Real Property Lecture Review

64 Question-and-Answer flashcards covering estates, concurrent ownership, landlord-tenant law, servitudes, easements, fixtures, adverse possession, conveyancing, recording, mortgages, and zoning/conflict-of-laws topics from the lecture notes.

What is a Fee Simple Absolute?

A conveyance of absolute ownership of real property that is freely devisable, descendible, and alienable.

What is a Fee Tail?

A conveyance of real property to a person and their heirs; largely abolished in most states.

What is a Fee Simple Defeasible and how is it created?

A present estate subject to stated conditions, created by the grantor’s express conditional language that causes termination upon the occurrence or non-occurrence of an event.

What are the three types of Fee Simple Defeasibles?

Fee Simple Subject to a Condition Subsequent, Fee Simple Determinable (both reserve a future interest in the grantor), and Fee Simple Subject to Executory Interest (future interest in a third party).

What is a Life Estate?

A conveyance that gives a named life-tenant possession for life, after which the property passes to the remainderman.

Distinguish between Possibility of Reverter and Right of Re-entry.

Possibility of Reverter automatically returns possession to the grantor when a condition occurs; Right of Re-entry allows the grantor to re-enter and retake on condition breach.

What is the difference between a vested remainder and a contingent remainder?

A vested remainder is given to an ascertainable person with no conditions; a contingent remainder is subject to a condition precedent or is given to an unascertained person.

What is Tenancy in Common?

The default concurrent estate where each co-tenant has an undivided interest and right to possess, absent express survivorship language or creation of a tenancy by the entirety.

What four unities are required to create a joint tenancy?

Unities of time, title, interest, and possession, plus clear express intent to create the joint tenancy.

When can an out-of-possession co-tenant collect rent from a co-tenant in exclusive possession?

Only when there is an agreement to pay or the out-of-possession co-tenant was wrongfully ousted.

When is a co-tenant entitled to reimbursement for improvements made to the property?

Only if a separate agreement exists; otherwise the improving tenant alone receives any appreciation in value.

What are the three types of leaseholds?

Tenancy for Years, Periodic Tenancy, and Tenancy at Will.

What may a landlord do if a tenant remains on the property and does not pay rent?

Initiate eviction proceedings or allow the tenant to stay and sue for damages.

What options does a landlord have when a tenant holds over?

Evict the tenant or hold the tenant over, creating an implied month-to-month tenancy.

What is the warranty of habitability and what remedies does a tenant have upon breach?

An implied warranty in every residential lease requiring a habitable dwelling; tenant may move out, withhold/reduce rent, repair and deduct, or stay and sue for damages.

When does constructive eviction occur?

(1) Landlord breaches a duty; (2) breach substantially deprives tenant of use and enjoyment; (3) tenant gives notice; (4) landlord fails to cure within a reasonable time; (5) tenant vacates.

Does a landlord have a duty to mitigate damages?

Modern rule: most states require reasonable efforts to re-let; the landlord may still recover the rent shortfall.

What is an assignment of a lease and who is liable to the landlord after an assignment?

Transfer of all remaining lease interest; assignee is liable on covenants running with the land (privity of estate) and assignor remains liable on the contract (privity of contract).

Under a silent consent clause, what approaches do courts use to determine a landlord's ability to withhold consent to an assignment?

Most states allow withholding consent for any reason; some require a commercially reasonable basis (e.g., creditworthiness).

What is a sublease and is a sublessee liable to the landlord for rent?

Transfer of only part of the tenant’s remaining interest; sublessee is not liable to the landlord (no privity of estate), while sublessor remains liable.

What is a surrender in the context of lease termination?

An agreed early termination between landlord and tenant; if accepted, rent obligation ends, if refused and tenant leaves, tenant is deemed to have abandoned and owes damages.

What is a real covenant?

A non-possessory interest imposing an obligation to do or refrain from doing something concerning land, enforceable by damages.

What requirements must be met to enforce the benefit of a real covenant?

Writing satisfying Statute of Frauds, intent to run, vertical privity, and the covenant must touch and concern the land.

What additional requirements must be met to enforce the burden of a real covenant?

All benefit requirements plus horizontal privity between original parties and notice to the new owner.

What is an equitable servitude?

A covenant enforceable in equity against one with notice; remedy is injunctive relief.

What requirements must be met to enforce the benefit of an equitable servitude?

Writing, intent, and touch-and-concern.

What additional requirement must be met to enforce the burden of an equitable servitude?

The burdened party must have actual, constructive, or inquiry notice.

What is the common scheme or plan doctrine?

Courts imply reciprocal covenants in a subdivision when the developer had a common plan and the buyer had notice of the restrictions.

What is a common interest community (CIC)?

