Glossary of New York Bar Exam - Real Property
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- What is a present possessory estate?
- Interest that gives the holder the right to present possession.
- What is a fee simple absolute?
- Estate that:
1) can be sold, divided, devised, or inherited
2) is presumed to continue indefinitely.
**Presumed absent contrary intent.
- What is a fee simple defeasible?
- Fee Simple Estate that can be terminated upon the happening of some stated event.
- What are the 3 types of fee simple defeasables?
- 1) Fee simple determinable
2) Fee simple subjet to condition subsequent
3) Fee simple subject to as executory limiation
- What is a fee simple determinable?
- A fee simple which automatically reverts to the grantor when when a stated event occurs or fails to occur.
- Can a fee simple determinable be conveyed?
- Yes, but grantee takes subject to the possible termination.
- How is the fee simple determinable created?
- Only by words limiting the duration of the state, such as "while," "so long as," or "until."
**eg, terms such as "to be used for" are simply expression of motive not limits of duration.
- What is the possibility of reverter?
- Follows a fee simple determinable, and is automatically retained by the grantor. Property automatically reverts to grantor on occurence of the condition.
- What is a fee simple subject to condition subsequent?
- An estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event.
**ie, does not automatically terminate - grantor must take some action.
- What is the right of entry?
- Follows a fee simple condition subsequent, and gives grantor the right reclaim the property upon occurence of the condition.
**can be retained only by the grantor.
- What is the fee simple subject to executory limitation?
- A fee simple estate that terminates upon the happening of a state event and then passes to a third party.
**Correlative future interest is an executory interest.
- What is a fee tail?
- An estate where inheritability is limited to lineal heirs.
**created by the words "to B and heirs of his body"
- Are fee tails still recognized?
- Most states have abolished them, and an attempt to create one will result in a fee simple.
- What is a life estate?
- Estate that is measured by the lives of one or more persons.
**Correlative future interest is either a reversion, remainder, executory interest.
- What is a life estate pur autre vie?
- Life estate measured by a life other than the grantee's (eg, to B for the life of C).
- Can life estates be defeasible?
- Yes, although they generally are not. (eg, to A for life, but if A is divorced, to B).
- What are the righs and duties of a life tenent - doctrine of waste?
- 1) A life tenent is entitled to ordinary use and profits from the land, BUT
2) Cannot do anything that injures the remainderman or reversioner. (eg, waste)
**Future interest holder may sue for damages or enjoin such acts.
- What is affirmative waste?
- Exploitation of natural resources by the life tenant constitutes waste except when:
1) Necessary for repair or maintenance of land,
2) Land is suitable for such use, OR
3) It expressly or impliedly permitted by the grantor.
- What is permissive waste?
- Occurs when the life tenant fails to:
1) preserve the land and structure,
2) pay the interest on mortgages,
3) pay ordinary taxes on the land, OR
4) pay special assessments of a short duration
**Not responsible to insure or for the damages of a 3rd party tort-feasor.
**Duty to repair or pay taxes is only to the extent of rents/profits or FMV rent if T occupies
- What is ameliorative waste?
- A change that benefits the property economically.
- When may a life tenant alter or demolish the existing buildings?
- 1) The market value of the future interest is not diminished, AND EITHER
2) The remaindermen do not object, or
3) A substantial and permanent change in the neighborhood has deprived the property of usefulness.
- What happen if a life estate is renounced?
- The future interest following the estate become immediately possessory.
- What is a future interest?
- Gives the holder the right or possibility of future possession of an estate.
**It is a present, non-possessory, legally protected right in property.
- What are the five types of future interests?
- 1) The possibility of reverter,
2) The right of entery
3) The reversion
4) The remander
5) The executory interest
- What is a reversion?
- Estate left in the grantor who conveys less than he owns. (eg, "to B for life", A has a reversion.)
**Arises by operation of law and is alienable, devisable, and inheritable.
- What is a remainder?
- A future interest in a 3rd person that can become possessory on the natural expiration of the prior possessory interest.
**Cannot divest a prior estate and cannot follow a time gap.
**eg, "G to A for life, then to B." B has a remainder.
- How is a remainder created?
- By express words in the same instrument that conveys the possessory interest. (eg, "to B for life, then to C and his heirs")
- What is the difference between a remainder and a reversion?
- The remainder is created in a 3rd party. Reversion is in the grantor.
**ie, they're the same thing except for who the interest goes to.
- What is a vested remainder?
- Remainder created:
1) In an existing and ascertained person, AND
2) Not subject to a condition precedent.
