Real Property Flashcards

Question

Possibility of Reverter

Answer 1

-Grantor When grantor conveys a FSD (fee simple determinable) the grantor automatically retains a Possibility of Reverter only goes with a FSD Its vested Not subject to Rule Against Perpetuities IS freely transferable on death IS transferable inter vivos

Answer 2

A fee simple estate with a condition imposed on the use of it ``` Lang: "so long as" "while" "during" "until" ```

Answer 3

Grantor right only goes with a Fee Simple Subject to a Condition Subsequent A Fee Simple on Condition Subsequent terminates: - title does NOT go back to Grantor automatically. Grantor must do something to retake the property. Title remains with grantee until grantor exercises the right of entry. Its vested Not subject to Rule Against Perpetuities IS freely transferable on death IS NOT transferable inter vivos

Answer 4

Lang: "provided however" "but if" "on condition that" To create a FSCS, the lang must be followed by lang where the Grantor expressly reserves the right to reenter and take the prop.

Answer 5

Future Interest in the Grantee IS a future interest in a TP Grantee that comes naturally and immediately on the termination of the preceding estate. NEVER EVER NEVER follows a FS

Answer 6

Grantee Is vested if nothing stands in the way of its becoming possessory on the natural expiration of the preceding estate. Requirements: - taker is ascertainable (known) - there are no conditions imposed on the taking

Answer 7

Grantee Exists when there is a condition imposed upon the taker that must be satisfied before his interest in the property will become possessory IF the condition is not satisfied then the prop reverts back to the original grantor by way of reversion who will hold the prop in FS subject to an executory interest and the new executory interest holds a springing executory interest. examples of conditions: age contingencies, survivorship requirements

Answer 8

Vested Remainder Subject to Open or Vested Remainder Subject to Partial Divestment Rule: Where the remainder interest is conveyed to a group of unnamed person whose members are not fully known, the class remains open to allow for future person who qualify as class members by satisfying the class description. Example: "to A and her children"--Its open to allow for the birth of future children

Answer 9

Rule of Convenience: Class closes whenever any class member is entitled to distribution. This is a rule of construction and not a rule of law Members of a class who predecease the testator are eliminated and their gift lapses . Once the class is established the class remains open to accommodate new members who might later satisfy the class definition Once testator dies, class closes and later people who come and satisfy the class lose out (unless they were in gestation before testator died)

Answer 10

-Acts to cut short an estate that comes before it If a grantee's future interest is NOT a remainder then it must be an executory interest Lang: " . . .but if. . . then to . . ." Look at punctuation: see if the contingency is made part of the first estate given to grantee or if it is made towards the second estate (IF its to the second estate then its an executory interest)

Answer 11

- Fee Simple Determinable - Fee Simple Subject to Condition Subsequent - Fee Simple Subject to Executory Interest

Answer 12

Holders of Executory Interests do not have standing to sue for waste Holders of remainders do have standing to sue for waste.

Answer 13

No interest will be valid unless it vest within 21 years after the death of the life who was alive at the moment the conveyance was made ALWAYS applies to: - Executory Interest - Contingent Remainders - Vested Remainders Subject to Open Ask: Could this future interest possibly vest in the grantee outside of the rule? If yes, interest is void. (IF void, cross out that lang from the conveyance. It no longer matters)

Answer 14

At the time the conveyance is made (the time the interest is created) DO NOT wait to see what ACTUALLY happens

Answer 15

Apply the rule as of the testator's death (or in other words, when the will takes effect)

Answer 16

Apply the rule at the time the deed takes effect

Answer 17

Codifies the CL rule but adds an alternative 90 year vesting period Adopts a wait and see approach to determine if vesting occurs within 90 years

Answer 18

Adopts a wait and see approach, courts will wait and see if the particular conveyance vests within the specified statutory period of 90 years. If void when CL is applied, then apply this rule.

Answer 19

The lang is included in order to save a grant from violating the rule by making sure that vesting occurs within the time specified in the Rule. Ex Lang: "during the lifetime of A or B or within 21 years after the death of survivor of A or B"

Answer 20

Contingent interest in prop, like options or the right of first refusal, violate RAP IF they could possibly be exercised outside the time period in the rule. If it violates the rule, the interest is void and that person gets nothing

Answer 21

Exception to RAP Both transferees must be charities for the exception to apply. Even if the interests violate RAP, the interest will be deemed valid because the interests are founded in two charitable organizations.

Answer 22

Arises when the class is open and the gift/conveyance is conditioned upon class members reaching a certain age RAP applies --When the problem contains language that grants the prop with an age contingency that goes beyond 21, the conveyance loses its link to a life in being (thus its void)

Answer 23

Fertile Octogenarian Rule: conclusively presumes that the individual might have another child (regardless of her age or medical condition)

Answer 24

IF the RAP operates to void any gift over any class member because their interest might vest outside the time frame of the rule, then all members lose. The entire class gift is void even if there is a person who would satisfy the class definition.

Answer 25

Concurrent Estate in Land (Freehold) Four unities must be met to create a Joint Tenancy Four Unities: TTIP 1) Unity of Time: must vest at the same time 2) Unity of Title: must be conveyed by the same instrument 3) Unity of Interest: must take the same kind and same amt of interest 4) Unity of Possession: must have same (identical) rights of possession Lang of conveyance must reflect Grantor's INTENT to create Joint Tenancy (if lang is unclear- law presumes tenancy in common = created) Lang: "as joint tenants, with rights of survivorship" "in joint tenancy with right of survivorship" --Right of survivorship MUST be expressly stated

Answer 26

must be expressly stated in the lang creating the tenancy Joint tenancy carries a right of survivorship The surviving joint tenants automatically take the prop upon the death of a joint tenant

Answer 27

Voluntary Termination of Joint Tenancy If any joint tenant want to be relieved of common ownership, he can do so by asking for the prop to be partitioned. Partitioning the prop= redrawing the lines of the prop and portioning out this person interest to the other joint tenants. This redrawing can be done voluntarily by agreement between the parties, or if no agreement can be meet then by judicial action

