Real Propery Flashcards
1
Q
Buyer purchasers land and takes out a $400,000 mortgage with a bank. After 3 years, the buyer partitions off and sells the land to a neighbor. After 2 years, the buyer sells the remaining land to an investor who takes subject to the mortgage. The bank never receives any further payments. Who can the bank sue?
A
Buyer only. Bank may foreclose and hold buyer personally liable. Cannot sue the neighbor or investor. Subject to the mortgage the grantee is not liable. If silent, then it is subject to the mortgage.
If one assumes the mortgage, then grantee is liable.
2
Q
Investor purchases land from owner for $40,000 by general warranty deed. Later the investor finds another person with a claim of adverse possession. Investor sues owner to recover damages. What result?
A
Investor. Breach of covenant of warranty. Grantor agrees to defend grantee against claims of title by third parties.
3
Q
Investor purchases land from owner for $40,000 by general warranty deed. Later the investor finds another person with a claim of adverse possession. Investor sues owner to recover damages for a breach of covenant against encumbrances. What result?
A
Owner. Covenants against encumbrances are against the title and expire at closing. (easements, mortgages, liens).
4
Q
B and A enter into installment land sale contract in which B will make 100 monthly payments and as part of the agreement that A will promise to convey good and marketable title to B when all the payments are made. After making 12, B learns there is an outstanding mortgage and seeks to rescission. A sues B for breach by not paying. Result.
A
A, because he had until closing to cure the defect. Installment land contract, the vendor’s duty is to present marketable title at the time of the last payment.
5
Q
Bank forecloses on property of rancher. At the foreclosure sale, property is sold to a bidder, who took below the market price. After the sale, the rancher comes into a large amount of money and seeks to reacquire the property. What is the rancher’s best argument?
A
Statutory right of redemption (after foreclosure). Redemption nullifies the foreclosure sale.
6
Q
B owed land and sought to borrow $40,000 from a bank and B executed a promissory note that was secured by a mortgage on the land. B also executed a warranty deed, in absolute form, to be held by escrow agent. Escrow agreement stated that if B defaults, escrow agent will deliver deed to bank. B defaults, but seeks to re-acquire property prior to a foreclosure sell. Result?
A
Judgement for B, because escrow agreement and deed absolute should not preclude right to redeem. Mortgagee cannot disguise a mortgage to avoid equitable right of redemption.
Once a mortgage always a mortgage.
7
Q
Father wills a house to daughter and remaining estate to son. Father dies with $100,000 mortgage on house. Daughter uses money from the father’s estate to pay off the mortgage. Son objects and files suit to prevent daughter from interference with expectancy interest. Result?
A
Son has no interest, daughter is entitled to take money from estate to paid off mortgage because she is specifically devised in the will (exoneration)
Modern trend may treat son as creditor to cover value of money taken from father’s estate.
8
Q
A mortgage contains a prepayment clause that says mortgagee is entitled to increase the interest rate and collect 20% on the unpaid balance. Is the clause enforceable?
A
Yes enforceable. Prepayment clauses are not an lawful restraint against alienation or does not clog the equity of redemption.
9
Q
There is an uncertain boundary between two pieces of land. One owner asked the other to construct a fence. Both parties agreed to the location of the line. Adverse possession is 15 years. Both parties sell the land after 15 years and the new owners discover the fence was positioned incorrectly. How should court rule?
A
Fence line controls, because both parties agreed to the fence line. Adverse possession does not matter.
10
Q
Seller contracted to sell a building to a buyer for $10,000 to close on 10-18. The day before, the seller was injured and unable to attend closing. On 10-24, the seller recovers and seeks to close, but buyer refuses to pay or accept the deed. Seller seeks specific performance. Who prevails?
A
Seller, because time is not ordinarily of the essence in a real property sales contract. If late party tenders performance within reasonable time, and nonbreaching refuses to perform, then specific performance is available.
11
Q
Buyer and seller enter into contract regarding a commercial building. The buyer gives a $125,000 deposit and the remainder at closing. Prior to closing, the city rezones the land as residential. Buyer refuses to honor contract and seller seeks specific performance on grounds of equitable conversion. If judgment is for the buyer, it is because?
A
Seller would be unjustly enriched. Doctrine of equitable conversion shifts risk of loss to buyer, who is the equitable owner of the land. Legal title remains with owner. Not granted when intervening forces would make it unduly harsh on one party.
12
Q
After a buyer and seller sign a written agreement to transfer land, who bears the risk if the property is destroyed before closing?
A
Buyer under equitable conversion doctrine. Seller retains legal title.
13
Q
After a buyer and seller sign a written agreement to transfer land, who is entitled to possession until closing?
A
Seller. Seller has legal title and possession follows legal title.
14
Q
After a buyer and seller sign a written agreement to transfer land, the property is destroyed before closing. The seller has causally insurance. Does the buyer have to pay the full contract price?
A
No, seller must credit insurance proceeds against purchase price in contract. Buyer is the owner of the equitable title and bears the risk.
15
Q
After a buyer and seller sign a written agreement to transfer land, and the seller dies before closing. Can the buyer demand title at closing from seller’s heirs?
A
Yes. Doctrine of equitable conversion, seller’s interest is personal property. At death, the legal title passes to heirs but they must transfer to buyer at closing.
16
Q
After a buyer and seller sign a written agreement to transfer land, and the buyer dies before closing. Can the buyer’s heirs demand conveyance at closing from seller?
A
Yes. Buyer’s interest passes as real property.
17
Q
A buyer and seller have a written contract for the sale of land. At closing, buyer discovers that seller has an outstanding mortgage. Seller intends to use proceed of sale to satisfy mortgage. Does this convey marketable title to the buyer?
A
Yes. Seller has right to satisfy mortgage or lien at closing with the proceeds of the sale.
18
Q
After closing, is the seller still liable on an implied covenant of marketability?
A
No. Once closing occurs, the deed transfers hands and seller is no longer liable on implied covenant of marketability.
