Real Property (Mbe)

Front 1

RIGHTS IN THE LAND OF ANOTHER:

(1) ______________

(2) ______________

(3) ______________

(4) ______________

These are NONPOSSESSORY interests in land - they create a right to USE LAND POSSESSED BY SOMEONE ELSE.

Back 1

RIGHTS IN THE LAND OF ANOTHER:

(1) Easements

(2) Profits

(3) Covenants

(4) Servitudes

These are NONPOSSESSORY interests in land - they create a right to USE LAND POSSESSED BY SOMEONE ELSE.

PNEUMONIC: Eating Prunes Causes Sh#ing

Front 2

Grant of an interest in land allowing one to use the land of another

Back 2

EASEMENT: Grant of an interest in land allowing one to use the land of another

Ex. Owner of parcel A grants owner of parcel B the right to drive across parcel A.

Front 3

A/an __________ is the permission to go onto the land of another.

Back 3

A LICENSE is the permission to go onto another's land.

Ex. O allows the electrician to come onto his land to fix an outlet.

Front 4

A/an __________ is the right to take resources from the land of another.

Back 4

A PROFIT is the right to take resources from the land of another.

Ex. O allows A to come onto O's land to cut and remove timber.

Front 5

A _________ __________ or an __________ __________ is a promise to do / not do something on the land.

Back 5

A REAL COVENANT or EQUITABLE SERVITUDE is a promise to do / not do something on the land.

Ex. O conveys adjoining parcel to A. A promises not to build a pool on the property.

Front 6

An easement holder has the right to use another's land for a _________ purpose.

HOWEVER, he has NO right to ________ or _______ the land.

Back 6

An easement holder has the right to use another's land for a SPECIAL purpose.

HOWEVER, he has NO right to POSSESS or ENJOY the land.

Front 7

EASEMENT vs. LICENSE

Licenses allow their holders to go upon the land of another.

*Unlike an easement, a license is NOT an INTEREST in land; it is merely a _________ and is __________ at the will of the licensor.

*A license is ________ to the licensee and is __________.

Back 7

Licenses allow their holders to go upon the land of another.

*Unlike an easement, a license is NOT an INTEREST in land; it is merely a PRIVILEGE and is REVOCABLE at the will of the licensor.

*A license is PERSONAL to the licensee and is INALIENABLE.

Front 8

A failed attempt to create an EASEMENT results in a _________.

Back 8

A failed attempt to create an EASEMENT results in a LICENSE.

Front 9

An easement can be acquired by PRESCRIPTION.

To acquire a prescriptive easement, the use must be:

(1) _________ and _________ (ie. discoverable upon inspection);

(2) _________ (ie. w/o the owner's permission); and

(3) CONTINUOUS and __________;

(4) For the __________ __________.

Back 9

To acquire a prescriptive easement, the use must be:

(1) OPEN and NOTORIOUS (ie. discoverable upon inspection);

(2) ADVERSE (ie. w/o the owner's permission); and

(3) CONTINUOUS and UNINTERRUPTED;

(4) For the STATUTORY PERIOD.

NOTE: Prescriptive easements CANNOT be acquired in PUBLIC LAND!

Hint 9

Similar to acquiring property by ADVERSE POSSESSION!

Front 10

CREATION OF EASEMENTS--

The basic methods of creating an easement are: _________ GRANT or _________, __________, and PRESCRIPTION.

Back 10

The basic methods of creating an easement are: EXPRESS GRANT or RESERVATION, IMPLICATION, and PRESCRIPTION.

Front 11

A _________ is generally required to create an EASEMENT.

EXCEPTIONS:

(1) Less than 1 _______;

(2) Implication

(3) Necessity

(4) Prescription

Back 11

A WRITING is generally required to create an EASEMENT.

EXCEPTIONS:

(1) Less than 1 year;

(2) Implication

(3) Necessity

(4) Prescription

Front 12

EASEMENT IMPLIED FROM EXISTING USE ("QUASI-EASEMENT")---

An easement may be implied if:

(1) PRIOR TO THE ________ of a single tract,

(2) An APPARENT and _________ use exists on the "servient" part,

(3) That is __________ NECESSARY for the enjoyment of the "dominant" part, and

(4) The court determines that the parties _________ the use to continue after division of the land.

Back 12

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) That is REASONABLY NECESSARY for the enjoyment of the "dominant" part, and

(4) The court determines that the parties INTENDED the use to continue after division of the land.

Front 13

EASEMENT IMPLIED W/O ANY EXISTING USE---

(1) Subdivision Plat

(2) Profit a Prende

Back 13

EASEMENT IMPLIED W/O ANY EXISTING USE---

(1) Subdivision Plat--->When lots are sold, buyers have implied easements to use the streets to get to lots.

(2) Profit a Prende--->Holder has an implied easement to pass over the surface of the land and to use it as reasonably necessary to take product.

Front 14

EASEMENT BY NECESSITY

Arises when landowner sells a portion of his tract, __________ one lot of access to a public road.

Owner of ________ parcel has right to LOCATE the easement.

Back 14

Arises when landowner sells a portion of his tract, DEPRIVING one lot of access to a public road.

Owner of SERVIENT parcel has right to LOCATE the easement.

Front 15

This is a WRITTEN PROMISE to do / NOT do something on the land.

Back 15

REAL COVENANT: This is a WRITTEN PROMISE to do / NOT do something on the land.

NOTE: Usually found in a DEED!

NOTE: Also called a COVENANT RUNNING W/ THE LAND

Front 16

What does it mean to say that real covenants RUN W/ THE LAND?

Back 16

Subsequent owners may ENFORCE or BE BURDENED by the covenants.

Front 17

DEEDS transfer _________ to an interest in real property.

(1) Must be in __________;

(2) Must be _________ by the GRANTOR; and

(3) Must REASONABLY _________ the PARTIES + LAND.

Back 17

DEEDS transfer TITLE to an interest in real property.

(1) Must be in WRITING;

(2) Must be SIGNED by the GRANTOR; and

(3) Must REASONABLY IDENTIFY the PARTIES + LAND.

Front 18

DEEDS--VOID vs. VOIDABLE

Void Deed: Set aside by the court EVEN IF the property has passed to a _______ _______ PURCHASER.

Voidable Deed: Set aside ONLY if the property has NOT passed to a ______ ________ _____________.

Back 18

DEEDS--VOID vs. VOIDABLE

Void Deed: Set aside by the court EVEN IF the property has passed to a BONA FIDE PURCHASER.

Voidable Deed: Set aside ONLY if the property has NOT passed to a BONA FIDE PURCHASER.

Front 19

Examples of VOID DEEDS:

Back 19

Examples of VOID DEEDS:

-Forged

-Were never delivered

-Were obtained by fraud in the factum

Front 20

Examples of VOIDABLE DEEDS--->

Back 20

Examples of VOIDABLE DEEDS--->

- Executed by minors

- Obtained through fraud in the inducement / duress / undue influence / mistake

Front 21

A deed is NOT effective UNLESS it has been ___________ and __________.

Back 21

A deed is NOT effective UNLESS it has been DELIVERED and ACCEPTED.

NOTE: A deed to a dead person is VOID and conveys NO TITLE.

Front 22

3 TYPES OF DEEDS TO CONVEY PROPERTY INTERESTS:

(1) ______________

(2) ______________

(3) ______________

The difference between them is the scope of ________ ___________.

Back 22

3 TYPES OF DEEDS TO CONVEY PROPERTY INTERESTS:

(1) General warranty deed

(2) Special warranty deed

(3) Quitclaim deed

The difference between them is the scope of TITLE ASSURANCE (ie. covenants of title).

Front 23

QUITCLAIM DEED: This conveys _________ _________ the grantor has.

This means that there are NO COVENANTS OF TITLE.

Back 23

QUITCLAIM DEED: This conveys WHATEVER INTEREST the grantor has.

This means that there are NO COVENANTS OF TITLE.

Front 24

Interests that an owner has a right to possess.

Back 24

POSSESSORY INTERESTS: Interests that an owner has a right to possess.

Front 25

Rights in the land of another.

These are ____________ interests.

Back 25

NONPOSSESSORY INTERESTS: Rights in the land of another.

Ex. easements, profits, covenants, and servitudes

Front 26

JOINT TENANCY

The 4 unities must be present------>What are they?

NOTE: Each tenant has an __________ interest in the whole estate.

Back 26

JOINT TENANCY

The 4 unities MUST be present:

(1) TIME--Interests vested at the same time

(2) TITLE--Interests acquired from same instrument

(3) INTEREST--Identical interests (same type/duration)

(4) POSSESSION--W/ equal rights to enjoyment

NOTE: Each tenant has an UNDIVIDED interest in the whole estate.

