Property Mbe Nc Bar Exam

Front 1

What is fee simple absolute?

Back 1

the largest estate that can be owned

Front 2

Under the common law how do you create a fee simple absolute?

Back 2

"To B and her heirs."

Front 3

Modernly, how do you create a fee simple absolute?

Back 3

"To B."

Front 4

What are the defeasible estates?

Back 4

1. fee simple determinable

2. fee simple condition subsequent

3. fee simple subject to executory limitation

Front 5

What is a fee simple determinable?

Back 5

fee simple estate created unitl the happening or nonhappening of an event.

Front 6

How do you create a fee simple determinable?

Back 6

Language- "so long as" "during" "until" while"

Note: Possibility of Reverter--if the stated event occurs the estate will revert back to the grantor

Ex-"X conveys Blackacre to A so long as the property is used as a school."

Front 7

What is fee simple condition subsequent?

Back 7

fee simple estate that may be terminated by upon the happening of a stated event.

Front 8

How do you create a fee simple condition subsequent?

Back 8

Language "provided that" "but if" "on condition that"

Note: Right of re-entry the grantor has the option of reacquiring possession.

Ex. X conveys Blackacre to A, but if the land is not used as a Farm, then X may reenter the land.

Front 9

What is fee simple subject executory interest?

Back 9

fee simple estate where upon happening of an event, ownership passes to one grantee to another grantee.

Ex--X conveys Blackacre to A and his heirs so long as the land is used as farm, if the land is not used as a farm then to B.

Front 10

What are the two types of executory interests?

Back 10

1. shifting--grantee cuts off the interest of another grantee

2. springing--a grantee cuts off the interest of the grantor

Front 11

What is a fee tail?

Back 11

"To B and the heir of his body."

Front 12

What is a life estate?

Back 12

a freehold estate where the duration is measured by the life or lives of one or more human being.

Ex "X conveys Blackacre to A for life."

Front 13

What is life estate pur autre vie?

Back 13

duration is measured by the life of another person?

Ex--X conveys Blackacre to B for the life of A.

Front 14

What is special about purchase money mortgage?

Back 14

purchase money mortgages are iven priority over other mortgages executed at about the same time, even if other mortgages get recorded 1st.

Front 15

What is the general rule for mortgages at foreclosure sale?

Back 15

if there are multiple mortgages priorities are first in right, unless recording act changes priorities

Front 16

What is a mortgage?

Back 16

an interest in land created by a written instrument providing security for an outstanding debt.

Front 17

What is an installment land contract?

Back 17

the buyer makes monthly mortgage payments to the seller and does not become the owner to all the payments are made

Front 18

What is a purchase money mortgage?

Back 18

where a mortgagor takes out a loan in order to buy property, this type of mortgage, called a "purchase money mortgage," take spriority over other types of mortgages, even if those other types of mortgages were recorded.

Front 19

What is a junior interest?

Back 19

a junior encumbrancer can be made an involuntary aparty to a foreclosure action by a senior encumbrancer?

Front 20

What is the equitable right of redemption?

Back 20

the mortgagor must redeem before the foreclosure sale.

Front 21

What is clogging?

Back 21

a mortgage may not contain provision that the mortgagor waives the right to redeem.

Front 22

Are mortgages assignable?

Back 22

Yes, mortgages are assignable.

Front 23

What is lien theory?

Back 23

a mortgage creates a lien on the land regardless of the operative words of the mortgage instrument. Under lien theory the mortgagor remains the owner of the land, and the lender holds only a security interest in the land.

Front 24

What is title theory?

Back 24

the mortgage operates as a conveyance of the legal title to the mortgagee/lender. Under title theory, the mortgagee/lender is actually entitled to possession of the land at any time.

Front 25

What are three types of devises that secure a loan on real property?

Back 25

1. deed of trust

2. installment land contract

3. mortgage

Front 26

What is race/notice?

Back 26

subsequent purchaser will have priority of title over a prior unrecorded instrument if the subsequent purchaser has no knowledge of the prior purchaser and records first

Front 27

What is a pure notice?

Back 27

the subsequent BFP who pays valuse without notice of any prior conveyances prevails whether or not he records

Front 28

What is a Race/Notice

Back 28

the subsequent BFP who paid value without notice of any prior conveyance who records first.

Front 29

What is a wild deed?

