Property Law Flashcards

Question

What are the future interests capable of creation in a grantor (3)?

Answer 1

1. Possibility of reverter (only fee simple determinables) 2. Right of entry/power of termination (only applies to fee simple subject to condition subsequent) 3. Reversion (default interest)

Answer 2

The default future interest in a grantor. Whenever the grantor carves out an estate of lesser duration or magnitude than they started with, other than fee simple determinable or fee simple subject to condition subsequent. The residue left in the grantor, which arises by operation of law, is a reversion. Whenever a holder of fee simple absolute carves out an estate of lesser than full transfer, there will be a reversion. Reversion is transferable, devisable, and descendible. The holder of a reersion may sue a possessory owner for waste.

Answer 3

Remainder. Remainder is a future interest created in a grantee, never a grantor. This transferee is a third party, capable of becoming possessory after the preceding estate of fixed duration, when in the same conveyance as the original transfer. Remainders may be vested or contingent. Features: 1. Always accompanies preceding estate of fixed duration (usually life estate or term of years) (ex. To A for life, and then to B - goes to B) 2. Patient - waits for present possessory interest to run its course 3. Never follows a defeasible fee. Can't cut short or divest a present transferee (if third party at end of defeasible fee, will be executory interest)

Answer 4

A remainder will be vested when it is created in (1) an already ascertained taker and (2) has not been subjected to a condition precedent. Note: vested remainders are inheritable! (Ex. "remainder to my son's children." If son has B and G, and boy dies but boy has kids, the kids can get that remainder interest)

Answer 5

A remainder will be contingent when it is created in (1) a not-yet-ascertained taker, and/or (2) subjected to as-yet-unmet condition precedent.

Answer 6

As-yet-unborn/unascertained contingent remainder: Ex. To A for life, then to B and B's heirs. If B is alive, B's heirs are unknowable. Ex. To A for life, then to A's widow - if husband is still alive, the widow cannot be identified (widow is a technical term) Ex. To A for life, then those children of B who outlive A. If A is alive, remainder is not yet known.

Answer 7

As-yet-unmet condition precedent: Condition appears before language creating the remainder, or is woven into language creating the grant to the remainder. Ex. To A for life (present possessory life estate), then if B graduates college (condition precedent), to B. If A is alive and B is only in high school, B has a contingent remainder subject to an as-yet-unmet condition precedent.

Answer 8

1. Vested remainder 2. Contingent remainder 3. Executory interest

Answer 9

1. Indefeasibly vested remainder 2. Vested remainder subject to complete defeasance 3. Vested remainder subject to open

Answer 10

The holder of this remainder is certain to acquire in the future with no strings attached. Ex. To A for life, remainder to B. A is alive. B is alive. A has a life estate. B has an indefeasibly vested remainder. B is known. There are no conditions to his taking. If an indefeasibly vested remainder predeceases the person they were waiting on, at common law B's future interest passes by will or intestacy. Rule Against Perpetuities does not apply.

Answer 11

A future interest where the taking is not subject to a condition precedent and the remainder is known. However, the right to possession could be cut short by a condition subsequent. This is a cloud that stays over the taker even after gaining lawful possession. Rule Against Perpetuities does not apply.

Answer 12

The comma rule: when conditional language follows language that, taken alone and set off by commas, would create a vested remainder, then it is a condition subsequent and there is a vested remainder subject to complete defeasance. Ex. "O conveys to A for life, remainder to B, provided however if B dies under the age of 25, to C." B has the vested remainder subject to complete defeasance, because if the condition subsequent does not occur (doesn't live to 25), C's heirs take. O has reversion. COMPARE contingent remainders, when conditional language appears before language creating remainder, there is a condition precedent: Ex. "O conveys to A for life, and if B has reached 25, to B." Ex. If Remainder Man has not yet gained entry.

Answer 13

When the remainder is vested in a group, a whole class/category of takers, at least one of whom is qualified to take. Each class member's share is subject to partial diminution because additional members can still join. A class is either open or closed. It is open if others can still join. It is closed when no others can join. If class members predecease prior life tenant, in the absence of a statute, their share goes to devisees/heirs. Rule Against Perpetuities may apply.

Answer 14

Go to common law rule of convenience. According to that, the class closes whenever ANY member can demand possession. Ex. When heirs can't demand possession until death of life tenant, when life tenant dies can demand possession. Exception: The womb option. Child in the womb of someone at the time the class closes can still collect.

Answer 15

1. Rule of destructibility 2. Rule in Shelley's Case 3. Doctrine of worthier title

Answer 16

If an as-yet-unfulfilled condition precedent in a contingent remainder is still unfulfilled at the time the preceding estate ended, the contingent remainder is destroyed. Ex. To A for life, and if B reaches age 21 then B. A dies, leaving behind 19 year old B. B's contingent remainder is destroyed, because prerequisite wasn't satisfied when preceding life estate ended. Reverts to O/O's heir in fee simple absolute. Only invoke if the call of question asks "historically at common law" - today, the destructibility rule has been abolished. If B was under 21, the property would go to O or O's heirs subject to B's springing executory interest (and B could take at age 21).

Answer 17

It merged present and future interests, if those interests were held by the same grantee/heirs. It was a rule of law, which led to strict applicability even in the face of contrary grantor intent. Only apply if call of question asks "historically at common law" Today, if O conveyed to A for life and then to A's heirs on A's death, A would have a life estate and A's heirs would have a contingent remainder, reversion to O.

Answer 18

If a grantor, who is alive, nonetheless tries to create a future interest in as-yet-unascertainable heirs, the doctrine voids the future interest and gives reversion to grantor. Ex. "O to A for life, and then to O's heirs (A is alive), This is a rule of construction that applied historically. Today, the doctrine is subject to grantor intent. Today, ask: did the grantor truly intend to create a future interest for his as-yet-unascertainable heirs? If so, we will honor that (ex. "O hereby declares that O shall not obtain a reversion")

Answer 19

Kanye at the Grammys. Future interest created in a transferee (third party), which is not a remainder and either cuts short some interest in another person (shifting) or in grantor/heirs (springing). It either divests the preceding interests (shifting), or follows a gap in possession (springing). Rule Against Perpetuities applies.

Answer 20

A future interest that always follows a defeasible fee. It cuts short someone other than the grantor, when a condition comes into being. The executory interest can be triggered either by B's conduct or by current landowner's conduct. Subject to the Rule Against Perpetuities; many of them violate it (any executory interest without time limit within which it must vest violates RAP). Ex. "To A and her heirs (fee simple), but if B returns from Canada sometime next year (defeasible), to B and his heirs." B has a shifting executory interest. A has fee simple subject to B's shifting executory interest. Does not violate RAP. Ex. "To A, but if A uses the land for nonresidential purposes at any time during the next 20 years, then to B."

Answer 21

A future interest that cuts the grantor's own interest short. It has the possibility to limit grantor's otherwise limitless time upon the fruition of a condition. Subject to the Rule Against Perpetuities. Ex. O conveys to A, if and when he marries. A unmarried. A has springing executory interest. O has fee simple subject to A's springing executory interest. Ex. O conveys to A, if and when he becomes lawyer.