Answer 28

INvoluntary Termination of Joint Tenancy Occurs when any one of the four unities is disturbed. Cannot be severed by will (must be done during the tenant's lifetime)

Answer 29

Types: --Sale: Can sever tenancy by conveying one's interest to a TP. Other joint tenants remains in a joint tenancy with rights of survivorship. --Mortgage: Majority Rule: In lien theory, there is no severance to joint tenancy when interest is mortgaged. Here, when mortgage attaches, a lien attaches to title, but the title is not transferred. Unites are not disturbed. (GA = lien theory state) The minority rule: Title theory: there is a severance when the interest is mortgaged. When mortgage is executed, titles passes from mortgagor to mortgagee even though mortgage will transfer back. (Examiners must tell you to use this rule if they want you to) --K of Sale: severance occurs when K was signed b/c of Doctrine of Equitable Conversion (closing date is irrelevant) --Creditor's Sale of Int. in Joint Tenancy: No severance until judicial sale actually takes place. If tenant dies before the creditor's sale, then there is no severance. The joint tenancy remained intact and interest passes to joint tenants leaving creditor with no recourse.

Answer 30

NO unities required except the Unity of Possession (each tenant is entitled to posses the whole of the property). Presumption in favor of tenancy in common (this is the default tenancy). Freely alienable- each co-tenant may do what he wants Any tenant in common can force a partition No rights of survivorship --when a co-tenant dies, his interest goes to his estate NOT the other co-tenants.

Answer 31

Four unities PLUS the unity of Marriage A CL, any grant of a concurrent estate to a Husband/Wife gave a tenancy by the entirety if the four unties existed. Right of Survivorship = yes Right of Partition= No Not severable by the unilateral act of one of the co-tenants Termination only by: -death -mutual agreement in writing -divorce (after decree, H/W hold estate as tenants in common) -execution by a JOINT creditor GA has abolished this tenancy

Answer 32

Each co-tenant has the right to possess the whole of the property- consistent with the same right in every other co-tenant

Answer 33

One co-tenant does not have to account to another co-tenant for his share of the profits however this is subject to 1) ouster: accounting is required if one co-tenatn is either keeping another co-tenant off the prop or claiming a right of exclusive possession 2) an agreement to share 3) lease of the property by a co-tenant to a TP 4) depletion of natural resources

Answer 34

Concerns the right of one co-tenant to force the other co-tenants to pay their fair share of some expenditure made on the prop. Depends on what type of expenditure was made on the prop. 1) Building a house (improvements to it): No right of contribution but may be recouped later at the sale time or on partitioning the prop. 2) Repairs: Yes but only for necessary repairs 3) Paying mortgage: Yes, contribution is required for nay mortgage on the prop that has been signed by all co-tenants 4) Taxes: Yes, contribution is required towards all govt imposed obligations

Answer 35

Landlord Tenant Estates Four types: - Estate for Years (Tenancy for Years) - Periodic Tenancy - Tenancy at Will - Tenancy at Sufferance

Answer 36

AKA Tenancy for Years Any estate measured by a fixed period of time =tenancy in years, no matter how short the duration. Key= specified time (doesn't have to be in years) --Must specify two dates (the beg and the end date) For any tenancy for years over 1 year, it must be in writing (satisfy SoF). A 1 year tenancy may be oral. Notice is not required between landlord/tenant to terminate

Answer 37

Presumed to exist if the lease period is 5 years or more. Anything less than 5 ears is presumed to be a usufruct

Answer 38

the right to enjoy the use and advantages of another's property short of the destruction or waste of its substance

Answer 39

Key = repeating This estate keeps going until one party gives notice Created by 1) Express agreement 2) Implication; if the lease does not specify how long the tenancy is to last, then it is presumed to be the periodic tenancy measured by the rent payment (ex. month to month tenancy is created if rent is to be paid monthly) 3) Operation of Law: oral leases that violate SoF 4) Operation of Law; Holdover Tenants Termination: by giving proper notice--to be valid, must satisfy: 1) enough time given: an amount of time equal to the length of the period of the tenancy except in the case of year to year which generally only requires 6 mo. notice. 2) effective date: to be valid, effective date must be at he end of the period of the tenancy

Answer 40

a tenant is one who was on the property under a valid lease agreement but the lease has expired and the tenant nonetheless remains on the property When the landlord accepts a rent check form a holdover tenant, a periodic tenancy has been created by operation of law for the period specified in the rent check.

Answer 41

Either party can terminate at any time by one party giving the other notice of the termination and a reasonable time to vacate the premises Termination by operation of law: 1) death of either party 2) waste by tenant 3) assignment by tenant 4) transfer of title by landlord 5) leases by landlord to TP GA LAW: Recognizes a tenancy at will but imposes a notice requirement. Landlord must give 60 days notice, tenant must hive 30 days notice.

Answer 42

Holdover tenants Arises in ONE situation: tenants has bare possession of the prop (no interest) that arose when tenant wrongfully held on to the prop. Landlord has two options: 1) Sue to evict on trespass and recover damages (In Ga, Landlord must continue to provide utilities until eviction =complete) 2) Impose New Periodic Tenancy: (if reasonable under the circumstances): Measured - -if less than a year, measure it by rent payment - -if residential prop, it will be month-to month' - -if commercial, year to year

Answer 43

If the landlord give tenant notice of the increase in rent before the expiration of the lease then the landlord may properly demand payment of the higher rent amount IF THE TENANT IS A HOLD OVER TENANT

Answer 44

1) Duty to pay rent 2) Duty to Maintain Property: CL duty not to commit waste, if lease includes tenant's covenant to repair the tenant is liable for everything even ordinary wear/tear (unless parties state otherwise) **Note: tenant is not responsible for premises that are destroyed through no fault of the tenant's. Tenant has no duty to rebuild the structure even if there is a covenant for repairs.