Back 29

deeds recorded outside the chain of title and they don't give notice.

Front 30

What is the equitable conversion doctrine?

Back 30

Applies during the executory stage of a land sale agreement the risk of loss is on the buyer absent controlling provision. The buyer will still be liable if property is destroyed

Front 31

What is the executory stage under equitable conversion doctrine?

Back 31

the time between signing of the contract and the closing date

Front 32

What if the vendor dies during the executory stage?

Back 32

General rule when the vendor of a specifically enforceable contract the beneficial interest the proceeds of the sell would go to the vendor's estate.

Front 33

What is the general rule for delivery of a deed?

Back 33

a deed is not effective to transfer property unless it has been delivered.

Front 34

Is parol evidence admissible to show intent for delviery?

Back 34

Yes, parol evidence is admissible to show intent.

Front 35

What is conditional delivery of a deed?

Back 35

the grantor gives the deed to a 3rd party with no conditions except for giving it to the grantee.

Front 36

In conveyances of freehold estates what must be in the deed or other instrument, to satisfy the statute of frauds?

Back 36

1. identification of the parties

2. sufficient description of the land

3. purchase price

4. interest being conveyed

5. signature of party being charged.

Front 37

What is the exception to the statute of frauds for interests in land?

Back 37

Doctrine of substantial peformance
1. buyer pays part or all of the purchase price and the buyer takes the possession of the property

Front 38

In a title theory, can a mortgage sever a joint tenancy?

Back 38

yes

Front 39

In a lien theory, can mortgage sever joint tenant?

Back 39

no

Front 40

What is fructus industrales?

Back 40

things thats are planted and harvested.

Note: must be removed before closing (by the end of the tenancy or closing on the sale of a house)

Note: tenancy at will--the tenant is permitted to remove plants within a reasonable time after the termination of the tenancy if they are planted in the ground at the notice of termination.

Front 41

What are fructus naturales?

Back 41

ex--trees, bushes, grass shrubs are grown without the help of man

Note: if they are located on the property line of adjoining landowners then the adjoining landowners own the trees as tenants in common.

Note: Crops will pass with the mortgage.

Front 42

What are riparian water rights?

Back 42

all tracks of land which abuts lakes or streams

Front 43

What is natural flow theory for riparian rights?

Back 43

a minority rule each owner is entitled to the natural flow of the water. If one owner uses of the water reduces or interferes with the use of the natural flow the other owners would have a claim against him

Front 44

What is the reasonable use theory under riparian water rights?

Back 44

must show that the water is being used in an unreasonable manner.

Front 45

What is the general rule for riparian rights?

Back 45

domestic use of water superior to and takes precedence over agriculture/commercial use

Front 46

What is the doctrine of Prior Appropriation?

Back 46

prior beneficial use of water take predence over subsequent use.

Note: 1st in time wins

Front 47

What is the common enemy rule for surface water?

Back 47

a landowner has unlimited discretion in dealing with surface waters regardless of the affect on other land owners.

Front 48

What is the general rule for lateral support?

Back 48

a right of landowner to have his land supported laterally by the neighboring land is an absolute right inherent in land itself

Front 49

Under lateral support, what is the general for land in its natural condition?

Back 49

a land in its natural condition one by excavation or otherwise, withdraws lateral support that person is absolutely liable, regardless of negligence

Front 50

Under lateral support what is the English (minority rule) for lateral support for artificial structures?

Back 50

the recovery will include both the damage to the land and the damage to the artificial structures

Front 51

Under lateral support what is the American (majority rule) for lateral support for artificial structures?

Back 51

Recovery is limited to damage to the land in its natural condition and does not include any damage to the artificial structures on the land.

Front 52

What is the general rule for negligent excavation for the american and english rule for lateral support?

Back 52

both under American and English negligence upon the excavator, the wrongdoer is liable for all damages which naturally and proximately flow from his negligence including damages to both land and artificial structures

Front 53

What is the general rule for subjacent support?

Back 53

arises when holder of mineral rights removes minerals and the surface collapses, holder of mineral rights is strictly liable

Front 54

What is the general rule percolating waters/underground waters?

Back 54

subject to the absolute control of the owner. If withdrawal affects a neighboring land owner that land owner has no claim

Front 55

How do you create an equitable servitude?