**The vested remainder is indefeasible if not subject to divestment or diminution.
- What is a vested remainder subject to open?
- Vested remainder in a class of persons that is certain to become possessory but subject to diminution (by adding members to the class).
- What is a vested remainder subject to total divestment?
- Vested remainder subject to condition subsequent.
**Not a condition precedent - that would mean the remainder is not vested.
- What is a contingent remainder?
- Remainder that is:
1) created in unborn or unascertained persons, and/or
2) subject to condition precedent.
**ie, a remainder that is not yet vested.
- What happens if a contingent remainder fails to vest before or upon the termination of the preceeding freehold estate?
- Under the CL doctrine of destructibility, contingent remainders are destroyed if they fail to vest before or upon termination of the preceding estate.
**Most states have abolished the destructibility rules and the interest becomes executory.
- What is the doctrine of merger?
- When one person acquires all of the present and future interest in land except a contingent remainder, the contingent remainder is destroyed.
eg, to A for life, then to A's child if he reaches 21, remainder to B. If A sells to B, the contingency is destroyed.
- What is the importance of vested v. contingent remainders?
- It makes a difference for:
1) RAP - Vested remainders are not subject to it
2) Transferability - At CL, contigent remainders were not transferable inter vivos
- What is the "Rule in Shelly's Case"?
- At CL, if the same instrument creates a life estate in A and gave a remainder only to A's heirs, the remainder was not recognized and A took the life estate and remainder.
**Abolished in most states.
- What is the "doctrine of worthier title"?
- A remainder in grantor's heirs is void and becomes a remainder to the grantor.
**Eg, "G to A for life, remainder to G's heirs." Creates an alienable remainder in G.
- What is an executory interest?
- Future interest in 3rd parties that either divests a transferee's preceding freehold estate or follows a gap or cuts short grantor's estate.
Eg, In a grant from A "to B and his heirs when B marries C", B has a springing executory interest because it cuts short the grantor's estate.
- What is the difference between an executory interests and a remainder?
- A remainder never cuts off a prior interest, where as a executory interest does divest or cut off prior to natural termination.
- What is the transferability of remainders and executory interest?
- 1) Vested remainders are fully transferable and devisable.
2) Contigent remainders and excutory interest were not transferable inter vivos at common law
3) Contingent remainders and exec interests are devisable.
**Today, most courts hold CRs and EIs are freely transferable.
- What is a class gift?
- A gift to a group of persons having common characteristics.
**Share is determined by the number in the group.
- What is the Rule of Convevience?
- In absence of contrary intent, a class closes when some member of the class become entitled to call for distribution of his share. (Person in gestation at the time the class closes are included).
**eg, to then B's children upon turning 21. Only children living are when the first child turns 21 are included in the class.
- Is suviorship of class member necessary to share in a future gift?
- No, unless survival was made an express or implied (eg, widow, heirs, issue) condition.
- What interest do class members usually hold when a gift of future interest becomes effective?
- Existing members have a remainder subject to open.
**Watch for a condition precedent that will prevent the remainder from opening. eg, A for life, remainder to B's children who survive A.
- What is the Rule Against Perpetuities?
- A future interest is invalid unless it will either vest or fail to vest w/in a period equal to:
1) A life in existence at the time the interest in created PLUS
2) An additional 21 years.
**life in existance is anyone named in the conveyance
- What interests does the RAP apply to?
- 1) Contingent remainders
2) Executory interests
3) Vested remainders subject to open
4) Options to purchase
- When does the perpetuities period begin to run?
- 1) For interests granted by will, it runs from the date of testator's death
2) For deeds, its the date of delivery
3) For an irrevocable trust, it is from the date created
4) For a revocable trust, it is from the day it becomes revocable
**Eg, for a Will the the lives in being will be determined on date of Testator death.
- What does "Must Vest" mean?
- When it becomes:
1) Possessory, or
2) An indefeasibly vested remainder or vested remainder subject to total remainder.
- What does "Lives in Being" mean?
- Unless other measuring lives are specified, one connected with the vesting of the interest is used.
- What is the effect of violating the RAP?
- Violation destroys only the offending interest.
**When a void interest is stricken, the interests are classified as if the void interest were never there.
- How does the RAP affect an executory interest following a defeasible fee?
- There will usually be a violation of the RAP and the executory interest is stricken.
- Does an age contingency beyond age 21 in an open class violate the RAP?
- What is the fertile Octogenarian problem?
- A women is presumed capable of bearing children regardless of ages; thus, a disposition of "to A for life, the A's children for life, then A's grandchildren in fee" is invalid, even A is 90.