Front 27

TENANCY BY THE ENTIRETY

This requires the same FOUR UNITIES as a joint tenancy PLUS MARITAL RELATIONSHIP.

Severance is _________! When a T/E is SEVERED, the estate is then converted to a T/C.

Back 27

Any conveyance to a H + W is PRESUMED to create a T/E.

Severance is LIMITED! When a T/E is SEVERED, it becomes a T/C.

Front 28

TENANCY IN COMMON

The ONLY unity required is _________.

Back 28

TENANCY IN COMMON

The ONLY unity required is POSSESSION.

Front 29

JOINT TENANCY--SEVERANCE

Right of survivorship may be be SEVERED by:

(1) __________ by one joint tenant;

(2) __________ of joint tenants;

(3) __________ of one joint tenant by another;

(4) Simultaneous ________ of joint tenants.

Back 29

JOINT TENANCY---SEVERANCE

Right of survivorship may be be SEVERED by:

(1) CONVEYANCE by one joint tenant;

(2) AGREEMENT of joint tenants;

(3) MURDER of one joint tenant by another;

(4) Simultaneous DEATH of joint tenants.

NOTE: Termination may also occur by voluntary or involuntary PARTITION!

Front 30

TENANCY BY THE ENTIRETY---SEVERANCE

Severance in T/E is _________!

T/E estate CANNOT be terminated by INVOLUNTARY ________.

T/E can be terminated ONLY by:

(1) __________ (leaves parties as tenants in common);

(2) __________ agreement;

(3) Execution by _________ _________.

Back 30

TENANCY BY THE ENTIRETY---SEVERANCE

Severance in T/E is LIMITED!

T/E estate CANNOT be terminated by INVOLUNTARY PARTITION.

T/E can be terminated ONLY by:

(1) DIVORCE (leaves parties as tenants in common);

(2) MUTUAL agreement;

(3) Execution by JOINT CREDITOR.

NOTE: Individual spouse CANNOT convey or encumber!

Front 31

A tenancy in common may be terminated by __________.

Is there a right of survivorship?

Back 31

A tenancy in common may be terminated by PARTITION.

There is NO right of survivorship!

Front 32

TRUST: This is a __________ relationship w/ respect to specific _________ (res) wherein the __________ holds ________ title to the property subject to enforceable __________ rights in a ___________.

Back 32

TRUST: This is a FIDUCIARY relationship w/ respect to specific PROPERTY (res) wherein the TRUSTEE holds LEGAL title to the property subject to enforceable EQUITABLE rights in a BENEFICIARY.

Front 33

This is the CREATOR of a trust.

---He must _____ the property at the time the trust is created.

---He must have had the ________ to create the trust.

Back 33

SETTLOR: The creator of a trust.

He must OWN the property at the time the trust is created.

He must have had the INTENT to create the trust.

Front 34

This is a trust created by will.

Back 34

TESTAMENTARY TRUST: A trust created by will.

Front 35

All trusts of REAL PROPERTY must be ___________.

Back 35

All trusts of REAL PROPERTY must be IN WRITING.

Front 36

CHARITABLE TRUSTS

The rules governing these differ from those applicable to private trusts in 3 ways:

(1) Must have __________ BENEFICIARIES;

(2) May be __________ (the Rule Against Perpetuities does NOT apply); and

(3) _____ ______ DOCTRINE applies (allows court to select an alternative charity when settlor's purpose becomes impractical / impossible).

Back 36

CHARITABLE TRUSTS

The rules governing these differ from those applicable to private trusts in 3 ways:

(1) Must have INDEFINITE BENEFICIARIES;

(2) May be PERPETUAL (the Rule Against Perpetuities does NOT apply); and

(3) CY PRES DOCTRINE applies (allows court to select an alternative charity when settlor's purpose becomes impractical / impossible).

Front 37

CY PRES DOCTRINE: Allows a court to select an alternative charity when the ________ of the settlor becomes ___________ or ____________.

Back 37

CY PRES DOCTRINE: Allows a court to select an alternative charity when the PURPOSE of the settlor becomes IMPRACTICAL or IMPOSSIBLE.

Front 38

What is this rule called?

No interest in property is valid UNLESS it must vest (IF AT ALL) not later than 21 YEARS AFTER SOME LIFE IN BEING at the creation of the interest.

REPHRASE: If there is ANY POSSIBILITY the interest might vest more than 21 years after a life in being, the interest is void.

Back 38

RULE AGAINST PERPETUITIES--->

No interest in property is valid UNLESS it must vest (IF AT ALL) not later than 21 YEARS AFTER SOME LIFE IN BEING at the creation of the interest.

REPHRASE: If there is ANY POSSIBILITY the interest might vest more than 21 years after a life in being, the interest is void.

Front 39

CONCURRENT ESTATES

An estate in land can be held concurrently by several persons.

Each has the right to _________ and __________ of the land.

Back 39

CONCURRENT ESTATES

An estate in land can be held concurrently by several persons.

Each has the right to POSSESSION and ENJOYMENT of the land.

Front 40

JOINT TENANCY

A unique feature of the J/T is the RIGHT OF SURVIVORSHIP.

What does this mean?

Back 40

RIGHT OF SURVIVORSHIP: When one joint tenant dies, the property is FREED from her concurrent interest.

Surviving co-tenant has a right to the whole estate.

ie. The survivors of the deceased tenant do NOT succeed to it!

Front 41

JOINT TENANCY

All interests in a joint tenancy must be _______ ________.

Example--->

Back 41

JOINT TENANCY

All interests in a joint tenancy must be EQUAL SHARES.

Example--->If there are three joint tenants, they each own an undivided one-third interest.

Front 42

TENANCY IN COMMON

Equal shares are PRESUMED, but are NOT required!

Example--->

Back 42

TENANCY IN COMMON

Equal shares are PRESUMED, but are NOT required!

Example--->In a tenancy in common held by three parties, one tenant may own a two-thirds undivided interest while each of the other two tenants holds an undivided one-sixth share.

Front 43

Modern law requires a clear ________ of right of survivorship.

OTHERWISE, a conveyance to two or more persons is __________ to be a T/C.

Back 43

Modern law requires a clear EXPRESSION of right of survivorship.

OTHERWISE, a conveyance to two or more persons is PRESUMED to be a T/C.

Front 44

In a tenancy in common, equal shares are ___________, but are NOT ___________.

Back 44

In a tenancy in common, equal shares are PRESUMED, but are NOT REQUIRED.

Front 45

RIGHTS OF CO-TENANTS (POSSESSION)

Right to possess ____ portions of the property.

However, no right to __________ possession of any part.

Back 45

RIGHTS OF CO-TENANTS (POSSESSION)

Right to possess ALL portions of the property.

However, no right to EXCLUSIVE possession of any part.

Front 46

RIGHTS OF CO-TENANTS (POSSESSION)

Co-tenant out of possession CANNOT bring possessory action UNLESS she is _______.

Back 46

RIGHTS OF CO-TENANTS (POSSESSION)

Co-tenant out of possession CANNOT bring possessory action UNLESS she is OUSTED.

Front 47

What does it mean to be OUSTED?

Another co-tenant claims right to __________ ___________.

Back 47

What does it mean to be OUSTED?

Another co-tenant claims right to EXCLUSIVE POSSESSION.

Front 48

RIGHTS AND DUTIES OF CO-TENANTS--RENTS AND PROFITS

In most states, a co-tenant in _________ has the right to retain profits from her _____ ______ of the property.

What does THIS mean?

Back 48

RIGHTS AND DUTIES OF CO-TENANTS--RENTS AND PROFITS

In most states, a co-tenant in POSSESSION has the right to retain profits from her OWN USE of the property.

ie. She need NOT share profits w/ other co-tenants absent ouster or an agreement to the contrary.

HOWEVER, she must share rents from third parties and profits gained from exploitations of land.

Front 49

RIGHTS AND DUTIES OF CO-TENANTS--EFFECT OF ONE CONCURRENT OWNER'S ENCUMBERING THE PROPERTY

A joint tenant or tenant in common may encumber her interest (eg. by mortgage or judgment lien), but may NOT encumber the interests of other co-tenants.

Example-->

Back 49

If one tenant in common mortgages her interest, the mortgagee can foreclose ONLY on the mortgaging co-tenant's interest.

Front 50

REMEDY OF PARTITION

A co-tenant has a right to judicial partition, either IN KIND (physical division of land among co-tenants) or by sale and division of proceeds.

When is this right valid?

Back 50

REMEDY OF PARTITION

A co-tenant has a right to judicial partition, either IN KIND (physical division of land among co-tenants) or by sale and division of proceeds.

When is this right valid?-->

In general, this right may be exercised at any time.

However, restraints on partition are valid, so long as limited to a REASONABLE TIME.

