Critical Pass - Property Flashcards
1
Q
xfAt common law, what is required for there to be a joint tenancy
A
the 4 unities: TTIP
1) Time - conveyance to two or more persons at same time
2) Title - same instrument
3) Interest - Identical and equal interests
4) Possession - equal possession rights
2
Q
Modern law requires what in addition to the 4 unities?
A
an clear expression of the right of survivorship
3
Q
A conveyance to 2 or more persons presumptively creates.. (at modern law)
A
a tenancy in common, not a joint tenancy.
Need the clear expression of right of survivorship
4
Q
A joint tenancy:
Alienable?
Descendible?
Devisable?
A
alienable, but not devisable or descendible
5
Q
If one JT dies, surviving JT’s automatically..
A
take equal possession of deceased JT’s share
6
Q
Severance: a joint tenancy can be severed in one of four ways:
A
(mnemonic=G SAM):
1) by giving it away during life,
2) by signing a contract for sale,
3) by an actual judicial sale by a judgment lien creditor,
or
4) by granting a mortgage in a title theory state.
7
Q
Severance by any JT creates a ..
A
tenancy in common
8
Q
Upon transfer of a joint tenants interest, the interest becomes a …… but what is the special situation with this?
A
Transfer makes the interest a tenancy in common
But, the entire JT is not destroyed if two or more JTs remain!
9
Q
What are the two theories for mortgages severing a JT?
A
lien theory (majority) vs. title theory (minority)
1) Lien theory Jx—JT can take a mortgage on her interest without severing JT (b/c no title passes to mortgagee)
2) Title theory Jx—JT is severed if any JT takes a mortgage on her interest b/c title passes to the mortgagee
10
Q
An estate with multiple tenants in which each co-tenant owns a distinct, undivided interest and each has a right to possession of the whole estate
A
tenancy in common
11
Q
Tenancy in Common:
Alienable
Devisable
Descendible?
A
Yes to all - freely transferable
12
Q
default concurrent estate
A
tenancy in common
13
Q
upon death of a co-tenant, her interest does not..
A
pass by law to remaining co-tenants
but the co-tenant can transfer her interest
14
Q
can a co-tenant (TIC) rent his interest? What happens?
A
Yes a co-tenant can lease his individual interest, which transfers his right of possession to lessee, but co-tenants have a right to share in rents from third-party lessee
15
Q
Can a co-tenant seek judicial partition? What if partition is not feasible?
A
a co-tenant may seek judicial partition (i.e., division of property); if not feasible, property may be sold and proceeds apportioned among co-tenants
16
Q
what is tenancy by entirety?
A
a marital estate (between married couple)
17
Q
Creation of tenancy by entirety?
A
created by conveyance to a married couple and requires the same four conditions as a JT (time, title, interest, possession)
Tenancy by the entirety is presumed in any conveyance made jointly to a married couple
18
Q
What is the right of survivorship for tenancy by entirety?
A
property automatically passes to surviving spouse
19
Q
What if one spouse in a tenancy by entirety tries to convey or partition their interest?
A
one spouse may not unilaterally convey or partition her interest; attempt to do so is invalid BUT will not destroy the tenancy
20
Q
who are the only creditors that can reach a spouses’s interest in a tenancy by entirety?
A
only creditors of the couple (i.e., joint creditors) can reach a tenancy by the entirety
21
Q
What are the three ways a tenancy by entirety can be severed? What happens upon severance?
A
Becomes a TIC
- Death of one co-tenant
- Issuance of a divorce decree
- Execution by a joint creditor (e.g., foreclosure)
22
Q
Each co-tenant has the right to possess..
A
the whole property, but has no right to exclusive possession of any part
23
Q
if 1 co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, they have committed…
A
ouster (an actionable wrong)
24
Q
is a co-tenant required to pay rent or reimburse the other tenants for their use?
A
no - but each co-tenant has the right to share in rents from third parties and profits derived from the use of land that depletes its value
25
a co tenant cannot acquire title to the exclusion of other co-tenants through AP unless..
the co-tenants are ousted for the statutory period
26
what carrying costs are co tenants liable for?
fair share of taxes, interest, etc.
27
can a tenant seek contribution from co-tenants for reasonable repairs?
yes but they must inform co-tenants before making repairs
28
co-tenants have no right to contribution from co-tenants for
improvements
29
what about waste and co-tenants?
they must not commit waste, if they do, tenant can bring an action for waste against co-tenants during the life of the tenancy
30
What are the 3 types of waste?
