, the privity element is missing or insufficient, not meeting the real covenant threshold

Answer 51

Enforcement of a restrictive covenant that is not included in the title of the burdened lot To invoke the theory, the unrestricted lot must Have originated from a common owner as the restricted lots AND Have been purchased with actual or constructive knowledge of the restriction

Answer 52

WECCA Waiver, Expiration, Changing, Conveyance, Abandonment Waiver - Covenantee fails to enforce the covenant at an earlier time; it then applies to all who might violate it. If the breaching use goes away on its own, the covenant can be enforced again Changing Use Doctrine - Use of the land around lot has changed so that enforcing the restriction no longer justified. Change must be inside the development. Does not terminate the real covenant, it simply makes it unenforceable in equity Release is conveyed - Covenantees can voluntarily release the covenants by conveyance to covenantor Promise is abandoned - Real covenant is not enforced (waiver) with objective intent never to enforce the clause again Express Termination of Covenants - Expiration due to time limit set at creation

Answer 53

BCSC Binder, Contract, Search, Closing Binder - a preliminary agreement outlining the terms and conditions of a sale between seller and buyer Real Estate Sales Contract - a more formal expression of the terms and conditions agreed upon for a real estate sale Title Search - confirms the seller’s ownership Closing - event at which contract is performed and the property is conveyed

Answer 54

An Act for Prevention of Frauds and Perjuries Contracts that violate (or are “within”) the statute of frauds may still be valid, but they will not be enforced by the courts. To satisfy the Statute, the following must be in writing: Leases for non-freehold estates over one year All Real estate contracts unless term is less than one year Any contract for consideration over $400 (some jurisdictions have increased this amount)

Answer 55

STRAPPD Signature, Terms, Real Estate, All, Parties, Price, Date Signature of “party being charged” Identity of the Parties (all jurisdictions) Identity of property conveyed (all jurisdictions) purchase price (most jurisdictions) payment terms (most jurisdictions) closing date (most jurisdictions) All material terms (most strict conservative jurisdictions)

Answer 56

CPPR Contract, Possession, Payment, Reference Contract - contract exists, e.g. a valid offer, acceptance, and consideration Possession - purchaser in possession of the property with the consent of the seller Payment - purchaser paid all or part of the consideration according to the agreement Reference - purchaser’s actions only make sense because there was a contract of sale

Answer 57

FEP Fraud - if the statute itself is used as an instrument of fraud, most states will enforce the oral contract Estoppel - A reasonable and detrimental reliance on an oral estate contract will take it out of the statute (Minority view) Part Performance - parties have performed some of their obligations that would make the contract inequitable not to enforce

Answer 58

Damages available that are calculated as the difference between the market value of the property at the time of the breach and the contract amount Based on the theory that the vendee is suffering an injury by losing out on a unique opportunity (such as a great, temporary price on property) that they have been wrongfully deprived of because of breach of the contract About 50% of states (including MA) only allow this if the breach was willful, fraudulent, or in bad faith

Answer 59

Mortgage - conveyance of land to secure payment of a debt Mortgagor - the party obtaining financing Mortgagee - the party providing the money Estate Type - mortgagee receives fee simple determinable Law Day - the date final pmt of mortgage due Defeasance Clause - full pmt on Law Day voids mortgage and legal ownership vests in the mortgagor Default - a failure by the mortgagor to pay the mortgagee on the law day Amortized - mortgage pmt plan involving monthly mortgage payments, for instance The Accelerator Clause - brings the Law Day into the present or near future Equity of Redemption - right of the mortgagor to pay off the debt after default to recover the property Foreclosure - a termination of the equity of redemption

Answer 60

Judicial Foreclosure By Sale - a decree ordering the sale of the property with the proceeds used first to satisfy the mortgagee and, if a balance remains, the mortgagor Strict - A decree giving the mortgagee full title and extinguishing the debt Private Power The authority given in the mortgage for the mortgagee to sell the property at auction without judicial action

Answer 61

a promissory note executed at the time the mortgage is given

Answer 62

Allows purchaser to cancel the purchase if a lender cannot be found. Should specify: TADS Terms, Amount, Date, Source The basic Terms of financing such as interest and duration The Amount of financing The Date until which the purchaser can terminate his or her obligation on the contract for a failure to obtain financing The Source of financing

Answer 63

Unless specifically authorized, mortgages cannot be prepaid Nowadays, almost all mortgages authorize prepayment, as it is a required feature in order to sell it on the secondary market Secondary Market - In the US, banks can sell mortgages to federal agencies (Fannie Mae, Ginnie Mae, Freddie Mac…) which are bundled and sold as bonds on Wall Street

