Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
84 Cards in this Set
- Front
- Back
|
A landowner owned a three-acre plot of land in a remote location. His plot abutted a two-acre wooded property that contained an artesian spring owned by an out-of-state investor who had never developed nor visited the land. Hoping to make a substantial profit by making his property sound more appealing, the landowner created a false deed indicating that his parcel was five acres in size and included the wooded property with the artesian spring. A buyer offered to pay $50,000 for the five-acre plot of land and expressed that $10,000 per acre was quite reasonable. The landowner accepted, and both parties signed the fraudulent deed. The buyer subsequently recorded the deed, but before he paid the $50,000, the landowner fully realized the legal implications of the fraudulent act and confessed the fraud to the buyer. |
The landowner insisted that they go through with the sale of the three-acre plot of land, as the buyer had expressed that $10,000 per acre was reasonable, and that he would accept an offer of $30,000 for that land. He filed suit to have this agreement enforced.
Is the seller likely to be successful in his lawsuit? A. Yes, because the buyer recorded the deed. B. Yes, because the buyer was a bona fide purchaser and relied on the fraudulent deed. C. No, because no consideration was paid. D. No, because the deed was invalid. |
|
|
D
|
Valid deeds are governed by the Statute of Frauds and include all necessary terms, such as the grantor’s signature, named grantee, words of transfer, and a description of the property. Unlike a contract, consideration is not required. Fraudulent documents are ineffective to convey title, even if bona fide purchasers rely upon them. Here, the deed was fraudulent and therefore voidable, regardless of whether it was recorded. Answer choice A is incorrect because the deed was fraudulent, and further, a deed need not be recorded to convey title. Answer choice B is incorrect because a fraudulent deed cannot convey title even if a bona fide purchaser relies on it. Further, it is not relevant to these facts because no one else is claiming title to the land. Answer choice C is incorrect because unlike a contract, a deed does not require consideration.
|
|
|
Three brothers inherited, as joint tenants with the right of survivorship, a building in which their parents had operated a hardware store. Only the oldest brother continued to operate the hardware store on the premises, but he did not restrict his brothers’ access to the building. The middle brother sold his interest in the building to the oldest brother. The youngest brother died, leaving everything to his daughter in his will.
Who owns the building? A. The oldest brother in fee simple. B. The oldest brother and the youngest brother’s daughter as joint tenants. C. The oldest brother and the youngest brother’s daughter as equal tenants in common. D. The oldest brother and the youngest brother’s daughter as tenants in common, with the oldest brother owning a 2/3 interest and the youngest brother’s daughter owning a 1/3 interest. |
Answer choice A is correct. Each brother inherited a 1/3 interest in the building. The middle brother’s sale of his interest to the oldest brother severed the joint tenancy with respect to that interest. As a consequence, the oldest brother held a 1/3 interest as a tenant in common with the youngest brother. The oldest and youngest brothers held the remaining 2/3 interest as joint tenants. Upon the youngest brother’s death, his interest passed automatically to the oldest brother by virtue of the right of survivorship. This interest, combined with the remaining 1/3 interest that oldest brother possessed, gave the older brother complete ownership of the building. Answer choices B, C, and D are incorrect because the youngest brother’s joint tenancy interest in the building passed automatically to the oldest brother due to the right of survivorship. Consequently, the youngest brother did not have an interest in the building that he could devise to his daughter.
|
|
|
A widow held a life estate in a house and several acres of land in a semi-rural area. She lived in the house and harvested berries from the numerous wild berry bushes on the property each June. The widow personally consumed the berries or gave them away to family and friends, but did not sell them to third parties. One May, just before the berries were to be harvested, the widow died. The widow’s children, her heirs, sought to enter the land to harvest the berries, but the remainderman, the new owner, objected, claiming that he had sole right to the berries
Do the heirs have the right to return and harvest the berries? A. Yes, because the berries were the widow’s personal property. B. Yes, because widow would have been able to harvest them had she survived. C. No, because the berries grew wild. D. No, because the widow did not sell the berries to third parties. |
Answer choice C is correct. Fructus naturales are wild crops that are not cultivated; such crops are considered real property and pass automatically with the land. Here, title to the land, including the unharvested berries, reverted to the remainderman at the time of the widow’s death. Accordingly, the remainderman has the sole right to the berries. Had the berries been fructus industriales, that is, had the widow purposely planted and cultivated the berries, would have been considered personalty. Answer choice A is incorrect because the berries were not yet the widow’s personal property; they would have become her personal property if she had already harvested them, and they would have been considered personalty had she cultivated them. However, because they grew wild, they pass with the land. Answer choice B is incorrect because, while it is true that she would have been able to harvest them had she survived, the land, including the berries, passed to the remainderman at the time of
|
|
|
A superintendant owned two adjacent buildings. The superintendant sold one of the buildings to a professor. The deed stated, in part: “The Professor, her heirs, and successors-in-interest, shall only paint the exterior of said building white or ivory in order to maintain aesthetic uniformity in the neighborhood.” The deed was subsequently recorded. Ten years later, the professor sold the building to an artist, who promptly painted the exterior of the building red. The superintendant sued the artist for injunctive relief and the court ordered the artist to paint the building white or ivory.
Which of the following would justify the court’s decision? A. The superintendant retained an easement in gross. B. The building was subject to a real covenant. C. The building was subject to an equitable servitude. D. The building was subject to a license. |
Answer choice C is correct. An equitable servitude is a nonpossessory property right created when: (1) there is an intent that a land use restriction is to be enforceable not only by parties to the agreement but also by their successors-in-interest; (2) the person against whom the servitude is to be enforced has actual, constructive, or inquiry notice of the servitude; and (3) the servitude touches and concerns the land. Here, the language of the contract expresses a clear intent for the restriction to run to the professor’s successors-in-interest, the artist had inquiry notice of the servitude because it was in the recorded deed, and the restriction as to color choice of the building touched and concerned the land because it affected the artist’s actions as a landowner. Answer choice B is incorrect because only monetary damages, and not injunctive relief, are available to enforce a real covenant. An equitable servitude is enforceable by an injunction.
|
|
|
A man and woman were neighbors whose small yards were separated only by small bushes. After a discussion about building a one-foot thick stone wall to separate the two properties, the neighbors agreed that the man would pay for the wall, as the woman did not have the funds to do so, and as a consolation, the wall would be built on the woman’s property so as to not reduce the square footage of the man’s yard. Years later, the woman sold her property in a valid transaction with a buyer, but she told the buyer that the man had actually paid for and built the wall and that she had agreed to keep it there. Regardless, the buyer then spoke to the man about her desire to tear down the wall to open up the space and stated that she would pay for the destruction of the wall. The man objected to tearing down the wall.
May the man prevent the buyer from tearing down the wall? |
A. Yes, because he has a separate security interest in the materials used to build the wall.
B. Yes, because he paid for materials and construction of the wall. C. No, because the wall constituted an easement in gross. D. No, because the buyer validly purchased the land from the woman. |
|
|
D
|
Fixtures, or structures built on real property, become part of the realty. Therefore, the wall became part of the woman’s land, which was then sold to the buyer. When the buyer bought the woman’s property, the wall, as a fixture, was included in the sale—whether the man paid for its construction or not. Absent some other legal prohibition not mentioned in the facts, the buyer could unilaterally decide to tear down the wall. Answer choice A is incorrect because once the materials were incorporated into the wall, they became an integral part of the property, and the man was not subject to any security interest in the materials. Answer choice B is incorrect because although the man paid for the wall, he had no security interest and no right to object to the wall’s destruction.
|
|
|
A widow transferred land that she held in fee simple to her only heir, her nephew, for his life, to her nephew’s wife for the wife’s life if she survived him, and then to any of the nephew’s children who reached the age of 21.
