Property UBE John

Question 1

What is a Fee Simple Absolute?

Answer 1

A conveyance of absolute ownership of real property. The
property is freely devisable, descendible, and alienable.
Priority: Medium

Question 2

What is a Fee Tail?

Answer 2

A conveyance of real property to a person AND their heirs.
*Most states have abolished fee tail ownership.
Priority: Medium

Question 3

What is a Fee Simple Defeasible, and when is it
created?

Answer 3

A conveyance of property that has conditions placed on it.
It is created when the grantor uses express conditional language
to indicate that it will be terminated upon the occurrence/nonoccurrence of an event or condition.

Question 4

What are the three types of Fee Simple Defeasibles?

Answer 4

Fee Simple Subject to a Condition Subsequent – reserves a
future interest in the grantor (right of re-entry).

Fee Simple Determinable – reserves a future interest in the
grantor (possibility of reverted).

Fee Simple Subject to Executory Interest – reserves a future
interest in a third-party.
Priority: HIGH

Question 5

What is a Life Estate?

Answer 5

A conveyance of real property where a specified life-tenant is
entitled to possession of the property during their lifetime.
Upon the life tenant’s death, the property transfers outright to
another party (the remainderman).

Question 6

Possibility of Reverter vs. Right of Re-entry

Answer 6

Possibility of Reverter: Creates a future interest of possession
in the grantor if a specified condition occurs (property
automatically vests to the grantor upon occurrence of the
condition).

Right of Re-entry: Creates a future interest in the grantor,
wherein the grantor has the right to re-enter and take the
property if a specified condition occurs.

Priority: HIGH

Question 7

Vested Remainder vs. Contingent Remainder

Answer 7

Vested remainder: A future interest in land that is given to an
identifiable person with NO conditions.

Contingent remainder: A future interest in land that is
conditioned upon the occurrence (or non- occurrence) of a
specific event.

*In most jurisdictions, a future remainder interest is devisable and
passes to that person’s heirs.
Priority: HIGH

Question 8

What is Tenancy in Common?

Answer 8

The default estate created by a conveyance/bequest of real
property to two or more people, unless:

a) There is express language stating that the parties have
survivorship rights (joint tenancy); OR

b) If the conveyance stated “as husband and wife” (creating
a tenancy by the entirety).

*Each tenant has an undivided interest and the right to use and enjoy
the property.
Priority: Medium

Question 9

What Four Unities must be present for a Joint
Tenancy to be created?

Answer 9

1) The unity of time;
2) The unity of title;
3) The unity of interest; AND
4) The unity of possession.

There must be clear and express intent to create a joint tenancy.

Question 10

Under what circumstances can an out-of-possession
co-tenant collect rent from an in-possession cotenant (who is in exclusive possession of the
property)?

Answer 10

When:
a) There is an agreement stating as such; OR
b) The co-tenant seeking rent was wrongfully ousted.

Question 11

When is a co-tenant entitled to reimbursement from
other co-tenants for improvements made to the
property?

Answer 11

ONLY IF there is a separate agreement stating as such.
BUT, if the property appreciated due to the improvements, only
the improving co-tenant is entitled to the increase in value.
Priority: Medium

Question 12

A lease provides the tenant with a present
possessory interest in the property, and gives the
landlord a future interest.
What are the three types of Leaseholds?

Answer 12

1) Tenancy for Years – fixed period of time, automatically
terminates;

2) Periodic Tenancy – initial period of time, then automatically
continues for additional equal periods until terminated by
proper notice.
Created by: express agreement, implication, or by
law.

3) Tenancy at Will – continues until either party terminates it,
usually created by express agreement.
Priority: HIGH

Question 13

What may a Landlord do if a Tenant remains on the
property and does not pay rent?

Answer 13

a) Initiate eviction proceedings; OR

b) Allow the tenant to remain on the property, and sue for
damages.
Priority: Medium

Question 14

What are the Landlord’s two options if a tenant
holds over?

Answer 14

He may:
a) Evict the tenant; OR
b) Hold the tenant over (by holding the tenant over, an
implied month-to-month tenancy is created).

Question 15

What is the Warranty of Habitability?
What can the Tenant do upon breach?

Answer 15

It’s implied in EVERY residential lease, and requires the
Landlord to provide a place to live that is habitable (reasonably
suitable for human needs).
If breached, the Tenant may:

a) Move out and terminate the lease;

b) Withhold or reduce the rent;

c) Repair the issue and deduct the cost from the rent; OR

d) Remain on the premises and sue for damages.