Front 51

EXPENSES FOR PRESERVATION OF PROPERTY--CONTRIBUTION

List the 3 situations--->

Back 51

EXPENSES FOR PRESERVATION OF PROPERTY--CONTRIBUTION

List the 3 situations:

(1) REPAIRS

(2) IMPROVEMENTS

(3) TAXES + MORTGAGES

Front 52

CONTRIBUTION BY CO-TENANTS FOR REPAIRS

A co-tenant who pays more than her pro rata share of NECESSARY repairs is entitled to contribution from the other co-tenants SO LONG AS...

Back 52

CONTRIBUTION BY CO-TENANTS FOR REPAIRS

A co-tenant who pays more than her pro rata share of NECESSARY repairs is entitled to contribution from the other co-tenants SO LONG AS she has NOTIFIED the other co-tenants of the need for repairs.

Front 53

CONTRIBUTION BY CO-TENANTS FOR IMPROVEMENTS

There is ____ right of contribution for cost of improvements UNLESS there is a _________.

Back 53

CONTRIBUTION BY CO-TENANTS FOR IMPROVEMENTS

There is NO right of contribution for cost of improvements UNLESS there is a PARTITION.

Front 54

CONTRIBUTION BY CO-TENANTS FOR TAXES / MORTGAGE

Co-tenant may demand contribution for taxes paid on the entire property.

However, reimbursement to co-tenant IN SOLE POSSESSION is LIMITED to:

Back 54

CONTRIBUTION BY CO-TENANTS FOR TAXES / MORTGAGE

Co-tenant may demand contribution for taxes paid on the entire property.

However, reimbursement to co-tenant IN SOLE POSSESSION is LIMITED to the extent that expenditures exceed the rental value of her use.

Front 55

Identify the following--->

Each co-tenant has an undivided interest in the whole estate.

Surviving co-tenant has right to the whole estate (right of survivorship).

Back 55

JOINT TENANCY

Each co-tenant has an undivided interest in the whole estate.

Surviving co-tenant has right to the whole estate (right of survivorship).

Front 56

Identify the following--->

H + W each has an undivided interest in the whole estate.

Each spouse has right of survivorship (ie. surviving co-tenant has right to the whole estate).

Back 56

This is a TENANCY BY THE ENTIRETY.

Front 57

Identify the following--->

Each tenant has a distinct, proportionate, undivided interest in the property.

There is no right of survivorship.

Back 57

This is a TENANCY IN COMMON.

Front 58

Which interests in land are subject to PARTITION?

(1) JOINT TENANCY?

(2) TENANCY BY ENTIRETY?

(3) TENANCY IN COMMON?

Back 58

Which interests in land are subject to PARTITION?

(1) JOINT TENANCY?
--->Yes, it can be terminated by voluntary OR involuntary partition.

(2) TENANCY BY ENTIRETY?
--->NO, it CANNOT be terminated by involuntary partition.

(3) TENANCY IN COMMON?
--->Yes, it can be terminated by partition.

Front 59

This is an estate in land under which the tenant has a ________ _________ interest in the leased premises and the _________ has a _________ __________ (reversion).

Back 59

LEASEHOLD: This is an ESTATE IN LAND under which the tenant has a PRESENT POSSESSORY interest in the leased premises and the LANDLORD has a FUTURE INTEREST (reversion).

Front 60

List 4 leasehold estates--->

Back 60

(1) Tenancy for years

(2) Periodic tenancies

(3) Tenancies at will

(4) Tenancies at sufferance

Front 61

What type of tenancy continues for a FIXED time period?

Back 61

TENANCY FOR YEARS - continues for a FIXED time period

(eg. A rents to B for 2 years)

Usually created by a WRITTEN LEASE.

Under the Statute of Frauds, a writing is required if the lease is for MORE THAN ONE YEAR!

Front 62

The landlord reserves a _______ of ________ which allows him to terminate the lease if the tenant breaches any of the lease's covenants.

Back 62

The landlord reserves a RIGHT of ENTRY which allows him to terminate the lease if the tenant breaches any of the lease's covenants.

ie. Failure to pay rent

ie. Surrender

Front 63

This type of tenancy continues for successive periods (ie. month to month) until terminated by either party giving proper notice.

Back 63

PERIODIC TENANCY: Continues for successive periods (eg. month to month) until terminated by either party giving proper notice.

Front 64

A TENANCY _____ _____ is terminable at the will of either landlord / tenant.

This is a tenancy of no stated _________ that lasts as long as both parties ________.

Back 64

A TENANCY AT WILL is terminable at the will of either landlord / tenant.


This is a tenancy of no stated DURATION that lasts as long as both parties DESIRE.

Front 65

A TENANCY AT SUFFERANCE arises when a tenant _________ remains in __________ after the expiration of a lawful tenancy.

Back 65

A TENANCY AT SUFFERANCE arises when a tenant WRONGFULLY remains in POSSESSION after the expiration of a lawful tenancy.

Front 66

Leasehold that terminates at the end of stated period w/o either party giving notice.

Back 66

TENANCY FOR YEARS: Leasehold that terminates at the end of stated period w/o either party giving notice.

Front 67

Name the type of leasehold--->

Terminates by notice from one party at least equal to the length of the time period (e.g. one full month, for a month-to-month tenancy).

Back 67

PERIODIC TENANCY: This terminates by notice from one party at least equal to the length of the time period

EXCEPTION: Only 6 months' notice is required to terminate a year-to-year tenancy.

Front 68

Name the type of leasehold--->

Usually terminates after one party displays an intention that the tenancy should come to an end.

May also end by operation of law (eg. death of a party, attempt to transfer interest).

Back 68

TENANCY AT WILL: This usually terminates after one party displays an intention that the tenancy should come to an end. It may also end by operation of law (eg. death of a party, attempt to transfer interest).

Front 69

Leasehold that terminates when landlord evicts tenant or elects to hold tenant to another term.

Back 69

TENANCY AT SUFFERANCE: Leasehold that terminates when landlord evicts tenant or elects to hold tenant to another term.

Front 70

The Hold-Over Doctrine:

Back 70

The Hold-Over Doctrine:

If a tenant continues in possession after his right to possession has ended, the landlord may:

(1) EVICT him, or

(2) Bind him to a NEW PERIODIC TENANCY.

EXCEPTIONS--->

-ONLY A FEW HOURS

-NOT THE TENANT'S FAULT (ie. severe illness)

-SEASONAL LEASE

Front 71

K that governs landlord-tenant relationship.

Back 71

LEASE: K that governs landlord-tenant relationship.

Front 72

TENANT DUTIES--->

Back 72

TENANT DUTIES--->

(1) DUTY TO REPAIR

(2) DUTY TO NOT USE PREMISES FOR ILLEGAL PURPOSE

(3) DUTY TO PAY RENT

Front 73

DOCTRINE OF WASTE: A tenant cannot _______ (ie. commit waste on) the leased premises.

Back 73

DOCTRINE OF WASTE: A tenant cannot DAMAGE (ie. commit waste on) the leased premises.

Front 74

This results when the tenant intentionally or negligently damages the premises or exploits minerals on property.

Back 74

VOLUNTARY (AFFIRMATIVE) WASTE: This results when the tenant intentionally or negligently damages the premises or exploits minerals on property.

Front 75

Occurs when the tenant fails to take reasonable steps to protect premises from damage from the elements.

Tenant is liable for all ________ repairs, excluding ordinary ________ and ______.

Back 75

PERMISSIVE WASTE: Occurs when tenant fails to take reasonable steps to protect premises from damage from the elements.

Tenant is liable for all ORDINARY repairs, excluding ordinary WEAR and TEAR.

Front 76

This occurs when the tenant alters the leased property, thereby increasing its value.

Back 76

AMELIORATIVE WASTE: This occurs when the tenant alters the leased property, thereby increasing its value.

-Tenant is liable for the cost of restoration. EXCEPTION: A long-term tenant is permitted to make this type of change if it reflects changes in the neighborhood.

Front 77

LANDLORD REMEDIES

Tenant on premises but fails to pay rent---?

Tenant abandons---?

Back 77

LANDLORD REMEDIES

Tenant on premises but fails to pay rent---? EVICT OR SUE FOR RENT

Tenant abandons---? DO NOTHING OR REPOSSESS

Front 78

TRUE OR FALSE?

In general, a landlord has a duty to repair and maintain the premises.

Back 78

FALSE!!!

In general, a landlord has NO DUTY TO REPAIR OR MAINTAIN the premises.

Front 79

FIXTURE: This is a _________ that has been so _________ to land that it has ceased being _________ property and has become part of the realty.

NOTE: A fixture passes w/ ___________ of the land.

Back 79

FIXTURE: This is a CHATTEL that has been so AFFIXED to land that it has ceased being PERSONAL property and has become part of the realty.

NOTE: A fixture passes w/ OWNERSHIP of the land.

