Multistate Essay Examination (MEE) Real Property Syllabus

What is the implied warranty of habitability, and what remedies does a tenant have?

In residential leases the landlord must maintain the premises fit for human habitation (meeting housing-code standards); it is non-waivable. On breach, the tenant may (Move out, Repair and deduct, Reduce/withhold rent, or Remain and seek damages)—'MR3.'

Distinguish actual eviction, partial eviction, and constructive eviction.

Actual eviction—landlord physically excludes tenant (rent obligation ends). Partial eviction by the LANDLORD relieves the tenant of ALL rent while remaining in possession. Constructive eviction—landlord's breach of a duty substantially interferes with use (SING: Substantial Interference, Notice to landlord, and the tenant must Get out within a reasonable time).

What is the landlord's duty regarding the implied covenant of quiet enjoyment?

Implied in every lease (residential and commercial), the landlord covenants that the tenant will not be wrongfully disturbed in possession by the landlord or by someone with paramount title. Breach via actual or constructive eviction relieves the tenant of rent.

What are a landlord's options when a tenant holds over (tenancy at sufferance)?

The landlord may (1) evict the holdover as a trespasser and recover damages, or (2) bind the tenant to a new periodic tenancy. Terms of the new tenancy are governed by the old lease; the period is generally year-to-year for commercial holdovers and month-to-month for residential (jurisdiction-dependent).

Define an easement and distinguish an easement appurtenant from an easement in gross.

An easement is a nonpossessory right to use another's land. APPURTENANT—benefits the holder in use of their own land (requires a dominant and a servient estate); runs with the land. IN GROSS—benefits a person/entity regardless of land ownership (e.g., utility line); commercial ones are transferable, personal ones generally not.

List the four ways an affirmative easement can be created.

PING: Prescription (adverse, like adverse possession), Implication (from prior use—quasi-easement apparent, continuous, reasonably necessary at severance), Necessity (landlocked parcel from common-grantor severance), and Grant (express, must satisfy the Statute of Frauds).

What are the requirements for an easement by necessity versus easement by implication from prior use?

Easement by NECESSITY: common ownership severed, and strict necessity (e.g., landlocked, no other access) arising at severance. Easement by IMPLICATION (prior use/quasi-easement): common ownership previously, an existing apparent and continuous use, and reasonable necessity at the time of severance.

How are easements terminated? (List the methods.)

END CRAMP: Estoppel, Necessity ends, Destruction of servient land, Condemnation, Release (writing), Abandonment (affirmative act showing intent), Merger (unity of title), and Prescription (servient owner blocks use for statutory period). Mere nonuse is NOT abandonment.

Distinguish an easement, a profit, and a license.

Easement—right to USE another's land. Profit (profit à prendre)—right to ENTER and remove resources (minerals, timber); governed by easement rules. License—mere permission to use, revocable at will, not subject to Statute of Frauds; becomes irrevocable (easement by estoppel) if the holder reasonably and detrimentally relies.

What are the elements for the BURDEN of a real covenant to run with the land at law?

WITHN: Writing (original promise in writing), Intent for it to run, Touch and concern the land, Horizontal AND vertical privity, and Notice (to the successor). Horizontal privity (grantor-grantee relationship) is required for the burden to run.

What are the elements for the BENEFIT of a real covenant to run with the land at law?

WITV: Writing, Intent, Touch and concern, and Vertical privity. The benefit side does NOT require horizontal privity or notice (notice is irrelevant to a benefit holder).

What is an equitable servitude and what are its requirements?

A covenant enforceable in equity by injunction regardless of privity. WITN: Writing (with the implied-reciprocal-servitude exception), Intent to bind successors, Touch and concern, and Notice (actual, inquiry, or record) to the burdened party. No privity required.

What is the doctrine of implied reciprocal servitudes (common scheme)?

Negative equitable servitudes may be implied even without a writing if (1) the developer had a common scheme/plan of restriction for all lots at the time of sale, and (2) the burdened party had notice (actual, inquiry, or record) of the restriction in the deeds of other lots.

What equitable defenses can defeat enforcement of an equitable servitude?

Changed conditions (the neighborhood has so changed that the original purpose can no longer be achieved—must affect the entire area, not just border lots), laches, unclean hands, acquiescence, and estoppel. The change must defeat the servitude's purpose for the whole subdivision.

What is the difference between Euclidean zoning and a variance?

Euclidean zoning divides land into use districts (e.g., residential, commercial, industrial) by ordinance under the police power. A VARIANCE is administrative permission to deviate from zoning; the applicant must show (1) undue/unnecessary hardship (use variance) or practical difficulty (area variance) and (2) that the variance won't harm surrounding property/public welfare.

What is a nonconforming use and how is it treated under zoning law?

A use that lawfully existed before the zoning ordinance but now violates it. It generally cannot be eliminated immediately (would be an unconstitutional taking without compensation), but may be terminated through reasonable amortization periods; it usually cannot be expanded or, once abandoned, resumed.

