Real Property

Question 1

Right to prepay mortgage

Answer 1

Common law–prepayment barred unless mortgage documents provide otherwise
Majority rule–prepayment allowed unless mortgage documents provide otherwise.
Prepayment prohibitions or penalties are generally valid and enforceable.

Question 2

What are the “red flags” for marketable title?

Answer 2

Covenants, easements, leases, liens, gaps in chain of title, boundary disputes, existing zoning violations, adverse possession

Question 3

Riparian doctrine

Answer 3

Favored by eastern states where water is plentiful–Under the riparian doctrine, water rights belong to the owners of the land that borders the watercourse (a riparian). A riparian may make any reasonable use of water that does not unreasonably interfere with downstream use, and domestic (“natural”) use of water trumps the commercial (“artificial”) use of it.

Question 4

Duty to repair and maintain easements

Answer 4

An easement holder has a duty to repair and maintain the easement. If the easement is shared by other easement holders or the servient-estate owner, those parties are obligated to contribute to the reasonable costs of repairs and maintenance.

Question 5

Fee simple determinable language

Answer 5

Durational: “so long as,” “during,” “until”

Question 6

Fee simple absolute language

Answer 6

“To A” and “To A and his heirs”

Question 7

Fee simple subject to condition subsequent

Answer 7

Conditional: “but if,” “provided that,” and “unless”

Question 8

Adverse possesion

Answer 8

An adverse possessor can acquire title to land owned by another if his/her possession of the land is: OCEAN
-Open and notorious (apparent or visible to a reasonable owner)
-Continuous (uninterrupted for the statutory period)
-Exclusive (not shared with the owner)
-Actual (physical presence on the land)
-Non-permissive (hostile and adverse to the owner)

Question 9

What happens when land is adversely possessed by two or more persons?

Answer 9

The possessors acquire a concurrent ownership interest as tenants in common. Since a tenancy in common has no right of survivorship, a co-tenant’s ownership interest will pass to his/her heirs if the co-tenant dies intestate.

Question 10

Statute of Frauds for Ks for the sale of land

Answer 10

Under SOF, Ks for the sale of land (real estate Ks) are enforceable only if they are in writing, are signed by the party against whom enforcement is sought, and contain all essential terms, which are: (1) the identity of the parties, (2) words of intent to buy or sell, (3) a description of the property, and (4) the sales price.
Even though courts may liberally construe the property-description requirement, the writing must contain some evidence of the specific property to be sold.

Question 11

What requirements must a valid deed meet?

Answer 11

A valid deed (a document that conveys an interest in real property from the owner to another) must:
-be in writing and signed by the grantor
-identify the grantor and the grantee
-contains words of transfer (deed over, transfer, give, etc.)
-describe the property interest being transferred

Note: if the deed transfers to a nonexistent grantee (e.g., a corporation that has not been legally formed), the deed is void and the property interest remains with the grantor

Question 12

Breach of implied warranty of habitability

Answer 12

To claim a breach of implied warranty of habitability, the tenant must:
-provide the landlord with notice; and
-allow the landlord reasonable time to repair the problem

Question 13

Assignment vs. sublease

Answer 13

Assignment: tenant transfers all of the remainder of the interest (rental obligation) to a new party
Sublease: tenant transfers less than the entire interest in the contract