Answer 64

An agreement requiring the purchaser to make payments towards the purchaser of land If all the payments are made, the seller will convey the land to the purchaser Failure to make all payments results in total forfeiture, huge source of fraud

Answer 65

“Readily subject to resale and free from reasonable doubt,” or in more general terms: free from doubt or, in other words, “marketable”; though what that really means is difficult to define Marketable title does not feature, for instance... Record title problems Inchoate rights such as dower Easements that do not benefit the parcel

Answer 66

A “tender and demand” must be made before a contract can be considered breached Party “tenders” their performance and “demands” the other side does as well Tender and demand establishes the party’s own compliance with the contract so that the other party can be held in breach Tender - the unconditional offer by one party to perform at least the minimum obligations owed under the contract

Answer 67

Warranty Deed - a deed that also contains the grantor’s promises about what is being conveyed Quitclaim Deed - a deed that conveys whatever title the grantor has, if any

Answer 68

IWDRHWEA I WonDeR How We’ll EAt Identify, Words, Description, Reservations, Habendum, Warranty, Execution, Acknowledgment Identity of the parties including the type of cotenancy and the consideration paid Words of conveyance, e.g. “give, grant, bargain, sell and convey” (Granting Clause) Description of the land being conveyed Description of any Reservations being maintained Habendum Clause with any words of limitation necessary to create the estate being conveyed, often include the phrase “to have and to hold” The Warranty, if one is being given The Execution and Acknowledgment of the deed

Answer 69

The deed must be executed - properly signed and witnessed The deed must be delivered - properly given to the grantee Transferring actual or constructive possession The escrow that is used in almost all real estate conveyances is most typically the cause of problems in satisfying these two requisites

Answer 70

Latent Defect - one that is not apparent from the face of the deed; can be cured by extrinsic evidence To resolve any mild or minor ambiguities, reference to outside facts is necessary Patent Defect - one that is apparent from the deed itself; major, hopeless ambiguities can cause patent defects Patent defects cannot be cured - the deed is void

Answer 71

Main goal: determining intent of the grantor Best evidence is words in the deed All the courts will examine in many cases Extrinsic Evidence can only be used to explain ambiguities in the deed itself If needed, grantee > grantor, drafting party > other party Natural landmark > Artificial landmark Landmark > Adjacent property line Adjacent property line > course and distance Course (e.g. “north”) > distance Everything > statement of total area Conveyance to a Monument conveys center unless: The deed states otherwise The monument is a public road

Answer 72

PP IG PayPal InstaGram Possession, Paid, Indicia, Good Possession Indicia of Title Good Faith Paid Value

Answer 73

CAVE Chain, Adverse, Valid Executed Goals of a Title Search: Chain of Title - build the chain of title that shows everyone who has ever held title to the property Adverse Conveyances - insure that no adverse conveyances were made by anyone in the chain of title Valid and Properly Executed - determine that all of the deeds appear to be valid and properly executed

Answer 74

Pure Race: the first grantee to record has title Race-Notice: the first grantee to record has title unless the grantee knew of an adverse transaction at the time of conveyance Pure Notice: the final grantee to receive a conveyance has title unless the grantee knew of an adverse transaction at the time of conveyance

Answer 75

SLOACU Statute of Limitations, Open, Adverse, Continuous, Uninterrupted) Statute of Limitations Open Adverse Continuous Uninterrupted

Answer 76

PECUS Protected, [not] Extended, Conveyance, Use, Subject) Easement is protected from 3d party interference; if not it would not be a property interest Easement is not a right extended to all non land possessors; just because someone has riparian rights, support rights, etc., they don’t necessarily have an easement Easement can be created by conveyance; if not, it might be a customary right or something else Easement is an interest in another’s land allowing limited use; full use would be more likely an estate Easement not subject to will of title holder; if it is subject to the title holder’s will, it would be a license

Answer 77

OK Originated, Knowledge Have originated from a common owner as the restricted lots AND Have been purchased with actual or constructive knowledge of the restriction

Answer 78

SEECAW Seisin, Encumbrances, Enjoyment, Convey, Assurances, Warranty Seisin Right to Convey Against Encumbrances Further Assurances Quiet Enjoyment Warranty

Answer 79

ESCIROTH Exact State, Certificate Issued, Registration Office, Title Holder The court in charge of the records must, in the first instance, determine the exact state of title to a given parcel of land A certificate is issued by the court that is the title to the land Certificate is filed in land registration office and no transfer of the land, or an interest in it, is valid unless recorded on this certificate A duplicate of the certificate is given to title holder and each interest holder

