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Property
Property flash cards
248
Law
Graduate
07/14/2007
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Term
Property Question 01;;What kind of estate is created by the language "To A and his heirs"?
 Definition
Property Answer 001;;Fee simple absolute. Absolute ownership, of potentially infinite duration. Devisable, descendible, alienable. No future interest.
Term
Property Question 02;;What kind of estate is created by the language "To A."?
 Definition
Property Answer 002;;Fee simple absolute. Absolute ownership, of potentially infinite duration. Devisable, descendible, alienable. No future interest.
Term
Property Question 03;;What kind of estate is created by the language "To A and the heirs of his body."?
 Definition
Property Answer 003;;Fee Tail. Lasts only as long as there are lineal blood descendants of grantee. Passes automatically to grantee's lineal descendants. Reversion (if held by grantor);Remainder (if held by third party).
Term
Property Question 04;;What kind of estate is created by the language "To A so long as..."?
 Definition
Property Answer 004;;Defeasible Fee: Fee simple determinable. Potentially infinite, so long as the stated event does not occur. Alienable, devisable, descendible, subject to condition. Possibility of Reverter (held by grantor).
Term
Property Question 05;;What kind of estate is created by the language "To A until..."?
 Definition
Property Answer 005;;Defeasible Fee: Fee simple determinable. Potentially infinite, so long as the stated event does not occur. Alienable, devisable, descendible, subject to condition. Possibility of Reverter (held by grantor).
Term
Property Question 06;;What kind of estate is created by the language "To A while..."
 Definition
Property Answer 006;;Defeasible Fee: Fee simple determinable. Potentially infinite, so long as the stated event does not occur. Alienable, devisable, descendible, subject to condition. Possibility of Reverter (held by grantor).
Term
Property Question 07;;What kind of estate is created by the language "To A, but if X event happens, grantor reserves the right to reenter and retake."?
 Definition
Property Answer 007;;Defeasible Fee: Fee Simple subject to condition subsequent. Potentially infinite, so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination. Alienable, devisable, descendible, subject to condition. Right of Entry/Power of Termination (held by grantor).
Term
Property Question 08;;What kind of estate is created by the language "To A, but if X event occurs, then to B."?
 Definition
Property Answer 008;;Fee simple subject to an Executory Limitation. Potentially infinite, so long as stated contingency does not occur. Alienable, devisable, descendible, subject to condition. Executory Interest (held by third party).
Term
Property Question 09;;What kind of estate is created by the language "To A for life."?
 Definition
Property Answer 009;;Life Estate. Measured by life of transferee. Alienable, devisable and descendible if pur autre vie and measuring life is still alive. Reversion (if held by grantor);Remainder (if held by third party).
Term
Property Question 10;;What kind of estate is created by the language "To A for the life of B."?
 Definition
Property Answer 010;;Life estate (per autre vie). Measured by life of transferee or by some other life (pur autre vie). Alienable, devisable and descendible if pur autre vie and measuring life is still alive. Reversion (if held by grantor);Remainder (if held by third party).
Term
Property Question 11;;O conveys "to A" or "to A and his heirs." A is alive and well. What do A's heirs have?
 Definition
Property Answer 011;;Nothing. Only A has absolute ownership: a living person has no heirs. Thus, while A is alive, he has only prospective heirs. They are powerless.
Term
Property Question 12;;Paul conveys Blackacre "to Ringo so long as the premises are used as a recording studio." What estate does Ringo have?
 Definition
Property Answer 012;;Ringo has a fee simple determinable. "So long as" is clear durational language.
Term
Property Question 13;;Paul conveys Blackacre "to Ringo so long as the premises are used as a recording studio." Suppose that Ringo in turn conveys to Mick, who seeks to convert the recording studio into a bowl-a-rama. May Mick do so?
 Definition
Property Answer 013;;No, not without forfeiting the estate. Ringo had a fee simple determinable. "So long as" is clear durational language. You may convey less than what you started with, but you can't convey more.
Term
Property Question 14;;Frank Sinatra conveys Sinatra Palace "to Orville Redenbacher, so long as popcorn is never made on the premises." Classify the interests.
 Definition
Property Answer 014;;"Fee Simple Determinable, Possibility of Reverter" Orville has: fee simple determinable. Frank has: possibility or reverter (not "reversion").
Term
Property Question 15;;Ross conveys "To Rachel, but if coffee is ever consumed on the premises grantor reserves the right to re-enter and re-take." So who has what?
 Definition
Property Answer 015;;Rachel has: fee simple subject to condition subsequent. Ross has: "right of entry" a.k.a. "power of termination". This estate is NOT automatically terminated, but it can be cut short at the grantor's option, if the stated condition occurs. Not automatic, so this rule is less harsh. In New York, the fee simple subject to condition subsequent is called: a fee on condition, and the right of entry is called "the right of re-acquisition."
Term
Property Question 16;;"To Barry Manilow, but if Manilow ever performs music on the premises, then to Mandy." Who has what?
 Definition
Property Answer 016;;Barry has: fee simple subject to Mandy's shifting executory interest. Mandy has: shifting executory interest. If the condition is broken, the estate is automatically forfeiture in favor of someone other than the grantor.
Term
Property Question 17;;"To A for the purpose of constructing a day care center." Who has what?
 Definition
Property Answer 017;;Fee simple absolute, not a defeasible fee. Words of mere desire, hope, or intention are insufficient to create a defeasible fee. Courts disfavor restrictions on free use of land. Thus, courts will not find a defeasible fee unless clear durational language is used.
Term
Property Question 18;;"To A with the hope that he becomes a lawyer." Who has what?
 Definition
Property Answer 018;;Fee simple absolute, not a defeasible fee. Words of mere desire, hope, or intention are insufficient to create a defeasible fee. Courts disfavor restrictions on free use of land. Thus, courts will not find a defeasible fee unless clear durational language is used.
Term
Property Question 19;;"To A with the expectation that the premises will be used as a Blockbuster video store." Who has what?
 Definition
Property Answer 019;;Fee simple absolute, not a defeasible fee. Words of mere desire, hope, or intention are insufficient to create a defeasible fee. Courts disfavor restrictions on free use of land. Thus, courts will not find a defeasible fee unless clear durational language is used.
Term
Property Question 20;;O conveys: "To A so long as she never attempts to sell." Who has what?
 Definition
Property Answer 020;;A has: Fee simple absolute, O has: Nothing. This is an absolute restraint on alienation. It's void. An absolute restraint on alienation is an absolute ban on the power to sell or transfer, that is not linked to any reasonable time limited purpose.
Term
Property Question 21;;O conveys: "To A so long as she does not attempt to sell until the year 2008, when clouds on the title will be resolved." Who has what?
 Definition
Property Answer 021;;A has: Fee simple determinable. O has: Possibility of reverter. Here the restraint is linked to a reasonable, time-limited purpose. So it's ok.
Term
Property Question 22;;O conveys: "To A for life." Who has what?
 Definition
Property Answer 022;;A has: a life estate;A is known as: life tenant. O has: reversion, meaning that at the end of A's lifetime, the estate reverts back to O or O's heirs.
Term
Property Question 23;;"To A for 50 years, if she lives that long." What estate is created?
 Definition
Property Answer 023;;Term of years (a leasehold interest).
Term
Property Question 24;;"To A for life, but in no event more than 10 years." What estate is created?
 Definition
Property Answer 024;;Term of years (a leasehold interest).
Term
Property Question 25;;O conveys: "To Madonna, for the life of David Letterman." Who has what?
 Definition
Property Answer 025;;Madonna has: life estate pur autre vie. O has: reversion. At the end of Letterman's life, the estate reverts back to O or O's heirs.
Term
Property Question 26;;O conveys "to Madonna for life." Madonna then sells her entire interest to David Letterman.
 Definition
Property Answer 026;;David Letterman has: a life estate pur autre vie. O has: reversion. At the end of Madonna's life, the estate reverts back to O or O's heirs. It is permissible for a life tenant to sell her interest. But the holder of a mere life estate cannot presume to sell more than that.
Term
Property Question 27;;What obligations does a life estate holder owe to the future interest holders? What does she get to keep?
 Definition
Property Answer 027;;The life tenant must not commit waste - i.e. hurt the future interest holders. The life tenant is entitled to: all ordinary uses and profits from the land.
Term
Property Question 28;;What are the three kinds of waste that a life tenant must not commit?
 Definition
Property Answer 028;;(1) Voluntary or affirmative waste. (2) Permissive waste, or neglect. (3) Ameliorative waste
Term
Property Question 29;;What is Voluntary or affirmative waste of a life tenant?
 Definition
Property Answer 029;;This is an actual overt conduct that decreases value. The life tenant must not consume or exploit natural resources on the property (such as timber, oil, or minerals), unless one of four exceptions applies, PURGE.;(1) Prior Use, meaning that prior to the grant, the land was used for exploitation (in regular English - "exploited"). Here, the life tenant may continue to exploit, unless otherwise agreed. Note: Prior Use and the Open Mines Doctrine: If mining was done on the land before the life estate began: the life tenant may continue to mine, but is limited to mines already open. Thus, the life tenant must not open any new mines.;(2) Reasonable repairs. The life tenant may consume natural resources for reasonable repairs and maintenance of the premises;(3) Grant. The life tenant may exploit if expressly granted the right to do so;(4) Exploitation, meaning this land is suitable only for exploitation (like a quarry).
Term
Property Question 30;;What is the life tenant's obligation as to Permissive waste, or neglect?
 Definition
Property Answer 030;;Permissive waste, or neglect occurs when land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land. The life tenant must simply maintain the premises in reasonably good repair. Fix holes in the roof, not responsible for a new roof. The life tenant is obligated to pay all ordinary taxes on the land, to the extent of income or profits from the land. If there is no income or profit, the life tenant is required to pay all ordinary taxes to the extent of premises' fair rental value.
Term
Property Question 31;;What is the life tenant's obligation to ameliorate waste?
 Definition
Property Answer 031;;The life tenant must not engage in acts that will enhance the property's value, unless: all of the future interest holders are known and consent.
Term
Property Question 32;;What is the life estate's accompanying future interest?
 Definition
Property Answer 032;;If held by O, the grantor, it is called a reversion. If held by a third party, it is a remainder.;;In New York, the life tenant may make reasonable improvements, unless the remaindermen object.
Term
Property Question 33;;What are the three future interests capable of creation in the grantor?
 Definition
Property Answer 033;;(1) The Possibility of Reverter: It accompanies only the fee simple determinable.;(2) The Right of Entry, also known as the Power of Termination: It accompanies only the fee simple subject to condition subsequent;(3) The Reversion: A reversion is the future interest that arises in a grantor who transfers an estate of lesser quantum than she started with, other than a fee simple determinable (which has reverter) or a fee simple subject to condition subsequent (which has re-entry/termination).
Term
Property Question 34;;O, the holder of a fee simple absolute (which can last forever), conveys:
 Definition
Property Answer 034;;O has conveyed less than what she started with. She has a reversion. Transferred less than she started with, so this is a "leftover."
Term
Property Question 35;;O, the holder of a fee simple absolute (which can last forever), conveys: "To A for 99 years."
 Definition
Property Answer 035;;O has conveyed less than what she started with. She has a reversion.
Term
Property Question 36;;O, the holder of a fee simple absolute (which can last forever), conveys: "To A for life, then to B for 99 years."