Answer 22

Certain kinds of future interest are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.

Answer 23

1. What type of future interest was created by the conveyance? 2. What are the conditions precedent to the vesting of the suspect future interest? (What has to happen?) 3. Find a measuring life (whose death is relevant to the conveyance?) 4. Will we know, with certainty, within 21 years of our measuring life, if our future interest holder(s) can or cannot take? However wild the option, and subject to the Fertile Octegenarian Rule? If yes, conveyance is good. If not, future interest is void.

Answer 24

YES: 1. Contingent remainders 2. Executory interests 3. Certain vested remainders subject to open. NO: 1. Any future interest in the grantor 2. To indefeasibly vested remainders 3. Vested remainders subject t complete defeasance

Answer 25

When the gift is conditioned on the members surviving to an age beyond 21. "Bad as to one, bad as to all." - You must show that the condition precedent to every class member's taking will occur within the perpetuities period. If it is possible that a disposition might vest too remotely w/r/t ANY member of class, entire class gift is void. Ex. "To A for life, then to such of A's children as live to attain the age of 30." A has 2 children, B & C. B is 35 and C is 40. A is alive. Violates, b/c A could have a child right before death.

Answer 26

When the executory interest has no limit in the time within which it must vest. Ex. To A and his heirs, so long as the land is used for farm purposes, and if the land ceases to be so used, to B and his heirs." A has fee simple subject to executory limitation, B has shifting executory interest. A might abide with the condition within lifetime, could be breached centuries later. Too remote. Exception: charity-to-charity exception.

Answer 27

A gift from one charity will not violate RAP, simply to encourage people to be charity. NOTE: this exception only applies if it goes from charity to charity. Ex. "To Red Cross, so long as premises are used for Red Cross pruposes, and if they cease to be so used, then to the YMCA." Would otherwise violate, shifting executory interest with no time limit, but is OK here.

Answer 28

Majority doctrine - apply unless explicitly told to apply common law RAP. Under this reform effort, validity of any suspect future interest is determined on the basis of the facts as they now exist, at the end of a measuring life. 1. Wait until end of relevant measuring life 2. Does it pass scrutiny, based on the facts as they are?

Answer 29

Uniform Statutory Rules Against Perpetuity. Codifies the common law RAP and provides for an alternative 90-year vesting period (any suspect future interest must be certain to vest within 90 years of the date of its creation).

Answer 30

Embraced by both "wait and see" majority courts, as well as USRAP (but not by common law). If a given disposition violates RAP, court can reform it in such a way so that it matches grantor intent while complying with RAP. Automatically reduces any offensive age contingency to 21.

Answer 31

1. Joint tenancy 2. Tenancy by entirety 3. Tenancy in common

Answer 32

Two or more own, with the right of survivorship. Alienable, but not divisible or descendable. Upon death, immediately to other tenants. Note: personal liability stays separate, even after death. So if there's a property lien on one JT who dies, the other JT takes the property and isn't subject to that lien.

Answer 33

In the context of joint tenancy, when one joint tenant dies, his share automatically goes to the surviving other joint tenants.

Answer 34

The Four Unities (T-TIP). Joint tenants must take their interests T - at the same time T - by the same title (same instrument, i.e. deed) I - with identical interests (shares) AND P - right to possess the whole In addition: 1. Must clearly express right of survivorship, as joint tenancies are disfavored (avoids intestacy in Probate Ct.) 2. Use of a straw (if you own and wish to create, must first convey to 3d party who conveys back as joint tenancy)

Answer 35

SPAM: 1. Severance and sale 2. Partition (voluntary, partition in kind, forced sale) 3. (Severance) And Mortgage

Answer 36

When one joint tenant sells or transfers her interest during her lifetime. She may do so secretly, without knowledge/consent of others. One joint tenant's sale severs the joint tenancy as to the seller's interest, disrupting the four unities. Joint tenancy remains intact between the remaining members, but not to those who completed sale. Note: buyer becomes a tenant in common.

Answer 37

In equity, a joint tenant's mere act to enter into a contract for the sale of her share severs the joint tenancy at that moment.

Answer 38

1. Voluntary agreement 2. Partition in kind 3. Forced sale

Answer 39

If parties decide, can amicably and privately come to terms.

Answer 40

If parties are unable to agree on how to sever the joint tenancy, this is a court action that divides up the parcel among tenants. Really only works when the parcel is subject to division, e.g., farm or vineyard.

Answer 41

A court action used to sever joint tenancy when the parties are unable to agree, and when the court cannot properly divide the parcel among the remaining tenants (e.g. it doesn't lend itself to being parceled out, a single building). The parcel is sold, with proceeds divided proportionately.

Answer 42

Minority: One joint tenant's execution of a mortgage or lien on her share severs the joint tenancy as to that now encumbered share. In the majority, one tenant getting out a mortgage wouldn't end the joint tenancy at all. Majority: lien theory of mortgage - joint tenant's execution of a mortgage on his interest only creates a lien. Minority: title theory of mortgage - execution of mortgage severs the title.

Answer 43

1. Between married partners (21 states recognize) 2. Right of survivorship 3. Can't just be engaged 4. In states that apply it, applies presumptively between married partners unless otherwise stated

Answer 44

1. Creditors of only one spouse can't touch tenancy. 2. Neither tenant acting alone can unilaterally transfer to a third party; can't unilaterally defeat right of survivorship.

Answer 45

1. Two or more own 2. No right of survivorship 3. Each co-tenant owns individual part 4. Each co-tenant has right to possess the whole 5. Each interest is divisible, descendible, alienable.

Answer 46

Each co-tenant is entitled to possess the whole. If one wrongfully excludes another from possession of the whole or any part, has committed wrongful ouster. Ex. G contributed 90% of purchase price, Marcia 10%; G can't relegate M to only 10% of premises.

Answer 47

1. Absent ouster, a co-tenant in exclusive possession is not liable to the others for rent. A co-tenant who finds himself in the exclusive possession if others left voluntarily is not liable for all rent. 2. Rent from third parties - a co-tenant who leases all or part of premises to third party must give co-tenants their fair share (e.g. equal to interest in whole; if only paid for 10% of property, get 10% of rent)

Answer 48

No. The hostile element of adverse possession is lacking. Unless he has ousted other co-tenants, can't acquire.

Answer 49

Both responsible for fair share of carrying costs (taxes, mortgage interest payments), based upon each undivided share (if G contributes 90% and M 10% to purchase, that is their proportionate share.

Answer 50

The repairing co-tenant has a right to contribution for reasonable, necessary repairs, provided that she has told the other of the need (proportional share based on proportion bought in)

Answer 51

No right of contribution to "improvements" - you can't get co-tenants to pay for improvements you make. At partition, improving co-tenant entitled to a credit, equal to any increase in value caused. So-called improver also bears full liability at partition for any drop in value caused by "improvement."

Answer 52

A co-tenant cannot commit waste (voluntary, permissive, ameliorative). A co-owner can bring a waste action during the life of co-tenancy.

Answer 53

Joint tenant or tenant in common.

