NextGen Bar Exam Real Property Flashcards

24 sample cards from the Real Property deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What are the requirements for a valid deed and its delivery?

   A deed must be in writing, signed by the grantor, identify the parties, and contain words of conveyance and an adequate description (Statute of Frauds). To pass title it must be DELIVERED—shown by the grantor's present intent to make it operative—and ACCEPTED by the grantee.

2. What is the doctrine of estoppel by deed (after-acquired title)?

   If a grantor conveys land she does not yet own (by warranty deed) and later acquires title, that title automatically passes to the earlier grantee. It generally does not apply to quitclaim deeds.

3. Compare race, notice, and race-notice recording statutes.

   Race: first to record wins, regardless of notice. Notice: a subsequent bona fide purchaser without notice prevails over a prior unrecorded interest (need not record first). Race-notice: a subsequent BFP prevails only if she takes WITHOUT notice AND records FIRST.

4. What are the three types of notice under recording acts?

   Actual notice (real knowledge); Constructive/record notice (a properly recorded instrument in the chain of title); and Inquiry notice (facts—such as someone in possession—that would prompt a reasonable buyer to investigate).

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

   One who (1) takes for valuable consideration (not a donee, heir, or devisee) and (2) without notice (actual, constructive, or inquiry) of the prior interest at the time of purchase.

6. What is the shelter rule under recording acts?

   A person who takes from a bona fide purchaser 'shelters' under the BFP's protected status and prevails against earlier interests—even if that person otherwise had notice and would not independently qualify as a BFP.

7. What is the difference between a lien-theory and a title-theory state for mortgages?

   In a lien-theory state (majority), the mortgagee holds only a lien and the mortgagor keeps title and the right to possession until foreclosure. In a title-theory state, the mortgagee holds legal title and (theoretically) the right to possession until the debt is paid.

8. What is the equity of redemption, and what is statutory redemption?

   Equity of redemption: the mortgagor's right, before foreclosure sale, to redeem the land by paying the full debt (plus interest/costs); it cannot be waived in the mortgage ('clogging' is prohibited). Statutory redemption: a right in many states to redeem AFTER the foreclosure sale within a set period.

9. How does priority among mortgages work at a foreclosure sale, and what happens to junior and senior interests?

   Interests are paid in order of priority (generally first to record/'first in time'). Foreclosure of a mortgage eliminates all JUNIOR interests (they get surplus proceeds, if any) but does NOT affect SENIOR interests, which remain on the land. Necessary parties = junior interest holders.

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

    A mortgage given to secure a loan used to BUY the very property (or given to the seller). A PMM takes priority over prior claims (including judgment liens and after-acquired property clauses) against the buyer, even mortgages recorded earlier against that buyer.

11. When a buyer takes mortgaged property 'subject to' versus 'assuming' the mortgage, who is liable?

    'Subject to': the buyer is NOT personally liable on the debt (though the land can still be foreclosed); the original mortgagor remains liable. 'Assuming': the buyer becomes personally liable, and the original mortgagor remains secondarily liable as a surety.

12. What is a deficiency judgment in mortgage law?

    If a foreclosure sale yields less than the outstanding debt, the lender may obtain a deficiency judgment against the borrower (and any assuming grantee) for the shortfall, subject to anti-deficiency statutes in some states (often for PMMs/residential).

13. What are the elements of adverse possession?

    Possession that is Continuous, Open and notorious, Actual (and exclusive), and Hostile (without permission), for the statutory period. Mnemonic: actual, open, hostile, exclusive, continuous (COAH). The use must be hostile to the true owner.

14. What is 'tacking' in adverse possession, and what is required?

    Successive adverse possessors may add their possession periods together to meet the statutory term, provided there is privity (a voluntary transfer—deed, will, descent) between them. There is no tacking when one possessor ousts another.

15. How do disabilities affect the adverse possession statutory period?

    If the true owner is under a disability (minority, insanity, imprisonment) at the time the cause of action accrues, the statutory period is tolled until the disability is removed. The disability must exist at the START of the adverse possession; later disabilities do not count.

16. How can adverse possession affect future interests and recorded restrictions?

    Adverse possession runs against the present possessory estate holder, not future interest holders (whose claims accrue only when they become possessory). Generally one acquires title only to the area actually possessed; under color of title, possession of part can give constructive possession of the whole described tract.

17. What are the rules governing surface water (the 'common enemy' vs. other doctrines)?

    For diffuse surface water: Common enemy rule—a landowner may take any measures to fight off surface water. Natural flow (civil law) rule—an owner may not alter natural drainage to a neighbor's harm. Reasonable use rule (modern)—liability turns on the reasonableness of the interference.

18. Distinguish the riparian and prior appropriation doctrines for watercourses.

    Riparian (eastern states): owners of land bordering a watercourse share the right to reasonable use. Prior appropriation (western states): water rights are determined by priority of beneficial use—'first in time, first in right'—regardless of whether the user owns riparian land.

19. What is the right to lateral and subjacent support?

    Lateral support: a landowner has an absolute right to support of land in its natural state from neighboring land; a neighbor who excavates is strictly liable if the land would have collapsed in its natural state, and liable in negligence for damage to buildings. Subjacent support: owed by an underground occupant (e.g., a mineral rights holder) to the surface owner.

20. What is a fixture, and what is the general test for whether an item is a fixture?

    A fixture is a chattel so annexed to land that it is treated as part of the realty and passes with the land. The test focuses on the annexor's objective intent, judged by the degree of attachment, adaptation to the property's use, and whether removal causes damage.

21. What are trade fixtures, and may a tenant remove them?

    Trade fixtures are chattels a commercial tenant attaches for use in a trade or business. A tenant may remove them before the lease ends, provided removal does not cause substantial damage to the premises; the tenant must repair any damage caused.

22. What is title insurance, and how does it differ from deed covenants?

    Title insurance is a policy (issued to an owner and/or lender) indemnifying against losses from defects in title existing when the policy issues, plus a duty to defend. Unlike deed covenants, it does not warrant future acts and protects only the named insured (it generally does not run to later purchasers).

23. What remedies are available to a buyer for a seller's breach of a land sale contract?

    Because land is unique, the buyer may seek specific performance, or damages (typically the difference between contract price and market value plus incidental costs), and restitution of the deposit. The seller may likewise obtain specific performance or damages, and may retain a reasonable deposit as liquidated damages.

24. What is the merger doctrine in conveyancing?

    Obligations in the land sale CONTRACT generally merge into the DEED at closing—so after closing the buyer must sue on the deed's covenants (or for fraud), not on the contract. Exceptions exist for collateral promises and (in many courts) for the duty regarding marketable title.

What this deck covers

Real Property flashcards FAQ