Real Property

Question 1

What is a restraint on alienation?

Answer 1

Restraints on Alienation are restrictions on transferring property and are generally void unless they are reasonable restrictions on use, lease, or time-limited sale.

Question 2

What is marketable title?

Answer 2

It requires that title must be free from reasonable doubt of litigation at closing, meaning it is free from defects such as undisclosed liens or adverse claims.

Marketability challenges must be made before deed transfer, otherwise they will merge with the deed.

Question 3

What is tenacy in common?

Answer 3

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

Question 4

How do co-tentants determine responsiblity for repairs?

Answer 4

Each co-tenant is responsible for their fair share of carrying costs (taxes, morgage, interest payments) based upon the undivided share that they hold?

A co-tenant that makes repairs is entitled to contribution for reasnable and necessary repaires provided they notified the others of the need.

Question 5

What is joint tenancy?

Answer 5

A joint tenancy is a conveyance of real property to two or more persosns which includes a right of surviviorship.

It requires the four unities of time, title, interst and possession.

Question 6

How can joint tenancy be severed?

Answer 6

When one joint tenant unilaterally transfers their interest, destroying the right of survivorship and converting the tenancy into a tenancy in common as to the severed interest. Severance can also occur through mutual agreement, partition, or foreclosure.

Question 7

What is tenancy by the entirety?

Answer 7

Tenancy by the Entirety is a form of concurrent ownership available only to married couples.

Each spouse has an equal, undivided interest with a right of survivorship. It requires the four unities plus marriage.

It is only severably by divorce, death, a creditor of both spouses, or mutual agreement. Neither spouse alone can convey or encumber this real property.

Question 8

What is legal possession?

Answer 8

Requires the landlord to provide the tenant with legal possession at lease commencement.

Under the English Rule (majority), the landlord must also provide actual possession, ensuring no holdover tenants remain.

Under the American Rule (minority), the landlord need only provide legal possession, and the tenant must evict any holdovers.

Question 9

What are leaseholds?

Answer 9

A leasehold provides the tenant with a present possessory interst in real property.

There are 4 types, periodic, at will, at sufferance, and fixed term.

Question 10

What is a Fixed-Term tenancy?

Answer 10

A Fixed-Term Tenancy lasts for a specified period and ends automatically.

Question 11

What is a periodic tenancy?

Answer 11

A Periodic Tenancy renews automatically at set intervals until proper notice is given.

It can be created by express agreement or by implication if rent is paied at specific periods , or by law.

Requireds notice of a full period except for a year-year tenant who only requires six months notice.

Question 12

What is tenancy at will?

Answer 12

A Tenancy at Will continues until either party terminates without notice requirements.

Question 13

What is tenancy at sufferance?

Answer 13

A Tenancy at Sufferance occurs when a tenant remains in possession after lease expiration without the landlord’s consent.

Question 14

What are a tenant’s duties?

Answer 14

A tenant must pay rent unless legally excused and must not commit waste .

Question 15

How are cotenent rights violated by outster?

Answer 15

A cotenant’s right of possession is violated if another cotenant wrongfully excludes the cotenant from the property.

(i.e., cotenant in possession denies entry or unequivocally gives notice that they intend to exclude other cotenants).

Question 16

What is a sublease?

Answer 16

A sublease is a transfer of less than the full amount of the lease term to another.

A sublessee is only in privity with the sub-lessor and is not personally liable to the landlord for rent or any covenants in the main lease unless the sub-lessee expressly assumes them.

Somone who leases cannot sublease for longer than their own lease, if they do, the tenant can be ejected.

Question 17

What is the implied warranty of habitability?

Answer 17

It applies to residential leases, requiring landlords to provide habitable premises with essential services (e.g., heat, water, structural integrity).

If breached, tenants may withhold rent, repair and deduct costs, or terminate the lease and sue for damages.

Question 18

What is a constructive eviction?

Answer 18

Constructive eviction occurs when the landlord’s breach of the implied covenant of quiet enjoyment substantially interferes with the tenant’s use of the premises.

The tenant must notify the landlord, allow an opportunity to cure, and vacate to terminate the lease before seeking damages.

Question 19

What is self help?

Answer 19

Self-help refers to the actions a landlord takes to eject a tenant from their property.

Most states do not allow self help; the landlord must properly evict the tenant.

Question 20

What is an assignment?

Answer 20

An assignment occurs when a tenant transfers their entire remaining lease interest, making the assignee liable under privity of estate but leaving the original tenant liable under privity of contract unless released.

A lease may prohibit or restrict assignments and subleases, but absolute restraints are generally disfavored.