What is an unconstitutional regulatory taking, and what is the rule for total economic loss?

A government regulation effects a taking requiring just compensation if it goes 'too far.' Under Lucas, a regulation that denies an owner ALL economically beneficial use is a per se taking (unless background nuisance/property-law principles already prohibited the use). Otherwise courts apply the Penn Central balancing factors.

What conditions must a land sale (purchase) contract satisfy under the Statute of Frauds, and name an exception.

A land contract must be in writing, signed by the party to be charged, and identify the parties, the property, and the price (or a means to determine it). Exception—PART PERFORMANCE: typically some combination of payment, possession, and/or improvements may allow specific enforcement of an oral contract.

What is the doctrine of equitable conversion and who bears the risk of loss?

Once a land contract is signed (and specifically enforceable), equity regards the buyer as the owner (holding equitable title); the seller holds legal title as security. Under the majority/common-law rule, the RISK OF LOSS is on the BUYER during the executory period; under the Uniform Vendor and Purchaser Risk Act, it stays with the seller until possession or title passes.

What is the implied covenant of marketable title in a land sale contract?

Every land contract implies that the seller will deliver marketable title (title reasonably free from doubt/litigation) at CLOSING. Defects include record chain gaps, encumbrances (mortgages, liens, easements, covenants), and significant zoning/title-by-adverse-possession problems. The buyer must give notice and a chance to cure before closing.

What is the doctrine of merger in land sale contracts?

At closing, the contract obligations (including the covenant of marketable title) MERGE into the deed. Thereafter the buyer can generally sue only on the deed's covenants, not on the contract—subject to exceptions for fraud and collateral promises.

What are the formal requirements for a valid deed?

The deed must be in writing (Statute of Frauds), signed by the grantor, identify the grantor and grantee, contain words of transfer, and adequately describe the land. Consideration is NOT required to make a deed valid (though it matters for bona fide purchaser status). The deed must then be delivered and accepted.

What constitutes valid delivery of a deed?

Delivery turns on the grantor's present INTENT to make the deed immediately effective—not necessarily physical handover. A deed given to the grantee with intent is delivered even if not recorded. Conditional delivery to the grantee directly usually makes the deed absolute (oral conditions disregarded). Recording raises a presumption of delivery.

Compare the three types of deeds and the title protection each provides.

(1) General warranty deed—warrants against all defects, including those arising before the grantor owned (six covenants). (2) Special (limited) warranty deed—warrants only against defects arising during the grantor's ownership. (3) Quitclaim deed—no warranties; conveys only whatever interest the grantor has.

Name and classify the six covenants for title in a general warranty deed.

PRESENT covenants (breached, if at all, at delivery; do not run to remote grantees in many states): (1) Seisin, (2) Right to convey, (3) Against encumbrances. FUTURE covenants (run with the land, breached on later disturbance): (4) Quiet enjoyment, (5) Warranty, (6) Further assurances.

What is the legal effect of estoppel by deed (after-acquired title)?

If a grantor conveys land they do not own (by warranty deed) and later acquires title to it, that title automatically passes to the earlier grantee by estoppel. Exception: a subsequent bona fide purchaser from the grantor may cut off the original grantee, since the after-acquired title often is not in the record chain.

What is a wild deed and why does it matter under recording acts?

A wild deed is a recorded deed that is not connected to the chain of title (e.g., recorded by a grantor who is not yet a record owner, or before the prior deed is recorded). Because it cannot be found by a standard title search, it does NOT provide constructive (record) notice to subsequent purchasers.

Compare the three types of recording acts.

(1) RACE—first to record wins, regardless of notice. (2) NOTICE—a subsequent bona fide purchaser (without notice) prevails over a prior unrecorded interest, whether or not she records first. (3) RACE-NOTICE—a subsequent BFP prevails only if she takes without notice AND records first.

What are the three forms of notice that defeat bona fide purchaser status?

(1) Actual notice—real knowledge of the prior interest. (2) Constructive (record) notice—the prior interest is properly recorded in the chain of title. (3) Inquiry notice—facts (e.g., someone in possession, references in recorded documents) that would lead a reasonable person to investigate.

Who qualifies as a bona fide purchaser (BFP) protected by recording acts?

One who (1) pays valuable consideration (not a donee, heir, or devisee) (2) without notice (actual, constructive, or inquiry) of the prior interest at the time of conveyance. Mortgagees for value also qualify as purchasers under recording acts.

What is the shelter rule under recording acts?

A person who takes from a bona fide purchaser receives the same protected status as the BFP, even if that person otherwise had notice of a prior interest. This 'shelters' the grantee, protecting the BFP's ability to freely transfer the property.

List the elements of adverse possession.

