Term
| What is the property term for the seller and buyer of real property? |
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Definition
| Seller=grantor buyer=grantee |
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Term
| What is a fee simple absolute? |
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Definition
| It is absolute ownership of potentially infinite duration, is freely alienable (i.e., easily bought or sold), and has no accompanying future interest. |
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Term
| What is the only way an interest in fee simple absolute terminates without a sale or transfer? |
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Definition
| If the owner dies intestate without heirs...the property will escheat to the state. |
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Term
| What is a defeasible estate? |
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Definition
| A defeasible fee is ownership of potentially infinite duration, but may be terminated by the occurrence of an event. |
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Term
| What is a fee simple determinable? |
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Definition
| A fee simple determinable is a present fee simple estate that is limited by specific durational language (so long as, while, during, until). It terminates automatically upon the happening of a stated condition and full ownership of property is returned to the grantor. The fee simple determinable is alienable, devisable, etc., but it will always have the stated condition. |
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Term
| What is the possibility of reverter? |
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Definition
| Upon the occurrence of the stated condition in a fee simple determinable, the estate automatically reverts back to the grantor. The interest of the grantor while not in his possession is the possibility of reverter, i.e., the possibility the property will revert back to him. It is freely alienable. |
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Term
| What is a fee subject to a condition subsequent? |
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Definition
| A present interest in a fee simple that is limited in duration by specific conditional language. |
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Term
| What is the difference between a fee simple determinable and a fee simple subject to a condition subsequent? |
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Definition
| Unlike a fee simple determinable, termination of a fee simple subject to a condition subsequent is not automatic. The present fee simple will only terminate if the grantor affirmatively demonstrates the intent to terminate. |
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Term
| Can a grantor retain the right to terminate a fee simple subject to a condition subsequent, and how? |
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Definition
| The grantor can explicitly retain the right to terminate a fee simple subject to a condition subsequent (the right of entry, right of re-entry, power of termination). |
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Term
| What is a fee simple subject to executory interest? |
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Definition
| A present fee simple limited in duration by either conditional language or durational language and the upon the termination, the title will pass to a third party (someone other than the grantor). |
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Term
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Definition
| Although it has been eliminated in most states, a fee tail limits the estate to the grantee's lineal descendants by specific words of limitation like "heirs of the body". |
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Term
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Definition
| A present possessory estate that is limited in duration by a life. The language must be clear and measured in terms of a life, not a specific number of years. |
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Term
| What is the future interest of a life estate called? |
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Definition
| A reversion, it can revert back to the grantor or specified remaindermen. |
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Term
| Is a life estate subject to the rule against perpetuities? |
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Definition
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Term
| What is a life estate measured by the life of a third party? |
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Definition
| Life estate pur autre vie |
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Term
| What duties and benefits does a life tenant have during a life estate? |
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Definition
A life tenant has the right of possession, the right to all rents and profits during possession, and the right to lease, sell, or mortgage the property (right of alienation). To the extent that the property can produce income, life tenants have the obligation to pay all ordinary taxes on the land and interest on the mortgage. If the property is not producing an income, the life tenant is responsible for taxes and mortgage interest to the extent of the reasonable rental value of the land. The life tenant also has the duty not to commit waste.