- What is the gift conditioned on administrative contingency problem?
- A gift conditioned on some admin contingency (eg, admission to probate) violates the rule because it is possible the administration may take more than 21 years.
- What is the rule against restraints on alienation?
- Generally, any restriction on the transferability of a fee simple is void.
- What are 3 types of restraints on alienation?
- 1) Disabling restraints - renders attempted transfers ineffective
2) Forfeiture restraints - attempted transfer forfeits interest
3) Promisory restraints - attempted transfer breachs a covenant.
- When might restraints on alienation be upheld?
- Restraints on fee simple estates for a limited time and reasonable time may be upheld
**Eg, restraint limited to joint life-times of co-owners as a reasonable way to ensure neither will have to reside with a stranger.
- Do use restrictions constitute a impermissible restraint?
- Can an estate in land be held concurrently by multiple people?
- Yes an estate in land can be held concurrently by several persons, all of whom have the right to enjoyment and possession.
- What is a joint tenancy?
- 2 or more people own a single unified interest in real or personal property.
- What is the distinguishing feature of a joint tenancy?
- When one joint tenant dies the property is free from his concurrent interest (ie, his survivors do not suceed to it).
- What are the 4 common law requirements for creation of a joint tenancy?
- The joint tenants must:
1) Take identical interests,
2) At the same time,
3) By the same instrument, and
4) With the same right to possession.
**ie, interests must be equal in every way, where as tenancy in common need not.
- How may a joint tenancy be severed?
- 1) Inter vivos conveyance - such a conveyance destroys the joint tenancy
2) Contracts to conveyance - If one joint tenant contracts to convey his interest, severance results
**when severance occurs, a tenancy in common results. If there are more than 2 joint tenants, conveyance by one destroys the joint tenancy only to the extent of the conveyor's interest.
- What is the effect of severance of a joint tenancy?
- When severance occurs, a tenancy in common results
- Does a granting of a mortgage sever the joint tenancy?
- 1) Title theory states - treated as a conveyance and severs
2) Lien theory states - does not sever
- Does a granting of a lease issued by one joint tenant sever the joint tenancy?
- Not in most states.
- What is a tenancy by the entirety?
- Marital estate akin to joint tenancy. Can only be severed by death, divorce, mutual agreement, or execution by a creditor of bot the husband and wife.
- What is Tenancy in Common?
- A concurrent estate with no right of survivorship. Tenants may hold equal shares.
**Presumption in favor of tenancy in common and presumption of equal shares.
- What is the right to posession among co-tenants?
- Each has the right occupy the entire premises, subject only to a similar right of the others.
**Parties can make an agreement contrary.
- When can a co-tenant bring a possesory action?
- Only whe he is ousted (ie, the occupying tenant refuses to permit the other tenant equal occupancy).
- How must rents and profits from the proprerty be divided?
- 1) Co-Tenant can retain profit from own use of property
2) Co-Tenants must split rents from 3rd parties or profits from exploiting the land.
- Can a co-tenant encumber his interest (eg, mortgage)?
- Yes, but may not encumber other co-tenants.
- Can a co-tenant bring an action for partition?
- Yes, the court will either divide the property or order it sold and have the proceeds distrubted.
**Not available for tenancy by the entirety.
- What are co-tenant's duties regarding repairs?
- A co-tenant who pays more than his share pro-rata is entitled to contribution from other tenants.
- What are co-tenant's duties regarding improvements?
- There is no right to contribution for the cost of improvements unless there is a partition.
- What are co-tenant's duties regarding taxes and mortages?
- Contribution can be demanded for taxes or mortgage payments paid on the entire property.
**A co-tenant in sole possession is limited to the extent that expenditures exceed the rental value of his use.
- What is a leasehold?
- An estate in land, under which the tenant has a present possessory interest in the leased premises.
- What are the 4 types of landlord-tenant relationships?
- 1) Tenancy for years
2) Periodic tenancy
3) Tenancy at will
4) Tenany at sufference
- What is a tenancy for years?
- A tenancy that continues for a fixed period of time.
**Eg, A rents to B for 2 years.
- How is a tenancy for years created?
- Usually by written lease. (SOF requires writing if the lease is for more than 1 year.)
- How is a tenancy for years terminated?
- It automatically ends at its termination date.
- What is the effect of a breach of covenants in TFY?
- In most cases, L reserves a right of entry, which allows him to terminate the lease if T breaches any of the lease's covenants.
- What is the effect of failure to pay rent in a TFY?