1) voluntary - willful waste
2) permissive - neglect
3) amerliorative - unilateral change that increases value
31
A joint tenant or tenant in common has a right to bring an action for..
partition
32
three types of partition:
1. voluntary agreement,
2. partition in kind (court preference)
and 3. forced sale.
33
what if the property cant be divided for partition?
permitted to sell and apportion the proceeds
34
Can co-tenants agree to not partition?
yes but only for a limited time (otherwise invalid)
35
what 2 types of tenancy have a right of survivorship
1. joint tenancy
2. tenancy by entirety
36
what is a leasehold?
estate in which the tenant has a present possessory property interest and the landlord has a future interest (reversion)
37
4 leasehold estates:
The tenancy for years
*
The periodic tenancy
*
The tenancy at will
*
The tenancy at sufferance
38
a leasehold estate that is fixed for a period of time
tenancy for years - need a definitive beginning and end
39
what happens once the term is up for a tenancy for years?
Terminates automatically at the end of the period, no needed notice
40
what needs to happen if a tenancy for years is for 2+ years?
needs to be in writing (more than 1year) SOF
41
Leaseholds: Tenancy estate that repeats until terminated (continuous for successive intervals) until either party gives notice of termination
Periodic tenancy
42
Leaseholds: Either party can terminate at any time without notice
Tenancy at will
43
Leaseholds: Tenant has possession by virtue of wrongfully remaining after termination of a lease (holdover tenant)
Tenancy at sufferance
44
How can a periodic tenancy be created?
1. express
2. implied
3. by operative of law (invalid lease, holdover tenant)
45
when is a periodic tenancy implied?
a lease that does not specify duration, but provides for rent to be paid at set intervals
46
two situations where periodic tenancy created by operation of law
1) Invalid lease—if tenant takes possession despite an invalid lease (e.g., lease violates SoF), periodic tenancy arises upon landlord’s acceptance of payment
Period of the tenancy is determined by the period the payment covers
2) Holdover tenant—if landlord accepts rent from a holdover tenant, a periodic tenancy arises for the period the payment covers
47
how to terminate a periodic tenancy?
tenant must give proper notice, which requires:
1. Sufficient time—tenant must give notice one full period in advance; year-to-year tenancies require six-month notice under common law, one month under the modern view
2. Effective date—effective date of termination must be at the end of the period of the tenancy
*this can be contracted around*
48
Creation of tenancy at will?
need express agreement
Without an express agreement, courts will treat the lease as an implied periodic tenancy
49
two ways to terminate a tenancy at will:
1. by will (no notice)
2. operation of law:
1. Death of either party
2. Waste by the tenant
3. Assignment by the tenant
4. Transfer of title by the landlord
5. Lease by the landlord to a third party
50
what leasehold typically arises when a tenant continues to possess property after the lease has expired?
Tenancy at sufferance (holdover tenant)
51
Creation of a tenancy at sufferance
tenant holds possession beyond lease expiration
The expired lease’s terms and conditions automatically carry over to the tenancy at sufferance
52
what are the LL's options when there is a tenancy at sufferance?
1) Sue to evict, or
2) Impose a new periodic tenancy
53
if you have a tenant who will not get out after their lease is up, can the LL raise the rent?
landlord can demand higher rent for both the holdover period and any new periodic tenancy ONLY if he gave notice of the increase before the lease expired
54
if the LL wants to impose a new periodic tenancy on a holdover tenant, what is the limitation they must abide by? what is reasonable?
the new periodic tenancy must be reasonable
Unreasonable if:
1. Tenant only remains in possession for a few hours
2. Tenant is not at fault for delay in vacating (e.g., illness)
3. Seasonal leases (e.g., ski cabin, beach house)
55
tenant's primary duties:
1. repair
2. pay rent
56
the tenant's duty to repair can be modified by the lease, but they must...
maintain premises and make ordinary repairs
57
Tenant must not commit waste: what are the 3 types:
1. Voluntary—overt, harmful acts (e.g., removing fixtures)
2. Permissive—neglect
3. Ameliorative—alterations increasing property value
58
what if the destruction of the premises is of no fault of the LL or tenant? How do you resolve this?
