Real Property MBE Flashcards

Question

Assignment and Sublease

Answer 1

assignment is complete transfer of T's remaining lease term. Assignment T liable to L. sublease T is not. OG T liable for original covenants unless novation. When L assignment and you pay rent, that's attornment. Assignment generally can't be limited (even if lease says so) but can term for breach and recover damages. L can withhold permission to grant assignment or sublease only on reasonable grounds in relationship to the property being leased.

Answer 2

Rep both seller and buyer, prohibited in most jx

Answer 3

SOF applies. Must be in writing, signed by the party to be charged, and contain all the essential terms (parties, prop, description, terms of price/payment). Deeds don't need to satisfy SOF but have reqs still. Exceptions for part performance, detrimental reliance, and admission. Part performance exception requires two of these three = payment of all or part of purchase price, possession by purchaser, and substantial improvement by purchaser. Options and rights of first refusal need SOF.

Answer 4

Marketable title, free from defects or unreasonable risk of litigation. Time of essence only enforced if part of k. Implies warranty of fitness only for new homes. Duty to disclose defects for all homes (all not readily observable). B must give time to cure title defect. Land sale K obligations merge into deed upon delivery usually.

Answer 5

4 requirements. Continuous/Uninterrupted (thru statutory period, tacking ok if no gapes and non-hostile) Actual (actual exclusive possession that is open and notorious) Hostile (must possess land without owner's permission, maj is objective intent, min considers subjective). Exclusive (possession cannot be shared with true owner). Some jx have gf requirement that you believe prop is unowned or yours.

Answer 6

need ID parties, grantor's sig, words of transfer, and rsbl definite description. Some jx need an attorney to review before k.

Answer 7

Three types of statutes on these. Notice, Race, and race-notice. Notice is purchaser without notice of prior interests records and prevails. BFP doesn't need to record to win over prior interest but does to win over subsequent interest. Race is minority of states. whoever records first prevails. Race-notice requires sub purchaser to take interest without notice of a prior conflicting interest AND be first to record.

Answer 8

Three types of statutes on these. Notice, Race, and race-notice. Notice is purchaser without notice of prior interests records and prevails. BFP doesn't need to record to win over prior interest but does to win over subsequent interest. If BFP and no notice, then you win Race is minority of states. whoever records first prevails. If first, then you win Race-notice requires sub purchaser to take interest without notice of a prior conflicting interest AND be first to record. If BFP and no notice AND first, you win. when these aren't present, first in time, first in right is the rule.

Answer 9

Basically for a real property transfer, need both intent to make a present transfer (delivery) and the grantee must accept the interest.

Answer 10

General Warranty is present covenants (Seisin, right to convey, against encumbrances) and future covenants (quiet enjoyment, warranty to defend, and further assurances). Special Warranty is same as above but only as to defects arising from grantor's time of title. Quitclaim deed is no convents of title.

Answer 11

Notice is considered that the time of conveyance. If actual notice, can't prevail under N or RN recording statute. Inquiry notice is when a reasonable inquiry would have given notice to prior interest. Constructive notice of all prior conveyances that were properly recorded. A wild deed is recorded but it is not recorded as such to give notice, so it doesn't.

Answer 12

interest in RP that serves as security for an obligation. Must satisfy SOF. Mortgagor is the citizen, the mortagagee is the creditor. So under maj lien theory, mortgagor has title and right to possession until foreclosure. Mortgagee has lien and right to land if default,

Answer 13

Deed of Trust, Installment Land K, Absolute Deed, or Conditional Sale and Repurchase

Answer 14

unless creditor agrees, borrower remains liab after transfer. Transferee can assume mortgage. OG mortgagor can be released IF lender impairs OG's right of recourse against transferee by modifying loan terms or releasing transferee of liability. Due-on-sale clause and due-on-encumberance clause can fix these as well. Transferee's liability, can assume OG mortgage.

