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57 Cards in this Set
- Front
- Back
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Is a Right to First Refusal Covenant valid?
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Yes, it's legal, but subject to the Rules Against Perpetuities.
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Short Cut Rule to Analyzing RAP Questions on the MBE.
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1. Last person mentioned by proper name & all prior parties take;
2. The next subsequent party, not mentioned by proper name, take; and 3. All additional parties lose & the property reverts back to O or O's heirs. |
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When may an easement be implied by operation of law (quasi-easement)?
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It may be implied if, prior to the time a tract is divided, a use exists on the servient part that is reasonably necessary for the enjoyment of the dominant part, the use was apparent, and that the parties intended the use to continue after division of the property.
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In a Notice Statute Jx, will a subsequent purchaser prevail over a prior grantee who fails to record?
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Yes, under a notice statute, a subsequent bona fide purchaser prevails over a prior grantee who fails to record. The issue is whether the subsequent purchaser had actual or constructive notice at the time of the conveyance (mortgage), not at the time of recording.
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D has 3 outstanding mortgages with Banks A, B, and C, on the same house. After defaulting on all three mortgages, C brings a foreclosure action. Who is entitled to take?
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The buyer at the foreclosure sale will take the property subject to banks A and B's mortgages, Bank C is entitled to amount they loaned D, and D is entitled to the remaining proceeds, if any. When an interest is foreclosed, after the expenses and fess are paid, proceeds are first used to pay the principal and interest on the loan that was foreclosed (C's loan), next any junior liens, and finally the remaining go to D, the mortgagor.
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When will the benefit of an equitable servitude enforce a covenant upon a successor?
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1. if the original promise was in writing;
2. The original parties so intended; 3. The servitude touches and concerns the land; and 4. Notice of the covenant. |
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When is a tite marketable?
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Marketable titles is title reasonably free from doubt,i.e., title that a reasonably prudent buyer would be willing to accept.
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What are some examples of an unmarketable title?
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Where owners of the present and future interest attempt to convey a fee absoluet title if the future interests are held by persons who are unborn or unascertainable.
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What factors indicate an equitable mortgage?
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1. The existence of a debt or promise of payment by the deed's grantor;
2. The grantee's promise to return the land if the debt is paid; 3.The fact that the amount advanced to the grantor/debtor was much lower than the value of the property; 4. The degree of the grantors' financial distress; and 5. the parties' prior negotiations. |
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What does a properly executed deed effectively transfer an interest in reality?
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To effectively transfer interest, a deed must be delivered, which include words or conduct evidencing the grantor's intention that the deed have some present operative effect, i.e., the title passes immediately and irrevocably even though right of possession may be postponed.
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Can a transfer of reality become effective when a deed is given to a 3rd party, rather than the grantee?
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Yes, it's a conditional delivery. If the grantor executes a deed to the grantee and gives it to a 3rd party with instructions to give it to the grantee upon the grantor's death, most Ct. hold this to be an irrevocable present conveyance of a future interest to the grantee.
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When there is a mistake or inconsistency in the description of property within a deed, does the deed become invalid?
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Generally, no. The rules of construction is that the physical description takes precedence over the quantity description unless there are grounds for reformation of the deed. Reformation is an equitable principle where the Ct may rewrite the deed if there is a mutual mistake, scrivener's error, or unilateral mistake due to misrepresentation.
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If a borrower defaults on a mortgage, may he pay off the amount due and stop the sale, even if the foreclosure proceedings have commenced?
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Yes, under the equitable principle of redemption, the borrower has the right to free the land of the mortgage by paying off the amount due, plus any accrued interest, at any time prior to the foreclosure sale. If he's defaulted, he must pay the full balance.
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Can a tenant remove lights that she had installed?
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Yes, in the absence of an express agreement if there was no (objective) intent on T's part to benefit L, T is entitled to remove the lighting as long as it does not cause substantial harm or repair any such damage that removal may cause.
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Can a tenant remove curtains that he had installed after the lease had expired?
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No, even though T was entitled to remove them, he foreited them. A tenant must remove annexed chattel (fixtures) before the termination of the tenancy or they become the property of L.
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What is a recipricol negative servitude?
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It is an equitable servitude implied from a common scheme - techincal bullshit.
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If grantor executes a deed, places the deed in his bedroom closet with instructions to a 3rd party to deliver the deed to the grantee upon his death, is there an effective conveyance?
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No. to make an effective delivery, the grantor must relinquish control. Here, grantor did not relinquish control b-cuz he executed the deed but retained it, and merely told a 3rd party to deliver it at his death, thus no valid delivery.
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If A and B own adjoining lands and A mistakenly erects a building on B's portion, what can B recover?
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B can retain the building and also recover the reasonable rental value for A's use and possession of the property. Even if A was acting in good faith, he was still a trespasser, and in the absence of a statute, a trespasser's annexations on the property of another are lost to them.
