Real Property Essay Workshop – Key Concepts

Question-and-answer flashcards covering present estates, concurrent estates, landlord-tenant law, adverse possession, deeds, recording acts, easements, covenants, and mortgages from the Real Property Essay Workshop.

What is the most complete form of ownership in real property?

A fee simple absolute.

What durational language signals a fee simple determinable?

Words such as “so long as,” “until,” “while,” or “during.”

What future interest follows a fee simple determinable?

A possibility of reverter held by the grantor.

How does a fee simple subject to condition subsequent end?

The grantor must affirmatively exercise a right of re-entry after the condition occurs; title does not end automatically.

What conditional language typically indicates a fee simple subject to condition subsequent?

Phrases like “but if,” “provided that,” and references to a “right to re-enter.”

When does a life estate terminate?

Upon the end of the measuring life.

When will a court strike a restraint on alienation?

If the restraint is unreasonable.

If conveyance language is ambiguous, which two defeasible estates should you discuss?

Fee simple determinable and fee simple subject to condition subsequent.

Which concurrent estate has no right of survivorship and is freely devisable?

A tenancy in common.

What four unities are required to create a joint tenancy?

Possession, interest, time, and title.

What happens to a joint tenant’s interest at death?

It passes automatically to the surviving joint tenants by right of survivorship.

How can a joint tenancy be severed?

By any act that destroys a unity—e.g., conveying the interest or, in title-theory states, granting a mortgage.

Under lien theory, does a mortgage by one joint tenant sever the joint tenancy?

No—because the mortgage is viewed only as a lien.

Under title theory, what effect does a mortgage by one joint tenant have?

It transfers title and severs the joint tenancy.

What is an ouster in cotenancy law?

When one cotenant wrongfully excludes another from possession.

After an ouster, what remedy is available to the ousted cotenant?

They may sue to regain access and can potentially claim adverse possession if all elements are met.

Do cotenants owe rent to each other for personal use of the property?

No—unless an ouster has occurred.

Must cotenants share rents received from third parties?

Yes—they must account and distribute the rents proportionally.

Can a cotenant demand contribution for necessary repairs?

Generally only if the other cotenants had notice, often in an accounting or partition action.

When may a cotenant seek reimbursement for taxes or mortgage payments?

If they paid more than their pro-rata share of those operating expenses.

Which leasehold estate is created for a fixed period of time by express agreement?

A tenancy for years.

How is a periodic tenancy characterized?

It automatically renews for successive periods (e.g., month-to-month) until proper notice is given.

What distinguishes a tenancy at will?

It has no fixed duration and can be ended at any time by either party.

Define a tenancy at sufferance.

It arises when a tenant wrongfully holds over after the lease term and lasts until eviction or conversion to a periodic tenancy.

List the tenant’s basic duties.

Pay rent, avoid waste, and make reasonable repairs.

What doctrine lets a tenant terminate the lease if the landlord substantially interferes with possession?

Constructive eviction.

Give two remedies a tenant has when the implied warranty of habitability is breached.

Terminate the lease and move out, or remain and withhold/deduct rent (or repair-and-deduct).

Does the implied warranty of habitability apply to commercial leases?

No—only to residential leases.

What are a landlord’s two primary duties under residential leases?

Duty to repair and duty to maintain habitability.

Under what privity is an assignee liable to the landlord for covenants that run with the land?

Privity of estate.

Is a subtenant liable to the landlord for rent?

No—there is no privity of contract or estate with the landlord.

If a lease bars assignments but not subleases, may the tenant sublease?

Yes—the prohibition must be explicit for each transfer type.

What is the effect of a landlord accepting rent from an unauthorized assignee or subtenant?

The landlord waives the right to enforce the prohibition clause.

When a lease allows assignment only with consent, on what grounds may the landlord withhold consent?

Only on commercially reasonable grounds.

Does a landlord have a duty to mitigate damages if a tenant abandons?

Yes—the landlord must make reasonable efforts to re-rent.

Name the five elements of adverse possession.

Continuous, actual, open and notorious, hostile, and exclusive possession.

What is tacking in adverse possession?

Successive possessors in privity add their periods of possession together to satisfy the statutory period.

Under color of title, how much land can an adverse possessor obtain?