Answer 54

1. Tenancy for years 2. Periodic tenancy 3. Tenancy at will 4. Tenancy at sufferance

Answer 55

Lease for fixed period, 2 days or 10 years. If you know termination date from start. No notice is needed to terminate, since tenant knows from the start. Ex. L leases Blackacre to T "from 1/1/11 to 7/1/11" A term of years greater than 1 year must be in writing to be enforceable, due to Statute of Frauds.

Answer 56

A lease that continues for successive intervals, until LL or T give proper notice of termination. May be created expressly, or through implication. Ex. LL conveys "to T, from month to month" "year to year" or "week to week" - continuous, cyclical, open-ended. (express period tenancy) Ex. Reservation of annual rent, payable monthly, creates year-to-year periodic tenancy.

Answer 57

1. Land is leased with no mention of duration, but provision is made for payment of rent at set intervals 2. Oral term of years in violation of Statute of Frauds, measured by the way rent is tendered (ex. agree to a 5 year lease orally, monthly rent; if L accepts T's check, first payment renders interest implied periodic tenancy 3. The holdover - in a residential lease, if LL elects to hold over a tenant who wrongly stayed on past conclusion of original lease, implied periodic tenancy arises. Period is based on rent payment intervals. Tenant will be held to higher rent IF the LL notifies tenant of rent increase prior to lease expiring. If non-residential, a holdover from an original lease that is 1+ year in length will create a year-to-year tenancy, which will have the same terms as original tenancy unless landlord notified tenant before termination of original tenancy about increased rent or changed term.

Answer 58

Notice, usually written, must be given. Notice at CL must be at least equal to the period itself unless otherwise agreed (ex. month's periodic tenancy, need one month's notice). If tenancy is year-to-year or greater, need 6 months' notice. Can by changed by private agreement.

Answer 59

A tenancy for no fixed duration. Rare, so unless parties expressly call it a tenancy at will, it will be treated by courts as implied periodic tenancy so long as rent is paid at regular intervals. Termination: either party at any time, reasonable demand to quit usually needed. Ex. "To T for as long as LL or T desires."

Answer 60

When T has wrongfully held over past the expiration date of the lease. The leasehold estate is called tenancy at sufferance, which permits LL to recover rent. Tenancy at sufferance lasts only until LL evicts T or elects to hold T to a new tenancy - short time period.

Answer 61

In tort, T is responsible for: 1. Keeping premises in good repair 2. For injuries when T invited third party, even if LL explicitly made promises to repair (though T may seek indemnification from L)

Answer 62

T must maintain premises and make routine repairs, other than those due to ordinary wear and tear. T must not commit any of the 3 types of waste. Ex. responsible for unclogging your drain

Answer 63

When a tenant removes a ficture, the tenant commits voluntary waste. A fixture is a once movable chattel that, by virtue of its attachment/annexation to the realty, objectively shows the intent to permanently improve the realty. T can't remove a fixture, even if she installed it herself. Fixtures pass with the ownership of the land. Ex. heating system, custom storm windows, furnace, certain lighting installations

Answer 64

Express agreement controls. In the absence of an agreement, T may remove the chattel installed so long as removal won't cause substantial harm to premises. If removal will cause substantial damage, then in objective judgment T has shown intent to install a fixture. Fixture stays up. Factors for determining intent in residential context: Relationship between annexor and premises? Heirloom, e.g.? Intent of tenant when installed? How much damage will be caused if the fixture is removed? In determining commercial fixtures - apply the trade fixtures doctrine. Under the trade fixtures doctrine, we allow all commercial tenants to remove all trade fixtures prior to the lease expiring. If you have a hybrid residential/commercial area, ask what purpose the equipment was installed for. Ex. a bench that is otherwise removable but part of the in-wall organ is also part of fixture, if it would damage the aesthetic value. Damage can be to value!

Answer 65

At common law (historically): T was liable for loss to the property, including loss due to force of nature. T was a sitting duck. Today, majority view: T off the hook when premises are destroyed without T's fault.

Answer 66

LL only has two options: (1) evict through courts or (2) continue the relationship and sue for rent due. If LL moves to evict, is nonetheless entitled to rent from the tenant until tenant (who is now tenant at sufferance) vacates. Can never engage in self-help: changing the locks, forcibly remove T, remove T's possessions. Punishable both civilly and criminally.

Answer 67

Ex. T wrongfully vacates with time left on a term of years (just leaves, stops paying, even though lease isn't up) 1. Surrender (treat T abandonment as implicit offer of surrender, which L accepts, though surrender must be in writing if term is great than 1 year to satisfy SoF - letter can be from LL accepting surrender in writing to last known address) 2. Ignore (hold T responsible for rent as though they were here - minority option) 3. Re-let the premises on wrongdoer tenant's behalf, and hold them liable for any deficiency (majority) Majority rule is that L must at least try to re-let the apartment (mitigation principle)

Answer 68

Majority/English: requires that L fully put T in possession of premises. Thus, if at end of T's lease a prior holdover T is in possession, L has breached and new T gets damages. Minority (American): L only needs to give T legal possession, no need for actual possession.

Answer 69

Tenant has a right to the quiet use and enjoyment of the properties, without interference from LL (residential and commercial).

Answer 70

Actively - actual wrongful eviction (or exclusion from premises) Breach by constructive eviction - SING: S I - Substantial interference due to LL's actions or failures, permanent or chronic N - Notice, T must notify and LL must fail to fix G - Goodbye. Aggrieved tenant must leave the site after LL fails to remediate.

Answer 71

L may not permit nuisance on site. L must control common areas Also, if there is a latent defect and LL fails to notify, liable.

Answer 72

Applies only to residential leases. Nonwaivable warranty that the premises are fit for basic dwelling. Appropriate standard may be supplied by housing code and case law. Ex. no heat in winter, no plumbing, no running water.

Answer 73

MR CUBED. M - Move out and end the lease, but T doesn't have to leave (contrast w/ constructive eviction requirement to show implied breach of quiet enjoyment) R - Repair and deduct - tenant makes repairs and reduces rent from future month dollar for dollar R - Reduce rent or withhold all rent until court determines fair rental value, typically T must place in escrow to show good faith R - Remain in possession, pay rent, and affirmatively seek money damages

Answer 74

If T lawfully reports LL for housing code violations, LL is barred from penalizing T by eviction. Examples: raising rent, ending lease, harassing T, taking other reprisals

Answer 75

In absence of a prohibition in the lease, T may freely transfer the interest in whole (assignment) or in part (sublease). An assignment is when a tenant transfers possession of the premises for the remaining balance on a lease. It doesn't mean tenant is off the hook. They are in privity of contract. In lease, LL may prohibit T from assigning or subletting without prior written approval, but once LL consents to one transfer, waives the right to future objections (unless he expressly reserves that right) (Rule in Dumpor's Case)

Answer 76

A property-based nexus; LL and whatever tenant is currently possessing the premises.