The widow later died intestate. Shortly after the widow’s death, her nephew and his wife had their first and only child, a daughter. Five years ago, immediately prior to dying, the nephew’s wife transferred her interest in the land to her daughter. One year ago, when the daughter was 18 years old and possessed legal capacity to transfer real property, she sold any interest she then owned in the land to a speculator. Recently, the nephew died and left everything to his daughter by his will. The jurisdiction recognizes the majority rule regarding inter vivos transfers of contingent remainders and executory interests. Which of the following would be the daughter’s best argument that she is entitled to current possession of the land? |
A. The daughter was transferee of her mother’s interest in the land.
B. The daughter took the nephew’s interest in the land upon his death. C. The daughter’s contingent remainder in the land was not transferable inter vivos. D. The daughter was the only child of the nephew and his wife. |
|
|
Answer choice B is correct. At the time of the widow's death, the nephew held a life estate, his wife a contingent life estate, any children of the nephew a contingent remainder, and the widow’s estate a reversionary interest. Because the widow died intestate, the reversionary interest passed to the widow’s only heir, the nephew. Upon the nephew’s death, his life estate terminated and the reversionary interest was transformed in the current possessory interest in the land (i.e., a fee simple subject to an executory interest). This fee simple estate passed by the terms of the father’s will to the daughter. However, at the time of the daughter’s sale of any interests in the land to the speculator, the daughter had only a contingent remainder, which, upon her father’s death, became a springing executory interest. This interest is not a current possessory interest. It will become one, if at all, only when the daughter reaches age 21. Accordingly, the speculator does not have a current poss
|
Answer choice A is incorrect because the nephew’s wife held only a contingent life estate in the land. This interest, which was transferred by the nephew’s wife to her daughter inter vivos, terminated upon the death of the nephew’s wife, since she did not survive her husband. Answer choice C is incorrect because, in most states, a contingent remainder may be transferred inter vivos. Answer choice D is incorrect because the daughter’s status as a child of the nephew and his wife is relevant only with respect to her rights to the contingent remainder/springing executory interest, which is not a current possessory interest.
|
|
|
The owner in fee simple of an undeveloped lot in the city promised to leave the property to her nephew upon her death. The nephew, shortly before his aunt’s death, purported to convey the lot by a general warranty deed to his son as a gift. This transfer was not recorded. Despite the aunt’s promise, the lot passed to a charity upon her death pursuant to provisions in her will. The following month, the son sold the lot to a developer but was shortly thereafter killed in an accident. When the charity’s attorneys learned of the developer’s plan to construct a building on the lot, they sued to block the construction by alleging the charity owned the lot. Which of the following breach of warranty actions can the developer successfully pursue against the nephew as a consequence of the charity’s suit?
A. Breach of the warranty against encumbrances. B. Breach of the warranty of quiet enjoyment. C. Breach of the warranty of the right to convey. D. Breach of the warranty of seisin. |
Answer choice B is correct. The warranty of quiet enjoyment is a future covenant that is breached only upon interference with possession. It runs to successive grantees, such as the developer, as well as to the original grantee. Since the charity action interferes with the developer’s possession of the lot, this warranty has been breached, and the developer may assert that breach against the nephew. Answer choice C is incorrect because although the nephew did breach the warranty of the right to convey, this warranty is a present covenant. In most states, a subsequent grantee cannot sue the original grantor for breach of a present covenant. Answer choice D is incorrect because although the nephew did breach the warranty of seisin, the developer would not be able to sue the nephew for breach of a present covenant in most states.
|
|
|
An elderly mother had one son and one daughter, and she owned several acres of wooded property on which all three lived. The mother executed a deed conveying a 50% undivided interest in the property to the daughter and retained the remaining 50% interest of the land for herself. Upon the mother’s death, she bequeathed her interest in the property to the son. The daughter erected a small cabin on her portion of the property; the son mortgaged the land one year before he died. After his death, the daughter planned to harvest timber from the son’s portion of the land, but the son’s heirs objected.
In a lien theory state, could the daughter properly harvest timber over the son’s heirs’ objections? A. Yes, because the daughter had the right to possess the entire property. B. Yes, because the mortgage acted only as a lien on the property and did not affect her right of survivorship. C. No, because the son had exclusive right to alienate/encumber the land. D. No, because the son mortg |
Answer choice A is correct. The son and daughter were tenants in common. Tenants in common have the unrestricted right to possess the whole property. Further, co-tenants are entitled to the land’s natural resources (such as timber) in proportion to their share of the property. Accordingly, each tenant in common is entitled to the natural resources on the entirety of the land. Here, that means that the daughter is entitled to harvest timber from the land. Answer choice B is incorrect because the mother’s conveyance did not satisfy the four requirements of joint tenancy: unity of possession, interest, time, and title, and the facts do not specify that any survivorship language was included in the transfer.
|
|
|
A landowner gave her property’s mineral rights to her son. After the transfer but before the son began to mine the minerals, the landowner sold the property to a corporation that built a commercial warehouse on the property. As a consequence of the son’s subsequent mining activities, which were conducted with reasonable care and in compliance with all laws and regulations, the land subsided and the warehouse was damaged.
Can the corporation recover for the damage to its warehouse? A. No, because the son exercised reasonable care in the conduct of the mining activities. B. No, because the warehouse was used for commercial rather than residential purposes. C. Yes, because the corporation acquired the property by purchase rather than gift. D. Yes, because the corporation built the structure before the son began to mine the minerals. |
Answer choice A is correct. The owner of mineral rights is not liable for damage done to structures built on the surface of the land after the mineral rights were transferred unless the owner fails to exercise reasonable care in removing the minerals. Because the facts indicate the son did exercise reasonable care in conducting the mining operation, he is not liable for the damage to the warehouse. Answer choice B is incorrect because the right to subjacent support with regard to structures on the land does not turn on whether the structure was for residential or commercial use, but rather on when it was constructed. Answer choice D is incorrect because the right to subjacent support with regard to structures on the land does not turn on when the mining began. If the structure was constructed before the rights were acquired, the owner of the mining rights is strictly liable. If the structure was constructed after the rights were acquired, only if failure to exercise reasonable care.
|
|
|
An individual obtained a loan from a bank to purchase a house for use as a residence. As security for the loan, the individual granted the bank a mortgage on the house. Due to an oversight by a bank employee, the mortgage was not recorded. After three years during which time the individual complied with the terms of the loan, the individual sold the house to a third party. Under the terms of the sale, the third party obtained a new loan from the bank with the same terms as the individual’s loan, and the bank agreed to excuse the individual’s loan obligations. The third party did not live in the house, but instead rented it out to a couple. Five years later, the couple moved out, and the third party, unable to find another renter, failed to make the required payments on the loan. The bank has filed an action against the individual to recover the unpaid balance of that loan.
Which of the following is the individual’s best defense to this action? |
A. There is no privity of estate between the individual and the bank.
B. There was a novation with regard to the individual’s obligation to the bank. C. The bank failed to record the mortgage. D. The individual is personally liable to the bank, but only secondarily. |
|
|
B
|
The third party entered into a new loan with the bank and the bank agreed to excuse the individual’s loan obligation (a novation). Consequently, the individual is not personally liable to the bank. Answer choice A is incorrect because, although the individual is no longer in possession of the property, the individual would nevertheless remain liable for repayment of the loan in the absence of a novation. Answer choice C is incorrect because, while the failure to record a mortgage can affect the bank’s rights in the house with respect to other creditors, it does not alter the bank’s rights with respect to the individual and the initial loan. Answer choice D is incorrect because the novation results in the individual not being personally liable to the bank, even in a secondary capacity.
|
|
|
Novation
|
I have a loan with a bank and I am in default. A third party comes into the picture (can happen in a variety of ways) and enters into a new loan with the bank and the bank agrees to excuse my loan obligation (a novation). Consequently, I am not personally liable to the bank.
|
|
|
If I am in a tenancy in common for 50% of land, can I harvest the wood on the whole property?
|
yes
|
|
|
to determine if you have JTWROS
|
look for the unities and for survivorship language
|
|
|
which breach can I sue a subsequent purchases for?