The entire property described in the defective instrument via constructive adverse possession.

Are existing easements extinguished by adverse possession?

No—the title remains subject to prior easements.

List the formal elements of a valid deed.

Identify parties, be signed by the grantor, include words of transfer, and contain a definite property description.

When is a present covenant in a general warranty deed breached?

At the moment of conveyance.

Name the three present covenants in a general warranty deed.

Covenant of seisin, covenant of the right to convey, and covenant against encumbrances.

Name the three future covenants in a general warranty deed.

Covenant of quiet enjoyment, covenant of warranty, and covenant of further assurances.

Do present covenants run with the land?

No—only the original grantee can sue on them.

Do future covenants run with the land?

Yes—subsequent grantees can sue the original grantor.

What is the legal effect of a quitclaim deed?

It conveys whatever interest the grantor actually has without any covenants of title.

What implied warranty protects purchasers of new homes from construction defects?

The implied warranty of fitness or suitability.

Under a notice statute, who prevails: a prior unrecorded grantee or a subsequent purchaser without notice?

The subsequent purchaser without notice.

In a race statute jurisdiction, how is priority determined?

Whoever records first prevails—notice is irrelevant.

What must a purchaser do to prevail under a race-notice statute?

Take without notice of prior claims and be the first to record.

Define a bona fide purchaser (BFP).

Someone who pays value and takes without notice of prior interests.

What is the shelter rule?

A grantee of a BFP is protected by the BFP’s status even if the grantee is not a BFP.

Do recording acts protect purchasers against adverse possessors?

No—because adverse possessors have nothing to record.

Distinguish actual, inquiry, and constructive notice.

Actual: real knowledge; Inquiry: what reasonable inspection would reveal; Constructive: notice from properly recorded instruments.

Why do wild deeds fail to provide constructive notice?

They are recorded outside the grantor’s chain of title.

Differentiate an easement appurtenant from an easement in gross.

Appurtenant benefits a parcel of land; in gross benefits a specific person or entity.

Name three non-express methods of creating an easement.

By necessity, by implication, and by prescription.

What elements create an easement by implication (quasi-easement)?

Prior use was continuous, apparent, and reasonably necessary, and the parties intended it to continue.

What are the elements of an easement by prescription?

Continuous, actual, open and notorious, and hostile use for the statutory period (exclusivity not required).

How can an easement be terminated by abandonment?

The holder takes affirmative acts showing clear intent to relinquish the right; mere non-use is insufficient.

What is merger in easement law?

Termination when one person comes to own both the dominant and servient estates.

When is an unrecorded easement unenforceable against a purchaser?

When the purchaser is a bona fide purchaser without notice.

What four elements allow the benefit of a covenant to run with land?

Writing, intent, touch and concern, and vertical privity.

What six elements are required for the burden of a covenant to run with land?

Writing, intent, touch and concern, notice, horizontal privity, and vertical privity.

What is horizontal privity in covenant law?

A required relationship (e.g., grantor-grantee) between the original parties beyond the covenant itself, needed for the burden to run.

For the burden of a covenant to run, what kind of transfer satisfies vertical privity?

The transfer of the entire interest held by the original party.

How is an equitable servitude enforced?

By injunction or other equitable relief, not money damages.

What elements make an equitable servitude bind successors?

Writing, intent, touch and concern, and notice (for the burden).

How does a deed of trust differ from a mortgage?

Title is conveyed to a third-party trustee who may privately sell the property on default.

What priority does a purchase money mortgage enjoy at foreclosure?

Priority over earlier non-purchase-money mortgages.

Does a mortgagor remain personally liable after selling the mortgaged property?

Yes—unless the lender releases the mortgagor or the buyer assumes liability.

What is the general priority rule among multiple mortgages?

First in time, first in right (the earliest mortgage is senior).

How can a later mortgage gain priority over an earlier one?

If protected by a recording act or if the senior lender agrees to subordinate.

In a future-advance mortgage, from what date does priority run?

From the date the mortgage was originally granted, even for later advances.

What is the lender’s primary remedy when a borrower defaults on a mortgage?

Foreclosure sale of the property.

What are the three elements of constructive eviction?

1) Landlord’s substantial interference with use, 2) tenant gives notice and time to repair, and 3) tenant vacates within a reasonable time.