Conveyances of Land Flashcards
What are the elements of Adverse Possession?
To establish title by adverse possession, the possessor must show:
(1) Open and Notorious - Possession is open and notorious when it is the kind of use the owner would make of the land, and sufficiently apparent to put the true owner on notice.
(2) Actual and Exclusive Possession - An adverse possessor gains title only to land actually possessed, and may not share with the true owner or public.
(3) Continuous - The possession must be continuous and begins to run when the true owner can first bring suit. Constant use is not requires, so long as possession is of a type the usual owner would make.
(4) Hostile - The possessor must enter without the owner’s permission.
(5) For the statutory period.
What are the elements of Easement by Prescription?
Acquiring an easement by prescription is similar to adverse possession. The use must be: (1) open and notorious, (2) adverse, (3) continuous and uninterrupted; (4) for the statutory period. (No requirement of exclusive possession)
What are the two Fee Simple Defeasible Fees?
Fee Simple Determinable/Possibility of Reverter in Grantor: A fee simple determinable is created by durational language such as “for so long as,” “while,” “during,” or “until.” (“To A so long as …”)
Fee Simple Subject to Condition Subsequent/Right of Re-Entry in Grantor: A fee simple subject to condition subsequent is created by words of condition, such as “upon condition that,” “provided that,” “but if,” or “if it happens that.” (“To A …; but if the property is used as/A does x …”)
What are the four types of Estates in Land?
Life Estate: A life estate is a present possessory estate measured by the life of a person or lives of people. The holder of a life estate is entitled to any ordinary uses and profits of the land, but cannot do anything that injures the interest of a remainderman or reversioner
Executory Interests: An executory interest is a third party’s interest that does not follow the natural termination of the preceding estate, and is subject to the Rule Against Perpetuities. (“To A so long as the property is used for residential purposes; then to B.”) (“To A and his heirs; but if the property ceases to be used as residential property, then to B.”)
Vested Remainder: A vested remainder is created in a person or class of persons that is certain to become possessory and not subject to a condition precedent. (“To John and his heirs.”)
Contingent Remainder: A contingent remainder is created in unborn or unascertained person or persons subject to a condition precedent. (“To John, so long as he attains the age of 35.”)
What is the Doctrine of Merger?
Merger: Where one person acquires all the present and future interests in land, it becomes fee simple.
What are Class Gifts?
Class Gifts: A class gift is a gift to a group of persons having a common characteristic, in which each member’s share is determined by the number of persons in the class.
Rule of Convenience: Under the Rule of Convenience, a class closes when some member of the class can call for distribution of her share. (“To all the children of X.”)
What is the Rule Against Perpetuities?
A future interest must vest, if at all, within the lives in being plus 21 years.
Where a transfer violates RAP, the offensive interest is stricken and classified as if never there.
What is required when Conveyancing a Deed?
A deed must (1) executed in writing, (2) delivered, and (3) accepted.
Quitclaim Deed - A quitclaim deed releases whatever interest the grantor has (no covenants included.)
Implied Covenant of Marketable Title - Title reasonably free from doubt and an unreasonable risk of litigation
What is a Warranty Deed? (SConE WaFE)
General Warranty: A general warranty deed contains three present warranties (seisin, right to convey, and against encumbrances) and three future warranties (quiet enjoyment, warranty, and further assurances).
SConE Present Warranties 1. Seisin (Title and Possession) 2. Convey (Authority to Grant) 3. Encumbrances (No Physical/Title Encumbrances)
WaFE
Future Warranties
4. Warranty (Defend Against Claims of Superior Title)
5. Further Assurances (Perfect Title)
6. Enjoyment (No 3rd Party Lawful Claims of Title)
What are the three types of Recording Statutes?
Race: Under a race statute, whomever records first wins. Typically, a race statute uses language such as “whose conveyance is first recorded.”
Notice: Under a notice statute, a subsequent BFP who (1) pays value and (2) has no notice of the prior instrument prevails over a prior grantee. Typically, a notice statute uses language such as “without notice thereof, unless it is recorded.”
Race-Notice: Under a race-notice statute, a subsequent BFP is protected only if she (1) takes without notice and also (2) records before a prior grantee. Typically, a race-notice statute uses language such as “without notice thereof whose conveyance is first recorded.”
What is a Mortgage and Foreclosure?
Mortgage: A mortgage is a security interest in property.
Purchase Money Mortgage: A purchase money mortgage (PMM) is a mortgage given in exchange for funds used to purchase the property, and has priority over prior non-PMMs.
Foreclosure: Foreclosure is the process in which a property is sold to satisfy a debt in whole or part.
Proceeds of foreclosure sale:
(1) To mortgagee; THEN
(2) To other mortgages in order of priority; THEN
(3) To mortgagor
What is the Equitable right of redemption?
Redemption in Equity: At any time prior to the foreclosure sale, the mortgagor may redeem the property by paying the amount due, or if there is an acceleration clause, the full balance of the note or mortgage—this right cannot be waived in the mortgage.
What is a Deed of Trust?
Deed of Trust: A deed of trust is a security interest in property and can be recorded
The debtor is the trustor, who gives a deed of trust to a third-party trustee connected to the lender (beneficiary). On default, the lender instructs the trustee to foreclose the deed of trust by sale.
What is a Deficiency Judgment?
If the proceeds are insufficient to satisfy the mortgage debt, the lender retains a personal cause of action against the borrower for the deficiency.