Answer 77

L and T2 are liable to each other for all covenants in the original lease that "run with the land" Ex. promise to pay rent, paint premises, repair, e.g. Ex. L leases to T1. T1 assigns T2. T2 assigns T3. T3 abuses. L can proceed against T3 b/c privity of estate L can proceed against T1 secondarily due to privity of contract L cannot make any claims against T2, unless T2 was also in privity of contract.

Answer 78

Those who exchanged the original promissory rules (original leaseholder and LL, usually). L and T2 are not in privity of contract unless T2 explicitly assumes all promises in the original lease. In the case of an assignment from T1 to T2, because LL and T1 remain in privity of contract, they remain secondarily liable to one another (in case primary is unavailable) T1 always remains in privity of contract, and is thus jointly and severally liable.

Answer 79

L and sublessee are neither in privity of estate nor in privity of contract; they share no nexus. T2 is liable to T1, vice versa. Relationship between L and T1 is fully intact.

Answer 80

It is the common law norm that the landlord is under no duty to make the premises safe. "Buyer beware." Modern - subject to many exceptions, five main ones.

Answer 81

Tenant learns of these, she CLAPS. (Landlord can have tort liability for failing to maintain:) C - Common areas (hallways, stairwells) L - Latent defects rule (L must warn T of hidden defects that L knows or should have known about. Mere duty to warn, not repair.) A - Assumption of repairs (LL who makes repairs negligently is liable, doesn't have to assume them) P - Public use rule (L who leases public space w/ defect they should know about due to severity of defect, and knows T will not repair due to length of lease, liable for any defects on the premises S - Short term lease of furnished dwelling - L is liable for any defect on site.

Answer 82

Servitudes! ``` Easement License Profits Covenants Equitable servitudes ```

Answer 83

The grant of a nonpossessory property interest (dominant tenement) that entitles its holder to some form of use or enjoyment of another's land (servient tenement). Can be affirmative or negative, most are affirmative.

Answer 84

The affirmative right to do something on servient land. May be created through prescription, implication, necessity, grant.