- In many jurisdictions, L may (by statute) terminate the lease even in the absence of a reserved right of entry.
- What is a Periodic Tenancy?
- Tenancy that continues for sucessive periods until terminated by proper notice by either party.
- How is a periodic tenancy created?
- 1) Express agreement (eg, L leases to T month to month)
2) Implication (eg, L leases to T for $100 per month), or
3) Opp of Law (eg, T remains in possesion after experation and L treats it as a PT)
- How is a PT terminated?
- Automatically renewed until proper notice is given, usually one full period in advance. (eg, one full month in a month to month lease).
- What is a tenancy at will?
- Tenancy terminable at the will of either L or T.
- How is a TW created?
- Express agreement that the lease can be terminated at any time.
**If the lease gives only the L the right to terminate, a similar right will be implied in favor of T.
- How is a TW terminated?
- Without notice:
1) any party with the power to terminate may do so, or
2) may occur by opperation of law (eg, death, waste, etc.)
- What is a tenancy at sufferance?
- Tenancy that arises when the tenant wrongfully remains in possession after the expiration of a lawful tenancy.
- How long does a tenancy at sufference last?
- A tenancy at sufferance lasts only until L takes steps to evict T.
- What is the hold-over doctrine?
- If a tenant continues in possession after his right to possesion has ended, L may;
2) Bind T to a new periodic tenancy.
- What will the terms be for a hold-over tenancy?
- Generally the terms of the expired tenancy, unless L had already notified T of a rent increase.
- What are the exceptions to the holdover doctrine?
- L cannot bind T to a new lease if:
1) wrongfully possession only for a few hours or leaving a few items of personal property
2) delay is not T's fault (eg, severe illness), OR
3) it is a seasonal lease.
- What is a lease?
- Contract that governs the landlord-tenant relationship.
- Are convenants of the lease independent?
- Yes, if one party breaches, a covenant, the other party can recover damages but must still perform.
- What are T's duties under a tenancy?
- 1) Duty to repair
2) Duty not to use premises for illegal purpose
3) Duty to pay rent
- What is T's duty to repair?
- Tenant cannot damage or commit waste on the leased premise
**Recall the 3 types of waste: Voluntary, permissive, or ameliorative.
- What happens if the leased premises are destroyed through no fault of T or L?
- Absent lease language or statute to the contrary, neither party has a duty to restore the premises, but T must continue to pay rent.
- What if T specifically covenants to make repairs?
- His duty will be higher than the duty implied by the law of waste.
**T has a duty to repair even ordinary wear and tear unless express excluded but no duty for structural repairs or fire unless expressly included.
- What is T's duty not to use the premises for illegal purpose?
- If T uses the premises for an illegal purpose, L may terminate the lease or sue for damages and obtain injunctive relief.
**Must be more than occasionla unlawful conduct.
- What is T's duty to pay rent?
- At Common Law, rent is due at the end of each term. Modern leases usually contain a provision making rent payable at some other time.
- What is the duty to pay rent if the lease terminates before the time originally agreed upon?
- T must pay a proportionate amount of the agreed rent.
- What is the effect if the security deposit is termed a "bonus"?
- Generally, the deposit can only be held to the extent of actual damages, but if the deposit is termed a "bonus" L can keep the bonus if T is evicted.
- What is L's duty if T is on premises but fails to pay rent?
- Evict via the unlawful detainer statute or sue for rent.
**Common law you could only sue
- Can tenant raise counter claims in a unlawful detainer suit?
- What is L's right when tenant unjustifiably abandons the property?
- T is liable for rent lost by adandonment unless surrender is accepted.
- What are the landord's duties to tenant?
- 1) Duty to deliver possession
2) Quiet enjoyment
3) Warrany of Habitability
4) No Retaliatory eviction
- What is L's duty to deliver possession?
- Most states require L to put T in actual possession of the premises at the beginnig of the leasehold term.
**eg, L is in breach if he has not evicted the holdover tenant.
- What is L's duty to provide quiet enjoyment?
- Every lease has an implied covenant that neither L or a paramount title holder will interfere with T's quiet enjoyment and possession.
- How will such covenant be breached?
- 1) Actual eviction - excluded from the entire premises
2) Partial eviction - tenant is excluded from part of the premises
3) Constructive eviction - L does something or fails to do something that renders the property uninhabitable.
- What's L's duty of implied inhabitability?
- If L doesn't keep the home up to local housing code, T may:
1) Make repairs and offset the cost from rent
2) Terminate the lease
3) Abate rent to an amount equal to the fair rental value in view of the defects
4) Remain possession, pay in full and sue for damages
- What is L's duty against retaliatroy eviction?