Answer 80

IRB Intent, Res, Beneficiaries Establishing The Intent Depends on intent of party giving assets, the Settlor Transfer the Res Property that is to be held in trust (the res) must be… Identified so that it is known Delivered to the trustee (delivery is key!) Identify the Beneficiaries A private, non-charitable trust cannot exist if the beneficiaries cannot be determined A class of beneficiaries can be named so long as the class is capable of objective definition

Answer 81

LIP Loyalty, Inform, Prudence Loyalty - the trustee must act for the beneficiaries, not anyone else (including the trustee itself) Duty to Inform - the trustee must tell the beneficiaries about the status of the trust Prudence - the trustee must be reasonably careful in managing the trust

Answer 82

CHERMP Community, Health, Education, Religion, Municipal, Poverty The relief of poverty The advancement of education The advancement of religion The promotion of health Government or municipal purposes Other purposes the accomplishment of which is beneficial to the community

Answer 83

SWAMP Semi-Emergency, [Spouse’s] Will, Assets, Meeting, Probate Semi-Emergency Matters If decedent’s spouse died too, spouse’s will should be examined because it likely coordinates with decedent’s will Preserve assets Meeting with parties Start Probate

Answer 84

COZMAS Codes, Ownership, Zoning, Maps, Absolute, Subdivision Absolute Prohibitions (criminal law; not technically land use regulation, but had that effect) Building, Health, and Fire Codes (example is fire suppression laws, sometimes misguided like the one in Connecticut that eliminated loss of low income housing) Subdivision Regulation Official Maps - municipal planning notice to townspeople in advance Public Ownership of Title - condemnation of property by state Zoning

Answer 85

ACL Avoided, Contradiction, Life Degree of injury that can be avoided by title holder because of the time extended; if the owner can avoid any financial injury, the period is good How much the use in in contradiction to the zoning; likely the more contradictory, the shorter the amortization period Typical useful life of fixtures on the land; considering this allows owner to get the full value of the fixtures

Answer 86

CEO Changes, Expenditures, Obligations a party will obtain a vested right in a zoning classification if substantial improvements are made in reliance on the classification such as… Significant changes to the land Significant expenditure of money Significant contractual obligations Developer must be acting in good faith and have made the substantial improvements without knowing that a zoning change is coming “Substantial” is the operative word here, as is the good faith element of not knowing the zoning change is coming

Answer 87

Traditional Zoning, as seen in Euclid, is losing popularity and being substituted with these alternative approaches Contract Zoning - zoning board uses devices such as restrictive covenants to exact land use regulation; involves municipalities using private land use regulation tools Floating Zones - zoning that does not apply to a specific tract of land unless the title holder requests that it does so Cluster Zoning - zoning regulations that establish minimums and maximums for different kinds of uses

Answer 88

CIS Cost, Investment-backed, State Economic cost to owner Interference with “distinct investment-backed expectations” Importance of the state purpose

Answer 89

PEL Physically, Economically, Legitimate Some regulations are considered so extreme as to constitute a taking without more (considered categorical takings?) Physically depriving the owner of land (Loretto) Denying economically beneficial use of the land (Lucas) Lingle removed this test from the analysis; the test in challenging the constitutional purpose of a regulation is challenging the due process clause that requires “mere rationality”; the compensation scheme is different post-Lingle, too *****The regulation does not serve a legitimate state purpose (this factor later overturned by Lingle v. Chevron)****** NOT VALID LAW

Answer 90

CIS Cost, Investment-backed, State Economic cost to owner Interference with “distinct investment-backed expectations” Importance of the state purpose

Answer 91

Dolan: can you put what the developer wants and what the municipality is requesting in the same sentence, connected by “because?” in other words, is there a nexus between the request of developer and city? If NO > taking If YES, move on to Lucas Lucas: No economic viability left? If NO economic viability left > Taking If YES there is economic viability left > move on Penn Central Penn Central: balancing test of a) investment backed expectations? b) was the gov’t looking to protect health and safety? General welfare? c) is there a significant economic cost to landowner? Balance in favor of landowner > Taking Balance in favor of state > No Taking