Answer 45

Landlord can sue for damages and terminate the lease thus evicting the tenant. GA follows this but allows a 7 day grace period for the tenant to pay rent. --At CL, landlord was only able to collect amt. in arrears & termination was not available

Answer 46

1) Landlord accepts offer of abandonment and treats it as an offer for surrender of the leasehold. Landlord accepts by retaking the prop, terminating the lease. Tenant has no further rent obligations. 2) Landlord relets premises, holding tenant liable or deficiency. Landlord must make a reasonable effort to relet the prop in order to mitigate tenant's damages. IF the rent that the landlord gets is less than what the defaulting tenant had originally promised to pay, then original tenant will be liable for deficiency in payments.

Answer 47

1) Duty to deliver possession of leased premises--if landlord cannot deliver actual possession, landlord is in breach of else 2) Implied Warranty of Habitability: applies only to residential property. Obligates the landlord to provide and maintain the leased premises that are reasonable suited for residential use (fit for basic human habitation) 3) implied covenant of quiet enjoyment: implied promise not to interfere with tenant's quiet enjoyment of the leased premises (included in every lease)

Answer 48

If tenant lawfully reports landlord for housing code violation and thus breaching the implied warranty for habitability, the landlord is barred from penalizing tenant.

Answer 49

1) Tenant can move out and end the lease with no further lease obligations 2) Tenant can stay on the property can sue for damages. 3) Some states allow for tenant to make reasonable repairs and deduct the costs from rent GA: Landlord has no duty to repair unless tenant's interest is usufruct--then if landlord fails to make necessary repairs within a reasonable time the tenant may make the repairs and deduct the cost from rent

Answer 50

1) Total eviction: direct/physical invasion by landlord against tenant that breaches the quiet enjoyment. 2) Partial Eviction: 2 types - -Landlord physically excludes the tenant from only some portion of the leased property. Remedy for this: Stay on the remaining property FOR FREE!!! - -can also occur where some TP, who holds paramount title, retakes the prop and physically excludes the tenant from that portion of the leased premises. Remedy: IF there is partial eviction by a TP (not landlord) then the rent is proportionally reduced to reflect the amt. taken 3) Constructive Eviction: landlord fails to provide some service that the landlord was obligated to provide AND that failure makes the prop uninhabitable. - -Four Requirements: a) must be Landlord's failure to provide some service NOT TP b) must be substantial interference with quiet enjoyment c) tenant must give landlord notice and reasonable time to repair d) tenant must abandon within a reasonable time

Answer 51

Transfers all interests in the land Involves a lease containing privity of K between the parties to the lease agreement and contains a conveyance creating privity in estate between the parties. This provides separate independent grounds for liability.

Answer 52

Transfers only a part of an interest in prop GA; Tenant cannot transfer the usufruct without first obtaining landlord consent. Involves a lease containing privity of K between the parties to the lease agreement and contains a conveyance creating privity in estate between the parties. This provides separate independent grounds for liability.

Answer 53

A tenant is liable to the landlord for rent if there is either privity of K OR privity of estate.

Answer 54

Exists between ONLY the present landlord and the present tenant

Answer 55

Exists ONLY where there is an agreement between Landlord and the particular tenant from whom the landlord seeks to recover rent. Generally, in the absence of an express contractual agreement (express assumption), there is no privity of K between Landlord and the later tenants.

Answer 56

Runs with the land and is enforceable based on either privity of K or privity of estate

Answer 57

General rule = covenant will run with the land if it touches and concerns the land Touch and Concern= if performance of the covenant makes the land MORE VALUABLE or MORE USEFUL.

Answer 58

Orignal landlord continues to be liable to the original tenant under privity of K Successor landlords may be liable to original tenant IF there is either privity of K or privity of estate AND the lease covenant runs with the land

Answer 59

Landlord can recover rent from anyone with whom he is in privity (either K or estate) In case of a sublease, the sublessor keeps the estate (the estate is NOT transferred to the Sublessee). --Privity of Estate between Landlord and Sublessee usually won't work because the estate is never transferred to sublessee therefore the sublessee cannot be the present tenant Generally, the sublessee will NOT be liable to the Landlord on any of the lease covenants (due to lack of privity) but the sublessor remains liable to the landlord.

Answer 60

A clause in the lease that says the tenant may not assign or sublet without the express permission of the landlord

Answer 61

Cts construe it as valid and fully enforceable but will strictly construe it

Answer 62

makes the attempted transfer voidable at the option of the landlord

Answer 63

Permission given once means that a non assignment/sublease clause is waived altogether unless the landlord states otherwise at the time of giving permission (at the time he consents to the transfer) Cts are quick to find waiver

Answer 64

A partial taking by eminent domain does NOT release the tenant form obligation to pay full rent The tenant will get an amount equal to the rent that was to be paid over the remainder of the lease term for that portion of the property that was condemned

Answer 65

Complete taking extinguishes the lease and the tenant is excused from paying any further rent The tenant will share in the condemnation award only to the extent that the fair rental value of the property exceeds the amount of rent due under the lease

Answer 66

-CL: No duty on landlord--No duty to tenant or tenant's invitee for injuries sustained on the property during period of lease Exceptions: 1) Latent Defects: Landlord is under a DUTY TO DISCLOSE latend defects which the landlord either knows or has a reason to know of. Latent Defects= a defect that the tenant does not know of and a reasonable person in the tenant's position would not discover. No duty to repair. 2) Short Term Lease of a Furnished Dwelling: The rental of a furnished dwelling for a short term makes the Landlord liable for defects, EVEN IF the landlord neither knows nor has reason to know of such defects. Short term = 3 mo or less. 3) Common Passageways under Landlord's Control: Common areas = areas landlord still exercises dominion and control over. Landlord = liable if he failed to exercise reasonable care 4) Negligent Repairs Undertaken by Landlord: Courts will treat Landlord's negligent repairs as creating a deceptive appearance of safety and thus will hold him liable. 5) Public Use Exception: 3 Requirements: a) Landlord must know (or should know) of major defects, b) landlord must know (or should know) tenant will not fix the defect, c) landlord must know (or should know) that the public will be using the premises.