warranty of quiet enjoyment warranty of the right to convey warranty of seisin |
in most states, just the warranty of quiet enjoyment
because it is a future covenant breached only upon interference with possession. In most states, a subsequent grantee cannot sue the original grantor for breach of a present covenant and the other two are both present covenants. |
|
|
If I want a privacy fence and I have Moon-Hyun pay for it and build it on Alison's property (in agreement with them) and they then sell their house to someone, the new owner can or cannot tear it down. It's a fixture on their property. I have no security interest or anything else (without a further written agreement of some sort).
|
Can. It's a fixture on their property. I have no security interest or anything else (without a further written agreement of some sort).
|
|
|
A developer builds houses and includes in the recorded deeds the requirement that the houses be painted white. A successor purchases paints his house red. The developer sues to get an injunction. What is the right that was created?
|
An equitable servitude is a nonpossessory property right created when: (1) there is an intent that a land use restriction is to be enforceable not only by parties to the agreement but also by their successors-in-interest; (2) the person against whom the servitude is to be enforced has actual, constructive, or inquiry notice of the servitude; and (3) the servitude touches and concerns the land. Here, the language of the contract expresses a clear intent for the restriction to run to the successors-in-interest, the successor purchases had inquiry notice of the servitude because it was in the recorded deed, and the restriction as to color choice of the building touched and concerned the land because it affected actions as a landowner. It can't be a real covenant because only monetary damages, and not injunctive relief, are available to enforce a real covenant. An equitable servitude is enforceable by an injunction.
|
|
|
What is the difference between wild and cultivated crops?
|
Wild are real property and pass with the land. Cultivated are personal property and belong to the cultivator.
|
|
|
Is consideration required for a valid deed?
|
No
|
|
|
does a deed need to be recorded to convey title?
|
no
|
|
|
If a bona fide purchases relies on a fraudulent deed, does that make the deed valid?
|
no
|
|
|
If you see "joint tenancy" on the bar exam, assume it's a __________________
|
JTWROS
|
|
|
If I have a tenancy in common and I die intestate, who gets my share?
|
My intestate heirs, not the other tenant.
|
|
|
The issue is whether it is lawful for a municipality to condemn private property for the purposes of building or widening a road to accommodate a new mall. (model answer)
|
Pursuant to the Fifth Amendment, made applicable to the States by the Due Process Clause of the Fourteenth Amendment, the State is authorized to exercise powers of eminent domain and take title to private property in instances where there is a legitimate state interest for which the property is being taken and the owner is paid just compensation. Here, the property is being taken for purposes of widening a public road in order to increase access to a private shopping mall. Although affording access to a shopping is a benefit to the developer of the shopping mall, the US Supreme Court has held that local governments may force property owners to sell their property and make way for private economic development when officials decide it would benefit the public, even if the property is not blighted and the new project’s success is not guaranteed.
Thus, arguably, the public benefits from enhanced access to the shopping mall, and therefore, the condemnation was ok. |
|
|
The issue is whether condemnation of real property renders title unmarketable, and any contracts for the sale of such property to be unenforceable.
|
Under New York law, the risk of property loss remains that of the seller until buyer takes possession of the property or title is transferred, whichever is first. Absent contrary language, there is an implied covenant of marketable title in every contract for sale of real property which promises title free from defects, regardless of the type of deed created. Condemnation of the property, in whole or in part, is such a defect since the Seller is no longer able to transfer the property as described under the contract. However, in such an instance, where the lack of marketability is through no fault of the seller, the buyer’s remedies are limited to recovery of the purchase money paid, expenses of the title examination and nominal damages.
|
|
|
A tenancy in common is a concurrent estate in which two or more people simultaneously own or possess real property. Under a tenancy in common, each tenant has an equal right to possess or use the property, and there is no right of survivorship. Each co-tenant holds an undivided interest with unrestricted rights to possess the whole property, and each tenant can devise or freely transfer his interest. If one tenant in common transfers his interest to a third party, the remaining tenants’ interests will not be affected. Each co-tenant has the right to possess all of the property and share in rents; however, co-tenants need not share profits. No ____________ duty exists between co-tenants and _________ is allowed.
|
fiduciary
ouster |
|
|
In New York, a tenant in common seeking to assert a successful claim of___________________ against a co-tenant is required to show more than mere possession; the co-tenant must also commit acts constituting ouster. _____________ ouster requires a possessing co-tenant to expressly communicate an intention to exclude or to deny the rights of co-tenants. Absent such express communication, a co-tenant may begin to claim an _____________ ouster if the co-tenant has held the property exclusively for 10 years. After 10 years of exclusive possession, a co-tenant may begin to hold the property adversely for another 10 years, thereby effectively creating a 20 year period required for one co-tenant to be able to claim adverse possession of a co-tenant’s interest in real property.
Like any claim based on adverse possession, the adverse possessor may tack on his predecessors’ time in possession of the property in order to satisfy the statutory period. |
adverse possession
Actual implied |
|
|
When a seller enters a land sale contract without title to the property sold and doesn't have title until 2 days after the scheduled closing date, can the buyer rescind?
|
An implied covenant of marketable title is part of a land sale contract unless the parties agree otherwise. However, the seller is not required to deliver marketable title until the closing. Here, the seller did not possess marketable title when it entered into the contract with the buyer. This defect was not a breach of contract until the closing date of May 1. On that date, and no sooner, the buyer could sue for any damages resulting from the breach. When time is not of the essence, however, strict adherence to the closing date set in the contract will not warrant rescission of the contract. Courts generally assume that time is not of the essence unless it is expressly stated in the contract, circumstances indicate this is the intention of the parties, or one party gives the other party reasonable notice that time is of the essence. When time is not of the essence, a party can sue for specific performance as long as the party is ready to perform within a reasonable time. 2 days is ok
|
|
|
When there's a life tenant and a remainderman, who has to pay the property taxes?
|
the life tenant does - The holder of a future interest who pays the taxes may seek reimbursement from the life tenant.
|
|
|
Father deeds a building to Son, records the deed, but doesn't deliver the deed to Son. Then father dies. But there's a valid will leaving the building to Daughter. When instrument governs and who gets the building?
|
If the deed was validly executed and recorded, it operated to transfer the apartment complex to the son. Although there was no physical delivery of the deed to the son, the landowner, by recording it removed his power to revoke it because it satisfied the delivery requirement. Acceptance of the deed by the son is presumed because it is beneficial to him. Acceptance is treated as occurring at the time of the transfer.
|
|
|
A shopkeeper purchased the building that houses her shop, incurring an obligation equal to the fair market value of the building, plus interest to the owner of the building. The obligation is evidenced by a promissory note and secured by a mortgage on the building. Several years later, the shopkeeper sold her business and the building to a third party, who assumed liability for the obligation. At the request of the third party and without the knowledge of the shopkeeper, the original owner of the building agreed to release the mortgage. Subsequently, the third party defaulted on the obligation. The current fair market value of the building exceeds the amount of the unpaid obligation. The original owner of the building sued the shopkeeper for the amount of the unpaid obligation.
|
Can the original owner recover this amount from the shopkeeper?
A. Yes, because the shopkeeper remains personally liable for the unpaid obligation. B. Yes, because the obligation was incurred in conjunction with a purchase money mortgage. C. No, because the release of the mortgage discharged the shopkeeper’s personal liability. D. No, because the third party assumed liability for the obligation. |
|
|
C
|
Although the shopkeeper/mortgagor is personally liable on the loan made by the original owner of the building (i.e., mortgagee), the building owner’s release of the related mortgage discharges that liability; thus, answer choice A is incorrect. Answer choice B is incorrect because the fact that the mortgage, which was given in conjunction with the obligation, was a purchase money mortgage is irrelevant to the issue of the personal liability of the mortgagor. Answer choice D is incorrect because, although the third party assumed liability for the loan obligation, this assumption did not relieve the shopkeeper of personal liability for the same obligation.
|
|
|
To pay for a home in the mountains, a retiree executed a mortgage with a seller. Due to an error on the part of the bank, the mortgage was never recorded. Years later, he executed a second mortgage on the home to make improvements, and that mortgage was immediately recorded. The mortgage was entered into with the same lender as the first mortgage. The bank was therefore notified of the first mortgage and after further investigation, recorded that mortgage a few weeks later. A year later, he executed a third mortgage on the home after he realized the full extent his retirement was having on his finances. After the retiree went nearly a year without making mortgage payments to the seller, a foreclosure action was initiated.