Front 80

EASEMENT APPURTENANT

________ the HOLDER in his physical use / enjoyment of another tract of land.

Thus, there must be 2 TRACTS:

(1) DOMINANT tenement (estate benefitted by the easement); and the

(2) SERVIENT tenement (estate subject to the easement right).

Back 80

EASEMENT APPURTENANT

BENEFITS the HOLDER in his physical use / enjoyment of another tract of land.

Thus, there must be 2 TRACTS:

(1) DOMINANT tenement (estate benefitted by the easement); and the

(2) SERVIENT tenement (the estate subject to the easement right).

Front 81

Does an easement appurtenant pass w/ transfer of benefitted land?

Does it have to be mentioned in the conveyance?

Does it pass with servient estate, too?

Back 81

Yes, an easement appurtenant passes w/ transfer of benefitted land.

No, an easement appurtenant need NOT be mentioned in the conveyance of benefitted land.

Yes, the burden of the easement also passes automatically w/ servient estate - UNLESS new owner is a BFP w/ no actual/constructive notice of the easement.

Front 82

EASEMENT IN GROSS

Holder has right to use servient tenement ___________ OF his possession of another tract of land (ie. the easement benefits the holder rather than another parcel).

Back 82

EASEMENT IN GROSS

Holder has right to use servient tenement INDEPENDENT OF his possession of another tract of land (ie. easement benefits holder rather than another parcel).

NOTE: An easement in gross for holder's personal pleasure is NOT transferable!

Front 83

ZONING RESTRICTIONS

Zoning restrictions do _____ affect MARKETABILITY.

However, an ____________ VIOLATION of a zoning ordinance DOES render title unmarketable.

Back 83

ZONING RESTRICTIONS

Zoning restrictions do NOT affect MARKETABILITY.

However, an EXISTING VIOLATION of a zoning ordinance DOES render title unmarketable.

Front 84

A beneficial easement, if ________ or ________ to the buyer, does NOT impair the marketability of title.

Back 84

A beneficial easement, if VISIBLE or KNOWN to the buyer, does NOT impair the marketability of title.

Front 85

TENDER OF PERFORMANCE

The buyer's obligation to pay and the seller's obligation to convey are __________ ___________.

Thus, neither party is in breach until the other tenders performance (even if the closing date passes).

Back 85

TENDER OF PERFORMANCE

The buyer's obligation to pay and the seller's obligation to convey are CONCURRENT CONDITIONS.

Thus, neither party is in breach until the other tenders performance (even if the closing date passes).

Front 86

SELLER'S LIABILITY FOR DEFECTIVE PRODUCTS

Warranty of Fitness / Quality---New ____________ ONLY

Back 86

SELLER'S LIABILITY FOR DEFECTIVE PRODUCTS

Warranty of Fitness / Quality---New Construction ONLY

Front 87

SELLER'S LIABILITIES FOR DEFECTIVE PRODUCTS

Sale of Existing Land and Buildings--Liability for Defects

The seller of existing buildings may be liable to the purchaser for defects on any of several different theories--->

Back 87

(1) MISREPRESENTATION (FRAUD)

(2) ACTIVE CONCEALMENT

(3) FAILURE TO DISCLOSE

Front 88

MISREPRESENTATION (FRAUD)

Seller is liable for _______ about which he KNOWINGLY or __________ made a false statement of fact to the buyer if the buyer _______ on the statement and it ___________ AFFECTED the value of the property.

Back 88

MISREPRESENTATION (FRAUD)

Seller is liable for DEFECTS about which he KNOWINGLY or NEGLIGENTLY made a false statement of fact to the buyer if the buyer RELIED on the statement and it MATERIALLY AFFECTED the value of the property.

Front 89

ACTIVE CONCEALMENT

Seller will be liable for defects, even _________ making ANY ___________, if he took steps to _________ THE DEFECTS.

Back 89

ACTIVE CONCEALMENT

Seller will be liable for defects, even WITHOUT making ANY STATEMENTS, if he took steps to CONCEAL THE DEFECTS.

Front 90

FAILURE TO DISCLOSE

Most states hold a seller liable for failure to disclose defects if:

(1) He _______ or has reason to know of the defect;

(2) The defect is NOT __________, and the seller knows the buyer is unlikely to discover it upon __________ inspection; and

(3) The defect is __________ and would probably cause the buyer to _________ the purchase if _________.

Back 90

FAILURE TO DISCLOSE

Most states hold a seller liable for failure to disclose defects if:

(1) He KNOWS or has reason to know of the defect;

(2) The defect is NOT APPARENT, and the seller knows the buyer is unlikely to discover it upon ORDINARY inspection; and

(3) The defect is SERIOUS and would probably cause the buyer to RECONSIDER the purchase if KNOWN.

Front 91

TRUE OR FALSE?

A general disclaimer in a sales K is NOT sufficient to overcome seller's liability for fraud / concealment / failure to disclose.

Back 91

TRUE!

A general disclaimer in a sales K is NOT sufficient to overcome seller's liability for fraud / concealment / failure to disclose.

HOWEVER, if the disclaimer identifies specific types of defects, it will likely be upheld.

Ex. Seller is not liable for any defects in the roof

Front 92

????RECORDING--NOTICE STATUTES

The subsequent _____ _______ PURCHASER is protected ________ of whether she records at all.

Back 92

RECORDING--NOTICE STATUTES

The subsequent BONA FIDE PURCHASER is protected REGARDLESS of whether she records at all.

Front 93

RECORDING--RACE-NOTICE STATUTES

A subsequent BONA FIDE PURCHASER is protected _______ if she takes w/o __________ AND records _______ the prior grantee.

Back 93

RECORDING--RACE-NOTICE STATUTES

A subsequent BONA FIDE PURCHASER is protected ONLY if she takes w/o NOTICE AND records BEFORE the prior grantee.

Front 94

RECORDING--RACE STATUTES

Under a pure race statute, ______ records ______ wins. Notice is __________.

Back 94

RECORDING--RACE STATUTES

Under a pure race statute, WHOEVER records FIRST wins. Notice is IRRELEVANT.

NOTE: Only TWO states have such statutes.

Front 95

RECORDING STATUTES---WHICH TYPE IS IT?

No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value w/o notice thereof, UNLESS it is recorded.

Back 95

NOTICE STATUTE: No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value w/o notice thereof, UNLESS it is recorded.

Front 96

???RECORDING STATUTES---WHICH TYPE IS IT?

No conveyance / mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded.

Back 96

RACE STATUTE: No conveyance / mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded.

Front 97

RECORDING STATUTES---WHICH TYPE IS IT?

No conveyance / mortgage of an interest in land is valid against any subsequent purchaser for value w/o notice thereof whose conveyance is first recorded.

Back 97

RACE-NOTICE STATUTE: No conveyance / mortgage of an interest in land is valid against any subsequent purchaser for value w/o notice thereof whose conveyance is first recorded.

Front 98

To be a BONA FIDE PURCHASER, a person MUST be a:

(1) PURCHASER;

(2) W/O _________(actual/constructive); and

(3) PAY VALUABLE ______________.

Back 98

To be a BONA FIDE PURCHASER, a person MUST be a:

(1) PURCHASER;

(2) W/O NOTICE (actual/constructive); and

(3) PAY VALUABLE CONSIDERATION.

Front 99

This occurs when:

(1) Property is specifically devised / bequeathed in testator's will; and

(2) Testator no longer owns it at the time of death.

Back 99

ADEMPTION:

This occurs when:

(1) Property is specifically devised / bequeathed in testator's will; and

(2) Testator no longer owns it at the time of death.

Front 100

LAPSE: Occurs when the __________ of a gift in a will DIES ______ THE TESTATOR.

If a lapse occurred, the gift was ______ at COMMON LAW.

However, nearly all states now have statutes that prevent lapse by permitting the gift to pass to the predeceasing beneficiary's living _________ under certain circumstances.

Back 100

LAPSE: Occurs when the BENEFICIARY of a gift in a will DIES BEFORE THE TESTATOR.

If a lapse occurred, the gift was VOID at COMMON LAW.

However, nearly all states now have statutes that prevent lapse by permitting the gift to pass to the predeceasing beneficiary's living DESCENDANTS under certain circumstances.

Front 101

This is land invaded by a TANGIBLE physical object.

Back 101

TRESPASS: This is land invaded by a TANGIBLE physical object.

Front 102

This is land invaded by INTANGIBLES such as odor and noise.

Back 102

PRIVATE NUISANCE: This is land invaded by INTANGIBLES such as odor and noise.

Front 103

This is land repeatedly invaded by a trespasser.

Back 103

CONTINUING TRESPASS: This is land repeatedly invaded by a trespasser.

Front 104

RIGHT TO EXCLUDE--REMEDIES OF POSSESSOR

The possessor of real property has the right to _______ others.

