RP Flashcards

Question

Real covenants

Answer 1

A real covenant is a non-possessory interest in land, obtained via contract and recorded to establish that it runs with the land. This contract is a formal obligation of the burdened party to either do something or refrain from doing something on the land. Breaches of real covenants are remedied with monetary damages.

Answer 2

Enforcement of a real covenant requires a writing that satisfies the statute of frauds, intent for the covenant to run with the land, vertical privity, and the covenant must touch and concern the land.

Answer 3

All of the above, plus requires horizontal privity and notice. Notice may be Actual, Inquiry (revealed during inspection) or Constructive (as evidenced via proper recording).

Answer 4

A transfer or rights or burdens between a party that enters a covenant and their successors in ownership.

Answer 5

The original parties owning the real property that initially agree to enter into a real covenant have horizontal privity.

Answer 6

An equitable servitude is a covenant enforced by injunction. Enforcement of the benefit requires a writing, intent by the parties to enter the agreement, and it must touch and concern the land. To enforce a burden, all of the above plus notice are required.

Answer 7

An easement is an agreement where a (dominant) party buys the right to use someone else’s land (servient). These agreements must be in writing to satisfy the statute of frauds, excepting necessity and prescription.

Answer 8

This is an easement that provides use or benefit to a particular person or persons. (Think of Utility Company personnel that may need to enter the property to service equipment).

Answer 9

Appurtenant easements benefit any successive owner’s enjoyment and use of the land. As opposed to easements in gross, these do attach to the land. Burdening easements pass to subsequent owners as long as the new owner has notice.

Answer 10

An easement can be created via an express grant, implication, necessity or prescription.

Answer 11

An easement is created by express grant when it is in a valid, signed writing, which details the conveyance of the right to the dominant party.

Answer 12

An easement by implication is created when a single tract of land is divided and the previous owner established use. The easement must affect the value of the land and when initially created it was not intended to be temporary.

Answer 13

An easement by necessity is created when a single owner subdivides their property and access the property would be impossible without usage of the easement. Once the necessity is no longer needed, the easement is rescinded.

Answer 14

An easement by prescription is created in a similar manner as an adverse possession (less exclusivity), where the possessor’s use is open and notorious, continuous, hostile, and for the duration of the statutory period.

Answer 15

Affirmative waste is voluntary waste, permissive waste is through neglect, and ameliorative waste can be affected via improvements to the land that do not benefit later landowners.

Answer 16

A fixture is chattel attached to the land, thereby converting it from personal property to fixture. Fixtures that can be removed from the land without causing damage and trade equipment are typically exceptions.

Answer 17

An easement is terminated through non-use, abandonment (also requires a physical act), agreement, merger or end of necessity.

Answer 18

An easement appurtenant is transferred when real property encumbered with an easement is transferred to a new owner. The burden and benefit convey as well, but subject to the recording statute.

Answer 19

An affirmative easement allows the holder to affirmatively use another’s land. A negative easement allows the holder to compel the owner not to use land in a particular way. (I agree not to build a home of a height of three stories which would block your view of the lake = negative easement).

Answer 20

An easement appurtenant cannot be moved if it’s location was already reasonably decided. After the easement is created, the reason for location selection is irrelevant. (Look for the MBE question relating to the access road that is no longer in a helpful place).

Answer 21

An easement holder is required to make any necessary repairs to the easement. If the land is damaged by the holder, they are responsible for repair.

Answer 22

An easement appurtenant cannot be moved if it’s location was already reasonably decided. After the easement is created, the reason for location selection is irrelevant. (Look for the MBE question relating to the access road that is no longer in a helpful place).

Answer 23

A profit is an agreement that entitles its holder to enter the servient estate to extract resources, such as timber, oil or quarried material.

Answer 24

A license is a permission to enter another’s land for some identified narrow purpose. A license need not be in writing and is freely revocable at the will of the licensor, unless estoppel applies to bar revocation. (Running your lip in a movie theater during the show? Revoke the license, then remove the trespasser).