Answer 85

``` Entitles the holder to prevent servient landowner from doing something that would otherwise be permissible, usually only in 4 categories (LASSS) L - Light A - Air S - Support S - Stream water for artificial flow ``` Minority also for S - Scenic View

Answer 86

Exclusively through express writing signed by grantor.

Answer 87

An easement is appurtenant when it benefits its holder in his physical use or enjoyment of the property. It takes two - dominant tenement, servient tenement (bears burden) Ex. A grants B right of way across A's land so B can more easily reach his land. B has an easement appurtenant.

Answer 88

It confers upon its holder only some personal or pecuniary advantage unrelated to use or enjoyment of land. Servient land is burdened, but no benefited/dominant tenement. Ex. right to swim in another's pond, right to place a billboard. These are personal choices between individuals. Best choice if you want to attach strings to the ability of public to use your land.

Answer 89

The easement appurtenant transfers automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance. The burden of easement appurtenant passes with the servient estate, unless the new owner is a bona fide purchaser without notice. Ex. A has easement entitling her to cut across B's land. A sells parcel to X, with no mention of B. X can still enjoy easement, since it passes automatically.

Answer 90

No, unless it's for commercial purposes. These are more personal easements. Ex. S has easement to use B's lake to fish for bait for its company. Easement in gross. Transferable to next commercial seller.

Answer 91

PING. P - Prescription (never got permission but used it) I - Implication (past use makes it reasonably necessary) N - Necessity (no other way out) G - Grant An easement, once created, is presumed to be of perpetual duration.

Answer 92

May be satisfied through adverse possession if: 1. Continuous use for statutory period 2. Open and notorious 3. Actual use (but need not be exclusive) 4. Hostile use (without servient owner's consent) Here, unlike in AP doctrine, possessor doesn't get title but a limited use of prescriptive easement.

Answer 93

If an easement is implied by existing lots, when: 1. Previous use was apparent 2. Parties expect it would continue because it is reasonably necessary to dominant land's use and enjoyment Ex. Lot 1 is hooked up to L2's sewer drain pre-sale. Even if no mention of right to continue, court will imply easement.

Answer 94

Easement of right of way will be implied by necessity if grantor conveys portion of his land with no way out except over remaining land. Easement will be implied if, prior to the time property is divided, a use exists on the servient part that is reasonably necessary for the use of the dominant part, and all parties intended to continue after division. Use must be continuous and apparent at time the property is sold. Reasonable necessity factors: Cost and difficulty of alternatives Whether price paid reflects continued use

Answer 95

Through a writing, the Deed of Easement (if it endures for more than 1 year must be in writing to satisfy SoF). Note: even if the easement isn't validly recorded/signed by a notary, it will still bind the original parties. Though this will affect its transferability, it doesn't impact the easement as between the original parties. Note: if the parties to the original creation of the use specifically state the location of the easement, its dimensions, and the special use or limits to such use, the courts honor this expression of specific intent. Absent specific limitations, it will be assumed that the parties intend that the easement meet both present and future reasonable needs of the dominant tenement. However, a basic change in the nature of the use is not allowed.

Answer 96

Determined by the terms that created it.

Answer 97

END CRAMP E - Estoppel ( 1. conduct or assertion by owner of easement that easement won't be enforced, 2. reasonable reliance by servient tenement, 3. servient owner materially changes position i.e. by building over the area) N - Necessity (expires as soon as the need ends, unless it was created by express grant) D - Destruction of the servient land other than through the willful conduct of the servient owner C - Condemnation of servient estate by eminent domain R - Written release by easement holder to servient (most common) A - Abandonment (easement holder/beneficiary must demonstrate by physical action that the intent is to never use the easement again; mere nonuse will be insufficient) M - Merger doctrine (unity of ownership) - easement ends when title of both relevant parcels is vested in same person (even if title separates later, easement dead) P - Prescription (servient owner may extinguish in accordance with adverse possession elements) Once terminated, easement holder may be entitled to compensation for value lost. Use of easement beyond legal scope will not eliminate the easement; instead, easement will be surcharged and servient owner can sue to enjoin use.

Answer 98

A mere privilege to enter another's land for a delineated purpose. It is NOT a nonpossessory interest in land. Not subject to Statute of Frauds, no need for a writing. Freely revocable at will of licensor, unless estoppel applies to revocation. Ex. tickets to a show create freely revocable licenses. Ex. Neighborhood orally seems to create easement, reneges the next day - didn't actually create an easement, it was a freely revocable license.

Answer 99

Only when the licensee has invested substantial money, labor or both in reasonable reliance on license's continuation.

Answer 100

Entitles holder to enter the servient land and take from it the soil or some substance of the soil (mineral, timber, oil, fish/game) Can harvest from the land. Profit goes by easement rules (for creation and termination) Creation - PING Termination - ENDCRAMP If the note is endorsed or delivered, transferee can be a holder in due course (can take the note free of any personal defenses that could have been raised against the original mortgaagee by the debtor mortgagee)

Answer 101

A promise to DO or NOT DO something related to the land. IT's not the grant of a property interest, but rather a K/promise re: land. One tract is burdened, and the other is benefited.

Answer 102

Promise to refrain from doing something related to the land. Ex. I promise not to build for commercial purposes Ex. I promise not to post a "for sale" sign

Answer 103

Affirmative promise to do something re: land Ex. I promise to paint our common fence

Answer 104

On the basis of the remedy the plaintiff seeks. If P seeks money damages, construe as a covenant (legal cause of action is covenant). If plaintiff seeks an injunction/specific performance, construe as an equitable servitude.

Answer 105

When there is both horizontal and vertical privity. 1. Does burden run vertically? (WITHIN) 2. Does the benefit run vertically? (WITV)

Answer 106

Parties to a real covenant who shared an independent interest in the land at the time they entered into the covenant. For the purposes of determining whether covenant transfers, it requires that they be in succession of estate (grantor/grantee, LL/T, mortgagor/mortgagee). Most ES's fail to transfer based on this prong of the test. Element is satisfied if the successor holds the entire durational interest held by the covenantor at the time she made covenant. Ex. A promises B that A won't build for commercial purposes

Answer 107

The relationship between A and A1, original landowner who sells land and the buyer of that land. Requirements for vertical privity vis a vis covenant transferability: non-hostile nexus (e.g. blood, contract, devise, descent, NOT adverse possession)

Answer 108

Ex. A promises B. A sells to A1. Does promise run from A to A1? Apply WITHN. W - Written promise between A and B I - Intent that the covenant would run (courts find generously) T - Touch and concern land, must affect legal relations as landowners (included: paying homeowners fees, noncompetes) H - Horizontal and vertical privity both needed for burden to run. Horizontal requires succession of estate between A and B (e.g. grantor/grantee, mutual interests in same property) - often fails. Vertical requires non-hostile nexus between A and A1 (blood, contract, devise, descent, can't be present with AP) N - Notice. Burdened buyer had notice of the promise when she took (note: if the burdened party is not a BFP but rather is an heir, notice won't necessarily be required)

Answer 109

It is easier for benefits to run than it is for burdens to run. Mnemonic WITV: W - Original promise must be in writing I - Intent that benefit would run T - Touch and concerns parties as landowners V - Vertical privity (non-hostile nexus between B and B1, both benefiting parties). Note: horizontal privity is not required for the benefit to run, which is why it is easier for benefits to run.

Answer 110

A promise that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. You don't need privity of estate in order to enforce an equitable servitude. Accompanied by injunctive relief.

Answer 111

WITN ES (WITN Equitable Servitude) W - Writing (original promise) I - Intent to bind T - Touch and concern, affects landowner parties N - Notice - successors of burdened land had notice of the promise. Privity is NOT required to bind successors; it's meant to be easier than a covenant because it isn't a legal remedy but an equity.

Answer 112

Affects subdivision land, in which a RESTRICTIVE covenant affects majority of other lots but not one lot (the subdivider is building residential property and commercial buyer comes in) DOES not APPLY to an affirmative covenant! Two elements: (1) When the sale began, the subdivider A had a general scheme of residential development, including D's lot. (2) D lotholder (B) had notice of the promise in the prior deeds. Three forms of notice will be imputed: action, inquiry notice, record notice.

Answer 113