Question 16

When does Constructive Eviction occur?

Answer 16

(SING) When:
1) The landlord breached a duty to the tenant;

2) The landlord’s breach caused a loss of the substantial use
and enjoyment of the premises;

3) The tenant gave the landlord notice of the condition;

4) The landlord failed to remedy it in a reasonable time after
notice was given; AND

5) The tenant vacated the premises.

Question 17

Does a Landlord have a duty to mitigate his
damages?

Answer 17

At common law, a landlord DID NOT have a duty to mitigate.

BUT, now most states DO impose a duty to take reasonable
steps to mitigate losses (i.e. attempting to lease to another
tenant).

*Mitigation doesn’t need to be successful to recover damages, and a landlord is entitled to sue for the difference in rent between the new
and original tenant.

Priority: HIGH

Question 18

Assignment of a Lease:
When does an Assignment occur, and who is liable
to the Landlord for rent thereafter?

Answer 18

It occurs when the assignor transfers ALL of his remaining
interest in a lease to a third-party (the assignee).

Assignee –> liable to the landlord for rent and all other
covenants that run with the land (privity of estate).

Assignor (Original Tenant) –> also remains liable for rent
(privity of contract).

Priority: HIGH

Question 19

When a lease has a Silent Consent Clause, what two
approaches have been adopted by state courts to
determine how consent is given?

Answer 19

Most States, allow the landlord to withhold consent for any
reason (even if unreasonable).

Some States, require the landlord to have a reasonable basis for
withholding consent.

For example: Inability to fulfill lease terms, financial irresponsibility, instability, etc

Priority: Medium

Question 20

What is a Sublease?
Is a Sublessee liable to the Landlord for rent?

Answer 20

A sublease occurs when a sublessor transfers only SOME of his
remaining interest in a lease to a third-party.

Sublessee–> is NOT liable to the landlord for rent or other
covenants (there is no privity of estate).

• Sublessor (original tenant) –> remains liable to landlord
  for rent (privity of contract).

Priority: Medium

Question 21

What is a Surrender?

Answer 21

An agreement between the landlord and the tenant to end a lease early.

If accepted, the tenant’s duty to pay rent ends. If not accepted
and the tenant leaves anyway, they are deemed to have
abandoned the lease and are liable for damages.

Priority: HIGH

Question 22

What is a Real Covenant?

Answer 22

A non-possessory interest in land that obligates the holder to
either do something or refrain from doing something to the land.
(The remedy is damages, unlike equitable servitudes)
Priority: Medium

Question 23

What must be present to enforce the benefit of a
Real Covenant?

Answer 23

There must be:
1) A writing that satisfies the statue of frauds;
2) Intent that the covenant runs with the land;
3) Vertical privity between succeeding parties; AND
4) The covenant must touch and concern the land.
Priority: Medium

Question 24

What must be present to enforce the burden of a
Real Covenant?

Answer 24

All of the requirements for enforcing the benefit PLUS:
1) Horizontal privity between the original parties; AND
2) The new owner must have notice of the covenant (actual,
constructive, or inquiry notice).

Question 25

What is an Equitable Servitude?

Answer 25

Covenants that equity will enforce if the burdened estate had notice of the covenants. (The remedy is injunctive relief, rather than damages) Priority: Medium

Question 26

What must be present to enforce the benefit of an Equitable Servitude?

Answer 26

There must be: 1) A writing that satisfies the statue of frauds; 2) Intent for the servitude to be enforceable; AND 3) The servitude must touch and concern the land.

Question 27

What must be present to enforce the burden of an Equitable Servitude?

Answer 27

All of the requirements for enforcing the benefit, PLUS: 1) The new owner must have notice of the servitude (actual, constructive, or inquiry notice). Priority: Medium

Question 28

What is the Common Scheme or Plan Doctrine?

Answer 28

A court will imply reciprocal restrictive covenants on parcels of land in a subdivision sold by a developer if: 1) The developer had a common scheme or plan that all parcels of land would be subject to at the time the subdivision was sold; AND 2) The defendant land owner had actual, inquiry, or record notice of the restriction. Priority: Medium

Question 29

What is a Common Interest Community (CIC)?

Answer 29

A development or neighborhood in which individually owned lots are burdened by a servitude that imposes an obligation to: a) Pay for or contribute to the maintenance held in common by the individual owners; OR b) Pay dues or assessments to an association that provides services to the common areas or enforces the servitudes. *CIC’s include Condo’s, Co-ops, and Home Owner Associations.