 Definition
Property Answer 036;;O has still conveyed less than that with which she started. (Remember that the fee simple absolute can endure forever.) O has a reversion.
Term
Property Question 37;;What is a vested remainder?
 Definition
Property Answer 037;;A vested remainder (of which there are three species: (i) the indefeasibly vested remainder, (ii) the vested remainder subject to complete defeasance (also known on the test as the vested remainder subject to total divestment), and (iii) the vested remainder subject to open).
Term
Property Question 38;;What are the three kinds of future interests held by someone other than the grantor?
 Definition
Property Answer 038;;Vested remainder, contingent remainder or executory interests.;There are three kinds of vested remainders: (i) the indefeasibly vested remainder, (ii) the vested remainder subject to complete defeasance (also known on the test as the vested remainder subject to total divestment), and (iii) the vested remainder subject to open.;There are two kinds of executory interests: (i) the shifting executory interest, and (ii) the springing executory interest.
Term
Property Question 39;;What is a remainder?
 Definition
Property Answer 039;;A remainder is a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.
Term
Property Question 40;;Can a remainderman divest a prior transferee?
 Definition
Property Answer 040;;No. Remainderman cannot cut short or divest a prior transferee. In other words, if your present estate is a defeasible fee, your future interest is NOT a remainder. Instead, it will be an executory interest if held by someone other than the grantor.
Term
Property Question 41;;What makes a remainder vested?
 Definition
Property Answer 041;;A remainder is vested if it is both created in an ascertained person and is not subject to any condition precedent. Note: In New York, any future interest in a transferee that is subject to a condition precedent is called a remainder subject to a condition precedent.
Term
Property Question 42;;What makes a remainder contingent?
 Definition
Property Answer 042;;A remainder is contingent if it is created in an unascertained person or is subject to a condition precedent, or both. Note: In New York, any future interest in a transferee that is subject to a condition precedent is called a remainder subject to a condition precedent.
Term
Property Question 43;;"To A for life, then to B's first child." A is alive. B, as yet, has no children. What does B's first child have?
 Definition
Property Answer 043;;Contingent remainder. The remainder that is contingent because it is created in as yet unborn or unascertained persons.
Term
Property Question 44;;"To A for life, then to B's heirs." A is alive. B is alive. What do B's heirs have?
 Definition
Property Answer 044;;Contingent remainder. Because a living person has no heirs, while B is alive his heirs are unknown. The remainder that is contingent because it is created in as yet unborn or unascertained persons.
Term
Property Question 45;;"To A for life, then to those children of B who survive A." A is alive.
 Definition
Property Answer 045;;Contingent remainder. We don't yet know which, if any, of B's children will survive A. The remainder that is contingent because it is created in as yet unborn or unascertained persons.
Term
Property Question 46;;"To A for life, then, if B graduates from college, to B." What does B have?
 Definition
Property Answer 046;;A condition precedent. Before B can take, he must graduate from college. He has not yet satisfied this condition precedent. The remainder that is contingent because it is subject to a condition precedent. A condition is a condition precedent when it appears before the language creating the remainder or is woven into the grant to remainderman. "if B graduates from college" is the condition precedent. It is a prerequisite for admission to Blackacre. O has: reversion. (If B never graduates, O or O's heirs take.) If B graduates from college during A's lifetime: B's contingent remainder is transformed automatically into an indefeasibly vested remainder.
Term
Property Question 47;;"To A for life, and, if B has reached the age of 21, to B." A is alive. B is 19 years old.
 Definition
Property Answer 047;;Again, B must satisfy a condition precedent before B can take. B therefore has: a contingent remainder. The remainder that is contingent because it is subject to a condition precedent. A condition is a condition precedent when it appears before the language creating the remainder or is woven into the grant to remainderman. O has: a reversion. (If B never reaches 21, the estate reverts back to O or O's heirs.) If B attains the age of 21 during A's lifetime: B's contingent remainder is transformed automatically into an indefeasibly vested remainder.
Term
Property Question 48;;"To A for life, and if B has reached the age of 21, to B." Now, A has died, leaving behind B, who is still only 19 years old. Assess the state of the title.
 Definition
Property Answer 048;;B's contingent remainder is destroyed. Thus, the grantor or their heirs would take in fee simple absolute.;;Today: The Destructibility Rule has been abolished. Thus, if B is still under 21 when A dies, the grantor's heirs hold the estate subject to B's springing executory interest. Once B reaches 21, B takes.
Term
Property Question 49;;O conveys "To A for life, then, on A's death, to A's heirs." A is alive.
 Definition
Property Answer 049;;Historically: The present and future interests merge, giving A fee simple absolute. The Rule in Shelley's Case is a rule of law, and not a rule of construction. It would apply even in the face of contrary intent of the grantor.;;The Rule in Shelley's Case has been virtually abolished. Thus, today, when O conveys "To A for life, then to A's heirs:" A has life estate. A's as yet unknown heirs have a contingent remainder. O has a reversion, since A could die without heirs.
Term
Property Question 50;;What's the deal with Shelly's Case in New York?
 Definition
Property Answer 050;;The Rule in Shelley's Case has been abolished in New York.
Term
Property Question 51;;O, who is alive, conveys "To A for life, then to O's heirs." Who has what?
 Definition
Property Answer 051;;If the Doctrine of Worthier Title did not apply, A has a life estate and O's heirs have a contingent remainder, because O is still alive and a living person has no heirs. Instead, because of the Doctrine of Worthier Title, the contingent remainder in O's heirs is void. Thus, A has a life estate and O has a reversion.
Term
Property Question 52;;What is the Doctrine of Worthier Title New York exception?
 Definition
Property Answer 052;;The Doctrine of Worthier Title (also known as the rule against a remainder in grantor's heirs) has been abolished in New York with respect to transfers taking effect after September 1, 1967.
Term
Property Question 53;;"To A for life, remainder to B." A is alive. B is alive. Who has what?
 Definition
Property Answer 053;;A has: life estate. B has: indefeasibly vested remainder, because his identity is known. What if B predeceases A? At common law, B's future interest passes by his will or by intestacy to his heirs.
Term
Property Question 54;;What is the difference between a condition precedent and a condition subsequent?
 Definition
Property Answer 054;;A condition precedent creates a contingent remainder, and a condition subsequent creates a vested remainder subject to complete defeasance. To tell the difference, apply the "Comma Rule": When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent, and you have a vested remainder subject to complete defeasance.
Term
Property Question 55;;O conveys: "To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C." A is alive. B is 20 years old. Has this created a condition precedent or a condition subsequent? Who has what?
 Definition
Property Answer 055;;Condition subsequent. "Remainder to B" is the vested remainder - "that if B dies under the age of 25" is the condition subsequent. A has: a life estate. B has: a vested remainder subject to complete defeasance due to a condition subsequent. C has: a shifting executory interest. If B is under 25 at the time of A's death: B still takes. However, B must live to 25 for his estate to retain his interest. Otherwise, B's heirs lose it all, and C or C's heirs take. B can enter but has to leave if condition subsequent occurs. O has: reversion, because it is possible that neither C nor C's heirs will exist if and when the condition is breached.
Term
Property Question 56;;O conveys "To A for life, and if B has reached the age of 25, to B." "and if B reaches..." is a condition precedent. B has to reach 25 before he can enter blackacre. A is alive. B is 20 years old. Who has what?
 Definition
Property Answer 056;;A has: a life estate. B has: a contingent remainder, because his taking is subject to a condition precedent. B must be 25 before he can take possession. O has: a reversion. (If B dies under 25, the estate reverts back to O or O's heirs.) If B is still alive but under 25 at the time of A's death, B cannot take. Instead, the estate reverts back to the grantor or his heirs, who holds it subject to B's springing executory interest. (If and when B reaches 25, B divests O.)
Term
Property Question 57;;"To A for life, then to B's children." A is alive. B has two children, C and D. What do C and D have?
 Definition
Property Answer 057;;Vested remainders subject to open. Shares decrease if B has another child. A remainder is vested in a group of takers, at least one of whom is qualified to take possession. A "class gift." But each class member's share is subject to partial diminution because additional takers not yet ascertained can still qualify as class members.
Term
Property Question 58;;"To A for life, then to B's children." A is alive. B has two children, C and D. When is the class closed?
 Definition
Property Answer 058;;A's death or B's death. Apply the common law rule of convenience: The class closes whenever any member can demand possession. At B's death, and also, according to the rule of convenience, at A's death, no matter that B is still alive. Why? That's when C and D can demand possession. The womb rule: a child of B on the womb at A's death will share with C and D. What if C or D predeceases A? At common law their share goes to their devises or heirs.
Term
Property Question 59;;What is an executory interest?
 Definition
Property Answer 059;;It is a future interest created in a transferee (a third party), which is not a remainder and which takes effect by either cutting short some interest in another person ("shifting") or in the grantor or his heirs ("springing").
Term
Property Question 60;;"To A and her heirs (so, potentially unlimited), but if B returns from Canada sometime next year, to B and his heirs (so, potentially unlimited)."Who has what?
 Definition
Property Answer 060;;Defeasable fee. B has: shifting executory interest. A has: fee simple subject to B's shifting executory interest.
Term
Property Question 61;;"To A, but if A uses the land for nonresidential purposes at any time during the next 20 years, then to B." Who has what?
 Definition
Property Answer 061;;B has: shifting executory interest. A has: fee simple subject to B's shifting executory interest.
Term
Property Question 62;;"To A, but if A uses the land for nonresidential purposes at any time during the next 20 years, then to B." Who has what?
 Definition
Property Answer 062;;B has: shifting executory interest. A has: fee simple subject to B's shifting executory interest.
Term
Property Question 63;;O conveys: "To A, if and when he marries." A is unmarried. Who has what? Is there a Rule Against Perpetuities problem?
 Definition
Property Answer 063;;A has: Springing executory interest. O has: fee simple subject to A's springing executory interest. The conveyance does not violate the rule against perpetuities, because we know by the end of A's life whether the condition will be met or not.
Term
Property Question 64;;O conveys: "To A, if and when he becomes a lawyer." A is in high school. Who has what? RAP problem?
 Definition
Property Answer 064;;A has: a springing executory interest. O has: fee simple subject to A's springing executory interest. The conveyance does not violate the rule against perpetuities, because we know by the end of A's life whether the condition will be met or not.
Term
Property Question 65;;What is the NY distinction on executory interests and contingent remainders?
 Definition
Property Answer 065;;New York has abolished the distinction between executory interests and contingent remainders. Instead, contingent remainders and executory interests are called: remainders subject to condition precedent.
Term
Property Question 66;;What is the rule against perpetuities?
 Definition
Property Answer 066;;Certain kinds of future interests 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. Clouds over title must clear in about 100 years.
Term
Property Question 67;;"To A for life, then to A's children." A is alive. She has no children. What do A's children have? RAP problem?
 Definition
Property Answer 067;;The as yet unborn children have: a contingent remainder, and no RAP problem. Will vest at A's death because we will know if kids, which is less that 21 years.
Term
Property Question 68;;"To A for life, then to the first of her children to reach the age of 30." A is 70. Her only child, B, is 29 years old. Who has what? RAP problem?