His remedies for invasions include actions for:

(1) Action for TRESPASS

(2) Action for PRIVATE NUISANCE

(3) Action for CONTINUING TRESPASS

(4) Action for EJECTMENT or UNLAWFUL DETAINER

Back 104

RIGHT TO EXCLUDE--REMEDIES OF POSSESSOR

The possessor of real property has the right to EXCLUDE others.

His remedies for invasions include actions for:

(1) Action for TRESPASS

(2) Action for PRIVATE NUISANCE

(3) Action for CONTINUING TRESPASS

(4) Action for EJECTMENT or UNLAWFUL DETAINER

Front 105

This is where each owner owns the ________ of his individual unit plus an _________ interest in the EXTERIOR and _________ areas.

Back 105

CONDOMINIUM: This is where each owner owns the INTERIOR of his individual unit plus an UNDIVIDED interest in the EXTERIOR and COMMON areas.

Front 106

ZONING--->

States may enact statutes to reasonably control the use of land to protect:

(1) ______________;

(2) ______________;

(3) ______________; and

(4) _______________ of its citizens.

Back 106

ZONING--->

States may enact statutes to reasonably control the use of land to protect:

(1) HEALTH;

(2) SAFETY;

(3) MORALS; and

(4) WELFARE of its citizens.

Front 107

???A _______ USE PERMIT is one that must be obtained even though the zoning is proper for the intended use.

Back 107

A SPECIAL USE PERMIT is one that must be obtained even though the zoning is proper for the intended use.

Front 108

A ________ is a departure from the restrictions of a zoning ordinance granted by administrative action.

Back 108

A VARIANCE is a departure from the restrictions of a zoning ordinance granted by administrative action.

Front 109

- Promises by grantor in a deed

- In regard to title he is conveying

Back 109

COVENANTS OF TITLE:

- Promises by grantor in a deed

- In regard to title he is conveying

Front 110

COVENANTS OF TITLE - WHAT TYPE?

Breached at time of conveyance, if at all

Back 110

COVENANTS OF TITLE - WHAT TYPE?

PRESENT COVENANTS: Breached at time of conveyance, if at all

Front 111

PRESENT COVENANTS (OF TITLE)

(1) ____________________

(2) ____________________

(3) ____________________

Back 111

PRESENT COVENANTS (OF TITLE)

(1) Covenant of seisin

(2) Covenant of right to convey

(3) Covenant against encumbrances

PNEUMONIC: Six Red Ants Eat

Front 112

COVENANTS OF TITLE - WHAT TYPE?

Grantor warrants that he has title to + possession (ie. he is owner)

Back 112

COVENANTS OF TITLE - WHAT TYPE?

COVENANT OF SEISIN: Grantor warrants that he has title to + possession (ie. he is owner)

Front 113

COVENANTS OF TITLE - WHAT TYPE?

Grantor warrants that he has right to convey

Back 113

COVENANTS OF TITLE - WHAT TYPE?

COVENANT OF RIGHT TO CONVEY: Grantor warrants that he has right to convey

Front 114

COVENANTS OF TITLE - WHAT TYPE?

Grantor warrants that there are no liens / mortgages / easements / or other interests in 3rd parties EXCEPT those listed in deed

Back 114

COVENANTS OF TITLE - WHAT TYPE?

COVENANT AGAINST ENCUMBRANCES: Grantor warrants that there are no liens / mortgages / easements / or other interests in 3rd parties EXCEPT those listed in deed

Front 115

COVENANTS OF TITLE - WHAT TYPE?

- Grantor warrants that grantee + his successors will not be disturbed in their possession of property

- By grantor or someone w/ claim of title superior to his own

Back 115

COVENANT OF QUIET ENJOYMENT:

- Grantor warrants that grantee + his successors will not be disturbed in their possession of property

- By grantor or someone w/ claim of title superior to his own

Front 116

COVENANTS OF TITLE - WHAT TYPE?

Grantor guarantees that his title is good and that he will assist in defending that title against claims by 3rd parties

Back 116

COVENANTS OF TITLE - WHAT TYPE?

COVENANT OF WARRANTY: Grantor guarantees that his title is good and that he will assist in defending that title against claims by 3rd parties

Front 117

COVENANTS OF TITLE - WHAT TYPE?

Grantor promises that he will perfect any defects in title

Back 117

COVENANTS OF TITLE - WHAT TYPE?

COVENANT FOR FURTHER ASSURANCES: Grantor promises that he will perfect any defects in title

Front 118

FUTURE COVENANTS (OF TITLE)

(1) ______________________

(2) ______________________

(3) ______________________

Back 118

FUTURE COVENANTS (OF TITLE)

(1) Covenant of quiet enjoyment

(2) Covenant of warranty

(3) Covenant for further assurances

Front 119

- Contains no covenants of title

- Conveys to grantee whatever grantor has

- Makes no representations / promises as to grantor's title

Back 119

QUITCLAIM DEED:

- Contains no covenants of title

- Conveys to grantee whatever grantor has

- Makes no representations / promises as to grantor's title

Front 120

- Contains all present + future covenants of title (except covenant for further assurances)

- Makes grantor liable for defects attributable to BOTH himself + his predecessors

Back 120

GENERAL WARRANTY DEED:

- Contains all present + future covenants of title (except covenant for further assurances)

- Makes grantor liable for defects attributable to BOTH himself + his predecessors

Front 121

- Contains all present + future covenants (except covenant for further assurances)

- However, grantor is only liable for defects or encumbrances incurred during his ownership

- Grantor not liable for any defects attributable to his predecessors

Back 121

SPECIAL WARRANTY DEED:

- Contains all present + future covenants (except covenant for further assurances)

- However, grantor is only liable for defects or encumbrances incurred during his ownership

- Grantor not liable for any defects attributable to his predecessors

Front 122

Places risk of loss on buyer once a K for real estate is signed

Back 122

EQUITABLE CONVERSION: Places risk of loss on buyer once a K for real estate is signed

o Makes buyer the equitable owner between signing + conveyance

Front 123

Adjudicates right of possession only

Back 123

UNLAWFUL DETAINER: Adjudicates right of possession only

o Law side - GDC / Circuit Court

Front 124

Action to separate ownership interests

Back 124

PARTITION: Action to separate ownership interests

o Equity side - Circuit Court / where land is located

Front 125

Used to adjudicate title only

Back 125

BILL TO QUIET TITLE: Used to adjudicate title only

o NOTE: P need not be in possession

Front 126

Action to try title + to obtain possession of land + for damages

Back 126

EJECTMENT: Action to try title + to obtain possession of land + for damages

o Law side

o NOTE: P must be out of posession

Front 127

Places risk of loss on buyer once a K for real estate is signed

Back 127

EQUITABLE CONVERSION: Places risk of loss on buyer once a K for real estate is signed

o Makes buyer the equitable owner between signing + conveyance

Front 128

Adjudicates right of possession only

Back 128

UNLAWFUL DETAINER: Adjudicates right of possession only

o Law side - GDC / Circuit Court

Front 129

Action to separate ownership interests

Back 129

PARTITION: Action to separate ownership interests

o Equity side - Circuit Court / where land is located

Front 130

Used to adjudicate title only

Back 130

BILL TO QUIET TITLE: Used to adjudicate title only

o NOTE: P need not be in possession

Front 131

Action to try title + to obtain possession of land + for damages

Back 131

EJECTMENT: Action to try title + to obtain possession of land + for damages

o Law side

o NOTE: P must be out of posession

Front 132

False representation + detrimental reliance + damages

Back 132

FRAUD: False representation + detrimental reliance + damages

o NOTE: Punitive damages are available (must prove intentional fraud)

Front 133

Possession of a document purporting to convey title

Back 133

COLOR OF TITLE: Possession of a document purporting to convey title

Front 134

_______ POSSESSION: The kind of use the true owner would make of a parcel of land.

Back 134

ACTUAL POSSESSION: The kind of use the true owner would make of a parcel of land.

Front 135

Covenants for title: Protect the _______ from competing claims for title to property.

NOTE: They do NOT protect against defects on the property.

Back 135

Covenants for title: Protect the PURCHASER from competing claims for title to property.

NOTE: They do NOT protect against defects on the property.

Front 136

What type of tenancy?

Each tenant has the right to possess all portions of the property, but no right to exclusive possession of any part.

Back 136

TENANCY IN COMMON: Each tenant has the right to possess all portions of the property, but no right to exclusive possession of any part.

Front 137

OUSTER

If one co-tenant wrongfully ousts another co-tenant from possession of the whole or any part of the premises, what is the ousted co-tenant entitled to receive?

Back 137

If one co-tenant wrongfully ousts another co-tenant from possession of the whole or any part of the premises, the ousted co-tenant is entitled to receive HIS SHARE OF THE FAIR RENTAL VALUE OF THE PROPERTY for the time he was wrongfully deprived of possession.

