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69 Cards in this Set
- Front
- Back
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if an easement is recorded, the subsequent holders of the burdened estate have __ notice.
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RECORD (constructive)
note: recording of an easement appurtenant is not required for it to pass to subsequent purchasers of the benefited estate. |
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John has a week-to-week tenancy. How much notice must he give in order to end the tenancy?
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7 days notice
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upon the signing of a land sale agreement (contract for sale of land) the risk of loss shift to the __ under the doctrine of equitable conversion.
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buyer
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"to my brother, and on my brother's death, to my daughter."
-brother has a: -daughter has a: |
brother has a life estate;
daughter has a vested remainder in FS |
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whenever grantor gives a FS Determinable, grantor keeps a:
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possibility of reverter
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conveyance language like (so long as; while; during; until) evidences a Fee Simple __.
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determinable
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when grantor gives a FS on condition subsequent, and expressly reserves the power of termination, grantor keeps a:
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right of entry (power of termination)
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"O to A and her heirs; provided, however, that if liquor is ever consumed on the premises then O shall have the right to reenter and retake the premises."
O has: A has: |
-O has a right of entry
-A has a FS on a condition subsequent |
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"to Yale University for the purpose of building a gymnasium." if Yale does not build a gym, what happens?
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Nothing.
The phrase "for the purpose of" has no effect on title. |
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vested remainder subject to an executory interest is sometimes called a vested remainder subject to __ __, or a vested remainder subject to an __ __.
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total divestment; executory limitation
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holder of an executory interest [can] or [cannot] sue life tenant for waste.
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cannot
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if an executory interest operates by taking title to one grantee and giving it to another, it is called a __ executory interest.
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shifting
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if an executory interest operates by taking title from the grantor and giving it to a grantee, it is called a __ executory interest.
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springing
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RAP is never violated if the gift over is from one __ to another __.
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charity; charity
*both grantees must be charities * this is the charity to charity exception to RAP |
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TTIP
-Creation of a joint tenancy requires the "four unities" of __, __, __, and __. |
Time; Title; Interest; Possession
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where the granting language doesn't clearly create a joint tenancy, courts construe the interest as what?
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tenancy in common
*to create a JT must use right of survivorship language. |
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what are the two ways to destroy a joint tenancy?
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PARTITION - a voluntary destruction
SEVERANCE - an involuntary destruction, occurs whenever one of the four (TTIP) unities is disturbed. |
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The four ways to "sever" a joint tenancy on the MBE:
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(i) unilateral CONVEYANCE
(ii) a MORTGAGE in a title theory state [mnrty rule] (iii) a CONTRACT FOR SALE (iv) CREDITOR sale |
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hypo: Jeff transferred the farm to Tanya for a period from June 1, 2008 to June 5, 2008.
Tonya's estate is a: |
tenancy for years
*any estate measured by a specified period of time, no matter how short is a tenancy for years. |
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if the lease is silent as to how long it lasts, then it is presumed to be a periodic tenancy measured by the __ payment.
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rent
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where a lease violates the statute of frauds, for example an oral lease for 5 years with rent payable once a year, will be construed to be a periodic tenancy by __ of __.
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operation of law.
-here it will be a year-to-year |
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how much notice must be given to terminate a periodic tenancy for year-to-year?
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6 months notice
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in a Tenancy at Will, either party can terminate at any time, without notice.
The five other ways to terminate a tenancy at will are: (i) __ of either party; (ii) __ by the tenant; (iii) __ by the tenant; (iv) __ of title by the landlord; (v) __ by landlord to someone else. |
death;
waste; assignment; transfer; lease |
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Equitable Servitudes in Subdivisions
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Mutual rights of enforcement or reciprocal negative servitudes
1) intent to create a servitude -this is found in the common building plan 2) notice: actual, record, inquiry: inquiry -meaning that you are held to know anything that a reasonable inquiry would have revealed |
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Defenses for enforcement of equitable servitudes
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•Unclean hands
•Acquiescence (passive consent) •Laches (unreas delay to sue) •Estoppel |
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Seller of land must give buyer three things:
(i) proof of __; (ii) title free of __; (iii) valid legal title on day of __. |
title; encumbrances; closing
• proof of title (title abstract); • free of encumbrances not mentioned in the K; • valid legal title on closing day |
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hypo: On the day before closing buyer finds out that seller does not have legal title to the property under contract? Can buyer rescind?
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NO,
-Seller need only pass valid legal title to buyer on day of closing. |
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Before closing Buyer discovers that Seller's title is unmarketable.