Answer 15

Lien Theory mortgagee (bank) can't take possession until foreclosure. In title theory, entitled to possession whenever BUT can't take until default (so same thing really, or close). OG gor duty not to commit waste. Equity of redemption where OG can regain title by paying amount owed plus interest before foreclosure sale.

Answer 16

when bank (ee) takes RP when gor defaults. Priority can be fucked up, but generally foreclosure with two or more mortgages terms jr interest and doens't effect sr. First in time, first in right. Effect is gor interest eliminated. Purchaser of RP takes prop free of jr interest subjec to sr.

Answer 17

affirmatively created by parties in writing that satisfies SOF, by grant, or reservation

Answer 18

Easement by Necessity. when prop virtually useless without ben of easement across adjacent prop. Rare, needed common ownership and necessity arising when estate severed. Easement by Implication. similar to above but needs continuous, apparent, and reasonably necessary to dom estate's use/enjoyment.

Answer 19

like AP, continuous, actual, open, and hostile for SOL.

Answer 20

gf, rsbl, detrimental reliance on permission, issued to prevent unjust enrichment.

Answer 21

Prevents owner from using land in specific ways. Expressly created by writing, and usually only for like light, air, support, stream of water.

Answer 22

Appurtenant --> benefit transferred with land automatically. In Gross --> benefits individ or entity, not RP, freely transferable to other parties.

Answer 23

release by writing subject to SOF Merging the properties. Severance (don't get) abandonment --> affirmatively act to show clear intent to abandon right. (intent without conduct or mere non-use not enough).

Answer 24

easement owner has right and duty to maintain the easement. Who is the owner?

Answer 25

easements are usually affirmative rights to use property, whereas covs are usually restrictions on right to use rp or impose obligations on the owners of rp. a cov where you see damages to enforce is a real cov. Real covenants need SOF writing. intent to run implied via TOC or thru explicit language. Burden or benefit must touch and concern the owners of land. Can be negative or affirmative. Notice must be constructive or actual. Notice means without notice, a purchaser is not bound if protected by recording act. notice is a burden only requirement. For the burden to run. touch and concern means person seeking enforcement must establish that benefit or burden affects as owners of land not merely personally. Modern trend is to presume that covs are valid so burden may be reversed. Privity thing here that I don't get but modern is no priv required. Privily is 5th requirement. Horizontal priv is a budren only running req. Vertical priv is for all. I don't really get privity. But the 5 are SOF writing, intent, touch and concern, notice (burden only), and privity.

Answer 26

a cov when you seek an injunction to enforce. in writing. requires intent to run. must touch/concern. need notice to run against purchaser. Does not need privity, which i still don't get. If real cov, then also this, but not vice versa.

Answer 27

intent to create common scheme but no writing required. Negative servitude. notice against whom enforcement is sought. in unction remedy. usually for large tracts of land being broken up.

Answer 28

transfered with RP itself. Notice generally required to enforce against BFP. Term with release, merger, abandonment, estoppel, condemnation.

Answer 29

chattel attached to RP so that it is part of RP in ownership. become part of realty BUT can be removed if seller reserves right to remove, or leased prop can be restored to former condition without damage in rsbl time?

Answer 30

can be void due to lack of authority, irrational or arb (must be rationally related to legit gov't purpose (ROR)). Can challenge in a lot of ways. May be grandfathered in or seek post ordinance non-conforming variance IF unique unnecessary hardship. hardship not self-induced, unique circs on prop causing hardship, and granting variance keep with overall purpose of ordinance, and variance would not result in substantial harm. Don't save you from a cov violation and vice versa. Generally need a comprehensive plan and development must adhere to plan. Grandfathered violation may have to register it. Nonconformity is often ok up to a certain point in time and non-conformity starts with zoning law in effect. Can usually be transferred.