19
Q
In a deed there is a description of the property and is signed by grantor. The name of grantee is blank. Is deed valid?
A
Yes, courts presume person taking delivery has authority to fill in name of grantee.
20
Q
What is required for a valid inter vivos gift?
A
1) donative intent
2) delivery
3) acceptance
21
Q
An owner of land handed an agent a deed conveying the land to his niece and said give it to my niece. The niece was in Africa. Agent recorded deed. Owner died and will transferred land to daughter. In suit to quiet title, if the court rules in favor of the niece it is because?
A
Delivery of the deed was effective when handled to the agent. Grantor’s intention to make a deed presently effective even though delivery is postponed.
22
Q
An owner of land handed an agent a deed conveying the land to his niece and with written instructions to give it to my niece upon payment of $50,000. Is parol evidence admissible to show that delivery is conditional?
A
Yes. Different results if grantor gives the deed directly to grantee.
23
Q
Owner of land executes deed to son and keeps deed in desk. Owner dies and will specifically devises land to daughter. In an action to quiet title will the son prevail?
A
No. Grantor executed a deed but failed to delivery during lifetime and no title passes.
24
Q
An owner of land handed an agent a deed conveying the land to his niece and with written instructions to give it to my niece upon payment of $50,000. Can the owner revoke?
A
Yes, if the condition is not met and there is no enforceable written contract to convey.
25
Owner of land conveys to man on 1-4. Man does not record. Owner conveys land to woman on 1-10 for valuable consideration and the woman has no notice of the conveyance to the man. Who prevails in a notice jurisdiction?
Woman. She is a bona fide purchaser, one who takes for value and no notice of prior instrument prevails over grantee who fails to record.
26
Owner of land conveys to man on 1-4. Man does not record. Owner conveys land to woman on 1-10 for valuable consideration and the woman has no notice of the conveyance to the man. Man records on 1-20. Who prevails in a notice jurisdiction?
Woman. Subsequent recording after woman took as a bona fide purchaser is irrelevant. Woman had no notice when she took the deed.
27
Owner of land conveys to man on 1-4. Man does not record. Owner conveys land to woman on 1-10 for valuable consideration and the woman has no notice of the conveyance to the man. Woman fails to record. Who prevails in a notice jurisdiction?
Woman. Under notice statute subsequent bona fide purchaser is protected regardless of whether they record.
28
What type of recording jurisdiction is:
"No conveyance of mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded."
Notice jurisdiction. Subsequent bona fide purchaser (value, without notice) prevails.
29
What type of recording jurisdiction is:
"No conveyance of mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded"
Race. Grantee who first records prevails.
30
What type of recording jurisdiction is:
"No conveyance of mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded"
Race-notice. Subsequent bona fide purchaser (value, without notice) who records first prevails.
31
Owner of land conveys to man on 1-4. Man does not record. Owner conveys land to woman on 1-10 for valuable consideration and the woman has no notice of the conveyance to the man. Man records on 1-20. Woman records on 1-22. Who prevails in a race-notice jurisdiction?
Man because he recorded first. Subsequent bona fide purchaser prevails if they recorded first.
32
A man conveys an interest in land by warranty deed to his son. The man does not own. Prior to the man dying, he acquires the land. Can the son prevail if the will leaves the land to the man's daughter?
Yes. Estoppel by deed. Subsequent acquisition of land will automatically inure to the benefit of grantee.
33
A man conveys an interest in land by quitclaim deed to his son. The man does not own. Prior to the man dying, he acquires the land. Can the son prevail if the will leaves the land to the man's daughter?
Daughter, quitclaim deed does not automatically inure to benefit of grantee.
34
A man conveys an interest in land by warranty deed to his son. The man does not own. After he acquires the land, can transfers the land to an investor for value who has no notice of deed to son. Can the son prevail over investor?
No. Investor is a subsequent bona fide purchaser.
35
Landlord leases apartment to student for a term of 4 years and lease is not assignable. After two years, student wanted to travel and landlord agreed to waive the assignment restriction "this one time only because of the circumstances." Student assigns lease to a professor. One year later the professor, without asking, assigns lease to a couple. The couple defaults on rent. Who can the landlord recover against?
Student and professor are jointly and severally liable.
Generally a covenant against assignment once waived is unenforceable as to subsequent assignments, but it can be restricted by express statements.
36
Landlord leases apartment to student for a term of 4 years and lease is not assignable. After two years, student wanted to travel and landlord agreed to waive the assignment restriction "this one time only because of the circumstances." Student assigns lease to a professor. One year later the professor, without asking, assigns lease to a couple. The couple defaults on rent. Can the landlord only recover against the student?
No. Can recover against both student and professor who are jointly and severally liable.
37
A man wanted to keep a house in the family and included a clause in the will "I give my house to my son, but if it tries to sell it while he is alive, then to my grandson." What is the son's interest?
Fee simple. Attempt on restraint on alienation is void.
Grandson has no interest.
38
A man wanted to keep a house in the family and included a clause in the will "I give my house to my son, but if it tries to sell it while he is alive, then to my grandson." Does the grandson have an executory interest or a contingent remainder?
Neither. Son took in fee simple and reminders cannot follow a fee simple.
39
Owner of land conveys to a friend for life and then to my daughter. Friend transfers interest to neighbor. Who is liable to pay the county taxes on the land?
Neighbor. Life tenant is responsible for paying taxes on property.
Neighbor has to pay for the lifetime of friend.
40
Owner conveys by warranty deed land to an animal shelter so long as the land is used for an animal shelter. Owner dies intestate and only heir is her spouse. Spouse conveys by quitclaim deed to a daughter. Animal shelter is closed due to lack of funding and seeks to transfer land to another organization. Who holds title if all deeds where promptly recorded?
Daughter, because land is no longer used for its intended purpose.
Fee simple determinable terminates automatically upon the condition and goes back to the grantor. Grantor has a possibility of reverter which is transferable, devisable and descendible.