Answer 67

Tenant is ALWAYS liable to a TP invitee for negligent failure to correct dangerous conditions on the leased premises REGARDLESS of whether the landlord may be liable too

Answer 68

Fixtures become part of real property--thus they can't be removed by seller or tenants When an item = fixture turns on intent: Did the one installing INTEND that the item of personal property remain w/ the prop as a fixture? Express Intent: an agreement between the parties, the agreement controls No agreement: Four factors to determine intent: 1) Degree of attachment (the more attached =more likely to be fixture) 2) general custom (do ppl normally take this w/ them when they leave?) 3) degree of harm to premises on removal (law favors tenants on this--if tenant can remove without substantial damage then cts. presume NO inent to make this a fixture) 4) Trade fixtures: NOT fixtures and can always be removed. Trad fixtures = personal prop/chattels used in a trade/business.

Answer 69

Tenant: before tenant vacates premises Seller: before closing or the seller will lose the chattel

Answer 70

Non-possessory interest in land involves a right to USE the land (not possess it) Can only be used to benefit dominate estate Classifications: 1) Easements Appurtenant occurs any time the easement DIRECTLY BENEFITS the USE and enjoyment of a specific parcel of land - -burdened property = servient estate - -benefited property = dominant estate 2) Easements in Gross occurs where there is no dominant estate because there is only ONE parcel of land involved (the servient estate) - -Ex. Utility Easement: allow gas co to come on land to run a gas line

Answer 71

Express Easement Types: 1) Express Grant of easement to someone else 2) Express Reservation of easement when land is sold to another person Implied Easements 1) Previous Use by a Common Grantor(owner): there must be a previous use by a common owner and this previous use must be continuous, apparent (in the open/obvious) and reasonably necessary. 2) Absolute Right of Access Rule: Occurs if the person has no other option than to use the easement. The owner of the servient estate can choose the location of the easement so long as the choice is reasonable. Easement Prescriptions Four Requirements: use must be adverse to the true owner, use must be continuous and uninterrupted and must last for the specified statuary period (CL = 20 yrs, Ga = 20 yrs wild land, 7 yrs improved land) use must be visible/notorious OR made with owner's knowledge and use is without owner's permission (Oral permission will destroy the hostility/adverse requirement)

Answer 72

Express easement must be in writing signed but he holder of the servient estate and satisfying all deed formalities. Easements of one year or less do NOT have to be in writing

Answer 73

Transferring the benefit Transfer depends on how you classify the benefit Transferring Appurtenant: Dominant Estate-->the benefit is transferred automatically along with the dominant estate regardless if the easement was mentioned in the deed or not. All who subsequently succeed to the title of the dominant estate become entitled to the benefit of the easement. The easement appurtenant CAN NOT be transferred separate of the dominant estate. Transferring Gross Easement: If commercial= can always be transferred. If personal = can NOT be transferred. Transferring Sevient Estate: easements are always binding on the subsequent servient estate provided that the subsequent holder had notice of the easement (3 ways for notice: actual, constructive, inquiry)

Answer 74

1) actual knowledge/notice 2) constructive notice: arises from the fact that the document creating the easement is duly recorded in the buyer's direct chain of title 3) inquiry notice: arises from buyer's physical inspection of the land and visible appearance of the easement on the land OR from buyer's inspection of the public records contained in buyers direct chain of title

Answer 75

Specific terms of easement control Two presumptions when easement = silent on use: 1) presumed to be perpetual (lasts forever) 2) use = reasonable development of dominant estate--reasonable development is that development which would likely have been contemplated by the parties at the time the easement was granted.

Answer 76

Enjoin the excessive use but do NOT terminate the easement

Answer 77

Holder of the benefit of the easement (dominate estate) is responsible for making any necessary repairs to the easement Holder of the easement can always go on the servient estate to repair the easement even if the easement doesn't provide for that right. Holder of easement must make reasonable restoration of servient estate after repairs Holder of servient estate has NO repair obligations

Answer 78

Can end on its own terms Types: 1) Unity of Ownership: Doctrine of Merger: whenever the title to the dominate and servient estates come together in the same owner, easement = terminated. 2) Deed of Release: Only valid deeds (not oral) releases easements. TO be a valid release, it must be in writing (satisfy SoF) and must comply with deed formalities. 3) Abandonment: Intent to abandon must be manifested by the holder of the dominant estates by taking some physical actions to show intent to abandon, Mere non-use by itself is NOT abandonment. 4) Termination by Estoppel: Two requirements: a) representation of relinquishment of the easement by the holder of the dominant estate and b) the holder of the servient estate must make a change in his position in reliance on that representation 5) Termination by Prescription: owner of servient estate must stop the use of easement and must keep it stopped for the period of time required by the statute 6) Termination Created by Necessity: once necessity that gave rise to implied easement cases, the easement will automatically termination. When the need to use the land is gone, so is the right.

Answer 79

no implied easements

Answer 80

Type of Easement Its a limited privilege to use the land in possession of the licensor. -Not a prop inter, but a K right Can always be revoked at will of licensor (if revocation = wrongful, licensor can be liable for damages)

Answer 81

Always licenses (thus a type of easement) Ticket holders do not acquire prop rights in the ticket, but can sue for damages for breach of K.

Answer 82

If an easement is attempted but FAILS due to SoF a license is created-->if money is spent on the prop in furtherance of an oral license then that license becomes irrevocable.