Answer 25

A recording statute allows for documentation of transfer of real property ownership and provides guidance for the priority of ownership. These statutes are critical when determining the ownership of a parcel of property that has been transferred to multiple parties. There are three types of recording statutes: race, notice, and race-notice. - Race – In a race jurisdiction, the owner is whomever records first. - Notice – Any subsequent bonafide purchaser that provides notice of ownership first will own the property when a previous purchaser failed to record. - Race – Notice – A subsequent bonafide purchaser prevails over a prior grantee if they did not know of the earlier transfer and their deed was recorded before the first purchaser’s deed. (Look for the gift or property to one person who does not record, and a subsequent sale to another person who does. In this case, the person who pays and records wins).

Answer 26

A purchaser who purchases real property for some value that is not aware of some defect in ownership of the property. As a bona fide purchaser, as long as they record the purchase of the property, they will likely gain good title, despite no-notice third-party challenges of ownership.

Answer 27

A grantee is protected by their bona fide purchaser grantor. This rule was established to protect donees and devisees that did not take the property for consideration.

Answer 28

A purchaser can receive notice by three methods: actual, inquiry or record (AIR). Actual requires personal knowledge from any source, most often by inspection of the property and observing conditions on the land. Inquiry notice is gained during a required and reasonable inspection. Record notice is affected when the deed is properly recorded.

Answer 29

Obligations contained in the contract, such as seller’s duty to deliver marketable title, merge into the deed and cannot thereafter be enforced unless the deed contains the obligation.

Answer 30

General warranty deeds contain three present covenants: 1) Seisin – The grantor warrants that they own the estate they now claim to convey. 2) Right to Convey – The grantor promises that they have the authority to make the conveyance. 3) Covenant Against Encumbrances – The grantor promises that there are no non-possessory interests, servitudes or mortgages on the land, other than those previously disclosed. And three future covenants: 1) Quiet Enjoyment – A promise that the grantee won’t be disturbed in possession by 3rd party’s lawful title claim. 2) Warranty – A promise to defend the grantee if lawful claims of title asserted by others arise. (Unlawful claims? These will be the buyer’s problem). 3) Further Assurances – A grantor promises to correct any future problems and do what is reasonably necessary to perfect the title conveyed.

Answer 31

A deed that offers no warranties or assurances, and only passes whatever rights the seller has - even if the seller has no rights at all. (Think about the family member that may inherit property, but the will is in doubt - the other siblings will pay that family member to give up any future claim to the real property by having them provide a Quitclaim Deed).

Answer 32

A special warranty deed covenants against title defects the grantor themselves create rather than all defects by all prior owners.

Answer 33

If an encumbrance is found to exist after the sale, damages are equal to the difference in value of the property due to the encumbrance.

Answer 34

Adverse possession allows someone in possession of land owned by another to acquire title if possession is continuous, hostile, open and notorious, exclusive and they actually possess the land. (Hostile in this sense means the owner did not grant permission, open and notorious means the Adverse Possessor used the land as a normal owner would use the land, and exclusive means they were the only Adverse Possessor. If the Adverse Possessor rents out the land, tenants do not break the exclusivity element of this rule).

Answer 35

In general, fees and conveyances are infrequently tested on the essay portion of the California Bar Exam, but have been summarized below to refresh MBE knowledge.

Answer 36

A defeasible fee is a conditioned conveyance of real property, whereas violation of these conditions terminates the conveyance. Requires express language and reserves a future interest in either the grantor or a third person.

Answer 37

1) Fee Simple Determinable, followed by a Possibility of Reverter; 2) a Fee Simple Subject to Condition Subsequent, followed by a Right of Re-entry; and 3) a Fee Simple Subject to Executory Interest, followed by an Executory Interest.

Answer 38

A remainder is a future interest held by a third person that becomes possessory upon the natural termination of a preceding estate. (Normally following a life estate)

Answer 39

A vested remainder is a future interest in an existing and ascertained person that is guaranteed to become possessory. An open vested remainder exists if there are other persons that may vest in the future, such as children that can be born that take an equal share of ownership.

Answer 40

A potential future interest in land that is dependent upon the happening of a later event, or satisfaction of some condition precedent.

Answer 41

A future interest that cuts short a grantor’s reversionary interest in an estate, and doesn’t follow the natural termination of the preceding estate. “To A for life, then to A’s oldest child over 18.”