Question 30

Easement in Gross vs. Easement Appurtenant

Answer 30

Easement in Gross: Benefits a specific owner’s enjoyment, and DOES NOT attach to the land. Doesn’t pass to subsequent owners. Easement Appurtenant: Benefits ANY owner’s enjoyment, and DOES attach to the land. Passes to subsequent owners. Priority: HIGH

Question 31

What is an Easement by Grant?

Answer 31

An express agreement by the grantor allowing the easement, which must: 1) Be in writing signed by the grantor and satisfy the statute of frauds; 2) Identify the land and parties involved; AND 3) Indicate the grantor’s intent to convey the easement.

Question 32

What is an Easement by Prescription?

Answer 32

It’s created when the possessor’s use of the land is: 1) Open and notorious; 2) Continuous; 3) Hostile; AND 4) For the statutory period.

Question 33

What is an Easement by Implication?

Answer 33

It’s established when: 1) A single tract of land is divided by a common owner; 2) A pre-existing use by the grantor is established prior to the land division; 3) The use was continuous and apparent indicating it was intended to be permanent; AND 4) Such use is reasonably necessary for the owner’s use. Priority: HIGH

Question 34

What is an Easement by Necessity?

Answer 34

It’s created when: 1) The original piece of land owned by the one owner is subdivided; AND 2) Access is essential to the use of the property because no other ingress or egress is available. Priority: HIGH

Question 35

What are the ways an Easement can be Terminated?

Answer 35

1) Estoppel; 2) Termination of the necessity that created the easement; 3) Involuntary destruction of the servient estate; 4) Condemnation of the servient estate; 5) Written release; 6) Abandonment; 7) Merger; OR 8) By prescription Priority: HIGH

Question 36

What is a License?

Answer 36

It is a privilege to use another’s land in a particular way. It doesn’t need to be in writing, and may be revoked at any time (although a licensor may be estopped from revoking it if the licensee invested money/labor in reasonable reliance). Priority: Medium

Question 37

What is a Fixture? (under the Common Law)

Answer 37

A fixture is: 1) Personal property, 2) That is attached to land or a building, AND 3) Regarded as an irremovable part of the real property. *A fixture is treated as real property, and passes with the ownership of the land (unless otherwise agreed). Priority: HIGH

Question 38

What factors are considered to determine if an item is a Fixture?

Answer 38

1) The nature of the item; 2) The manner in which it’s attached; 3) The damage that would result if removed; AND 4) The extent to which the item is adapted to the property. *Whether an item is a fixture is determined by the objective intent of the party who attached the item. Priority: HIGH

Question 39

What are the elements of Adverse Possession?

Answer 39

It allows someone who is in possession of land, owned by another, to acquire title when the possession of the property is: 1) Continuous for the statutory period (i.e. 10 yrs); 2) Open and notorious; 3) Exclusive; 4) Actual; AND 5) Hostile and under a claim of right. *An adverse possessor can only acquire title to the portion of the land he has met all the requirements on.

Question 40

What is Constructive Adverse Possession?

Answer 40

When a person takes possession of only a portion of the land covered under color of title --> that possession extends to the entire portion of the land described in the title for adverse possession purposes.

Question 41

What are the elements of a valid Land Sale Contract?

Answer 41

The contract must: 1) Be in writing; 2) Describe the property; 3) Identify the parties involved; 4) Contain the purchase price; AND 5) Be signed by the grantor/grantee (depending on who the contract will be enforced against).

Question 42

What is Marketable Title?

Answer 42

A title that is FREE from any cloud or subject to any adverse claims. Title is unmarketable when it contains a substantial defect (such as encumbrances, mortgages, liens, etc.)

Question 43

What is the Equitable Conversion Doctrine?

Answer 43

It splits ownership between the buyer and the seller. The buyer has equitable title, while the seller has legal title and holds theproperty in trust for the buyer. *The buyer’s ownership is considered real property, while the seller’s is considered personal property.

Question 44

What does a “time is of the essence” clause ensure?

Answer 44

It ensures that the buyer MUST perform on the closing date. If the buyer fails to perform, it will be deemed a material breach and the seller may keep the buyer’s down payment as liquidated damages.

Question 45

When is Specific Performance appropriate?

Answer 45

When monetary damages will not fully remedy a party’s complaint. Real property is ALWAYS considered unique, and specific performance is ALWAYS an appropriate remedy.

Question 46

What is a Home Builder’s Implied Warranty?

Answer 46

A warranty that protects a purchaser of a newly constructed home against latent defects, AND warrants that the building is safe and fit for human habitation at the time of sale.