Answer 83

Type of Easement Gives the right to go on land of another ad take away a natural resource. (gives way to an implied easement)

Answer 84

gives the holder of interest the right to restrict some TP in the use of the prop 2 Categories: (both include a WRITTEN promise restricting use) - -Covenants that rung with the land/law (enforced in damages/@ law) - -Equitable Servitude (enforced in equity/injunctions)

Answer 85

1) Intent: parties must intent that the restriction run with the land 2) Notice: to the person against whom enforcement is sought--can be actual, constructive (notice is imparted b/c restriction is stated in a duly recorded deed that was in buyer's direct chain of title), or inquiry notice 3) Touch and Concern the Land: if performance of the covenant makes the land more valuable or more useful, the covenant touches the land 4) Privity: concerns who is the successor in interest? Got to distinguish between benefit and burden

Answer 86

Successor In Interest = D --If successor in interest= D, then person is trying to establish burden and it runs and binds the D --> need BOTH horizontal privity: which refers to a conveyance between the original parties AND vertical privity which refers to those who subsequently obtain the prop subject to the easement must take the full estate held by the predecessors. Requirements: - Intent - Notice - Touch and Concern the Land - Privity: BOTH horizontal and vertical

Answer 87

Successor in Ineterst = P --If successor in interest = P then person is trying to establish benefit of covenant and it runs to plaintiff--> you need vertical privity only which means holder of any succeeding possessory estate may enforce benefit of covenant at law Requirements: - Intent - Notice - Touches and Concerns the Land - Privity; ONLY vertical

Answer 88

Three Requirements for Injunction on Burden 1) Intent: restriction be enforceable by Successor in Interest 2) Restriction must touch/concerns the land 3) Notice to Subsequent Purchaser No privity requirement

Answer 89

Two requirements 1) intent 2) touch and concern the land

Answer 90

Enforcement of Subdivision Restrictions: relied on to allow EACH LOT OWNER in a residential subdivision to enforce a restriction on use against every other lot owner in the subdivision.

Answer 91

1) Intent to impose a servitude (restriction on use) on ALL land in the subdivision--reflected in the common building plan, 2) Notice: NO actual notice, constructive notice = yes by it being duly record in buyer's direct chain of title or from a recorded subdivision plan, inquiry notice = possible by physical inspection of the land

Answer 92

1) Unclean hands: P made some use of her prop. 2) Acquiescence: P let other neighboring land owners do the same thing on their lots 3) Laches: P sat by while D was performing and P only complained after full performance. 4) Estoppel: P represented that she had no problems with D's plans

Answer 93

1) Deed of Release 2) Merger: Unity of Ownership 3) Changed Conditions: if all the lots in the entire subdivision are affected, then the use restriction will be eliminated. (MUST affect literally ALL OF THE LOTS)

Answer 94

Cause of action in ejectment used to cut off true owner's right to recover possession of the land. Once SoL runs, true owner loses title to the land Issue: Has X, whose on true owner's land, merely committed a trespass or has X obtained titled to the land by adverse possession?

Answer 95

H-E-L-U-V-A H: Hostile (X is on land with no right to be there) E: Exclusive (X is excluding others from possessing the prop) L: Lasting (must last for statutory period; can be specified in facts, if CL = 20 yrs, Ga= 20 yrs unless adverse possessor has written evidence of title then its only 7 yrs) U: Uninterrupted (continuous use that an ordinary owner would make of the prop) V: Visible (X's use/possession = out in open/notorious) A: Actual (X actually posses the land TO obtain title)--two exceptions: constructive possession and leased land * **True owner does NOT have to know what is going on * **Adverse possessor does NOT have to think he knows it GA: good faith is required to est. title by adverse possession

Answer 96

Exception to Actual possession requirement for Adverse Poss. Expands kernel of actual possession out to the full extent of the color of title under which adverse possessor makes his claim of right to the prop. Implications: the amount of land actually possessed must bear a reasonable relation to the whole and the prop must be unitary (one seamless whole)

Answer 97

Exception to Actual possession requirement for Adverse Poss. Leasing land to a TP constitutes possession for adverse possession.

Answer 98

NO adverse possession against a co-tenant unless the co-tenatn in possession excludes the other co-tenants from possession and the statutory period runs The exclusion starts the clock running for the statutory period.

Answer 99

The adverse possession clock does NOT start to run against the holder of the future interest until the interest becomes possessory.

Answer 100

The happening of the condition starts the clock running for adverse possession. Under the law of future interest, title goes automatically back to Grantor when the condition operated (thus the adverse possessor can take title adversely from the grantor)

Answer 101

The clock will not start to run until Grantor exercises his right of entry.

Answer 102

Adverse possessor can tack together SUCCESSIVE periods of adverse possession in order to satisfy the statuary period (can also tack successive periods of true ownership) If ANY gaps in time periods of possession, no matter how small, no tacking is allowed

Answer 103

Disabilities: Infancy, Incarceration and Insanity IF True Owner has one of these disabilities AT THE TIME THE PERIOF OF ADVERSE POSSESSION BEGINS then clock will NOT start until True Owner is free of the disability. Intervening disability does NOT STOP the clock. Ga: SoL = tolled during period that true owner is suffering even if disability was not in existence at time adverse possession began. No tacking of disabilities

Answer 104

No adverse possession

Answer 105

Title is NOT marketable

Answer 106

Must be a court action to quiet title

Answer 107

Steps: 1) K comes 2) At closing, actual conveyance of real prop occurs Time period between the two = escrow

Answer 108

Any K for the sale of any interest in real prop, must be in writing and signed by the one who is being sued (the party begin charged) Writing must include: description of prop, names of parities and price.

Answer 109

Exception to SoF Two requirements; 1) Oral K must be certain/clear 2) acts of partial performance must clearly demonstrate the existence of a K - -demonstration = buyer taking possession of the prop AND either a) paying the purchase price in full (or close to it), or b) building improvements on the prop. GA: Acts of part performance that are sufficient for specific performance = a) payment of full purchase price, b) possession of prop and partial payment or , c) possession of prop and substantial improvements to prop

Answer 110

CL: Buyer Bears Risk of Loss b/c of Equitable Conversion--once K = signed, equitable conversion treats prop as buyers and thus risk of loss = buyer's This only applies if seller is not at fault

Answer 111

If either party to the K dies, equity will still order specific performance of the K if necessary. Death of either party will generally not affect the rights of the parties under the K. If seller dies--> buyer will close with seller's estate (pay seller's estate) Seller's interest is in personal prop ($) If buyer dies--> seller will close with buyer's estate and will deliver the prop to buyer's estate. Buyer's interest is in real prop.