41
Owner transfers land to sister for life, then to the children of brother. Brother has one daughter at time of conveyance. A year later, brother has son. Owner dies. Daughter died a month later, leaving estate to husband. Brother has another daughter. Sister dies. Brother has another son. Who owns the land?
```
Husband, son, and other daughter. The other son does not because the class closed upon sister's death.
Vested reminders are freely fully devisable and descendible.
```
42
Husband and wife hold land as joint tenants with right of survivorship. Both decided to convey a 10% interest to their daughter. A year later, both decided to convey another 10% interest to their daughter's spouse. Who owns the land?
Husband and wife hold a 80% interest as joint tenants. Joint tenancy is remains, but tenancy by the entire is destroyed.
Daughter and spouse hold a 20% interest as tenants in common. Cannot be joint tenants since the four unities are not present (time, title, interest, possession)
43
Can abandonment by one spouse in a tenancy by the entirety entitle the other spouse to a partion?
No. Tenancy by the entirety can be severed by death or divorce, of execution of joint creditor.
44
A couple who never marries but holds themselves out as married purchase a home with the deed stating that they are husband and wife. The jurisdiction does not recognize common law marriage. Can one spouse seek a partition of the house?
Yes. No tenancy by entirety is created without marriage. No marriage, then tenancy by common. A joint tenancy requires express language.
45
Owner rents a furnished cottage to a couple for a month vacation. While in the cottage, the wife injures leg due to a rotten step in the staircase. Owner did not know of the rotten step, but a reasonable inspection would reveal the problem. Is the owner liable to the wife for injuries?
Yes. Landlords are liable if they know or should have known about a defect - requires a furnished property and a short-term lease.
46
Landlord leases apartment to renter for two years at $850 per month. Before the term is up, landlord tells renter that rent is going up to $950. Renter says nothing, and remains in possession. Renter sends check for $850. Is this the correct rent?
No. holdover tenant who was told of higher rent before term end must pay new rent. The period is month-to-month.
47
Landlord leases apartment to renter for two years at $850 per month. Before the term is up, landlord wants to raise rent to $950, but does not tell renter. Renter remains in possession. Renter sends check for $850. Is this the correct rent?
Yes. holdover tenant is at the same rent unless told of the new rent. Period is for month to month.
48
Owner had two adjacent parcels of land. Owner conveyed one parcel with an express easement to son. When owner died, the will conveyed the other parcel to son for life, then to daughter. Five years later, son conveys to investor both parcels in fee simple. After son's death, daughter seeks to enjoin investor from using easement. Was there a merger of the easement?
No merger because the party (son) needs to have the same ownership interest in both parcels of land.
49
Two adjacent landowners execute reciprocal easements for a common drive-way. One landowner decided not to use the easement for 4 years. That landowner sold the property to a buyer. Buyer did not use the easement for 3 years. Original landowner starts parking cars on driving. Period for adverse possession is 6 years. Who will prevail in a suit?
Buyer, because nonuse is insufficient to cause abandonment of the easement. Nonuse is never abandoned of easement, need act showing intent to abandon.
50
When does the period for easement by prescription begin? Must the person seeking to obtain an easement by prescription have exclusive ownership?
Runs when the person begins use. The other owner does not need to know of the use. Use does not have to be exclusive. Exclusive is only required for adverse possession.
51
Owner of adjacent properties conveys by deed the north property to a buyer with the language "grantee and his heirs/assigns shall not plant any shrubbery within 10 feet of boundary line with southern property." Buyer records. Buyer conveys by deed to an investor, but the language is not included in second deed. Can owner prevent investor from planting shrubbery near the boundary line?
Yes, owner will prevail because it is covenant running with the land. Intended to run with the land (grantee's heirs/assigns) and touches and concerns land. Constructive notice because deed was recorded.
52
Owner conveys to buyer who does not record. Owner conveys to investor who takes for value and without notice. Investor does not record. Buyer records. Investor conveys to developer, who has notice of conveyance to buyer. Who prevails in a notice jurisdiction?
Developer. Shelter-rule, one who takes from a bona fide purchaser will prevail against any interest that the transferor-BFP would prevail against. Investor would prevail against buyer, thus developer is sheltered by investor, even though they have actual and constructive knowledge.
53
Buyer finances house purchase with $100,000 mortgage with bank. Buyer takes a $5,000 loan from lending agency for a trip, secured by the house. Year later buyer borrows $40,000 from an equity company to make improvements to house. All properly recorded. Buyer defaults and is only able to bank's mortgage. Lending agency forecloses and investor purchases property. What does are the investor's obligations?
Only subject to senior mortgages (bank not equity company). Foreclosure wipes out all junior interests.
54
In a title theory, may a mortgagee take possession of the property immediately upon default by mortgagor?
Yes (minority of states - followed in VA) - legal title is in the mortgagee until the mortgage is satisfied or foreclosed.
Intermediate theory - title passes upon default to mortgagee
Majority rule - lien theory - mortgagee holds a security interest and cannot take possession.
55
When a senior mortgage forecloses must the junior mortgage be named in the action?
Yes, because junior party has right o be paid off to avoid being wiped out by foreclosure. Failure to join then junior results in the preservation of its interest despite foreclosure and sale.
Senior parties are not affect and do not have to be named.
56
How can land subject to a security interest be foreclosed upon?
1) Court order
2) Auction - judicial sale
3) deed of trust giving the trustee the power of sale
Cannot be foreclosed by mortgagor's tender of the deed to mortgagee.
57
Mortgage contains a due-on-sale clause. What is the effect if the mortgagor transfers her interest without the mortgagee's consent?
Mortgagee can demand the debtor pay the remaining debt in full
Applies to institutional lenders
58
When a junior mortgagee forecloses, what is the affect on senior mortgagees?
Senior mortgages are not affect and maintain lien against property
Only junior mortgage interests are extinguished and must be named as a party.
59
After the foreclose sale, if the proceeds are insufficient to satisfy the debt, what is the lender entitled to?