Answer 31

For water, riparian is reasonable use doctrine vs prior appropriation theories. RUD is who borders water, can make rsbl use, and can't be transferred separate. Prior Appropriation is rights determined by priority of beneficial use, subsequent users can't infringe on prior users, and water rights may be separate. Support rights are weird and I don't get them really. Sometimes SL, sometimes just negligent. Lateral support, so if your neighbor's land is undeveloped and you cause his land to collapse, you are SL. If your neighbor's land is developed then you are only liab for negligence in destroying his land IF his development aided the collapse (but for type thing). Owner of land can sell mining rights but mineral rights buyer is SL for failure to support land. Owner of land only liab for negligence? Air rights are can use them as long as it doe snot interfere with another's reasonable use and enjoyment of land.

Answer 32

The HOA section of the outline is very large but that seems a little ridiculous. Not going to read with detail.

Answer 33

Crops, both real and planted, are conveyed with land unless harvested or something like that.

Answer 34

More in torts, but priv nuisance is substantial, unreasonable interference with another individ's use or enjoyment of his prop. substantial if annoying or worse to average person in community and unreasonable if injury caused outweighs the usefulness of D's actions. Pub nuisance is unreasonable interference with health, safety, or prop rights of the community. Remedies can be damages or injunctive relief.

Answer 35

Life tenants have the obligation to pay all ordinary taxes on the land and interest on the mortgage to the extent he receives a financial benefit from the property. When the life tenant occupies the property, his financial benefit is measured by the fair market rental value of the property. When the holder of a future interest pays the taxes because the life tenant fails to do so, the holder can bring an action against the life tenant personally to recover these payments from the life tenant, up to the value of the financial benefit the life tenant received from the property. Because the property in question is not producing income but has a reasonable rental value of $48,000 per year ($4,000 per month), the life tenant is liable to the holder of the remainder interest for the full amount of the taxes paid by the holder of the remainder interest, $10,000, as that amount does not exceed the reasonable rental value

Answer 36

Although grantees who acquire title to property by gift, intestacy, or devise are not protected by the recording act against prior claims, grantors who are protected by the recording act protect (or “shelter”) their grantees who would otherwise be unprotected.

Answer 37

under the “estoppel by deed” doctrine, a grantor who conveys a real property interest by warranty deed before actually owning it is estopped from later denying the effectiveness of his deed. Consequently, when the grantor does acquire ownership of the land, the after-acquired title is transferred automatically to the prior grantee.

Answer 38

Absent contrary language, an implied covenant of marketable title (i.e., a title free from defects) is part of a contract to sell real property. However, under the doctrine of merger, obligations contained in the contract of sale, including the seller’s duty to deliver marketable title, are merged into the deed and cannot thereafter be enforced through a breach of contract action. Consequently, the speculator cannot sue the original owner for a breach of the covenant to deliver marketable title.

Answer 39

Under the doctrine of equitable conversion, equitable title to real property passes to the buyer upon entering the contract, even though the seller retains legal title. Most jurisdictions place the risk of loss between the contract and the closing on the buyer. However, if the seller has casualty insurance on the property, the seller must give the buyer credit in the amount of insurance proceeds against the purchase price.

Answer 40

The issue is whether the tenant can raise the excuse of constructive eviction. When a landlord substantially interferes with the tenant’s use and enjoyment of the property by breaching a duty to the tenant, the tenant’s obligation to pay rent may be excused under the theory of constructive eviction. In order to end a lease before the end of its term by constructive eviction, the landlord must have breached a duty, which caused the loss of the substantial use and enjoyment of the premises, the tenant must give the landlord notice of the problem and reasonable opportunity to cure, and the tenant must vacate the property within a reasonable period of time. Not every interference with the use and enjoyment of the premises amounts to a constructive eviction. Temporary or de minimis acts which do not amount to a permanent expulsion generally do not amount to constructive eviction.

