Real Property Flashcards
1
Q
What is the possibility of reverter?
A
The possibility of reverter is a future interest held by a grantor or transferor of property as a fee simple determinable. Despite its name, it automatically vests once the stated event occurs.
2
Q
What is a right of entry?
A
A future interest held by the grantor following a fee simple subject to condition subsequent. It DOES NOT vest automatically; it must be reclaimed
3
Q
What is the right of entry also known as?
A
the power of termination
4
Q
What is the key aspect of fee simple determinable? What are some common terms?
A
durational language (e.g., [SUD language “so long as,” “until,” “while,” “during” ).
5
Q
What is the future interest created in a fee simple determinable?
A
possibility of reverter
6
Q
What is the key aspect of fee simple subject to condition subsequent? What are some common terms?
A
conditional language
[BOP language]
but if, on condition that, provided that
7
Q
What is the future interest created in a fee simple subject to condition subsequent?
A
right of entry
8
Q
What is a life estate that is measured by someone besides the grantee?
A
life estate pur autre vie
9
Q
If possession of the land goes back to the grantor after the life estate ends, what does the grantor have?
A
reversion
10
Q
If possession of the land goes to a third party (transferee) after the life estate ends, then what does the third party have
A
a remainder
11
Q
What is a vested remainder?
A
a future interest that is
1) given to an ascertained grantee and
2) not subject to condition precedent
12
Q
What happens if the requirements of a vested remainder are not met?
A
then it is a contingent remainder
13
Q
What is the rule in Shelley’s case?
A
Shelley’s heirs
If the grantor tried to convey a future interest to the heirs of the grantee, the interest is considered to be to the grantee and not in the heirs of the grantee.
14
Q
What is the doctrine of worthier titles?
A
[I am worthier than my heirs]
A doctrine creating a presumption that when a grantor conveys a future interest to the grantor’s own heirs, the grantor actually intended to keep the interest in himself or herself. May be overcome with sufficient evidence of a contrary intent.
15
Q
Who does a springing executory interest divest?
A
the grantor; typically when there are 2 parties
Think “spring back”
16
Q
Who does a shifting executory interest divest?
A
the grantee; typically when there are 3 parties
Think “shift to someone else”
17
Q
What are the three future interests RAP applies to?
A
contingent remainders, executory interests, class gifts (subject to open) if not closed by rule of convenience
18
Q
What is the default concurrent interest?
A
tenancy in common
19
Q
What is the defining characteristic of a joint tenancy?
A
the right of survivorship
+If jointly owned property is devised, it does not break the joint tenancy. Upon death, the property will go to the survivor.
20
Q
What are the four unities of joint tenancy?
A
[PITT] possession, interest, time, title
Also the express right of survivorship
21
Q
What is ouster?
A
when one co-tenant in possession denies another co-tenant access to the property
22
Q
What is the majority rule regarding a landlord’s ability to require permission to transfer?
A
A landlord may deny permission to transfer only for a commercially reasonable reason.
23
Q
What are the requirements for adverse possession?
A
ANOCHE 1) actual + 2) notorious + 2) open + 3) continuous 4) hostile 5) exclusive \+ = these three are typically grouped together
24
Q
What is a mortgage?
A
a security device used to secure payment of a debt
25
Who is the mortgagor and the mortgagee?
the mortgagor is the borrower and the mortgagee is the lender
26
What is the "estoppel by deed" doctrine?
a grantor who conveys an interest in land by warranty deed before actually owning it is estopped from later denying the effectiveness of that deed
27
Who can enforce an equitable servitude?
The benefit of enforcing an equitable servitude is held only by the original parties and their successors in interest.
28
What is the doctrine of equitable conversion?
In a majority of jurisdictions, the doctrine of equitable conversion applies when a land-sale contract is silent regarding the risk of loss. Under this doctrine, the risk of loss is placed on the party with equitable title at the time the property was destroyed unless the other party is at fault for the loss. The seller retains legal title to real property during the pendency of the sales contract (i.e., during the executory period), but the buyer receives equitable title once the contract is formed and can be specifically enforced.
29
What happens when a buyer takes a property "subject to the mortgage"?
the buyer does not agree to pay and is not personally liable for the debt
30
What happens when a buyer takes a property and "assumes the mortgage"
the lender may seek payment from both the original debtor and the buyer for payment of the debt
31
How does a debtor regain clear title to a property through the equitable right of redemption?
by paying the amount currently owed on the loan plus any accrued interest before the foreclosure sale
32
What is the life tenant's obligation to pay ordinary taxes on the real property?
Only when the life tenant receives a financial benefit from the property. But the life tenant only has to pay taxes when they are less than the financial benefit
33
What is the guarantee made by the grantor in a quitclaim deed?
the grantor transfers whatever rights he has in the property to the buyer
34
To obtain a zoning variance, what must the property owner show?
UH Circumstances Created Pharell Williams
1) compliance with the zoning ordinance would result in an unnecessary hardship;
2) the hardship comes from circumstances that are unique to the property;
3) the hardship was not created by the owner
4) it would be in keeping with the overall purpose of the ordinance; and
5) it would not result in substantial harm to the general welfare
35
What must a plaintiff show to establish a violation of the 14th Amendment's Equal Protection Clause?
A plaintiff must prove racial intent or purpose in order to establish a violation of the Fourteenth Amendment's Equal Protection Clause
36
What must a plaintiff show to establish racial discrimination under the Fair Housing Act?
The plaintiff needs to show a disparate racial impact.
37
A tenant is considered a holdover tenant when he continues to occupy the premises without the landlord's consent and after the expiration of the lease. What two remedies does a landlord have?
The landlord may:
- evict
- bind the holdover tenant to a new periodic tenancy.
38
What are the three requirements of a valid deed transfer of title?
[IDA]
intent, delivery, acceptance
+Once these requirements are met, the transfer cannot be canceled (e.g., by destroying the deed or returning it to the grantor)
+delivery is ineffective if it is contingent upon a future event (e.g., the death of the grantor)
39
Who bears the risk of loss if real property is destroyed between execution of a land-sale contract and closing?
In most states, the buyer bears the risk of loss (regardless of whether the buyer takes possession of the property), except when the loss is due to seller's intentional or negligent actions (then seller bears risk).
40
What is a wild deed?
A wild deed is a recorded and indexed deed, but not in the correct way to give subsequent purchasers constructive (record) notice. Even if the owner of a wild deed recorded first, they will likely not succeed under any of the three types of recording acts because the subsequent recorder could not have found the wild deed.
41
What is a purchase money mortgage?
A mortgage that is used for the purpose of purchasing property
+Has "super priority" over all other liens
42
What is a future advance mortgage?
A "second mortgage," used for home equity, construction, business, or commercial loans
[remember fam because this mortgage is used to help your family who already own a home]
43
What protections does a buyer have with an option contract?
During the time specified in the contract, the buyer is protected against revocation and termination (if the grantor of the option dies or becomes incapacitated).