Front 138

Any interest in land that decreases its value.

Back 138

ENCUMBRANCE: Any interest in land that decreases its value.

Front 139

TRUE/FALSE:

The holder of an easement has a right, even a duty, to make repairs.

Back 139

TRUE!

The holder of an easement has a right, even a duty, to make repairs.

Front 140

What is a freehold estate?

Back 140

A freehold estate gives the owner of the estate title to or a rights to hold the property

Front 141

Types of freehold estates?

Back 141

Fee simple absolute, fee simple determinable, fee simple subject to a condition subsequent, fee simple subject to an executory interest, fee tail

Front 142

Fee simple determinable language?

Back 142

For so long as, during, while or until

Front 143

What a follows a fee simple determinable?

Back 143

Possibility of reverter

Front 144

Fee simple subject to a condition subsequent language?

Back 144

provided, however, but if, on condition that

Front 145

What follows a fee simple subject to a condition subsequent

Back 145

right to re-entry

Front 146

What is a Non-Freehold Estate

Back 146

When someone is granted possession for a term not measured by a lifetime (landlord/tenant)

Front 147

Basics of a vested remainder

Back 147

1 - the remainder must be created in ascertainable person

2- there must not be any condition precedent to that person's taking the property other than the termination of the estate

Front 148

When does a class open?

Back 148

Inter vivos - at conveyance
Testamentary - at testator's death

Front 149

When does class close?

Back 149

The rule of convenience states that a class closes as soon as at least one member becomes entitled to immediate possession

Front 150

Executory Interests?

Back 150

Shifting - where interest passes from one third party to another
Springing - where the interest passes back to the grantor before the the third party

Front 151

Doctrine of worthier title

Back 151

It is worthier

Front 152

Define Assignment:

Back 152

An assignment occurs when the tenant transfers to a third person (assignee) all of her right, title, and interest in the leased premises. An assignee comes into privity of estate with the landlord.

Front 153

If the seller breaches a contract for the sale of real property, the buyer may recover:

Back 153

expectation damages.

Front 154

If the seller breaches the contract by failing to sell the property to the buyer, the buyer may seek:

Back 154

specific performance of the contract for sale.

Front 155

The following three types of deeds are generally used in conveyances of real property:

Back 155

In a general warranty deed, the seller warrants that no title defects have occurred during her ownership of the property. The seller also warrants that there are no defects in the chain of title from which she derived title.
In a special warranty deed, the seller warrants that no title defects have occurred during his ownership of the property. However, the seller does not warrant that there are no defects in the chain of title from which he derived title.
In a quitclaim deed, the seller does not make any warranties. Instead, the grantor simply conveys whatever interest she may hav

Front 156

In the covenant of quiet enjoyment, the grantor warrants that:

Back 156

the grantee will not be disturbed by a superior claim.

Front 157

In the covenant of warranty, the grantor gaurantees that she will:

Back 157

assist in defending title against lawful claims and will compensate the grantee for losses sustained by an assertion of superior title.

Front 158

Define Covenant and the Covenantor's role in a covenant that runs with the land:

Back 158

A covenant that runs with the land is a promise that attaches to land. In that covenant, the covenantor promises to do or refrain from doing something on his land.

Front 159

For a covenant to run with the land, the following five elements must be satisfied:

Back 159

For a covenant to run with the land, the following elements must be satisfied:

writing
intent
privity
touch and Concern; and
notice

Front 160

The following factors may show a common scheme:

Back 160

a large percentage of lots expressly burdened;
oral representations to buyers;
statements in written advertisements, sales brochures, or maps given to buyers;
recorded plat maps or declarations.

Front 161

For Covenants and Equitable Servitudes, note the following for each:

The type of damages which Plaintiff is seeking:
Whether it constitutes a breach of contract:
In which court the action may be filed:

Back 161

For Covenants and Equitable Servitudes, note the following for each:

The type of damages which Plaintiff is seeking:
Whether it constitutes a breach of contract:
In which court the action may be filed:

Front 162

A lease may be created expressly, in two ways:

Back 162

orally or in writing. A writing generally is required by the Statute of Frauds for a term of more than one year.

Front 163

An easement may be created in four different ways:

Back 163

expressly through a writing, by implication, by prescription, or by estoppel.

Front 164

An easement implied by necessity requires:

Back 164

severance of title to land held in common ownership; and
strict necessity for the easement at the time of severance.

Front 165

An affirmative easement may be created by prescription, which requires proof of the use of property that is:

Back 165

1) open and notorious;2) actual;3) exclusive;4) hostile; and5) continuous (the traditional period for prescription is 20 years).

Front 166

List three ways in which an easement is terminated:

Back 166

An easement is terminated when the dominant and servient estates come into common ownership.
An easement may be terminated by abandonment.
An easement will be terminated when a governmental body acquires the servient estate through an exercise of the eminent domain power.

Front 167

Define Fee Simple Absolute:

Back 167

A fee simple absolute is the largest possible estate in land, denoting the aggregate of all possible rights that a person may have in that parcel of land.

Front 168

A fee simple determinable terminates

Back 168

Automatically on the happening of a named future event (key words: for so long as, during, while, or until)

Front 169

A determinable estate is followed by:

Back 169

A possibility of reverter (which may be implied)

Front 170

Define Fee Simple Subject to an Executory Interest and note whether it is subject to the Rule Against Perpetuities:

Back 170

A fee simple subject to an executory interest is an estate that is automatically divested in favor of a third person on the happening of a named event. (O conveys "to A for so long as the premises are used for charitable purposes, but if the premises cease to be used for charitable purposes, then to B.")

Subject to REP

Front 171

If a fixture and the land to which it is attached are subject to common ownership, the owner is free to:

Back 171

sever the chattel physically and permanently from the premises. In that case, the fixture regains its status as personal property.

Front 172

Define Trade Fixture

Back 172

trade fixture is a chattel that is annexed to the land by a tenant (life tenant, tenant for a term, periodic tenant, or tenant at will) to advance her business or trade during her tenancy. During a tenancy, a tenant is free to remove a trade fixture.

Front 173

Under the modern trend, tenants are permitted to remove trade fixtures within:

Back 173

A reasonable time after lease expiration

Front 174

With a foreclosure sale, junior interests (i.e., second or later mortgages) in the property are:

Back 174

Destroyed

Front 175

A junior mortgage is not extinguished by a foreclosure sale if:

Back 175

the junior mortgagee is not made a defendant in the judicial proceeding culminating in a foreclosure sale and does not get notice of the foreclosure sale.

Front 176

Define Foreclosure and Redemption, and note whether each is a buyer's or a seller's remedy.

Back 176

Foreclosure is a seller's remedy-Mortgagee--The ability to get one's security interest back after non payment
Redemption is a buyer's remedy-Mortgagor--The ability to get one's property back after payment has come due

Front 177

Define Reversion

Back 177

Foreclosure is a seller's remedy-Mortgagee--The ability to get one's security interest back after non payment
Redemption is a buyer's remedy-Mortgagor--The ability to get one's property back after payment has come due

Front 178

Define Possibility of Reverter

Back 178

A possibility of reverter is a future interest in the grantor that follows a determinable estate. A possibility of reverter is not subject to the Rule Against Perpetuities.

Front 179

Define Right of Entry:

Back 179

A right of entry is a future interest in the grantor that follows a fee simple or a life estate subject to a condition subsequent. A right of entry is not subject to the Rule Against Perpetuities.

Front 180

Define Remainder:

Back 180

A remainder is a future interest created in a third person, which is intended to take after the natural termination of the preceding estate.

Front 181

A remainder that is vested subject to open, sometimes called vested subject to partial divestment, is a remainder that:

Back 181

has been made to a class (e.g., "my children"); and
has at least one member who is ascertainable and who has satisfied any conditions precedent to vesting, but may have other members join the class later.

Front 182

A remainder will be contingent if:

Back 182

the takers are unascertained; or
the interest is subject to a condition precedent and therefore does not fall in automatically on the natural termination of the previous estate.

Front 183

Explain when Merger of interests occurs:

Back 183

When one party who possesses a present or future interest in the subject realty by subsequent transactions obtains all outstanding present and vested estates in that property "merger" occurs and the holder of the present and future interest takes a fee simple absolute.

Front 184

The contingent remainder will become an executory interest, subject to the Rule Against Perpetuities, if:

Back 184

the contingent remainder has not vested at the natural termination of the prior vested estate.

Front 185

Define executory interest and name the two types.

Back 185

An executory interest is a future interest in a third person that cuts short the previous estate before it would have naturally terminated. There are two types of executory interests:(1) Shifting executory interest cuts short a prior estate. Interest passes from grantee to grantee. (2) Springing executory interest does not become presently possessory until some time after the natural termination of the previous estate. Interest passes from grantor to grantee.