Common law—tenant held liable for any loss
Modern law—tenant can terminate lease
59
If a tenant is on the premises and fails to pay rent, the LL can:
1. evict and
2. sue for rent due
LL CANNOT ENGAGE IN SELF HELP! (changing locks, removing tenant, or removing their possessions)
60
what if the tenant wrongfully vacates with time left on their lease, what are the LLs options?
SIR
1) surrender
2) ignore the abandonment (do nothing and hold tenant liable for rent)
3) re-let the premises
Some majority states require LL to at least try to relet
61
what happens if your entire lease is taken by eminent domain?
depends on if the taking is temporary or total
If temporary: tenant is not discharged from rent, but is entitled to compensation (share of condemnation award) of taking
If total: tenant is not liable for rent
62
if a tenant is not moving out after their lease is up, can the LL forcibly remove tenant or their belongings?
no, LL may not engage in self help upon a tenant breach
63
what are the 4 implied duties a LL has to a tenant?
1. duty to deliver possession
2. implied covenant of quiet enjoyment
3. implied warranty of habitability
4. tort liability
64
the majority rule for LL's duty to deliver possession requires that LL
put the tenant in actual physical possession of the premises
65
how can a breach of the implied covenant of quiet enjoyment arise
1. Breach may occur by actual or constructive eviction
2. Breach may occur by landlord’s wrongful conduct causing loss of use and enjoyment by tenant
66
what is actual eviction?
LL wrongfully evicts or excludes tenant from property
67
what is constructive eviction?
LL's actions or inactions render the property unlivable/unusable
68
Elements of constructive eviction
SING
1) substantial interference
2) notice - Tenant must inform LL and give him reasonable opportunity to repair
3) Good bye - tenant must vacate within reasonable time after LL fails to repair
69
most idx's imply what covenant in ONLY residential leases?
Implied warranty of habitability (ONLY RESIDENTIAL, NOT COMMERCIAL)
70
What constitutes a breach of the implied warranty of habitability?
Local code or case law specifies the standard for a breach
E.g., no heat in winter, no plumbing, no water, etc. are types of problems that could give rise to violation of the implied warranty of habitability
71
tenant's remedies when implied warranty of habitability is breached
MR3
1) move
2) repair and deduct
3) Reduce rent or withhold all rent
4) remain in possession and sue for damages
72
what kinds of things can expose a LL to tort liability to a tenant?
CLAPS
1) common areas (reasonable care)
2) latent defects
3) assumption of repairs
4) public use
5) seasonal or short term lease of a furnished dwelling
73
what duty does a LL have for latent defects?
duty to disclose
74
what liability does LL have for assumption of repairs?
liable for harm caused by negligent repairs he chose to do
75
LL liability for defects in public use property
known defects
76
For a seasonal or short term lease of a dwelling, what is LL liable for
defects that cause harm to tenant
77
Transfer of entire remaining term of lease
Transfer of part of remaining term of lease
Assignment: Transfer of entire remaining term of lease
Sublease: Transfer of part of remaining term of lease
78
Under an assignment, who owes rent to the LL? What if they dont pay?
Assignee owes rent directly to landlord, but assignor remains liable for unpaid rent unless landlord expressly releases tenant (novation)
79
Assignor and assignee both remain....
in privity with the LL in an assignment
80
in a sublease situation, who remains on the hook with the LL
sublessor only (this relationship is unchanged)
Sublessee pays rent to sublessor as her tenant
81
Is the sublessee technically responsible for paying rent at all?
No - sublessor is unless expressly assumed.
82
are lease provisions restricting assignment or sublease are enforceable?
Lease provisions restricting assignment or sublease are enforceable, but generally construed against landlords
83
what if a LL gives a tenant permission to assign or sublet, but later says nah you cant do that by pointing a provision in the lease?
Once landlord gives a tenant permission to assign or sublet, such provisions are thereafter waived
84
4 types of easements?
1) easement appurtenant
2) easement in gross
3) affirmative easement
4) negative easement
85
4 types of affirmative easements:
PING
1) prescription
2) implication
3) necessity
4) grant
86
4 types of negative easements
LASS
1) Light
2) Air
3) Support
4) stream water
87
What is an easement appurtenant?
need 2 parcels
(dominant estate owner is using a servient estate's land)
88
An easement appurtenant attaches to the
dominant estate and passes automatically (even if not mentioned in the conveyance)
89
what is an easement in gross?