Deficiency judgment. This can satisfied out of the borrower's other assets. In some jurisdictions if property fair market value is higher than foreclosure price, then deficiency may be limited.
60
What is a deed of trust?
Security interest in land by which debtor transfers title to land to a third party acting on behalf of lender. In event of default, lender instructs third party to foreclose the deed of trust by selling the property.
61
What is the order for allocating mortgage foreclosure sale proceeds?
Expense of sale, foreclosing party, any junior liens in order of priority, and then mortgagor.
62
Grantor conveys a property to grantee so long as the property is maintained as a golf course. Grantee sells to a buyer who wants to be a ski resort. What happens to property?
Possibility of reverter - automatic in grantor.
Fee simple determinable - future estate is in the grantor.
63
Grantor conveys a property to grantee so long as the property is maintained as a golf course then to child. What is the future interest?
Child has a shifting executory interest.
Rule Against Perpetuities will apply and void future interest
64
Grantor conveys a property to grantee so long as the property is not sold. What are the interest?
grantee - fee simple absolute
| grantor - nothing (no future interest - restrains on alienation are void)
65
Grantor conveys a property to grantee so long as the property is not sold until 2016. What are the interest?
Grantee - fee simple determinable
| Grantor - possibility of reverter
66
Grantor conveys a property to grantee for life. Grantee sells to buyer. What are the interest?
buyer has a life estate pur autre vie (grantee's life). Grantor has reversion.
67
For a life tenant, if there are no income or profits, does the life tenant have to pay taxes on the property?
Yes - ordinary taxes to the extent of the property's fair rental value.
68
Grantor conveys a property to grantee for life, then to neighbor's first child. Neighbor has no children. What are the interest?
Grantee - life estate
Neighbor's children - contingent remainder (possible destroyed by destructibility rule)
Grantor - reversion
69
Grantor conveys a property to grantee for life, then to neighbor's first child. Neighbor has no children before grantee's. What are the interest?
Grantor has a fee simple absolute - common law
| Neighbor's child has a springing executory interest - modern law (no rule of destructibility)
70
Grantor conveys a property to grantee for life, then to grantee's heirs. What are the interest?
future and present interest merge in grantee - Rule in Shelly's case
Grantee - fee simple absolute - common law
Modern law
Grantee - life estate
Grantee's heirs - contingent reminder
Grantor - reversion
71
Grantor conveys a property to grantee for life, then to grantor's estate. What are the interest?
Grantee - life estate
Grantor - reversion (doctrine of worthier title)
Grantor's heirs - nothing
72
O to A for life, then to B, provided however that if B dies under age of 25 then to C. What are the interest?
A - life estate
B - vested remainder subject to complete defeasance
C - shifting executory interest (check for Rule Against Perpetuities)
O - Reversion
73
O to A for life, then to B, provided however that if B dies under age of 25 then to C. If B is under 25 when A dies. What are the interest?
B must live to 25 to take
74
O to A and her heir, but if B returns from war next year, then to B and his heirs. What are the interests?
A - fee simple subject to B's shifting executory interest
| B - executory interest - shifting (check for Rule against Perpetuities - does not apply because of 1 year rule)
75
Rule against Perpetuities applies to what types of future interests?
contingent remainder
executory interest
vested remainder subject to open
76
O conveys to A, if and when A marries. A is unmarried. Does this violate the Rule Against Perpetuities?
No - will know by end of A's life if condition is met
A has a springing executory interest
O has a fee simple subject to A's springing executory interest
No Rule Against Perpetuities
77
O to A for life, then to the first of her children to reach the age of 30. A is 70. A has one child B. B at time of grant is 29. What are the interests?
A - life estate
O - reversion
B - nothing (Rule against Perpetuities - no future interests)
78
O to A for life, then to the first of her children to reach the age of 30. A has two children B and C. B at time of grant is 35 and C at time of grant is 32. What are the interests?
A - life estate
O - reversion
B and C - nothing - future interest void due to Rule against Perpetuities
79
O conveys to A and his heirs, so long as the land is used for farm purposes, and if the land ceases to be used, then to B and his heirs. What are the interests?
A - fee simple determinable
O - reversion
B - nothing - future interest are void (Rule Against Perpetuities)
80
O conveys to A and his heirs, but if land is used for farm purposes, then to B and his heirs. What are the interests?
A - fee simple absolute
O - nothing - condition is stricken - does not work in grantor's favor
B - nothing - Rule Against Perpetuities voids future interest
81
Does the joint tenant need other joint tenant's consent prior to sell his interest?
No consent or knowledge needed.
| will severe joint tenancy - buyer is a tenant in common
82
A, B, and C are joint tenants. B mortgages his interest in joint tenancy. What happens to the interest under a title theory jurisdiction?
Yes - works to severe joint tenancy
83
A, B, and C are joint tenants. B mortgages his interest in joint tenancy. What happens to the interest under a lien theory jurisdiction?
No severance
84
Grantor conveys property to grantee for life, with remainder after to grantee's death to grantee's heirs. Grantee conveys property to buyer. During a title search, buyer claims grantee cannot convey a fee simple. Buyer refuses to settle. Grantee sues for specific performance. If jurisdiction follows common law what result?
Grantee has fee simple (Rule in Shelley's case merges estates in grantee) and grantee can convey fee simple to buyer.
85
Grantor conveys property to grantee for life, with remainder after to grantee's death to grantee's heirs. Grantee conveys property to buyer. During a title search, buyer claims grantee cannot convey a fee simple. Buyer refuses to settle. Grantee sues for specific performance. If jurisdiction follows morden law what result?
Grantee has life estate, cannot transfer fee simple. Rule in Shelly's case is abolished by modern law.
86
Homeowner conveys a house by deed to D for life, then to A for life, but if A moves to Ohio, then to S for the life of A, then to heirs of A if A does not move, or then to heirs of S if A does move. What are the interest of A and S?