Front 186

Is an executory interest subject to the Rule Against Perpetuities?

Back 186

An executory interest is subject to the Rule Against Perpetuities.

Front 187

Define Joint Tenancy:

Back 187

Joint tenancy is a form of concurrent ownership, where each co tenant owns an undivided interest in the whole of the property and has a right of survivorship.

Front 188

A joint tenancy requires the following four unities:

Back 188

1) time;2) title;3) interest; and4) possession.

Front 189

f both joint tenants join in a mortgage of the subject property, the mortgage will not affect the joint tenancy. However, if only one of the joint tenants mortgages his interest, the effect of the mortgage on the joint tenancy will depend on:

Back 189

whether the jurisdiction follows the title theory or the lien theory of mortgages.

Front 190

In a title theory state, the execution of a mortgage by one joint tenant causes:

Back 190

the legal interest of that co-tenant to be transferred to the mortgagee.

Front 191

In a lien theory state, the mortgagee only receives:

Back 191

a lien on the property. Therefore, no severance occurs when the mortgage is made because the unities remain intact.

Front 192

If two joint tenants die simultaneously:

Back 192

the estate of each take one half.

Front 193

A life estate lasts for:

Back 193

the grantee's life. (O conveys "to A for life.")

Front 194

The possessor of a life estate or a leasehold interest has the right to possess, use, and enjoy the property during the duration of her estate. However, she may not do anything that:

Back 194

adversely affects the future interest that follows the life estate. An act that adversely affects the future interest is called waste.

Front 195

Despite the prohibition on voluntary waste, natural resources may be consumed in the following three instances:

Back 195

for the repair and maintenance of the property;
with permission of grantor; or
under the open mines doctrine.

Front 196

A life tenant has a duty to maintain the property in a reasonable state of repair, ordinary wear and tear excepted. This duty is limited to:

Back 196

the extent of the income derived or, if she personally occupies the premises, to the extent of the reasonable rental value of the land.

Front 197

A marketable title act provides a "cut-off" point, which limits the time period during which:

Back 197

a subsequent purchaser is required to search the records.

Front 198

Define Deed of Trust:

Back 198

In a deed of trust, the debtor/note maker is the settlor, who gives a deed of trust to a trustee who is closely connected to the lender. In the event of a default, the trustee is directed to proceed with a foreclosure sale. Deeds of trust are generally treated like mortgages.

Front 199

The following three mortgage theories are in effect in various jurisdictions of the United States. Define each:

The Title Theory:
The Lien Theory:
The Intermediate Theory:

Back 199

The title theory is the classic common law model for determining the nature of the interests held by the mortgagor and the mortgagee. Under the traditional title theory, the mortgagee receives legal title to the mortgaged real property and has a right to take possession of and to collect rents and profits from the property.
In a lien theory jurisdiction, the mortgagee receives a lien, and the mortgagor retains legal and equitable title and possession to the mortgaged real property, unless and until foreclosure occurs.
In an intermediate theory jurisdiction, the mortgagor retains legal title until default occurs. After default, legal title and possession pass to the mortgagee, who may then begin to collect rents and profits.

Front 200

A tenant for years or a periodic tenant has no common law duty to make mortgage payments, absent:

Back 200

a leasehold provision to the contrary.

Front 201

The mortgage deed must include, at a minimum, the following three terms:

Back 201

identity of parties;
description of property; and
intent to create a security interest

Front 202

The mortgage deed is a recordable document, which is generally subject to:

Back 202

the applicable recording statute.

Front 203

f a mortgage's maturity date cannot be ascertained from the mortgage documents, the mortgage lien will last for:

Back 203

20 years from the date of the mortgage, unless the obligation is re-recorded with the mortgage.

Front 204

Define Profit a Prendre:

Back 204

A profit a prendre is the right to take something from the land of another. E.g., A has the right to take gravel from B's land.

Front 205

A tenant has a duty to:

Back 205

Pay Rent

Front 206

n addition to promises he makes in the lease, a residential tenant has a statutory duty to:

Back 206

comply with the health code;
keep the premises clean;
keep plumbing in good repair;
remove garbage;
use plumbing and electrical equipment carefully;
refrain from disturbing his neighbors; and
not destroy the premises.

Front 207

The landlord has a duty to deliver possession of the premises to the tenant at:

Back 207

the start of the lease term.

Front 208

The landlord is also responsible for repairs to the structure (e.g., roof repairs). These duties may be altered or modified in a writing in respect to:

Back 208

A single family home or duplex

Front 209

A tenant may treat the lease as terminated and withhold rent if the landlord breaches the covenant of quiet enjoyment by constructive eviction of the tenant. For a constructive eviction to exist:

Back 209

the landlord's act must substantially and permanently interfere with the tenant's use and enjoyment of the premises; and
the tenant must move out.

Front 210

The implied warranty of habitability applies to residential leases. Commercial leases are not covered by the warranty. The following four leases may also be excluded from coverage under the implied warranty of habitability:

Back 210

leases for single family residences,
agricultural leases,
long-term leases, and
casual leases made by non merchant landlords.

Front 211

If a senior mortgage is modified, a junior mortgage prevails over the modification if:

Back 211

the modification materially prejudices the holder of the junior mortgage.

Front 212

Recordation of the deed of conveyance is not required to validate the transfer of title. However, recording becomes important when:

Back 212

two or more parties claim that the owner has conveyed (or mortgaged) the property to them.

Front 213

Under the common law, if two persons claimed title under deeds to one parcel of real property, the property was awarded to the person who took the property first in time. The common law rule still applies if:

Back 213

the person who took later in time fails to qualify under the relevant recording statute.

Front 214

Conveyance of real property by deed requires:

Back 214

Donative intent;
Delivery; and
Acceptance.

Front 215

Define Restraint on Alienation:

Back 215

A restraint on alienation is a condition placed on the ownership of real property that restricts the free conveyance of that property.

Front 216

Disabling Restraints are Always:

Back 216

Void

Front 217

Forfeiture restraints are valid for:

Back 217

life estates and future interests, but are not enforceable for fee simple estates.

Front 218

Promissory restraints are valid for:

Back 218

life estates and future interests, but are not enforceable for fee simple estates.

Front 219

Each co-tenant is entitled to possess:

Back 219

the whole property.

Front 220

A co-tenant has no right to seek a contribution or set-off for improvements made to the premises, unless:

Back 220

the improvements generate increased rents or profits. In that case, costs of improvements are recoverable only in a partition suit.

Front 221

For the following three Concurrent Estates, list the unities which are required and note whether a right of survivorship attaches:

Joint Tenants
Tenancy by the Entirety
Tenancy in Common

Back 221

Joint tenants--

Unities - TTIP - Time, Title, Interest, Possession
Right of Survivorship
Tenancy By the Entirety-
Unities - TTIPP - Time, Title, Interest, Possession, Person
Right of Survivorship
Tenancy In Common--
Unity of Possession Only
Default

Front 222

The following four interests are not subject to the Rule Against Perpetuities:

Back 222

present possessory estates;
charitable trusts;
resulting trusts; and
interests that are fully vested at the time of creation. The following interests are fully vested: a) reversionary interests; and b) completely vested remainders.

Front 223

List the five interests (COPER) that are subject to the Rule Against Perpetuities.

Back 223

Contingent Remainders \ Class Gifts
Options to Purchase
Powers of Appointment
Executory Interests
Rights of First Refusal

Front 224

A child conceived but not born at the time of the commencement of the Rule will be considered:

Back 224

a life in being.

Front 225

The time for determining lives in being when the conveyance is by inter vivos deed is:

Back 225

at the time of the conveyance.

Front 226

Under the common-law Rule Against Perpetuities, any person is irrebuttably presumed capable of having children until:

Back 226

death.

Front 227

If the buyer breaches a contract for the sale of real property, the seller is entitled to:

Back 227

expectation damages, measured by the difference between the contract price and the market price at the time of the breach.

Front 228

The Seller may also recover foreseeable consequential damages, such as:

Back 228

mortgage interest payments that the seller is required to make after the buyer's breach.

Front 229

The Seller may recover reasonable reliance damages, such as:

Back 229

repairs and the cost of inspections.

Front 230

If the buyer breaches, the seller may elect to:

Back 230

seek rescission of the contract.

Front 231

Define Mutuality of Remedy:

Back 231

Traditionally, mutuality of remedy is required. Under this rule, because the buyer is entitled to specific performance, the seller is also entitled to specific performance.

Front 232

The Statute of Frauds requires a writing for a transfer of an interest in real property. The writing must be signed by the party to be charged and must include the following four essential terms:

Back 232

description of the property;
description of the parties;
price; and
any conditions of price or payment if agreed on.