AIR Actual notice - D knew of common restriction Inquiry notice - neighborhood conforms to common restriction (lay of the land)) (constructive notice) Record notice - form of notice sometimes imputed to buyers on the basis of publicly recorded documents (constructive notice) Minority: harsh view, subsequent buyer D on record notice of contents of all prior deeds transferred to others by common grantor Majority (better view): subsequent buyer has record notice only of the contents of the deed the grantor transferred to them.

Answer 114

Changed circumstances. Super hard. Changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area has changed. Mere pockets of limited change will not be sufficient.

Answer 115

Possession for a statutorily proscribed period can, if certain elements are met, ripen into title. Elements COAH C - Continuous (uninterrupted for statutory period) O - Open and Notorious (sort of possession the usual owner would make under the circumstances, doesn't mean you need to build a structure) A - Actual and exclusive (actual entry giving exclusive possession, can't be shared with public but can give friends access sometimes) H - Hostile (did not receive permission/consent, OR communicated hostility, e.g. doesn't let her come on the land, explicit notification, etc.) Note: on hostile prong, don't need to know the land isn't yours, just need to not have received consent to use it. And if you think the land is yours but subject to an invalid deed, that's hostile. Possessor's subjective state of mind is irrelevant. It can be acquired seasonally (use summer house every week). Note: the SOL that determines the time period for AP doesn't run against the holder of a future interest until that interest becomes possessory, b/c the holder of the future interest has no right to possession (and thus no COA) until the prior present estate terminates. New SOL for each possessor!

Answer 116

One AP may tack onto his time with the land to his predecessor's time, so long as there is privity (non-hostile nexus, liberally construed). Tacking NOT allowed when there has been an ouster.

Answer 117

Statute of limitations will not run against a true owner afflicted by a disability at the START of adverse possession Ex. insanity, infancy, imprisonment.

Answer 118

1. Land sale contract (short life) | 2. Closing (deed - operative document)

Answer 119

1. Must be in writing 2. Signed by party to be bound (D) 3. Describe land (and if land is incorrect, remedy is specific performance with pro rata reduction) 4. Some consideration

Answer 120

If any two of the following three circumstances, equity intervenes and a decree of specific performance of oral contract for the sale of land: 1. B takes possession 2. B pays all or part of price, and/or 3. B makes substantial improvements Buyer's remedy is NOT damages! Only specific performance is available.

Answer 121

Apply doctrine of equitable conversion - equity regards as done that which ought to be done. Only applies to the buyer and seller, not to third parties (i.e. attaching property held in name of debtor). Lives during land sale period. During escrow period, buyer bears risk of loss. Buyer can compel specific performance. Once land K is signed, B owns land. If at interim between K and closing, land is destroyed through no fault of either party, B bears risk of loss unless K says otherwise. Most modern land contracts reallocate impose upon whichever party is in possession. Thus, under equitable conversion, once an enforceable contract of sale is signed, the purchaser's interest is real property and the seller's interest is personal property (right to proceeds). Note: you can't generally recover the amount that was put up as consideration, b/c it is considered a reasonable assessment of whatever damages may occur.

Answer 122

1. Seller promises to provide marketable title at closing (marketable title is title free from reasonable doubt - lawsuits, threat of litigation). Three circumstances making title unmarketable: (1) Adverse possession (2) Encumbrances (servitudes, mortgages, unless buyer waives or seller is satisfying outstanding lien at closing using sale proceeds; exception: a beneficial easement that was visible or known to the buyer does not constitute an encumbrance) (3) When parcel violates a zoning ordinance (mere presence of zoning ordinance insufficient) Note: ancient mortgages/liens on which SOL has run will not affect marketability 2. Seller promises not to make any false statements of material fact (most states also hold seller liable for failure to disclose a latent material defect, even if K contains general disclaimer of liability) Ex. substantial variation in description of property from one deed to the next

Answer 123

NONE. Common law norm: caveat emptor. Exception: when the builder is also the seller, then they are implicitly standing behind the premise that it was constructed in a workmanlike manner and suitable for human habitation.

Answer 124

Deed passes legal title from seller to buyer Land contract dies.

Answer 125

It must be LEAD (Lawfully Executed and Delivered). Also need words of INTENT, e.g. by using the word "grant" Lawful execution standard: 1. In writing 2. Signed by grantor 3. Evidence an intention to convey the landz 4. Unambiguous description of land ("all of my land" suffices - sufficient if it gives enough information to ID, doesn't need to have full metes and bounds) 5. Identifies grantor and grantee Delivery requirement 1. Can be satisfied when grantor transfers deed physically (mail, agent, messenger, in-hand) 2. Does not require physical intent itself. Standard: did grantor have present intent to be bound, irrespective of whether or not the deed itself was handed over? 3. Delivery by escrow is OK (and in fact, when a deed is placed in escrow, there is valid conditional delivery and title will transfer automatically on occurrence of condition) 4. Recipient express rejection of deed defeats delivery (but return of deed is not necessarily reconveyance) 5. If deed, absolute on its face, is transferred to grantee with an oral condition, oral condition drops out Re: acceptance of deed Courts generally presume that a grantee accepts a deed if the conveyance would benefit her. Courts also presume that grantee accepts deed if she is minor, if infant, or incompetent If recorded, will be deemed accepted.

Answer 126

1. Quitclaim 2. General warranty deed 3. Statutory special warranty deed

Answer 127

No covenants. Grantor isn't even promising he has title to convey. Worst deed a buyer. Implicitly promised int he land contract to provide marketable title at closing (though any problems post-closing, seller off the hook)

Answer 128

Features: warrants against all defects in title, including those due to grantor's predecessor. 3 present covenants (breached, if ever, at moment of delivery - SOL runs from instant of delivery. Don't run with the land) 1. Covenant of seisin (grantor owns estate, has both title and possession) 2. Covenant of right to convey (grantor is under no disability, no temporary restraints on grantor's power to sell) 3. Covenant against encumbrances (no servitudes or mortgages on the state) 3 future covenants (SOL begins when breached, when grantee is disturbed while in possession. Enforceable by all future buyers, runs with the land). 1. Covenant for quiet enjoyment (no third party has lawful claim of title; grantor will indemnify grantee for claims of title brought by third parties) 2. Covenant of warranty (grantor will defend grantee against lawful title claims) 3. Covenant for future assurances (will cooperate in good faith with any other administrative issues)

Answer 129

Provided for by statute in many states, contains two promises that grantor makes only on behalf of himself (not on behalf of predecessors): 1. Grantor promises he hasn't conveyed Blackacre to anyone other than grantee. 2. Blackacre is free from encumbrances made by grantor

Answer 130

B always has superior title! Regardless of whether or not she records before A does.

Answer 131

B has superior title ONLY IF she records properly before A does.

Answer 132

In issues of title superiority - 1. Purchases Blackacre for value AND 2. Without notice that someone else got there first. "For value" -- need only remit substantial pecuniary consideration, even if it's much less than FMV. Note: bona fide purchaser cannot ever be a donee/heir/devisee, because they didn't pay valuable consideration. Judgment lienors in majority of states are not protected as BFPS because they didn't pay value for a judgment, or judgment attaches only to property "owned" by D. NOTE: Bona Fide Purchasers are not protected against interests arising by operation of law, such as adverse possession or implied easements, because there is no instrument to record in order to perfect such interests. Instead, subsequent BFPs take subject to those interests. However, a BFP will not take it subject to an EXPRESS easement that was not recorded, so long as they really are a BFP without notice.

Answer 133

AIR (same as under equitable servitudes) A - Actual notice I - Inquiry notice (whatever an examination of land would show, creating duty to inspect; if recorded instrument makes reference to unrecorded transaction, is on inquiry notice to whatever reasonable follow up would show) R - Record notice (of prior properly recorded transactions)

Answer 134

"A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded."

Answer 135

If at the time B takes, he is a bona fide purchaser, he wins. It doesn't matter if A ultimately records first. Last BFP to enter wins. But note: a BFP is still unprotected against an interest arising by operation of law.

Answer 136

"Any conveyance of interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded." It's a race to record!

Answer 137

Deed must be properly recorded within the chain of title (sequence of recorded documents). Can be established through a title search of the grantor-grantee index. Note: a title search is not complete without an examination of possession. If possession is unexplained by the record, the subsequent purchaser is charged with knowledge of whatever an inspection of the propertywould have disclosed and anything that would have been disclosed by inquiring of the psosessor.

Answer 138

