Uniform Bar Examination (UBE) 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. How does an equitable servitude differ from a real covenant?

   An equitable servitude is enforced in EQUITY by injunction (a real covenant is enforced at LAW by damages). To bind successors, an equitable servitude requires Writing, Intent, Touch and concern, and Notice — but NOT privity of estate. Remedy distinguishes the two.

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

   In a residential subdivision, restrictions can be implied against a lot even without a written restriction in its deed if: (1) there was a common scheme of development with the restriction at the time of sale, and (2) the buyer had notice (actual, record, or inquiry) of the restriction.

3. What is the touch and concern requirement for covenants?

   The covenant must relate to the use, enjoyment, or value of the land — the burden must make ownership less valuable/restricted and the benefit more valuable. Promises to pay money used on the land (e.g., HOA dues) are deemed to touch and concern. Personal covenants do not run.

4. Under Euclidean zoning, what is a nonconforming use?

   A use that lawfully existed before a zoning ordinance was enacted but now violates it. It generally may continue (a vested right protected from being a taking) but cannot be expanded or, once abandoned, resumed; ordinances may provide for amortization (phase-out) over time.

5. What is the difference between a zoning variance and a special use permit?

   A variance permits a use/structure that deviates from the ordinance; the applicant must show undue hardship (not self-created) and no harm to neighbors/public welfare. A special use permit (conditional use) authorizes a use the ordinance already allows subject to administrative approval (e.g., a church or hospital in a residential zone).

6. What makes a land sale contract enforceable under the Statute of Frauds?

   It must be in writing, signed by the party to be charged, and contain the essential terms: identification of the parties, a description of the property, and the price (or a means to determine it). Exceptions: part performance (e.g., possession + payment + improvements) and detrimental reliance/estoppel.

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

   Once an enforceable contract is signed, equity treats the buyer as the owner of the land (real property) and the seller as holding the proceeds (personal property/legal title as security). Under the majority rule, the BUYER bears the risk of loss if the property is damaged before closing (absent contract terms or UVPRA modifying this).

8. What is the implied covenant of marketable title?

   Every land sale contract implies that the seller will deliver marketable title at closing — title reasonably free from doubt and risk of litigation. Defects include unmarketable record chain, encumbrances (liens, easements, covenants, encroachments), and title acquired by adverse possession (until quieted). The buyer must notify and give time to cure before closing.

9. How does the merger doctrine affect land sale contracts at closing?

   At closing, the contract obligations (such as the covenant of marketable title) MERGE into the deed. The buyer can thereafter sue only on the covenants contained in the deed, not on the contract — subject to exceptions for fraud and collateral promises not addressed by the deed.

10. What are the three types of deeds and the protection each offers?

    General warranty deed (warrants against ALL defects, including those arising before the grantor owned it — most protection); special warranty deed (warrants only against defects arising during the grantor's ownership); quitclaim deed (NO warranties; conveys only whatever interest the grantor has).

11. What are the six covenants for title in a general warranty deed?

    Present covenants (breached, if at all, at delivery; do not run): (1) Seisin, (2) Right to convey, (3) Against encumbrances. Future covenants (breached upon later disturbance; run with the land): (4) Quiet enjoyment, (5) Warranty, (6) Further assurances.

12. What are the requirements for a valid deed?

    A deed must be in writing (Statute of Frauds), identify the parties, be signed by the grantor, contain words of conveyance, and adequately describe the land. Consideration is NOT required. To be effective it must also be DELIVERED and ACCEPTED.

13. What constitutes delivery of a deed?

    Delivery requires the grantor's present INTENT to make the deed immediately effective (pass title now), regardless of physical transfer. Recording or handing over the deed raises a presumption of delivery; retention by grantor presumes no delivery. A deed cannot be delivered with an oral condition (the condition is disregarded; title passes).

14. What is the difference between a race, notice, and race-notice recording statute?

    Race: first to record wins (notice irrelevant). Notice: a subsequent bona fide purchaser (without notice) prevails over a prior unrecorded interest, even if the BFP never records. Race-notice: a subsequent BFP prevails only if she takes WITHOUT notice AND records FIRST.

15. Who qualifies as a bona fide purchaser (BFP) under recording acts?

    One who (1) pays valuable consideration (not a donee, heir, or devisee), and (2) takes WITHOUT notice — actual, constructive (record), or inquiry — of the prior interest at the time of purchase. Recording acts protect only purchasers/mortgagees, generally not donees.

16. What are the three forms of notice that defeat BFP status?

    (1) Actual notice (real knowledge); (2) Constructive/record notice (a properly recorded prior instrument in the chain of title); (3) Inquiry notice (facts that would prompt a reasonable person to investigate, such as someone in possession or a reference in a recorded document).

17. What is the shelter rule in recording acts?

    A person who takes from a bona fide purchaser 'shelters' under (acquires the rights of) that BFP, even if the transferee herself had notice of a prior interest. This protects the BFP's ability to convey marketable title.

18. What is a wild deed and why does it not provide constructive notice?

    A wild deed is a recorded deed that is outside the chain of title because a prior link was not recorded (a grantor who never appears as a grantee in the records). Because it cannot be found by a standard title search, it does NOT impart constructive (record) notice to subsequent purchasers.

19. What are the elements of adverse possession?

    Possession that is (mnemonic OCEAN/COAH): Continuous (for the statutory period), Open and notorious, Exclusive, Actual, and Hostile/adverse (without the owner's permission, under a claim of right). Possession must continue uninterrupted for the entire statutory limitations period.

20. What is tacking in adverse possession, and what is the effect of disabilities?

    Tacking allows successive adverse possessors to add their periods together if they are in privity (voluntary transfer, descent, etc.). 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.

21. What is the effect of 'color of title' and the role of payment of taxes in adverse possession?

    Color of title means the adverse possessor holds a defective written instrument; it can support 'constructive adverse possession' of the entire described parcel even though only part is actually occupied. Some jurisdictions also require payment of property taxes during the statutory period.

22. Compare the lien theory and title theory of mortgages.

    Lien theory (majority): the mortgagee holds only a lien; the mortgagor retains title and the right to possession until foreclosure — so one joint tenant's mortgage does NOT sever the joint tenancy. Title theory (minority): the mortgagee holds legal title until the debt is paid, and giving a mortgage CAN sever a joint tenancy.

23. What is the order of priority among mortgages and the effect of foreclosure on junior and senior interests?

    Priority is generally 'first in time, first in right' (subject to recording acts and purchase-money mortgage priority). Foreclosure of a mortgage eliminates all JUNIOR interests (they attach to surplus proceeds) but does NOT affect SENIOR interests, which remain on the land. Junior interest holders are necessary parties to a foreclosure.

24. What is the equity of redemption versus statutory redemption, and what is a purchase-money mortgage's special priority?

    Equity of redemption: before the foreclosure sale, the mortgagor may redeem by paying the full debt (plus interest/costs); 'clogging' this right is prohibited. Statutory redemption: in some states the mortgagor may redeem for a set period AFTER the sale. A purchase-money mortgage (loan used to buy the property) has priority over earlier-arising liens against the mortgagor, even if recorded later.

What this deck covers

Real Property flashcards FAQ