No one is benefitted by the easement (no dominant parcel), and there is only 1 parcel
*easement is for commercial purposes
ex. right to place a billboard on another’s lot, right to run utility line across land, right to fish in another’s pond
90
Can easements be expressly created by grant or reservation?
How do you create them?
Yes
Express easements must be:
1) in writing
2) signed by serviant estate hodler
91
Creation of Easement by prescription
COAH
1) continuous use for statutory period
2) open and notorious use
3) actual
4) hostile (without consent)
92
creation of easement by implication
An easement legally implied based on prior use by a common grantor on land subsequently divided into multiple plots
93
elements for creation of easement by implication
1, Easement exists prior to division of a single tract of land;
2. Common grantor’s use is continuous and apparent;
3. Use is reasonably necessary for enjoyment of the dominant tenement; and
4. Parties intended the use to continue after division of the land
94
What if there was no prior use, but someone is saying that the easement was still implied (by implication)?
Can still exist where:
1. lots in subdivision are sold with reference to a map plan; or
2. holder of profit has an implied easement for extraction of materials
95
when is an easement by necessity created
when access to or from a property is impossible without the easement (landlocked)
96
when does an easement by necessity terminate?
when the need expires
97
how can a negative easement be created?
Can only be created by express grant (writing signed by grantor)
98
easement appurtenant transfers automatically with....
easement in gross is...
easement appurtenant is automatically transferred with the dominant tenement
Easement in gross is assignmable
99
ways an easement can be terminated
END CRAMP
E - Estoppel (servient owner materially changes positions in reliance)
N - Necessity ends (when need ends unless expressed in a WRITING)
D - destruction (of serviant land)
C - Condemnation (of serviant land) - eminent domain power will terminate the easement
R - Release by holder to servient owner
A - Abandonment (physical action)
M - Merger (easement and servient land held by same person)
P - Prescription (by servient owner)
100
how can an easement be terminated by estoppel?
Where servient owner reasonably relied on easement holder's conduct or representations indicating an intent to abandon the easement
101
oral permission for neighbor to use licensor’s pool, theater tickets (grant a license to ticket holders), right to use a parking lot
license (it is revocable)
102
a promise to do or refrain from doing something related to land
covenant
103
covenant concerning real property
real covenant
104
covenant vs. equitable servitude
Covenant - money damages
Equitable servitude - injunction
105
What is horizontal privity?
horizontal privity refers to a specific type of relationship between the two original parties who entered into the covenant, you need some concrete interest in the land independent of the covenant (hard to establish)
ex. mortgagor/mortgagee, LL/tenant, grantor/grantee
106
what is vertical privity
specific type of relationship between successors in interest (easy to satisfy bc selling the property to a successor satisfies)
107
horizontal and vertical privity is only required for..
a burden to run
only vertical privity is required for a benefit to run
108
A and B are neighbors and there is a fence surrounding B’s property. B promises A that B will continue to keep the fence in good repair. Now let’s say that A sells his property to C. C is the new holder of the benefit of looking at a nicely maintained fence, while B still has the burden of keeping the fence maintained. If B stops maintaining the fence, then we have to consider whether C can sue B.
Horizontal privity?
Vertical privity?
Horizontal: it appears that A and B are just your standard neighbors, so they do not have the required horizontal privity relationship. Since horizontal privity is not present, this means that the burden cannot run with the land and none of B’s successors will be able to be sued for breach of the real covenant.
Vertical: we need the benefit to run with the land in order for C to be able to sue B, which would require vertical privity This means that there must be some sort of successor relationship between A and C. In this case there is, since A sold the property to C. So the vertical privity requirement is met
109
Req's for Burdens of Covenant to run with the land
WITHN
1) writing
2) intent that covenant would run
3) touches and concerns the land/restrict the burdened parcel owner in her use of the parcel
4) horizontal and vertical privity
5) Notice
110
Req's for Benefits of Covenant to Run with the Land
WITV
1) writing
2) intent
3) touches and concerns the land
4) vertical privity
111
Req's for equitable servitudes to run with the land
WITNES
1) writing
2) Intent that promise would be enforceble by and against successors
3) Touch and concern - promise effects the parties
4) Notice
5) Equitable servitude - just a reminder
112
if a party is seeking an injunction, but then there is no writing evidencing the covenant, what is your next option for recovery?