 Definition
Property Answer 068;;Contingent remainder - a future interest of an unknown party. But, there is a RAP problem. B, who is 29, could die tomorrow. Thereafter, A could have another child, no matter that A is 70. (This is called the Fertile Octogenarian Rule. It presumes that a person is fertile regardless of their age.) So A has a life estate. O has a reversion.
Term
Property Question 69;;What are the two Bright Line Rules of Common Law RAP?
 Definition
Property Answer 069;;(1) A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP.;(2) An executory interest with no limit on the time within which it must vest violates the RAP.
Term
Property Question 70;;"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." Who has what? RAP problem?
 Definition
Property Answer 070;;B seems to have a shifting executory interest. A might abide by the condition during her lifetime. And The condition may not be breached, if ever, until hundreds of years have passed. Thus the future interest is void. Once the offensive future interest is stricken, we are left with: "To A and his heirs so long as the land is used for farm purposes." Thus, A now has: fee simple determinable. O now has: Possibility of reverter. RAP will not apply to any future interest created in the grantor.
Term
Property Question 71;;"To A and his heirs, but if the land ceases to be used for farm purposes, to B and his heirs." Wht interest is created?
 Definition
Property Answer 071;;B seems to have a shifting executory interest. A might abide by the condition during her lifetime. And The condition may not be breached, if ever, until hundreds of years have passed. Thus the future interest is void.
Term
Property Question 72;;What is the charity-to-charity exception?
 Definition
Property Answer 072;;A gift from one charity to another does not violate the rule against perpetuities. Encourages charitable giving.
Term
Property Question 73;;"To the American Red Cross, so long as the premises are used for Red Cross purposes, and if they cease to be so used, then to the YMCA." Who has what?
 Definition
Property Answer 073;;Ordinarily, the YMCA would have: a void shifting executory interest. However, because of the charity-to-charity exception to the RAP: the gift is good. Thus, the American Red Cross has fee simple subject to the YMCA's valid shifting executory interest.
Term
Property Question 74;;What is the "wait and see" or "second look" doctrine?
 Definition
Property Answer 074;;Under this majority reform effort, the validity of any suspect future interest is determined on the basis of: the facts as they now exist at the conclusion of the measuring life. This eliminates the: "what if" or "anything is possible" line of inquiry. Look at the actual facts.
Term
Property Question 75;;What is the Uniform Statutory Rule Against Perpetuities (USRAP)?
 Definition
Property Answer 075;;Codifies the common law RAP and, in addition, provides for: an alternative 90 year vesting period.
Term
Property Question 76;;What is the cy pres doctrine?
 Definition
Property Answer 076;;If a given disposition violates the rule, a court may reform it in a way that most closely matches grantor's intent while still complying with RAP. "As near as possible."
Term
Property Question 77;;Under "wait and see" and USRAP, what happens to an age contingency clause beyond 21 years?
 Definition
Property Answer 077;;If contingency violates RAP because beneficiary has to get past 21 years of age, it becomes 21 years of age.
Term
Property Question 78;;What's the deal with the New York Perpetuities Reform Statute?
 Definition
Property Answer 078;;New York applies the common law rule against perpetuities, and has rejected wait and see and cy pres, except for charitable trusts and powers of appointment.;(1) Under the New York perpetuities reform statute, where an interest would be invalid because it is made to depend on any person's having to attain an age in excess of 21 years: the age contingency is reduced to 21 years;(2) The common law fertile octogenarian principle is modified by the New York perpetuities reform statute. The New York statute presumes that a woman over the age of 55 cannot have a child. The possibility that the person may have a child by adoption is disregarded.;(3) The New York "suspension" rule: the rule against suspension of the absolute power of alienation applies common law RAP to restrictions on the power to sell or transfer. Thus, an interest is void if it suspends the power to sell or transfer for a period longer than lives in being plus 21 years.
Term
Property Question 79;;What is a joint tenancy?
 Definition
Property Answer 079;;2 or more own with right of survivorship. When one joint tenant dies his share passes automatically to the surviving joint tenants. A joint tenant's interest is alienable. It is not however devisable or descendible because of the right of survivorship.
Term
Property Question 80;;What is tenancy by the entirety?
 Definition
Property Answer 080;;The tenancy by the entirety is a protected marital interest between husband and wife with the right of survivorship.
Term
Property Question 81;;What is a tenancy in common?
 Definition
Property Answer 081;;The tenancy in common is 2 or more own with no right of survivorship. Also grantor must clearly express the right of survivorship.
Term
Property Question 82;;What are the four unities required for creating a joint tenancy?
 Definition
Property Answer 082;;T-Tip: Joint tenants must take their interests at the same TIME, by the same TITLE, with identical equal INTERESTS, and identical right to POSSESS the whole.
Term
Property Question 83;;Dave holds Blackacre in fee simple absolute. He wishes to hold it as a joint tenant with his best friend Paul. How must Dave proceed?
 Definition
Property Answer 083;;To satisfy the four unities, Dave must use a strawman. Step One: Dave conveys to strawman. Step Two: Strawman conveys to Dave and Paul as joint tenants with right of survivorship. Now, all four unities are present, including the unities of time and title.;;In New York, by statute, it's ok for Dave to convey directly to himself and Paul as joint tenants.
Term
Property Question 84;;Can a joint tenant can sell or transfer her interest during her lifetime?
 Definition
Property Answer 084;;Yes. Can do so without the other tenant's knowledge or consent. Doing so severs the joint tenancy as to the seller's interest because it disrupts the 4 unities. Thus, buyer is a tenant in common. To the extent that we started with more than two joint tenants in the first place: the joint tenancy remains intact, as between the other, non-transferring joint tenants.
Term
Property Question 85;;O conveys Blackacre "To Phoebe, Ross, and Monica as joint tenants with the right of survivorship." Phoebe then sells her interest to Chandler. What is the state of the title? If Ross dies, leaving heir Rachel?
 Definition
Property Answer 085;;Phoebe's act severs the joint tenancy as to Phoebe's interest. Ross and Monica still hold 2/3rd as joint tenants, and Chandler holds 1/3rd as their tenant in common.;;If later, Ross dies, leaving behind his heir, Rachel. What is the state of the title? Monica takes Ross's share. Thus, Monica now holds 2/3s with Chandler, who holds 1/3. Monica and Chandler are tenants in common. Rachel takes nothing.
Term
Property Q86;;O conveys Blackacre to "Ringo, Paul, and John as joint tenants with right of survivorship." On Jan 1, Ringo enters into a contract for sale of his interest to George, with closing on April 1. When does Ringo's interest sever?
 Definition
Property Answer 086;;On January 1, In a joint tenancy, when the contract of sale is signed, the severance occurs under equitable conversion.
Term
Property Question 87;;What are the three variations on severance and partition?
 Definition
Property Answer 087;;(1) Voluntary agreement,;(2) Partition in kind. A judicial action. Physical division of the property if in the best interest of all parties. Works for big tracts of land.;(3) Forced sale: a judicial action if in best interest of all parties where land is sold and proceeds divided proportionately. Best when property is a building.
Term
Property Question 88;;What is the rule of severance and mortgage?
 Definition
Property Answer 088;;One joint tenant's execution of a mortgage or a lien on his or her share will sever the joint tenancy as to that now encumbered share only in: in the minority of states that follow the title theory of mortgages. By contrast, the majority of states follow the lien theory of mortgages, whereby a joint tenant's execution of a mortgage on his or her interest will not sever the joint tenancy.
Term
Property Question 89;;Paul, John, and George are joint tenants. Suppose now that Paul mortgages his interest in the joint tenancy. Will this sever the joint tenancy as to Paul's interest?
 Definition
Property Answer 089;;In a minority jurisdiction to follow the title theory of mortgages: Yes. In a majority jurisdiction to follow the lien theory of mortgages: No. New York follows the lien theory of mortgages.
Term
Property Question 90;;What is a tenancy by the entirety?
 Definition
Property Answer 090;;The tenancy by the entirety: a protected marital interest between husband and wife with the right of survivorship.
Term
Property Question 91;;What is the New York distinction on creditors and tenancy by the entirety?
 Definition
Property Answer 091;;In New York, one spouse may mortgage his interest and his creditors may enforce against that interest, but only as to the debtor spouse's share. Further, the non-debtor spouse's rights, including the right of survivorship, must not be compromised. Not much help for the creditor.
Term
Property Question 92;;Tony and Carmella, married to each other, own Blackacre as tenants by the entirety. Tony then secretly transfers his interest to Uncle Junior. What does Uncle Junior have?
 Definition
Property Answer 092;;Nothing. Neither tenant, acting alone, can defeat the right of survivorship by unilateral conveyance to a third party.
Term
Property Q93;;Greg and Marcia own Blackacre as tenants in common. Greg contributed 90% of the purchase price and Marcia 10%. Greg divides the premises. He says, "You can use and enjoy that 10% on that side of the line, and only that." Permissible?
 Definition
Property Answer 093;;No. Each co-tenant is entitled to possess and enjoy the whole. If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, he has committed wrongful ouster.
Term
Property Q94;;Greg and Marcia own Blackacre as tenants in common. Marcia leaves for a three-month tour of Europe. Can she demand rent from Greg for the three months in which he enjoyed exclusive possession?
 Definition
Property Answer 094;;No. Absent ouster, a co-tenant in exclusive possession: is not liable to the others for rent.
Term
Property Question 95;;Greg and Marcia own Blackacre as tenants in common. Greg contributed 90% of the purchase price and Marcia 10%. Greg leases Blackacre's basement to Alice, a tenant. Is Marcia entitled to a portion of the rental income?
 Definition
Property Answer 095;;Yes. A co-tenant who leases all or part of the premises to a third party: must account to his co-tenant, providing them their fair share of the rental income. Marcia gets 10% of this income.
Term
Property Q96;;Greg and Marcia own Blackacre as tenants in common. Marcia, so enthralled by a family trip to the Grand Canyon, decides to stay there for the next 20 years. In her absence, can Greg acquire title to the whole through adverse possession?
 Definition
Property Answer 096;;Unless he has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse possession period: cannot acquire title to the exclusion of the others. The hostility element of adverse possession is absent. There is no hostility because there was never any ouster.;;In NY this might not be true. Co-tenant may acquire full title by adverse possession if in exclusive possession for 20 continuous years, per the Court of Appeals. This is the theory of "implied ouster"
Term
Property Question 97;;Greg and Marcia own Blackacre as tenants in common. Greg contributed 90% of the purchase price and Marcia 10%. What are Marcia and Greg's respective responsibilities with respect to Blackacre's carrying costs?
 Definition
Property Answer 097;;Each co-tenant is responsible for his or her fair share of carrying costs (such as taxes and mortgage interest payments), based upon undivided share he or she holds, so Marcia is responsible for 10%.
Term
Property Question 98;;Greg and Marcia own Blackacre as tenants in common. Greg contributed 90% of the purchase price and Marcia 10%. A football goes through Blackacre's front window. Marcia repaired the window. Can she seek contribution from Greg?
 Definition
Property Answer 098;;Yes. The repairing co-tenant enjoys: right to contribution for necessary repairs,provided that she has: notified the others of the need for the repairs. Greg must contribute: 90%. Marcia is in for 10%.
Term
Property Question 99;;Greg and Marcia own Blackacre as tenants in common. Marcia has wallpapered the den with life-size posters of Davy Jones. She now seeks contribution from Greg, for his fair share of the costs of her "improvements." Will she succeed?