Answer 41

The issue is when the lease was terminated. Termination of a lease occurs automatically upon the expiration of the term. Termination may also occur before the expiration of the term when the tenant surrenders the leasehold, and the landlord accepts the return of the leasehold. When a tenant abandons the leasehold without justification, the landlord may treat the abandonment as an offer of surrender and could accept that surrender by retaking the premises.

Answer 42

When a tenant abandons the leasehold, the landlord may treat the abandonment as an offer of surrender and accept such surrender, or the landlord may attempt to re-rent the premises on the tenant’s behalf and hold the tenant liable for any deficiency. The majority of jurisdictions now require a landlord to mitigate damages by attempting to re-rent the premises in the event that the tenant abandons the property and breaches of the lease. Accordingly, the landlord has a responsibility to make a good-faith attempt to re-rent the property. Because the landlord did not take any steps to re-rent the property, he is likely not entitled to any unpaid rent.

Answer 43

A public nuisance is an unreasonable interference with the health, safety, or property rights of the community. Although the smells emanating from the project site are adversely affecting those who live in the area, to recover for a public nuisance, a plaintiff must show that he suffered a different kind of harm than that suffered by the rest of the community.

Answer 44

A tenancy at will is a leasehold estate that may be terminated by either the landlord or the tenant. If only one party is expressly given the right to terminate the leasehold, the lease may, when taking into account all other circumstances, be unconscionable. In such a case, either party is given the ability to terminate the lease. In this case, the landlord—being the owner of the only commercial shopping center in town—had such superior bargaining power that enforcing the terms of the lease against the tenant would be unconscionable. Accordingly, both parties had the right to terminate this lease. Answer choice A is incorrect because an at-will tenancy terminable by only one party is often unconscionable, and if so, the tenant’s right of termination exists by implication.

Answer 45

The devisee of real property is entitled under the common-law doctrine of exoneration of liens to have any outstanding balance of a mortgage or other encumbrance on the property to be paid from the remaining assets of the testator's estate. Note that today, most jurisdictions have abolished this doctrine and property passes subject to any encumbrance.

Answer 46

Fructus naturales are wild crops that are not cultivated; such crops are considered real property and pass automatically with the land. Here, title to the land, including the unharvested berries, reverted to the remainderman at the time of the widow’s death. Accordingly, the remainderman has the sole right to the berries. Had the berries been fructus industriales, that is, had the widow purposely planted and cultivated the berries, then they would have been considered personalty.

Answer 47

Under the doctrine of ademption, the transfer of property by a testator subsequent to the execution of a will removes the property from his estate and the devise of the property is adeemed.

Answer 48

Although it is often stated that a deed must be delivered in order for a real property interest to pass (i.e., a delivery requirement), the term "delivery" is used as shorthand for the existence of the necessary grantor intent. Physical transfer of a deed is not required and is not conclusive evidence of the grantor's intent. The execution and recording of a deed creates a rebuttable presumption that the deed is to be presently operative.

Answer 49

Generally, the foreclosure of a senior mortgage by a sale eliminates any junior mortgages. However, when a junior mortgagee is not given notice of the foreclosure proceedings, the junior mortgage is not eliminated.

Answer 50

Generally, an acceleration clause (due-on-sale clause) in a mortgage loan document is enforceable. However, federal law provides a residential real property exemption, exempting certain transfers of residential real property from the requirement that states give effect to an acceleration clause. Among the exempt transfers is a transfer by the mortgagor-borrower to her living trust. Consequently, it is unlikely that the court will give effect to the acceleration clause in this situation and find the loan in default due to the transfer of ownership from the homeowner to her living trust.

Answer 51

Generally, an acceleration clause (due-on-sale clause) in a mortgage loan document is enforceable. However, federal law provides a residential real property exemption exempting certain transfers of residential real property from the requirement that states give effect to an acceleration clause. Among the exempt transfers are a transfer of property to a spouse or child and a transfer of property to an ex-spouse due to a divorce. Consequently, it is unlikely that a court would find that either of the ownership changes effected by the homeowner will allow enforcement of the acceleration clause.

