Real Property Flashcards

(128 cards)

1
Q

What are the elements of adverse possession?

A

Exclusive
Open notorious
Hostile
Continuous

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2
Q

What is adverse possession?

A

Allows one who has wrongfully entered a property to take possession of it where there has been exclusive, open and notorious, hostile, continuous possession of the land

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3
Q

Define actual possession for the purpose of adverse possession?

A

True owner excluded
Can only claim land used
Can lease to tenant to satisfy actual possession

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4
Q

How is open and notorious possession determined?

A

Using the land as a typical owner would

Puts true owner on notice of trespass

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5
Q

How is hostile possession determined for adverse possession?

A

No permission
Boundary disputes = hostile
Ouster of co-tenant

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6
Q

How is continuous possession defined for adverse possession?

A

20 years at common law

Owner does not regain possession

Seasonal use can satisfy (as long as only true owner would use land that way)

Tackling permitted where adverse possessors in privity

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7
Q

What is the effect of adverse possession?

A

Marketable title not conveyed unless title perfected and made marketable by judicial action to quiet title

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8
Q

What are the sof requirements for a land transfer?

A
Writing 
Name parties 
Signed 
Describe land 
State consideration
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9
Q

What are the part performance exceptions to sof?

A

Possession + payment
Substantial improvements
Conveyance made by seller

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10
Q

What is the implied promise in every land transfer agreement?

A

Marketable title

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11
Q

What is the doctrine of equitable conversion?

A

Buyer is owner of property after signing of contract, before closing

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12
Q

What are the remedies for breach of land sale?

A

Specific performance

Damages

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13
Q

How are damages calculated in a sale of land contract?

A

Difference between market price and contract price

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14
Q

What are the requirements for specified performance to apply?

A
Valid contract 
Conditions satisfied 
Inadequate legal remedy 
Mutual performance 
Feasible enforcement 
No defenses 

Chocolate cheesecake is my favorite dessert

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15
Q

When might there be an inadequate legal remedy such that specific performance is appropriate?

A

Damages too speculative
Defendant insolvent
Possible multiple suits
Property unique

Speculative, insolvent, unique suits

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16
Q

What are the defenses to a breach of a sale of land contract?

A
Laches
Unclean hands 
Lack of consideration 
Sof
Sale to a bona fide purchaser
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17
Q

Define mortgage

A

A financing agreement that conveys a security interest in the land where parties intend land to be collateral for the repayment.

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18
Q

Is there a writing requirement for a mortgage?

A

Yes!

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19
Q

What is the mortgage exception to sof?

A

An equitable mortgage

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20
Q

What are the buyer’s rights under a mortgage?

A

Possession

Title

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21
Q

What are the creditor’s rights in a mortgage?

A

Lien which allows him to look to mortgage in the event of default

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22
Q

Are mortgages transferable?

A

Yes

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23
Q

What is a foreclosure?

A

Mortgagee seeks land when mortgage defaults

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24
Q

What is the effect of an anti deficiency statute?