The life tenant is under no obligation to insure the land for the benefit of the remainderman and is not responsible for damage caused by third-party tortfeasors. |
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Term
| What is affirmative waste, and what can a holder of a future interest do if there is waste by the current owner? |
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Definition
| Affirmative (or voluntary) waste is the result of overt conduct that causes a decrease in the value of the property. The holder of the vested remainder interest may bring suit for damages, and either a vested or contingent remainder holder may bring suit for an injunction. |
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Term
| What is permissive waste? |
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Definition
| Permissive waste is the result of neglect, a failure to keep up the property, or a failure to reasonably protect the property. To maintain the property and avoid permissive waste, the tenant is required only to spend the amount of income generated by the property. The tenant’s responsibilities include paying any property taxes and mortgage interest associated with the property. |
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Term
| What is ameliorative waste? |
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Definition
| At common law, a life tenant was prohibited from engaging in acts that changed the property’s value (even those that enhanced the value), unless all future interest holders were known and consented. The current majority rule allows life tenants to physically alter structures on the property when necessary to make reasonable use of the property. |
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Term
| What is a tenancy in common? |
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Definition
| Any tenancy with two or more grantees creates a tenancy in common. Equal right to possess or use the property (unity of possession) is required, and no right of survivorship exists. Each co-tenant holds an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the interest. Without the right of survivorship, each tenant can devise or freely transfer his interest to anyone. A tenant in common may also transfer his interest to another by a lease. The other tenants in common are entitled to share possession with the lessee and to receive a share of the rental profits from the lessor-tenant in common. |
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Term
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Definition
| A joint tenancy exists when two or more individuals own property with the right of survivorship (i.e., upon the death of a joint tenant, the interest terminates and automatically goes to the surviving joint tenants). Modern law calls for a clear expression of intent along with survivorship language. |
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Term
| What are the four unities required for a joint tenancy to be valid? |
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Definition
| PITT-each joint tenant having an equal right to possess or use the property (unity of possession), with each interest equal to the others (unity of interest), at the same time (unity of time), and in the same instrument (unity of title). |
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Term
| What happens when a joint tenancy interest is conveyed in whole or in part? |
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Definition
| Joint tenancy is severed, and the right of survivorship is destroyed and converted to a tenancy in common. A conveyance by only one of more than two joint tenants does not destroy the joint tenancy of the remaining joint tenants. |
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Term
| What is a precatory term? |
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Definition
| Words which hope or wish someone will use property in a certain way. Generally, not enough to establish FSSCS absent words expressly reserving the right of entry. |
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Term
| If the right of entry is not exercised for a specified period of time, when is the grantor not permitted to exercise the right any longer? |
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Definition
| When there is detrimental reliance on behalf of other interested parties. |
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Term
| Name some examples of land restrictions that are void as against public policy? |
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Definition
| Restraints on marriage unless the purpose is to give support UNTIL marriage. Conditions meant to encourage divorce. Racially restrictive covenants. |
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Term
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Definition
| Even if not explicitly reserved, a reversion follows a life estate unless stated otherwise explicity. E.G., To A for life...reversion follows. |
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Term
| What is an indefeasibly vested remainder? |
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Definition
A remainder (following a life estate naturally by operation of law) which
1. Is created or held by ascertained person or persons
2. Must be certain to become possessory on termination of the prior estate.
3. Must not be subject to being defeated or divested
4. Must not be subject to being diminishing in size. |
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Term
| What is a vested remainder subject to open? |
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Definition
| An interest which will vest in a class at the operation of law in which the class has either 1. Not had all its membership ascertained. OR 2. Not had all its membership satisfy the condition of the grant. |
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Term
| What is a vested remainder subject to divestment? |
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Definition
| Where a condition subsequent to the grant may divest the interest holder. |
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Term
| What is a condition precedent? |
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Definition
| A condition or event that must occur prior to taking. |
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Term
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Definition
| It is a rule which invalidates remainders in the grantee's heirs. It instead grants the grantee a fee simple. |
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Term
| What is the doctrine of worthier title? |
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Definition
| It is a rule which invalidates remainders in the grantor's heirs. It instead grants the grantor a fee simple. |
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Term
| What is a shifting executory interest? |
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Definition
| An executory interest which divests the grantee. |
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Term
| WHat is a springing executory interest? |
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Definition
| An executory interest which divests the grantor. |
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Term
| What is the rule of convenience? |
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Definition
| This rule saves a gift from RAP by closing the class when some member of the class can call for distribution of the gift. |
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Term
| What interests does RAP apply to? |
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Definition
| Contingent remainders, executory interests, class gifts, options and rights of first refusal, powers of appointment. |
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Term
| What interests are exempt from RAP? |
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Definition
| Transfers from charity to charity. |
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Term
| What is the bad-as-to-one, bad-as-to-all rule? |
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Definition
| Where a gift to one class member is invalid through RAP, it is invalid to all. |
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Term
| What are the exceptions to the bad-as-to-one rule? |
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Definition
| The gift to a subclass, the per capita gift exception. |
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Term
| What are the four types of leasehold tenancies |
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Definition
1. Tenancy for years
2. Periodic tenancy
3. At will tenancy
4. Tenancy at sufferance |
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Term
| Explain a tenancy for years: How long is the lease, and is the lease subject to the SOF? |
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Definition
1. A tenancy measured by a fixed amount of time.
2. Period longer than a year must be in writing (SOF). |
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Term
| Explain how a periodic tenancy works |
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Definition
A periodic tenancy is a repetitive ongoing estate measured by a set period of time with no predetermined termination date. It automatically renews at the end of each period until one party gives notice of termination.
