Real Property Mbe

Front 1

The elements for adverse possession

Back 1

(1) actual; (2) open and notorious; (3) exclusive; (4) hostile; and (5) for the statutory period.

(1) Actual: actual use of land that is consistent with the character of the land.
(2) Open and notorious: Must physically use the land in a manner that would put a reaosnable person on notice.
(3) Exclusive: Possessor must not share possession with the owner.
(4) Hostile: The entry was not permissive. co-tenant must oust with clear repudiation of co-tenancy.
(5) Statutory period: common law 20 years.

Front 2

How much land does an adverse possessor receive?

Back 2

Land actually possessed unless under color of title.

Front 3

Types of disabilities

Back 3

Only applicable if they are at time possession begins:

(1) infant until age of majority;
(2) incarceration; or
(3)insane.

Front 4

What are the requirements for a land sale contract to meet SOF and what exception is there?

Back 4

(1) identification of the land (full legal not requ.);
(2) identification of the parties;
(3) words indicating a contract existed;
(4) signature of the party to be charged; and
(5) the price or terms of payment.

Exc. to SOF (2 out of 3) buyer:
(1) takes possession of the land;
(2) pays a part of the purchase price;
(3) makes substantial improvements on the land.

Front 5

What is marketable title and when does it not apply?

Back 5

Marketable title is title that is reasonably free of defects. Examples include: title less than fee simple absolute, encroachments, any mortgage, lease or easement noo to be discharged at closing or otherwise benefit the property, and ZONING violations.

Not applicable after closing or when the land sale contract transfers some other title. (e.g., quitclaim deed).

Front 6

When is time of the essence?

Back 6

(1) when contract says so, or when notice is provided by one party to another within a reasonable time before closing.

Front 7

Difference between special warranty and general warranty?

Back 7

special warranty contains covenants of title only as to the seller. General warranty contains covenants of title for all previous owners.

Front 8

What are the present covenants and when do they come into play?

Back 8

(1) seisin- grantor promises he owns the property;
(2) right to convey;
(3) encumbrances

Present covenants breached at the time of conveyance (i.e., closing). They are personal so they do not run with the land.

Front 9

What future covenants are there and when do they come into play?

Back 9

(1) quiet enjoyment: grantor promises that grantee will not be evicted by one with superior title;
(2) warranty: owns the land and no undisclosed encumbrances;
(3) further assurances

Future covenants are after closing and do run w/ the land so that successors can sue on them.

Front 10

Define a mortgage

Back 10

A security interest in real property given by the buyer/borrower to the lender.

Front 11

What is a deed of trust and what is the distinction with a mortgage?

Back 11

A security interest by the buyer to a third party (trustee) who acts for the benefit of the lender.

If borrower fails to make payments then trustee may act by selling the property privately as opposed to having to get a judicial foreclosure(mortgage).

Front 12

Define redemption and clogging?

Back 12

Once the borrower defaults he has a limited right to cure the default by paying off the debt before the foreclosure sale occurs.

Clogging occurs when a provision in he mortgage attempts to waive the right of redemption. It is void and unenforceable.

Front 13

Define junior interest holders and explain their rights

Back 13

Anyone who takes a security interest (except a purchase-money mortgage) later in time than a prior security intertest holder is a junior interest holder.

A junior interest holder may foreclose, but anyone who buys at the foreclosure sale will take property subject to the senior interest holder's rights. Rights of juniors are distinguished and must seek deficiency judgment.

Front 14

Defenses of Junior Interest Holders

Back 14

(1) right to redeem; and
(2) lack of joinder

Front 15

Assumption vs. subject to

Back 15

If grantee assumes mortgage then can be personally liable. If grantee is subject to the debt then only the property is subject to the debt. Either way grantor/original buyer remains liable under contract unless novation.

Front 16

What are the requirements for a valid deed?

Back 16

(1) identification of the parties;
(2) identification of the land (leg. disc.not necc. bu preferred);
(3) words of transfer of title' and
(4) signature of the grantor.

Front 17

Requirements for a valid conveyance

Back 17

A deed and delivery

Front 18

Define delivery of a deed and way delivery can be accomplished

Back 18

Delivery requires words or conduct by grantor demonstrating the grantor's intent to make a present transfer of ownership to the grantee.

(1) physically gives deed to grantee (presumption of delivery);
(2) physical delivery with oral "contrary" statements (cpm. ro conditional where parol not admissible);
(3) grantor keeps deed (presumption not delivered)

Front 19

Three recording statutes and when in play?

Back 19

Race: first to record
Race-notice: First BFP to record
Notice: Last BFP

Front 20

What subsequent parties as to recording statutes do not pay value?

Back 20

(1) mortgagees "if" mortgage already exists
(2) Judgment creditors (maj.);
(3)heirs, devisees, donees

Front 21

Different types of notice

Back 21

(1) actual
(2) constructive-recording
(3) inquiry: reasonable inspection and reasonable inquiry.

Front 22

Easement implied by necessity requirements

Back 22

(1) common ownership
(2) strict necessity

Ends when necessity ends

Front 23

Easement implied by grant or reservation requirements

Back 23

(1) common ownership;
(2) reasonable necessity; and
(3) prior use (by common owner before division).