- In many states L may not terminate lease in retaliation for T's exercise of legal rights.
- When can T transfer his leasehold interest?
- Absent express restriction in the lease, T may freely transfer his leasehold interest in whole or in part.
- What is an assignment?
- A complete transfer of the remaining term.
- What is a sublease?
- Transfer where T retains any part of the remaining term (other thant the right to reenter upon breach).
- What are the consequences of assignment?
- An assignee stands in the shoes of the original tenant, in a direct relationship with L. (privity of estate)
- Does the original tenant remain liable for rent after assignment?
- Yes, because the original tenant is in privity of contract.
- Can an assignee reassign his leasehold interest?
- Yes and his privity of estate ends. (ie, not liable for a subsequent assignee's failure to pay)
- What are the consequences of a sublease?
- The sublessee is a tenant of the original lessee and pays rent directly to the original lessee.
**Sublessee not personally liable to the lessee.
- What is the effect on the sublease if L terminates the lease?
- The sublease automatically terminates with the lease.
- What are the rights of the sublessee?
- Cannot enforce any covenants made by L in the main lease except for implied habitability.
- How are covenants against assignment or sublease construed?
- Generally strictly construed against the landlord.
- What is the effect of waiver of such a covenant?
- Vaild covenant is waived if L knows and does not object, and once waived it is waived for all future transfers unless expressly reserved.
- What is the effect of a transfer in violation of the lease?
- If T assigns or subs in violation of the lease, the transfer is not void. L may only terminate lease or sue for damages.
- What is the effect of L's assignment?
- 1) The assignee is liable for all covenants
2) The original L is still liable on all of the covenants made in the lease.
- What is the tort liability of L?
- 1) L is liable for concealed dangerous conditions
2) Liable for injuries to members of the public he should have known of the dangerous condition, believes T may admit public before repair, and fail to repair
3) Liable for not taking reasonable care in repairs he undertakes after T takes possession
- What is L's general duty of reasonable care?
- Many courts also now hold L owes a general duty of reasonable care toward residential tenants, and is liable for negiligence in failing to repair a defect he had notice of and opportunity to repair.
- What is T's tort liability?
- See Torts.
- What is a fixture?
- A chattel that has been so affixed to the land that it has ceased being personal property and has become part of the realty.
Eg, a house
- How do fixtures pass?
- With the ownership of the land.
- What are nonpossessory interests in land?
- Easements, profits, covenants, and servitudes are nonpossessory interests in land, creating a right to use land possessed by someone else.
- What is an easement?
- Easement holder has the right to use another's land for a special purpoes, but has no right to possess.
**Eg, lay pipe, access a road, etc.
- How long does an easement last?
- It is presumed to be of perpetual duration unless the grant specifically limits the interest.
- What are the types of easements?
- 1) Affirmative - holder make affirmative use of the servient tenement
2) Negative - entitles the holder to compel refrainment
**Negative easements a reallly covenants.
- What is an easement appurtenant?
- An easement is appurtenant when it benefits the holder in his physical use or enjoyment of another tract of land.
- What is necessary for an easement to be appurent?
- two tracts:
1) the dominant tenement (the estate benefited by the easement),
2) and the servient tenement (the estate subject to the easement right).
- Does an easement appurtenant pass with transfer of the land?
- Yes, regardless of whether it is mentioned in the conveyance.
- What is an easement in gross?
- The holder of an easement in gross acquires a right to use the servient tenement independent of his possession of another tract of land
eg, right to erect a billboard
- Is an easement in gross transferable?
- Only if it serves an economic commercial interest.
- How is an easement created?
- Negative easement can only be created expressly. Affimative easements can be created by (PING):
1) P - Prescription
2) I - Implication
3) N - Necessity
4) G - Grant or Reservation
- How is an easement created by express grant?
- It is in writing and signed by the holder of the servient tenent.
**Unless it doesn't fall within the SOF
- How is an easement created by express reservation?
- When a grantor conveys title to land but reserves the right to use the land for a special purpose.
**Under the majority view the easement can only be reserved for he grantor.
- How is an easement created by implication from existing use?
- An easement may be implied if:
1) Prior to the division of a single tract,
2) An apparent and continuous use exists on the “servient” part,
3) Reasonably necessary for the enjoyment of the “dominant” part, and
4)Court determines that the parties intended the use to continue after division.
- How is an easement created by implication w/o any existing use?