Notice to terminate must be given before the beginning of the intended last period of the periodic tenancy. |
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Term
| A year-to year periodic tenancy requires notice how long before end of the year term? |
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Definition
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Term
| What is a tenancy at will? |
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Definition
| A tenancy that does not have a specific term and continues until terminated. |
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Term
| What is a tenancy at sufferance? |
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Definition
| The period of time after the expiration of a lease during which the tenant remains on the premises. The tenant is bound to the terms of the lease that existed before expiration. |
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Term
| What are the duties of a leasehold tenant? |
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Definition
1. Duty to pay rent
2. Duty to avoid waste
3. Contractual duty to repair (in some commercial leases only) |
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Term
| What type of lawsuit may a landlord file when a tenant becomes a holdover tenant? |
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Definition
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Term
| If a tenant indicates that it will breach future duties under the lease, can the landlord sue for the future rent? |
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Definition
| No, the landlord can only sue a tenant for rent as it becomes due. |
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Term
| When a tenant breaks the lease and evacuates the premises prematurely, what must the landlord do before recovering from the tenant. |
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Definition
| He must mitigate the damages (i.e. renting the space out as quickly as possible) |
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Term
| In what type of lease can the duty to repair be vested in the tenant? |
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Definition
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Term
| What are a landlord's duties in a leasehold tenancy? |
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Definition
1. Give possession
2. Duty to repair (unless waived in a commercial lease)
3. Warranty of habitability
4. Covenant of quiet enjoyment |
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Term
| What is a constructive eviction? |
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Definition
| If the landlord substantially interferes with the tenant's use and enjoyment of the leasehold, the tenant's obligation to pay rent is excused due to constructive eviction ONLY IF THE TENANT GIVES NOTICE AND VACATES WITHIN A REASONABLE TIME! |
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Term
| What is the difference between an assignment and a sublease? |
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Definition
| An assignment is a complete transfer of the tenant's remaining lease term. Any transfer for less than the entire duration of the lease is a sublease. |
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Term
| To whom is the assignee tenant liable? |
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Definition
| Assignee tenants are in privity of estate with the landlord and are liable to the landlord for the rent and covenants in the lease that run with the lease. However, an assignee reassigns his interest in the leasehold, he is no longer liable to the landlord. |
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Term
| To whom is a sublessee tenant liable? |
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Definition
| A sublessee is not in privity of estate or contract with the landlord, therefore the sublessee is not liable to the landlord for the rent or other covenants in the lease, but he is liable to the original lessee. |
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Term
| To whom is the original tenant in a leasehold liable after he or she has assigned or sublet his or her interest in the leasehold? |
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Definition
The privity of estate held by the original tenant terminates upon assignment by the tenant to the assignee. However, because the original tenant remains in privity of contract with the landlord, the original tenant is liable to the landlord for all covenants in the lease even after a successful assignment.
The only way to avoid liability is to have the landlord sign a novation. |
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Term
| What is the effect of the landlord's assignment of his interest in the leasehold estate? |
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Definition
| A landlord may assign his ownership interest to anyone. The tenant must still pay rent and follow all covenants so long as they TOUCH AND CONCERN THE LAND. |
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Term
| Are provisions prohibiting assignment and subletting permitted in leasehold contracts? |
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Definition
| Yes they are permitted. Generally, a leasehold tenant does not need to abide by them. However, a llandlord can terminate the lease for breach of the covenant and recover damages. |
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Term
| If a leasehold contract is silent on assignment and subletting of the leasehold estate, when may a landlord withhold permission? |
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Definition
| Only on commercially reasonable ground. |
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Term
| When does a landlord waive his objection to the assignment or sublease? |
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Definition
| When the landlord knows of the assignment or sublease and does not object. |
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Term
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Definition
| It is the taking of land either for public use or because it is unfit for use. It can be a partial taking or complete forfeiture. If condemnation is partial, the tenant is entitled to compensation for the portion of the property condemned. If condemnation is complete, the tenant is discharged from his rent obligation and is entitled to compensation. |