 Definition
Property Answer 099;;No. One tenant's improvements could be another tenant's nightmare. During the life of the co-tenancy, there is: no right to contribution for improvements. However, at partition, the improving co-tenant is entitled to a credit, equal to: any increase in value caused by her efforts. Attendantly, at partition, the so-called "improver" bears full liability for: any decrease in value caused by her efforts.
Term
Property Q100;;Greg and Marcia own Blackacre as tenants in common. Greg contributed 90% of the purchase price and Marcia 10%. Marcia wallpapers the place with Davy Jones posters as "improvements", which reduce the property value. What is Greg's recourse?
 Definition
Property Answer 100;;A co-tenant must not commit waste. Recall there are three species of waste: voluntary, permissive and ameliorative. A co-tenant can bring an action for waste during the life of the co-tenancy. Greg has a cause of action for voluntary waste or ameliorative waste for the improvements.
Term
Property Question 101;;Greg and Marcia own Blackacre as tenants in common. Greg contributed 90% of the purchase price and Marcia 10%. Marica wants out. If Greg won't go along with her plan, what can Marcia do?
 Definition
Property Answer 101;;Marcia can seek a partition in kind. A joint tenant or tenant in common has a right to bring an action for partition. Partition is by voluntary agreement, partition in kind or forced sale. Marcia would get ten percent.
Term
Property Question 102;;What are the rights and duties of co-tenants?
 Definition
Property Answer 102;;(1) Possession;(2) Rent from co-tenant in exclusive possession;(3) Rent from third parties;(4) No adverse possession;(5) Proportional carrying costs;(6) Proportional repairs;(7) Improvement credits on partition;(8) No waste;(9) Partition.
Term
Property Question 103;;What kind of leasehold estate comes from a fixed determined period of time?
 Definition
Property Answer 103;;A tenancy for years. This is a lease for: a fixed determined period of time - could be 5 days or 50 years, doesn't have to be at least a year. When you know the termination date from the start, you have a tenancy for years. No notice is needed to terminate. A term of years greater than one year: must be in writing to be enforceable , because of the statute of frauds.
Term
Property Question 104;;L leases Blackacre to T "from January 1, 2003 to July 1, 2003." Which form of tenancy exists here?
 Definition
Property Answer 104;;Tenancy for Years. It's a leasehold for a fixed known period of time. No notice is needed to terminate the tenancy. A term of years greater than one year: must be in writing to be enforceable , because of the statute of frauds.
Term
Property Question 105;;What kind of leasehold estate comes from successive intervals of time?
 Definition
Property Answer 105;;The periodic tenancy. This is a lease which continues for successive intervals until the landlord or tenant give proper notice of termination. Can be created expressly or by implication.
Term
Property Question 106;;How is a periodic tenancy created by implication?
 Definition
Property Answer 106;;(1) Land is leased with no mention of duration, but provision is made for payment of rent at set intervals,;(2) An oral term of years in violation of the statute of frauds creates an implied periodic tenancy, measured by the way rent is tendered, or;(3) The holdover: In a residential lease, if L elects to holdover a T who has wrongfully stayed on past the conclusion of the original lease: an implied periodic tenancy arises measured by the way rent is now tendered.
Term
Property Question 107;;T rents an apartment from L, beginning June 1. Nothing is said about duration. T pays rent each month. What tenancy exists here?
 Definition
Property Answer 107;;T is implied month to month periodic tenant.
Term
Property Question 108;;L and T negotiate on the telephone for a commercial lease. They orally agree on a five-year lease with rent at $1,000 a month. Is this a tenancy for years?
 Definition
Property Answer 108;;No, violates statute of frauds. An oral term of years in violation of the statute of frauds creates an implied periodic tenancy, measured by the way rent is tendered.;;If T sends L a check for $1,000 and L accepts it? T's first rental payment renders his interest: an implied periodic tenancy, with the intervals based on: the way rent is tendered.
Term
Property Question 109;;T holds over after the expiration of her one-year lease, but sends another month's rent check to L, who cashes it. What tenancy now exists?
 Definition
Property Answer 109;;Implied month to month periodic tenancy. The holdover: In a residential lease, if L elects to holdover a T who has wrongfully stayed on past the conclusion of the original lease: an implied periodic tenancy arises measured by the way rent is now tendered.;;In New York, the landlord who elects to holdover a tenant creates an implied month-to-month periodic tenancy, unless otherwise agreed.
Term
Property Question 110;;How do you terminate a periodic tenancy?
 Definition
Property Answer 110;;To terminate a periodic tenancy, notice, usually written, must be given. At common law, at least equal to the length of a lease period unless otherwise agreed. Thus, in a month-to-month periodic tenancy: 1 month notice. In a week-to-week periodic tenancy: 1 week notice. The one exception: If the tenancy is from year-to-year or greater: 6 month notice. ;By private agreement, the parties may lengthen or shorten these common-law prescribed notice provisions. ;The periodic tenancy must end at the conclusion of a natural lease period.
Term
Property Question 111;;L leased Blackacre to T on January 1, 2003, for a periodic tenancy of month-to-month. On May 15, 2003, T sends written notice of termination. T is bound until when?
 Definition
Property Answer 111;;T is bound until June 30, 2003 - it has to end at conclusion of a natural lease period.
Term
Property Question 112;;What is a tenancy for no fixed period of duration?
 Definition
Property Answer 112;;The tenancy at will. Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat the tenancy as an implied periodic tenancy, so this is an increasingly rare form. The tenancy at will may be terminated by either party at any time, however a reasonable demand to vacate is typically required. In New York, the landlord terminating a tenancy at will must give a minimum of 30 days written notice of termination.
Term
Property Question 113;;"To T for as long as L or T desires." What kind of leasehold?
 Definition
Property Answer 113;;Tenancy at will.
Term
Property Question 114;;What is the New York distinction for tenancy at will?
 Definition
Property Answer 114;;In New York, the landlord terminating a tenancy at will must give a minimum of 30 days written notice of termination.
Term
Property Question 115;;What happens when a tenant won't leave after the lease has expired?
 Definition
Property Answer 115;;Tenancy at sufferance. It is created when T has wrongfully held over, past the expiration of the lease. We give this wrongdoer a leasehold estate (the tenancy at sufferance), to permit L to recover rent. The tenancy at sufferance lasts only until L either evicts T or elects to hold T to a new term, so usually short lived. In New York, landlord's acceptance of rent subsequent to the expiration of the term will create an implied month-to-month periodic tenancy, unless otherwise agreed.
Term
Property Question 116;;What are the tenant's three duties?
 Definition
Property Answer 116;;(1) T's liability to third parties;(2) T's duty to repair;(3) T's duty to pay rent.
Term
Property Question 117;;What is a tenant's liability in tort to third parties?
 Definition
Property Answer 117;;T is responsible for keeping the premises: in reasonably good repair. T is liable for injuries sustained by 3rd parties T invited, even where L has expressly promised to make all repairs.
Term
Property Question 118;;L leases a building to T, expressly promising to maintain the premises in a state of good repair. T's invitee trips over a loose floorboard and sues T. If invitee sues T, what result?
 Definition
Property Answer 118;;T always losses. (It does not matter that T may seek indemnification from L. Vis-a-vis the plaintiff, who is a guest, T loses.)
Term
Property Question 119;;What is a tenant's duty to repair?
 Definition
Property Answer 119;;When the lease is silent, the standard is maintenance. T must maintain the premises and make ordinary repairs. Also, T must not commit waste (voluntary, permissive, ameliorative). When a tenant removes a fixture, it's voluntary waste, even if T put the fixture in.
Term
Property Question 120;;What is a fixture?
 Definition
Property Answer 120;;A fixture is a once movable chattel that, by virtue of its annexation to realty: objectively shows the intent to permanently improve the realty. Common examples: Heating systems, custom made storm windows, a furnace, certain lighting instillations. T MUST NOT remove a fixture, NO MATTER THAT she installed it.
Term
Property Question 121;;Janet Jackson, a tenant, installs a beautiful heirloom chandelier in the dining room. At the conclusion of the leasehold, as she is about to remove it, Landlord demands that the chandelier stay put. Must she leave it?
 Definition
Property Answer 121;;Yes, probably because of the word "installed." If the chandelier qualifies as a fixture, it must stay put. Express agreement controls. In the absence of agreement, T may remove a chattel that she has installed so long as removal will not cause substantial harm to the premises. If removal will cause substantial damage, then in objective judgment T has shown the intent to install a fixture, regardless of her subjective intent. The fixture must stay put. In real life she could remove and restore, but not for the bar exam.
Term
Property Question 122;;T expressly covenants in the lease to maintain the property in good condition for the duration of the lease. A tornado totally destroys the property. Who pays to fix it?
 Definition
Property Answer 122;;At common law, historically: T was responsible for any loss to the property, including loss attributable to force of nature. Today, the majority view: T may terminate the lease if the premises were destroyed without T's fault.;;In New York, absent tenant's express undertaking to restore the premises in the event of their destruction, if the premises are destroyed through no fault of tenant, tenant may quit the premises and surrender possession without any further duty to pay rent.
Term
Property Question 123;;T stops paying rent. Can L change the locks?
 Definition
Property Answer 123;;No way. T breaches this duty and is in possession of the premises, The landlord's only options are to evict through the court or continue the relationship and sue for rent due. If the landlord moves to evict, she is nonetheless entitled to rent from the tenant until the tenant, who is now a tenant at sufferance, vacates.;;LANDLORD MUST NOT: engage in self help, such as changing the locks, forcibly removing the tenant or removing any of tenant's possessions. Self-help is flatly outlawed, and is punishable civilly and criminally.;;In New York, self-help is flatly prohibited and entitles tenant to treble damages.
Term
Property Question 124;;T wrongfully vacates with time left on a term of years lease (and hasn't paid for a few months). What can L do?
 Definition
Property Answer 124;;(1) L could choose to treat T's abandonment as an implicit offer to surrender, which L accepts. If the unexpired term is greater than one year: surrender must be in writing to satisfy the statute of frauds.;(2) Ignore the abandonment and hold T responsible for the unpaid rent, just as if T were still there. This option is available only in a minority of states. Because can mitigate by re-letting.;(3) Re-let the premises on the wrongdoer tenant's behalf, and hold him or her liable for any deficiency. Majority rule: L must at least try to re-let. This is a mitigation principle, a way to cut losses.;;Generally, New York does not require landlord to mitigate damages when tenant abandons the premises.
Term
Property Question 125;;What is the New York distinction when a tenant abandons the premises?
 Definition
Property Answer 125;;Generally, New York does not require landlord to mitigate damages when tenant abandons the premises.
Term
Property Question 126;;At the start of T's lease, a prior holdover T2 is still in possession. What is L obliged to do?
 Definition
Property Answer 126;;The majority ("English") rule requires that L put T in actual physical possession of the premises. Thus, if at the start of T's lease a prior holdover T is still in possession, L is in breach and the new T is entitled to damages. The minority ("American") rule does not require L to put T in actual physical possession. Requires only that L give T legal possession.
Term
Property Question 127;;What are a landlord's duties to the tenant?
 Definition
Property Answer 127;;(1) Duty to deliver possession;(2) The implied covenant of quiet enjoyment;(3) The implied warranty of habitability;(4) No retaliatory eviction
Term
Property Question 128;;Every time it rains, Dido's apartment floods. She wants to move out, but still has several months on her lease. What can she do?
