Real Property Flashcards
(100 cards)
1
Q
When does a survivorship contingency apply
A
the majority view is that the contingency applies at the termination of the interest that precedes distribution of the remainder.
2
Q
What is the default type of tenancy
A
A tenancy in common is the type of tenancy that is created by default when neither a joint tenancy nor a tenancy by the entirety exists.
3
Q
Is a covenant of marketable title implied
A
a covenant of marketable title is implied in every land sales contract, commercial as well as residential, unless specifically waived by the buyer.
4
Q
Does an improvement become part of the mortgaged property
A
A mortgage generally includes improvements made to the property. Consequently, in satisfaction of the mortgage obligation, a mortgagee is entitled to the proceeds from the sale of the property, including the amount attributable to an improvement of the property by the mortgagor.
5
Q
Can a fixture be removed by the tenant?
A
Absent an agreement to the contrary, a non-freehold tenant can remove a fixture that the tenant has attached to the leased property if (i) the leased property can be and is restored to its former condition after the removal, and (ii) the removal and restoration is made within a reasonable time.
6
Q
Who’s prohibited from removing a fixture
A
Under common law, a trespasser, such as a holdover tenant, is prohibited from removing a fixture attached to the land.
7
Q
Does ameliorative waste need consent from landlord
A
Yes
8
Q
Fee simple estates types
A
9
Q
Elements of real covenants and equitable servitudes
A
10
Q
Types of listing agreements
A
11
Q
Fee simple subject to an executory limitation
A
Does not expire when the grantor dies
12
Q
Mortgage Alternatives
A
13
Q
Ways to avoid foreclosure
A
14
Q
Performance deadlines for real estate contracts
A
14
Q
Adverse possession element
A
15
Q
Mortgage documents
A
16
Q
Distinctions between easements
A
17
Q
Rights and duties of co-tenants
A
18
Q
Red flags for marketable title
A
19
Q
Transfer of promissory note and mortgage
A
20
Q
Deed requirements
A
Not valid if the grantee is dead at the time of execution
21
Q
Is a landsale contract subject to contract rules
A
Yes only valid if there is a bargained for exchange consideration
22
Q
What are implied easements
A
23
Q
Is the original tenant individually liable to for the landlord’s entire harm from breach of lease by the sublessee
A
Yes.
24
Profit rules
25
What is payment of value
26
What does a judicial lien do to a joint tenancy
27
Executory interest vs a remainder
An executory interest is a future interest in a third party that is not a remainder and that cuts the prior estate short upon the occurrence of a specified condition. A remainder is a future interest created in a grantee that is capable of becoming an estate that is presently possessory upon the natural expiration of a prior possessory estate (e.g., a life estate, estate for years) that is created in the same conveyance in which the remainder is created.
28
How does RAP apply
The Uniform Statutory Rule Against Perpetuities takes a "wait and see" with respect to the applicability of the Rule Against Perpetuities. Under this approach, an otherwise invalid interest is valid if it does in fact vest within 90 years of its creation.
29
Charity exception under RAP
there is an exception to the Rule Against Perpetuities for a charitable-to-charitable transfer, there is no exception when only the grantee is a charity.
30
How can a landlord increase the rent amount
A landlord may increase the rental amount that is due from a holdover tenant where the landlord informs the tenant about the rent increase before the prior rental period expires and the rent increase is not unreasonable.
31
Does a residential lease allow repair on the tenant
A residential lease generally cannot place the duty to make repairs on the tenant, and a provision to that effect is void. This would certainly be true if the need for the repairs did not arise from the tenant’s acts and the tenant promptly notified the landlord of the need for such repairs
32
Easement by prescription requirement
continuous, actual, open, and hostile use for the statutory period in this jurisdiction. Unlike adverse possession, the requisite use to establish an easement by prescription need not be exclusive.
33
Easement by necessity requirement
an easement by necessity may be implied only if the land had been in common ownership and the strict necessity for the easement existed at the time of severance.
34
Will senior mortgage be affected in a foreclosure by junior mortgage holder?