Front 24

Elements for prescriptive easement

Back 24

(1) actual; (2) open and notorious; (3) hostile; (4) continuous use for statutory period.

Front 25

Rights and obligation of easement holder

Back 25

(1) right to reasonable use;
(2) right and duty to repair;
(3) right to transfer only if it is an in gross easement.

Front 26

Ways to terminate an easement

Back 26

(1) merger;
(2) abandonment (non-use plus intent);
(3) release;
(4) prescription;
(5) estoppel (dominant holder does something and reasonable reliance of servient); and
(6) SALE TO A BONA FIDE PURCHASER (servient land is conveyed to a purchaser who has no notice of the easement).

Front 27

Ways a license may become irrevocable

Back 27

(1) estoppel: license holder invests subst. money or labor in reasonable reliance (reasonable time); and
(2) coupled with a rigthful interest to remove or inspect personal property located on the land).

Front 28

Difference between covenants, equitable serv., and implied recip serv.

Back 28

Covenants: wiring requ. and remedy is damages
Equ serv.: writing requ. and remedy is injuction
Implied: No writing requ. and remedy injuction

Front 29

Requirements for covenant to run with the land

Back 29

(1) touch and concern the land;
(2) intent to run with the land;
(3) notice;
(4) horizontal privity (parties exchanged interest in land at time created); and
vertical privity (successors in interest too same real property as owned by their predecessor).

Front 30

Requirements for an equitable servitude

Back 30

(1) touch and concern;
(2) intent; and
(3) notice.

Front 31

Requirements for implied reciprocal servitude

Back 31

(1) common scheme; and
(2) notice (usually inquiry).

Front 32

Strict liability rule vs. negligence in cases of lateral subjacent support.

Back 32

Strict liability: the land was unimproved or would have subsided despite the weight of the improvements on plaintiff's land
Negligence: If no subsidence would have occurred but for the weight of plaintiff's improvements then must prove negligence.

Front 33

Riparian vs. percolating vs. surface water rights

Back 33

Riparian=streams, lakes, rivers. All want for domestic, reasonable for rest of uses.
Percolating=underground water. reasonable amount for all uses.
Surface=common enemy (modern trend reasonable care)

Front 34

Period tenancy creation and termination

Back 34

Beginning date with no end date or hold over (commercial lasts for length of previous agreement but no more than 1 years, res. month to month)

Term. proper notice: at least the length of one period not to exceed 6 months. Notice in middle of period will only terminate after subsequent period.

Front 35

Constructive eviction

Back 35

Every lease contains an implied covenant of quiet enjoyment. Three things are required:
(1) substantial interference with tenant's use and enjoyment of the premises;
(2) caused by the landlord;
(3) the tenant moved out within a reasonable time.

Front 36

Implied warranty of habitability

Back 36

Every "residential" lease contains an implied warranty that the premises will be fit for human habitation. The tenant must give notice to landlord and reasonable time to cure. If landlord fails to cure tenant has 4 choices:

(1) move out and terminate the lease;
(2) remain in possession and withhold or reduce future rent payments until violation is cured;
(3) remain and seek damages; or
(4) repair the violation(s) and deduct cost from next month's rent.

Front 37

Implications of destruction of the premises

Back 37

Common law-rented entire building did not terminate lease, part did
Modern-either terminates oblig. under lease.

Front 38

Right to fixtures under land sale and tenancy

Back 38

Land sale: intent governs

Tenancy: May remove as long as (1) no subst. damage; (2) removes before lease ends; and (3) tenant repairs minor damage of removal.

Front 39

Assignment vs. sublease

Back 39

Assignment-entire balance of the lease is transferred. Privity of estate (liability to landlord and assignor). Must do covenant analysis as to whether covenants run with land.

Sublease-less than entire balance. No privity of estate with landlord.

Front 40

What does Dumpor's case stand for?

Back 40

If the landlord fails to object to a transfer when there is a no-transfer clause, the landlord waives the no-transfer clause protection and it is forever waived unless expressly reserved.

Front 41

What is required for a creation of a joint tenancy with the right of survivorship?

Back 41

(a) unity of time (take interest same time);
(b) unity of title (same instrument);
(c) unity of interest (equal interest);
(d) unity of possession (equal rights to possess)

Key feature of joint tenancy is right of survivorship.

Front 42

When will severance of a joint tenancy w/ right of survivorship occur?

Back 42

(1) contract of sale;
(2) conveyance;
(3) murder;
(4) joint tenant's mortgage in title theory.

Front 43

When will a severance of a joint tenancy w/ right of survivorship not occur?

Back 43

(1) lease;
(2) will;
(3) a mortgage in a lien theory state

Front 44

What are co-tenants rights to profits, rent, and minerals?

Back 44

A cotenant may keep any profits earned from their own efforts absent ouster, but must hare any rents received or revenue from mineral or other natural resources taken from the land that reduce its value.

Front 45

Co-tenants liability for repairs

Back 45

co-tenants must pay if repairs or improvements are necessary. Any unnecessary repairs may only be reimbursed at partition if they increased the value of the land.