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Under the concept of fixtures, when has chattel been annexxed to real property to covert it from personalty to realty?
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As an accessory to the land it passes with ownership of the land. The manifest intent of the annexor determines whether the chattel becomes a fixture.
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What are the factors for evaluating an annexor's intent?
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The relationship btw the annexor and the premises, the degree of annexation, and the nature and use of the chattel.
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Is there an implied warranty of quality of fitness with the sale of real property?
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No, but a seller may be liable where he has actually concealed conditions on the property
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What is Accretion?
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Accretion is the icnrease of riparian land by the slow and imperceptible change in course of a river serving as a boundary; any resulting deposit of soil belongs to the owner of the abutting land.
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D has a mortage on her house from Bank-A and sells the house to B, subject to the mortgage. If B defaults on the mortgage, what is Bank-A's remedy?
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Bank-A may foreclose on the land or it may sue D in the underlying debt. When a mortgagor sells the mortgaged property and conveys a deed, the grantee takes subject to the mortgage, which remains on the land. But, the mortgagor remains primarily and personally liable on the loan, unless the grantee has signed an assumption agreement.
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Does a subsequent purchaser have duty to inspection the property to defeat a prior grantee who has not recorded in a notice statute Jx?
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Yes, a title search is not complete without an examination of possession. The purchaser is charged with the knowledge of whatever an inspection of the property would have disclosed and anything that would have been disclosed by the possessor.
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What covenants are included in a General Warranty Deed?
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3 Present: (1) Seisin-grantor owns the estate, (2) Conveyance, and (3)Unencumberance-no servitudes or liens.
3 Future: (1) Quiet enjoyment, (2) Warranty-defend against claims of title, and (3) Further assurances-whatever reasonably neccesary to perfect title. |
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What covenants are included in a Special Warranty Deed?
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1. Grantor has not conveyed to anyone else; and
2. Free from grantor's encumberances. |
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What covenants are included in a QuitClaim Deed?
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None, grantor must still marketability, under K, at the time of the closing; BUT
No liability to any problems arising after closing. |
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Does an easement appurtenant pass automatically to successive owners?
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Yes, an easement appurtenant passes automatically with the servient estate, unless the new owner is a BFP without notice of the easement.
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A conveys an interest in Blackacre to B by quitclaim deed, but later asks B to return the deed and give up his interest in Blackacre. If B complies and A destroys the deed, does A get her interest back?
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No, A has transferred her interest to B. The destruction of the deed has no effect on B's interest. For A to have her interest back, B must reconvey by deed back to A.
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When will a covenant run with the land to burden successors?
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1. The covenant btw the original parties must be in writing;
2. The original contracting parties intended for the covenant to run with the land; 3. The covenant touches and concerns the land; and 4. There must be both horizontal privity btw the original parties, i.e., grantor/grantee, landlord/tenant, or mortgagor/mortgageee; 5. Vertical privity; and 6. Successors have notice. |
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What are the major characteristics of a Tenanct by the Entirety?
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1. It can only be created in Husband and Wife, who share right of survivorship.
2. Creditors of only onse spouse can't touch it. 3. The right of survivorship can't be defeated by a unilateral conveyance of one spouse. |
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If A could only access his land by expending a large amount of $$ to improve a gravel road, would this be a sifficient basis for an easement by neccessity?
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No, the amount of money required to improve the access does no determine need for an easement by necessity. The fact that an alternative access exists extinguishes the necessity.
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O conveyed Blackacre to J for life, then to S and R as joint tenants with right of survivorship. If both S and R predeceases J, but R actually dies first, who takes blackacre?
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S's heirs would take Blackacre. S and R held a indefeasible vested remainder as joint tenants. There is no condition that either survive J. Because R predeceases, S takes pursuant to the right of survivorship and it goes to her heirs when she died.
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If an assignee liable for covenants, i.e., taxes, in the original agreement between the leasor and leaseee, if the agreement btw assignee a leasee makes not mention of it?
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Yes, the assignee is in privity of estate with the lessor, and is liable for those covenants in the original lease that run with the land. Taxes run with the land.
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A conveys Blackacre, by general warranty deed, to B. B later finds out that A had conveyed to C Whiteacre and had given C an easement across Blackacre. What covenant has A breached?
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The existence of an easement breaches the covenant against encumberances. It does not breach the covenant of quiet enjoyment, b-cuz B is not being evicted by a 3rd party with paramount title. It does not breach the right to convey, because A did not lack title at the time of the grant.
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If A's and B's property are separated by a stream, who owns what part of the stream?
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Each party owns one-half interest in the stream bed. Where a stream is a boundary, abutting owners each own one-half of the bed.
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What is the doctrine of merger?
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Under the doctrine of merger, all covenants not collateral to the land sale contract are "merged" in the deed. Thus, acceptance by the buyer of the deed discharges the seller of all liability under the contract. Therefore, the seller is only liable for thise covenants in the deed, i.e., quitclaim, general, or special warrant deeds.