One who takes from a BFP will prevail against any entity that the transferor-BFP would have prevailed against. The transferee "takes shelter" in transferor status, and steps into shoes of BFP even though otherwise doesn't meet BFP status. This also applies to easements! If a prior BFP didn't have notice of an express easement, it doesn't continue on to a subsequent purchaser even if they had notice of the easement. Ex. O conveys to A who does not record. Later O conveys to B, BFP, who records. B conveys to C who is mere donee or who has actual knowledge of O to A transfer. C wins either way.

Answer 139

O sells to A, who does not record. A sells to B. B records. No reference of the O to A transfer. The A to B transfer is a Wild Deed, incapable of giving record notice. You can't record a wild deed that doesn't include all prior transfers that are unrecorded. Put it on the first buyer to insist on correct title.

Answer 140

One who conveys deed in which he has no interest is estopped from denying the validity of that conveyance if he later acquires the previously transferred interest. Note: most courts hold that this is personal estoppel, which means that the title inures to the grantee's benefit only as against double dealing grantor, but not against a subsequent bona fide purchaser. (Thus, if the grantor transfers after-acquired title to an innocent purchaser for value, the new BFP gets good title - but check for record/inquiry notice). Ex. if X sells land he doesn't own, but then comes to own it, the sale from invalid time is valid.

Answer 141

The note, security interest in land, deed of trust, mortgage deed, sale leaseback

Answer 142

Debtor is mortgagor. | Creditor is mortgagee.

Answer 143

Conveyance of a security in land, intended by the parties to be collateral for the payment of a debt. The union of a debt with a voluntary lien.

Answer 144

A mortgage in writing (usually required to satisfy SoF).

Answer 145

Both parties understand that property transfer is a collateral for the debt, but instead of executing a note or mortgage deed, O hands creditor an absolute deed on its face. Still only alienable through valid foreclosure. Parol evidence is allowed to show intent (so the agreement could be oral) If the creditor proceeds to sell, mortgagor's only recourse is to sue creditor for fraud and the sale proceeds. Can't get it back!

Answer 146

Debtor-mortgagor has title and right to possess. | Creditor-mortgagee has a lien.

Answer 147

All parties can transfer their interests. The mortgage follows a properly transferred note. However, if note is transferred but original mortgagee doesn't notify mortgagor and mortgagor pays, the transferee doesn't have a valid claim.

Answer 148

1. Endorsing the note, and delivering it to the transferee, OR 2. Executing a separate document of assignment.

Answer 149

When mortgagee transfers interest to another creditor -- If the note is endorsed or delivered, transferee can be a holder in due course (can take the note free of any personal defenses that could have been raised against the original mortgagee by the debtor mortgagor). However, still subject to the real defenses.

Answer 150

Lack of consideration, fraud in the inducement (knew what they were signing was mortgage), unconscionability, waiver, estoppel. A holder in due course may foreclose on a mortgage despite these missing elements.

Answer 151

MAD FIFI4: ``` Material Alteration Duress Fraud in the Factum (didn't know it was a mortgage) Incapacity Illegality Infancy Insolvency ```

Answer 152

1. Note must be negotiable, made payable to named mortgagee 2. Original note must be endorsed, signed by named mortgagee 3. Original must be endorsed and delivered to transferee (no photocopy) 4. Transferee must take the note in good faith, without notice of illegality 5. Transferee must pay value for note (any amount more than nominal)

Answer 153

Yes, so you apply notice or race-notice rules to the recording of the mortgage.

Answer 154

Depends! If B has "assumed the mortgage," and signs an agreement to assume the morgage, both are personally liable. B is primarily liable, and seller is secondarily liable. If B takes property "subject to the mortgage", Buyer does not have liability on the liability, owner remains responsible. Must sign an agreement to assume the mortgage and become primarily liable.

Answer 155

The mortgagee-creditor looks to the land for satisfaction. Must be by judicial action. Land is sold, and proceeds go toward satisfying the debt.

Answer 156

If the foreclosure sale proceeds come to less than the amount owed on the mortgage, the mortgagee can bring a deficiency action against the debtor.

Answer 157

Attorney's fees, foreclosure expenses, any accrued interest on the first bank's lien.

Answer 158

Sale proceeds are used to pay off the mortgages in order of priority. Each claimant is entitled to satisfaction in full before a subordinated (junior) interest If junior interest isn't satisfied, can bring deficiency action may take.

Answer 159

Surplus goes to debtor only after all junior interests are satisfied.

Answer 160

Those with interests subordinate to those of foreclosing party are necessary parties (junior lienholders). Debtor mortgagor is a necessary party, and must be joined. Failure to include a necessary party results in the preservation of that party's claim, despite the fact of a foreclosure sale. It doesn't invalidate the sale altogether.

Answer 161

None - foreclosure of Second Bank's mortgage won't affect First Bank's mortgage. First Bank mortgage continues on land in hands of the foreclosure sale buyer. Though foreclosure sale buyer is not personally liable, if the mortgage is not paid off the First Bank can foreclose. As a practical matter, if senior mortgage is not paid, senior creditor will foreclose.

Answer 162

First in time, first in right (based on when they record). EXCEPTION: purchase money mortgage

Answer 163

Mortgage given to lender lending money to mortgagor to buy property. Mortgage given to secure a loan that enables the debtor to acquire the encumbered land. Given "superpriority." Ex. C lends 100k so O can buy Blackacre. C takes as collateral a security interest in Blackacre. C is a purchase money mortgagee. However, they're subject to later liens by virtue of recording acts. If it Aisn't recorded, you'lll lose.

Answer 164

Senior creditor may agree to subordinate its priority to a junior creditor, as a norm of freedom of contract.

Answer 165

At any time prior to the foreclosure sale, the debtor can try to redeem the land. But once a valid foreclosure sale has taken place, the right to equitable redemption is gone. Nonwaivable right ("clogging the equity of redemption") You can exercise the right of equitable redemption by paying off the missed payments, plus interests and costs.

Answer 166

Permits the mortgagee to declare the full balance of the mortgage due immediately, and payable in the event of a default. If debtor wants to exercise equitable redemption, must pay off full costs plus interests.

Answer 167

Recognized in half the states. Debtor-mortgagor is given statutory right to redeem for fixed period AFTER foreclosure sale has occurred (typically 6 months to a year). Amount to be paid: foreclosure sale price. Mortgagor usually keeps right to possess during statutory period. When mortgagor redeems, effect is to nullify a foreclosure sale.

Answer 168

A property owner is entitled to have her land supported in its natural state by adjoining land. Strict liability will attach only if P shows that P's improved land would have collapsed (subsidence) even in unadorned state (improvements did not contribute to collapse). Even if the land would not have collapsed except for the weight of the buildings, the excavating landowner is liable for damage to the buildings if his excavation is found to have been done negligently.

Answer 169

1. Riparian doctrine | 2. Prior appropriation doctrine

Answer 170

Water belongs to those who own the land bordering water course. In jurisdictions following the riparian doctrine for allocation of water in watercourses, the reasonable use theory permits each riparian owner (i.e. owner of land bordering watercourse) a reasonable use of the water, and a downstream owner cannot enjoin the reasonable use by an upstream riparian owner unless it substantially interferes with the downstream owner's comparable use. Under this doctrine, uses are categorized as natural or artificial. Natural uses (household consumption, gardening, limited grazing) prevail over artificial uses (irrigation, manufacturing); riparian owners can take all the water they need for natural uses, but cannot take water for artificial uses unless there is enough water for the domestic needs of all other riparian owners. Riparian people - share right of reasonable use of water. One riparian is liable if their use unreasonably interferes with others' use. Reasonable use doctrine: almost everything is reasonable, except something malicious or crazy.

Answer 171

Water belongs initially to the state, but the right to divert and use it can be acquired by an individual, regardless of whether they happen to be a riparian owner (or whether their property abuts the watercourse). Rights determined by priority of beneficial use (first in time, first in right). Any productive or beneficial use of water (watercourse, agriculture) sufficient to create right.

Answer 172

Surface owner is entitled to make reasonable use of groundwater (water beneath the surface of earth that is not confined to a known channel, aka percolating water)

Answer 173

A common enemy! Nemesis! Landowner may change the drainage or make any other changes or improvements on his land to combat the flow of surface water. Many courts modify to prohibit unnecessary harm to others' land.

Answer 174

To be free from trespass and private nuisance!

Answer 175

Invasion of land by physical object. Bring ejectment action if you want to eject a trespasser.

Answer 176

Substantial, unreasonable interference with another's land use. Unlike trespass, it does not require physical invasion. Odors and noise can give rise. Hypersensitive plaintiffs can't collect.