A

Limits lender to value of loan

Excess goes to buyer from proceeds of sale after paying off debts

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25
What is a deficiency judgment?
A judgment holding someone personally liable for debt not recovered from foreclosure. Property worth less than loan. Lender can only sue debtor personally for difference if: - judicial foreclosure - loan was not purchase money mortgage
26
What is the difference between an installment contract and a mortgage?
Buyer does not get title until payment completed where there is an installment contract
27
What happens if a buyer defaults on an installment contract?
Seller gets back property | Seller keeps payments
28
What are the requirements of a conveyance by deed?
Identification of parties Signature of grantor Description of property No consideration required
29
What is a quitclaim deed?
Conveys grantor’s interest in property, but contains no covenants of title
30
What are the present covenants for title that may be breached at the time of sale?
Seisin (grantor owns property) Right to convey Against encumbrances
31
What are future covenants that may be breached when grantee is disturbed in possession?
Warranty of title Quiet enjoyment Further assurances
32
How may a deed be delivered?
Physical transfer Intent to present transfer Acceptance of deed by grantee
33
When does title pass from grantor to grantee?
Immediately upon delivery of the deed
34
What factors create a presumption of intent to make a present transfer of deed?
Recording of deed | Grantor giving deed to grantee
35
What is the merger doctrine?
Upon closing, the deed rather than the land sale contract becomes the operative document. Obligations in the contract are discharged at closing unless repeated in the deed.
36
What is ademption?
A testator decided a specific property to a specific party under his will, but that property is no longer part of his estate. A gift that is adeemed fails.
37
What is exoneration?
Where a party receives a bequest of a specific property that is subject to a lien, the encumbrance is paid off with estate’s personal property. Recipient receives a free and clear property.
38
What is lapse?
If a beneficiary named in a will predecessors the testator, the bequest fails.
39
What is an antilapse statute?
If beneficiary predeceases the testator, decreased’s heirs take the property
40
What time applies in absence of a recording act?
Common law, first in time, first in right
41
What are the three types of recording acts?
Pure race Pure notice Race-notice
42
What is a pure race statute?
First to record wins
43
What is a pure notice statute?
Subsequent bona fide purchaser wind over a grantee who didn’t record
44
What is a race-notice statute?
A subsequent bfp that records first prevails over a grantee that didn’t record first
45
What is a bona fide purchaser?
One who takes property for value | Without notice of prior interest
46
Do recording acts protect donees?
No, they don’t take for value
47
Who do recording acts protect?
Bfps | Subsequent grantees
48
What instruments do recording acts apply to?
``` Conveyances Easements Mortgages Life estates Restrictive covenants ``` Mr. Cel
49
What are the three types of notice of a prior interest?
Actual notice Record notice Inquiry notice
50
What is inquiry notice?
Purchaser is property is in possession of facts that would lead a reasonable person to make a further inquiry
51
What is estoppel by deed?
One purporting to own property conveys interest, later obtains interest, cannot dent validity of that conveyance
52
What is the shelter doctrine?
One who takes property from a bfp will stand in the shoes of the bfp and will prevail against any entity against which the transferor-bfp would have prevailed
53
What is fee simple absolute?
A freehold estate that conveys absolute ownership
54
What is fee tail?
Allows landowner to ensure real property remains within family
55
What is fee simple defeasible?
Allows property to be held/conveyed to another subject to a stated limitation
56
What are the stated limitations under fee simple defeasible?
Fee simple determinable Fee simple subject to condition subsequent Fee simple subject to executory limitation
57
What is fee simple determinable?
A type of fee simple defeasible that: Automatically terminates a possessory interest in land at the occurrence of a specified event Grantor retains possibility of reverter Created by words of duration
58
What is fee simple subject to condition subsequent?
A type of fee simple defeasible which can terminate the possession of an estate at the occurrence of a stated event, but not automatically Grantor retains right of reentry
59
What is fee simple subject to executory limitation?
Automatically terminated a preceding estate at the occurrence of a stated event, but estate passes to third party rather than revert to grantor Third party holds future interest
60
What is a life estate per autre vie?
A life estate that lasts for lifetime of third party
61
May a life estate be defeasible?
Yes
62
May a holder of a life estate convey his interest?
Yes, but not more than what he holds
63
What duty does the holder of a life estate have?
Not to commit waste on the land
64
What language establishes a fee tail?
To “a” and the heirs of her body
65
Modernly, what does an attempt to create a fee tail establish?
Fee simple absolute
66
What are the characteristics of fee simple absolute?
``` Absolute ownership Infinite duration Freely divisible Freely descendable Freely alienable ```
67
Does a living person have heirs?
No, just potential heirs
68
Historically, what was the effect of a fee tail?
Title passed by operation of law to blood descendants upon death
69
What is a defeasible fee?
An interest in real property that has the possibility of being taken away
70
What language indicates a fee simple determinable?
So long as Until During Provided that
71
What is the effect of a violation of a fee simple determinable?
Automatic reversion to the grantor
72
Where there is a fee simple subject to condition subsequent, what happens when the condition occurs?
Nothing until the grantor exercises her right of reentry
73
How do courts generally interpret defeasible fees?
Disfavored, policy against restraints on alienation. Require clear durational language.
74
What is the effect of absolute restraints on alienation?
Void and unenforceable
75
What are the rights of a life tenant?
Ordinary use and profits of the land
76
What are the duties of a life tenant?
Duty not to commit waste
77
When may a life tenant exploit land?
Where exploitation was prior use of land Reasonable repairs and maintenance Only suitable use of land Open mines Express authorization