44
What is an assignment?
An assignment is a complete transfer of all of the tenant's remaining lease term
[remember A for ALL rights, unlike S for Some rights in a sublease]
45
After a mortgaged property is sold at a foreclosure sale, in what order are the proceeds distributed to different stakeholders?
1) costs related to the sale
2) the party who foreclosed on the property
3) any junior interests, in order of their priority
4) the mortgagor receives any remaining money
46
If one co-tenant rents out the property, how must profits be split among all co-tenants?
rent is divided based on ownership interest of each tenant.
47
Name four real property instruments that must comply with the Statute of Frauds (aside from a land sales contract).
1. Promise to create an interest in real property
2. Assignment of a right to purchase
3. Option contract
4. Promise to give a mortgage or other lien security
48
What are the four exceptions to the Statute of Frauds writing requirement?
1. Partial performance
2. Full performance
3. Detrimental reliance
4. Admission
49
What is the warranty of marketable title?
The warranty of marketable title is implied in all real estate contracts. This guarantees that, upon closing, the seller will convey the buyer title that is free from defects (such as undisclosed easements, future interests) regardless of the type of deed.
50
What are the four types of landlord-tenant estates?
[SPWY]
- Tenancy at sufferance
- Periodic tenancy
- Tenancy at will
- Tenancy for years
51
What are the prerequisites for creating an easement by necessity?
1) the estates must have been under common ownership in the past
2) the easement is absolutely necessary for the use and enjoyment of the land (e.g., the dominant tract is landlocked and has no access to a public road)
52
What kind of tenants have the right to unilaterally partition a piece of property?
A tenant in common or a joint tenant may unilaterally partition property
+While a joint tenant can sever their interest unilaterally, they cannot devise their interest through will.
53
What happens when an attempt to create an easement fails due to the Statute of Frauds?
A license results when there is a failed attempt to create an easement
54
Regarding the effect of a mortgage on a JOINT TENANCY, what is the difference between a title theory jurisdiction and a lien theory jurisdiction, and which is the majority rule?
Lien theory states (the majority): no severance- the mortgage is only a lien on the property
Title theory states (the minority): severance- the joint tenancy is converted into a tenancy in common with respect to the mortgaging tenant
For both theories, the joint tenancy is severed if the mortgage is actually foreclosed
55
What was the common law Rule Against Perpetuities (RAP) designed to do?
RAP was designed to prevent interests from being created in the too distant future
56
What is a retaliatory eviction?
A retaliatory eviction is the unlawful eviction of a residential tenant by a landlord in response to the tenant complaining, in good faith and with reasonable cause, about a housing, building, or safety code violations. This applies to a landlord retaliating by refusing to renew a periodic tenancy.
57
What is a landowner's liability if he excavates on his land and causes the adjacent, undeveloped land to collapse or subside?
The excavating land owner is strictly liable.
58
When reading a question involving future interests, when are you safe from having to consider the Rule Against Perpetuities (RAP)?
RAP is not an issue when analyzing future interests that revert to the grantor (i.e., reversion, possibility of reverter, right of reentry).
59
What are the three requirements in a land sale contract to satisfy the Statute of Frauds?
SEW
1) Signed by the party to be charged
2) contain all Essential terms (describe the land & state some consideration)
3) in Writing
60
Restrictions on the transferability of property (restraints on alienation) are generally prohibited. However, what two restraints on alienation can be valid on a life estate?
- Forfeiture restraint (property forfeited if interest owner attempts to transfer)
- Promissory restraint (promise by interest holder not to transfer) can be valid on a life estate.
61
What are the requirements of a valid deed?
Will Grants Interest When Proper
- Writing
- Grantor's signature
- Identities of the grantor and grantee
- Words of transfer
- Property description
- Consideration is not required to be a valid deed.
+The description must be reasonably definite, but extrinsic evidence is admissible to clarify any ambiguities (e.g., to resolve a discrepancy in acreage)
+a deed to a nonexistent grantee (e.g., a corporation that has not been formed) is void and the grantor will retain the property
62
What is a constructive eviction?
when the landlord breaches a duty to the tenant that substantially interferes with the tenant’s use and enjoyment of the leasehold. The premises must be in such disrepair that it is virtually uninhabitable
63
What are two major exceptions to a tenant's duty to pay rent?
1. Destruction of the premises not due to tenant's fault, or
2. Material breach of the lease by the landlord (e.g., breach of the covenant of quiet enjoyment or the implied warranty of habitability)
64
In the event that a mortgagor-borrower defaults, who has priority if there is a seller PMM and third party lender PMMs?
A seller's PMM has priority over a third-party's PMM.
Priority of third party PMMs against each other are determined chronologically (subject to applicable exceptions).
65
What are the six covenants of title that a grantor guarantees with a general warranty deed?
```
sara reads emails quietly while flying
Present covenants:
1) Covenant of Seisin,
2) Covenant of the Right to convey
3) Covenant against Encumbrances
```
Future covenants:
4) Covenant of Quiet enjoyment
5) Covenant of Warranty
6) Covenant of Further assurances
66
For a constructive eviction claim to be effective (i.e., tenant no longer has to pay rent), what TWO things must a tenant do if the residential rental property is uninhabitable?
1. Give notice and adequate time for the landlord to correct the problems, AND
2. Vacate the property within a reasonable amount of time
67
What remedies does a tenant have when a landlord breaches the warranty of habitability?
If the premises are not habitable, then the tenant may choose to:
1. terminate the lease and move out
2. make repairs and deduct the cost from the rent
3. pay reduced rent, remain on the premises, and sue for damages
- Generally, before the tenant can withhold the rent or remedy the defect, the tenant must first notify the landlord of the condition, if the landlord is unaware of it, and then give the landlord a reasonable opportunity to correct the condition
68
If a buyer is purchasing property using an installment land contract, when does she obtain legal title?
Buyer obtains legal title upon final payment under the installment payment plan.
69
What is attornment and how does it happen?
Attornment is the TENANT's acknowledgement of a new landlord.
This can be accomplished (i) in writing, or (ii) by making rent payments to the new landlord.
70
What are the requirements for a burden to run with the land?
Writing Interesting New HoVa Tracks
1. Writing to satisfy Statute of Frauds (exception implied reciprocal servitude)
2. Intent
3. Notice (required only if the person to be bound was a purchaser)
4. Horizontal Privity
5. Vertical Privity
6. Touch and Concern
71
A sublessee is not liable to the landlord for rent or any other covenants in the lease unless what happens?
If the sublessee expressly assumes the rent covenant (or any other covenants), then the sublessee becomes personally liable to the landlord.
72
What do recording acts apply to?
Nearly all instruments affecting real property interests may be recorded, including easements, covenants, leases, contracts to convey, and mortgages.
73
How are easements terminated?