Answer 112

Every land sale K contains an implied covenant that seller will deliver a marketable title to the buyer at the close of escrow (AKA implied warranty of marketable title) To satisfy seller must provide buyer with: 1) proof of title- tangible evidence (ex. a deed) 2) title free of encumbrances 3) valid legal title as of the closing date

Answer 113

Title that a reasonably prudent buyer would accept. Minor defects do not matter.

Answer 114

Seller must give the buyer title free of encumbrances other than those that have been previously disclosed to the buyer. Encumbrances = easements, restrictions, mortgages, options, existence of a valid option, and any other private restriction not disclosed to the buyer. Zoning = NOT an encumbrance but violations of zoning ordinances are encumbrances Housing/building/safety violations = NOT encumbrances **Note mortgages are encumbrances but if the mortgage will be satisfied from the sale proceeds then it is no longer an encumbrance.

Answer 115

Buyer must notify the seller of any defect in tittle and allow the seller a reasonable time to cure the defect, even if it means postponing the date of closing.

Answer 116

Rescind Sue for Damages Specific Performance: which is coupled with a reduction in the purchase price to reflect the seller's defects in title

Answer 117

K will specify closing date If a party fails to perform on closing, nothing happens so long as they perform within a reasonable time (2 mo late = reasonable time) Time is NOT of the essence in land K unless: the K says otherwise or facts make it clear that time is of the essence --A time of the essence clause can be included in the K

Answer 118

Party who failed to perform on time is in total breach and therefore cannot enforce the K

Answer 119

Damages: - -measure= difference between K price and the value of the prop on the date of the breach - -Liquidated Damages: a clause in the K that says Buyer's deposit can be forfeited in the event of Buyer's breach. Will be enforced if reasonable (not to exceed 10% of K price) Specific Performance: - -available to buyer b/c land = unique and money damages = inadequate - -available to seller

Answer 120

CL: Caveat Emptor: Buyer cannot recover from seller (seller has no duty to disclose defects) but seller can't actively conceal defects either (if he does, buyer can recover) Modern: Duty to Disclose to buyer any serious defects in prop that sellers knows of & aren't obvious to buyer. Majority of States (NOT GA) has an Implied Warranty of Fitness/Merchantability/Habitability: applies in residential housing when seller = the builder of the new housing. (CL rule applies to all other sales) GA: doesn't have Implied Warranty of Habitability in the case of new housing sells by builder-seller. However, if builder conceals a defect then builder-seller will be liable

Answer 121

Once deed is accepted at closing, K is extinguished. At closing, K mergers into deed and all K provisions is extinguished UNLESS: K specifies that it survives closing or if the provisions are included in the deed itself.

Answer 122

By execution and delivery

Answer 123

SoF: writing must be signed by seller. Must describe the land with sufficient accuracy to pass title (must be able to identify prop, if you can't identify it then deed is void for vagueness and nothing is transferred)--Minor discrepancy in descriptions = ok so long as prop can be identified. --Parol Evidence Rule may be used to clarify deed descriptions A land description by metes and bounds will control over an acreage description/any other description. GA: Requires deed to be properly attested in order to be recorded: must be two witnesses one of which is a notary. (this affects recordation not validity)

Answer 124

Legal test = whether Grantor had the necessary intent to pass title. No physical transfer of deed is required. --If facts show intent of Grantor, then safeguarding the deed by Grantor does not show lack of intent Recording a properly executed deed carries a presumption of delivery even if Grantee knew nothing of the deed itself. Once delivery occurs title passes, returning the deed back to Grantor has no effect Parol evidence may be used to show Grantor's intent Grantor dies and deed is still in his possession, then there is a presumption of no delivery (can be rebutted by grantee)

Answer 125

Arises in three situations: 1) Delivery of future interest: Deed will say something like; "to A, but not until i die" this is a valid delivery of a future interest 2) Oral Condition: Plurality Rule: ignore the oral condition and consider delivery complete 3) Delivery conditioned on Grantee's Payment of Purchase Price: is valid provided that grantor makes deed delivery to a TP in escrow, grantor instructs escrow to deliver deed to grantee when condition is satisfied, and once deed is placed in escrow the grantor can't get the deed back. - -so long as the grantee satisfies the condition, the grantee gets the prop.

Answer 126

Delivery = valid only if accepted. Acceptance = implied UNLESS facts state otherwise Consideration is not required

Answer 127

1) Quitclaim Deeds: grantor makes no promises regarding title 2) Covenant for Title: if grantor makes any promises regarding title 3) General Warranty Deeds: deeds that include the six traditional Covenants for Title

Answer 128

Personal to the Grantee and do NOT run with the land 1) Covenant of Seisin 2) Covenant of Right to Convey - -Both of these represent seller's promise that he has title/possession and can validly convey both 3) Covenant Against Encumbrances: seller promises that there are no encumbrances other than those previously disclosed to buyer.

Answer 129

A present covenant is breached, at the moment the conveyance is made--thus buyer can sue on a present covenant immediately.

Answer 130

Do run with the land and can be enforced by all subsequent purchasers 1) Covenant of Quiet Enjoyment 2) Covenant of Warranty - -Both of these represent seller's promise to protect Buyer against anyone who comes along later and claims paramount title to the prop. 3) Covenant of Further Assurances (Mop Up Covenant): If seller omitted something required to pass valid title, seller promises to do whatever necessary to pass title to buyer

Answer 131

Is not breached immediately (not breached when conveyance is made). Instead, it is breached at some later date when the Grantee is disturbed in possession.

Answer 132

General rule that all six covenants of title run with the land and can be enforced by any subsequent purchaser.

Answer 133

Damages: Where there is a breach of warranty, P's damages will be limited to the amount of purchase price received by the warrantor plus incidental damages.

