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MBE > MBE Property > Flashcards

MBE Property Flashcards

1
Q

MBE

Joint Tenancy

A

Each party owns 50% with right of survivorship.

May be freely conveyed - to anyone at any time.

If conveyed, turns into tenancy in common.

right of survivorship always prevails

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2
Q

MBE

Tenancy in Common

A

Each party owns 50% with no right of survivorship.

Always a tenancy in common unless it legally turns into a joint tenancy.

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3
Q

MBE

Tenancy by Entirety

A

Legally married couple have right of survivorship.

Spouse may not convey without the other spouses consent. Is not always TBE if married – must be specified.

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4
Q

MBE

What must a real estate contract contain?

Does it need to satisfy the Sof?

A

1) Must be in writing – satisfy statute of frauds.
2) Must include all parties, price, terms – all elements to satisfy a contract.
3) Execution transfers equitable title.

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5
Q

MBE

What does execution of a real estate contract transfer and what happens?

A

equitable title!!

Shifts risk of loss on the buyer as soon as contract is signed.

Remember - marketable title is implied in this contract.

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6
Q

MBE

What does marketable title imply?

A

that title is free of liens and emcumbrances

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7
Q

MBE

What is needed for a deed? What does it do?

A

Must be delivery of deed by seller – seller must show intent to convey ownership. Acceptance is presumed by buyer unless facts say otherwise.

  1. Must include legal description of property – reasonable person can locate the property.
  2. Identifiable grantees.

Merger of reasonable real estate contract
-Once the deed is signed, the contract terms merge with the deed. Can’t sue on the contract – must sue on the deed. Execution conveys legal title (ownership).

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8
Q

MBE

What warranties does the deed give?

A

1) I am the legal owner and
2) I have the legal right to sell and
3) No one can stop me from selling and
4) If there are any issues, I’ll claim and
5) I’ll defend and
6) I’ll pay for any expenses.

These warranties are only about the quality of the title – does to have anything to do with the quality or conditions of the property

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9
Q

MBE

Types of warranty deeds

A
  1. General Warrantly Deed
  2. Special Warrantly Deed
  3. Quitclaim Deed
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10
Q

MBE

General Warranty Deed

A

Conveys clean title – promising everything is ok forever.

This deed checks history and guarantees that everything is ok.

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11
Q

MBE

Special Warranty Deed

A

Conveys clean title and promises that it is all ok while the current owner had title.

Current seller title is ok – no promises from before this ownership.

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12
Q

MBE

What is a quit claim deed

A

This deed conveys only the title – no promises attached.

Only transfers legal title but no guarantees.

Usually happens quickly – it’s a quick easy way to transfer title.

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13
Q

MBE

What is a purchase money mortgage?

A

Money borrowed to buy the actual house. This loan always has priority.

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14
Q

MBE

What happens if new owner assumes mortgage?

A

New buyer takes over the previous mortgage.

Bank can still come after the original owner unless there’s a novation.

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15
Q

MBE

What does “subject to” mean on a new buyer

A

Original owner remains liable on the note.

Buyer has no financial duty to pay the mortgage, but bank still has the right to foreclose due to sellers previous mortgage.

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16
Q

MBE

Lien Theory

A

Bank has lien on the property, but resident has the legal title.

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17
Q

MBE

Title theory

A

Bank has legal title – resident has an equitable interest.

When they pay off mortgage, they receive title.

Joint tenancy + title theory + mortgage = tenancy in common!

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18
Q

MBE

Equitable Redemption (before sale)

A

Period of time from notice of foreclosure until sale that residents can pay off debt and keep property.

Can never be waived – owner has the right to redeem until sale.

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19
Q

MBE

Statutory Redemption

A

Period of time from sale until whatever statute provides that residents can still keep their property.

Jurisdiction provides statute giving owner more time after the sale.

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20
Q

MBE

Adverse Possession

A

Must be:
1. Exclusive - only you
2. Acural and continuous - for the statutory period and uninterrupted.
3. Open an notorious - sufficiently apperant to put the tue owner on notice.
4. Hostile - without owners consent

posessors mental state does not matter

property taxes do not need to be paid but good evidence of a claim of right

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21
Q

MBE

Race Statute

A

First person to courthouse who records the deed - WINS!