If landlord consent is required, refusal must be reasonable unless the lease explicitly grants unrestricted discretion to deny assignments.

Question 21

What can void an assignment clause?

Answer 21

They are void if:
1. the landlord knew of the clause but did not object; or
2. the landlord accepts rent from the new tenant.

Question 22

What are real covenants?

Answer 22

Real Covenants are promises regarding land use (to do something or refrain from doing something) that run with the land if certain conditions are met. Breach of a real covenant allows for damages as a remedy.

Question 23

What are the requirments for a burden or benefit to run with the land?
WITH-VerN

Answer 23

The requirements for the burden to run with the land:
Writing,
Intent,
Touch and concern,
Horizontal privity,
Vertical privity, and
Notice.

For the benefit to run, no horizontal privity or notice are required.

Question 24

What is horizontal privity?

Answer 24

Horizontal privity is a relationship between the original covenanting parties.

Question 25

What is vertical privity?

Answer 25

Vertical privity is an unbroken chain of conveyances, and the promise must touch and concern the land by affecting its use or value.

Question 26

What is an equitable servitude? WITh - Norm

Answer 26

An equitable servitude is a rule or restriction that applies to a piece of land and is enforceable in court, usually through an injunction. Successors in interests can enforce an equitable servitude if: * the servitude is in **Writing** ; * the original parties **Intended** the servitude to run with the land (i.e., using words such as heirs, assigns, successors, never, always, or forever); * the servitude **Touches and concerns the land** (i.e., use, enjoyment, or occupation); and * the owner of the servient land had adequate **Notice** (i.e., actual, implied, or record).

Question 27

What is an easement?

Answer 27

An easement is an agreement where a (dominant) party buys the right to use someone else's land (servient). These agreements must be in writing to satisfy the statute of frauds, excepting necessity and prescription.

Question 28

What is an easment in gross?

Answer 28

An easement that provides use or benefit to a particular person or persons.

Question 29

What is an easement appurtenant?

Answer 29

Appurtenant easements benefit any successive owner's enjoyment and use the land. As opposed to easment in gross, these do attach to the land. Burdening easements pass to subsequent owners as long as the new owner has notice.

Question 30

How is an easment created?

Answer 30

An easment can be created via an express grant, implication, necessity or prescription.

Question 31

What is an easment by exress grant?

Answer 31

An easement by grant occurs when the owner of the servient estate expressly grants an easement to another. An easement is created by express grant when it is in a valid, signed writing, which details the conveyance of the right to the dominant party.

Question 32

What is an easement by implication?

Answer 32

An easement by implication is created when a landowner divides property, and a preexisting, apparent, and reasonably necessary use continues after severance.

Question 33

What is an easement by necessity?

Answer 33

An easement by necessity is created when a single owner subdivides their property and access the property would be impossible without usage or the easement. Once the necessity is no longer needed, the easement is rescinded.

Question 34

What is an easement by prescription?

Answer 34

An easement by prescription is created in a similar manner as an adverse posession, where the possesor's use is open and notorious, continuous, hostile and for the duration of the statutory period.

Question 35

What is waste?

Answer 35

Present estate holders have a duty to refrain from committing waste. * Permissive waste: Failure to maintain property (e.g., taxes, mortgage interest, repairs). * Voluntary waste: Unauthorized alterations that lower value (exceptions: preexisting resource use or estate preservation). * Ameliorative waste: Significant changes, even if value increases (allowed if no objection or local conditions make current use unproductive).

Question 36

What are fixtures?

Answer 36

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

Question 37

How does an easment terminate?

Answer 37

An easement is terminated through non-use, abandonment (also requires a physical act), agreement, merger or end of necessity.

Question 38

How do you transfer an easement appurtenant?

Answer 38

An easement appurtenant is transferred when real property encumbered with an easement is transferred to a new owner. The burden and benefit convey as well, but subject to the recording statute.

Question 39

How do you relocate an easement appurtenant?

Answer 39

An easement appurtenant cannot be moved if its location was already reasonably decided. After it is created, the reason for location selection is irrelevant.

Question 40

Who is responsible for easement maintenance?

Answer 40

An easement holder is required to make any necessary repairs to the easement.

Question 41

What is a profit?

Answer 41

A profit is an agreement that entitles its holder to enter the servient estate to extract resources, such as timber, oil, or quarried material.

Question 42

What is a license?

Answer 42

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

Question 43

What are recording statutes?

Answer 43

Recording Statutes (Race, Notice, Race-Notice) determine priority of ownership based on recordation. In a Race Jurisdiction, the first to record wins, regardless of notice. In a Notice Jurisdiction, a bona fide purchaser (BFP) prevails over prior unrecorded interests if they lacked notice. In a Race-Notice Jurisdiction, a BFP must both lack notice and record first to take priority.