Which of the following is a correct statement about the first mortgage? |
A. It has priority over the second and third mortgages on the home.
B. It has priority over the third mortgage on the home only. C. It is the most junior mortgage. D. The recording was invalid because the retiree had already executed a second mortgage on the land. |
|
|
Answer choice A is correct. Generally, the money from a foreclosure sale is applied first to the costs associated with the sale, second to the balance and interest of the mortgage obligation being foreclosed, and finally to the mortgage obligations owed to all junior interest holders. However, a purchase money mortgage (i.e., a mortgage used to finance the purchase of the property) has priority over all other non-purchase money mortgages, even those recorded earlier. The seller’s purchase money mortgages have priority over those of third parties (and the priority of third party purchase money mortgages is determined chronologically).
|
Here, the first mortgage was being used to finance the purchase of the property, so it is a purchase money mortgage and has priority over all other non-purchase money mortgages, including the second, which was recorded earlier. Answer choice B is incorrect because it also has priority over the second mortgage on the home. Answer choice C is incorrect because it is actually the most senior mortgage. Answer choice D is incorrect because no such restriction exists.
|
|
|
When a mortgagor defaulted on her loan obligation, the bank forced a foreclosure sale. Among the claims on the sale proceeds were attorney’s fees associated with the foreclosure sale, the unpaid portion of the bank loan associated with the mortgage five years ago, and a debt owed by the mortgagor to a contractor who had recently performed work on the property. The original purchase-money mortgage had previously been paid off. All creditors filed claims in the appropriate court to receive the funds of the foreclosure in satisfaction of the debt. Within the state, none of the interested parties were afforded additional rights or liens on the property other than those regulating regular foreclosure actions.
What is the appropriate order of the application of the money from the foreclosure sale to these debtors? |
Attorney, bank, contractor (in that order)
The money from a foreclosure sale is applied first to the costs associated with the foreclosure sale itself (which would include attorney’s fees), second to the balance and interest of the mortgage obligation being foreclosed, and finally to the mortgage obligations owed to all junior interest holders. When multiple interests must be paid out of the proceeds, generally, the earliest mortgage placed on the property has priority over the other interests. |
|
|
A bank provided a loan to the purchaser of a parcel of undeveloped land. As security for the loan, the purchaser granted the bank a mortgage with respect to the parcel of land. Subsequently, the purchaser subdivided the land into three lots. The purchaser sold two of the three lots, each to a different buyer at a different time. Each buyer obtained a loan to finance the purchase from a different bank, neither of which was the bank that provided the original loan to the purchaser. Each buyer gave his lender a mortgage on his lot. The purchaser later defaulted on his bank loan. The bank filed an action to foreclose on all three parcels of land. The buyers of the two lots each filed an appropriate motion to protect their interests to the maximum extent possible.
|
Which of the following best describes the likely outcome of the bank’s attempt to proceed against the three lots?
A. The bank may proceed against any of the three lots in any order that it chooses. B. The bank must proceed first against the lot retained by the purchaser and then against the lots in the order in which the mortgages on them were created. C. The bank must proceed first against the lot retained by the purchaser and then against the lots in the inverse order in which the mortgages on them were created. D. The bank must proceed against all of the lots in a manner that recovers an equal amount from each. |
|
|
C
|
Answer choice C is correct. Generally, upon default of an obligation, a mortgagee may foreclose on any and all parcels of real property of the mortgagor that serve as security for the obligation. If there are junior security interests with respect to some of those parcels of real property, however, those junior interests may petition the court for protection of their interests under the doctrine of marshaling of assets. Under this doctrine, the holder of a senior security interest must first proceed against the property on which there are not any junior security interests, and then against the property on which the junior interest was more recently created, before proceeding against property on which the junior interest was more remotely created.
|
|
|
When homeowner maxes out 2 lines of credit and then fails to make payments on the second line of credit and that bank forecloses and gets less for the sale of the house than the amount borrowed on the 2nd line of credit (property values fell), which bank (one, both, neither?) can sue to recover from homeowner directly?
|
Both. Yes as to the first bank, because it may seek the homeowner's personal liability without first pursuing its mortgage rights; yes as to the second bank, because the homeowner is personally liable for the deficiency. In most states, the mortgagee may elect to pursue its rights against the mortgagor's personal obligation without first seeking to foreclose on the mortgaged property. Alternatively, where the mortgagee has foreclosed on the mortgage and the mortgage obligation has not been completely satisfied, the mortgagee may seek the deficiency from the mortgagor herself.
|
|
|
A widower who owned his residence in fee simple absolute contracted to sell it to a couple. The contract did not require either party to acquire or maintain casualty insurance on the premises, but the widower had a casualty insurance policy in force. About a month before the closing date, the widower, who had remained in the residence, died. About a week after his death, the residence was seriously damaged by a large tree falling on the residence due to a windstorm. As a result of the casualty, the widower's estate has received a payment from the insurer.
If the risk of loss is on the couple, who is entitled to the insurance payment in an action brought by the widower's estate to enforce the contract? |
A. The couple, because the doctrine of equitable conversion does not apply to residential transactions.
B. The couple, in the form of an offset against the purchase price. C. The widower's estate, because the widower did not have duty to insure the residence. D. The widower's estate, because the death of the widower terminated the contract. |
|
|
B
|
Because the risk of loss was on the buyers and the seller had casualty insurance, the seller is required to offset the amount of the insurance proceeds against the purchase price due from the buyers. Otherwise, the widower's estate would receive a windfall, being paid the full purchase price by the couple in addition to receiving the insurance payment. Answer choice A is incorrect because the doctrine of equitable conversion applies to all transactions, residential as well as commercial. Answer choice C is incorrect because, even though the seller was not contractually obligated to insure the residence, the seller, as noted with respect to answer choice B, is not entitled both retain the insurance payment and receive the full purchase price from the buyers. Answer choice D is incorrect because the death of a party to a contract, unlike the death of an offeror, does not generally terminate a contract.
|
|
|
Does the mailbox rule apply to an option to purchase property at a specified price>
|
No. The mailbox rule, which treats an acceptance as valid upon the mailing of the acceptance, does not apply to the exercise of an option.
|
|
|
A homeowner got three loans from three lenders (three mortgages) and defaulted on one. That lender foreclosed. In the foreclosure sale, one of the lenders was inadvertently not made a party to the foreclosure sale. What result?
|
For a foreclosure sale to eliminate a junior interest, the holder of the junior interest must be made a party to the foreclosure action. Because the bank was not made a party to the action, its mortgage continues.
|
|
|
An owner was diagnosed with a terminal illness by his doctor. Upon arriving home immediately after receiving the news, the owner wrote the following: "I, Owner, now transfer my property, Greenacre, to my son." The owner, who owned Greenacre in fee simple absolute, then signed and dated the document. The owner took this document to his neighbor and asked the neighbor to hold it until the owner died and then to give it to his son. The neighbor complied with the owner's directions. Upon the owner's death shortly thereafter, among the farmer's personal papers was a will. The owner had executed the will in compliance with the required formalities soon after his wife's death 11 years prior to his own. Under the terms of the will, Greenacre was devised to the owner's daughter. The daughter and son were the owner's only heirs. After learning of the document and the will, the son and daughter each claimed ownership of Greenacre outright.
|
n an appropriate action to determine ownership of Greenacre filed by the personal representative of the owner's estate after admission of the will to probate, who is entitled to ownership of Greenacre?