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Can an easement in gross be transferred without the permission of the servient estate holder?
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Yes, an easement in gross that is commercial may always be transferred, and permission is not needed. However, there is an obligation of the holder of the easement to reasonably restore the surface following an excavation.
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D conveys Blackacre to B for life, remainder to C; subject to a mortgage. If B is still in possession, who is responsible for the mortgage payments?
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The doctrine of waste governs the obligations btw a life tenane and the holder of the remainder regarding mortgages. The life tenant pays the interest and the holder of the remainder pays the principal.
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A sells Blackacre to B with a covenant that requires recycling. B sells to D, but does not mention the recycling covenant. Must D comply with the covenant?
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Generally no, recycling does not clearly touch and concern the land. Touch and concern involves the relationship btw landowners and the law, recycling does not directly benefit the other landowners in the use or enjoyment of their land.
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When do Covenants Run with the Land in a leasor/leasee relationship?
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A covenant runs with the land if the original parties to the lease so intended and if the covenant "touches and concerns" the land (i.e., benfits the landlord and burdens the tenant (or vice versa) with respect to their interests in the property).
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If a deed is given for security purposes, rather than an outright transfer of the property, can the deed holder sell the property?
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No, in such a circumstance, an equitable mortgage will be presumed, and the credito will be required to foreclose it by judicial action like any other mortgage.
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If a long-term lease, for 25 years, gives the lessee and his heirs an option to buy, will it be invalid in a Jx that follows RAP?
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No, there is a special exception to RAP, for options to purchases attached to leaseholds.
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If a seller's land, containing a large office building which slightly encroaches upon an adjoining property, will this render title unmarketable?
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No,only a significant encroachment will render title unmarketable, especially if it does not interferes with the use of the adjoining property.
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If a developer subdivides land into several parcels and some of the deeds contain negative covenants and some do no, can a covenant be implied on D, who purchased a parcel without a covenant in the deed?
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No, record notice requirement for recipricol negative servitude cannot be satisfied based on other deeds given by a common grantor.
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Can a creditor with a valid judgment against A, who is a joint tenant with B, encumber the entire parcel of land, including B's interest?
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No, a joint tenant or a tenant in common may encumber her own interest, but may not encumber the other co-tenant's interest.
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Will recordation satisfy the delivery requirement for a valid deed?
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Yes, recordation is prima facie evidence of delivery. Recording a deed is presumed to carry with ot the requisite intent to pass title immediately.
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If an assignee, who is no longer in privity of estate, promised the original tenant, but not the landlord, that he would pay all future rent, can L sue him to collect unpaid rent?
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Yes, although the assignee, may have reassigned the leasehold to another party, if he promises the original tenant that he would pay all future rent, L can sue the assignee as a 3rd-party beneficiary of the promise to the original tenant.
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L noticed T that he intended to increase her rent at the end of the lease. T refuses to pay the increase, but holdsover and sends L the rent at the old amount, which L cashes. Does T have to pay the increased rent?
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Yes, even if T objects to the increased rent, as long she does not surrender her apt. she will be held to have acquiesced to the new terms.
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Can P sue D for a breach of contract if D fails to tender a deed at the closing date, but does so a few days later?
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Yes, if the parties have stated that time is of the essence, either in the contract or by action, if D fails to tender performace on the date set for closing is in breach and loses his right to enforce the K.
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If the parties do not state that time is of the essence, can P breach the K if D fails to deliver title within a reasonable time?
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Yes, even when time is not of the essence, D must tender performance within a reasonable time after the date set for closing or he'll be unable to obtain specific performance. 1 month has been deemed reasonable by th Ct.
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Can A sue B for failure to convey marketable title if after closing A has already accepted a quitclaim deed?
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No, A's acceptance of the deed constitutes a discharge of B's liability on the contract.
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When is a transfer of property assessed to determine whether it violates RAP?
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A tranfser is assessed at the time of conveyance, i.e., if by will at the time of T's death, or by inter-vivos trust at the time it's created.
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Does the "shelter rule" apply to a grantee who takes from a grantor who recieved the land by devise?
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No, under the rule, only a person who takes from a BFP will prevail against any interest that the BFP would have prevailed against.
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What are other ways a court will refer to a "vested remainder subject to open"?
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Vested remainder subject to partial defeasance (or divestment)
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What is a definition of a contingent remainder?
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A remainder is a future interest that will become a present interest upon the natural termination of the preceding estate. A remainder is contingent if it's created in favor of an unborn or unascertained person.
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If A leases 20 acres of Blackacre to G for 10 years and after 5 years the state condemned 15 of the acres, can G quit possession?
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No, a partial condemnation does not extinguish the landlord -tenant relationsip & the tenant is still obligated to pay the entire rent for the remaining term.
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