implied equitable servitude -- common scheme doctrine
113
a court will not enforce an equitable servitude if any of these exist:
1. Pervasive changes in the neighborhood
2. Estoppel
3. Acquiescence
4. Unclean hands
5. Laches
114
where an owner divides land into smaller lots to create a common development scheme/ subdivision - think of...
implied equitable servitude/reciprocal negative easement
115
how is an implied reciprocal servitude created? IMPORTANT HIGHLY TESTED
1. developer had a common scheme of residential development; and
2. The lot holder had notice of the promise in the prior deeds (AIR)
116
Common scheme for implied reciprocal servitude can be evidenced through:
1. recorded plat,
2. general pattern of restrictions, and/or
2. oral representations to early buyers
117
Notice can be of 3 types: (AIR)
1. actual
2. inquiry
3. record
118
what is inquiry notice?
neighborhood character indicates a common restriction
119
Elements of Adverse Possession
COAH
1) Continuous for statutory period
2) open and notorious
3) actual and exclusive
4) hostile - without consent
120
for AP, does continuous for statutory period mean that the person needs to possess the property daily?
No, daily possession is not required if an ordinary user would not use the property daily
121
if a tenant stays in possession after a lease has expired, can he later claim AP?
No, he cannot satisfy the "hostile" element bc he is presumed to have permission
122
For AP, the SOL does not run against a holder of a future interest until..
the interest becomes possessory
123
Rule on adverse possession and ppl with disabilities
SoL does not begin to run if the true owner was under some disability when the adverse possession began
124
a covenant will run with the land in an AP case if...
the AP's use complied with the covenant (ONLY)
125
What is color of title?
a claim of title to property not actually owned
126
is AP enough for color of title?
Adversely possessing part of the property under color of title is sufficient to acquire title to the entire property
127
If there are multiple adverse possessors, what can they do to meet the statutory period of continuous possession?
Tack their successive periods
128
To tack their time for AP, what are the 2 reqs?
Must be 1) successive 2) privity between successive adverse possessors
129
how can a co-tenant successfully claim adverse possession?
If ouster occurred and the co-tenant is excluded from the land for the statutory period
130
Land sale Ks must be: (3)
1. in writing (SOF)
2. signed by both parties
3. articulate essential terms
131
when can a land sale K be enforceable even outside the SOF?
If the buyer does any two of the following:
1. payment
2. possession
3. improvements
132
when does the doctrine of equitable conversion arise?
after the K is signed and before closing (escrow period)
133
doctrine of equitable conversion states that once the K is signed...
buyer owns real property
seller owns personal property (proceeds of sale)
134
if property is destroyed before closing through no fault of the parties, WHO bears the risk of loss in most jurisdictions
buyer (even if he has not taken possession).
Can K around this.
135
If a buyer or seller dies before closing, rights to the K pass according to ...
interests held
Seller's interest: passes as to personal property (sellers estate can sue for sale proceeds)
Buyers interest: passes as real property
136
what are the 2 implied promises in land sale Ks
1) promise to provide marketable title
2) promise to disclose and make no material false statements
137
common defects that render a title unmarketable? (3)
1. acquired by AP
2. zoning ordinance violations existing at sale
2. encumbered interests (mortgages, liens, easements, restrictive covenants)
138
If there is an outstanding mortgage or lien at closing, can the buyer claim the title is unmarketable?
not yet, seller has the right to satisfy a mortgage or lien with the proceeds of the sale.
139
A seller has the duty to disclose what kind of defects?
known latent material defects
140
What is merger in a contract for sale?
on the closing date, the K for sale merges into the deed, so the buyer can only sue on the deed now
141
A builder of new homes impliedly warrants to the buyer that...
home is habitable and fit for its intended purposes (breach of implied warranty of habitability). this warranty covers defects due to builder's negligence and failure to act in workmanlike way
142
to be a valid deed, it must be
1) lawfully executed (signed, identify parties, legal description of land)
2) delivered (title passes upon effective delivery)
143
delivery of a deed is a question of ...... important
intent to pass title presently
144
3 types of deeds:
1. general warranty
2. quitclaim
3. special warranty
145
what is a quitclaim deed
grantor gives no covenants (promises nothing) and the grantee gets whatever the grantor has. Grantee takes subject to any defects, undisclosed easements, etc. and has NO RECOURSE.
grantor is not even promising he has title to convey.