Answer 134

Grantor gave an implied covenant that title will be conveyed to the Grantee. Thus, grantee can sue to compel the transfer of title from the grantor.

Answer 135

Sale to a BFP will cut off the rights of the earlier Grantee and therefore will cut off that grantee's right to rely on the Estoppel by Deed Doctrine.

Answer 136

Deals with conveying prop in a Will If the will purports to devise a specific parcel of land, but testator does not own the land at the time of her death, the gifts ademmed. (meaning the gift fails and will not be replaced by other property) Does not apply to a gift of prop that is subject to an executory K of sale (in escrow) at the time of the testator's death--instead, devisee will receive the proceeds from the sale of the prop.

Answer 137

deals with conveying prop subject to a mortgage/lien in a will This was a CL doctrine that has been abolished. Majority rule: Devisee will take the property subject to the mortgage.

Answer 138

CL; If the beneficiary died before testator, gift in will lapsed (was void) Modern Rule: Adoption of Anti-Lapse statutes that prevent lapse by allowing the gift to pass to certain relatives of the predeceasing beneficiary.

Answer 139

An Express private trust is created in writing by a settlor who transfers title to real prop to a trustee who holds/manages the prop subject to fiduciary duty to use the highest care/skill for the benefit of the beneficiaries of the trust

Answer 140

can be created inter vivos by deed or by a will at death

Answer 141

- -Hold legal title to real prop. - -must act in accordance with settlor's written instructions (if any) - -subject to strict fiduciary duties If trustee dies= court can appoint a substitute

Answer 142

Is subject to Rap If it violates RAP, trust = void

Answer 143

Do NOT have any named individuals Beneficiaries are either established charities or large groups of people (victims of blank) Charity to Charity rule applies to RAP

Answer 144

Court may alter terms of a charitable trust in order to further seller's intent

Answer 145

Types: 1) Lateral -from the sides 2) Subjacent: from the bottom

Answer 146

Support from sides Rule: A landowner has the right to have her land supported by adjourning landowners Strict Liability results if the land is not supported

Answer 147

Support from bottom Problems occur: Where the mineral rights have been legally severed from the surface rights ( holder of mineral rights removes the mineral from underneath the surface and it causes the surface to collapse) Rule: Surface owners ave the right to have their land supported from the bottom Strict Liability will result if land is not supported Scope: Right extends to the land and to those improvements that were existing on the land as of the date the mineral rights were severed from the fee simple

Answer 148

Majority Rule in River/Lake Water Rights Riparian: Refers to those whose prop borders on a lake/stream General Rule for Domestic Use: A riparian owner may use all the water need for domestic purposes. General Rule for Non-Domestic Use: Riparian owners = limited to a reasonable use for non-domestic purposes (like commercial or industrial uses) Ga follows this.

Answer 149

Minority Rule in River/Lake Water Rights First in Time Takes (priority in time determines rights) Rule: The first person who makes beneficial use of water from a lake/stream has that right protected against those who come later so long as the use continues.

Answer 150

Deals with percolating or well water Landowner is entitled to reasonable use of ground water, although landowner must use it on the prop and NOT export it elsewhere. Ga; By statute, a landowner may not take out up to 100,000 gallons of water a day without first obtaining a permit.

Answer 151

Deals with Runoff or Flood Water No Majority Rule: two Competing Approaches : 1) Common Enemy Approach: Landowner can do anything he wants with floodwater- reasonableness doesn't matter 2) Natural Flow Approach: requires a landowner NOT to make any changes at all in the flow of flood water as it rushes across the surface of the land - -landowners can take reasonable means to deal with surface waters Ga= Natural Flow state

Answer 152

Changes CL rule of first in time, first in right Protects subsequent purchasers--lets subsequent purchases keep the prop provided the subsequent purchaser can satisfy the recording statute IF the subsequent purchasers does not satisfy the recording statute, then you must apply the CL rule and the subsequent purchaser always loses.

Answer 153

1) Court clerk files a copy of deed in a book and makes note of the deed volume/page number 2) clerk will index this information into the grantor's index and the grantee's index

Answer 154

Transactions listed alphabetically by Grantor Notes: name of grantee, brief description of prop, cite to volume/page of book where full deed can be found

Answer 155

alphabetically by grantee Notes: name of grantee, brief description of prop, cite to volume/page of book where full deed can be found

Answer 156

1) Notice Statute 2) Race Statute 3) Race-Notice Statute

Answer 157

Protects subsequent grantees who are BFP who takes title without notice of the earlier conveyance

Answer 158

Notice is irrelevant Rule: whoever records first keeps the prop Subsequent purchases do not have to be BFP

Answer 159

Protects all subsequent Grantees who are BFPs and take without notice and are the first to record. Test: - Grantee a BFP? - Take without notice? - First to record? Ga= Race-Notice State

Answer 160

Notice Staute will include lang. of "without notice" or "in good faith" only Race-Notice Statute: will include land of of "without notice" or "in good faith" AND lang of "recorded first" or "first recorded" Race Staute will NOT include the word "notice" or "in good faith"

Answer 161

Bona Fide Purchasers: those who purchase for value and without notice

Answer 162

Unless there is an explicit claim of fraud, any consideration that is out of pocket is enough to be considered value.

Answer 163

A purchaser who pays way below the ceiling is has still paid a sufficient value to be considered as purchasing for value

Answer 164

One who takes prop as a heir/donee/devisee cannot be a BFP because they are not taking it for value and thus cannot prevail over a claim of an earlier grantee.

Answer 165

Anyone (even heirs/donees/devisees) can shelter under the rights of BFP. Protects anyone who takes from a BFP regardless of whether they are purchasers for value and no matter what they knew (had notice or not)

Answer 166

1) Actual; if the subsequent purchaser had actual notice of a prior unrecorded conveyance, then the subsequent purchaser is NOT a BFP. (Shelter Rule applies) 2) Record: constructive notice arising from the record. A deed must be recorded in a buyer's direct chain of title so that subsequent purchasers can find/inspect it. 3) Inquiry: To be a BFP without notice, a Subsequent purchaser must examine and the land and must make inquiry as to any unexplained uses/possessions. Subsequent purchasers will be charged with notice of whatever a physical inspection would reveal

Answer 167

Recording statutes generally protect subsequent mortgages

Answer 168

Are not generally protected by recording statutes.