•first buyer must notify seller and give seller reasonable time to __ the defect, even if it postpones closing. |
cure
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Before closing Buyer discovers that Seller's title is unmarketable.
•if after seller is notified and given opportunity to cure title and the problem is not corrected, what remedies are available to the buyer? |
-RECISSION (walk away)
-DAMAGES (breach of K) -SPECIFIC PERFORMANCE (take what seller can give, $ reduce cover defect) |
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the fact that there is a recorded encumbrance on real property does necessarily mean that the buyer can avoid a real property contract. In a contract for sale of real property, the seller is entitled to use the proceeds of the sale to clear title IF she can ensure that the purchaser will be protected.
ex: seller offers to escrow the funds. Or gives the buyer title insurance. |
In a land sale contract, the seller is entitled to use the proceeds of the sale to clear title if:
-she can ensure that the purchaser will be protected. |
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Covenant of Seisin is often mentioned interchangeably with the covenant of the right to __.
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convey
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Covenant of seisin, Covenant of the right to convey, and covenant against encumbrances are what type of covenants?
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PRESENT covenants.
present covenants are: •personal to the grantee, •don't run with the land, •grantee can sue immediately |
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the important fact under a "notice" statute is the BFP had no actual or constructive notice at the time of __.
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CONVEYANCE (or mortgage)
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LATENT Defect:
-if at the time the lease is entered into, landlord knows of a dangerous condition that tenant could NOT discover by reasonable inspection, landlord has a duty to __ dangerous condition. Failure to do so, landlord is liable for any injury resulting from the dangerous condition. |
DISCLOSE
-landlord does NOT have to repair, but only "disclose" |
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to be valid a deed must be __, which means that the grantor must have taken some action (no necessarily manually handing over the deed) with INTENT that it operate to PASS title IMMEDIATELY.
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delivered
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when an easement is conveyed to the owner of the servient (burdened) tenement the easement is __.
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extinguished
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__ is the increase of riparian land by the slow and imperceptible change in the course of a river serving as a boundary; any resulting deposit of soil belongs to the owner of the abutting (riparian) land.
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ACCRETION
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__ is the "sudden and perceptible" loss or addition to land by the change in course of a river; does NOT change property rights.
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AVULSION
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while the general rule is that the sale of real property carries no implied warranties of quality and fitness, a seller may be liable where she has actually __ conditions on the property that buyer would not discover by reasonable inspection.
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CONCEALED
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the implied warranty of fitness or quality applies only to the sale of a new house by the __.
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builder-seller
*implied warranty that the new house is designed and constructed in a reasonable "workmanlike" manner and suitable for habitation. |
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the mere existence of the driveway across landowner's property to the neighbor's property puts any purchaser on __ notice of an easement.
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inquiry
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while an oral release of an easement is ineffective for failing to comply w/ the SOF, an oral release of an easement may become effective by "estoppel."
For an easement to be extinguished by estoppel, there must be (i) some conduct or assertion by the easement holder, (ii) a reasonable __ by the owner of the servient tenement, coupled w/ (iii) a change of __. |
reliance; position
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a __ deed transfer whatever right, title, or interest in the property the grantor has.
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quitclaim
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if a grantor executes a deed, but __ to deliver it during his lifetime, no conveyance of title has occurred.
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fails
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to make an effective delivery of a deed, grantor must relinquish __ of the land.
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control
*if O remains in control of the land, delivery is NOT effective to pass title. |
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where a tenant fails to remove annexed chattels before the termination of the tenancy, the chattel becomes the property of the __.
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landlord
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the benefit of an equitable servitude runs to successors if: (i) the original parties so __, and (ii) the servitude __ and __ the land.
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intended; touches and concerns
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the burden of an equitable servitude runs to successors if: (i) the original parties so intended, and (ii) the servitude touches and concerns the land, and (iii) the subsequent purchaser has __ or __ notice of the covenant.
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actual or constructive
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the holder of an easement __ has a right to use the servient tenement independent of her ownership or possession of another tract of land.
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in-gross
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What riparian rights theory is this?
- landowner cannot alter the rate or manner of natural flow of surface waters (e.g., rainfall, melting snow) where such actions would injure others above or below him. |
Natural Flow theory
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an inter vivos conveyance by one joint tenant of his undivided interest severs the joint tenancy, so that the transferee takes the interest as a ______ and not as a joint tenant.