Front 233

The doctrine of part performance may be used to enforce an otherwise invalid oral contract of sale, provided:

Back 233

the acts of part performance unequivocally prove the existence of the contract.

Front 234

Define Tenancy by the Entirety:

Back 234

A tenancy by the entirety is a form of concurrent ownership reserved for married couples, which gives each spouse an undivided interest in the whole of the property and a right of survivorship.

Front 235

Tenancy in common requires unity of:

Back 235

possession only.

Front 236

A tenant in common may transfer her interest inter vivos in two ways:

Back 236

voluntarily, through a conveyance, lease, mortgage, or other transfer of a present possessory or future property interest.
involuntarily, through a foreclosure on a mortgage of the tenant's interest or an execution of a judgment creditor's lien on the tenant's interest in the property.

Front 237

A landlord is not liable to the tenant, or others on the premises with the consent of the tenant, for injuries caused by a condition of the premises, except in the following six situations:

Back 237

an undisclosed dangerous condition exists that is known or should have been known to the landlord but is unknown to the tenant;
a condition exists that is dangerous to persons outside of the premises;
the premises are leased for admission to the public;
parts of land are retained in the landlord's control but are available for use by the tenant;
the landlord has contracted to repair; or
the landlord has been negligent in making repairs.

Front 238

If the mortgagor transfers the property "subject to the mortgage," and mortgage payments are not made, the mortgagee may:

Back 238

foreclose and force the property to be sold.

Front 239

If the transferee of mortgaged real property "assumes the mortgage," and mortgage payments are not made, the mortgagee may:

Back 239

foreclose and force the property to be sold.

Front 240

Term of Years has a definite:

Back 240

beginning and end.

Front 241

Define Periodic Tenancy:

Back 241

A Periodic tenancy has a set beginning date and continues from period to period (e.g., from month to month) without a set termination date until proper notice is given.

Front 242

Define an At-Will Lease:

Back 242

At-Will lease has no fixed duration and lasts only as long as the landlord and tenant desire.

Front 243

Define Tenant at Sufferance/Holdover Tenant:

Back 243

Tenant at Sufferance/Holdover Tenant occurs when a tenant remains in possession of the leased premises ("holds over") after the end of the lease term.

Front 244

Race Statute

Back 244

Person who records first, wins

Front 245

Define a Notice Statute:

Back 245

Notice Statute: Under a notice statute, an unrecorded conveyance or other instrument is invalid as against a subsequent bona fide purchase for value and without notice.

Front 246

Define Constructive Notice:

Back 246

Constructive or record notice exists if the other party's deed is recorded in the proper place in the record books.

Front 247

Define Race Notice Statute:

Back 247

Under a race-notice statute an unrecorded conveyance or other instrument is invalid against a subsequent bona fide purchaser for value, without notice, who records first.

Front 248

Explain how a Zoning Ordinance is enacted:

Back 248

The state possesses the power to regulate for the health, safety, and welfare of its citizens. Through an enabling act, the state may delegate to a municipality the authority to protect the welfare of its citizens by enacting a zoning ordinance.

Front 249

Adverse possession requires proof of possession that is all of the following:

Back 249

open, visible, and notorious;
actual;
exclusive;
hostile and under a claim of title or right; and
continuous for the statutory period.

Front 250

Define Sublease

Back 250

A sublease occurs when the tenant transfers to a third person (subtenant or sublessee) less than all of her right, title, and interest in the leased premises. A subtenant does not come into privity of estate with the landlord.

Front 251

The buyer may recover reasonable reliance damages, such as:

Back 251

The cost of inspections

Front 252

If the seller breaches a contract for the sale of real property, the buyer may seek restitution of:

Back 252

The down payment

Front 253

A court may enforce a covenant as an equitable servitude if:

Back 253

the plaintiff can establish at law all of the elements for a covenant that runs with the land, but the plaintiff seeks equitable relief; or
the plaintiff cannot establish at law all of the elements for a covenant that runs with the land, but the plaintiff can demonstrate the relaxed requirements for an equitable servitude. a) If the plaintiff cannot show that the covenant was embodied in a writing, the plaintiff may prove the covenant through part performance or estoppel. b) If the plaintiff cannot show intent in a writing for the covenant to run, she may nevertheless establish intent by showing a common scheme.

Front 254

A court will not enforce an equitable servitude under the following circumstances:

Back 254

The person seeking enforcement is violating a similar restriction on his own land (unclean hands).
The holder of the dominant estate acquiesced in violation of the servitude by the holder of the servient estate (acquiescence).
The holder of the dominant estate acted in such a way that would have a reasonable person to believe that the covenant was abandoned (estoppel).
The owner of the dominant estate fails to bring suit against the violator within a reasonable time (laches).
The character of the neighborhood changed sufficiently through development, changes in zoning, or through non-enforcement of the equitable servitude (called the "changed conditions" doctrine).

Front 255

Define Implied Reciprocal Servitude:

Back 255

If the owner of two or more lots, so situated as to bear the relation, sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and the owner of the lot or lots retained may not do anything forbidden to the owner of the lot sold, creating an implied reciprocal servitude.

Front 256

An estate subject to a condition subsequent may be cut short if:

Back 256

the estate is retaken by the grantor or a third party on the happening of a named future event. (O conveys "to A and his heirs, but if the premises are not used for educational purposes, then O has the right to reenter the premises and terminate A's estate.)

Front 257

Define Fixture:

Back 257

A fixture is a chattel that has become so connected to real property that a disinterested observer would consider the chattel to be part of the realty.

Front 258

Define Vested Remainder:

Back 258

A vested remainder requires its takers to be ascertained or ascertainable at the time that the remainder is created. A vested remainder is transferable, descendible, and devisable.

Front 259

A tenant abandons the premises if:

Back 259

she vacates the premises without intent to return and fails to pay rent. Under the traditional view, if the tenant abandons the premises, the landlord has no duty to mitigate by attempting to re-let the premises.

Front 260

An owner of land has no liability if subsiding of neighboring land is caused by natural conditions on the owner's land. However, a landowner may be strictly liable if:

Back 260

his excavation causes adjacent land to subside (sink).

Front 261

Explain the liability for mortgage payments for:

Life Tenant:
Tenant for Years or Periodic Tenant:
Commercial Tenant:

Back 261

The life tenant has a duty to pay the interest on a mortgage, to the extent of profits derived from the property. A tenant for years or a periodic tenant has no common law duty to make mortgage payments. However, commercial leases often require a nonresidential tenant to pay taxes, mortgages, etc., and to make specific repairs.

Front 262

Marketable title is title that is reasonably free from doubt in both fact and law. Title is not reasonably free from doubt if it contains any of the following four defects:

Back 262

defects in the chain of title;
encumbrances;
significant encroachments; or
zoning violations.

Front 263

A purchaser becomes an equitable owner of title at the time of:

Back 263

the execution of a binding contract.

Front 264

Traditionally, covenants in a contract of sale merge into the deed at closing. However, under the modern trend, merger does not apply to:

Back 264

matters that are collateral to or not mentioned in the deed.

Front 265

If the seller dies after the execution of the contract for sale but before closing:

Back 265

legal title passes to his heirs or devisees. However, they must honor the sales agreement, and the purchase money passes as personalty.

Front 266

Define Purchase Money Mortgage:

Back 266

A purchase money mortgage is a mortgage given to a vendor of the real estate or to a third-party lender to the extent that the proceeds of the loan are used to acquire title to the real estate, or construct improvements on the real estate if the mortgage is given as part of the same transaction in which title is acquired.

Front 267

Define the following Recording Statutes:(1) Pure Race:(2) Pure Notice:(3) Race Notice:

Back 267

• Pure Race--• First to RECORD Wins• Pure Notice--• Last Bona Fide Purchaser Wins• Race Notice--• FIRST Bona Fide Purchaser to RECORD wins

Front 268

The common law, which is still followed in some states, does not allow a co-tenant to seek contribution from another co-tenant for repairs performed on the property. However, under the modern trend, contribution may be compelled for:

Back 268

necessary repairs if the repairs were requested by the repairing tenant and refused by the other(s).

Front 269

Define each co-tenant's right to seek partition:

Back 269

Each co-tenant has the right to seek partition of the property.

Front 270

Under the common law Rule Against Perpetuities, interests are analyzed under the "might have been" rule, which states that:

Back 270

an interest violates the Rule Against Perpetuities if there is any chance, however remote, that the interest might vest more than 21 years after a life in being.

Front 271

Define Tenancy in Common:

Back 271

Tenancy in common is a form of concurrent ownership, where each co-tenant owns an undivided interest in the whole of the property with no right of survivorship.

Front 272

Define Inquiry Notice:

Back 272

Inquiry notice exists if the appearance of the property is such that the claimant should have asked more questions about the title to the property.