Answer 177

Government's 5th Amdt. power to take private property for public use, in exchange for just compensation.

Answer 178

An act of governmental condemnation.

Answer 179

Governmental regulation that wasn't intended to be taking but has the same effect. Remedy: 1. Compensate owner or 2. Terminate regulation and pay owner for damages

Answer 180

Police power. Reasonably controls land use.

Answer 181

Principal means to achieve flexibility in zoning. Proponent must show: 1. Undue hardship 2. Granting variance won't harm neighbors' property values Variance is granted or denied by administrative action, usually zoning board. NOTE: a zoning variance does NOT affect the enforcement of a restrictive covenant! Can still be liable if you get a variance when you also have restrictive covenant. They are completely separate concepts. Only possible exception: if the restrictive covenant would itself result in a zoning violation.

Answer 182

Once lawful, existing use now deemed nonconforming by a new zoning ordinance. Cannot be eliminated all at once, unless just compensation paid (otherwise, unconstitutional taking)

Answer 183

Amenities a government seeks in exchange for granting permission to build. To pass constitutional scrutiny, must be reasonably related in nature and scope to the impact and scope of proposed development.

Answer 184

Any increase in the debt resulting from the modification with be subject to a junior lien, even if the original mortgage itself had priority over the junior lien (so, you can collect on the principal, then others collect, then you collect on the modification).

Answer 185

Has a lower priority than the junior lien, even if the original mortgage is first in priority.

Answer 186

No, unless there is evidence that time is of the essence. In general, courts presume that time is not of the essence in real estate contracts. Ex. Closing date stated is not absolutely binding in equity, and a party (even if late in tendering his own performance) can still enforce if he tenders within a reasonable time (1-2 months). Time will be considered of the essence only if: 1. contract so states 2. circumstances indicate it was parties' intention (ex. rapidly fluctuating prices, need for money to close another critical transaction) 3. one party gives the other notice that he desires to make time of the essence. Note: if time is NOT of essence, party late in tendering is not excused from performance absent repudiation or impossibility, and will be liable for incidental damages (ex. added mortgage interest, taxes)

Answer 187

"Any conveyance of interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser whose conveyance is first recorded." Under race statute, notice is irrelevant

Answer 188

Successors to the seller's real property must give up the legal title at closing. This is true because of equitable conversion, which presumes that buyer owns (equitable title to) real property at land contract signing. Seller is entitled to the personal property (i.e. profits from the sale)

Answer 189

Generally, both parties are entitled to specific performance. Court will order seller to convey title if buyer tenders purchase price. If seller cannot convey marketable title, buyer may obtain specific performance of land sale K with abatement of purchase price reflecting title defect. Courts will order buyer specific performance if in breach.

Answer 190

A security interest in land by which the debtor (trustor) transfers title to the land to a third party (trustee), such as lender's lawyer or insurance company acting on behalf of the lender (beneficiary). If default, lender instructs trustee to foreclose the deed of trust by selling the property.

Answer 191

If court concludes that grantor transferred absolute deed to serve as security for an obligation. Then the grantee must foreclose by judicial action. Courts consider: 1. Existence of debt or promise of payment by grantor, 2. Grantee's promise to return the land if debt is paid, 3. Whether the amount advanced by grantor was much lower than the property 4. Degree of grantor's financial distress 5. Parties' prior negotiations

Answer 192

Security interest in land in which the debtor (buyer) contracts with seller to pay for land in regular installments until full K price paid, plus interest. Upon full payment, seller then transfers legal title to buyer. Contract can contain forfeiture clause, providing that seller can cancel contract upon default, retain all money paid, and retake possession. If a vendor sets a pattern of accepting imperfect payments, waives the right to strict performance.

Answer 193

The mortgage generally follows the note. A mortgage is a security interest in property, and a note is evidence of underlying debt. Physical possession of the mortgage and note is not required for the underlying debt.

Answer 194

Legal title is in the mortgagee until the mortgage has been satisfied or foreclosed. The mortgagee is entitled to possession at any time, even before foreclosure sale. Contrast with majority, lien theory.

Answer 195

Legal title transfers from the mortgagor to the mortgagee upon default. As compared with the majority lien theory, this allows the mortgagee to take possession before the foreclosure.

Answer 196

Mortgagee holds a security interest in the land, and the mortgagor is considered the owner until foreclosure. The mortgagee can't take possession of land before foreclosure

Answer 197

Junior mortgage is given priority over the advance if the advance was optional. (Note: not over the entire senior mortgage, just on the advance) Generally, if the mortgage OBLIGATES the mortgagee to make further advances after the mortgage is executed, advances have the same priority. Thus, the junior mortgage would not have priority over an obligated advance.

Answer 198

When a deed is placed in escrow, there is valid conditional delivery and title transfers automatically on occurrence of condition. However, sometimes justice requires that the date of transfer go back to the moment that seller placed the deed in escrow (so the sale can go through). Ex. seller places deed in escrow, becomes incapacitated (and therefore incapable of transferring title). We want them to be able to complete transfer, so apply relation-back doctrine and set date of transfer at date of escrow placement. Assume it applies unless explicitly states otherwise.

Answer 199

Under the natural flow theory, a landowner cannot alter the rate or manner of natural flow of surface waters (e.g. rainfall, melting snow) where such actions would injure others above or below him.

Answer 200

If a developer builds many parcels with restrictive covenants in most of them, but not all of them, the restrictive covenant or equitable servitude may be binding even if it isn't in the deed. Requirements are: 1. Common scheme of development AND 2. Notice of the covenants (actual, inquiry, record)

Answer 201

Exception to RAP if the lessee has an option to purchase, the lease would otherwise violate RAP, but the lessee is currently in possession.

Answer 202

Ex. "My brother shall have no right to convey property during life estate" - renders any conveyance ineffective. These are VOID, they don't work!

Answer 203

An attempt to say that if someone tries to convey their land interest, they must forfeit their interest. This will be deemed effective if reasonable.

Answer 204

Right/options of first refusal provisions are generally presumed to be non-assignable, and therefore aren't violations of RAP. THey are not subject to RAP when connected to leaseholds (current tenant or assignee). If a tenant assigns the leasehold, the option generally is considered a running covenant, exercisable by the assignee absent a contrary intent. If the rule had become separable, RAP would be implicated. However, if they are specifically assignable within the grant of title, that could violate RAP Whenever heirs and assigns hold a right of first refusal, will violate RAP. However, if there is an ascertainable group of people, no RAP problem. Exception: OPTION of first refusal.

Answer 205

When there is a MUTUAL mistake or inconsistency in the description of property in a deed, the court can "reform" the deed to reflect the actual intention of the parties. As long as the parties were in agreement as to the terms before the contract was reduced to writing, reformation can be had regardless of whether both parties signed the contract without noticing the deviation from the oral agreement or one party knew of the deviation and the other did not. If both are mistaken as to the acreage but both understand the dimensions, dimensions take precedent.

Answer 206

Loook in Conviser

Answer 207

First you must go to a judge and get a determination, otherwise you are not conveying marketable title. It's a lawsuit to quiet title.

Answer 208

Common law: if a will beneficiary died before testator, will void. Anti-lapse statute: saves the gift for a predeceasing beneficiary's descendants if the beneficiary herself is a descendant of the testator

Answer 209

Junior mortgagee has the right to pay off the more senior mortgage (e.g. redeem it) to avoid being wiped out by its foreclosure. When a mortgage is foreclosed, the purchaser at the sale will take title as it existed when the mortgage was placed on the property. Thus, foreclosure terminates interests junior to the mortgage being foreclosed but doesn't affect senior interests.

Answer 210

The general rule is that when a mortgage is foreclosed, the buyer at the sale takes title as it existed when the mortgage was placed on the property. Thus, foreclosure will generally destroy all interests junior to the mortgage being foreclose, but will not discharge senior interests. Where the landowners enter into a modification agreement with the senior mortgagee, raising its interest rate or otherwise making it more burdensome, the junior mortgagee will be given priority over the modification.

Answer 211

A covenant that runs with the land (b/c touches and concerns the land).

Property Law Flashcards

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