- 1) Subdivision - lots are w/ reference to a map that shows streets leading to lots
2) Profit a Pendre - Holder has implied easement to cross over the land reasonably necessary
- How is an easement created by necessity?
- Arises when a landowner sells a portion of his tract and by this division deprives one lot of access to a public road or utility line.
**The owner of the servient parcel has the right to locate the easement.
- How is an easement created by prescription?
- Acquiring an easement by prescription is analogous to acquiring property by adverse possession.
**Same requirements as adverse possession
- What is the scope of an easement?
- In the absence of specific limitations in the grant, courts assume the easement was intended to meet both present and future needs of the dominant tenement.
*eg, easement may widen to accommodate bigger cars
- What is the remedy for misuse of an easement?
- The appropriate remedy for the servient owner is an injunction against use.
- How can an easement be terminated?
- 1) Conditions specified in the original easement
2) If the same person acquires the easement and the servient estate
3) Deed of release from the owner of the easement to the owener of the servient land
4) Holder demonstrates by physical action an intent to abondon the easement
5) Estoppel due to reliance on oral expressions
6) Prescription (opposite of creating easement by prescription)
7) Necessity that created the easement ends.
8) Condemnation or involuntary destruction of the servient estate
- What are "Profits"?
- Servitude entitling the holder of the benefit to take some resource (soil, timber, materials, fish, etc.) from the servient estate.
- What are the rules governing creation, alienation, and termination of profits?
- They are the same as with easements.
- What is a real covenant?
- Written promise to do or not do to something on the land.
- Do real covenants run with the land?
- Yes, which means that subsequent owners can enforce or be burndened by the covenants.
- What are the requirements for a burden to run?
- A successor in interest will be bound by the covenant if:
1) intent to run
2) successor had notice at purchase
3) the original parties had horizontal privity
4) the successor in interest must hold the entire durational interest held when convenant was made
5) the covenant must touch and concern the land (ie, to do or not do something to the land)
- What are the requirements for a benifits to run?
- 1) Intent for it to run
2) A succeding possessory estate
3) Covenant must touch and concern the land (ie: promised performance enhances enjoyment of the land)
- Do promises to pay money in connection with the land run with it?
- Yes, if the money is to be used in connection with the land (eg: homeowners fees.
- What is the remedy for breach of a real covenant?
- Money damages are the only remedy.
**If an injunction is sought, the promise must be enforced as as equitable servitude.
- How can a covenant be terminated?
- As with all other servitudes, a covenant may be terminated by
1) a written release
3) condemnation or destruction
- What is an equitable servitude?
- A covenant that, regardless of whether it runs with the land, equity will enforce against the assignees of the burdened land who have notice of the covenant.
- How is as equitable servitude remedied?
- Usually by injunction.
- What is the difference between a real covenant and equitable servitude?
- Basically the difference is the remedy that can be sought. To seek an injunction, the requirements for enforcement as an equitiable servitude must be met.
- How is an equitable servitude created?
- By covenants contained in a writing that satisfies the SOF.
- Can an equitable servitude ever be implied?
- Only a negative equitable servitude can be implied from a common scheme for developing a subdivison.
- What are the requirements for burdensome equitable servitude to run?
- 1) Covenanting parties intended that the servitude be enforceable by and against assignees;
2) Successor of the promisor has actual, inquiry, or record notice of the servitude; and
3) Covenant touches and concerns the land
- What are the requirements for beneficial equitable servitude to run?
- promisee’s successors if: (1) the original parties so intended, and (2) the servitude touches and concerns the benefited property.
- What are the defenses to equitable servitudes?
- 1) Person seeking enforcement is violating a similar restriction in his own land.
2) Benefited party acquiesced in a violation of the servitude by one burdened party
3) Benefited party acted in a way to make it reasonable to believe the servitude was abandoned
4) Fails to bring suit a reasonable time
5) Change to the area has been so significant that enforcement would be inequitable.
- What is adverse possession?
- A way to acquire real property via operation of the statute of limitations for trespass.
Ie: If an owner does not, within the statutory period, take action to eject the trespassor, title vests in that person.
- What are the requirements for adverse possession?
- 1) Running of the SOL
2) Open and Notorious posession
3) Actual and exclusive use
4) Continuous possession
5) Without the owners permission
- When does the SOL begin to run?
- When the owner first can bring suit.
- What constitutes open and notorious possession?
- Occupation must be sufficiently apparent to put the true owner on notice of tresspass.
- What constitutes continous possession?
- Constant use by the claimant is not required as long as possession is of a type that the usual owner would make.