A - vested reminder subject to complete divesture
| S - shifting executory remainder (pur autre vie)
87
Owner and buyer sign a written contract to sell owner's property. Prior to closing, the property burns down, but owner had casualty insurance. At closing buyer tenders a check for the difference between the contract price and insurance policy. Owner demands full contract price and sues for specific performance. Result?
For owner - doctrine of equitable conversion. Loss is on the buyer between contract and closing. Any losses are not offset by owner's insurance.
88
Rancher own land, but moved to city. A man took possession from 1977 to 1988. Man leaves for a year and continues possession from 1989 to 2009. In 1994, rancher devices land to son. In 2009 Rancher dies. Son sues man for ejectment. Adverse possession is 20-years. Result?
Son will lose, because man acquired title by adverse possession.
Son does not have a future interest
89
Rancher own land, but moved to city. A man took possession from 1988 to 2004. Man leaves but continues possession from 2006 to 2009. In 1994, rancher devices land to son. In 2009 Rancher dies. Son sues man for ejectment. Adverse possession is 20-years. Result?
For Son, possession is not continuous by man.
90
Rancher own land, but moved to city. A man took possession from 1988 to 2004. Man leaves but asks nephew to occupy land, while he is away. Man returns and continues possession from 2006 to 2009. In 1994, rancher devices land to son. In 2009 Rancher dies. Son sues man for ejectment. Adverse possession is 20-years. Result?
For man, entitled possession because privity of blood fulfilled statutory period of adverse possession
91
L leases a property to T from Jan. 1, 2011 to July 31, 2011. After July 31, 2011, does L need to give notice? Does the agreement have to be in writing?
No. No notice for periodic tenancy.
| No. Statute of Frauds applies to leases greater than one year.
92
T holds over after the expiration of one-year lease, but sends another month's rent check to L, who cashes it. What tenancy?
implied periodic tenancy measured by the way rent is tendered
93
Tenant installs a family heirloom chandelier in the apartment. At conclusion of leasehold, tenant wants to remove it and landlord objects. There is no agreement. What is tenant's best argument?
Fixture - objective intent to permanently improve the realty
tenant's best argument is that is may be removed without causing substantial damaged
94
If T expressly covenants in the lease to maintain the property in good condition for the duration of the lease. Property is destroyed by flood. At common law, what result?
T is liable for any loss to property including force of nature
95
If T expressly covenants in the lease to maintain the property in good condition for the duration of the lease. Property is destroyed by flood. Modern law, what result?
T can end the lease, if property destroyed without fault
96
T breaches duty to pay rent and is in possession of the premise. What L's options?
1) Evict through court order
| 2) continue leasehold sue for rent due
97
T breaches duty to pay rent and is in possession of the premise. L moves T's possessions onto the street. Is this successful?
No self help available (evict or continue lease and sue for rent due)
T right to sue for violation of implied covenant of quiet enjoyment
98
American rule for landlord tenant law?
L need only give T legal possession of property - T needs to abates harm for any holdover title.
this is the minority view (not followed in VA)
99
English rule for landlord tenant law?
L put T in physical possession of premises - Start of T's lease a prior holdover T is still possession, L has breached and new T gets damages
Majority rule - followed in VA
100
What types of leases does implied covenant of quiet enjoyment?
Residential and commercial leases
1) actual wrongful eviction
2) constructive eviction (substantial interference, notice from T to L, and vacate by T)
101
L and T negotiate on telephone for a commercial leases for a five-year lease at $1,000 per month. The agreement is not reduced to writing. T sends L a check for $1,000 and L accepts. Three-years later, L seeks to lease to B. How much notice does L need to give T?
one month - implied periodic tenancy is created due to statute of frauds - period is based on way rent is tendered
no tenancy for years due to statute of frauds violations - creates periodic tenancy
102
Can negative easement be created by implication?
No, only created by express written agreement signed by grantor
103
Owners of two parcels of adjoining land agree to allow the northern owner to pass over southern owner's land to reach the road. Northern owner sells to buyer but does not mention easement in the deed. Southern owner seeks to prevent buyer from crossing his land. Result?
Easement appurtenant passes automatically - does not need to be mention in dominant tenement conveyance
104
A has an easement entitling her to swim in B's lake. A seeks to transfer to C. Allowed?
No. easement in gross are not transferrable
exception is commercial uses
105
A tells B that "B, you can have the right of way across my land." The next week A revokes. What is B's best argument?
A can freely revoke - an oral easement is a license
Unless B invested substantial money or labor in reasonable reliance on the licensee's continuation of license
VA: irrevocable licenses are equitable easement
106
Farmer and rancher agree that rancher will not build residential lots. Farmer sells to investor. Rancher sells to developer. Developer seeks to build residential lot. What can investor do?
Burden needs to run with the land, need writing between farmer and rancher, intent of original parties that covenant will run, horizontal and vertical privity, and notice
Horizontal privity is hardest - common reason that it will not run
107
Is horizontal privity required for a benefit to run with the land?
No, only vertical privity. Need writing, intent, and touch and concerns the land.
108
Elements of adverse possession?
1. continuous (in VA = 15)
2. open and notorious
3. actual possession
4. hostile (no consent or permission)
109
Grantor conveyed to "my brother, and on my brother's death, to my daughter." Brother conveys interest to girlfriend. Girlfriend takes possession but refuses to pay county tax. Daughter brings action to evict and to compel her to pay taxes.
Daughter has a life estate for brother's life (pur autre vie) and must pay the taxes (cannot commit waste as a life tenant)
Daughter is a remainderman who can bring an action to compel.
110
O in a will conveys property to "S for life, then to eldest GC of O living at S's death for life, remainder to GGC who share and share alike." When O died, survived by W, S, S's son, D, D's daughter. After O died, S add another son and D two more children. When S died, S's son predeceased him. There are 7 GGC. Who has title?
D's eldest daughter for life, with remainder to landowner's heirs.