 Definition
Property Answer 128;;SING. She has a claim for constructive eviction if three elements are met.;(1)Substantial Interference: attributable to L's actions or failure to act. (2) Notice: T must give L notice of the problem and L must fail to respond.;(3) Goodbye: Tenant must vacate within reasonable time after L fails to fix the problem.
Term
Property Question 129;;When is a landlord liable for the acts of other tenants?
 Definition
Property Answer 129;;Generally, a landlord is not liable for the acts of other tenants. However, (1) L has a duty not to permit a nuisance on the premises, i.e. not to rent to a dance troupe, and (2) L must control common areas.
Term
Property Question 130;;Jeff's Paintball Gear leases a small building from Safia for storage. The roof falls in the next day. Jeff's brings an action based on the implied warranty of habitability for company. Safia laughs in his face. Why?
 Definition
Property Answer 130;;The implied warranty of habitability applies only to residential leases. Never applies to commercial leases.
Term
Property Q131;;Safia leases a house to Jeff. Jeff knowingly waives the implied warranty of habitability for a rent discount. The roof falls in a week later. Jeff brings an action based on implied warranty of habitability. Safia laughs in his face. Why?
 Definition
Property Answer 131;;Because she's wrong. Safia forgot that the implied warranty of habitability is non-waivable, any attempt at disclosure is void.
Term
Property Question 132;;What is the standard for the implied warranty of habitability?
 Definition
Property Answer 132;;The standard: basic human habitation. Bare living requirements must be met, not luxurious or even "nice." The appropriate standard may be supplied by local housing codes or independent judicial conclusion. The sorts of problems to trigger breach of the implied warranty of habitability include: failure to provide heat in winter, lack of plumbing, lack of running water. All are fundamental infirmities.
Term
Property Question 133;;What are T's entitlements when the implied warranty of habitability is breached?
 Definition
Property Answer 133;;Mr. Cube: (1) Move out and terminate the lease;(2) Repair and deduct, allowable by statute in a growing number of jurisdictions. T may make the reasonable repairs and deduct their cost from future rent.;(3) Reduce rent or withhold all rent until the court determines fair rental value. Typically, T must place withheld rent into an escrow account to show her good faith.;(4) Remain in possession, pay rent and affirmatively seek money damages.
Term
Property Question 134;;T lawfully reports L for housing code violations. L ends the lease. Problem?
 Definition
Property Answer 134;;Yes. If T lawfully reports L for housing code violations, L is barred from penalizing T, by, for example, raising rent, ending the lease, harassing T or taking any other retaliatory measures. This is under the rubric of the implied warranty of habitability.
Term
Property Q135;;L rents to T. The lease requires T to get L's prior written approval subletting. T wants to sublet to S1, and L consents. Later, T wants to sublet to S2, but L doesn't want that. S2 does it anyway, and L brings an action. What result?
 Definition
Property Answer 135;;T wins. In the lease, L can prohibit T from assigning or subletting without L's prior written approval. However, once L consents to one transfer by T, L waives the right to object to future transfers by that T, unless L expressly reserves the right.
Term
Property Question 136;;What is the New York subleasing distinction?
 Definition
Property Answer 136;;In New York, unless the lease provides otherwise, a residential T may not assign without L's written consent. L can unreasonably withhold consent to assign, and T's sole remedy is to seek the release from the lease. By contrast, in New York, a T in a residential building having four or more units has the right to sublease subject to L's written consent. Consent to sublease cannot be unreasonably withheld. Unreasonably withheld consent is deemed consent.
Term
Property Question 137;;T1 has 10 months remaining on a two-year term of years, including a covenant to paint once a month. T1 transfers all 10 months to T2. Must he paint?
 Definition
Property Answer 137;;Yes. This is an assignment, and L and T2 are in privity of estate. This means that L and T2 are liable to each other for every covenant in the original lease that "runs with the land." Common examples: promises to pay rent, or to paint the premises or to repair.
Term
Property Question 138;;T1 has 10 months remaining on a two-year term of years, including a covenant to paint once a month. T1 transfers all 10 months to T2. Who is L in privity of contract with?
 Definition
Property Answer 138;;L and T2 are not in privity of contract, unless: T2 expressly assigned all promises in the original lease. L and T1 are no longer in privity of estate. However, they remain in privity of contract. Thus, L and T1 are secondarily liable to each other.
Term
Property Question 139;;L leases Blackacre to T1. T1 assigns to T2. T2 assigns to T3. T3 then engages in flagrant abuse to the premises. Can L proceed against T3, the direct wrongdoer, or against T1, the original tenant, or against T2?
 Definition
Property Answer 139;;L can go after either T1 or T3, but not T2. ;L wins against T3 because they are in privity of estate.;L and T1 are also in privity of contract. T1 is secondarily liable to L. If T3 flees or bankrupt, T1 is accountable.
Term
Property Question 140;;L leases to T1, T1 subleases to T2. What privity is between L and T2?
 Definition
Property Answer 140;;None. L and sublessee are in neither privity of estate nor privity of contract.
Term
Property Question 141;;At common law, what are the five most important exceptions to the general rule of caveat lessee?
 Definition
Property Answer 141;;L generally had no duty to make the premises safe under common law. Exceptions: CLAP.(1) Common areas;(2) Latent defects rule;(3) Assumption of repairs;(4) Public use rule;(5) Short term lease of furnished dwelling
Term
Property Question 142;;What is an easement?
 Definition
Property Answer 142;;An easement is the grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land, called servient tenement. Easements can be affirmative or negative.
Term
Property Question 143;;What are the kinds of negative easements?
 Definition
Property Answer 143;;Light, Air, Support, and Streamwater. A minority of states allow a negative easement for scenic view. Can only be created expressly by writing signed by grantor.
Term
Property Question 144;;How are easements created?
 Definition
Property Answer 144;;PING:;(1) Prescription (use that is continuous, open and notorious, actual under a claim of right that is hostile for request statutory period).;(2) Implication (implied from prior use;at time land is severed, a use of one part existed from which it can be inferred that an easement permitting its continuation was intended).;(3) Necessity (division of a tract deprives one lot of means of access out).;(4) Grant (writing signed by grantor).
Term
Property Question 145;;What is the difference between easements appurtenant and easements in gross?
 Definition
Property Answer 145;;(1) The easement is appurtenant when it benefits its holder in his physical use or enjoyment of his property.;(2) The easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land.
Term
Property Question 146;;A grants B a right of way across A's land, so that B can more easily reach his land. Who has what easements?
 Definition
Property Answer 146;;B's land is benefited by the easement. In easement parlance, it is the dominant tenement. A's land is serving B's easement. It is the servient tenement. Notice that two parcels are involved. B has: an easement appurtenant to B's dominant tenant.
Term
Property Question 147;;A has an easement entitling her to cut across B's lawn to get more easily to her land. Now A sells her parcel to Mr. X, with no mention of the easement. Does Mr. X enjoy the easement?
 Definition
Property Answer 147;;Yes. It passes automatically with the dominant parcel. The burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is: bona fide purchaser without notice of easement.
Term
Property Question 148;;A has an easement entitling her to swim in B's lake. Transferable?
 Definition
Property Answer 148;;No. There is no dominant parcel. This is a personal easement in gross. It is not transferable, it's considered personal to it's holder.
Term
Property Question 149;;Starkist has an easement to use B's lake to fish for bait for Starkist's tuna company. Is it transferable?
 Definition
Property Answer 149;;Yes, since for commercial purposes. This is commercial easement in gross.
Term
Property Question 150;;A owns two lots. Lot 1 is hooked up to a sewer drain located on lot 2. A sells lot 1 to B, with no mention of B's right to continue to use the drain on A's remaining lot 2. Is there an easement anyway?
 Definition
Property Answer 150;;Maybe. The court may nonetheless imply an easement on B's behalf if:;(1) the previous use had been apparent and;(2) the parties expected that the use would survive division because it is reasonably necessary to the dominant land's use and enjoyment.
Term
Property Question 151;;What is created when grantor conveys a portion of his land with no way out except over some part of grantor's remaining land?
 Definition
Property Answer 151;;An affirmative easement by necessity: The landlocked setting. An easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out except over some part of grantor's remaining land. So in effect it's "implied," despite the name;it arises when the land is divided.
Term
Property Question 152;;When the elements of adverse possession are met, what kind of easement is created?
 Definition
Property Answer 152;;An affirmative easement by prescription. The elements of adverse possession are (1) Continuous use for given statutory period Open and notorious;(3) Actual use;(4) Hostile (without servient owner's consent).;Permission defeats the acquisition of an easement by prescription. An easement by prescription requires that the use be hostile.;;In New York, the appropriate statutory period is ten years.
Term
Property Q153;;A grants B an easement to use A's private road to get to and from B's parcel, Blackacre. Subsequently, B purchases the adjacent Greenacre, with its small marina. May B unilaterally expand the use of the easement to benefit Greenacre?
 Definition
Property Answer 153;;No. Unilateral expansion is not allowed. B has: easement appurtenant to B's dominant land. A's parcel is: servient.
Term
Property Question 154;;What are the eight ways an easement can end?
 Definition
Property Answer 154;;END CRAMP:(1) Estoppel: the servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement will no longer be enforced,;(2) Necessity: Easements created by necessity expire as soon as: the necessity ends,;(3) Destruction of the servient land, other than through the wrongful willful conduct of the servient owner,;(4) Condemnation of the servient estate by eminent domain terminates the easement,;(5) Release: A written release, given by the easement holder to the servient owner,;(6) Abandonment: The easement holder must demonstrate by physical action the intent never to use the easement again,;(7) Merger doctrine (also known as unity of ownership): The easement is extinguished when title to easement and title to servient land become vested in the same person,;(8) Prescription: The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession.
Term
Property Question 155;;A tells B that A will no longer be using her right of way across B's parcel. In reasonable reliance, B builds a swimming pool on B's parcel, thereby depriving A of the easement. Can A enforce the easement anyway?
 Definition
Property Answer 155;;No. This is an easement by estoppel. In equity: A, the easement holder, is estopped from enforcing the easement.
Term
Property Q156;;O conveys some of his tract to A, with no way out except over a portion of O's remaining land. The parties reduce their understanding to express writing. The city builds a public roadway affording A access out. What happens to the easement?
 Definition
Property Answer 156;;Nothing. The easement persists because in writing. It is an easement by necessity.
Term
Property Question 157;;When do easements by necessity end?
 Definition
Property Answer 157;;Easements created by necessity expire as soon as the necessity ends. However, if the easement, attributable to necessity, was nonetheless created by express grant: it does not end automatically once the necessity ends.
Term
Property Question 158;;A has a right of way across B's parcel. A erects a structure on A's parcel that precludes her from ever again reaching B's parcel. What happens to the easement?
 Definition
Property Answer 158;;The easement is ended by abandonment. This is the sort of action to signify abandonment. By contrast, mere nonuse, or mere words, are insufficient to terminate by abandonment.
Term
Property Question 159;;What is the merger doctrine of easement?
 Definition
Property Answer 159;;Merger doctrine (also known as unity of ownership): The easement is extinguished when title to easement and title to servient land become vested in the same person.