As the senior mortgage, it is not affected by the foreclosure of the private lender’s junior mortgage. Consequently, the private lender need not join the bank as a necessary party to the private lender’s foreclosure action.
35
Can an easement location be changed unilaterally
Once the location is fixed, under the majority rule, the owner of the servient estate may not unilaterally change the location of the easement.
the owner of the servient estate, not the owner of the dominant estate, that has the right to fix the location of an easement when the location of the easement is not fixed by the instrument, set by circumstances, or selected by the parties.
36
Easement abandonment requirement
As a property right, an easement cannot be abandoned by a statement of intent to do so without affirmative conduct by the easement holder.
37
When should marketable title be delivered
Absent contrary language, every land sales contract contains an implied covenant of marketable title. Unless otherwise agreed, the seller is not required to deliver marketable title until the closing. In an installment land contract, marketable title is not required to be given until delivery occurs after all installment payments have been made. An undisclosed private encumbrance (such as a mortgage) renders title unmarketable. If a seller delivers an unmarketable title, a buyer may rescind the contract and recover payments, sue for breach of contract, or bring an action for specific performance with an abatement of the purchase price (e.g., price adjustment to compensate the buyer for the defect).
38
How to waive marketable title
Absent contrary language, an implied covenant of marketable title (i.e., a title free from defects) is part of a land sales contract, regardless of the type of deed created. The implied covenant of marketable title is designed to protect the buyer. However, a buyer may waive the right to have marketable title.
39
Doctrine of equitable conversion
Absent an agreement or statute to the contrary, the doctrine of equitable conversion applies. Equitable conversion places the risk of loss between the execution of the contract and the closing date on the buyer, regardless of whether the buyer takes possession of the property. However, there is an exception when the loss is attributable to the intentional or negligent acts of the seller.
40
What happens when the seller of real property dies before the conveyance of the property
the buyer can compel the executor of the seller’s estate to honor the contract and transfer the property to the buyer. At common law, the proceeds from the sale of the property under contract were treated as personal property that passed to the devisee of the seller-decedent’s personal property. The devise of the real property itself was treated as having been adeemed. In a jurisdiction that has adopted an anti-ademption statute, however, the devisee of the seller-decedent’s real property is entitled to the sale proceeds.
41
Inquiry notice
However, if a reasonable investigation would have disclosed the existence of prior claims, then the grantee is considered to possess inquiry notice, and she cannot prevail against those prior claims.
42
Exoneration of liens doctrine
permits the devisee of real property that is subject to a lien (e.g., a mortgage) to demand that the lien be paid off (i.e., “exonerated”) using other assets in the decedent’s estate.
43
title theory of mortgages
the granting of a mortgage by fewer than all of the joint tenants severs the joint tenancy and transforms it into a tenancy in common.
44
intermediate theory of mortgages
upon default with regard to a loan to which the mortgage serves as security, the jurisdiction switches from the lien theory to the title theory.
45
right to lateral support from adjoining land
If the adjoining land has been improved (i.e., is not in its natural state), the excavating landowner is strictly liable for any damage caused by the excavation only if the land would have collapsed in its natural state (regardless of the improvement).
46
Right to rainwater/surface water
Rainwater is classified as surface water or more precisely as diffused surface water. As such, although there are restrictions on the ability of a landowner to prevent such water from entering his property or altering the flow of such water off his property, a landowner may generally impound such water on her property and may make whatever reasonable use she wishes of that water.
the doctrine of "prior use" applies to uses of other types of water, such as groundwater (i.e., water found under the surface of the land). The doctrine of prior use does not apply to surface water.
47
Life tenant's duty to repair
A life tenant is not responsible for damage caused by a third-party tortfeaser.