Rule against Perpetuities applies to destroy the remote conveyance to GGC (transfer is void because there is a possibility that conveyance will not vest within 21 years, at time of conveyance)
111
O devised a parcel of land to "N and his heirs, so long as it is used for camping otherwise to charity." Residuary estate to D. When O died, D was sole heir. D later died leaving S who is O's sole heir. What is the interest of S and charity?
S has an possibility of reverter and charity has nothing.
The attempted executory interest in charity is void because it violates Rule against Perpetuities (will not vest within 21 years)
112
O and T execute a 2-year written commercial lease having a nonassignment clause. After 14 months, T decides to assign to S and tells O. O objects. S operates the same business as T. What are O's recourse against T or S?
O can evict S because he can terminate lease if nonassignment clause is violated
O can seek money damages against T
113
A was staying at hotel while traveling for business. A made a deal with hotel for $700 per week for an indefinite period. A pay hotel every week for 4 weeks. During the 5th week, A's job was complete and tendered a pro-rata share of the week. If court finds there was a tenancy, how much rent can hotel collect?
Entire 5th week not paid for and the next week. Periodic tenancy requires notice equal to full period (one week)
Hotel guest is normally treated as a licensee.
114
L owned lot 1 bordered by lots 2 and 3. L negotiated an right of way over lot 2 to reach a road. The easement was recorded, but L paid nothing for it. Later, L obtained a license to travel over lot 3. L did so for many years. Owner of lot 2 sold to B, but the deed did not mention the easement. B constructs a fence around his Lot 2. Lot 3 owner terminates licensee and L seeks to reuse right of way on Lot 2. B brings suit to quiet title.
L can compel B to allow the right of way, because it was an express easement. Abandonment not nonuse is required to destroy.
115
U died leaving house to N. N was out of state and never visited house. Neighbor saw house was empty and lease to T on an annual basis. After 15 years, N visits house and discovers T. N files a lawsuit. Statute of limitations for trespass is 10 years.
Neighbor owns property because lease to tenant is sufficient possession to invoke adverse possession.
116
F allows S and C to live in an apartment rent free. On S's 20th birthday, F gives S a written instrument stating that "F gives apartment to S on condition that he receive a college degree by 30th birthday, otherwise to D." Deed is recorded. S demands rent from C and C refuses. S seeks to evict C. Result?
S loses because he only has a future interest (springing executory interest). F still owns land and allowed S and C to stay in apartment rent free.
117
Is a right of first refusal to future sales a covenant that runs with the land?
Yes, if parties intended it to run with the land (need and his heirs)
But right of first refusal is subject to Rule Against Perpetuities as an executory interest and must vest within 21 years.
118
U conveys to N and M who are members of a hunting club O's property that the hunting club uses. N and M have a fight and M resigns from the hunting club. Next hunting season, M warns N not to enter the land with the hunting club. What relief can N seek?
Partition the land into two separate tracts
119
L convey lot to A. A had judgment lien that was recorded against the lot. A conveyed to B in a general warranty. B to C in a special warranty. C to D in a general warranty. D contracts to sell with E, who discovers the lien and refused to proceed with purchase. Who will be liable to D?
C. C breached the covenant against encumbrances at the time of the conveyance to D. This is a present covenant that is breached prior to closing. Lien is not being enforced so no future covenants are breached (cannot go after A).
120
W obtains $35,000 mortgage on home from Bank. W conveys to B for $350,000 in cash. B records. W fled country. B presented N with home as a gift. N and Bank record on the same day hours apart. Bank demanded N pay the mortgage. In a notice jurisdiction who prevails?
N owns property free and clear of Bank's mortgage. B was a bona fide purchaser who took for value and without notice. N obtains shelter rule from B.
121
A mortgage contain a due-on-sale clause. When house is sold to buyer, the previous owner took the money from the sale and did not pay the mortgage. What is the effect of the due-on-sale clause?
Bank can foreclose on house.
122
Investor purchased home with a $175,000 mortgage with bank. Investor sold to buyer who took home "subject to the mortgage" and agreed to "assume payment of" mortgage. Buyer sold home to a company who took "subject to the mortgage." Company defaults and bank foreclose. There was a deficiency. Bank sues investor and buyer to recover. Result?
Can recover against buyer and investor because buyer assumed the mortgage by assuming to make payments.
123
Owner took out a $35,000 mortgage with bank. Two months later, owner took out a $20,000 mortgage with credit union. Three months later, owner got another advance of $15,000 from bank to increase the mortgage. All mortgages properly recorded. Owner fails to pay credit union and credit union forecloses. There is $24,000 after fees/costs. How should it be distributed?
$20,000 to credit union and $4,000 to bank.
Modification of senior mortgage was after junior mortgage and modification does not have priority.
124
Under a prior appropriation theory of water rights, who is entitled to the water?
First person to make a beneficial use. Subsequent users cannot diminish first person's use.
No priority given to households over manufacturing in prior appropriation
125
If a developer created a common scheme and recorded similar covenants in all the deeds, who can sue if a later owner breaches the deed?
Each lot holder can enforce the covenant against every other lot holder
126
Two partners bought a commercial building in cash and took title as joint tenants with right of survivorship. Later, one partner took out a mortgage on the building to secure a personal loan. The second partner had no knowledge. The first partner died before paying off the loan. In a lien jurisdiction, what is the result?
Second partner, by virtue of right of survivorship, takes the full interest in the land and is not subject to the mortgage.
127
Two partners bought a commercial building in cash and took title as joint tenants with right of survivorship. Later, one partner took out a mortgage on the building to secure a personal loan. The second partner had no knowledge. The first partner died before paying off the loan. In a title jurisdiction, what is the result?
Second partner has an undivided one-half interest free and clear of the mortgage, and the surviving heirs of the first partner have an undivided one-half interest subject to the mortgage
In title jurisdictions, mortgage terminates the joint tenancy
128
In title jurisdiction, what is the effect of a mortgage by one of the joint tenants?