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Term
| The fair housing act prohibits discrimination is housing based on... |
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Definition
| Race, color, religion, national origin, sex, disability, familial status. |
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Term
| What are prohibited practices under the fair housing act? |
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Definition
1. Refusing to rent or sell housing.
2. Making housing unavailable
3. Providing different housing services or facilities
4. Setting different terms for sale or rental of a dwelling
5. Falsely denying that housing is available
6. Refusing to make a mortgage loan or imposing different terms..... |
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Term
| What are the requirements of adverse possession? |
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Definition
Adverse
Exclusive
Open and notorious
Continuous for the statutory period |
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Term
| What is required for adverse possessors to tack their time on to eachother? |
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Definition
| Either blood, contract, deed, or will. |
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Term
| The SOL will not run against a true owner in adverse possession if they are under a disability or in their minority... |
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Definition
| At the inception of the adverse possession. |
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Term
| If a person enters the adverse possession under color of title, but only actually possesses part of the land... |
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Definition
| They are deemed to constructively possess the entire property described in the deed. |
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Term
| The land sale contract must: |
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Definition
1. be in writing
2. Signed by the party to be charged
3. Contain all essential terms (parties, property, description, terms of price and payment. |
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Term
| What are the exceptions to the statute of frauds in the land sale contract? |
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Definition
1. Part performance (payment of all or part of the purchase price, possession by the purchaser, substantial improvement to the property by the purchaser)
2. Detrimental reliance
3. Admission to the existence of the contract |
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Term
| What is required to deliver marketable title? |
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Definition
| The deed must be free from an unreasonable risk of litigation. |
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Term
| When is the seller required to deliver marketable title? |
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Definition
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Term
| WHat is merger in the context of the land sale contract? |
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Definition
| Once the deed is delivered, the terms of the contract merge with the deed and the deed controls. Thereafter the purchaser is not able to enforce provisions of the purchase contract. |
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Term
| Name types of defects rendering title unmarketable. |
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Definition
1. Title acquired by adverse possession that has not been quieted
2. Future interests where the holders of such interests have not agreed to the transfer.
3. Private encumbrance
4. Zoning violation
5. Significant physical defect. |
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Term
| If the seller cannot give marketable title by closing, what are the buyer's remedies. |
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Definition
1. Rescind and recover payments.
2. Sue for breach.
3. Action for specific performance with an abatement of the purchase price. |
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Term
| What is "time is of the essence"? |
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Definition
If time is of the essence, the closing date is set in stone.
Generally court will assume that time is not of the essence in real estate contracts unless provided otherwise. |
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Term
| What is the implied warranty of fitness or suitability? |
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Definition
A warranty is implied in a land sale contract for the purchase of newly constructed residences that the home is of workmanlike construction.
It covers patent and latent defects. It allows subsequent purchasers of the home to recover, not just the ones in privity. |
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Term
| What types of covenants in the deed does the doctrine of merger not apply to? |
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Definition
| Obligations that are collateral to and independent of the conveyance itself such as the obligation of the buyer to perform some act on the property after acquisition. |
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Term
| What type of damages can a land sale transactant recover for breach of the transaction? |
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Definition
| Damages based on the difference between the contract price and the market value on the date of performance. If the seller breached but acted in good faith then damages are limited to the buyer's out of pocket expenses. |
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Term
| What is the doctrine of equitable conversion? |
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Definition
Although the seller retains legal title to real property during the pendancy of the land sale transaction, equitable title passes to the buyer upon entering the contract.
