Real Property

Question 1

Adverse Possession

Answer 1

1. Open & notorious
2. Actual and exclusive possession
3. Continuous
4. Hostile
5. For the statutory period

Easement by Prescription = same EXCEPT no requirement of exclusivity

*On essay, use if mentions limitations period for recovery of real property

Question 2

Estates in Land

Answer 2

1. Fee Simple
2. Fee Simple Determinable (FSD)
   
   • Possibility of Reverter in Grantor
     
     • ​”To A so long as . . .”
3. ​​Fee Simple Subject to Condition Subsequent (FSSCS)
   
   • Right of Re-Entry in Grantor (must be exercised)
     
     • ​”To A . . .; but if property is used as / A does x . . .”**​​
4. ​​Life Estate
   
   • Followed by Remainder or Reversion
5. ​Executory Interest
   
   • Follows a defeasible fee, such as FSD or FSSCS
     
     • ​”To A so long as the property is used for resdidential purposes; then to B”
     • “To A and his heirs; but if hte property ceases to be used as residential property, then to B.”
6. ​​Vested Remainder
   
   • No condition required to vest
   • “To John and his heirs”
7. ​Contingent Remainder
   
   • Remainderman must fulfill a condition
     
     • “To John, so long as he attains the age of 35.”

Question 3

Merger / Class Gifts

Answer 3

• Merger
  
  • Same person acquires present and future estates = fee simple
• Rule of Convenience
  
  • “To all the children of X.”
  • Class closes when a class member can call for distribution.

Question 4

Rule Agianst Perpetuties

Answer 4

• RULE:
  
  • ​Future interest must vest, if at all, within the lives in being + 21 years
• Applies only to:
  
  • Contingent remainders
  • Executory Interests
  • Class Gifts
  • Options and rights of first refusal
  • And Powers of Appointment
• Validity of interest is determined at the time the interests are created.
  
  • Will = date of T’s death
  • Revocable trusts = date trust becomes irrevocable
  • Irrevocabl trusts = date created
  • Deeds = date the deed is dleivered with intent to pass title.
• Measuring Life (life in being) =
  
  • Must be connected to the vesting of the gift
  • Person who biologically produces the beneficiaries of the gift in question

Question 5

Concurrent Estates

Answer 5

1. Joint Tenancy
   
   • 4 Unities and Right of Survivorship
     
     • JTs must take their interest:
       
       1. At the same TIME
       2. by the same TITLE (same instrument)
       3. IDENTICAL equal INTERST, and
       4. Identical right to POSSESS the hwole
   • Severance of JT = TIC in grantee
   • Severance where multiple JT’s = TIC in grantee; remaining contenants still hold JT among themselves
   • Severance by liens and mortages
     
     • Majority = No severance on formation
     • Minority = Severance on formation
2. Tenancy in Common
   
   • 2 or more own with NO right of survivorship

Question 6

Rights of Co-Tenants

Answer 6

• Posession and profits from Operations on Property:
  
  • Each co-T has a right to possess all of the property, but a co-T not in possession cannot bring a possessory action, or claim rent from a possessing co-T unless there has been OUSTER
  • Co-T in possesion has right to retain profits gianed by use of property, ano no need to share with other co-T’s or reimburse for rent, absent a written tagreement to the contrary or if use depletes property.
• Rental Income/Expense
  
  • _​_Co-T out of possession has the right to share in rents from 3rd parties and in profits from uses that deplete the property’s value
  • Pro-rata apportionment = right of contribution for necessary repairs, taxes, payments on mortages, not for improvements
  • Co-T in sole possession who pays taxes and mortages is only entiteld to reimbursement in the amount that exceeds the fair rental value of the property.

Question 7

Landlord / Tenant - Types

Answer 7

• Periodic
  
  • Only terminated by written notice
• Term of Years
  
  • Automatic Termination unless notice to renew

Question 8

Landlord / Tenant - Termination

Answer 8

• Notice required - lease will control
• Often 30 days in periodic leases
• Can be more in a term for years

Question 9

Assignments

Answer 9

• Absent an express restriction in the lease, T is free to transfer their leasehold interest in whole or in part.
• Assignment = a complete transfer of the entire remainig term of the lease.
  
  • An assignee stands in the shoes of the original T in a direct relatinoship with the LL, A and LL are in “privity of estate“ and each is liable to the other on all the covenants in the lease that “run with the land”
  • Original T and L remain in “privity of contract”

Question 10

Subleases

Answer 10

• T retains some part of the remaining term of the lease.
  