Severs joint tenancy and forms tenancy in common. The co-owner with the mortgage must pay on the mortgage (including heirs)
129
Owner sells home to accountant by a general warranty deed for $243,000. Deed recorded. Later accountant sold home to lawyer for $267,000, but mistakenly used a quickclaim deed instead of a general warranty deed. Deed recorded. After lawyer moves in, it was discovered that owner's title was not good and true owner demands lawyer to vacate. Does lawyer have an action?
Yes, but only against owner because owner gave a general warranty deed which runs with the land and can be enforced by later purchasers. The amount in recover is the amount that owner received for the general warrant deed, $243,000.
Cannot recover against accountant because of quickclaim deed.
130
Man wills house to sister for life, then to my son. Man dies. Sister, who is alive, lease house to friend for $1500 per month. Sister dies three years later. Prior to dying friend made an advance rent payment for the next six months. Son demands friend surrender possession. Result?
For the son, because his rights are superior to the friends.
Any lease continuing beyond the life estate is invalid.
131
Four brothers inherited a 400-acre farm as joint tenants with right of survivorship. Three brothers moved onto the farm and the fourth stayed in the city. A creditor obtained a judgment lien against the first brother's interest in the farm. Second brother died, leaving a son. A farmer purchased the first brother's interest at a judicial sale and seeks a court determination of who owns the land. Result?
Farmer - 100 acres
Third and fourth brother - undivided interest in 300 acres.
Judicial sale terminates joint tenancy with respect to first brother's interest, but joint tenancy continues between third and fourth brother.
132
A developer subdivided 25-acre land into 100 lots and build homes on each lot with a covenant that "the grantee, his heirs and assigns" would use the property only for single family residential use. Later, area is rezoned. A later buyer seeks to use the land according to new zoning. Best argument to succeed to enjoin later buyer?
Restrictive covenant that runs with the land. Create by developer with all the deeds.
Stronger than establishing a common scheme for development (implied when all the deeds do not contain the restriction)
133
When is the doctrine of reciprocal negative servitude applied?
In a common development scheme when most of the deeds contain a restrictive covenant and some of the deeds do not. Reciprocal negative servitude applied to deeds without covenant.
134
L leases to T for $350 per month for a period of five years. Lease prohibits assignment without L's consent. After two years, T gets married and moves into a new home. T sublets to F for 1 year at $500 per month. L seeks to eject or recover damages. Result?
Prohibition on assignment is strictly construed and will not apply to subleases.
L cannot eject or recover damages.
135
Does an intervening disability toll the statute of limitations for adverse possesion?
No - tolling only if disable at inception of the adverse possession
136
A elderly neighbor and younger neighbor had adjoining pieces of land. The elderly neighbor run wires across the younger's land to reach a guest house on elderly's property. The younger neighbor orally consented. 20 years later, the elderly neighbor sold the land to a purchaser. Purchaser tried to run wires, but younger neighbor objected. Result?
For the younger neighbor because there was consent and no adverse possesison
137
Must a deed be physically transferred to be effective?
No, physical act required. Delivery occurs when grantor intends that the deed have some present operative effect.
138
If seller in a land contract tenders less land than in contract, what can the buyer do?
accept the lesser amount of land, but deduct the diminished value of the property (use fair price to reduce)
139
Do judgment right creditors obtain any rights to land if transferee did not record?
No.
140
To finance purchase of home, buyer borrows $450,000 from bank, secured by mortgage. Bank fails to record. Later, buyer takes out $50,000 mortgage with creditor. Creditor records. Bank records one week later. Buyer defaults on payments to Bank and Bank forecloses. An inventor buys home at foreclosure sale. Does the buyer take subject to the creditor's mortgage in a notice jurisdiction?
Investor takes subject to creditor's mortgage.
Creditor had no notice of mortgage from bank when loan was made, exception to rule that purchase money mortgage (PMM) have priority over prior non-PMM.
141
Driver borrowed $75,000 from bank to purchase a home, securing debt with a mortgage. Later, driver financed improvements with a $50,000 loan from finance company. Bank and finance recorded promptly. Driver defaults on bank, leaving balance of $60,000, but kept making payments to finance. Bank forecloses. Does finance have any rights?
Yes, may pay off senior mortgage to preserve its own interest on the land (redemption)
- foreclose will destroy all interest that are junior
142
Under riparian doctrine, who prevails between an upstream or downstream use?
Upstream use if it is a natural use (not farming or industrial) will prevail over downstream use, even if prior.
143
Seller and buyer enter into a written agreement to sell home to buyer. Prior to closing, a contract recorded a lis pendens against the home regarding a contract dispute. Seller was unaware of lien but was willing to go ahead with sell and use proceeds to cover the lien. Buyer refused. Seller brings action for specific performance. Result?
Seller prevails because implied term is that seller can use proceeds from sell to clear any encumbrance on the title.
Litigation on contract dispute does not effect title.
144
An easement may be implied if:
prior to time that tract of land is divide that use is apparent on servient part and reasonably necessary for enjoyment of the dominant part
145
Can a party transfer market title for a contingent reminder subject to open?
Cannot convey marketable title until class closes.
146
A friend offered to loan a merchant $50,000 if the merchant would put up adequate collateral. To guarantee loan, merchant gave friend a deed to land worth $100,000. Friend gave merchant a promissory note with repayment in 8 months and friend would reconvey property at the end. Merchant continued to live on land, but was unable to pay. How can friend take possesion?
Must foreclose and be the successful purchaser at the foreclosure sale.
This is an equitable mortgage.
147
Is consideration need to render delivery of deed valid?
No. Consideration not need for a valid deed or a delivery of a deed.
148
A man properly executed a deed to a hotel and told a bank to "hold onto the deed and when I died give it to my girlfriend." Man and girlfriend had a fight a few months later and girlfriend sought to establish a claim in hotel. Result?
Deed is delivered and girlfriend will prevail.
Delivery is complete because man intended her to have an interest when deed was given to banker. Conditional delivery is effective and is not revocable.