47
At the time of the owner's death, the wife had a life estate in the ranch, the owner's grandchildren held a contingent remainder, and the owner's child held the reversionary interest as the devisee of the owner's property other than the ranch. The grandchildren's interest was a remainder because it was a future interest created in a grantee that was capable of becoming an estate that is presently possessory upon the natural expiration of a prior possessory estate (i.e., the wife's life estate) that was created in the same conveyance in which the remainder was created. This interest was a contingent remainder because it was created in a grantee who was unascertainable. The owner's estate held a reversion in the ranch because there was the possibility that there would be no grandchildren when the wife died. Upon the wife's death, there was no longer a prior possessory estate of known fixed duration, so the grandchildren's interest was converted into an executory interest. An executory interest is a future interest in a third party that is not a remainder and that generally cuts the prior estate short upon the occurrence of a specified condition.
48
Equal dignities rule
when the act performed by an agent on behalf of the principal is required by law to be in writing, the agent’s authority must also be established in writing. Consequently, when an agent signs a deed, the agent’s authority must also generally be in writing.
A person whose only act is signing a specific deed at the grantor’s request may do so without written authorization.
49
The covenant of warranty in future lawsuits
The covenant of warranty is a future covenant that guarantees that the grantor will defend against a third party’s lawful (i.e., valid) claim for title. This covenant, however, does not require the grantor to defend against a third party’s wrongful claim. In essence, this covenant does not require the grantor to defend against all title claims brought by a third party against the grantee, but to be responsible for the litigation costs if the third party’s claim is successful.
50
What does a forged instrument do
A forged instrument, such as a deed or release from a mortgage, is void and has no effect on property rights, even if relied upon by a bona fide purchaser.
51
Consent between cotenants in common
52
Mutually beneficial contract in co-tenants
53
RAP
54
Shelter rule
55
Common mortgage provisions
56
Statutory right of redemption
57
Inter vivos transfer/gift vs causa mortis gift
57
Is delivery of the deed required
58
Does rights of survivorship need to comply with SOF
59
Title insurance policy validity
60
Is time of closing necessary to satisfy SOF
No but needs to be signed by the party gonna be charged aka the buyer
61
the after acquired title doctrine
the after-acquired title doctrine provides that title to the property automatically vests in the transferee
62
Future interest holder and security interest holder's right to compel repair
A mortgagor has a duty not to commit waste with respect to the mortgaged property when such waste impairs the mortgagee’s security interest in that property.
And yes right to inspect
63
Subrogation rights
Since the friend paid the buyer’s loan obligation in full in order to protect his own interest, the friend became subrogated to the lender’s rights based not only on the personal obligation of the buyer, but also on the mortgage on the land itself.
64
destructibility of contingent remainder
A rule in common law that says a future interest must become possessory or it will be destroyed and go back to the person who granted it.
65
Judgment lien
is not treated as a purchaser protected by the recording act.
66
Assumption agreement
SOF does not apply unless its surety
67
License revocation
68
Unjustifiable abandonment of leased property
69
Right to buy after lease
Although the common law Rule Against Perpetuities applies to options to purchase real property, it does not apply to an option to purchase the property that is held by a current leasehold tenant. In this case, because the developer is the current lessee of the property, the rule does not apply. Consequently, the developer’s purchase option is not void.
Under the Rule Against Perpetuities, when there is no measuring life, the applicable vesting period is 21 years from the time that the future interest is created. Although the developer’s option cannot be exercised within this time period, the rule
70
Deed without delivery valid?
The document, although valid as a deed, did not operate to transfer the farm to the son because there was no delivery. By keeping the deed in his possession until his death, the farmer retained the right to revoke it.
71
Ultra vires
Use of the term “ultra vires” is usually used in the context of governmental or corporate action that exceeds the authority for such action, rather than as used here in the context of a property owner’s use of property that is not permitted by the zoning ordinance.
72
Nonconforming use can be transferred?
Most courts permit a property owner whose nonconforming use predated a zoning change to transfer not only the property itself, but also the right to use the property in the preexisting nonconforming manner.
73
Subordination of interests through modification
A senior mortgagee who enters into an agreement with the mortgagor to modify the mortgage or the obligation it secures subordinates his interest to a junior mortgagee’s interest to the extent that the modification is materially prejudicial to the junior mortgagee’s interest. The senior mortgagee’s interest otherwise remains superior to the junior mortgagee’s interest.