The effect is that during the time between the execution of the contract and the closing, the risk of loss is shifted to the buyer regardless of whether the buyer takes possession of the property unless the loss is attributed to the actions of the seller. |
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Term
| When an action is maintained against the seller for a claim that arose prior to the execution of the contract, is a judgment obtained against the seller after the execution of the contract enforceable against the real property? |
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Definition
| No, because of the doctrine of equitable conversion. |
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Term
| When the seller to a land sale transaction dies before the sale is completed, do his devisees have an interest in the real property? |
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Definition
| No, just an interest in the proceeds from the sale. |
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Term
| What type of security interest has priority at a foreclosure sale? |
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Definition
| A purchase-money mortgage. |
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Term
| What is statutory redemption? |
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Definition
| After the foreclosure sale is complete, some states still allow the debtor/mortgagor to redeem the property for a limited time. A redemption will nullify the sale. |
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Term
| What is an equitable redemption? |
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Definition
| The debtor/mortgagor can redeem the property before the foreclosure sale. |
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Term
| How does a deed of trust work in the land sale contract? |
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Definition
| In some states, a deed of trust (or trust deed) is used in place of a mortgage. The debtor (landowner) makes a note to a third-party trustee as collateral security for the payment of the note to the beneficiary (lender), with the condition that the trustee re-conveys the title to the debtor upon payment of the note. |
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Term
| How does the installment land contract work in the land sale contract |
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Definition
| An installment land contract is a contract for deed. The seller retains title until the buyer makes the final payment under an installment payment plan. Usually, installment land contracts allow the seller to keep all installment payments and retake possession if the buyer fails to make a payment. |
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Term
| When a buyer of real property assumes the mortgage, who is bound to the mortgagee? |
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Definition
| Both the original debtor and the buyer for payment of the debt. |
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Term
| If a buyer takes title subject to an existing mortgage, who is liable to the mortgage? |
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Definition
| The original debtor unless there is a novation. The buyer is not personally liable, but the property is. |
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Term
| What is a due-on-sale clause? |
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Definition
| It prevents the transfer of mortgages, and makes the entire mortgage due on sale of the property. |
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Term
| What happens when a mortgage is transferred without the note? |
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Definition
| Half states hold that the transfer was void. Half states hold that there is an automatic transfer. |
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Term
| What happens when the note is transferred without the mortgage? |
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Definition
| The mortgage always follows the note, so they are personally liable |
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Term
| Can the mortgagee take possession of the property prior to the foreclosure sale, but after notice of foreclosure has been given? |
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Definition
In a lein theory state, the mortgagee cannot take possession prior to foreclosure because the mortgagor is considered to be the owner of the land until foreclosure.
In a title theory state, the mortgagee can take possession at any time because title has passed. |
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Term
|
Definition
| Although a mortgagor may waive his right to redeem after the mortgage is executed in exchange for good and valuable consideration, courts ROUTINELY REJECT attempts by the mortgagee to deny the mortgagor the right to redeem prior to default. |
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Term
| If a bid at the sale is less than the outstanding debt, what are the lender's rights? |
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Definition
| The lender is granted a deficiency judgment for the balance of the debt against the debtor. |
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Term
| What is marshalling of assets? |
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Definition
| Where a senior mortgage holder forecloses, and there are several properties to which both the senior and juinior mortgage holders hold a mortgage, the junior mortgage holders can petition the court to force the senior mortgage holders to foreclose first on the interests that the senior mortgage holder holds alone in order to preserve the interests of the junior holders. |
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Term
| A purchaser at a foreclosure sale takes subject to any mortgages or leins that are: |
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Definition
| Senior to the foreclosing party's interest. |
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Term
| If a mortgage holder is junior to the foreclosing party, and is not made a party to the foreclosure action, what happens? |
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Definition
| His interest is preserved and the purchaser must take the property subject to the omitted junior interest holder. |
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Term
| What is a non-judicial foreclosure? |
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Definition
| Where the mortgage contains a "power of sale" clause, the sale of property is held in a private foreclosure when the mortgagor defaults. |