Answer 52

The cousin is entitled to the rents received by the sister from the third party in proportion to his ownership interest in the farm.

Answer 53

If the promissory note is transferred without the mortgage, the mortgage is treated as having been transferred as well under the principle that the mortgage follows the note.

Answer 54

Upon execution of the land sales contract, the couple became the equitable owners of the house; the owner merely held legal title which he was required to convey at closing to the couple. Consequently, the creditor's judgment lien, which was obtained after the contract was executed, was not enforceable against the house because the house no longer belonged to the owner.

Answer 55

If the structure was constructed before the rights were acquired, the owner of the mining rights is strictly liable for the failure to provide subjacent support. If the structure was constructed after the rights were acquired, as is the case here, the owner of mining rights is liable for the failure to provide subjacent support only if the owner failure to exercise reasonable care in removing the minerals

Answer 56

A deed to a nonexistent grantee is void as to the nonexistent grantee. Therefore, the purported conveyance of a one-half interest in the real property to the buyer’s brother failed, and the original owner retains this one-half interest. The conveyance of a one-half interest in the property to the buyer is unaffected.

Answer 57

A buyer is entitled to specific performance when a seller breaches a contract to sell a real property interest because the buyer’s remedy at law (i.e., damages) is considered inadequate due to the unique nature of land. In addition, when the buyer seeks specific performance with respect to property for which there is a title defect (e.g., an encumbrance), the buyer may also obtain an abatement in the purchase price to compensate the buyer for the defect. Here, because the seller breached the contract, the buyer is entitled to specific performance, if it wants the property despite the defect

Answer 58

Most jurisdictions have created an implied warranty of fitness or suitability for the purchase of newly constructed homes. Under this warranty, the seller asserts that he used adequate materials and workmanship for the residence. The warranty generally covers latent construction defects, including any problems that do not manifest themselves until after the sale. The buyer has a duty to reasonably inspect the residence but is not required to employ an expert home inspector. Generally, a suit for breach of the implied warranty may be brought against builders, developers, and contractors within a reasonable time after discovery of the defect. A majority of jurisdictions permit both the initial homeowner-purchaser and subsequent purchasers who do not contract directly with the commercial developer to recover damages.

Answer 59

The marketable title requirement, which is implied in a real property contract unless it is specifically disclaimed, is sometimes characterized as one that protects the purchaser of real estate from buying a lawsuit.

Answer 60

The primary issue in this case is the party upon whom the risk of loss falls. Most states, following the logic of the doctrine of equitable conversion, place the risk of loss during the time between the execution of the contract and the closing on the buyer, regardless of whether the buyer takes possession of the property. A minority of jurisdictions have adopted the Uniform Vendor and Purchaser Risk Act. Under this act, the risk of loss falls upon the owner because the buyer did not have possession of the warehouse at the time of the destruction of the warehouse

Answer 61

The driver granted the bank a mortgage prior to the rendering of the judgment against him. Consequently, the bank’s mortgage interest has priority over the judgment lien subsequently filed by the pedestrian. Even in a jurisdiction that extends the protection of the recording act to a judgment lien, the bank’s interest is not subject to challenge under the applicable race-notice statute: the bank filed first and, by virtue of the filing, the pedestrian is deemed to have constructive notice of the bank’s interest.

Answer 62

Condemnation is the taking of land for public use or because it is unfit for use. The right of a tenant upon condemnation depends upon whether the condemnation is partial or complete. If the condemnation is partial, meaning only a portion of the leased property is taken, the tenant must continue to pay rent. The tenant is entitled to compensation for the portion that was taken If the condemnation of a leased property is partial, meaning that only a portion of the leased property is condemned or the property is temporarily condemned, then the tenant must continue to make his rent payments. The tenant is entitled to compensation for the portion of the property that was condemned or the time that he was dispossessed from the leased property

Answer 63

A non-breaching seller may collect liquidated money damages for costs relating to reselling the property, as long as the seller actually suffered a loss and the liquidated damages are reasonable.