A. The daughter, because the will was executed before the document. B. The daughter, because the document was never delivered to nor accepted by the son prior to the owner's death. C. The son, because the document took effect before the will. D. The son, because the document was executed after the will. |
|
|
C
|
The document was a deed that created a vested remainder interest in Greenacre in the son with the owner retaining a life estate. The document was valid as a deed because it identified the grantor and grantee, contained a description of the property, and was signed by the grantor. In the deed, the owner expressed his intent that the transfer take place immediately. By giving the deed to a third party without reserving the right to reclaim the deed, the owner effected delivery of the deed. Finally, although the son did not physically accept the deed until after the owner's death, the son's acceptance is presumed at the moment that the owner delivered the deed to the neighbor since the transfer was beneficial to the son.
|
|
|
If a man and woman own property as JTWROS and then get married, does this convert the JTWROS to a tenancy by the entirety?
|
no
|
|
|
When does recording a deed constitute delivery of the deed and when doesn't it?
|
Look this up. I had one question where it did and one where it didn't. (when it was a gift and the donee did not know of the gift, but the deed was recorded and not delivered - is it because she didn't accept the gift because she didn't know about it/?
|
|
|
A man gives a house to his daughter without telling her there's a mortgage. He continues to pay on it until his death. Why is she required to continue paying? Because the bank had recorded the mortgage or because she received the property as a gift?
|
The bank, by promptly recording its mortgage, protected its interest in the land against subsequent transferees. This is the case regardless of the type of recording act in the applicable jurisdiction. Though the daughter had no personal knowledge of the mortgage, she had record notice of the bank’s mortgage. Accordingly, she did not assume personal liability for the mortgage, but she did take the property subject to the mortgage.
|
|
|
A man owned a parcel of land. In his will, the man specifically devised the parcel to his son and all of his personal property to his daughter. After a quarrel with his son, the man decided to sell the land. The man entered into a valid contract for a friend to purchase the parcel. Prior to closing, the man was killed in a car accident. The jurisdiction has an anti-ademption statute.
Can the friend compel the executor of the man’s estate to convey the land to the friend? A. No, the parcel should pass to the man’s son pursuant to the terms of the man’s will. B. No, the parcel should pass to the man’s daughter under the doctrine of equitable conversion. C. Yes, the friend can enforce the sale contract, and the proceeds belong to the man’s daughter. D. Yes, the friend can enforce the sale contract, and the proceeds belong to the man’s son. |
Answer choice D is correct. When the seller of real property pursuant to a contract dies before the conveyance of the property, the buyer can compel the executor of the seller’s estate to honor the contract and transfer the property to the buyer. At common law, the proceeds from the sale of the property under contract were treated as personal property that passed to the devisee of the seller-decedent’s personal property. The devise of the real property itself was treated as having been adeemed. In a jurisdiction that has adopted an anti-ademption statute, however, the devisee of the seller-decedent’s real property is entitled to the sale proceeds.
|
|
|
A widow executes a will in which she leaves her house to her son and the remainder of her estate to her daughter. The house is subject to a purchase money mortgage, the unpaid portion of which is nearly equal to the value of the residuary estate. The son demands that the personal representative of the estate use the residuary estate to pay off the mortgage. The will contains a general provision for the payment of all the testator's debts, but not a specific provision authorizing the payment of the outstanding balance of the mortgage.
Should the personal representative accede to the son's demand? A. Yes, because the son has a right to the exoneration of the mortgage. B. Yes, because the will contains a general provision for the payment of the testator's debts. C. No, because the doctrine of satisfaction does not apply to a specific devise. D. No, because the mortgage is a purchase-money mortgage. |
Answer choice A is correct. The devisee of real property is entitled under the doctrine of exoneration of liens to have any outstanding balance of a mortgage or other encumbrance on the property to be paid from the remaining assets of the testator's estate. Answer choice B is incorrect because a general provision that requires the payment of a testator's debts does not require the personal representative of the estate to pay off any mortgages or other encumbrances on real property of the testator. Answer choice C is incorrect because the doctrine of satisfaction refers to the receipt of a gift from the testator prior to death that satisfies a devise made by the testator in the testator's will. Answer choice D is incorrect because the doctrine of exoneration of liens applies to all encumbrances, not just purchase-money mortgages.
|
|
|
A seller entered into a written contract to sell a tract of land to an investor. The contract made no mention of the quality of title to be conveyed. Thereafter, the seller and the investor completed the sale, and the seller delivered a warranty deed to the investor. Soon thereafter, the value of the land increased dramatically. The investor entered into a written contract to sell the land to a buyer. The contract between the investor and the buyer expressly provided that the investor would convey a marketable title. The buyer's attorney discovered that the title to the land was not marketable, and had not been marketable when the original seller conveyed to the investor. The buyer refused to complete the sale. The investor sued the original seller on multiple counts. One count was for breach of the contract between the seller and the investor for damages resulting from the seller's failure to convey to the investor marketable title, resulting in the loss of the sale of the land to the
|
The investor is out of luck. On these facts, the contract merges with the deed and the implied warranty of marketable title is not longer effective unless it's written in the deed.
|
|
|
When does the owner of a low rise apt building have the right to sue a developer who wants to put in a tall building that would block any sunshine from eaching the windows of the apartments (and reduces the potential rent the owner can get)?
|
Only when the owner has an express negative easement.
|
|
|
A tenant rented a two-story building; she operated a store on the first floor of the building and lived on the second floor. During a winter weekend when the tenant was out of town and the store was closed, a thief broke into the building. The thief left the building exposed to the elements. As a consequence, water in the pipes froze and burst the pipes, resulting in structural damage to the building. When the tenant returned and discovered the problem, she promptly notified the landlord. The lease contains a provision obligating the tenant to maintain and repair the premises during the tenancy.
|
Which of the following would be the tenant’s best argument that she is not obligated to repair the damage to the building?
A. The criminal act of a third party caused the damage. B. The lease was residential. C. The structure of the building was damaged. D. The damage was due to natural causes. |
|
|
Answer choice B is correct. A residential lease generally cannot place the duty to make repairs on the tenant, and a provision to that effect is void. This would certainly be true if the need for the repairs did not arise from the tenant’s acts and the tenant promptly notified the landlord of the need for such repairs, as is the case here. Answer choice A is incorrect because, even if the damage is attributable to the criminal act of a third party, a provision in a commercial lease that the tenant is obligated to maintain and repair the premises may still impose the duty to repair on the tenant even in this instance.
|
Answer choice C is incorrect because, although it is possible that damage affecting the structure of the building may defeat a provision in a commercial lease obligating the tenant to repair the premises, because the duty to repair is less likely to be imposed in a residential lease, the tenant’s best argument is that she is a resident of the premises. Answer choice D is incorrect because, even if the damage to the premises is attributable to natural causes, if the provision is in a commercial lease, the duty to repair may still be placed on the tenant.
|
|
|
A limited partnership purchased land with a loan from a bank. Neither the individual partners nor the limited partnership was personally obligated to repay the loan. As security for the loan, the limited partnership granted the bank a mortgage on the land. Subsequently, the limited partnership sold the land to a buyer. The buyer did not enter into an agreement with respect to the limited partnership’s loan. After the sale, the limited partnership defaulted on the loan. The applicable jurisdiction follows the lien theory of mortgages.