END CRAMP
- estoppel
- necessity ends
- destruction
- condemnation (by eminent domain)
- release in writing
- abandonment action (beyond just words or disuse)
- merger doctrine (both parcels are owned by one)
- prescription
74
What are the requirements for a covenant to run with the land?
WITCH VN [think coven]
1) Writing
2) Intent to run
3) Touch and Concern
4) Horizontal Privity—only required for burden to run
5) Vertical Privity
6) Notice—only required for burden to run
75
What are the requirements for an equitable servitude to run with the land?
[What In The Name?]
1) Writing
2) Intent
3) Touch and Concern
4) Notice—only required for burden to run
76
What is a deed of trust?
a writing granting an interest in property as security for an obligation, but the deed goes to a third party as trustee
77
What does it mean for a covenant to touch and concern the land?
it must relate to the use, enjoyment, or occupation of the dominant and servient estates; an economic benefit would not be enough
78
When can termination rights in an at-will tenancy be limited?
they are generally ok except when they are unconscionable
79
What is the difference in liability when the improved land is damaged due to subjacent support?
If the adjacent land subsiding would have occurred in the natural state, then strict liability applies
If the damage would not have occurred in the natural state, then negligence applies.
80
What is the common law exoneration-of-liens doctrine?
the recipient of a specific devise of real property can use the remaining assets in the testator's estate to pay off any encumbrances on that property. Most states have abolished this doctrine, and payment of an encumbrance on devised real property is required only if the will so specifies.
81
What is the doctrine of ademption by extinction?
when the testator does not own a specifically devised asset at the time of death. the device of real property will fail.
82
In a title-theory state, what does the lender have when they hold a mortgage?
legal title to the mortgaged land and can take possession of the land even if the mortgagor is not in default
83
Can a buyer who assumes a mortgage as part of the purchase price later raise the defenses that the debtor could have raised to avoid the mortgage obligation?
No. A buyer who assumed a mortgage as part of the purchase price may not raise defenses. Otherwise, the buyer would be unjustly enriched.
84
When can an equitable servitude be implied from a common scheme?
(1) the owner intended to create a common scheme,
(2) the intended servitude was restrictive, and
(3) persons to be bound had notice of the servitude.
But it cannot be enforced against lots sold before the common scheme arose.
85
What happens when the lender waives a "due on sale clause" when the debtor transfers the mortgaged property?
The lender may waive this clause, but the debtor is still liable on the note unless the lender releases the debtor from that obligation. Even if the buyer assumes the mortgage, the original debtor becomes secondarily liability as a surety. This gives the lender the right to sue either party upon default, and the original debtor can recover any amount paid from the grantee.
86
What makes something a material physical defect?
Substantially impacts the:
- Value
- Health or Safety
- Desirability to the buyer
Ex: not disclosing a murder on the property may be a material defect
87
In a majority of jurisdictions, what duty does the seller of real property have?
A duty to disclose all known, material physical defects that cannot be reasonably discovered by the buyer
The seller can disclaim this duty if:
- the disclaimer is clearly and specifically stated in the real estate contract AND
- the seller has not fraudulently misrepresented or concealed the condition of the property
88
What is the doctrine of equitable conversion?
Once there is a sale contract for real property, the buyer gets equitable title (becomes the owner) and the seller retains legal title. If the property is destroyed (through no fault of the parties) prior to closing, the buyer bears the loss
89
What happens when there is a judgment obtained against the seller after the execution of the land-sale contract
the judgment is not enforceable against the real property—even if the claim arose before the contract was executed.
90
What happens when there is (1) a "time is of the essence" clause, (2) circumstances indicated that the parties intended to strictly adhere to the closing date, or (3) one party notifies the other that time is of the essence within a reasonable time prior to closing
A seller must deliver marketable title on the CLOSING date
91
The grantor typically manifests the intent to presently transfer the property by physically handing over or mailing the deed to the grantee or the grantee's agent. However, the intent to transfer can also be implied from the grantor's words or other conduct. What's an example?
A farmer signed and notarized the deed and then started to deliver it to the friend before stopping for lunch.
92
What happens when a property has a defect yet the buyer still wants the property, but the seller refuses to perform?
the buyer can (1) rescind the contract and seek restitution, (2) seek specific performance with an abatement of the purchase price, or (3) sue for damages.
93
What is the doctrine of subrogation?
a third party (subrogee) who fully pays another's mortgage loan becomes the owner of the loan and the mortgage. The subrogee may therefore seek reimbursement from the debtor or enforce the mortgage.
+The third party MUST lack actual knowledge of junior interests
94
What type of notice is needed to end a periodic tenancy?
Under the common law, oral notice of termination is sufficient. However, under modern statutes, most states require written notice
95
What are the duties of the landlord?
Repairing Quietly Gives Hobby
1) duty to Repair
2) covenant of Quiet enjoyment
3) Give possession
4) warranty of Habitability
96
What is the covenant of quiet enjoyment?
The covenant of quiet enjoyment is a promise by the landlord not to interfere with the tenant's possession of the leased premises
97
After a constructive eviction, what can the tenant do?
the tenant’s obligation to pay rent is excused due to constructive eviction only if the tenant gives notice and adequate time to permit the landlord to fulfill his duty and vacates the property within a reasonable amount of time.
98
What are low-level interferences with the use and enjoyment of the premises called?
de minimis acts, which do not generally constitute constructive eviction
99
What is the duty to repair?
Under the common law, there was no implied duty on the part of the landlord to repair leased premises. However, the majority of jurisdictions today enforce an implied duty upon the landlord to repair under a residential lease except for damages caused by the tenant. Failure to make these repairs may constitute a constructive eviction or violate the implied warranty of habitability.
100
When does a landlord have a duty to repair a commercial lease?
courts are reluctant to imply a landlord’s duty to repair in commercial leases because the implied warranty of habitability does not apply in commercial leases. Therefore, absent some statutory or contractual obligation, a landlord only has a duty to make a repair if (i) the repair is so substantial that it would not ordinarily fall within the tenant’s common law repair duty, or (ii) the value of the repair would primarily inure to the landlord’s reversionary interest.
Ex: a pipe in the bathroom leaked causing flooding in a nail salon. The manicurist took reasonable steps to mitigate damages by cleaning the floor and turning off the leaking pipe. The salon was able to operate, but not at full capacity. The LL still has no duty to repair the plumbing.
101
What is a condition that violates the warranty of habitability?
A condition that substantially threatens a tenant's health or safety. A failure to comply with the housing code does not automatically constitute a breach, but may serve as evidence of a breach
102
What are the majority and minority rules regarding preventing assignment or subletting without the permission of the landlord, and the lease is silent as to a standard for exercising that permission?
majority: the landlord may withhold permission only on a reasonable ground in relationship to the property being leased and not on a whim or personal prejudice
minority/traditional: the landlord may withhold permission at his discretion.