**Need not be by one person either. Can tack onto predecessors but privity is required.
- What is effect of disability of the owner?
- The SOL does not begin to run if the true owner was under some disability to sue when the COA first accured. (eg, minority, imprisonment, etc).
**Note: If the disablity arises after the COA has accrued, the SOL will not be tolled.
- What is the effect of adverse possession on future interest?
- The SOL does not run against a future interest holder until the interest is possessory.
- What is the adverse possessor's duty with regard to restrictive covenants?
- If an adverse possessor uses the land in violation of a restrictive covenant, she takes free of the covenant. Otherwise she takes title subject to it.
- What land cannot be adversely possesed?
- Title to government-owned land and land registered under a Torrens system.
- What is conveyancing?
- The process of transfering real property, which usually consists of:
1) A land sale contract (which edures until closing), and
2) Closing (when the deed becomes operative).
- What is the land sale contract?
- Contract that preceeds most transfers of land.
- What is the doctrine of equitable conversion?
- Once a contract is signed, equity regards the buyer as the "owner" of the real property.
**The legal title that remains in seller is considered held in trust for the buyer.
- Who bares the risk of loss under equitable conversion?
- Usually the buyer
- What is marketable title?
- Every contract contains an implied warranty that the seller will provide a title reasonably free from doubt at closing.
- Is a title by adverse possession marketable?
- Not for the purposes of the MBE.
- What is the effect of liens, restrictive covenants, and easements on marketability?
- Generally render the title unmarketable.
- When is marketability measured?
- Generally the date of closing. Date of last payment in a land installment contract
**If an MBE answer refers to marketability sometime after closing it usually wrong.
- What is the remedy if the title is not marketable?
- 1) The buyer must notify the seller and give him reasonable time to cure the defects
2) If seller fails to cure, buyers remedies include recission, damages, specific performance w/ abatement, and a quiet title suit.
- Does a quitclaim deed affect the warranty to provide marketable title?
- No, it does not let the seller off the hook for defects.
- What is the generally rule for time of performance of a land sale contract?
- Courts presume time is "not of the essence" (ie, closing date is not absolutely binding if tendered w/in a reasonable time)
- When will the "time is not of the essence" presumption be overcome?
- 1) The contract so states,
2) The circumstances indicate that was the intent, or
3) One party gives the other notice that time is critical.
- What is the liability if time is of the essence and a part fail to render performance on closing?
- The party who fails to tender performance is in breach and may not enforce the contract.
- What type of conditions are obligations under a land sale contract?
- Concurrent, meaning neither party is in breach until the other tenders performance.
**If neither party tenders on closing date, the date is extended until one of them does
- What are the remedies for breach of a sale contract?
- Damages or specific performance.
**Damages are the difference between K price and market value on date of breach.
- What is the sellers liability for defective property?
- Seller may be liable for existing building defects on grounds of misrepresentation, active concealment, or failure to disclose.
**No implied warranty of quality or fitness for purpose
- Are disclaimers of liability effective?
- General disclaimers in the sales contract are not sufficient to overcome a seller's liability for fraud, concealment, or failure to disclose.
- When are real estate agents entitled to commission?
- The modern trend is to award commission only if the sale actually occurs or fails because of the fault of the seller.
- What is the deed?
- Deeds transfer the title to an interest in real property.
- What requirements must be meet for the deed to be effective?
- 1) Be in writing,
2) Signed by the grantor, and
3) Reasonably indentifies the parties and the land.
- When will a void or voidable deed be set aside?
- 1) Void deed will be set aside even if the property has passed to bona fide purchaser
3) Voidable deeds will be set aside by the court only if the property has not passed to a bona fide purchaser.
**Void deeds include those that are forged, obtained by fraud, etc. Voidable deeds are those by minors, incapacitated, duress, etc.
- What would happen if a joint owner attempted to convey property by forging the signature of the owner?
- 1) The conveyance would be valid as to the interest of owner with valid signature
2) Void as to the other owner.
- When may a deed be set as a fraudelent conveyance?
- It may be set aside by the grantor's creditors if it was made:
1) With the actual intent to hinder, delay, or defraud; or
2) Without receiving reasonably equivalent condsideration and debtor was insolvent.
- What constitutes a sufficient land description for a deed?
- It must provide a good lead to the indentity of the property.
- What is the order of priority where descriptions are inconsistent?
- 1) Natural monuments,
2) Artificial monuments
3) Courses (ie, routes)
- When is a deed effective?
- Only after it has been delivered and accepted.
- What is delivery of a deed?