Answer 42

This rule invalidates any interest in property if there is any chance the interest may vest more than 21 years after a measuring life in being at the creation of the interest. Only applies to: - Contingent Remainders (to A for life, then to the heirs of B) - Executory Interests (To A, but if A marries, to B; to A for life, then to B if, but only if B grows a mustache) - Class Gifts (even vested remainders – to A for life, then to A’s children) - Applies to rights of first refusal if they are contract or covenant rights.

Answer 43

A life tenant has a duty not to waste the land. A future interest holder may sue for damages or enjoin such acts. If they fail to keep the property in repair, pay taxes or pay interest on the mortgage, they are committing waste. They do not, however, need to pay the mortgage, which is the responsibility of the remainderman. Income produced on the land is the sole property of the life tenant, however if the land is vacant and unproductive, a life tenant is not required to pay taxes.

Answer 44

If a grantee holds land in fee simple, they have a right to remove minerals. Only a life tenant has to account to future interest holders regarding the removal of minerals.

Answer 45

If the mortgagor sells the property and conveys a deed, a grantee takes subject to mortgage which remains on the land. The grantee can sign an assumption agreement, promising to pay the mortgage loan. If so, they become primarily liable to the lender, while the original mortgagor becomes secondarily liable to the mortgagee as a surety. Mortgagee can then go after either party to get the mortgage repaid. The mortgagor will always be personally liable on the mortgage, only subsequent grantees who assume the mortgage will be personally liable, and all subsequent grantees, whether they assume the mortgage or not, can lose the property if it is foreclosed upon for the mortgage default.

Answer 46

Upon foreclosure, the mortgagor’s interest in the property is terminated. The priority of a mortgage is determined by the time it was placed on the property. A foreclosure will terminate interests junior to the mortgage being foreclosed. If proceeds from the foreclosure sale are insufficient? Foreclosed unpaid parties will then seek a deficiency judgment.

Answer 47

Requires lawful execution, delivery and acceptance. Lawful execution requires the deed be in writing, identify the parties, be signed by the grantor and provide an adequate property description. For delivery to be valid, the grantor must demonstrate a present intent to transfer the interest - physical transfer is not required. (Look for the MBE where the attorney takes the deed from the grantor, puts it in a drawer and then remembers to deliver the deed after the grantor has died).

Answer 48

It is unlawful to refuse to sell or rent due to race, color, religion, sex, familial status or origin. The act also prohibits discriminatory terms of sale, or discriminatory advertisement. Exceptions exist for religious organizations, private clubs or apartment buildings with four or less units when the owner occupies one unit. Here, the owner can discriminate, however cannot advertise preference.

Answer 49

Require a writing, identifying the parties, signed by the party to be bound, description of the land or parcel, and state the consideration.

Answer 50

Zoning laws enforce land usage based upon city planning, where land is assigned to residential, commercial or industrial use. They are enforced by state or local government police power and seek to control land use for the protection of the health, safety, morality and welfare of citizens.

Answer 51

Allows a landowner to continue to use his land despite a change in zoning that makes the present usage illegal. Requires the previous use be legal, that there be no break in continuous use, and the use is not substantially increased. (Barbershop on a city block, city re-zones making the area residential only - the Barbershop can request non-conforming use permission to stay in business)

Answer 52

A property owner may obtain a zoning variance if the new zoning law imposes an undue hardship and the variance will not be contrary to the public safety. (Brother and sister divide a three-acre parcel, she gets two acres, he gets one. Zoning ordinance requires two acres to build a home. Brother can request a variance to build a home on his one acre)

Answer 53

If a zoning amendment confers a special benefit on a small land parcel regardless of public interest, it is generally invalid. (If the regulation benefits a small group, then raise this issue.)

Answer 54

A dedication is a donation of land or creation of an easement for public use. These dedications can be express or implied, and are typically associated with housing subdivisions, where a map or plan has been approved and recorded.

Answer 55

Every landowner is entitled to lateral support of their soil (or subjacent support, i.e. from below through excavation), in its natural condition, from adjoining land. Neighbors will be found strictly liable for excavating and causing neighboring property to crumble under its own weight. If the plaintiff’s land has a structure that is damaged, and the weight of the structure liability contributed to the land collapse, liability will attached only if the plaintiff can prove negligence.

RP Flashcards

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