COAH(E): possession that is Continuous (for the statutory period), Open and notorious, Actual (and exclusive), and Hostile (without the owner's permission). Some jurisdictions also require payment of property taxes or color of title. Statutory period varies by state (commonly 10-20 years).

What is tacking, and what is required for it in adverse possession?

Tacking allows successive adverse possessors to add their periods together to satisfy the statute, but ONLY if they are in PRIVITY (a voluntary transfer—deed, will, descent—between them). Tacking is not allowed where one ousts another. The statute is also TOLLED if the true owner was under a disability (e.g., minority, insanity) at the time the cause of action accrued.

What is the difference between title theory and lien theory in mortgages?

LIEN theory (majority)—the mortgagee holds only a lien; the mortgagor retains title and right to possession until foreclosure. TITLE theory (minority)—the mortgagee holds legal title (and theoretically the right to possess) until the debt is paid. This distinction affects whether one joint tenant's mortgage severs a joint tenancy.

Distinguish the principal security devices: mortgage, deed of trust, installment land contract, and equitable mortgage.

Mortgage—debtor (mortgagor) gives lender (mortgagee) a security interest, foreclosed judicially. Deed of trust—debtor conveys to a third-party trustee who can sell on default (often nonjudicial). Installment land contract—seller retains title until buyer pays in full. Equitable mortgage—an absolute deed given as security; courts treat it as a mortgage requiring foreclosure.

What happens to the mortgage when the MORTGAGOR transfers the property 'subject to' versus by 'assuming' the mortgage?

The lien remains on the land in both cases. If the grantee takes 'SUBJECT TO' the mortgage, the grantee is NOT personally liable (only loses the land on default). If the grantee 'ASSUMES' the mortgage, the grantee becomes personally liable, and the original mortgagor remains secondarily liable (as a surety) unless released by novation.

What is a due-on-sale clause?

A mortgage clause giving the lender the option to demand full payment of the loan balance if the mortgagor transfers the property without the lender's consent. It allows lenders to prevent transfers that bypass refinancing at current rates; generally enforceable under federal law.

What rights does a MORTGAGEE have to transfer the mortgage, and how?

A mortgagee may transfer the mortgage by transferring (1) the note (by indorsement and delivery—holder-in-due-course rules may apply) and/or (2) the mortgage by a separate assignment. The mortgage automatically follows the note ('the mortgage follows the note'); transferring the note alone usually carries the mortgage with it.

What is the effect of foreclosure on junior and senior interests?

Foreclosure of a mortgage eliminates all interests JUNIOR to the foreclosing mortgage (they attach to surplus proceeds) but does NOT affect interests SENIOR to it (the buyer takes subject to senior liens). Necessary parties (junior interest holders) must be joined; if not joined, their interests survive foreclosure.

How are foreclosure sale proceeds distributed?

In order: (1) costs/expenses of the foreclosure sale and attorney's fees, (2) the foreclosing (and any senior, if paid off) mortgage debt, (3) junior interests in order of priority, and (4) any surplus to the mortgagor (debtor). If proceeds are insufficient, the lender may seek a deficiency judgment for the shortfall (where allowed).

State the general rule of priority among mortgages and a key exception.

General rule: 'first in time, first in right'—interests rank by the order recorded (subject to the recording act). Exceptions: a purchase-money mortgage (PMM) has priority over earlier-arising liens against the mortgagor; and a senior mortgagee can lose priority through subordination agreements or by making optional advances with notice of a junior lien.

What is a purchase-money mortgage (PMM) and its special priority?

A PMM is a mortgage given to secure a loan used to BUY the very property that secures it (whether from the seller or a third-party lender). A PMM takes priority over prior judgment liens and other claims against the buyer-mortgagor, even if those are recorded first; a seller's PMM generally has priority over a third-party lender's PMM.

Distinguish equity of redemption from statutory redemption.

EQUITY of redemption (common-law right): before the foreclosure sale, the mortgagor may redeem by paying the full debt (plus interest/costs); if the loan is accelerated, the full balance is due. This right cannot be waived in the mortgage ('clogging the equity of redemption' is barred). STATUTORY redemption (about half the states): allows the mortgagor to redeem for a set period AFTER the foreclosure sale, usually by paying the foreclosure sale price.

What is a deficiency judgment and what limits may apply to it?

If a foreclosure sale yields less than the debt, the lender may obtain a deficiency judgment against the borrower for the shortfall. Limits: some states bar deficiencies on purchase-money or residential loans (anti-deficiency statutes), and many require the deficiency be measured by the property's fair market value rather than the (often lower) sale price.

What is a deed in lieu of foreclosure and its main risk to the lender?

The mortgagor voluntarily conveys the property to the lender to satisfy the debt and avoid foreclosure. Advantage: faster and cheaper. Risk to lender: unlike foreclosure, it does NOT eliminate junior liens—the lender takes the property subject to them. It may also be challenged as clogging the equity of redemption if unfair.