Answer 92

Loretto: was possession taken or transferred to another? If YES > Taking If NO > move on to Lucas (then Penn Central if necessary) Lucas: No economic viability left? If NO economic viability left > Taking If YES there is economic viability left > move on Penn Central Penn Central: balancing test of a) investment backed expectations? b) was the gov’t looking to protect health and safety? General welfare? c) is there a significant economic cost to landowner? Balance in favor of landowner > Taking Balance in favor of state > No Taking

Answer 93

Essential Nexus required between the condition imposed on the land owner and a problem associated with the police power that will be caused by the development Nexus = analogous with “probable cause,” “proximate causation” Rough Proportionality Test introduced, requiring that the solution imposed must address the size of the problem caused by the tile holder’s development No precise mathematical calculation required, just an individualized determination that the dedication is related in nature and extent to the impact on the development

Answer 94

Removal of Fixtures by Tenant - a tenant may remove a fixture from leased property if (TARTBBB, Tenant, Agreement, Restored, Time, Beyond, Breach, Before): Tenant attached the fixture to the property There is no agreement to the contrary The leased property can be and is restored to its former condition The removal and restoration are made within a reasonable time which Does not extend beyond termination of the lease UNLESS Termination was not due to a breach by tenant AND Date of termination was not foreseeable by tenant sufficiently far enough in advance to permit removal before lease termination

Answer 95

Real Property Sale Negligence - Harm to person ON land A buyer of real property can sue the seller for negligence if (CSKR BNKR H, Condition, Seller Knew, Risk, Buyer Not Know, Reason, Harm): A natural or artificial condition existed at time of sale Seller knew or should have known about the condition Condition posed an unreasonable risk to persons on land Buyer did not know, nor should have known, about the condition or risk Seller had reason to believe buyer would not discover condition or realize risk Physical harm results from the condition Time limit Condition created or concealed by seller = liability until buyer discovers Condition not created or concealed by seller = liability until buyer has reasonable opportunity to discover

Answer 96

Real Property Sale Negligence - Harm to person OFF land A buyer of real property can sue the seller for negligence if: Requires only that the condition existed at time of sale and Seller knew or should have known condition Existed, AND Posed unreasonable risk to persons off land Time limit Condition created or concealed by seller = liability until buyer discovers Condition not created or concealed by seller = liability until buyer has reasonable opportunity to discover

Answer 97

Equitable Conversion occurs when a party transfers property to another between the party's execution of a contract to purchase the property and the delivery of the deed to the property. Because the party is the equitable owner of the property between execution and delivery, premature transfer of the property transfers the party's equitable interest, which becomes legal interest when the deed is delivered and can then also be transferred to the equitable transferee. After-Acquired Title occurs when a party transfers interest in property to another before the party's interest actually vests. Thus, when that interest does vest, it instead vests in the transferee rather than the party in whom the property would have originally vested, the premature transferor.

Answer 98

(Majority Rule) The buyers, under the doctrine of equitable conversion. Even if the previous owner possesses and lives on the property until the closing date, the buyers bear the risk of loss as the owners under the doctrine of equitable conversion.

Answer 99

A person who pays off another person's mortgage obligation may become the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment. Among the circumstances in which the equitable remedy of subrogation is appropriate is when the payor is under a legal duty to pay the obligation, or when the payor does so to protect his own interest or on account of misrepresentation, mistake, duress, fraud, or undue influence. However, subrogation is not permitted when the full obligation secured by the mortgage is not discharged.

Answer 100

When property is landlocked without the benefit of an easement across neighboring property, provided that: 1. The two estates must have been under common ownership AND 2. The necessity must have arisen at the time the property was severed (even if the easement itself was not requested or created then; only the necessity for one needed to arise)

Answer 101

The judgment lien terminates because upon the person's death, the interest terminates. It does not transfer, it vanishes.

Answer 102

Under the doctrine of cy pres, a court may make changes to a conveyance in order to come "as near as possible" to the intent of the transferor. An example of the operation of cy pres would be for the court to change the language of a will to more properly comply with the rule against perpetuities, as the alternative would destroy the testator's intent.

Answer 103

These are the three present covenants embodied in a general warranty deed. As present covenants, they do not run with the land and cannot be enforced by subsequent grantees. The statute of limitations begins to run at the time of conveyance. Covenant of Seisin: the grantor owns the land as it is described in the deed. Damages = purchase price or cost of perfecting title, whichever is lower. Covenant of the right to convey: grantor has the right to transfer title. Damages = purchase price or cost cost of perfecting title, whichever is lower. Covenant against encumbrances: the deed contains no undisclosed encumbrances. Damages = difference in value caused by defect or cost of removing defect, whichever is lower.