Can the bank foreclose on the land owned by the buyer? A. No, because the buyer did not agree to assume the limited partnership’s loan. B. No, because no one was personally obligated to repay the loan. C. Yes, because the applicable jurisdiction follows the lien theory of mortgages. D. Yes, because the buyer took the land subject to the mortgage. |
Answer choice D is correct. Although the buyer did not assume the limited partnership’s loan, the buyer nevertheless took the land subject to the bank’s mortgage. Consequently, although the buyer was not personally liable to repay the loan, the bank has the right to enforce its security interest through foreclosure.
|
|
|
I hold an easement (road) and make repairs to the road, can I then sue the owner of the subservient tract to make him help pay?
|
Holder of an easement has the duty to repair. If the holder wants to seek participation for necessary repairs, she has to consult with the owner of the other tract and let him participate in making decisions about the repair or improvement. Can't sue retroactively to get reimbursed.
|
|
|
If I have a neighbor who is using my fishing pond for years and then I am selling my land and the guy who is buying my land sees the neighbor fishing in the pond before he buys and I tell the buyer that I gave the neighbor the right to use the pond, if the buyer buys the land, does the neighbor still get to use the pond?
|
Written easements that are not recorded against the servient estate are not enforceable against bona fide purchasers of the servient estate without notice, but they may be enforced against purchasers with notice. Notice does not have to be constructive (as it is when an easement is properly recorded); it can also be actual or inquiry notice. Here, the buyer had actual notice of the easement, because he actually saw the neighbor use the easement, and the seller told him about the easement.
|
|
|
An accountant made a gift of rental property to her son. Subsequently, the accountant, desperate for money, sold the rental property to a buyer. Prior to the sale, the accountant, who kept the books for the property, supplied the buyer with the records that indicated the rent received and the expense associated with the property. The accountant also fraudulently stated that her son was managing the property for her. The buyer did not directly question the son, who was unaware of the accountant's actions with regard to the property. The day after the sale, the buyer and son met by chance. The son learned of his mother's sale of the property and the buyer learned of the gift of the property to the son. The next day the buyer properly recorded her deed, but not before the son had properly recorded his donative deed. The accountant vanished with the sale proceeds. The recording act of the jurisdiction reads:
|
"No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law."
In an action to determine ownership of the rental property between the buyer and the son, will the buyer be successful? A. Yes, because the son received the property as a donee. B. Yes, because the buyer purchased the property without notice of the prior transfer. C. No, because the son recorded his deed first. D. No, because the buyer learned of the prior transfer before recording his deed. |
|
|
B
Because the jurisdiction follows a notice recording statute, the key is whether the buyer, at the time of the sale, had notice of the accountant's prior gift of the property. Because the donative deed was not recorded at the time of the sale, the buyer did not have constructive (i.e., record) notice of the prior transfer. The facts indicate that the buyer did not have actual notice of the son's true interest in the property and that the buyer did not have inquiry notice merely based on the son's involvement with the property. Consequently, the buyer lacked the necessary notice required for the son to enjoy the protection of the recording act. Answer choice A is incorrect because the son's donee status is irrelevant. Although the recording act does not protect a subsequent grantee who is a donee from an unrecorded deed, it does protect any grantee (including a donee), who records his deed prior to the subsequent conveyance by placing the subsequent grantee on notice of the prior |
conveyance. Here, it is the son's failure to record, not his donee status, which gives the buyer priority. Answer choice C is incorrect because, as noted above, the key is whether the buyer had notice at the time of purchase. Because the son did not record until after the buyer purchased the property, the buyer did not have notice at the time of purchase, and therefore will prevail. Answer choice D is incorrect because, again, the key is whether the buyer had notice at the time of purchase. The fact that the buyer learned of the prior transfer after the sale but prior to recording the deed does not defeat the buyer's priority.
|
|
|
If I execute a deed with my attorney and leave it in the attorney's office without telling anyone about it....
|
the deed was not delivered and isn't valid. (need physical delivery, constructive delivery or recording)
|
|
|
what is the majority rule regarding intent of an adverse possessor?
|
Most jurisdictions do not consider the intent of the adverse possessor, and thus do not require that the possessor purposefully seek to defeat the owner’s claim. Moreover, even those jurisdictions that consider intent will grant title to a possessor who believed he owned the property.
|
|
|
SAMPLE ANSWER
1. The issue is whether a subsequent purchaser is entitled to enforce an easement expressly granted to a prior owner of real property. An easement is the right to use property that belongs to another and can arise expressly or by implication, necessity, prescription, or estoppel. The land benefitted by an easement is the dominant estate and the land burdened by an easement is the servient estate. Absent clear evidence to the contrary, easements are presumed to be appurtenant (attached to the land), rather than in gross (benefit a particular individual). An easement is extinguished if the dominant and servient estates come to be owned by the same person. Here, the 1990 deeds conveying DomAcre and ServAcre granted an express easement allowing the owner of DomAcre to cross ServAcre in order to launch a boat on a pond. The easement was conveyed to Cal when Cal purchased DomAcre in 1995. |
When DomAcre and ServAcre came under common ownership one year later (when Cal purchased ServAcre), the express easement contained in the deed to DomAcre “merged” and was extinguished. Accordingly, when Cal sold DomAcre to Dan in 2001, the conveyance did not include the easement. Therefore, Dan cannot enforce the express easement to launch a boat on the pond.
Even though Dan did not receive an express easement when he purchased DomAcre, he may still acquire an easement by prescription if he satisfies the statutory requirements. An easement by prescription can be obtained if there is actual, continuous, open and hostile use for New York’s statutory period of ten years. Here, although Dan’s use in crossing ServAcre to launch a boat was actual, continuous, open, and hostile, the use was for only seven years (from 2001 to 2008). Because the duration of the use is less than the ten-year statutory period, Dan could not have acquired an easement by prescription and thus cannot enforce |
|
|
2. The issue is whether Buyer may properly cancel the contract for a purchase of real property on the ground that title is unmarketable due to an easement on the property.
Absent express language in the contract to the contrary, a contract for the sale of real property contains an implied covenant of marketable title, and the seller is required to deliver marketable title at closing. Defects in the title that render the title unmarketable include encumbrances such as easements. Here, the contract was silent as to the quality of title, and, therefore, the contract is subject to an implied covenant of marketable title. However, because Ed is not required to deliver marketable title until the closing, Ed still has time to investigate Dan’s claim to the easement and determine whether his title is marketable. Therefore, Buyer was premature in canceling the contract before the closing. |
3. The issue is whether Broker may successfully enforce his oral agreement to be paid a commission by Ed when the Buyer cancels the contract because title is unmarketable.
Under New York law, a contract for a commission for negotiating a real estate contract is generally required to be in writing, signed by a party to be charged. However, a contract with a licensed real estate brokers is an express exception to the rule; it remains enforceable even without a writing. Therefore, here, the oral agreement with Broker, who is a licensed real estate broker, is enforceable. Absent an agreement to the contrary, a real estate broker is obligated to a seller to produce a buyer that is ready, willing, and able to purchase the real property. Here, Broker was successful in identifying a buyer who is ready, willing, and able to purchase the property, as evidenced by Buyer entering into the contract with Ed. (continued) |
|
|
The fact that Ed may subsequently be unable to complete the terms of the contract due to an encumbrance on the property that renders title unmarketable does not preclude Broker from being eligible to enforce his right to collect a commission.
|
done
|
|
|
By her validly executed will, a testator devised a certain tract of land to her son for his life with remainder to such of his children as should be living at his death, "Provided, however, that no such child of [the son] shall mortgage or sell, or attempt to mortgage or sell his or her interest in the property prior to attaining 25 years of age: and, if any such child of [the son] shall violate this provision, then upon such violation his or her interest shall pass to and become the property of the remaining children of [the son] then living, share and share alike." The testator's will included an identical provision for each of her four other children concerning four other tracts of land. The residuary clause of the will gave the residuary estate to the testator's five children equally. The testator died and was survived by the five children named in her will and by eleven grandchildren. Several additional grandchildren have since been born. In an action for a declaration of rights,
|
Assuming that the action was properly brought with all necessary parties and with a guardian ad litem appointed to represent the interests of unborn and infant grandchildren, the decision should be that
A. the attempted gifts to grandchildren are void under the Rule Against Perpetuities. B. the attempted gifts to grandchildren are void as unlawful restraints on alienation. C. the provisions concerning grandchildren are valid and will be upheld according to their terms. D. even if the provisions against sale or mortgage by the grandchildren are void, the remainders to grandchildren are otherwise valid and will be given effect. |
|
|
Answer choice D is correct. The remainders held by the grandchildren are a fee simple subject to an executory interest. The executory interest is held by the grandchildren that do not attempt to mortgage or sell. This condition is void under the Rule Against Perpetuities (or rule against restraints on alienation). Therefore the executory interest is struck, leaving the grandchildren with their remainder as a fee simple absolute.