74
Spot zoning
A senior mortgagee who enters into an agreement with the mortgagor to modify the mortgage or the obligation it secures subordinates his interest to a junior mortgagee’s interest to the extent that the modification is materially prejudicial to the junior mortgagee’s interest. The senior mortgagee’s interest otherwise remains superior to the junior mortgagee’s interest.
75
Rebutting delivery of a deed
76
Easement in gross transfer
77
Two donees
78
Negotiable promissory note transfer
79
Conflict -of-laws rules for real property issues
80
Life tenant's duty to pay tax
Life tenants have the obligation to pay all ordinary taxes on the land and interest on the mortgage to the extent that the property can produce income (i.e., the extent of the fair market value of the property). If the property is not producing an income, as here, the life tenant is responsible for the taxes and mortgage interest to the extent of the reasonable rental value of the land. The holder of a future interest who pays the taxes may seek reimbursement from the life tenant.
81
What if risk of loss on buyer but seller has insurance?
. Because the risk of loss was on the buyers due to the doctrine of equitable conversion and the seller had casualty insurance, the seller is required to offset the amount of the insurance proceeds against the purchase price due from the buyers. Otherwise, the widower's estate would receive a windfall, being paid the full purchase price by the couple in addition to receiving the insurance payment.
82
Option contract subject to SOF?
. An option contract, as a contract to transfer property, is subject to the Statute of Frauds.
83
Waiver of equitable redemption
After default but prior to foreclosure, a mortgagor retains the right to reclaim clear title to the property and prevent foreclosure; this right is known as the mortgagor’s “equity of redemption.” Courts routinely reject attempts by the mortgagee to deny the mortgagor this right (i.e., to “clog” the equity of redemption) prior to default, such as by the inclusion of a waiver clause in the mortgage. However, a mortgagor may waive the right to redeem after the mortgage has been executed in exchange for good and valuable consideration. Here, because the buyer agreed to waive her right of redemption in consideration of lower interest rates after the mortgage had already been executed, the court will likely enforce the waiver.
84
Merge effect on express easement
An express easement arises when it is affirmatively created by the parties in a writing that is in compliance with the Statute of Frauds. An easement is transferred with the land to which it relates. Consequently, the benefit is transferred automatically with the transfer of the dominant estate (the south parcel), and the burden likewise is transferred automatically with the transfer of the servient estate (the north parcel).
An easement is terminated if the owner of the dominant or servient estate acquires fee title to the other estate; the easement is said to “merge” into the title. The easement does not merge, however, if the owner acquires less than fee title, such as a life estate.
85
Written easements that are not recorded against the servient estate are not enforceable？
not enforceable against bona fide purchasers of the servient estate without notice, but they may be enforced against purchasers with notice. Notice does not have to be constructive (as it is when an easement is properly recorded); it can also be actual or inquiry notice.
86
In order for an agreement be enforceable against a successor in interest as a real covenant, the traditional rule requires that ?
there be horizontal privity of estate between the original parties to the agreement. With regard to the agreement to decorate one’s own residence for Halloween, the original parties to the agreement were neighbors. While they had a common purpose of increasing the value of their house through decorating them for Halloween, they did not have a shared ownership interest in specific real property.
87
Life tenant's right to remove chattel
88
chain of title
89
Liquidated damages in property
90
Title obtained by adverse possession is marketable?
Not unless it has been quieted
91
cy pres
. 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. While the doctrine of cy pres is most often applied by a court in the context of a charitable gift, it may also be applied to achieve the intent of a grantor or testator by avoiding the effect of the Rule Against Perpetuities.
92
association liability
. Although each member of a condominium association owns the common areas of the condominium as a tenant-in-common with the other members, the member is only indirectly responsible for a tort judgment against the association. Payment of the tort judgment by the association is an expense of the association, and each member is liable for a share of the association’s expenses.
93
Option to purchase and right of first refusal assignability
94
Delivery of deed subject to oral condition
95
Payment of preexisting mortgage obligation between life estate and future interest
96
Water rights doctrines
97
Earnest Money