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tenant in common
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All of the following liens need to be recorded to be valid EXCEPT:
A) Mortgage lien B) Real estate tax lien C) Judgment lien D) Mechanic's lien |
(B)
Real Estate Tax Liens do NOT have to be recorded to be valid. |
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The following are NOT acceptable evidence of "Marketable" tile:
•deed of trust; •warranty deed; •certificate of title by a real estate broker |
The following ARE acceptable evidence of "Marketable" tile:
•an abstract of title w/ a legal opinion •title commitment or title insurance policy •certificate of title by a real estate attorney •a Torrens certificate |
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What is a Torrens system?
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Means of land title registration used in some states that in effect, provides a government sponsored form of title insurance.
Under this system, a government official, such as county recorder or county clerk, maintains Torrens System deed records and guarantees clear title when property is transferred. |
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the type of title insurance that protects the owner and heirs is called a:
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owner's policy
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if a "lis pendens" is recorded in the property records, it means?
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it means there is a pending lawsuit against the property.
*if the party that recorded the lis pendens is only seeking damages for a contract dispute and not an interest in the real property it does NOT affect title. Thus a lis pendedns: -for money damages only = marketable title -claiming an interest in the property = Unmarketable title |
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the benefit of an easement appurtenant passes w/ the benefited land, regardless of whether the easement is mentioned in the conveyance.
-All who posses or subsequently succeed to tile to the dominant tenement are entitle to the benefit of the easement. |
the lack of recording of an easement appurtenant is only relevant to subsequent purchasers of the servient estate.
*Thus if the original grantor of an appurtenant easement cannot prevent a subsequent purchaser of the dominant parcel from using the easement merely because the previous owner of the dominant estate did not record it. |
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what is wrong w/ this hypo?
•if the grantor sues the grantee to have him enjoined from operating a business in violation of the HOA agreement, grantee would win b/c there is no privity b/w him and the grantee. |
privity is NOT required in equity.
*seeking an injunction doesn't require privity to enforce an equitable servitude. |
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what is wrong w/ this hypo?
•HOA sues purchaser to collect unpaid fees, the HOA will win because the covenant is enforceable in equity against purchaser. |
- NO money damages when seeking to enforce an equitable servitude.
-when seeking equitable relief it is an equitable servitude NOT a covenant |
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seller gave buyer a deed conveying "the western half of the parcel from the western boundary to the grove of apple trees, comprising 220 acres." It was subsequently determined that the parcel was in fact 229 acres.
Q: is the deed valid and if so what does buyer have? |
deed is valid and buyer owns 229 acres.
*where there is a mistake or inconsistency in the property description, the physical description takes precedence over a quantity description. |
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which covenant is breached by eviction of a tenant by a landlord or hold-over tenant that excludes the tenant from the entire leased premises?
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covenant of Quiet Enjoyment
*actual eviction terminates tenant's duty to pay rent and may entitle tenant to damages if he had to make alternative arraignments. |
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What type of recording act is this?
"any conveyance of an estate in land, other than a lease for less than a year, shall not be valid against a subsequent purchaser whose conveyance is first recorded." |
Pure Race
*notice is irrelevant |
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What type of recording act is this?
"no conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice whose conveyance is first recorded" |
Race Notice
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What type of recording act is this?
"no conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice, unless the conveyance is recorded" |
Notice
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will unreasonable excessive use of an easement extinguish an easement?
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NO.
-the remedy is sue for an injunction or "order to conform" the use to the proper scope. |
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Owner takes out a mortgage with bank. A week later Owner sales the property to buyer who has no knowledge of the mortgage. Bank thereafter records its mortgage. A few days later buyer records his deed.
Q: under what recording acts will buyer prevail over the bank? |
Notice act.
-under a notice act, a subsequent BFP w/ no actual or constructive notice prevails over a prior grantee or mortgagee who has not recorded at the TIME of the conveyance to the subsequent purchaser. *buyer will lose in a pure-race or race-notice jurisdiction. -in a pure-race or race-notice jurisdiction bank will prevail b/c it recorded first |
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the lease gives lessee, his heirs and assigns an option to purchase. Does the option to purchase violate RAP?
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NO, this is an exception.
-RAP does NOT apply to options to purchase attached to leaseholds, b/c the holder of the option is whoever the lessee is. |
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Does a valid option purchase make title unmarketable?
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Yes.
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Execution of a lease by a joint tenant does NOT severe a joint tenancy.
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Severance of a JT only by:
-signing a contract for sale (equitable conversion). -creditor sale of the JT's interest; -unilateral conveyance -title theory mortgage |