|
Answer choice A is incorrect, because it does not address the valid remainders to the grandchildren, and is not as good of an answer as D. Answer choice B is incorrect, because while the restraint might be invalid, there is still potential for the remainder to be given to the grandchildren, and therefore D is the better answer. Answer choice C is incorrect because the attempted gifts to the grandchildren could be void under the Rule Against Perpetuities or as unlawful restraints on alienation.
|
|
|
An owner owned and occupied Blackacre, which was a tract of land improved with a one-family house. His friend orally offered the owner $50,000 for Blackacre, the fair market value, and the owner accepted. Because they were friends, they saw no need for attorneys or written contracts and shook hands on the deal. The friend paid the owner $5,000 down in cash and agreed to pay the balance of $45,000 at an agreed closing time and place. Before the closing, the friend inherited another home and asked the owner to return his $5,000. The owner refused, and, at the time set for the closing, the owner tendered a good deed to the friend and declared his intention to vacate Blackacre the next day. The owner demanded that the friend complete the purchase. The friend refused. The fair market value of Blackacre has remained $50,000.
|
In an appropriate action brought by the owner against the friend for specific performance, if the owner loses, the most likely reason will be that
A. the agreement was oral. B. keeping the $5,000 is the owner's exclusive remedy. C. the friend had a valid reason for not closing. D. the owner remained in possession on the day set for the closing. |
|
|
Answer choice A is correct. For the owner to lose, the agreement between the two must have been invalid. Answer choice A is the only answer that concludes the agreement was invalid by virtue of it not satisfying the Statute of Frauds requirement. Answer choice B is incorrect because, even if the agreement is valid there is nothing in the agreement that limited damages to a $5,000 remedy.
|
Answer choice C is incorrect because, if the agreement was valid, the friend's inheritance would not be a sufficiently good reason to breach. Answer choice D is incorrect because the owner would not be required to vacate the property to perfect the tender to the friend.
|
|
|
Although an instrument is recorded, it may not be recorded in such a way as to give notice to subsequent purchasers (i.e., the deed may not be in the "chain of title"). A deed not within the chain of title is a "wild deed." Even though it is a senior deed, the deed from the man to the first buyer is wild
|
Didn't know this, so I put it here.
|
|
|
A testator owned Maypond in fee simple. By her will, she devised as follows: "Maypond to such of my grandchildren who shall reach the age of 21; and by this provision I intend to include all grandchildren whenever born." At the time of her death, the testator had two children and five grandchildren.
Which of the following additions to or changes in the facts of the preceding question would produce a violation of the common-law Rule Against Perpetuities? A. A posthumous child was born to the testator. B. The testator's will expressed the intention to include all afterborn grandchildren in the gift. C. The instrument was an inter vivos conveyance rather than a will. D. The testator had no grandchildren living at the time of her death. |
Answer choice C is correct. If the instrument was an inter vivos conveyance, the perpetuities period will begin to run the date the instrument is created. After that date, the testator could have another child that would not be a life in being. Consequently, the testator could have a grandchild born more than 21 years after the death of a life in being. Answer choice A is incorrect because that child would still be a life in being. Answer choice B is incorrect because the facts already state that the testator meant to include "all grandchildren whenever born." Answer choice D is incorrect because the testator's children are the lives in being. Even if the testator never has grandchildren, the gift will fail within 21 years of a life in being. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.
|
|
|
For valuable consideration the owner of Riveracre signed and gave to a friend a duly executed instrument that provided as follows: "The grantor may or may not sell Riveracre during her lifetime, but at her death, or if she earlier decides to sell, the property will be offered to Friend at $500 per acre. Friend shall exercise this right, if at all, within sixty days of receipt of said offer to sell." The friend recorded the instrument. The instrument was not valid as a will.
Is the friend's right under the instrument valid? A. Yes, because the instrument is recorded. B. Yes, because the friend's right to purchase will vest or fail within the period prescribed by the Rule Against Perpetuities. C. No, because the friend's right to purchase is a restraint on the owner's power to make a testamentary disposition. D. No, because the friend's right to purchase is an unreasonable restraint on alienation. |
Answer choice B is correct. The friend's interest does not violate the Rule Against perpetuities. Answer choice A is incorrect because it is a misstatement of law--recording an instrument does not alone make it valid. Answer choices C and D are both incorrect because the owner imposed the restraint on herself. Rules against restraint on alienation are to prevent imposing restraints on others.
|
|
|
The owner of Greenacre, a large tract of land, entered into a binding written contract with a buyer for the sale and purchase of Greenacre for $125,000. The contract required the seller to convey marketable record title. The buyer decided to protect his interest and promptly and properly recorded the contract. Thereafter, but before the date scheduled for the closing, an injured man obtained and properly filed a final judgment against the seller in the amount of $1 million in a personal injury suit. A statute in the jurisdiction provides: "Any judgment properly filed shall, for ten years from filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered." The recording act of the jurisdiction authorizes recording of contracts and also provides: "No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law." There are no oth
|
The seller brought an appropriate action against the buyer for specific performance of the contract and joined the injured man as a party.
In this action, the judgment should be for A. the seller, because in equity a purchaser takes free of judgment liens. B. the seller, because the contract had been recorded. C. the buyer, because the seller cannot benefit from the buyer's action in recording the contract. D. the buyer, because the statute creating judgment liens takes precedence over the recording act. |
|
|
Answer choice B is correct. When the buyer recorded the contract, he put all subsequent purchasers, including the injured man, on notice of his equitable title. Because the injured man is not a bona fide purchaser, and thus not protected by the recording statute, he cannot burden the title. Answer choice A is incorrect because the fact that an equitable remedy is sought is not the reason that title to Greenacre is not burdened by the injured man's claim.
|
Purchasers do not take free from all judgment liens. Answer choice C is an incorrect statement of law, as the issue would not be decided on this basis. Answer choice D incorrectly suggests that the statutes are inconsistent with each other such that one would take priority over the other. Instead, the recording statute merely states when a subsequent judgment lien attaches to property.
|
|
|
Several years ago, a buyer purchased Goldacre, financing a large part of the purchase price by a loan from a bank that was secured by a mortgage. The buyer made the installment payments on the mortgage regularly until last year. Then the buyer persuaded a purchaser to buy Goldacre, subject to the mortgage to the bank. They expressly agreed that the purchaser would not assume and agree to pay the buyer's debt to the bank. The buyer's mortgage to the bank contained a due-on-sale clause stating, "If Buyer-Mortgagor transfers his/her interest without the written consent of Bank-Mortgagee first obtained, then at Bank-Mortgagee's option the entire principal balance of the debt secured by this Mortgage shall become immediately due and payable." However, without seeking the bank's consent, the buyer conveyed Goldacre to the purchaser, the deed stating in pertinent part " . . . , subject to a mortgage to the bank [giving details and recording data]." The purchaser took possession of Goldacre an
|
In this action, judgment should be for
A. the purchaser, because she did not assume and agree to pay the buyer's mortgage debt. B. the purchaser, because she is not in privity of estate with the bank. C. the bank, because the buyer's deed to the purchaser violated the due-on-sale clause. D. the bank, because the purchaser is in privity of estate with the bank. Incorrect: Answer choice A is correct. Unless otherwise agreed, the original mortgagor remains personally liable for a mortgage even after it is conveyed to a third party subject to a mortgage. In this case, the buyer conveyed to the purchaser and specifically agreed not to have the purchaser assume the mortgage, so answer choice A is correct. |
|
|
A paralegal and a dentist own adjoining lots in the central portion of a city. Each of their lots had an office building. The dentist decided to raze the existing building on her lot and to erect a building of greater height. The dentist has received all governmental approvals required to pursue her project. There is no applicable statute or ordinance (other than those dealing with various approvals for zoning, building, etc.). After the dentist had torn down the existing building, she proceeded to excavate deeper. The dentist used shoring that met all local, state, and federal safety regulations, and the shoring was placed in accordance with those standards. The paralegal notified the dentist that cracks were developing in the building situated on the paralegal's lot. The dentist took the view that any subsidence suffered by the paralegal was due to the weight of the paralegal's building, and correctly asserted that none would have occurred had the paralegal's soil been in its natural
|
Which of the following is the best comment concerning the paralegal's action to recover damages from the dentist?