Answer 64

For a foreclosure sale to eliminate a junior interest, the holder of the junior interest must be made a party to the foreclosure action.

Answer 65

If the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the sale of the dominant parcel, the parties intended the easement to continue if the prior use was continuous, apparent (open and obvious), and reasonably necessary to the dominant land’s use and enjoyment.`

Answer 66

Rainwater is classified as surface water or more precisely as diffused surface water. As such, although there are restrictions on the ability of a landowner to prevent such water from entering his property or altering the flow of such water off his property, a landowner may generally impound such water on her property and may make whatever reasonable use she wishes of that water.

Answer 67

Unless there is an agreement to the contrary, one co-tenant may not bind another co-tenant to a boundary line agreement. In this case, because the elder brother did not enter into the agreement made by his younger brother, the court should recognize the original boundary as the legal boundary between the two farms.

Answer 68

Unless there is an agreement to the contrary, one co-tenant may not bind another co-tenant to a boundary line agreement. In this case, because the elder brother did not enter into the agreement made by his younger brother, the court should recognize the original boundary as the legal boundary between the two farms.

Answer 69

the restraint in this instance is permissible because it is on a beneficial interest in the property and is only temporary.

Answer 70

If an original mortgagee loans an additional amount to a mortgagor that is optional rather than obligatory such amount may not enjoy priority over a second mortgage if the original mortgagee has notice of the second mortgage. This is true even though the mortgage by its terms serves as security for future advances.

Answer 71

When the man delivered the deed to his attorney with instructions to deliver it to the nephew on his death, he was attempting to create a valid death escrow. To create a valid death escrow, however, the man had to place the deed beyond his control, reserving no power over it once it had been given to the attorney. Because the man instructed the attorney to return the deed to the man if he asked, the man did not place the deed beyond his control, and no death escrow was created.

Answer 72

Generally, upon default of an obligation, a mortgagee may foreclose on any and all parcels of real property of the mortgagor that serve as security for the obligation. If there are junior security interests with respect to some of those parcels of real property, however, those junior interests may petition the court for protection of their interests under the doctrine of marshaling of assets. Under this doctrine, the holder of a senior security interest must first proceed against the property on which there are not any junior security interests, and then against the property on which the junior interest was more recently created, before proceeding against property on which the junior interest was more remotely created.

Answer 73

When the seller of real property pursuant to a contract dies before the conveyance of the property, the buyer can compel the executor of the seller’s estate to honor the contract and transfer the property to the buyer. At common law, the proceeds from the sale of the property under contract were treated as personal property that passed to the devisee of the seller-decedent’s personal property. The devise of the real property itself was treated as having been adeemed. In a jurisdiction that has adopted an anti-ademption statute, however, the devisee of the seller-decedent’s real property is entitled to the sale proceeds

Answer 74

Until property that is subject to a mortgage or a deed of trust is foreclosed upon by sale, the borrower has a right to redeem the property by satisfying the obligation for which the property serves as security. While this right may be waived after the borrower has defaulted, the terms of the mortgage or deed of trust cannot waive this right as a matter of course. Consequently, because the clause in the deed of trust in question is invalid and the court should permit the auto mechanic to regain title to the garage by paying the loan obligation in full.

Answer 75

Although the lender's policy of title insurance ended when the loan was repaid, an owner's policy of title insurance continues to protect the owner if the owner (here, the buyer) is ever successfully sued on a title covenant in a future conveyance.

Answer 76

he individual granted the corporation an easement appurtenant because the easement was granted to the corporation as owner of the adjacent property. As such, the easement cannot be used for the benefit of property other than the dominant estate. Here, the corporation intended to use the road for the benefit of not only property owned at the time of the granting of the easement (i.e., the dominant estate), but also property subsequently acquired