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Term
| What is the priority of payment in a foreclosure sale? |
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Definition
1. Pay off costs associated with the sale.
2. The balance and interest of the mortgage obligation being foreclosed.
3. The obligations to junior interest holders.
4. Residue to the debtor. |
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Term
| Is a senior mortgage that is not recorded given priority over junior interest holders? |
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Definition
| Not if the junior mortgage holders paid value for the mortgage and did not have actual inquiry or constructive notice of the senior mortgage. |
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Term
| Does a senior mortgage holder who enters into an agreement with the landowner to modify the mortgage by making it more burdensome subordinate his interest to junior mortgage holders? |
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Definition
| Only as to the modification, not the original mortgage. |
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Term
| What is an option contract? |
|
Definition
| Where one party acquires the right to purchase property during a period of time in exchange for consideration. |
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Term
| What is the difference between an offer for an option and an option contract? |
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Definition
| An option contract removes the ability of the grantor to revoke the option. An option may be revoked at any time unless the party has detrimentally relied on the offer. |
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Term
| Can a holder of an option contract make an offer different than the option provides wihout losing the option? |
|
Definition
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Term
| When the holder of the option wants to accept the option, is his option subject to the mailbox rule? |
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Definition
| No, the option holder's decision to exercise the option must be received by the grantor of the option within any time period specified in the contract. |
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Term
| What is the right of first refusal? |
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Definition
| A right of first refusal is a preemptive right that gives the holder the opportunity to acquire property prior to its transfer to another and is valid unless unreasonable. |
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Term
| When does the RAP apply to an option or right of first refusal? |
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Definition
| Always UNLESS it's an option or right of first refusal granted to a current leasehold tenant. |
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Term
| Does a real estate broker have a right to a commission when he has produced a ready willing and able buyer, but the buyer does not go through with the sale? |
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Definition
| Generally yes, but in some jurisdictions he is not. |
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Term
| What is required for a valid delivery of the deed? |
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Definition
| The grantor must at the time of the transfer intent to make a present transfer of a property interest to the grantee. It may be a future interest. Typically the intent is manifested by delivery of the deed, mailing to the grantee or his agent. It can also be implied from the words and conduct of the grantor. Physical transfer is not required and is not conclusive evidence of the grantor's intent. |
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Term
| Is parol evidence admissible to show that the grantor lacked the intent to transfer. |
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Definition
| Yes it is, but it is not admissible to show that there was an oral condition on the deed. |
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Term
| Does "Give this deed to B on his 21st birthday, unless I ask for the deed back before then.” create a valid transfer? |
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Definition
| No, because A retained an absolute right to recover the deed and therefore did not have the intent to make a present transfer. |
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Term
| Is acceptance required for a complete deed transfer? |
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Definition
| Yes, the grantee must accept the deed. |
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Term
| What are the three types of recording statutes? |
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Definition
| Notice, race-notice, race. |
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Term
| For a valid race or race-notice statute to be formed, what language is required regarding the recording. |
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Definition
| It must say "FIRST RECORDED" |
|
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Term
| Does a bona fide purchaser need to record to prevail over a donee-beneficiary? |
|
Definition
| No, recording statutes only protect subsequent bona fide purchasers. |
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Term
| Are mortgages and judgment liens subject to recording statutes? |
|
Definition
| Yes, but creditors are protected ONLY against claims that arise after judgment lien against a debtor is recorded unless otherwise indicated by statute. |
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Term
| What is the shelter rule? |
|
Definition
Grantors who are protected by the recording act protect their grantees who would otherwise be unprotected.
The exception to the shelter rule is that a purchaser who is not a bona fide purchaser cannot convey to a bona fide purchaser and then buy back the property to obtain the status of a bona fide purchaser. |
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Term
| What are the three types of notice sufficient to satisfy a notice or race-notice statute? |
|
Definition
Actual notice
Inquiry Notice (reasonable inquiry would have disclosed the encumbrance)
Record/constructive notice |
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|
Term
| What is an example of a wild deed? |
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Definition
First, O conveys Blackacre to A, but A does not record. Second, A conveys Blackacre to B, and B records. O then conveys Blackacre to C, who has no notice of the earlier conveyances to A or B. Next, C records. Then, A records the deed from O to A. B sues A for title to Blackacre. What is the result?
i) Under a race statute, C prevails even though B recorded the deed from A to B before C recorded the deed from O to C, because the deed from A to B was a “wild deed,” outside C’s chain of title. In performing a standard title search, C would have searched in the grantor index for deeds listing O as the grantor from the date the deed granting Blackacre to O was executed to the date C recorded the deed from O to C. No deed from O to A would have been discovered in such a search, and without finding a deed from O to A, B would not be expected to look for a deed from A to B.
ii) Under a notice statute, C prevails because he had no actual notice of the conveyances from O to A and from A to B, and the deed from A to B did not give him constructive notice because it was a wild deed.