A. The dentist is liable, because she removed necessary support for the paralegal's lot. B. The dentist cannot be held liable simply upon proof that support was removed, but may be held liable if negligence is proved. C. Once land is improved with a building, the owner cannot invoke the common-law right of lateral support. D. The dentist's only obligation was to satisfy all local, state, and federal safety regulations. Incorrect: Answer choice B is correct. An adjoining landowner cannot alter the land so as to cause the lateral support to be weakened, but is only strictly liable for damage done to land in its natural state. Since the facts indicate the unnatural state of the paralegal's soil contributed to the damage, the paralegal must show negligence to recover from the dentist. |
|
|
Three years ago, a seller conveyed Blackacre to a buyer for $50,000 by a deed that provided: "By accepting this deed, the buyer covenants for herself, her heirs and assigns, that the premises herein conveyed shall be used solely for residential purposes and, if the premises are used for nonresidential purposes, the seller, his heirs and assigns, shall have the right to repurchase the premises for the sum of one thousand dollars ($1,000)." In order to pay the $50,000 purchase price for Blackacre, the buyer obtained a $35,000 mortgage loan from the bank. The seller had full knowledge of the mortgage transaction. The deed and mortgage were promptly and properly recorded in proper sequence. The mortgage, however, made no reference to the quoted language in the deed. Two years ago, the buyer converted her use of Blackacre from residential to commercial without the knowledge or consent of the owner or of the bank. The buyer's commercial venture failed, and the buyer defaulted on her mortgage
|
If the court rules against the seller, it will be because
A. the provision quoted from the deed violates the Rule Against Perpetuities. B. the bank had no actual knowledge of, and did not consent to, the violation of the covenant. C. the rights reserved by the seller were subordinated, by necessary implication, to the rights of the bank as the lender of the purchase money. D. the consideration of $1,000 was inadequate. Incorrect: Answer choice A is correct. It is possible that the seller's interest could vest outside the time frame required by the Rule Against Perpetuities (a life in being plus 21 years), because it may be hundreds of years before the premises are used for nonresidential purposes. Answer choice B is incorrect because consent is irrelevant to whether the covenant was violated. Answer choice C is incorrect because the seller's interest could not be subordinated by the bank. Answer choice D is incorrect because no consideration at all is required. |
|
|
Note: a deed is not delivered if there is no intent. If I execute a valid deed and send it to Emma saying, "I want you to have the house when I die, so don't record this deed until I die," then she tries to record the deed and sell the house, the fact that I didn't intend her to have it means there was no __________.
|
delivery
|
|
|
A father and son acquired as joint tenants a forty-acre parcel of land called Blackacre. They contributed equally to the purchase price. Several years later, the father proposed that they build an office building on Blackacre. The son rejected the proposal but orally agreed with the father that the father could go ahead on his own on the northerly half of Blackacre and the son could do what he wished with the southerly half of Blackacre. The father proceeded to build an office building on, and generally developed and improved, the northerly twenty acres of Blackacre. The son orally permitted the southerly twenty acres of Blackacre to be used by a local foundation as a bird sanctuary. The father died, leaving his entire estate to his daughter. The will named the son as executor of his will, but he refused to serve.
|
In an appropriate action to determine the respective interests of the son and the daughter in Blackacre, if the son is adjudged to be the owner of all of Blackacre, the most likely reason for the judgment will be that
A. the Statute of Frauds prevents the proof of the son's oral agreement. B. the father could not unilaterally sever the joint tenancy. C. the son's nomination as executor of the father's estate does not prevent him from asserting his claim against the daughter. D. the record title of the joint tenancy in Blackacre can be changed only by a duly recorded instrument. Incorrect: Answer choice A is correct. Property can be partitioned voluntarily when the cotenants agree in writing on the division of land. Because the agreement was oral, the agreement cannot be proven. Answer choice D is incorrect because recording the agreement of division is not a requirement for a valid partition. |
|
|
A journalist owns a condo complex and someone builds a bigger building blocking the sun and making the condos less valuable. What result?
|
A negative easement can restrict use of land as it relates to light and air, but such an easement cannot be implied; it must be expressly written by the grantor. Note that the shadow does not rise to the level of substantial interference with the journalist's property that would result in a valid private nuisance claim. Without a valid negative easement, the journalist has no cause of action.
|
|
|
If I have a life estate in vacant land and Emma has the remainder interest in fee simple, can she sue me to make me pay the taxes so the land isn't lost? |
Life tenants have the obligation to pay taxes, insurance, and interest on the mortgage, but only to the extent the property can produce income.
|
|
|
Here, there was an intent to create a servitude because the deeds from Grant to the purchasers of all 100 lots in Black Acres (including the deed to Mary and Fred) contained a restrictive covenant permitting only one single-family house to be built on each lot. The deeds contained a promise to refrain from doing certain activities that touch and concern the land (e.g., building two single-family houses or building a two-family house). Therefore, whether Phil can stop Jeff from modifying the house depends on whether Jeff had notice of the servitude. The deed from Mary and Fred to Jeff did not contain the restriction and Jeff had no knowledge of the restriction. However, the restriction was in the deed from Grant to Mary and Jeff and so it appears in Jeff’s chain of title. Therefore, Jeff had record notice of the restriction and Phil will likely succeed in preventing Jeff from modifying the house. The issue is whether a tenant holding over after a lease expires remains liable for amounts due pursuant to the terms of the expired lease. A tenancy at sufferance, or a holdover tenancy, is the period of time after the expiration of a lease during which the tenant remains on the premises. During a tenancy at sufferance, the tenant is bound by the terms of the lease that existed before expiration, including payment of rent. In New York, unless agreed to otherwise, the acceptance of rent after the expiration of the lease creates an implied month to month tenancy, pursuant to the same terms as were recited in the prior lease. |
Here, pursuant to the expired lease, Tenant was obligated to pay rent, along with 12% of the real property taxes assessed upon Richacre each year. Consequently, as part of a month to month tenancy—subject to the same terms as existed in the prior lease—Tenant would be obligated to pay the base rent, along with 1/12 of the taxes he had been previously responsible for, or 1% of the taxes along with base rent for each month Tenant remained. |
|
|
This is great! Learn it! (3) Enforcement of a restrictive covenant The third issue is whether Phil can successfully sue to stop Jeff from converting Jeff’s house to a two-family residence. A promise in writing to do or refrain from doing something related to the use of land may be enforced as a real covenant or an equitable servitude, depending on the remedy that is sought. If money damages are sought, then the requirements for real covenants must be met; if an injunction is sought, then the requirements for equitable servitudes must be met. To enforce an equitable servitude, there must be an intent for the restriction to be enforceable by and against successors-in-interest, the person against whom the servitude is to be enforced must have actual, inquiry, or record notice of the servitude, and the servitude must touch and concern the land. |
Here, there was an intent to create a servitude because the deeds from Grant to the purchasers of all 100 lots in Black Acres (including the deed to Mary and Fred) contained a restrictive covenant permitting only one single-family house to be built on each lot. The deeds contained a promise to refrain from doing certain activities that touch and concern the land (e.g., building two single-family houses or building a two-family house). Therefore, whether Phil can stop Jeff from modifying the house depends on whether Jeff had notice of the servitude. The deed from Mary and Fred to Jeff did not contain the restriction and Jeff had no knowledge of the restriction. However, the restriction was in the deed from Grant to Mary and Jeff and so it appears in Jeff’s chain of title. Therefore, Jeff had record notice of the restriction and Phil will likely succeed in preventing Jeff from modifying the house. |