A development where individually owned lots are burdened by a servitude requiring contributions for common areas or payments to an association (e.g., condos, co-ops, HOAs).

Distinguish between an easement in gross and an easement appurtenant.

Easement in gross benefits a particular holder and does not attach to land; easement appurtenant benefits any owner of the dominant parcel and runs with the land.

What is an easement by grant?

An express written conveyance signed by the grantor, identifying land and parties, and showing intent to create the easement.

What is an easement by prescription and what elements must be proven?

Created by use that is open and notorious, continuous, hostile, and for the statutory period.

What is an easement by implication?

Arises when a common owner divides land, there was a pre-existing apparent, continuous use that is reasonably necessary for enjoyment of the dominant parcel.

What is an easement by necessity?

Created when land is subdivided and access is essential because the parcel is landlocked with no other reasonable ingress or egress.

List the ways an easement can be terminated.

Estoppel, end of necessity, involuntary destruction, condemnation, written release, abandonment, merger, or prescription.

What is a license in property law?

A privilege to use another’s land; revocable at will unless estoppel applies after reasonable reliance.

Under the common law, what is a fixture?

Personal property attached to land or a building and treated as an irremovable part of the real property.

What factors are considered in determining whether an item is a fixture?

Nature of the item, manner of attachment, damage if removed, and extent of adaptation to the property.

What are the elements of adverse possession?

Possession that is continuous for the statutory period, open and notorious, exclusive, actual, and hostile under a claim of right.

What is constructive adverse possession?

When possession of part of land under color of title is deemed possession of the entire parcel described in the document.

What are the elements of a valid land sale contract?

Writing, property description, identification of parties, purchase price, and signature of the party to be charged.

What is marketable title?

Title free from reasonable doubt or adverse claims; substantial defects such as liens or encumbrances render title unmarketable.

What is the equitable conversion doctrine?

Upon contract, buyer holds equitable title and seller retains legal title in trust; buyer’s interest is real property, seller’s is personal property.

What is the effect of a “time is of the essence” clause in a land sale contract?

Buyer must perform on the closing date; failure is a material breach allowing seller to keep the down payment as liquidated damages.

When is specific performance an appropriate remedy in real property transactions?

Always, because real property is unique and money damages are inadequate.

What is a home builder’s implied warranty?

Protects purchasers of new homes against latent defects and warrants the home is safe and habitable at sale.

What are the requirements of a valid deed?

Writing, grantor’s signature, identification of grantor and grantee, property description, and present intent to convey.

What are the six covenants of a general warranty deed?

Present covenants: seisin, right to convey, against encumbrances; future covenants: warranty, quiet enjoyment, further assurances.

What is a special warranty deed?

Warrants only that the grantor has not breached title covenants during his ownership period.

What is a quitclaim deed?

Conveys whatever interest the grantor has without any covenants; buyer takes “as is” with no recourse.

What is the effect of failing to record a deed?

The deed is valid between the parties but is a “wild” deed outside the chain of title and gives no constructive notice to subsequent purchasers.

What are the three types of recording statutes?

Notice, race, and race-notice statutes.

What constitutes a bona fide purchaser (BFP)?

One who pays valuable consideration and takes without notice of a prior conveyance; donees and devisees do not qualify, but the shelter rule extends BFP status to their transferees.

Who must sign a deed for it to be valid?

The grantor (or authorized agent); the grantee need not sign.

What is required for a valid mortgage?

Writing, signature of the party to be charged, and reasonable identification of the parties and property.

What is a purchase money mortgage?

A mortgage given to secure a loan used to purchase the property, typically with the seller or lender as mortgagee.

Over whom does the holder of a purchase money mortgage have priority?

All prior claims and mortgages against the mortgagor and all subsequent claims unless a recording statute provides otherwise.

What is a future advance mortgage?

A mortgage securing not only initial but also future loan advances under the original loan agreement.

What parties are involved in a deed of trust?

Borrower, lender, and a neutral trustee who holds title until the loan is repaid.

Distinguish between express and implied mortgage assumption.

Express assumption: grantee expressly agrees to pay the mortgage. Implied assumption: grantee pays only equity and continues the mortgage payments without an express agreement.

What is a variance and when may it be granted?

An exception to a zoning ordinance (use or area) granted when strict application causes hardship and granting will not harm public welfare.

What is the situs rule for real property actions?

The law of the state where the real property is located generally governs actions concerning that property.

What are the three real property conflict-of-laws tests?

(1) First Restatement situs rule, (2) Second Restatement most significant relationship (situs presumed), (3) Interest-analysis test, applying situs unless another state has a greater interest.

When real property is incidental to a contract, which conflict-of-laws principles apply?

The conflict-of-laws rules applicable to contracts, rather than the real property rules.