Term
Property Question 160;;A has a right of way across B's parcel, to enable A to better reach her parcel. Later, A buys B's parcel. What happens to the easement?
 Definition
Property Answer 160;;The easement is extinguished by the merger doctrine. Prior to sale, A's land is: dominant tenement. A is: holder of an easement appurtenant to her dominant tenement. B's land is: servient.;;Even though there may be later separation of title: the easement is not automatically revived.
Term
Property Question 161;;A has an easement of right of way across B's parcel. B erects a chain link fence on B's parcel, thereby precluding A from reaching it. When can B say the easement is extinguished?
 Definition
Property Answer 161;;By prescription. Over time, B may succeed in extinguishing the easement through prescription. The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession.
Term
Property Question 162;;What is a license?
 Definition
Property Answer 162;;A license is a mere privilege to enter another's land for some delinated purpose. Licenses are not subject to statute of frauds. Licenses are freely revocable, at the will of the licensor, unless estoppel applies to bar revocation. Example: theater tickets.
Term
Property Question 163;;Neighbor A, talking by the fence with neighbor B, says, "B, you can have that right of way across my land." What kind of easement?
 Definition
Property Answer 163;;No easement at all. This oral easement is unenforceable because violates statute of frauds (assume more than one year). An oral easement creates instead a freely revocable license.
Term
Property Question 164;;When will a license not be freely revocable?
 Definition
Property Answer 164;;Estoppel will apply to bar revocation only when the licensee has invested substantial money, labor or both in reasonable reliance on the license's continuation.
Term
Property Question 165;;What does Moses need to take the minerals of Mt. Sinai?
 Definition
Property Answer 165;;A profit. The profit entitles its holder to enter the servient land and take from it the soil or some substance of the soil such as minerals, timber or oil. The profit shares all the rules of easement.
Term
Property Question 166;;What is a covenant?
 Definition
Property Answer 166;;The covenant is a promise to do or not do something related to land. It is UNLIKE the easement because it is not the grant of a property interest, but rather a contractual limitation or a promise regarding land. It is a contract that pertains to land. Can be negative (restrictive covenants) or affirmative.
Term
Property Question 167;;What's the difference between a covenant and an equitable servitude?
 Definition
Property Answer 167;;How to know whether to construe the given promise as a covenant or as an equitable servitude on the basis of the remedy that plaintiff seeks. If plaintiff seeks money damages you must construe as a covenant. If plaintiff seeks injunction (equitable relief) you must construe as an equitable servitude. Money = law, performance or prohibition = equity
Term
Property Q168;;Neighbor A promises neighbor B that A will not build for commercial purposes on A's property. Later, A sells her burdened parcel to A1. B sells his benefited parcel to B1. A1 opens a steak sauce plant on the premises. Can B1 sue?
 Definition
Property Answer 168;;It depends on whether the facts support the conclusion that the burden and benefit run. Because this is about money, it is a covenant, not an equitable servitude. A's parcel is burdened by the promise. B's parcel is benefited. We have successors on both sides, so the burden runs. Figure out if the benefit runs. WITV. If so, B1 succeeds.
Term
Property Question 169;;What elements necessary for the burden of a covenant to run with the land?
 Definition
Property Answer 169;;(1) Writing,;(2) Intent,;(3) Touch and concern the land,;(4) Horizontal and vertical privity, and;(5) Notice.
Term
Property Question 170;;What is horizontal privity?
 Definition
Property Answer 170;;Horizontal privity refers to the nexus between: the original promising parties, here A and B. It requires that they be in succession of estate, meaning that they were in a grantor/grantee or landlord/tenant or mortgagor/mortgagee relationship. Failure here is why most burdens won't run. It is unusual to be in the proper relationship on the exam. 9 out of 10 times that is the correct Answer.
Term
Property Question 171;;What is vertical privity?
 Definition
Property Answer 171;;Vertical privity refers to the nexus between A and A1. It simply requires some non-hostile nexus, such as: contract, devise or descent. The only time that vertical privity will be absent is if A-1 acquired her interest through adverse possession.
Term
Property Question 172;;What does it take for the benefit of a covenant to run?
 Definition
Property Answer 172;;(1) Writing,;(2) Intent,;(3) Touch and concern and;(4) Vertical privity.;;Horizontal privity is not required for the benefit to run, so burden analysis is more determinative.
Term
Property Question 173;;Do covenants to pay money to be used in connection with the land (such as homeowners' association fees) and covenants not to compete "touch and concern" the land.
 Definition
Property Answer 173;;Yes.
Term
Property Question 174;;What is required to create an equitable servitude?
 Definition
Property Answer 174;;The equitable servitude is a promise that equity will enforce against successors. It is accompanied by injunctive relief. WITN(ES):;(1) Writing,;(2) Intent to bind assignees,;(3) Touch and concern;(4) Notice;(Equitable Servitude).;;Privity is not required to bind successors.
Term
Property Q175;;A subdivides her land into 50 lots. She sells lots 1-45 through deeds with residential purpose covenants. A then sells 46 to a commercial entity, B, with no covenant. B wants to put a 7-11 on his lot. Can he be enjoined from doing so?
 Definition
Property Answer 175;;Yes, if the two elements of the general or common scheme doctrine apply. Under the common scheme doctrine, the court will imply a reciprocal negative servitude (i.e. an implied equitable servitude) to hold the unrestricted lot holder to the restrictive covenant. Because injunction is sought, it is an equitable servitude.
Term
Property Question 176;;What are the elements of the common scheme doctrine?
 Definition
Property Answer 176;;(1) When the sales began, the subdivider (A) had a general scheme of residential development which included defendant's lots, and;(2) The defendant lotholder (B) had notice of the promises contained in the prior deeds. This can be actual notice, inquiry notice, or record notice. Where common scheme exists, subsequent purchasers with notice are bound.
Term
Property Question 177;;What is the New York distinction on subsequent buyers?
 Definition
Property Answer 177;;With respect to record notice, the courts are split. Some take the view that a subsequent buyer is on record notice of the contents of prior deeds transferred to others by a common grantor. The better view, taken by other courts, is that the subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor. NY takes the latter view, which is more equitable, since the burden on the defendant for title search is less. This subsequent buyer stuff is on the test.
Term
Property Question 178;;What defenses are available to a claim of breach of equitable servitude?
 Definition
Property Answer 178;;Changed conditions. The changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be: so pervasive that the entire area or subdivision has changed. This is hard to show. Limited or piecemeal changes are never good enough.
Term
Property Question 179;;What are the elements of adverse possession?
 Definition
Property Answer 179;;Possession, for a statutorily prescribed period of time can, if certain elements are met, ripen into title. COAH:;(1) Continuous: uninterrupted for the given statutory period. In New York, the statutory period is ten years.;(2) Open and Notorious: the sort of possession that the usual owner would make under the circumstances.;(3) Actual: entry cannot be hypothetical or fictitious. Can't just send a letter saying you intend to adversely possess. Have to "squat";(4) Hostile: possessor does not have true owners consent to be there.
Term
Property Question 180;;Oz accidentally built a fence on Ru's property. 25 years later, the guys realize there was a mistake. Since Oz thought he was allowed to build there, does his adverse possession claim lose?
 Definition
Property Answer 180;;No. Possessor's subjective state of mind is irrelevant. Doesn't matter if you think you have permission or not;it matters if you have actually don't have permission.
Term
Property Question 181;;What is tacking in adverse possession?
 Definition
Property Answer 181;;Tacking is where one adverse possessor may tack on to his time with the land his predecessor's time, so long as there is privity, which is satisfied by non-hostile nexus, such as blood, contract, deed or will. Tacking is NOT allowed when: there has been an ouster (on the test).
Term
Property Q182;;O owned Blackacre in 1980 when A entered adversely. A was on her way to adverse possession when, in 1986, Mr. X ousted her. Mr. X stays on the land through 2000. With a 20-year statute of limitations, in 2000, who owns Blackacre?
 Definition
Property Answer 182;;O. Ouster defeats privity, therefore tacking is not allowed.
Term
Property Question 183;;O owned Blackacre in 1980 when A entered adversely. In 1990, O went insane. In 2000, O recovered. Our jurisdiction has a 20-year statute of limitations. In 2000, who owns Blackacre?
 Definition
Property Answer 183;;A, assuming that she has met the COAH elements. O cannot claim the benefit of the disability because was suffering from it at the inception of adverse possession.;;The statute of limitations will not run against a true owner who is afflicted by a disability at the inception of the adverse possession. Common disabilities include: insanity, infancy and imprisonment.
Term
Property Question 184;;B enters into a contract to purchase a farm. The contract recites that the farm is 100 acres. When B has a survey done, B learns that the farm is actually 98 acres. What is B's remedy?
 Definition
Property Answer 184;;Specific performance, with a pro-rata reduction in purchase price.
Term
Property Question 185;;When can title to land transfer on an oral contract?
 Definition
Property Answer 185;;Under the statute of frauds, land conveyances must be done in writing. The one narrow exception to the statute of frauds: THE DOCTRINE OF PART PERFORMANCE. Equity will decree specific performance of an oral contract for the sale of land if two of these three are met:;(1) B takes physical possession of the land;(2) B pays all or part of the purchase price and/or;(3) B makes substantial improvements to the land.
Term
Property Question 186;;O contracts to sell Blackacre to B. Before closing, a tornado destroys it. B doesn't want to complete the sale. O is pissed. Who has to eat it?
 Definition
Property Answer 186;;B bears the burden of destruction. If, in the interim between contract and closing, Blackacre is destroyed through no fault of either party, buyer bears the risk of loss unless the contract says otherwise. Apply the doctrine of equitable conversion: equity regards as done that which ought to be done.;;In New York, so long as buyer is without fault, the risk of loss remains with seller until buyer has title or takes possession.
Term
Property Question 187;;What three circumstances will render title unmarketable?
 Definition
Property Answer 187;;Seller promises to provide marketable title at the closing. Title is unmarketable when there is: (1) Adverse possession: If even a portion of the title rests on adverse possession, it is unmarketable.;(2) Encumbrances: Marketable title means an unencumbered fee simple.;(3) Zoning violations: title is unmarketable if the property violates a zoning ordinance.
Term
Property Q188;;O contracts to sell Blackacre to B. O plans to square his mortgage with the proceeds from the closing. Before closing, a tornado destroys Blackacre. B wants out, claiming destruction and unmarketable title due to encumbrances. Who wins?
 Definition
Property Answer 188;;O. If, in the interim between contract and closing, Blackacre is destroyed through no fault of either party, buyer bears the risk of loss unless the contract says otherwise. Seller has the right to satisfy an outstanding mortgage or lien at the closing, with the proceeds of the sale. Thus, buyer cannot claim title is unmarketable because it is subject to a mortgage prior to closing, so long as the parties understand that the closing will result in the mortgage being satisfied or discharged.
Term
Property Question 189;;What is the NY distinction for the sale of residential property?
 Definition
Property Answer 189;;In NY there is the Property Condition Disclosure Act of March 2002. Sellers of a one to four family residential dwelling must give prospective buyer a completed statutory disclosure form even before the contract is signed. It looks like a set of interrogatories.
Term
Property Question 190;;What are the two implied promises in every land contract?
 Definition
Property Answer 190;;(1) Seller promises to provide marketable title at the closing.;(2) Seller promises not to make any false statements of material fact. This includes lies and omissions.;The land contract contains no implied warranties of fitness or habitability. One important exception: The implied warranty of fitness and workmanlike construction applies to the sale of a new home by a builder-vendor, or coops or condos.