iii) In a race-notice jurisdiction, C prevails for a combination of the two reasons above: C had no actual or constructive notice of O’s deed to A, and B’s prior recording of the deed from A to B does not count because it is a wild deed. |
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Term
| O conveys Blackacre to A, but A does not record. Next, O conveys Blackacre to B, who has actual notice of the conveyance from O to A, and B records. Then, A records. Next, B conveys to C, who has no actual notice of the O-to-A conveyance. C sues A for title to Blackacre. What is the result? |
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Definition
i) Under a race statute, C prevails even though A recorded the deed, because A’s deed was recorded outside C’s chain of title. Remember that under the standard title search, C would only research the grantor index under O’s name until the date that B recorded the deed from O to B. Because O’s deed to A was filed after that date, it is not considered “duly recorded” for the purposes of a race statute.
ii) Under a notice statute, C wins because C had no notice and because A’s deed was recorded outside C’s chain of title.
iii) In a race-notice jurisdiction, C wins because both race and notice requirements are met. |
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Term
| What is estoppel by deed? |
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Definition
| A grantor who conveys an interest to land by warranty deed before actually owning the deed is estopped from later denying the effectiveness of the deed. |
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Term
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Definition
| It protects owners or lenders against the actual monetary loss due to such matters as title defects and lien problems. |
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Term
| What are the six covenants in a general warranty deed? (3 present and 3 future) |
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Definition
Present:
Seisen-The grantor owns the land described in the deed.
Right to Convey-The grantor has the right to transfer title
Covenant against encumbrances: No undisclosed encumbrances
Future covenants (which run with the land):
1. Quiet enjoyment: Protects against subsequent lawful claims of title.
2. Warranty: Protects against subsequent lawful claims of encroachment.
3. Future assurances (in some jxs): Promise to do whatever is necessary to pass title to the grantee if it is later determined that the grantor omitted something required to pass valid title. |
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Term
| When does a breach of present and future covenant arise? |
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Definition
Present arises at the time of conveyance.
Future arises when a subsequent grantee interferes with possession |
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Term
| What is a special warranty deed? |
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Definition
| A special warranty deed contains the same covenants of title as a general warranty but only warrants against defects arising during the time the grantor has title. |
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Term
| Which warranties does a quitclaim deed have? |
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Definition
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Term
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Definition
| A tangible piece of personal property attached to real property in a manner that is treated as part of the real property when determining its ownership. |
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Term
| Can a fee simple owner of real property remove a fixture before selling the property? |
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Definition
Generally, the fixture stays on the properrty, but judged by an objective reasonable person standard, the court will judge certain factors:
the importance of the chattel to the real property, whether the chattel was specially designed for use on the real property, and the amount of damage to the real property that removal of the chattel would cause.
Generally, the buyer of real property is entitled to chattel unless the seller reserves the right to remove the fixture in the contract of sale. |
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Term
| Is a mortgagee entitled to the chattel upon foreclosure of the mortgage? |
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Definition
| Generally, they are unless the mortgage provides otherwise. |
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Term
| Can a tenant remove a fixture? |
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Definition
Yes, if:
1. The leased property can be and is restored to its former condition after the removal
2. The removal and restoration is made within a reasonable time.
If the leased premises cannot be restored to its former condition within a reasonable time, the tenant can only remove the fixture with the consent of the landlord. |
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Term
| Can a trespasser remove a fixture? |
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Definition
| Only in modern jxs and good faith is required. |
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Term
| When there is a conflict between the mortgagee of real property and the holder of a security interest in a fixture attached to real property, who has priority? |
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Definition
| Generally, the first to record except when the security interest is a purchase money interest in the acquisition of the goods. |
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Term
| What is the doctrine of exoneration of leins? |
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Definition
| If a testator makes a devise of real property that is subject to an encumbrance, the devisee is entitled to have the land exonerated by payment of the encumbreance from the remaining assets in the testator's estate. |
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Term
| When is restraint on alienation void? |
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Definition
| When it purports to prohibit alienation and render any conveyance by the grantee void. |
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Term
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Definition
| The right of one person to use the land of another. |
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Term
| What is an affirmative easement? |
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Definition
| An easement that gives another the right to use the land for a specific purpose. |
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Term
| What is an easement by reservation? |
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Definition
| When the grantor conveys land but reserves an easement right in the land for his own use and benefit. |
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Term
| What is an easement appurtenant? |
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Definition
| An easement that is tied to the land |
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Term
| What is an easement in gross? |
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Definition
| An easement that is granted to the benefit of a particular person. |
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Term