103
What is vertical privity?
the successors acquired, by purchase or other means, the same ownership interests as the original parties
Could also be a Landlord-Tenant relationship
104
What is horizontal privity?
promising parties simultaneously transfer the land and create the covenant
105
What does it mean to touch and concern the land
the covenant relates to the use, enjoyment, or occupation of the land
106
What does it mean to have notice, for purposes of analyzing a real covenant that runs with the land?
person to be bound had actual, inquiry, record [AIR] notice of the covenant
107
Though an outstanding mortgage is a title defect, the seller can apply the proceeds from the sale of the property to the mortgage obligation. Doing so will eliminate this title defect if the sale proceeds exceed the amount of the outstanding mortgage.
o
108
When mortgaged property is transferred to a donee, the donee may assert the donor-mortgagor's defenses against the mortgagee-lender. But a purchaser who assumes an existing mortgage obligation as part of the purchase price may not do so.
o
109
What is the legal significance of being in a minority jurisdiction that has adopted the Uniform Vendor and Purchaser Risk Act?
the risk of loss remains with the seller until the buyer takes possession of or receives legal title to the property
110
What is an equitable mortgage?
An equitable mortgage is created when an absolute deed—i.e., a deed that is free of encumbrances and transfers unrestricted title to property—is given with the intent to secure a debt.
+Upon default, foreclosure is the appropriate means to remove the borrower
111
A deed is void and unenforceable, even by a bona fide purchaser, if
(1) the grantor's signature is forged,
(2) the deed itself is forged, or
(3) the grantor is deceived about nature of the executed document.
If conveyed, there is no conveyance of title even to a bona fide purchaser
112
In a future-advances mortgage, how do you know if the future advances are optional or obligatory?
Future advances made pursuant to a loan that makes advances conditioned on satisfactory progress of the project for which the loan was made are optional, not obligatory.
113
Although the developer made one set of units available for individuals with children under 18, the other set was off-limits to individuals with children. Segregating homeowners in this manner (based on familial status) is a violation of the FHA.
o
114
What are the elements of an easement by prescription?
CANON
+Continuous – uninterrupted for the statutory period
+Actual – use of the land
+Nonpermissive – hostile and adverse to the owner
+Open and Notorious – apparent or visible to a reasonable owner
* It need not be exclusive
* tenants cannot acquire an easement by prescription over the leased premises or other lands owned by their landlord
- Regarding the nonpermissive requirement, the majority of jurisdictions rebuttably presume that a use that meets the other requirement is non-permissive
115
When an easement is shared, from whom can the owner who maintains or repairs the easement seek contribution?
(1) the other owners and (2) the servient-estate owner if he/she uses the easement
116
What is the doctrine of after-acquired title (i.e., estoppel by decree)?
when a grantor conveys property to a grantee by warranty deed before the grantor has acquired title to that property. Once the grantor receives title, this doctrine will cause it to automatically transfer to the grantee.
117
Upon a partial condemnation, a tenant must continue to pay rent but is entitled to compensation for the portion of the leased property that was taken. In contrast, upon a complete condemnation, the tenant is discharged from his/her rent obligation and is entitled to compensation for the taking.
o
118
A debtor remains personally liable for the mortgage debt even after the mortgaged property is transferred to another. But the debtor will be relieved of personal liability if the lender releases or impairs the mortgaged property.
0
119
A mortgage is generally enforceable only to the extent that the underlying obligation is enforceable. Therefore, a mortgage is subject to the same defenses as the underlying obligation secured by the mortgage—e.g., mistake, duress, lack of capacity, statute of limitations.
For example, when the statute of limitations provides the owner-mortgagor with a valid defense to the enforcement of the loan obligation. Therefore, the owner also has a valid defense to enforcement of the mortgage. For this reason, the lender will likely not prevail in its foreclosure action.
120
To be valid, a deed must unambiguously identify the grantee. And though extrinsic evidence can be used to identify the grantee, the deed will be deemed void if such evidence is also unclear.
o
121
When evaluating a liquidated damages clause in a real-estate contract, what factors do courts consider in determining if the LD are reasonable
SAN
1) the Sophistication of the buyer
2) the Nature of the transaction (commercial vs. residential)
3) whether the seller suffered an Actual loss (if not, courts may refuse to enforce the clause)
122
What is an easement by prescription?
Easement by prescription is a type of adverse possession where someone acquires an easement (a right to use another person’s property in some way). Easement by prescription occurs where someone uses another's property for a certain amount of time without permission in a way in which the owner should be aware of.
123
Generally, a properly recorded mortgage that precedes another mortgage has priority over the later mortgage. But what happens if the senior mortgage modifies the terms after a junior mortgage is recorded?
If the new terms are materially prejudicial to the junior term, then the senior term drops in priority
If the new terms are NOT materially prejudicial to the junior term, then the senior term remains higher in priority.
A term is materially prejudicial if the interest rate or the principal amount of the mortgage increased.
124
What is an easement appurtenant?
a right to use adjoining property that transfers with the land.
This is the default assumption and clear facts suggesting that it was an easement in gross are needed.
125
What is an easement in gross?
An easement in gross is an easement that benefits an individual and is not tied to the land. An easement in gross does not transfer with the property when it is sold. Further the individual that benefits from the easement cannot transfer the easement.
126
What happens if the grantor in a FSSCS waives their right to terminate (i.e., the condition occurs, but they don't do anything about it)?
The owner may waive this right, but the mere failure to assert it does not constitute a waiver. The grantor can later use this right.
127
Restrictions contained in the recorded DECLARATION of a common-interest ownership community are enforceable unless illegal, unconstitutional, or against public policy.
This differs from the rules adopted by a board of a CIC, which must satisfy a reasonableness standard
For example, while a "no cats" policy in the recorded declaration based on a developer's personal dislike may be arbitrary, it is still enforceable
128
In determining if a rule by a CIC is reasonable, what is the standard?
A rule is reasonable if it is reasonably related to furthering a legitimate purpose of the association
+These rules can restrict use of common areas and individually owned property to protect common property in the community
129
The scope of an express easement is defined in the first instance by its terms. If the terms are ambiguous, then courts look to the intent of the parties, which may be indicated by the post-creation conduct of the parties and what is reasonable in light of the easement’s purpose.
Ex: Easement to allow railroad tracks. If the railroad company later wants to put in fiber optic cables on the land covered by the easement, this would violate the terms of the easement.
130
What is the exception to the statute of frauds in a land sale contract that allows either party to seek performance of the contract despite not meeting the SOF requirement?
The doctrine of part performance. To qualify, most courts require 2 of the following 3 acts [PSP]:
1) payment of all or part of the purchase price
2) substantial improvement of the property
3) possession by the purchaser
131
What are the available remedies for breach of a land sale contract?
1) money damages (typically comparing the market price to the contract price
2) specific performance
132
What are the requirements needed to get specific performance of a land sales contract?