Term
Property Question 191;;What is the exception to caveat emptor in land contracts?
 Definition
Property Answer 191;;The land contract contains no implied warranties of fitness or habitability. One important exception: The implied warranty of fitness and workmanlike construction applies to the sale of a new home by a builder-vendor, or coops or condos.
Term
Property Question 192;;How does the deed pass legal title from seller to buyer?
 Definition
Property Answer 192;;It must be "LEAD": Lawfully Executed And Delivered.
Term
Property Question 193;;The deed recites that O conveys "all of O's land," or "all of O's land in Essex
 Definition
Property Answer 193;;Yes it's a good lead. Can research and discern what "all" means.
Term
Property Question 194;;O conveys "some of my land in Sussex County." Does such a description satisfy the standard?
 Definition
Property Answer 194;;No. Too imprecise, research can't reveal what "some" means.
Term
Property Question 195;;The deed arrives in the mail. Has the delivery requirement been met?
 Definition
Property Answer 195;;Yes. The delivery requirement could be satisfied when grantor physically or manually transfers to the grantor. It is permissible here to use mail, messenger or agent.
Term
Property Question 196;;As a surprise graduation gift, A's Aunt Gertrude executes a deed conveying Blackacre to A. A responds, "I can't accept such a lavish gift." Who owns Blackacre?
 Definition
Property Answer 196;;Blackacre belongs to Aunt Gertrude
Term
Property Question 197;;O conveys a deed to Blackacre that is absolute on its face, but says to Grantee, "Blackacre is yours only if you survive me." Grantee conveys his interest in Blackacre to B. Grantee dies before O. Who owns Blackacre?
 Definition
Property Answer 197;;B. If a deed, absolute on its face, is transferred to grantee with an oral condition the oral condition drops out. It's not provable. Also delivery is deemed accomplished. This oral condition is void.
Term
Property Question 198;;Old-Ass O wants to convey land now with conditions that might take several years to meet. How does he do it?
 Definition
Property Answer 198;;Delivery by escrow. Grantor may deliver an executed deed to a third party, known as an escrow agent, with instructions that the deed be delivered to grantee once certain conditions are met. Once the conditions are met: title passes automatically to the grantee. If grantor Old-Ass O dies or becomes incompetent or is otherwise unavailable before the express conditions are met title will still pass from the escrow agent to grantee once the conditions are met.
Term
Property Question 199;;What is the best deed a buyer could hope for?
 Definition
Property Answer 199;;The general warranty deed. Warrants against all defects in title, including those attributable to grantor's predecessors.;;The worst is the quitclaim. It contains no covenants. Grantor isn't even promising that he has title to convey.
Term
Property Question 200;;What are the six covenants of the general warranty deed?
 Definition
Property Answer 200;;(1) The covenant of seisin: the grantor warrants that he owns the estate he now claims to convey.;(2) The covenant of right to convey: (on the test). Grantor promises that he has the power to make the conveyance - no temporary restraint on his power to sell.;(3) The covenant against encumbrances: Grantor promises that there are no servitudes or mortgages on the land. ;(4) The covenant for quiet enjoyment: grantor promises that grantee will not be disturbed in possession by 3rd parties. Lawfully claim of title.;(5) The covenant of warranty: grantor promises to defend grantee should there be any harmful claims of title asserted by others.;(6) The covenant for further assurances: grantor promises to perform whatever future acts are reasonably necessary to perfect grantee's title if it latter turns out to be imperfect.;;SOL runs from delivery on 1-3, SOL runs from breach on 4-6.
Term
Property Question 201;;What is a quitclaim grantor on the hook for?
 Definition
Property Answer 201;;Very little. A quitclaim contains no covenants. Grantor isn't even promising that he has title to convey. However, Grantor implicitly promised in the land contract to provide marketable title at the closing. That prevents wholesale abdication of responsibility. But this is a time limited promise. For any problems that arise post-closing, seller is off the hook.
Term
Property Question 202;;What are the two promises of the statutory special warranty deed?
 Definition
Property Answer 202;;(1) grantor promises that he has not conveyed the estate to anyone other than the grantee and;(2) grantor promises that the estate is free from encumbrances made by the grantor. Grantor makes no representations on behalf of his predecessors in interest, only on behalf of himself.;In New York, the special warranty deed is called a bargain and sale deed.
Term
Property Question 203;;O conveys Blackacre to A. Later, O conveys Blackacre, the same parcel, to B. O, our double dealer, has skipped town. In the battle of A vs. B, who wins?
 Definition
Property Answer 203;;(1) If B is a BONA FIDE PURCHASER, and we are in a NOTICE jurisdiction, B wins, regardless of whether or not she records before A does.;(2) If B is a BONA FIDE PURCHASER and we are in a race-notice jurisdiction, B wins if she records properly before A does.;;New York is a race-notice jurisdiction.
Term
Property Question 204;;B paid $50,000 cash for Blackacre, when its fair market value is estimated at $100,000. Is B a purchaser for value?
 Definition
Property Answer 204;;Yes. Must remit substantial pecuniary consideration. If he does, he qualifies as a purchaser for value.
Term
Property Question 205;;O conveys Blackacre to A. Later, O devises Blackacre, the same parcel, to B. In a recording statute jurisdiction, what happens to B?
 Definition
Property Answer 205;;B loses unless shelter rule applies. The case of the doomed donee: recording statutes do not protect donees, heirs or devisees unless the shelter rule applies.
Term
Property Question 206;;O conveys Blackacre to A. Later, O conveys Blackacre, the same parcel, to B. A has not recorded properly at the time B takes? B is a bona fide purchaser. Does B win?
 Definition
Property Answer 206;;Maybe. It depends on which recording statute the jurisdiction has enacted. In a notice state, yes, B wins. In a race-notice state, to win B must be a BFP and B must also win the race to record.
Term
Property Question 207;;"A conveyance of an interest in land (here O to A) shall not be valid against any subsequent purchaser (here B) for value, without notice thereof (to B), unless the conveyance is recorded (by A)." Notice or Race Notice?
 Definition
Property Answer 207;;Notice Statute. If, at the time B takes, he is a BFP, he wins. It won't matter that A may ultimately record first, before B does. It won't matter, in the A vs. B contest, that B never records. Of course B should record as soon as possible to prevent losing out to an even newer buyer.;;New York is Race-Notice.
Term
Property Question 208;;"Any conveyance of an interest in land (here, O to A) shall not be valid against any subsequent purchaser for value (here B), without notice thereof (to B), whose conveyance is first recorded (here B)." Notice or Race Notice?
 Definition
Property Answer 208;;Race-Notice Statute. "First recorded" means a race notice statute. To prevail, B must 1) be a BFP and B must 2) win race to record. New York is Race Notice.
Term
Property Q209;;On March 1, O conveys to A, a BFP who does not record. On April 1, O conveys the same parcel to B, a bona fide purchaser, who does not record. On May 1, A records. Who takes Blackacre in a notice jurisdiction? In a race-notice?
 Definition
Property Answer 209;;In a notice jurisdiction: B (at the time we took he was a BFP).;In a race-notice jurisdiction: A (recorded first).
Term
Property Question 210;;Why does a buyer want to do a title search?
 Definition
Property Answer 210;;Proper recordation places subsequent buyer on record notice, thereby defeating their status as BFPs. To give record notice to subsequent takers, the deed must be recorded properly, within: a chain of title, which refers to that sequence of recorded documents capable of giving record notice to subsequent takers. In most states, the chain of title is established through a title search of the "grantor/grantee index".
Term
Property Question 211;;What is the shelter rule?
 Definition
Property Answer 211;;One who takes from a BFP will prevail against any entity that the transferor or BFP would have prevailed against. In other words, the transferee "takes shelter" in the status of her transferor, and thereby "steps into the shoes" of the BFP even though she otherwise fails to meet the requirements of BFP status.
Term
Property Question 212;;O conveys to A, who does not record. Later, O conveys to B, a BFP, who records. B then conveys to C, who is a mere donee or who has actual knowledge of the O to A transfer. In the contest of A vs. C, who prevails?
 Definition
Property Answer 212;;C wins, in both a notice and race-notice state, because of the shelter rule. C steps into the shoes of B, who was a BFP who recorded first. The shelter rule is designed not so much to protect C but to protect B. Makes it easy for BFP to transfer their interests.
Term
Property Question 213;;O sells Blackacre to A, who does not record. A sells to B. B records the A-to-B deed. Dirty O then sells Blackacre to C. C has no actual or inquiry knowledge of either conveyance. C records. O has skipped town. C beats B?
 Definition
Property Answer 213;;Yes. B was remiss, C wins, in both a notice and race-notice state. C wins in a notice state because at the time C takes she is a BFP. C wins in a race-notice state because she is a BFP who has won the race to record. The A to B deed, although recorded, is NOT connected to the chain of title, because it contains a missing grantor. O to A link is missing from the public record. The A to B deed is not properly recorded. The A to B deed, therefore, is a wild deed.
Term
Property Question 214;;What is the rule of the Wild Deed?
 Definition
Property Answer 214;;The rule of the wild deed: If a deed, entered on the records (A to B), has a grantor unconnected to the chain of title (O to A), the deed is a wild deed. It is incapable of giving record notice of its existence. It is a nullity.
Term
Property Q215;;In 1950, O owns Blackacre. X, who does not own it, sells it to A. A records. In 1960, O sells Blackacre to X. X records. In 1970, X sells Blackacre to B. B records. As between X and A, who owned Blackacre from 1960-1969? In 1970?
 Definition
Property Answer 215;;From 1960-1969, A owned Blackacre, because of the rule of estoppel by deed: One who conveys realty in which he has no interest (here, X) is estopped from denying the validity of that conveyance if he subsequently acquires the interest he had previously purported to transfer.;;B owns Blackacre in 1970, as long as he is a BFP. B wins in a notice system because he is a BFP. B wins in a race-notice system because he is a BFP who won the race to record. How so? A's 1950 recording is a nullity. A recorded too early. B's title searcher would not find A's deed. Why not? Because one is entitled to assume that no one sells land until they first own it. Thus, B's title searcher would not discover X's 1950 pre-ownership transfer to A. A had a long time to record and correct the defect, not sympathy for his failing to do so.
Term
Property Question 216;;How does one create a mortgage?
 Definition
Property Answer 216;;A mortgage is the conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a monetary obligation. A mortgage is the union of two elements: a debt AND voluntary transfer of a security interest in debtor's land to secure the debt. Must be in writing, which is called the legal mortgage (or The mortgage deed, The note, The security interest in land, Deed of trust, Sale and lease back).
Term
Property Q217;;O owns Blackacre. Creditor lends O a sum of money, with Blackacre is the collateral for the debt. Instead of a note, O hands Creditor a deed to Blackacre, absolute on its face. What if Creditor proceeds to sell Blackacre to BFP X?
 Definition
Property Answer 217;;This is an equitable mortgage. ON the bar exam if X is a BFP, X ownes the land. O's only recourse it to proceed against creditors for fraud and recover the proceeds of the sale. As between O and Creditor, parol evidence is freely admissible to show the parties true intent.
Term
Property Question 218;;Once a mortgage has been created, what are the parties' rights?
