2 - Ch 48 Flashcards
Land
soil and all things of permanent nature affixed to the ground. Also includes water and minerals
easements
right to use a portion of another’s land. Benefited land is dominant tenement, and land that is subject to easement is the subservient tenement
creation of easement
-easement by agreement: transferred by deed
-easement by implication: hen one conveys a portion of land that has been used as a dominant estate in relation to the part retained. Grantee’s right to use land retrained is known as a way of necessity
-easement by prescription: acquired by adverse use or contrary to landowner’s use
termination of easement: revocation must be agreed to by the easement owner. May be lost by abandonment
profits
right to take part of the soil, minerals or produce from the land that belongs to another
licenses
personal, revocable privilege to perform an act(s) on the property of another
liens
arise from voluntary act of property owner, typically as security for debt or service
may also arise involuntarily as in tax liens, judgement liens, and mechanic’s liens
fixtures
personal property attached to earth or placed in a building such that it is considered part of the real property
tests of a fixture:
-annexation: cannot be removed without damaging or destroying the property
-adaption: personal property especially adapted or suited to the use made of the building may constitute a fixture
intent: in the absence of proof of intent, courts resort to the nature of the property, method of attachment and circumstances
moveable machinery and equipment: not fixtures although removal involves disconnecting wires and water pipes or unbolting them from the floor
trade fixtures: equipment tenant attaches to a rented building
fee simple estate
absolute and entire interests, lasts forever
alienable or transferable during life, alienable by will, passes to heirs if not transferred by will, subject to rights of surviving spose, and can be used to satisfy owner’s debts
fee simple defeasible gives grantee all rights subject to complying with the restrictions
life estate
lasts only during the life of a person (ordinarily the owner)
future interests
remained interest: interest that follows a life estate
possibility of reverter: interest after conveying land subject to a condition or provision that may cause the grantee’s interest to be forfeited
common law rule
trespassers: no duty to warn of dangers. Duty to refrain from causing intentional harm once presence is known. Small children protected under the attractive nuisance doctrine
licensees: on premises with permission. Duty to warn of non-obvious dangers known to the owner
invitees: owner owes duty to take reasonable steps to discover danger and either warn the invitee or fix it. If owner fails to take the degree of care required and an invitee is harmed, the owner is liable
multiple ownership
forms are the same as for personal property
condominiums
control and expenses: may be equal or based on value. Equal rights to common areas
collection of expenses from unit owner: owners’ association generally has a right to a lien against owner’s unit for any amounts due
tort liability: generally liability for injuries of third parties in common areas falls on the condominium association, not the individual owners
cooperatives distinguished: an apartment cooperative is typically a corporation that owns an apartment complex. “ownership” interest of apartment occupants are as stockholders
deed
an instrument by which a grantor transfers an interest in land to a grantee
classification of deeds
quitclaim deed: transfers whatever interest, if any, grantor has in the property
warranty deed: transfers a guaranteed, specific interest
execution of deeds
must be signed or sealed by the grantor who has legal capacity to execute it
delivery and acceptance of deeds
no effect and title does not pass until the deed has been delivered, which is a matter of intent
recording of deeds
not required; provides notice to the public that the grantee is the present owner
race statutes: first party to record the deed has title
notice statues: last good-faith or bona fide purchaser (BFP) takes title
notice-race or race-notice statues: First BFP to record deed has title
grantee cannot claim protection by virtue or recording deed when claim is made by one with superior title, grantee has notice or knowledge of adverse claim, when title was acquired person acting under a hostile claim in possession, grantee received land as a gift, or transfer was fraudulent
additional protection of buyers
buyer is protected by procuring title insurance or an abstract of title, a summarized report of property title and ownership
Grantor’s warranties
warranties of title: covenant of seisin (grantor owns the estate conveyed), of right to convey, against encumbrances, of quiet enjoyment, and of further assurances grantor will execute any additional documents required
fitness for use: implied warranty that house and foundation are fit to use
grantee may agree to do or not do certain acts. Binding contract and grantor may recover from grantee for breach
right to enforce the covenant also runs with the land owned by the grantor to whom the promise is made
eminent domain
property taken from private owner for a public purpose
issues: if there is a taking of property. and if the property was taken for public use
adverse possession
title acquired by continuously possessing land in a viable, notorious, exclusive, hostile manner for a statutory period (typically 10-20)
characteristics of a mortgage
termination of mortgagee’s interest on performance , right of the mortgage to enforce the mortgage on default, and mortgagor’s right to redeem the property
property subject to mortgage
property that may be sold may be mortgaged. The mortgager need not have complete ownership in the property
form of mortgage
must be in writing to satisfy statute of frauds
creative forms of financing
multiple options, including adjustable rate mortgage (ARM) or seller financing
a reverse mortgage allows those who have paid off their mortgage to get value out over time
recording or filing of mortgage
binding between parties even if not recorded
responsibilities of the parties
taxes, assessments, and insurance: rests with mortgagor. Absent agreement, neither party under a duty to insure the property
impairment or security: mortgagor is liable for any damages caused by mortgagor that reduces property value. Both mortgagor and mortgagee have a right of action against a third part who wrongfully injures the property
transfer of interest
transfer by mortgagor: may be done without mortgagee consent. does not affect liability unless the mortgagee agrees to substitute the mortgagor
liability of the parties in a transfer by a mortgagor
-assumption: mortgagor remains liable, transferee is liable and property is subject to foreclosure if payments are not made
transfer by mortgagee: a mortgage may be transferred or assigned by the mortgagee
rights of mortgagee after default
mortgagee may enforce the mortgage by foreclosure, resulting in the sale of the property.
stay of foreclosure: in some cases authorized by statute to prevent undue hardship
redemption: mortgagor has the right to pay off the mortgage lien and all foreclosure expenses and thus acquire title to property
real land
land and all rights in land
dominant tenement
land that is benefited by an easement
servient tenement
land that is subject to an easement
way of necessity
a grantee’s right to use land retained by the grantor for going to and from the conveyed land
estoppel
the principle by which a person is barred from pursuing a certain court of action or of disputing the truth of certain matters
prescription
the acquisition of a right to use the land of another, as an easement, through the making of hostile, visible, and notorious use of the land, continuing for the period specified by the local law
tax lien
a lien on property by a government agency for nonpayment of taxes