Answer 169

Construct a chain of title - Look up seller's name - find name of seller's Grantor - Look up name of that person's grantor (and so on..go backwards for the period of time required by the marketable title statute)

Answer 170

Adverse Each Link - Look up last Grantor found in chain of title (has that person recorded any interest in prop starting from time they got the prop till title passed to next link) - --any encumbrances or conveyances to TPs - Repeat this for each grantor in the chain of title leading down to prospect seller

Answer 171

Title searcher examines only the actions taken by the Grantor during the period of record ownership (don't look at what the grantor may have done before obtaining the prop or after passing title)

Answer 172

if a deed is recorded too late, it is recorded outside the chain of title and does not give constructive notice to subsequent purchasers

Answer 173

Where a reading of the deed on record discloses an unrecorded transaction, subsequent purchaser has to make inquiry in oder to take without notice and qualify as BFP. **Must also make physical inspection of the prop in addition to investigating unexplained possessions/uses of the prop.

Answer 174

Is a devise used to secure a loan on the property

Answer 175

given by the debtor (mortgagor) to the creditor (mortgagee) -If loan = not paid in full, sheriff sells the land at court ordered foreclosure sale Courts treat equitable mortgages and leasebacks as mortgages.

Answer 176

given by debtor to a TP trustee who holds deed of trust until loan is paid in full

Answer 177

1) can obtain court order for a foreclosure sale of prop | 2) trustee can sell the prop by himself at a public auction

Answer 178

Arrangement where debtor signs a K promising to make payments to seller/lender but seller keeps title to the property until the loan is paid in full

Answer 179

Permits using deeds to secure a debt (Security Deed) Where a security deed is used, title passes to the grantee/lender until debt is paid off but only for purposes of securing the debt. Ga also recognizes using a mortgage as a valid security interest

Answer 180

At any time-right up until foreclosure sale- Debtor can redeem the prop by paying that amount that is due and payable (arrears ant) plus interest unless mortgage includes an acceleration clause.

Answer 181

If the mortgage includes an acceleration clause the Debtor must pay off the entire balance of the mortgage in order to redeem the prop. Entire balance includes the amount in arrears, the interest accumulated and the remaining mortgage balance due.

Answer 182

Cannot be waited in the original mortgage or deed of trust but can be waived later if there is separate consideration for the waiver Attempt to waive in the original mortgage/deed of trust is called clogging the equity of redemption and is prohibited.

Answer 183

Half of the states allow mortgagor (borrower) a statutory right to redeem the prop for some fixed period of time after the foreclosure sale has occurred (usually 6 mo- 1 year)

Answer 184

Where there are multiple mortgages on a single prop, priority is allocated based on the CL first in time, first in right unless that order is changed by the terms of the applicable recording statute IF mortgage was not recorded/recorded too late, apply terms of applicable recoding statute to determine priority (apply it just as you do with deeds)

Answer 185

Voluntary Subordination: a senior mortgage may agree to subordinate to a junior mortgage

Answer 186

AKA: PMM= a Mortgage taken out to buy a prop. Rule: receives priority over other mortgages that were executed prior to the PMM, even if the earlier mortgage was recorded first. PMM given by seller is given priority over a PMM given by a TP lender, such as a bank

Answer 187

IF the mortgagor does anything to increase a senior mortgage then that senior mortgage loses it priority over junior mortgages but only to the extent of the change. Ex of increasing the senior mortgage = borrows more $/increasing in interest rates

Answer 188

Foreclosure wipes out (eliminates) all junior interests but foreclosure does not wipe out senior interest. Senior interests just continue in place, the buyer will take the prop subject to the senior interest.

Answer 189

Holders of junior interests have the right to pay off any mortgage being foreclosed on in order to keep their interests from being wiped out (eliminated) Thus, junior interest are a NECESSARY PARTY to any foreclosure proceeding. If a junior interest is NOT named as a party, then their interests are NOT eliminated by the foreclosure.

Answer 190

1) Pay cost foreclose 2) pay off mortgage that was foreclosed on 3) pay off junior interest in order of priority 4) pay any remaining balance to homeowner

Answer 191

Allow the Creditor to sue the Debtor personally for the balance due on the note.

Answer 192

If a debtor misses a payment, Seller can cancel the K, keep all monies paid to date and retake the prop. Clause found in the land sale K

Answer 193

Will be enforced even though cts are hostile to these clauses. If seller chooses to enforce this clause, seller is limited to that remedy and cannot also obtain damages or specific performance

Answer 194

Grantor is transferring Rule: Whenever grantor transfers title to prop, grantee automatically takes the prop subject to the mortgage.

Answer 195

Will not be personally liable on the mortgage unless grantee specifically assumes the mortgage Mortgage still has to be paid or it risks foreclosure. Thus, grantee is subject to losing the prop in a foreclosure sale.

Answer 196

Any modification of the obligation by the creditor/mortgagee and the grantee will release the original borrower/mortgagor from all liability

Answer 197

The mortgagee (creditor) can freely transfer the note and the mortgage will always flow the note it secures.

Answer 198

States that if the mortgagor transfers the prop without the mortgagee's consent, the full amount of the loan becomes immediately due and payable. Due on sale clauses are enforceable

Answer 199

A seller of a fixture who provides a purchase money security interest in the chattel must make a UCC Article 9 fixture filing within 20 days after attachment (installment). If the seller of that chattel made the UCC filing in a timely manner, Seller may remove the fixture without regard to priority of the earlier mortgage/security interest on the prop. IF the fixture filing was not made in timely manner, seller's security interests in the chattel is subordinate to the earlier mortgage on the prop.