 Definition
Property Answer 218;;Unless and until foreclosure, debtor-mortgagor has title and the right to possess. Creditor-mortgagee has a lien, the right to look to the land if there is a default.
Term
Property Question 219;;How can the creditor-mortgagee can transfer his interest?
 Definition
Property Answer 219;;The creditor-mortgagee can transfer his interest by;(1) endorsing the note and delivering it to the transferee.;(2) executing a separate document of assignment. If the note is endorsed and delivered, the transferee is eligible to become a holder in due course. This means that he takes note free of any personal defenses that could have been raised against the original mortgage. "Personal defenses" include ordinary contract actions: lack of consideration, fraud in the inducement, unconscionability, waiver, estoppel.
Term
Property Question 220;;What are the real defenses?
 Definition
Property Answer 220;;Mad FIFI4: Material Alteration, Duress, Fraud In the Factum (lie about the instrument), Incapacity, Illegality, Infancy, Insolvency.
Term
Property Question 221;;What is required to be a holder in due course of the note?
 Definition
Property Answer 221;;(1) the note must be negotiable, made payable to the named mortgagee;(2) the original note must be indorsed, signed by the named mortgagee;(3) the original note must be delivered to the transferee. A photocopy is unacceptable;(4) the transferee must take the note in good faith, without notice of any illegality, and;(5) the transferee must pay value for the note, meaning some amount that is more than nominal.
Term
Property Q222;;On Jan. 10, Madge took out a $50K mortgage on Blackacre with Bank, which recorded that day. On Jan. 15, Madge sold Blackacre to Buyer, who had no actual knowledge of the lien, recording that day. Does Buyer hold subject to Bank's mortgage?
 Definition
Property Answer 222;;Yes. All recording statutes apply to mortgages as well as deeds. Thus, a subsequent buyer takes subject to properly recorded lien.
Term
Property Q223;;On Jan. 10, Madge took out a $50K mortgage on Blackacre with Bank. On Jan. 15, Madge sold Blackacre to Buyer, who did not know of the lien. On Jan. 20, Bank recorded. On Jan. 30, Buyer recorded. Does Buyer hold subject to Bank's mortgage?
 Definition
Property Answer 223;;In a race-notice jurisdiction: Buyer loses because he lost race to record.;In a notice jurisdiction: Buyer wins if he was a BFP when he took. Losing the race to record is immaterial.;;In a notice state, a subsequent BFP prevails over a prior grantee or mortgagee who has not yet recorded properly at the time the BFP takes.
Term
Property Question 224;;Who is personally liable on the debt if O, our debtor-mortgagor, sells Blackacre to B?
 Definition
Property Answer 224;;If B has "assumed the mortgage": Both O and B are personally liable. B primarily and O secondarily liable.;;If B takes "subject to the mortgage": B assumes no personal liability on the debt. Only O is personally liable but if recorded, the mortgage remains on the land. Thus if O does not pay the mortgage may be foreclosed.
Term
Property Q225;;Blackacre is worth $50K, subject to three mortgages. Bank1, with first priority, is owed $30K. Bank2, with second, is owed $15K, and Bank3, with third, is owed $10K. Bank1's mortgage is foreclosed. Blackacre is sold for $50K. Who gets what?
 Definition
Property Answer 225;;Off the top: Attorney's fees, the expenses of the foreclosure, the accrued interest on 1st bank's mortgage. Here assume these are $0. The sale proceeds are then used to pay off the mortgages in the order of their priority. Each claimant is entitled to satisfaction in full before a subordinated lienholder may take. Thus, First Bank takes: $30,000. Then, Second Bank takes: $15,000. The remaining balance is applied toward: 3rd bank, which takes $5,000. Third Bank should be able to proceed for a deficiency judgment. Now assume the same facts as above, except that Blackacre is sold at First Bank's foreclosure sale for $60,000. What result? All creditors paid in full. The extra $5,000 goes to the debtor (Madge).
Term
Property Question 226;;O has a recorded mortgage. O sells Blackacre to B, "subject to the mortgage." O does not pay the mortgage. Can B lose Blackacre?
 Definition
Property Answer 226;;Yes. B assumes no personal liability on the debt. Only O is personally liable but if recorded, the mortgage remains on the land. Thus if O does not pay the mortgage may be foreclosed.
Term
Property Q227;;Blackacre is worth $50K, with three mortgages. Bank1 (first priority) is owed $30K. Bank2 (second) is owed $15K, and Bank3 (third) is owed $10K. Bank2's is being foreclosed. Is the foreclosure sale buyer personally liable to First Bank?
 Definition
Property Answer 227;;First Bank's mortgage exists, but it is either not in default or its holder has not yet taken action to foreclose it. Foreclosure does not affect any interest senior to the mortgage being foreclosed. Thus, foreclosure of Second Bank's mortgage: will not effect 1st banks mortgage. First Bank's mortgage will continue: to exist on Blackacre in the hands of the foreclosure sale buyer. No. But if the senior debt is not paid 1st bank is entitled to foreclose on Blackacre. $15,000 to 2nd bank and $5,000 to 3rd bank. 3rd bank should get deficiency judgment against the debtor for the shortfall.
Term
Property Question 228;;C lends O $100,000 so that O can purchase Blackacre. C takes as collateral a security interest in Blackacre, the very parcel that C's extension of value enabled O to acquire. C records. What does C have in foreclosure?
 Definition
Property Answer 228;;C has 1st priority as to the parcel he financed (Blackacre). C is a purchase money mortgagee.
Term
Property Q229;;C1 lends O $200K for a security interest in all of O's real estate, "now owned or hereafter acquired." C1 records. C2 lends O $50K to buy Blueacre for a security interest in it. C2 records. O defaults. Who has first priority in Blueacre?
 Definition
Property Answer 229;;C2. The purchase money mortgage has priority on the property it financed. C1 is first in time, but loses. This clause is called an after acquired collateral clause.
Term
Property Question 230;;How is the right of equitable redemption exercised?
 Definition
Property Answer 230;;By paying off the missed payments plus interests and costs. Equitable redemption is universally recognized up to the date of sale. At any time prior to the foreclosure sale the debtor has the right to redeem the land and free it of the mortgage.
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Property Question 231;;May a debtor/mortgagor waive the right to redeem in the mortgage itself?
 Definition
Property Answer 231;;No. This is known as clogging the equity redemption. Prohibited as a matter of public policy.
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Property Question 232;;What is statutory redemption?
 Definition
Property Answer 232;;statutory redemption gives the debtor-mortgagor a statutory right to redeem for some fixed period after the foreclosure sale has occurred (typically six months to one year). Where recognized, statutory redemption applies: only after foreclosure has occurred. The amount to be paid is usually the foreclosure sale price rather than the amount of the original debt. In most states to recognize statutory redemption, the mortgagor will have the right: to possession during the statutory period;;In New York, there is no statutory right to redemption.
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Property Question 233;;What is the rule of lateral support?
 Definition
Property Answer 233;;If land is improved by buildings and an adjacent landowner's excavation causes that improved land to cave in, the excavator will be liable only if: he acted negligently.
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Property Question 234;;When does strict liability apply in the rule of lateral support?
 Definition
Property Answer 234;;Strict liability does not attach to the excavator's actions unless plaintiff shows that, because of defendant's actions, petitioner's improved land would have collapsed even in its natural state.
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Property Question 235;;What is the riparian doctrine?
 Definition
Property Answer 235;;The two major systems for determining the allocation of water in watercourses, such as streams, rivers, and lakes: The water belongs to those who own the land: These people are known as reparians, who share the right to reasonable use of the land. Thus, one riparian will be liable if his or her use unreasonably interferes with another's use.
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Property Question 236;;What is the prior appropriation doctrine for water rights?
 Definition
Property Answer 236;;The prior appropriation doctrine: The water belongs initially to the state, but the right to divert it and use it can be acquired by: an individual, regardless of whether or not he happens to be a reparian owner. Rights are determined by priority of beneficial use. The norm for allocation is: 1st in time, 1st in right. Thus, a person can acquire the right to divert and use water from a watercourse merely by being the first to do so. Any productive or beneficial use of the water, including use for agriculture, is sufficient to create the appropriation right. If this is on the test it will involve agriculture.
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Property Question 237;;What is Groundwater?
 Definition
Property Answer 237;;Groundwater, also known as percolating water: Water beneath the surface of the earth that is not confined to a known channel. The surface owner is entitled to make reasonable use. However, the use must NOT be wasteful.
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Property Question 238;;What is the rule of Surface Waters?
 Definition
Property Answer 238;;Those which come from rain, springs or melting snow, and which have not yet reached a natural watercourse or basin. The common enemy rule: A landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water. Many courts have modified the common enemy rule to prohibit: unnecessary harm to other landowners.
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Property Question 239;;What are the two possessor rights to land?
 Definition
Property Answer 239;;The possessor of land has the right to be free from trespass and nuisance. To remove a trespassor you bring an action for ejectment.
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Property Q240;;A operates a dog kennel near a power plant. A's dogs are chronically agitated, causing her to lose business. The power plant emits a high frequency sound heard by animals but not humans. A sues the plant for nuisance. What result?
 Definition
Property Answer 240;;A losses. A's use is hypersensitive. No nuisance if problem is due to plaintiff's super-sensitivity or specialized use.
Term
Property Question 241;;X stinks up Y's property. Y sues X for trespass of odor and nuisance of odor. Can X laugh at Y?
 Definition
Property Answer 241;;Yes for the trespass claim, no for the nuisance claim. Unlike trespass, nuisance does NOT require tangible physical invasion. Thus, odors and noise could give rise to a nuisance, but not a trespass.
Term
Property Question 242;;You buy land in North Carolina for development. Three months later, the government imposes a ban on all development. Taking?
 Definition
Property Answer 242;;Maybe. Note that you have not been the target of an overt condemnation. Still, you argue that the regulation is an implicit taking. It has worked an economic wipeout of your investment.
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Property Question 243;;What is zoning?
 Definition
Property Answer 243;;Pursuant to its police powers, government may enact statute to reasonably control land use.
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Property Question 244;;How do you get a variance?
 Definition
Property Answer 244;;A zoning variance is the principal means to achieve flexibility in zoning. Proponent must show (1) undue hardship and (2) that granting the variance won't work to detriment to surrounding property value.
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Property Q245;;You are a developer seeking to build a 200-unit residential development in the town of Utopia. The town says it will grant you the requisite permit if you provide several new streetlights, a small park and wider roads. Constitutional?
 Definition
Property Answer 245;;Maybe. To pass constitutional scrutiny, these exactions must be reasonably related both in nature and scope to the impact of the proposed development. If they are not, the exactions are unconstitutional.
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Property Question 246;;What is the rule of a newly-declared nonconforming use?
 Definition
Property Answer 246;;A once-lawful, existing use now deemed nonconforming by a new zoning ordinance. It cannot be eliminated all at once unless just compensation is paid. Otherwise, it could be deemed an unconstitutional taking.
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Property Question 247;;What are exactions?
 Definition
Property Answer 247;;Exactions are those amenities that the government seeks in exchange for granting permission to build.
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Property Question 248;;What remedies are available for a regulatory taking?
 Definition
Property Answer 248;;The government must either:;(1) compensate the owner for the taking, or;(2) terminate the regulation and pay damages occurring while regulation was in effect.
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