149
Hotel and conference enter into a short lease of convention hall for a week. Conference director install curtain rods but that are not removed when the lease is over. Two days later, director tries to remove them but hotel seeks to enjoin director. Result?
Hotel will prevail, because fixtures were not removed prior to end of the lease.
150
When a portion of lease property is condemned, what is the effect on rent?
Condemnation does not impact obligation to pay full price
| Renter is entitled to share in condemnation award
151
If there is an easement in gross for underground pipes, can it be assigned and is the future assignee entitled to excavate to replace the pipes?
Yes it is transferred.
| Entitled to use the easement, but has to pay damages to restore surface
152
O conveys land to A for life, then to D. There is a mortgage on the land. Who is responsible for the mortgage payments?
A - life interest - must pay the interest
| B - remaindermen - must pay the principal
153
Does the existence of easement breach the covenant of quiet enjoyment?
No, breaches covenant against encumbrances
154
Is possession of a portion of the property sufficient for adverse possession of the entire property?
Yes. Known as constructive adverse possession.
155
Does a transfer in ownership interrupt the statutory period for adverse possession?
No.
156
Must an adverse possessor pay the property taxes on the property?
No, majority rule.
| This is a minority rule that follows this requirement.
157
Does the disability of a successor in interest toll the statute of limitations for adverse possession?
No. Disability only tolls statute when disability existed at time of adverse possession.
158
For a disability to toll statute of limitation for adverse possession, when must the disability occur?
Time when adverse possession began.
159
Does a honest belief that land is one's land prevent a claim of adverse possession?
No - state of mind is irrelevant.
160
If after a buyer purchases land from seller another makes a claim on the land, and the buyer notifies the seller to defend title, but the seller ignores, what can buyer sue if the conveyance involved a general warrant deed?
Covenants of seisin, right to convey, quiet enjoyment, warranty, and further assurances.
161
When a stream is a boundary between to pieces of land, what is the ownership of the stream?
Each adjacent owner owns 1/2 of the stream bed.
162
Can a tort victim who obtains a judgment seeks an involuntary transfer of a tortfeasor's interest in a vested remainder subject to open, when the class has not closed?
Yes. Future interests that are vested are subject to transfer.
163
Can a tort victim who obtains a judgment seeks an involuntary transfer of a tortfeasor's interest in a contingent remainder subject to open, when the class has not closed?
No. Unlike vested remainders the contingent remainders are not subject to transfer.
164
What is a profit appurtenant?
nonpossessory interest in land that entitles holder of profit to enter the servient tenement and take the profit (soil, mineral, timber, game, oil).
Profit appurtenant cannot be transferred separate from dominant estate.
165
Is a covenant that restrict leasing condo unit a total restraint on the fee simple interest?
No. It is a partial restraint, which must be reasonable to be enforceable
166
Can a life tenant be charge with waste when they fail to maintain a structure that was constructed after the life tenant took possession?
No. Permissive waste only applies to structures present when life tenancy is created.
167
When grantor purports to convey property that he does not own and land acquires title, the title to the property vests in the grantee under ____.
doctrine of estoppel by deed.
| - title inures to the benefit of the grantee against grantor, not third parties who qualify as bona fide purchasers.
168
Does the Rule Against Perpetuities apply to lease terms that contain an option to purchase during the term or any renewal term?
No. Option to purchase is enforceable.
169
Can a trespass who acts in violation of a covenant on a property obtain the property free of the covenant if the elements of adverse possession are satisfied?
Yes.
170
By mutual agreement a brother and sister take title to land as joint tenants. Three years later, brother asked to five a building on the eastern half and sister agreed. After the building was finished the brother died leaving a son as a sole heir. What is the brother estate's strongest argument for a partition?
Sister is estopped from asserting title and court can partition the land
171
Owner devises a ranch to "my daughter and her heirs and assigns; but if my son is living 25 years from the date of my death, then to my son and his heirs and assigns." Owner dies and son is 1 year old. Is the interest valid when the Rules Against Perpetuities are unmodified from the common law?
Valid interest, because it must vest within a life in being at the time of the conveyance.
172
A tenant stays past his two year tenancy for a commercial lease and sends a one-month rent check to the landlord. The landlord cashes the check and informs the tenant that his acceptance did not mean he was going to renew the lease or let the tenant stay. When can the landlord evict the tenant?
As soon as the additional month has expired.
| Holdover tenancy.
173
A tenant stays past his two year tenancy for a commercial lease and sends a one-month rent check to the landlord. The landlord cashes the check and informs the tenant that his acceptance did not mean he was going to renew the lease or let the tenant stay. Must the landlord give 6 months notice prior to evicting the tenant?
No. Can evict immediately.
| Holdover tenancy.
174
Journalist asked attorney to attend closing because journalist was going to be out of the country. At closing the attorney tendered the purchase price and the grantor made the deed out to the journalist. Two days later the news broke that the journalist died three weeks before closing. Grantor brings suit to quiet title. What result?
Grantor has title, because deed is void because deed is to a non-existent person. No title is conveyed.
Grantor must return any money to avoid unjust enrichment.
175
Seller contracted with buyer to sell land for $500,000 with closing in 30 days. Seller dies before the closing leaving a will that devises real property to daughter and personal property to son. Who is entitled to proceeds of land sale?
Son. Passes as personal property.
Exception is if the will specifically devises real property.
176
Is privity required to enforce an equitable servitude?
No.
177
Is a common development scheme needed to enforce an equitable servitude?
Applies to negative equitable servitudes.
178
Does a covenant to purchase electricity from one source touch or concern the land?
No. Equitable servitudes are enforced to promises that touch and concern the land.
179
What does the holder of an easement in gross receive?
Acquires a right to use the servient tenement independent of possession.
Easement benefits holder and not another parcel.
Not transferrable.
180
An easement to allow one to swim in the pond on blackacre is an ____.
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easement in gross.
Not transferable (unless it serves an economic or commercial interest).
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