Back 55

a common development scheme--a restriction on the use land that's enforceable in equity. These are the following requirements:
1. must be in writing
2. Intention of the parties
3. Notice transferee must take the land with either actual or constructive notice of the servitude

Front 56

What are the types of notices under equitable servitude?

Back 56

inquiry notice-new owner should be aware of the common development scheme based on the fact that every other lot is based on the same scheme

record notice-where the restriction is in the direct chain of title

actual notice

Front 57

How is an equitable servitude extinguished?

Back 57

Changed neighborhood conditions

Note: zoning changes will not distinguish the equitable servitude.

Front 58

How do you create a covenant running with the land?

Back 58

1. covenant must be in writing that complies with the SOF

2. Intention

3. covenant must touch and concern the land

4. privity of estate between the parties
(i) horizontal privity--refers to the orignal parties

(ii) vertical privity--refers to those who subsequently obtain the property subject to the covenant (successor in interest) and the original party from whom they got the property

Front 59

What is a profit pendre?

Back 59

the right of one person to go onto the land of another to extract or remove something there from

Front 60

How do you create a fixture?

Back 60

1. intention by the annexer that the chattel become a fixture

2. chattel must be annexed to the realty either actually or constructively

3. chattel must be appropriated for the purpose for which the land is used.

Front 61

What is a trade fixture?

Back 61

chattel annexed to the land by a teant for pecuniary gain during his tenancy--allows removal of trade fixtures from the premises before the expiration of the lease

Front 62

What are the two types of easements?

Back 62

1. easement appurtenatn

2. easement in gross

Front 63

What is an easement appurtenant?

Back 63

requires 2 adjoining tracts of land the easement runs across one property to get to the other

(i) dominant tenament--has the right to enter onto the servient tenament

(ii) servient tenament--the land that is burden

Front 64

What are the two types easements that are not in writing?

Back 64

1. easements by implication or necessity

(i) an owner owns a large track of land he subdivides the property into separate lots and sells them of to individual lot owners

(i) unity of ownership
(ii) easement is apparent at the time of the conveyance
(iii) continuous of the easement

(iv) must be reasonable necessity

2. prescriptive easement

Front 65

What is an easement by prescription?

Back 65

similar to adverse possession

Front 66

What is an assignment?

Back 66

tenant transfers entire remaining estate

Front 67

What is a sublease?

Back 67

where the tenant retains any part of the estate

Note: there is no privity of estate or contract between the landlord and the subtenant

Front 68

What is the effect of an assignment?

Back 68

the tenant is still in privity of k with the landlord; no privity of estate

Note: if the assignee fails fails to make the rent payments, the landlord coudl still collect from the tenant because he has privity of k with the tenatn.

assignee vs. landlord-there is privity of estate and privity of contract only if the assignee and the landlord entered into an agreement

Front 69

What is the effect of a second assignment?

Back 69

where an assignee assigns her privity of estate ends, and unless he assumes the covenants under the lease, there is no further liability.

Front 70

Can the landlord give assignments?

Back 70

landlords can assign their revisionary interest

Front 71

What is Holder in Due Course Rule?

Back 71

a HDC is not bound by payments to an old mortgagee/lender not even if mortgagor knew nothing of the transfer.

Front 72

During foreclosure what happens to all junior interests?

Back 72

protections to holders of junior interests--they have the right to pay off any mortgage being foreclosed in order to keep their junior interests from being wiped out, and thus they are not necessary parties to any foreclosure, and if they are not made a party to a foreclosure then their interests are not wiped out by it.

Front 73

What is ameliorating waste?

Back 73

a change in the physical characteristics of the occupied premises by an unauthorized act of the tenant which increases the value of the land.

Front 74

What is permissive waste?

Back 74

injury to the premises caused by the tenant's failure to act when a tenant is under a duty to act

Front 75

What is equitable waste?

Back 75

injury to the reversionary interest in land, which is inconsistent with good husbandry.

Front 76

What is the Rule Shelley's Case?

Back 76

If in a conveyance or will a free hold estate is given to a person and in the same conveyance, a remainder is limited to the heirs or to the body of that person, the person takes both the freehold estate and the remainder

Front 77

What is the doctrine of worthier title?

Back 77

a grator may not limit a fee simple to his own heirs

Front 78

What is the Rule Against Perpetuities?

Back 78

no interest is valid unless it vest if at all within 21 years fater a life in being from the time of its creation.