146
what is a general warranty deed
grantor gives 6 covenants (three present and three future)
147
in a general warranty deed, what are 3 PRESENT covenants concerning title? highly tested
(mnemonic=PRESENT): RSN
1. Right to convey
2. Seisin
*both of these mean that seller guarantees he owns the land he is selling*
3. No encumbrances (no easements, liens, etc.)
148
General warranty deed Future covenants:
FEW
1. further assurances
2. quiet enjoyment
3. Warranty
149
150
what is a special warranty deed
grantor assumes that he has not conveyed the land to another, and the land is free from encumbrances
151
Under common law, remote grantees under a general warranty deed can sue only for...
future (not present) covenants. but some jdx's change this.
152
A Bona Fide Purchaser for Value BFP is one who
purchases property for value (i.e., gives pecuniary consideration) without notice of a prior conveyance
153
BFP definition does NOT include......... but can include...
Includes mortgagees for value
Does not include donees, heirs, or devisees
154
under common law, a grantor can convey only those rights that the grantor had ....
at the time of the conveyance (first in time, first in right).
state have recording statutes that change this tho.
155
“No conveyance or mortgage of an interest in land shall be valid against any subsequent purchaser for value without notice thereof unless it is recorded”
Notice statute
156
In a notice statute jdx, who wins?
Last BFP wins
protect those BFP who take without notice of an earlier transaction
157
Sample language: “No conveyance or mortgage of an interest in land shall be valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded”
Race Notice Statute
158
Sample language: “No conveyance or mortgage of an interest in land shall be valid against a subsequent purchaser whose conveyance is first recorded”
Race statute
159
race notice statutes protect...
subsequent BFP who take without notice and are the first to record. Typically, first BFP to record prevails.
160
Race statutes protect...
first to record (first to record wins, regardless of whether they are BFP_
161
what does the shelter rule do?
anyone who takes from a BFP will prevail against any interest the BFP Would have prevailed against.
Protects ppl who are not BFPs
162
what is a wild deed?
a recorded deed unconnected to the chain of title (e.g., due to a clerk’s filing error or the failure to record a prior deed)
163
what is estoppel by deed
a grantor who conveys title to land he does not then own is estopped from subsequently acquiring the same land
Title automatically passes to the benefit of grantee
Prevents one from conveying land they do not presently own and later validly acquiring it (e.g., through a will)
164
real estate agents have a duty to..
disclose material info about which they have actual knowledge
165
what is a mortgage
A mortgage is a security interest in land that serves as collateral for the repayment of a loan (a.k.a. “mortgage deed,” “note”)
NEEDS TO BE IN WRITING (SOF)
166
who is mortgagor and mortgagee
mortgagor: homeowner
mortgagee: creditor
167
how can the mortgagee transfer their interest?
Creditor can transfer her interest by:
1. indorsing the note and delivering it to the transferee; OR
2. executing a separate document of assignment
168
what is the lien theory for mortgages?
The majority view: mortgage is a lien on the title, and one JT's execution of a mortgage on her interest does not sever a Joint tenancy.
169
Under the lien theory, what is the only way a joint tenancy can be severed?
if mortgage is foreclosed and the property is sold
170
What is the minority view for mortgages?
Title theory: mortgage is a transfer of title and severs a joint tenancy. creditor has title during the loan term, not the homeowner.
171
what is an acceleration clause in a mortgage
terms in loan agreements that require mortgagor to pay off full loan immediately if certain conditions are met, e.g., if mortgagor misses too many payments
172
can a homeowner transfer title to her property even with a mortgage?
yes but the mortgage remains on the land. generally, new owner takes land subject to the mortgage but is not personally liable.
173
When is the only time a new homeowner can be liable for mortgage on the land from a previous owner?
If they assume the mortgage (like promising to pay the mortgage payments)
174
upon default, mortgagee can satisfy debt through...
foreclosure by judicial action
175
If proceeds from a foreclosure sale exceed the debt balance, what happens?
junior liens are paid in order of priority
176
what can a mortgagor do any time prior to a foreclosure sale?
redeem the property by paying the amount due
177
what can mortgagor do to avoid foreclosure and make the creditor happy?
mortgagor can agree to give mortgagee deed to property; such transactions will be valid as long as they are fair and reasonable under the circumstances
178
mortgagee's right to possession under:
1) lien theory
2) title theory
3) intermediate theory
1) lien: no right to possess before foreclsoure
2) title: right to possess anytime upon demand
3) intermediate: right to possess upon default
179
Mortgagee can ALWAYS take possession of the property with...