Answer 104

Under the estoppel by deed, a purported grantor is estopped from denying the validity of a deed when the grantor attempts to assert ownership over after-acquired property.

Answer 105

The covenant of warranty is a future covenant (meaning it runs with the land and survives the merger of the contract and deed) that guarantees that the grantor will defend against a third party's lawful claim for title. However, it will NOT require the grantor to defend against a third party's wrongful claim. If a third party launches a successful claim against the property, the grantor is liable for the grantee's litigation costs.

Answer 106

Under the Doctrine of Subrogation, in order to avoid UNJUST ENRICHMENT, when a third party pays off a mortgagor's loan, the third party becomes the owner of the obligation AND the mortgage, meaning that the mortgagor will owe them the obligation and if they fail to pay, the third party can foreclose on the property under the mortgage agreement. It does not matter if the third party paid off the loan erroneously or because they were defrauded.

Answer 107

NO. While acceptance of a deed is presumed when the transfer IS FOR VALUE and the grantor has placed it out of their control, it must still be at least recorded if not delivered to an independent 3d party. Recording of the deed is tantamount to delivery, and thus finalizes the transfer by deed. In other words, "delivery" of a deed can be completed by: 1. Delivery to the grantee 2. Delivery to an independent 3d party 3. Recording

Answer 108

Cotenants have a duty to: 1. Pay proportionate shares of expenses that may give rise to a lien AND 2. Only upon agreement, contribute to repair or improvement costs

Answer 109

1. Transferee takes claim to mortgage and note 2. Transferee takes claim to mortgage and note 3. Most likely void (depending on jurisdiction) However, #1 and #2 are ineffective it: 1. Expressly prohibited in note/mortgage 2. Forbidden by statute or public policy OR 3. Increases mortgagor's duties, burdens, or risks

Answer 110

The deed is VOID

Answer 111

YES. A landlord is required to permit reasonable modifications to the lease or premises to accommodate handicap at the occupant's expense. A service animal would be an example of a required accommodation, even if the lease prohibits pets.

Answer 112

If a deed is forged, if the signature is forged, or if the grantor's signature was procured by tirkcery, the deed is VOID AT INCEPTION, and no title is conveyed even if relied on by a subsequent bona fide purcahser.

Answer 113

YES. While waste is generally limited to actions that reduce the property value, when the contract specifically prohibits destruction of the property, even an improvement in value will not provide a defense to the commission of waste if property is damaged.

Answer 114

NO. The title search would not look for property deeded by X, so the conveyance of X to Z would not show up on a title search by Y because Y would not look at conveyances by X, only TO X.

Answer 115

When the subsequent purchaser buys the property without notice of the earlier interest and records before the earlier interest.

Answer 116

Under the Shelter Rule, a person who receives property from a BFP is entitled to the same protection under the recording act as the BFP, EVEN if that person would not have otherwise been protected by the recording act.

Answer 117

When the subsequent purchaser buys the property for value and does not have notice of the prior interest.

Answer 118

NO. Delivery of the deed must be evidenced by the grantor's intent to presently transfer an interest to the grantee, even if the interest itself is a future interest.

Answer 119

When the rightful owner of the land does NOT also own the mineral rights, the adverse possessor only gains title to the surface land that she adversely possesses. However, if the adverse possessor also adversely possesses the minerals below the surface, she may also gain title against the owner of the mineral rights.

Answer 120

NO. A deed evidence the grantor's intent to presently transfer ownership. If the deed is not delivered during the grantor's lifetime, it is void and conveys no interest.

Answer 121

NO. Evidence that the grantor gave the deed to the grantee subject to an oral condition is inadmissible, so the condition cannot be enforced. Once a deed is properly delivered, it is effective.

Answer 122

Race: whichever interest holder records first will prevail Notice: a subsequent BFP without notice of earlier property interest will prevail Race-Notice: subsequent BFP without notice and records first will prevail

Answer 123

NONE (except in a race-notice juristiction, unless the BFP also files first). If the real property in trust had been recorded, the subsequent purchaser would have no rights and would not be a BFP. However, because it was not recorded before the transaction. However, in a race-notice jurisdiction, the BFP's interest would be cut off if the beneficiary then recorded the real property in trust before the BFP did.

Answer 124

A shifting executory interest divests some interest in a grantee/transferee prior to its natural expiration A springing executory interest divests the transferor in the future A shifting executory interest often violates the rule against perpetuities. While a springing executory interest is subject to the Rule Against Perpetuities, it is often safe because the grantor's life can be the validating life

Property Flashcards

(149 cards)