- Grantor's intent to make a deed presently effective even if possession is postponed.
**eg, manual delivery, notarized acknowledgement, recording, etc
- What is the effect of retention of interest by grantor or conditional delivery?
- It indicates lack of intent, and the title will not pass even if the deed is executed because there's no delivery.
**A properly executed and delivered deed that provides title will not pass until grantor's death is valid and creates a future interest.
- Whati is the effect of giving the deed to a 3rd party for delivery?
- See notes
- What is acceptance of the deed?
- Completes a conveyance and usually is presumed after delivery.
- What is dedication?
- Transfer of land to a public body by written/oral statement, map showing land, or opening the land for public use.
- How may a dedication be accepted?
- 1) formal resolution
2) approval of plot or map
3) actual assumption of maintenance or improvements
- What are the 3 types of deeds?
- 1) general warranty deed
2) special warranty deed
3) quitclaim deed
**Real covenants are different in that they do not relate to title.
- What are covenants for title?
- Covenants that relate to title and are usually found in deeds.
**Real covenants are different in that they do not relate to title.
- What are the usual covenants in general warranty deeds?
- 1) Covenant of Seisin (title and possession)
2) Covenant of Right to Convey
3) Covenant against encumbrances
4) Covenant for quiet enjoyment
5) Covenanty of warranty
6) Covenant for further assurances
- Who may the last grantee sue if he is evicted by lawful claim of title?
- Anyone up the line.
- What a special warranty deed?
- In many states, using the word "grant" in a deed creates assurances that:
1) the grantor has not conveyed the same estate or interest to anyone else, and
2) that the estate is free from encumberances made by the grantor.
- What is a quiet claim deed?
- A quitclaim deed releases whatever interest the grantor has and no covenants of title are included or implied.
- What is estoppel by deed?
- If the grantor purports to convey an estate in property that he does not then own, his subsequent acquisition of the estate will inure to the benefit of the grantee.
**Not applicable to quitclaim deeds
- How does estoppel by deed affect subsequent purchasers?
- If the grantor transfers his after-acquired title to a bona fide purchaser for value, the BFP will prevail over grantee.
- What is the original grantee's remedy in estoppel by deed?
- Can accept title or sue for damages for breach of covenant.
- What are recording acts?
- Protects all bona fide purchasers from secret interests previously created and provide a mechanism for earlier grantees to give notice through recordation.
- What do recording act statutes require?
- That a grantee record his deed to put others on notice.
- What can be recorded?
- Any instrument creating or affecting an interest in land can be recorded, provided it is notarized.
- Who has the burden of proving qualification for protection under a recording act?
- The subsequent taker.
- What protection is provided by a notice statute?
- A subsequent BFP prevails over a prior grantee who fail to record.
**key is no actual or constructive notice.
- What protection is provided by a race-notice statute?
- A subsequent BFP is protected only if he takes without notice and records before the prior grantee.
- What protection is provided by a race statute?
- Whoever records first wins and notice is irrelevant.
**only 2 states use race statutes.
- Who is protected by recording acts?
- Only bona fide purchasers are protected under notice and race-notice statutes.
- What are the requirements to be a BFP?
- Must be:
1) A purchaser,
2) Without actual or notice, and
3) Pays valuable consideration
- When is a purchase "for value"?
- (1) Okay if less than FMV, but still requires "substantial pecuniary consideration"
(2) Donees, heirs and devisees do NOT qualify as BFPs (NOT protected)
- When is a person said to be on constructive notice?
- 1) Buyer has a duty to inspect premises before transfer of title and is responsible for what an examination of the land would reveal
2) If a recorded instrument makes reference to an unrecorded transaction—Buyer is on inquiry notice of whatever a reasonable follow up would have revealed
- What is record notice?
- A buyer is on notice of properly recorded deeds with in the chain of title.
**Chain is generally established by through a title search of grantor-grantee index
- What is "wild deed"?
- Arises when the transferee in chain of title fails to record.
**Incapable of giving record notice of its existence and is a nulity
- What is the effect of a late recording?
- A deed recorded after the grantor has passed title through a subsequent instrument is not constructive notice in most states.
- What is the effect of a recorded deed received from a grantor who had no title when conveyed but later obtains title?
- 1) Most court say it does not impart constructive notice to subsequent purchasers
2) Some protect the grantee over BFP on an estoppel by deed theory.
- What is an effect of a mistake by the recorder?
- It is considered recorde when filied with the office, regardless of whether properly indexed.
**BFP may hasve cause of action against the recorder's office.
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