mortgagors consent or abandonment
180
priority of creditors: purchase money mortgages (PMM) is......
superior to all interests
mortgage given in exchange for funds used to buy the property; PMM is given either to the seller as part of the purchase price or to a third-party lender (if both, seller’s PMM is senior to the third-party lender)
181
how do you determine priority when there are multiple creditors?
recorded interests take priority in the order recorded
182
how are junior and senior interests treated for mortgages? (when there are multiple creditors)
junior interests - terminated by foreclosure of a superior claim
I.e., upon foreclosure, junior interest holders cannot look to the land to satisfy debts
Senior interests - unaffected by junior interest foreclosures; buyer takes subject to them. they remain on the land
183
who are necessary creditors in a foreclosure action? what happens if they are not included?
Who are the necessary parties:
-Junior lienholders
-Debtor too!
If necessary party not joined, they mortgage remains on the LAND!!!
184
Right to have land supported in NATURAL state by adjoining land
lateral support
185
standards of liable if:
1) D landowner excavation damages P's adjacent land
2) land improved by buildings/etc.
1) strict liability for land in natural state
2) excavator liable if negligent
186
water rights in water courses (lakes and rivers) are governed by what 2 doctrines:
1) riparian
2) prior appropriation doctrine
187
what does the riparian doctrine say? what are the 2 theories under this doctrine?
Riparian doctrine — water belongs to those who own land bordering the watercourse. Two theories:
1) Reasonable use theory (majority) — riparian owners share rights to reasonable use and are liable to other owners if their use unreasonably interferes with other owners’ use
Balance utility of use vs. gravity of harm
2) Natural flow theory (minority) — riparian owners may be enjoined for any use resulting in a substantial or material reduction in others’ water quantity, quality, or velocity
Under both theories, natural uses (e.g., household use) prevail over artificial uses (e.g., for manufacturing or irrigation)
188
what does the prior appropriation doctrine say?
water rights are originally acquired by actual use (first individual to make a beneficial use of the water has superior legal right to use)
189
what are the two primary ways to determine who has rights to groundwater?
1) reasonable use
2) prior appropriation
190
What are the 3 theories that govern surface water? (ex. rain water that has not yet reached a natural watercourse)
1) Natural flow theory — owners cannot unreasonably alter natural drainage
2) Common enemy theory — owners can do anything to change drainage or combat flow unless it causes unnecessary damage to others’ land
3) Reasonable use theory — utility of use is balanced against the gravity of harm from that use
191
Are landowners free to use surface water? (rain water)
yes but they can be liable if they interrupt the flow in a way that impacts other owners
192
Restrictions on zoning ordinances: (3)
1. related to public welfare
2) not too restrictive
3) not racially discriminatory.
193
what is a variance in the zoning context?
landowners can get govt. permission to be exempt or vary from literal restrictions of a zoning ordinance
194
req's for a variance: 2
Requirements — to qualify for a variance, a landowner must show:
1. Undue hardship; and
2. Variance will not be contrary to public welfare
195
can the government eliminate a once conforming use (now nonconforming) all at once?
No - unless just compensation is paid.
196
what will the govt typically require for property uses that require a special use permit
exactions - condition on govt approval of a new development (like a payment or gift of property)
197
due to population increase from a new housing development, govt. will have to install new bus stops and traffic lights in surrounding areas— govt. can seek some ....
exaction (ex. payment) from developer
198
exactions are unconstitutional unless what can be shown (2):
1. Nexus— there must be a rational relationship (nexus) between the exaction sought by the govt. and the burden on public facilities; and
2. Proportionality — exaction must reasonably relate, in nature and scope, to the impact of the development
199
Real property is subject to the law of ....
the jurisdiction where it is situated
200
Ks related to real property are generally governed by the law of...
the place where the property is situated.
201
can the debtor waive the right to redeem (mortgage/foreclosure)?
no cannot waive at front end of the deal! the right of redemption can only be exercised after foreclosure sale.
202
when a contractor's duty to finish construction is req'd and when it is discharged for impracticability
Unlike destruction of the building itself before completion, which will NOT discharge a contractor's duty, the erosion of the lot, which destroys the means of performing the contract, will generally not be one of the risks that a builder will be deemed to have assumed
