Leases/Mortgages/Worker's Comp. Flashcards
When may an equitable mortgage exist?
- when a legal mortgage is defectively executed
- when there is sufficient part performance despite the absence of a writing
- where a writing exists and both parties intended to include land that was not described in the writing – mortgage will apply to un-described land
What must be true of a mortgage for it to be enforceable?
It must comply with the Statute of Frauds (SOF) – must be in writing and signed by mortgagor or agent
What types of property are subject to a mortgage?
- real property owned and described in the mortgage at the time mortgage is conveyed
- accessions to mortgaged real property even if they are acquired subsequent to the mortgage
* *accessions are personal property affixed to the real property
In NY, what rights does a mortgagee have in the land?
Mortgagee has a lien
*mortgagee – person/entity(bank) receiving mortgage
In NY, what rights does a mortgagor have in the land?
Mortgagor had title and right to possession (until foreclosure)
*mortgagor – person granting mortgage
What 2 options does a mortgagee have when the debt on a mortgage is due and unpaid?
- suit on the debt
2. foreclosure
When is a foreclosure prohibited?
if
- mortgage secured to pay legal fees in a matrimonial action, AND
- mortgage is on mortgagor’s primary residence, AND
- the mortgagor remains the title holder
What circumstance will allow a foreclosure without judicial action?
- mortgage contains a power of sale
- no action as been brought on the debt
- a default has occurred granting mortgagee the power of sale under the mortgage
- mortgage is recorded
- foreclosure sale is advertised within the limitations period for judicial disclosure
What are the requirements for advertisement for a foreclosure without judicial action?
mortgagee must…
- must advertise once a week for 12 weeks preceding the sale
- post notice in county courthouse at least 84 days before sale
- must serve notice on mortgagor at least 28 days before sale
What is a lease?
a transfer of the right to possession and use of goods for a term in return for consideration
What are goods?
all things that are movable at the time of identification of the lease contract
When is a contract a disguised sale on credit rather than a true lease?
if. .
1. lessee has no right to terminate obligation to pay during the lease term AND
2. lease is for the entire economic life of the good or grants option to renew for entire economic life for nominal (or no) consideration OR
3. lessee will become or has option to purchase goods for nominal (or no) consideration
What 2 factors alone do not indicate a disguised sale on credit?
- lessee pays consideration equal to or greater than fair market value of leased goods
- lessee assumes major duties
When must a lease be in writing?
When the total payments under the lease will be $1,000 or more
When a lease must be in writing, what must it include to comply with the SOF? (5)
- signed
- describe leased goods
- describe lease term
- indicate a lease contract has been made b/w the parties
- specify the quantity of leased goods
What is a finance lease?
instead of buying goods and financing the sale, lessee has lessor by goods from a seller and then lease them to lessee
When will a finance lease not occur?
when the lessor is in the business of selecting, manufacturing, or selling the kinds of goods involved no finance lease occurs
What amount of damages does a lessor who has repossessed goods get?
Lessor gets actual damages MINUS the amount lessor secured from re-leasing the goods
When is a sublease allowable?
When lease agreement clearly allows sublease
What is an artisan’s/mechanics lien?
lien given to artisan’s who perform work on leased property, this lien prevails over all other claims so long as artisan maintains possession
ex: take leased car to mechanic – mechanic has lien on value of repairs as long as she does not surrender possession