  • A sublessee is not personally liable to L for rent, or for performance of any of the covenants in the main lease unless the sublessee expressly assumes covenants.
  • Both the sublessee and the original T remain liable on the covenant to pay rent

Question 11

Landlord’s Implied in Law Covenants

Answer 11

• Duty to Deliver Posession
  
  • Includes timely possession
• Quiet enjoyment and non-disturbance
  
  • Applies to all leases
  • Actual evitction
  • Partial eviction
  • Constructive Eviction
    
    • Landlord breach of duty AND
    • Breach susbtantially and materially deprived tenant of use and enjoyment of premises
  • REMEDY = move out if done in timely manner; otherwise waived
• Warranty of Habitability
  
  • Applies only to residential leases
  • Property is reasonably suitable for human residence.
  • REMEDY
    
    • Move out and terminate lease
    • Make repairs and deduct expenses from rent
    • Sue for damages
    • Reduce rent in amount reduced by issue

Question 12

Tenants’s Implied in Law Covenants

Answer 12

• Pay Rent
• Repair any damage caused
  
  • T must maintain premises and make ordinary repairs
• Not to commit waste
  
  • Affirmative
  • Permissive
  • Ameliorative

Question 13

Express Lease Covenants that Run with the Land

Answer 13

• Only relevant to Assignments of Leases
• On Essay, will be specifically identified clause in lease obligating a party
• Two ReQUIREMENTS:
  
  • ​Intent
  • Touch and Concern

Question 14

Express Lease Covenants that Run with the Land – Dependence of Covenants

Answer 14

• Traditional Rule
  
  • Lease covenants other than rent are independent; breach of covenant does not allowe tenant to refuse to pay rent
• Modern Rule
  
  • Contract Theory = lease covenants are dependent;
  • Tenant can temrinate lease if landlord’s breach is material, but cannot stay and refuse to pay rent.

Question 15

Waste

Answer 15

1. Voluntary
   
   • Deliverate Destructive Acts
   • REMEDY:
     
     • ​Damages – diminution in value or cost of repairs
     • Injunction
2. Permissive
   
   • Acts of OMmission or Neglect
   • REMEDY:
     
     • Damages - diminution in value or cost of repairs
3. Ameliorative
   
   • Alter the property but result in increase value
   • REMEDY:
     
     • ​Cost of restoring to prior condition.

Question 16

Easements

Answer 16

• The right to use land for a particular purpose, but no right to possess or enjoy that land.
• Types and How created:
  
  1. Express
     
     • ​​Preferably created by deed
     • Statute of Frauds
  2. By Reservation
     
     • ​Also based on deed – where the Grantor reserves an easement as part of the conveyance of the property to another
  3. By Implication
     
     • ​​Usually by permitted conduct over a long period of time amount to consent
  4. By Necessity
     
     • ​​Where the party asserting the easement owns landlocked property AND the two parcels were under common ownership at one time
  5. By Prescription
     
     • ​​Adverse possession (absent exclusive possession)

Question 17

Easement Appurtenant

Answer 17

• Automatically runs with the transfer of the and UNLESS servient estate is transferred to a BFP without ntice
• Holder of one parcel – the dominent tenement – holds the easement in a different parcel – the servient tenement.

Question 18

Easement in Gross

Answer 18

• Does **NOT **run with land
• Holder does not hold based on land ownership

Question 19

Termination of Easements

Answer 19

Done either in writin gor orally + an action of abandonement.

Question 20

Covenants and Servitudes

Answer 20

• Binding promises regarding use of the land
• Covenant
  
  • One can enforce a covenant provided the covenant “runs with the land”
  • In order for a covenant to be binding on a successive purchaser, the original covenanting parties must have agreed to be bound by the terms of the agreement and actual or constructive notice must be given to a BFP
  • “Runs with the land” = Burden and Benefit
• Equitable Servitude
  
  • Is a covenant that, regardless of whether it runs with the land, equity will enforce against the assignee of the burdened land who have notice of the covenant

Question 21

Covenants and Servitudes - How to Approach

Answer 21

• Address Covenant first and analyze thoroughly and then move on to Servitudes
• For the BURDEN to run (all 5 must b present):
  
  1. An intent
  2. Notice
     
     • Actual
     • Constructive
     • Inquiry
  3. Horizontal Privity
  4. Vertical Privity
  5. Touch and Concern the Land
• For the BENEFIT to run:
  
  1. Intent
  2. Vertical Privity
  3. Touch and Concern the Land

Question 22

Equitable Servitude

Answer 22

• Burden need not run, only need to show that the burdened party has:
  
  • Notice
  • Intent
  • Touch and Concern Land
• For benefit show:
  
  • Intent
  • Touch and Concern

Question 23

Implied Negative Reciprocal Servitude

Answer 23

• Requires:
  
  • Prohibition on some kind of use
  • Implication from Common Scheme of Development
  • Notice of Negative Covenant
    
    • Actual
    • Constructive
    • Inquiry

Question 24

Conveyancing - What does a Deed require to be valid?