Chocolate Cheesecake Is My Favorite Dessert
1) Contract is valid
2) contract conditions imposed on the plaintiff are satisfied
3) inadequate legal remedy
4) mutuality of performance
5) feasibility of enforcement
6) no defenses
133
Who doe recording acts NOT protect?
Only a grantee who pays value for an interest in real property is entitled to protection under the recording statutes. A grantee need not pay fair market value of the real property interest, but most jurisdictions require the payment of a substantial amount that is not grossly inadequate in relation to the value of the property interest. Therefore recording acts do not protect DONEES, HEIRS, DEVISEES
+judgment creditors are not purchasers for value since the attachment of a judgment lien to a debtor's property is merely security for a preexisting debt and NOT payment for value
134
What are the 3 types of notice?
AIR
| actual, inquiry, record (constructive)
135
What is the shelter doctrine?
a grantee who has received an interest in property from a bona fide purchaser will also be protected as a bona fide purchaser, even if the grantee would not legally qualify for this status
Ex: A property is mortgaged, but not recorded. It is then sold to a couple who had no knowledge of the prior mortgage and thus were BFP. The couple dies which leaves the property to their children. Because of the shelter rule, the kids will also be protected as BFP which gives them priority over the first unrecorded mortgage.
136
What are the three present possessory estates within fee simple defeasible?
1) fee simple determinable
2) fee simple subject to condition subsequent
3) fee simple subject to executory imitation
137
What is the present possessory interest called that is the most unrestricted estate?
fee simple absolute
138
Absolute restraints on alienation are void because they are against public policy.
However, reasonable restraints on alienation will be upheld
Ex: A FSA conveyance that says "provided that the grantee may not transfer any interest in the land for 10 years from the date of this instrument." This is a total restraint on alienability of FSA so the restriction is void.
139
What is the rule against perpetuities (RAP?
no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest
140
a joint tenancy cannot be devised by will
o
141
tenancy by the entirety are NOT recognized in community property states
o
142
Generally, a co-tenant does not have to share profits (e.g, business on the land) except...
1) any net profits received from exploitation of the land that reduce the value of the land and 2) rents collected from third parties
143
A co-tenant who makes property-related expenditures is, in some cases, entitled to contribution from the other co-tenants based on the ownership interest of each co-tenant.
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.
144
A co-tenant cannot compel other co-tenants to share in the expenses for repairs made to the property through an action for contribution. A co-tenant may, in some jurisdictions, maintain a separate action for contribution if the other co-tenants were notified of the need for the repair.
Similarly, a co-tenant does not have a right to contribution from other co-tenants for improvements made to the property.
145
What are the landlord's options upon abandonment by the tenant?
1) accept the surrender and terminate the lease
2) re-let on behalf of the tenant (tenant must be notified)
3) leave the premises vacant and sue for rent
146
What is the modern view of the landlord's duty regarding the condition of the premises?
1) maintain all common areas
2) fix latent defects of which the landlord has knowledge
3) repairs must be nonnegligently done
147
What are the tenant's options when the landlord breaches the covenant of quiet enjoyment?
[breach of quiet leads to cap]
- constructive eviction (give the LL notice and opportunity to fulfill duties)
- actual eviction (ends lease and obligation to pay)
- partial actual eviction (when caused by the landlord payment is completely excused)
148
What is a partial actual eviction and what can the tenant do?
Partial actual eviction occurs when the landlord makes it physically impossible for the tenant to occupy all of the premises.
The tenant may withhold the entire rent or
149
What are the three types of waste?
- voluntary
- ameliorative (increases value)
- permissive
150
What is a trade fixture?
items that were once moveable chattel, but that have become so attached to the premises they are deemed fixtures and considered part of the real estate
Ex: stove, garbage disposal, ceiling fan,
151
What are factors considered in whether something is a fixture?
MARIA
- method of attachment (the item is permanently attached?)
- adaptability (the item is peculiarly adapted)
- removal (removal would destroy chattel or harm the estate)
- intention (of the person adding the chattel)
- agreement (in the lease)
+Generally, it is rare for something to become a fixture. Items that could be removed include: carpet, a built-in stove, windows
152
What is an easement?
the right to use the land of another
153
What are examples of negative or affirmative easements?
negative: owner cannot develop the land in a way that blocks the neighbor's view (rare)
affirmative: using a driveway
154
What are the five ways to create an easement?
[PINE E]
1) easement by Prescription
2) creation by Implication from prior use
3) easement by Necessity
4) Express creation
5) Easement by estoppel
155
What is the remedy when an easement is misused?
injunction and/or damages, but the easement will not be terminated
156
What happens to the easement when the servient estate transfers the estate?
the easement is transferred to the new owner. However, if an express easement is granted but not recorded, then, depending on the applicable recording act, the easement may not be enforceable against a subsequent purchaser of the servient estate. The easement itself is not terminated, but rather cannot be enforced against the purchaser.
157
What is a real covenant?
a written promise between two parties about how land is to be used that "runs with the land"
158
When is a covenant terminated or modified?
```
DREAM cc (Cotton candy)
Destruction
Release
Estoppel
Abandonment
Merger
Condemnation
Changed Conditions
```
159
What is an equitable servitude (restrictive covenant)?
restriction on how land may be used
160
What is the remedy for a breach of an equitable servitude? For a real covenant?
Equitable servitude: injunction in equity
| Real covenant: money damages
161
What is a profit ( prendre)?
a right that entitles the holder to enter the servient estate land and remove soil or a product of the land itself
+They can generally be transferred unless the profit is personal or transfer would contradict the intent of the parties creating the profit
Ex: Letting a timber company take all the timber it wants for FMV
162
What are the three approaches to getting rid of surface water?
1) common enemy: owner may cast water onto neighbor's land
2) natural flow theory: owner is strictly liable for interfering with natural flow
3) reasonable use doctrine: allows owner to act reasonably
163
What can an owner do with surface water?
the owner may use all of it he wants
164
What are the two competing riparian rights (dealing with waterfront streams and lakes that abut property)?
- Reasonable use theory (riparian doctrine): each owner may use as much water as he reasonably needs
- prior appropriation doctrine: the water rights are determined by priority of beneficial use. The norm for allocation is first in time, first in right. Subsequent users must not infringe upon the rights of the prior user. Used in CA
165
What is the right to lateral and subjacent support?
every landowner has a right to receive necessary physical support from adjacent soil (lateral support) and underlying soil (subjacent support)
166
What is the standard for zoning?
zoning regulation must be reasonable, not arbitrary and have a substantial relation to public benefits
167
What are the two types of zoning?
- cumulative (creates a hierarchy of land)
| - noncumulative (land may only be used for the purpose for which it is zoned
168
How do you create an express easement?
An express easement arises when it is affirmatively created by the parties in a writing that satisfies the requirements for a deed
169
What is the doctrine of merger?
an obligation contained in the contract of sale is merged into the deed and cannot thereafter be enforced unless the deed contains the obligation
170
When a property is sold at a foreclosure sale and purchased by a cotenant, the cotenant must allows the other cotenants to reacquire their interests by paying their share of what the purchase price the cotenant just purchased
o
171
What happens if there is an unreasonable restraint on alienation?