| What are the ways easements can be created? |
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Definition
1. Express easement
2. Easement by necessity
3. Easement by implication
4. Easement by prescription
5. Easement by estoppel |
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Term
| What is an easement by necessity? |
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Definition
An easement is created when property is virtually useless without the use of the easement. (landlocked)
The dominant and servient estates must have been under common ownership in the past and the necessity must arise at the time the property was severed and the two estates were created. REQUIRES STRICT NECESSITY |
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Term
| What is an easement by implication |
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Definition
Where an easement was previously used on the servient estate by an earlier owner, the court may imply the continued use of the easement is the prior use was:
Continuous, apparent, and REASONABLE NECESSESSARY to the land's enjoyment |
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Term
| What is an easement by prescription? |
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Definition
| An easement acquired by adverse possession. EXCEPT FOR EXCLUSIVITY |
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Term
| What is an easement by estoppel? |
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Definition
| Good-faith reasonable detrimental reliance on permission by a servient estate holder for use of the easement. |
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Term
| What is a negative easement? |
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Definition
| It is a restrictive covenant basically that prevents the owner from using the land in particular ways. |
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Term
| Can easements appurtenant and in gross be transferred? |
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Definition
| Generally, both can be transferred, but easements in gross, courts look at the intent of the parties to determine whether it was transferrable. |
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Term
| What are the ways to terminate an easement? |
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Definition
Release (express release that complies with the SOF)
Severance (an attempt to transfer the easement appurtenant separate from the land)
Abandonment (Affirmative actions that show a clear intent to relinquish the easement right)
Merger (only applicable to easements appurtenant, where the servient and dominant estate merge) |
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Term
| If a written easement is granted but not recorded against the servient estate, is the easement enforceable? |
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Definition
| Not against a bona fide purchaser with no notice. |
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Term
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Definition
An easement that confers the right to enter another's land and remove natural resources.
If the profit is exclusive, then the holder has the exclusive right to enter and take the subject matter. |
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Term
| Does the owner of an easement have the right and duty to maintain the easement? |
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Definition
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Term
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Definition
| A restriction to the right to use land when damages are sought for enforcement. |
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Term
| What are the requirements for a real covenant to run with the land? |
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Definition
1. A writing
2. Intent to run with the land (and his heirs and assigns language)
3. Touch and concern (The burden or benefit affects the promisee and promisor as owners of land, not just individually)
4. Notice (only applicable for the burden to run)
5. Horizontal privity (only for the burden to run...the original parties to the covenant must have been in privity of estate at the time the agreement was entered into)
6. Vertical privity (transfer of the same interest for the burden to run, transfer of SOME interest for the benefit to run) |
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Term
| What is an equitable servitude? |
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Definition
| A restriction on the use of land where injunctive relief is sought. |
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Term
| What are the requirements for an equitable servitude to run with the land? |
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Definition
1. Intent to run with the land
2. Touch and concern
3. Actual, record, or inquiry notice. |
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Term
| What is an implied reciprocal servitude? |
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Definition
| It is where there is a subdivision and the servitude is enforced based on the common scheme of development. |
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Term
| What are the requirements for an implied reciprocal servitude? |
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Definition
1. Intent to create a servitude on all plots
2. The servitude must be negative
3. The party against whom enforcement of the servitude is sought must have actual, record, or inquiry notice. |
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Term
| How can constructive notice be established through an implied reciprocal servitude? |
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Definition
1. A recording map showing the scheme
2. Telling purchasers of the lots about the plan
3. Including a common building restriction in most of the lot deeds. |
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Term
| What is the changed circumstances exception to termination of covenants/servitudes? |
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Definition
| If a restriction on a property no longer makes sense to enforce due to drastic changes in the surrounding area since the restriction was first contemplated, the restriction will not be enforced. A good indication that the neighborhood has changed is a variance in zoning ordinances. |
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Term
| The riparian rights doctrine states that water belongs to those who: |
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Definition
| Own the land bordering the water course. One riparian is liable to another for unreasonable interference with use of the water |
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Term
| What is a zoning ordinance? |
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Definition
| A law that prohibits incompatible uses from developing in the same area. |
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Term
| How does one get around a zoning ordinance? |
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Definition
| Obtains an exemption or a variance. |
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Term
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Definition
| Crops. They are generally conveyed with the land with the exception of harvested crops. A prior owner of the land can enter and remove the crops that he harvested. |
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