Question 44

What is a bona fide purchaser?

Answer 44

A Bona Fide Purchaser is one who pays value for property without actual, inquiry, or constructive notice of prior claims.

Question 45

What is the shelter rule?

Answer 45

The Shelter Rule allows a party who takes from a BFP to assume the BFP’s rights, even if they would not independently qualify as a BFP.

Question 46

How does a purchaser recieve notice?

Answer 46

Notice to a Purchaser (Actual, Inquiry, Constructive) determines whether a buyer is charged with knowledge of prior interests. Actual Notice arises when a buyer has personal knowledge of a prior interest. Inquiry Notice exists when visible circumstances or facts would prompt a reasonable buyer to investigate further. Constructive Notice occurs when a prior interest is properly recorded in public records, even if the buyer did not check them.

Question 47

What is the doctrine of merger?

Answer 47

Applies when a person acquires both a greater and lesser estate, causing the lesser interest to merge into the greater and extinguish unless a contrary intent is expressed.

Question 48

What SIX covenants do general warranty deeds present? SEW-FAR

Answer 48

**Present Covenants (SEW) – Breached at conveyance** Seisin – Grantor owns the estate. Encumbrances (Against) – No undisclosed liens or restrictions. Warranty of Right to Convey – Grantor has the authority to transfer. **Future Covenants (FAR) – Breached after conveyance** Further Assurances – Grantor will fix title defects. Actual Quiet Enjoyment – Grantee won’t be disturbed by superior title claims. Right to Warranty – Grantor will defend against lawful title claims.

Question 49

What is a quitclaim deed?

Answer 49

A Quitclaim Deed transfers only the interest the grantor currently holds, with no title warranties.

Question 50

What is a special warranty deed?

Answer 50

A Special Warranty Deed only warrants against title defects arising during the grantor’s ownership.

Question 51

What is the covenant against encumbrances?

Answer 51

The Covenant Against Encumbrances ensures the property is free from undisclosed mortgages, liens, or restrictions unless expressly stated. If an encumbrance is found after the sale, damages are equial to the difference in the value of property due to the encumbrance.

Question 52

What are the elements of adverse possession?

Answer 52

Elements of Adverse Possession (Actual, Open, Notorious, Exclusive, Hostile, Continuous).

Question 53

What is the rule against perpituities?

Answer 53

The Rule Against Perpetuities (RAP) voids a future interest if it may vest more than 21 years after the death of a life in being at the time the interest was created.

Question 54

What are life tenant's responsibilities?

Answer 54

Life Tenant Duties: Must avoid waste and maintain the property by paying taxes, mortgage interest, and repairs. Not liable for the mortgage principal (remainderman's duty). Entitled to all income generated by the land. No tax obligation if the land is vacant and unproductive

Question 55

How do you determine Mortgage Priority & Foreclosure Order of Payment ?

Answer 55

First in time, first in right, unless a purchase money mortgage or subordination agreement applies. Foreclosure proceeds pay (1) sale costs, (2) foreclosing mortgage, (3) junior liens in order, and (4) surplus to the borrower.

Question 56

How can you convey a deed?

Answer 56

Requires execution, delivery, and acceptance. Execution: Deed must be in writing, identify parties, be signed by the grantor, and describe the property adequately. Delivery: Grantor must show present intent to transfer (physical transfer not required).

Question 57

What does the Fair Housing Act prohibit?

Answer 57

Prohibits landlords from discriminating against tenants based on race, color, religion, sex, national origin, disability, or familial status. Discriminatory practices include refusing to rent, imposing different lease terms, or misrepresenting unit availability.

Question 58

What is required for land sale contracts?

Answer 58

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

Question 59

What is zoning non-conforming uses?

Answer 59

A legally existing land use that does not comply with new zoning laws but may continue unless abandoned, destroyed, or phased out by an amortization period.

Question 60

What are zoning variances?

Answer 60

Grants exceptions to zoning rules. Use Variance – Allows a prohibited land use if unnecessary hardship is proven. Area Variance – Allows deviation from physical zoning rules (e.g., setbacks, height) if practical difficulties exist and public welfare is not harmed.

Question 61

Is spot zoning ?

Answer 61

Spot Zoning occurs when a zoning ordinance unreasonably singles out a specific parcel for different treatment, benefiting or burdening the owner unfairly. Spot zoning is invalid if it lacks a rational basis or conflicts with a comprehensive zoning plan.

Question 62

What are the five ways a covenant or servitude may terminate? SCREaM

Answer 62

Statute Condemnation Release Express Terms a -BLANK Merger