The clause will be stricken from the conveyance
172
Unless otherwise stated, an easement appurtenant cannot be used for the benefit of property other than the dominant estate. If this occurs, a court may award damages instead of an injunction when there is no increased burden on the servient estate.
o
173
What are the majority and minority rules on preventing assignment or subletting of a lease?
The majority rule is that the landlord may withhold permission only on a commercially reasonable ground.
The minority rule is that the landlord may withhold permission at his discretion.
+A clause that prohibits assignment does not automatically prohibit subleasing as well.
174
What happens if the landlord knows of an assignment or sublease?
If the landlord does not object this will constitute a waiver of the landlord's rights
175
What happens if a tenant fails to pay rent?
If a tenant fails to pay rent then the landlord can sue both for damages and to remove the tenant from the property.
176
What is the rule on a landlord using self-help (e.g., changing locks) to evict?
Residential: The landlord MUST use legal action.
Commercial: Generally the landlord must use legal action. A minority of jurisdictions allow self-help
177
What is a tenancy for years?
A tenancy for years is an estate measured by a fixed and ascertainable amount of time.
178
What is a periodic tenancy?
A periodic tenancy is a repetitive, ongoing estate measured by a set period (e.g., a month, a year) but with no predetermined termination date.
It automatically renews at the end of each period until one party gives a valid termination notice.
179
What is a tenancy at will?
A tenancy at will is a leasehold estate that does not have a specific term and continues so long as the landlord and the tenant desire.
180
What is a tenancy at sufferance?
A tenancy at sufferance (holdover tenancy) exists for the period after the expiration of a lease during which the tenant remains on the premises without the landlord’s permission.
181
What is the general rule for co-tenant rent payments?
A co-tenant must account to other co-tenants for rent received from third parties. Each tenant is entitled to an amount of the rents proportionate to his ownership interest.
182
What is the rule for co-tenants collecting contribution from other co-tenants?
A co-tenant can collect contribution from the other co-tenants for paying more than his portion operating expenses which includes property taxes
183
What is the common law rule when there is no recording act in place?
"first in time, first in right"
184
What is a bona fide purchaser?
one who takes for value and is without notice of the prior interest
185
What are terms that suggest a recording statute is a notice statute?
"good faith"
"for value"
"without notice"
186
What are terms that suggest a recording statute is a race statute?
"records first"
187
What are the exceptions to the first in time priority in foreclosure?
[Please Record So Mortgage is First]
- Purchase money mortgage
- Recording act
- Subordination agreement
- Modification
- Future advances
188
What is a purchase-money mortgage?
when a person buying real property gives the seller a mortgage on the property as part of the deal to buy the property.
189
What is the purchase-money mortgage exception?
A purchase-money mortgage has priority over mortgages and liens created by or that arose against the purchaser-mortgagor prior to the purchaser-mortgagor’s acquisition of the property, whether or not recorded.
190
What is the difference between a FSEI and FSSCS?
the occurrence of the condition stated in a fee simple subject to in an executory interest automatically triggers the passage of title to the third party.
191
What is language that suggests the conveyance was a FSSCS?
“right of entry,” “right of reentry,” or “power of termination”
192
Can an easement for term of year (say 20 years) be terminated prior to the expiration date?
yes
193
What are future interests that RAP does not apply to?
- future interests held by the grantor (or his heirs)
| - charitable trusts
194
What is required for one co-tenant to oust another co-tenant?
a co-tenant’s exclusive use of the property does not, by itself, give rise to adverse possession of the interest of another co-tenant. Without other action against another co-tenant, such as denying that co-tenant the right to access and possess the property, a co-tenant has not ousted another co-tenant from the property and therefore has not adversely possessed the property with respect to the other co-tenant.
195
What happens if someone has adversely possessed a property, but midway through the time period, the property is transferred to someone with a disability?
Once adverse possession has begun, a transfer of the property to another owner (e.g., sale, gift, devise) will not restart the adverse possession period.
Ex: Land is adversely possessed for the statutory period and halfway through the period, the land is transferred to a 16 year old. This does not stop the clock.
196
What happens to a deed that is recorded by the buyer before the seller owns the property?
the deed falls outside a later buyer's chain of title and therefore fails to provide record notice
197
What is the common sense definition of RAP?
If a contingent interest has any possibility of vesting more than 21 years after some relevant life in being at the creation of the interest, then the interest is void.
198
What should you remember whenever you see an option to purchase in a conveyance (e.g., "the premises shall be used for residential purposes and if not, the man his heirs and assigns shall have the right to repurchase the premises for $1000")?
Options to purchase are almost always void if there is no termination date within the perpetuities period
199
Generally, the statute of frauds requires that a contract for the sale of land must be in writing, be signed by the party against whom enforcement is sough, and contain all essential terms. What is a non-essential term?
time is not an essential term. Courts will presume that performance within a reasonable amount of time was intended
200
A tenant unjustifiably abandons a leased property and after 2 months the landlord rejects the tenant's offer of abandonment. The landlord then makes no effort to re-rent. What is the tenant liable for?
the tenant is liable for 2 months of rent and nothing more because the landlord failed to mitigate damages.
201
What is an easement by implication?
When the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the transfer of one parcel, the parties intended the use to continue if that use was continuous, apparent, or known, and reasonably necessary to the dominant land's use and enjoyment
Ex: [uses profits which work the same way] A sawmill owned the entire property before selling the timbered portion to a buyer. The sawmill had been apparently and continuously removing timber from the land until the sale. And the continued removal of timber is reasonably necessary since the sawmill has come to rely on the supply of timber from the buyer's land to operate.
202
Which emblements are considered personal property and which are considered real property?
fructus industriales: personal property
fructus naturales: real property
+Both emblements are presumed to be conveyed with the land
+harvested crops are presumed to not be conveyed with the land
203
A house is mortgaged and the owner later bought window frames on credit. The frames can be removed easily. The man has defaulted on his obligation to the supplier. Can the bank enjoin the supplier from repossessing the window frames?
No. A mortgage holder has a legal interest in the mortgaged property and any fixtures later added to that property. A fixture is an object that is so attached to real property that it is essentially a part of that property. But because the window frames are removable, the bank has no standing to enjoin the repossession
204
What is the difference between adverse possession and an easement by prescription?
In an easement by prescription, the use need not be exclusive. Just CANO
+Ex: A man makes a path on a neighbor's land. The neighbor leases the land to hunters. Both the man and hunters use the path. If the period has run, then the man has an easement by prescription
205
A tenant is excused from paying rent when the government condemns the ENTIRE leased property for the remainder of the lease term
When the government condemns only part of the property (or all of the property temporarily) the tenant remains liable for the rent.
