PROPERTY MBE RULES

The RAP period on a will begins to run at time of testator's death, and the measuring life used must be in existence at time of testator's death.

Property - Review MBE Property Drill Questions/Answers 2 and 3 for RAP practice!

A shopping mall landlord has a right to enforce non-assignment clause in tenant's lease, even if enforcement is unreasonable. If tenant makes transfer in violation of non-assignment clause, no matter how reasonable, the transfer is not void, but voidable.

Mere non-use does not warrant abandonment of an easement; successors are bound by an express easement unless the easement holder abandons through physical intent to permanently abandon.

Adverse possessor can acquire title to property through his tenant or lessor of that property (if lease is kind of use an objective true owner would make of property)

Where a future interest is NOT followed by a life estate, it is executory and not a remainder. A remainder always follows a life estate. But an executory interest can follow a life or other estate: "To A for life, but if ..., to B" - B has executory interest.

An interest in property is not valid // unless it MUST vest, if at all, within 21 years following a life in being at the time interest is created.

Rights of first refusal are treated as executory interests under the RAP.

Where co-owners of a tenancy-in-common cannot agree to use of the land, a court will grant a partition, destroying the co-tenancy. In fact, Tenants in Common have a right to judicial partition, either in kind or by sale.

The three present covenants in a General Warranty Deed (seisin; right to convey; and no encumbrances) do not "run" with the grantee's estate and cannot be enforced by successive grantees. However, the future covenants (enjoyment; warranty; further assurances) do run with the land.

A prospector with a lease/option to buy in a race-notice jurisdiction has priority over a BFP if they both fail to record because the CL rule of first in time, first in right applies.

The original mortgagor remains liable on the mortgage regardless of any subsequent transfers (even if transferee takes subject and assumes payment!); a transferee who "assumes payment" is primarily liable; a transferee who merely takes "subject to the mortgage" is not liable. On foreclosure, both the primarily and secondarily liable parties can be sued in deficiency.

A mortgage with senior interest loses seniority to more junior interests where the landowner modifies the mortgage in a way more burdensome to him. This is especially true where the senior mortgagee knows of the junior's interest when he makes an optional advance (once mortgagee is not contractually bound to make) on the original mortgage.

Tenants in common are obligated to their share of a mortgage on the entire property, and any failure of payment by one of them does not prevent the bank from foreclosing on the entire interest; the same applies to a joint tenancy (only difference b/t two concurrent estates is rights of survivorship)

Remember to distinguish whether an action can proceed in equity or for damages depending on who's complaining.

Where the promise regarding the use of land is a negative one (not do something) it is an equitable servitude type of covenant, which means it can be enforced in equity where both burden and benefit run with notice. Note: the change of neighborhood exception to a running covenant requires that the restricted area AS A WHOLE has changed so as to no longer benefit from the restriction (not mere pockets of change).

Remember to analyze the recording rules where no statute is cited because a BFP will prevail upon first recordation in all three notice jurisdictions. And where no one records, remember CL rules.

Zoning restrictions - without violation by property - do not affect marketability, however, an existing (not potential) violation of a zoning ordinance renders title unmarketable.

An encumbrance must encumber the property - not the adjoining tenement - to make title unmarketable.

Delivery of title will relate back to the time it was put in escrow if buyer is incapacitated at closing.

The owner of the servient tenement has the right to choose the location of the easement by necessity provided it's reasonable.

Continuous and uninterrupted use does not mean constant; periodic acts to put owner on notice are sufficient (but two uses in two of five years is not enough notice!)

The present covenant of right to convey is breached if the grantor is not the owner. Grantee's CoA begins to run at time of conveyance under S/L.

A vested remainder subject to open and total divestment occurs where the transferees are ascertainable, not subject to a condition precedent, but subject to a condition subsequent and there is a class of persons - while certain to take - subject to diminution.

A condition precedent is a requirement before the deal is struck, whereas a condition subsequent is a requirement after the deal is struck.

Mortgage = security interest
Note = underlying debt
Investor who buys a mortgage and note that is recorded is not a holder in due course because they have notice of record owner. Holder in due course requires no notice of other claims to the property.

Where a brokerage firm buys a mortgage and note without notice of any other holder, and gives consideration, the brokerage firm is the holder in due course.

Under the prior appropriation doctrine, landowners may acquire the right to divert and use a watercourse even though their property does not abut to a watercourse.

A tenancy by the entirety cannot be terminated or encumbered by one spouse acting alone. Terminated by death of spouse; divorce; mutual agreement; or execution by a joint creditor of both spouses.

An express easement endures perpetually.

Covenants of Title do not protect against defects of property; they're covenants of good title and protect against third parties.

If original mortgagee transfers possession of mortgage note to a holder in due course without notice to mortgagor, the mortgagor is not liable for payment to holder in due course; mortgage is paid when mortgagor pays balance to original mortgagee.

Landowner has record notice of easement on adjoining land if both parcels were conveyed by a common grantor and the adjoining land's easement is recorded.

A right of survivorship remains effective in a future interest. Thus, if a farmer and rancher have an indefeasibly vested remainder as joint tenants and one of them dies first, the remaining tenant receives full rights of survivorship in that future interest.

Where a land K is made orally, part performance (any two of following three) will defeat S/F: substantial improvements; possession; any payments. If it's a lease-to-buy situation where tenant partially performs, an oral K will be enforced as well.

Use of well on one's own property - even if aqueduct is shared - will be considered reasonable unless malicious or wasteful; a swimming pool, garden, etc., are not wasteful, even if it causes another person's well to run dry.

An equitable mortgage is created where the owner of property deposits a title-deed with a creditor to secure a loan. To recover on the unpaid loan, the creditor must foreclose the property judicially like any mortgage.

Where a grantor merely expresses a motive, and not a condition, for the conveyance of property, the grantee takes in fee simple: "To A, for the purpose of building a planetarium." (no duration language that would be used in a FSD)

A Fee Simple Determinable is an estate which automatically terminates on the happening of a certain event.

Course of dealing can be used to supplement or explain written terms of K only under the UCC; at CL, S/F applies.

A covenant granting right of first refusal to heirs of leaseholder is upheld against RAP.

Recordation of deed by grantor is prima facie evidence of delivery.

Where tenant remains in possession at end of tenancy period, LL can bind tenant to new periodic tenancy and any reasonable requirement of increased rent.

A sale of land does not require marketable title at time of K, but at closing.

The notice requirement to bind a covenant against a landowner (WITHN) does not exist for a non-BFP (donee/heir) of land (unless a recording statute says otherwise).

When a person disclaims a gift at will, he is treated as having predeceased the testator; thus, his property interest is stricken and he will not be counted as the "life in being" in a RAP analysis.

Where tenant fails to vacate at the end of a lease term, the LL may only increase rent for the new tenancy if she notified tenant before termination of the original lease - not subsequent.

In a land installment contract, a buyer who fails to strictly perform up until the full contract price is paid (i.e. missing just one monthly payment) will be held to a harsh forfeiture clause allowing seller/LL to keep all rent collected and void K. Note: vendor who has established pattern of accepting late payments waives strict performance.