78
What’s the difference between fee simple determinable and fee simple subject to condition subsequent?
Fee simple determinable = automatic reverter Fee simple subject to condition subsequent = right of reentry
79
What does a failed attempt at an easement create?
A license
80
Whose interests are being divested in a springing executory estate?
The grantor
81
Whose interests are being divested in a shifting executory estate?
The transferee
82
Do joint tenants have the right of survivorship?
Yes
83
What is a tenancy in common?
A concurrent estate where each co-tenant retains an undivided interest in the whole property.
84
What is a joint tenancy?
A concurrent estate where each tenant owns an undivided interest in the whole property with right of survivorship.
85
How is joint tenancy created?
With unity in time, title, interest, possession
86
What is the effect of an oral easement?
Unenforceable, creates a freely revokable license
87
What is required for a covenant burden to run with the land?
``` Writing Intent Touch and concern land Horizontal privity Vertical privity Notice ``` Witch van
88
What is a reversion?
A future interest retained by the grantor when he transfers less than a fee interest Transferable, devisable and descendable
89
When is a remainder vested?
No condition precedent Will be received by ascertainable person
90
What is a vested remainder subject to open
Made to a class One ascertainable member Others may join later Subject to rap
91
What kind of language for - fee simple determinable - fee simple subject to condition subsequent
Durational | Conditional
92
What is a remainder?
An interest created in a third party which follows naturally the termination of a proceeding estate
93
What is permissive waste?
Damage to the property by failure to take reasonable steps to protect it. Ex. Not putting up hurricane shutters
94
What’s the difference between ameliorative waste at common law and at modern law?
At common law couldn’t improve property and liable to restore land to original condition; at modern law, can improve property if not impacting market value and permitted by owner or if justified by a change in the neighborhood.
95
What is the difference between a vested remainderman’s and a contingent remainderman’s right to sue?
Vested can sue for injunction and damages, contingent can only sue for injunction
96
When is a total restraint on alienation permissible?
If it’s on less than a fee and is reasonable
97
What is the common law rule against perpetuities?
No interest is good unless it must best within 21 years in some life in being at the creation of the instrument.
98
When does the rule against perpetuities apply?
Three future interests: Executory interest Contingent remainder Vested remainder subject to open
99
A concurrent estate under modern majority rule is that a conveyance to two or more people is presumed to be...
A tic | Unless stated right of survivorship specifically
100
What four unities for joint tenancy?
Time Title Interest Possession Modernly, just interest and possession.
101
Which unities does tic require?
Possession
102
What happens if a JT mortgages his interest?
JT not severed - Lein Theory | JT seceded - title theory
103
What are common defects to title?
Mortgage Adverse possession Zoning violation Easement
104
What are the requirements of a valid deed?
Id parties Intent to transfer Id property Signature of grantee
105
Who is a bona fide purchaser of land?
Pays value | Doesn’t know about other claim
106
In a notice jurisdiction, how does a subsequent grantee win ownership of property?
Be a bfp | Not have notice of prior grant
107
In a race-notice jurisdiction, how does a subsequent grantee win?
Be a bfp | Record first
108
What is estoppel by deed?
Someone conveys property they don’t have, later acquire, can’t deny title
109
What is the order of payment from proceeds from a foreclosure sale?
Pay cost of sale | Pay debt
110
What is the statutory right of redemption where there is a foreclosure sale?
Debtor can buy property from whoever bought it at foreclosure for the price they bought it at the foreclosure sale
111
What’s the difference between taking a property subject to mortgage and assuming the mortgage?
If mortgage assumed, grantee personally liable on it If subject to mortgage, debt is on the land
112
What is required for an easement by conveyance?
Previous common ownership of dominant and servient estate Prior use/quasi easement Reasonable necessity
113
What happens when an easement is surcharged?
Overused, servient estate can sue to enjoin or seek damages from dominant estate
114
How is an easement terminated?
1. Merger 2. Abandonment = lack of use + word/act indicating intent to abandon 3. Written release - per sof 4. Detrimentally relying on abandonment 5. Attempt at severance. Wadma
115
What happens to an easement when the servient estate is sold to a bona fide purchaser without notice?
Easement terminates
116
What is a profit right to a property?
Can enter and take something off someone’s land (minerals, water) Can only be created expressly or by prescription
117
What is a license interest?
Personal right, not land interest Can be oral Freely revocable
118
What is the difference between a breach of a covenant v. an equitable servitude?
Covenant breach = damages | Equitable servitude breach = injunction
119
What is the riparian view of water rights?
If you’re using a reasonable amount, not liable for causing lower users to suffer
120
When is the sale of crops a sale of goods and when is it a sale of real property?
If seller severs, sale of goods | I’d buyer severs, sale of land
121
Can a lease be oral?
Yes if for less than one year
122
What is a periodic tenancy?
Self-renewing tenancy Created by words or implication Holdover tenant; indefinite term Must give notice of intent to terminate.
123
How much notice must be given to end a periodic tenancy?
Equal to the rental period up to 6 months
124
What factor determines whether a holdover tenant is a periodic tenant or a tenant at sufference?
Whether the landlord accepts rent
125
What does a tenant at sufferance owe?
Reasonable rental value of property
126
What is a partial eviction by a landlord?
Landlord puts stuff on tenant’s property preventing tenant from full use of property. Excuses tenant from paying any rent.
127
What is the difference between an equitable servitude and a covenant?
Equitable servitudes have no privity requirement and are enforced in equitable relief only
128
How is an implied equitable servitude established?
1. Original owner intended a common plan or scheme | 2. Purchaser has notice of scheme