Ex: Government condemns half of the farmer's land that is tillable. The farmer-tenant remains obligated to pay the rent
206
Unless the document creating a life estate says otherwise, who has the duty to pay all current charges (e.g., property tax, mortgage interest)?
the life tenant, up to the amount of income that can be generated from the land
207
What is the "one stock" rule?
transferees are limited to the amount of material taken by the transferor and this quantity is divided up by transferees taking the profit
Ex: A gun club has a profit to shoot geese on a farmer's land. The club then disbands and before disbanding assigns this right to 10 members.
208
If a subsequent purchaser purchases a property which a prior grantee failed to record, and the subsequent purchaser had no notice of the prior interest, the subsequent purchaser prevails over the prior interest regardless of who recorded the deed first.
o
209
What happens if the transferee (typically the buyer) agreed to assume the mortgage?
the transferee becomes primarily liable for the debt and the original mortgagor becomes secondarily liable as a surety. If a transferee defaults on an assumed mortgage and the mortgagor pays that debt, the mortgagor can seek reimbursement from the transferee under the law of suretyship
210
What is the name of the water doctrine used in western states?
prior-appropriation
211
What is the name of the water doctrine used in eastern states?
riparian doctrine or reasonable-use doctrine
212
Are "as is" provisions in a sale of residential property ok?
Yes, "as is" provisions are ok so long as the seller has not fraudulently misrepresented or concealed the condition of the property
213
If a person enters property under color of title and actually possesses a reasonable portion of the property for the statutory period, what rights does the person have to the property?
through constructive adverse possession, the person has title to the entire property
+if the seller has no interest to convey, then the only way to obtain the land is through adverse possession
214
Who must pay when a preexisting mortgage obligation requires periodic payment of interest AND principal?
both payments must be allocated between the life tenant and the future-interest holder. Failure by the remainderman to pay his share of the debt may result in the loss of his property interest.
[when both payments are needed, both parties need to pay]
215
Who must pay when a preexisting mortgage obligation requires periodic payment of interest only?
the life tenant pays the interest and the future-interest holder pays the principal later
216
Unlike a zoning variance, a property owner MUST be granted a SPECIAL-USE permit if the property owner has complied with the procedures for obtaining the permit and has established entitlement to the permit
o
217
What happens if there is a foreclosure of a cooperative?
A cooperative has a blanket mortgage that generally has priority over occupancy leases. A default on the mortgage can therefore result in foreclosure proceedings on the property, which in turn can terminate ALL the leases
218
A buyer and seller into a land sale contract. Shortly after entering into the K, the buyer discovered that the record owner of the land was not the seller, but another individual. The buyer also learned that the seller had taken possession of the land through adverse possession. The buyer no longer want to purchase the land. Must the buyer purchase the land?
No, because the title is not free from an unreasonable risk of litigation. Although the land has most likely been acquired through successful adverse possession, it MUST be quieted first.
219
What does caveat emptor mean?
"let the buyer beware." This common-law doctrine says that a seller has no duty to disclose property defects to the buyer unless otherwise agreed
220
What is clogging the equity of redemption?
When a mortgagee attempts to deny the mortgagor's ability to waive the right to redemption after the mortgage is executed
+Right of redemption is when the mortgagor defaults, but pays the loan obligation currently owed
221
A brother and sister own land in fee simple as joint tenants. The brother finds out the land has valuable coal deposits so he conveys his interest to his wife who reconveyed the interest back to him. Who possesses the land.
The brother and sister as TIC. Joint tenants owe no fiduciary duty to other joint tenants.
222
A negotiable promissory note can be transferred by endorsing and delivering the note to another. But a NONNEGOTIABLE promissory note requires what else?
a separate document of assignment be executed to transfer ownership
223
Under the intermediate theory of mortgages, when is the lender entitled to acquire legal title (i.e., the right to own and possess) the mortgaged property?
the lender obtains legal title at the moment the borrower defaults
224
A judgment lien is placed on a joint tenant's interest. The joint tenant later dies. Does the lien holder have an interest in the land upon the death of the joint tenant?
No. The moment the joint tenant died, the interest is absorbed by the surviving tenant. As a result, a judgment lien on the deceased tenant's interest also disappears.
225
What is required of a right of first refusal provision?
to comply with the RAP, a right of first refusal must be set to vest or fail within the perpetuities period
226
What are all the forms of discrimination that are protected by the Fair Housing Act?
[RC FORDS]
```
Race
Color
Familial Status
(national) Origin
Religion
Disability
Sex
```
227
What is promised by a warranty deed?
title is free from defects, but it makes no promise regarding the physical quality of the property
228
A mortgagee that receives a deed in lieu of foreclosure generally retains the right to foreclose on its mortgage. But if the mortgagee has ACTUAL knowledge of a junior lien, then it cannot foreclose on its mortgage to eliminate that lien
Any junior interests remain attached to the property
229
How does the equitable right of redemption work with co-tenants?
If jointly owned property is mortgaged and goes into default, any tenant can avoid foreclosure by paying the FULL amount of the outstanding debt -- even including the debt of the other tenants. The paying tenant can then seek contribution from the other tenants for their share of the debt
230
A deed designated the grantees as "the leaders of all the Protestant churches in County A." Is this permissible?
No. This deed lacks adequate identification of grantees. Extrinsic evidence, such as a conversation with a lawyer, can be admitted. But if the deed remains ambiguous, then the deed is invalid
231
What is the estate created by the language "to my church for the purpose of erecting a church building therin?"
FSA
232
If a mineral estate has been previously severed from the surface estate, what happens if an adverse possessor claims the surface land?
the adverse possessor will only acquire title to the actually possessed surface estate. To possess the mineral estate, the adverse possessor would need to have actually possessed the minerals such as through mining.
233
Normally an easement is terminated when the dominant and servient estates are merged. What happens if there is a future interest?
use of the easement is suspended until the future-interest holder becomes entitled to possession
234
What happens when a TIC is deeded to a cotenant and a nonexistent co-tenant (e.g., a dead person)?
The deed is void to that co-tenant and the grantor retains the co-tenant's interest. Therefore, in this situation a TIC forms between the grantor and the other co-tenant
235
When is consent required by a co-tenant?
- a conveyance of the entirety of the co-owned property
- to obtain exclusive possession over part of the property
- to bind other cotenants interests in contract with a third party
236
What is the difference in timing between the equitable and statutory right of redemption?
equitable: at any time Prior to foreclosure sale
statutory: AFTER property has been sold in foreclosure (but within a designated period of time)
237
What is required of the original debtor when exercising their statutory right of redemption?
payment of the foreclosure sale price to purchasing party within a designated time
238
In a land sale contract what are the essential terms that must be included to comply with the SoF?
[4 Ps]
Price terms
Payment terms
Parties
Property description
+A closing date is NOT required. A court will infer a reasonable time from the date of the K
239
What is the implied warranty of fitness or suitability?
in a contract for the sale of a newly constructed residence, there is an implied warranty that covers defects that cannot be discovered by reasonable observation or inspection prior to purchase.