Answer 24

Deed must be:

1. Executed
2. Delivered
3. Accepted

Question 25

Conveyancing - **Quitclaim Deed**

Answer 25

* Conveys only what the seller has * Includes a **warranty of marketable title** * *Title that a reasonably prudent buyer would be willing to accept -- **NOT ** by adverse possession.*

Question 26

Warranty Deed

Answer 26

* **_Present Covenants_** (Breached at time of Conveyance) * Seisin * Right to Convey * Against Encumbrances * **_Future Covenants_** (Breach at time of **valid** claim against title, if any) * Quiet Enjoyment * Warranty * Further Assurances

Question 27

Recording Statutes

Answer 27

1. **_Race Statute_** * *Whoever records first wins* 2. **_Notice Statute_** * *​A subsequent BFP wihtout notice prevails over a prior grantee who failed to record (BFP takes without notice)* 3. **_Race-Notice_** 1. *A subsequent BFP **who also records** before the prior grantee prevails over a prior grantee who failed to record* ## Footnote *Protects BFPs, including lenders who take security interst, but they do not apply to or protect creditors.*

Question 28

Mortgages

Answer 28

* **Mortgage** = Security interest in property * **Purchase Money Mortgage** = secures repayment of loan used to buy property * Foreclosure extinguishes all junior interests * Failure to give notice to junior interests = ineffective foreclosure * Mortgages only foreclosed judicially * Equitable right of redemption = usually 1 year

Question 29

Mortgage Forcelosure Sale Proceeds

Answer 29

* After sale expenses, first to forcelosing mortgagee * Then to next senior mortgage * If sale proceeds pay off all mortgages, then remainder to borrower

Question 30

Deed of Trust

Answer 30

* Like a mortgage; security interest in property and can be recorded * Parties: * Beneficiary = lendor * Trustor = Borrower * Trustee = usually a disinterested 3rd party like title company * Failure to give notice of the foreclosure to interested parties willr esult in the foreclosure being ineffective as to those interests: * Interests will not be extinguished * Purchaser at the forclsoure sale will purchase subject to those interests. * Judicial or non-judicial * D/T allows for non-judicial foreclosure: * Trustee posts and records a **notice of default** and **election to sell** * Trustor then has 90 days to bring the defaulted amount current * After 90 days, the Trustee may post and publish a notice of trustee's sale * For 21 days, the beneficiary can demand payment in full on the note * At the end of 221 days, the trustee can sell th enote to the highest bidder at public auction (often goes to the lender who bids the note)

Question 31

Deficiency Judgment re: D/T

Answer 31

* Occurs when the amount owed on the note secured by the mortgage or D/T is greater than the current value of the property securing the debt. * A mortgagee or beneficiary under a D/T can obtain a deficiency judgment for money against the borrower **only if** the property securing the mortgage or D/T is not a single family home or up to a 4 single family residence and the mortgage or beneficiary uses judicial foreclosure * Non-judicial foreclsoure of a D/T carries an anti-deficiency provision that prohibits awarding of a deficiency judgment.

Question 32

Lateral Support

Answer 32

* Excavation of adjacent land * Excavator strictly liable for: * Subsidence of land in natural state * SUbsidence of land with buildings **if subsidence would have occured in natural state** * ​Excavator otherwise liable for subsidence of land with buildings if negligence

Question 33

Subjacent Support

Answer 33

* Applies where grantor gives grantee right to extract minerals from below surface * Excavator strictly liable for: * Subsidence of land in natural state * Subsidence of land with existing buildings * Excavator liable for subsequently erected buildings only if negligent

Question 34

Water Rights - **Riparian Doctrine**

Answer 34

* Water belongs to those who own the land bordering on the watercourse * All riparian owners share a right of reasonable use and must submit to the reasonable use rights of the other riparian owners * _Factors for Reasonable Use:_ * _​_Purpose * Extent * Destination of Water Flow * Alteration in Flow

Question 35

Water Rights - **Prior Appropriation Doctrine**

Answer 35

* Water use/amount based on prior appropriation (first in time) from particular area on stream for beneficial uses. * If decrease in supply, junior appropriators suffer first * Severable Rights * Can be abandoned