Question 47

What are the requirements of a valid Deed?

Answer 47

A valid Deed must: 1) Be in writing; 2) Be signed by the grantor; 3) Identify the grantor and grantee; 4) Describe the property; AND 5) Indicate the grantor’s present intent to convey the land.

Question 48

What are the six covenants of a General Warranty Deed?

Answer 48

The three present covenants are: 1) Seisin; 2) Right to convey; 3) Against encumbrances. The three future covenants are: 1) Warranty; 2) Quiet enjoyment; 3) Further assurances. Priority: HIGH

Question 49

What is a Special Warranty Deed?

Answer 49

It ONLY warrants that the seller has not breached the covenants of title during his period of ownership (that the seller hasn’t previously conveyed the property and there are no encumbrances against the title).

Question 50

What is a Quitclaim Deed?

Answer 50

A deed that DOES NOT contain any covenants or promises to the buyer. It’s an “AS IS” deed leaving the buyer with NO rights to sue.

Question 51

What happens if a land transfer is NOT recorded?

Answer 51

It is considered a “wild” deed and is effective between the parties, but will NOT put subsequent purchasers on constructive notice because it’s outside the chain of title.

Question 52

What are the three types of Recording Statutes?

Answer 52

1) A notice statute – a subsequent bona fide purchaser will prevail over prior grantee that failed to record. 2) A race statute – whomever records first prevails. 3) A race-notice statute – a subsequent bona fide purchaser is protected ONLY if he records before the prior grantee.

Question 53

What is a Bona Fide Purchaser (BFP)?

Answer 53

A person who: 1) Takes real property without notice of a prior conveyance; AND 2) Pays valuable consideration. *Receipt of land by gift or bequest z BFP status. *Shelter rule: a person who purchases from a BFP receives the same status and rights as a BFP. Priority: HIGH

Question 54

Shelter Rule

Answer 54

A person who purchases from a BFP gets BFP protection even if they had actual notice of a prior conveyance

Question 55

Who must sign the deed?

Answer 55

The grantor of the real property MUST sign the deed, BUT they may designate an agent to sign on their behalf. If an entity is the grantor, then authorized persons must sign the deed on behalf of the entity. The grantee is NOT required to sign.

Question 56

What is required for a valid Mortgage?

Answer 56

It must be: 1) In writing; 2) Signed by the party to be charged; AND 3) Reasonably identify the parties and the land

Question 57

What is a Purchase Money Mortgage?

Answer 57

When the seller is the lender who secures the mortgage on the real property. The buyer of the property is the borrower.

Question 58

Who does the holder of a Purchase Money Mortgage have priority over?

Answer 58

1) All claims and mortgages against the mortgagor prior to the purchase of the property; 2) ALL subsequent claims and mortgages, unless defeated by a recording statute.

Question 59

What is a Future Advance Mortgage?

Answer 59

A loan in which the lender may provide future payments under the original loan. The lender secures a mortgage on the real property for the entire amount of the loan, including future advances.

Question 60

What parties are involved in a Deed of Trust?

Answer 60

1) The borrower; 2) The lender; AND 3) A third-party trustee who holds title to the property until the loan is paid off.

Question 61

Express vs. Implied Mortgage Assumption

Answer 61

Express Assumption: There is an express agreement for the grantee to take the real property and continue making payments to the lender. Implied Assumption: No express agreement exists; the grantee pays the seller only the equity in, and the grantee continues making payments to the lender for the balance.

Question 62

What is a Variance? When may it be granted?

Answer 62

It is an exception to a zoning ordinance, and two types exist: 1) Use variance; 2) Area variance. It may be granted if: (1) the owner suffers a hardship because of the ordinance; AND (2) the variance would NOT damage or harm the public welfare.

Question 63

Conflict of Laws What is the situs rule for Real Property actions?

Answer 63

That the laws of the state where the real property is located will generally govern (i.e. cases involving the title or a contract for the sale of real property). *States have a strong interest in actions that affect real property within their state.

Question 64

What are the three Real Property conflict of laws tests?

Answer 64

1) 1st Restatement – Situs rule – the laws of the state where the real property is located will govern. 2) 2nd Restatement – The state with the Most Significant Relationship to the property will govern. The situs state is presumed to have the most significant relationship. 3) Interest Analysis Test – Situs rule will apply UNLESS another state has a greater interest in having their law applied. *Apply the test that has been adopted by the jurisdiction.

Question 65

When Real Property is incidental to a contract, what tests are used to determine the applicable law?

Answer 65

Apply the conflict of laws principles for Contracts.