+A suit must be brought within a reasonable time (like 1-10 years)
Ex: the basement floods after it rains due to cracks that formed AFTER the home was built
240
A buyer purchases a property by securing a mortgage on it. The buyer divides the property into 2 parcels for him and his friend, each paying their share of the mortgage. One year later, the buyer disappears and the friend paid off the outstanding balance of the buyer's loan. What can the friend do?
As a subrogee, the friend may seek reimbursement from the debtor or enforce the mortgage.
241
. The holder of a future interest, such as a remainder interest, has a license to inspect the property for waste. This license is not subject to revocation by the holder of the current possessory interest in the property.
Ex: A son with a remainder interest can inspect the property, despite his mom's opposition as the present life estate holder
242
An adverse possessor takes land held in life estate. What estate does the adverse possessor have?
Only a life estate. An adverse possessor can only take the current possessory interest. This makes sense because the future interest holder cannot yet bring an action to eject the adverse possessor
243
What do "due on sale" clauses apply to?
Although labeled a "due on sale" clause, the clause is triggered by most transfers (e.g., a gift)
244
For a judicially supervised foreclosure sale, the foreclosing mortgagee MUST give notice to junior interest holders.
Any SENIOR interest holders may be joined as proper but unnecessary
245
What are the requirements for a valid deed through death escrow?
the grantor must give the deed to an escrow agent (e.g., an attorney) with instruction to transfer it to the grantee upon the grantor's death AND relinquish the right to take back the deed
246
What is the covenant of further assurances?
it guarantees that the grantor will do whatever is necessary to perfect title should it turn out to be defective
247
Most courts permit a property owner whose nonconforming use has been grandfathered to transfer not only the property itself, but also the right to use the property in the nonconforming manner.
o
248
Remember the doctrine of lapse only applies when the devisee dies before the testator
o
249
Who can the mortgagee sue when mortgaged property is transferred to someone who assumes the mortgage?
the lender can sue the grantee (who is primarily liable) OR the debtor (who is secondarily liable as a surety)
250
A woman owned a 4 unit apartment building and posted an ad that said "white male preferred." What is the issue?
this violates the Fair Housing Act
251
Contracts involving real property usually must comply with SoF.
But leases and easements for less than one year do not have to comply with SoF
252
When does a tenancy for years terminate
automatically upon the expiration of the term without notice from either party
Ex: A one year lease with $1,000 monthly payments. The renter fails to pay the last month and leaves without notice. The lease terminates automatically
253
A man gives permission to a neighbor to paraglide off the land. What is the created interest?
a license. A license is a grant of permission to enter and make specific, limited use of another's land
254
When is a license terminated?
- the death of either party
| - conveyance of the servient estate
255
a purchase-money mortgage has priority over a vendor’s lien, such as an equitable vendor’s lien that arises when the seller of real property takes a promissory note for part of the purchase price but does not take a mortgage.
A seller’s purchase-money mortgage generally has priority over a purchase-money mortgage given to a third-party lender by a buyer to aid the buyer in acquiring the property from the seller.
256
What must the court do when a co-tenant's request for partition?
the court MUST grant the request
257
What are some red flags that render title unmarketable?
- adversely possessed land that has not been quieted
- future interests where the holders have not agreed to the transfer
- mortgages, COVENANTS, options, easements
- zoning ordinance violation
- boundary dispute
+mortgages are not typically issues because sale proceeds are often used to satisfy the mortgage debt before the closing date
+easements do not always affect marketability because sometimes they benefit the property (e.g., a utility easement)
258
A seller enters into a written contract to sell land to an investor. The K did not mention the quality of the title. The sale is completed and the seller delivers a warranty deed. The investor then sells the land to a buyer, but it is discovered that the title to land was not marketable when the original conveyance happened so the buyer refuses to buy from the investor. What remedy does the investor have against the original seller?
A suit for breaching a covenant of title. He CANNOT sue for breach of contract because of the doctrine of merger
259
A man devised vacant land to his wife for life and the rest to his sister in FSA. The wife left the land vacant and did not pay the real estate taxes. To prevent a sale, the sister paid the taxes and demanded reimbursement. Is this required?
No, because the wife never received any income from the lots. Had she personally possessed the land or rented it, she would have been obligated to reimburse. Remember a life tenant's duty to pay current charges on the land is limited to the financial benefit that the life tenant receives from the property
260
What happens if the seller in a real estate clause says that due to a request for more time by the buyer, time is now of the essence. The buyer then gets in an accident.
If the buyer cannot pay the purchase price on the date of closing, then the buyer is in breach. The accident is not an excuse.
261
20 years ago, a woman conveyed land to a city so long as the city used the land "for park purposes." 17 years ago, the city paved over the park for a parking lot but retained possession. Last year, the woman died. Who owns the land?
the city most likely. Once the FSD was violated, the land reverted to the woman. However, she never reasserted possession and the city likely satisfied the period of time required to adverse possess
262
A man owned an oceanfront cottage. A woman owned land across the street that did not have direct ocean access. For $10k, the man executed a deed titled "Grant of Pedestrian Right of Way" to the women and "her heirs and assigns" over a designated strip of land. The deed was not recorded. What kind of easement was created? What happens if the property is sold to someone else?
It is an easement appurtenant. It will transfer automatically with the land to the new buyer
263
What happens when one co-tenant pays more for his fair share of necessary property-related expenses (e.g., mortgage payments)?
they can compel the other cotenant to contribute based on their ownership interest.
Ex: Nephew and Niece are cotenants. Without telling the niece or seeking her permission, the nephew paid monthly mortgage payments for a year. The nephew then demanded immediate contribution. Most likely the nephew will get contribution because this was a necessary expense
264
What happens when the government condemns land that had a profit on it?
The owner of the profit is entitled to compensation
265
Does an easement require consideration?
no. There is no requirement for consideration
266
The location of an easement is first set by the express terms. But if there is no specified location, then the servient-estate owner may fix the estate to a reasonable location
o
267
What are the duties of a real estate broker? What happens if there is a breach?
loyalty
confidentiality
disclosure
Breach of these duties will result in loss of the commission
268
A landlord leased a warehouse building and the lot on which it stood to the tenant for a term of ten years. The lease contained a clause prohibiting the tenant from subletting his interest. Can the tenant assign his interest under the lease?
Yes, the tenant can assign his interest because restraints on alienation of land are strictly construed
269
What are the two types of title insurance policies and how long do they last?
owner's policy: remains in effect as long as the property is owned by the insured or conveyed by warranty deed
lender's policy: which ends once the mortgage is discharged
270
What is the difference between remainder and executory interest?
A remainder, whether vested or contingent, will become possessory, if at all, only upon the natural termination of the estates that come before them. . . On the other hand, the executory interest operates to divest/cut short the estate that comes before it; it does not come into possession at the natural expiration of the earlier estate.