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22
Q

MBE

Notice

A

Last bona fide purchaser with no notice, wins!

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23
Q

MBE

Race Notice

A

First bona fide purchaser who records, wins!

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24
Q

MBE

Bona Fide Purchaser

A

Someone who paid for value and no notice of earlier transaction

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25
# MBE Express Easement
in writing – lasts forever or as long as it states.
26
# MBE Necessity Easement
land locked – no other way to get out of land unless you pass by land. Lasts as long as you need it.
27
# MBE Implication Easement
implied from prior use
28
# MBE Prescription Easement
Statutory period of time and acquired the legal right to keep using it. Must have a statute.
29
# MBE How can easements be terminated?
Can be terminated by abandonment: 1) Stop using it and 2) Express intent not to return. Can also be termianated by merger!
30
# MBE 3 types of partitions
1. By voluntary agreement: allowable and peaceful way to end the relationship 2. judicial action - in kind: physical division of the property -if in the best interest of all parties. 3. Judicial action - forced sale: cant be physically devised, land is sold and the sale proceeds are divided.
31
# MBE Joint tenant kills other joint tenant - omg what happens
Joint tenancy is severed and creates a tenancy in common.
32
# MBE Tenancy by entirety and creditors
Cant be touched by creditors unless both parties acted together.
33
# MBE What can sever a tenancy by entirety
1. death 2. divorce 3. mutual agreement 4. execution by joint ceditor of both spouses
34
# MBE What are the rights and duties of co-tenants
Each tenant has the right to possess all portions of the property but no righ to exclusive control of ANY part. If excluded from premises - considered ouster.
35
# MBE Co-tenant with exclusive possession is:
Not liable to the other co-tenant for rent! Unless ouster!!
36
# MBE Co-tenant leasing all or part of the premises to a 3rd party must:
Provide fair share of rent with co-tenant.
37
# MBE Co-tenants: Carrying Costs
Each co-tenant must pay fair share. That means pay up on: 1. taxes 2. mortgage 3. interest payment All is calculated by % of ownership.
38
# MBE Co-tenants: Repairs
Must pay for repairs the % of share they own
39
# MBE Co-tenants: Improvements
Can't charge for improvements without consent! Can still do them but thats all you baby!
40
# MBE Co-tenants: Types of wastes
1. Voluntary: waste is willful and destructive 2. Permissive: waste is neglect 3. Ameliorative: waste is unilateral change that increases value
41
# MBE Tenancy for years
Fixed, determined period of time. Can be as short as 1 week, or as long as 50 years. No notice needed - ends automatically on end date.
42
# MBE Periodic Tenancy
No end date. Usually moth to month - week to week. Can be created expressly or implied. Terminated by written notice - if not as long as parties want it. Month to month: 1 month notice Week to week: 1 week notice Year-to-year: 1 month notice
43
# MBE Tenancy at will
As long as both parties want it to be this way. Usually an express agreement that lease can be terminated at any time.
44
# MBE Tenancy at sufferance
Wrongful stay longer than the end day. Terminated upon eviction or give them a new tenancy.
45
# MBE Tenants duty to repair
Tenants have a duty to maintain - no duty to wear and tear.
46
# MBE Tenants must not commit waste. Types of wastes:
1. voluntary: over conduct damages premises 2. permissive waste: fails to take reasoanble steps to protect the premises. 3. ameliorative waste: alters the property but it increases the value - this is allowed if tenant is long terms and changes reflect changes in the community.
47
# MBE Rent and evictions
Tenant is still entitled to pay rent throughout the eviction and until they actually vacate.
48
# MBE Tenant breaches and leaves the property
"SIR" **S**: surrendering implies a termination of the lease which landlord can accept. **I**: ignore the abandonment and hold tenant responsible. **R**: re-let the premises, Mitigate damages.
49
# MBE Tenant uses premises for illegal purpose
Landlord may terminate the lease or obtain damages and injuctive relief.
50
# MBE Implied covenant of quiet enjoyment
Covenant of habitability into **residential** leases and not commercial leases. Basically means that premises must be fit for basic habitation. Bare living requirements.
51
# MBE Tenants entitlements when implied warranty of habitability is breached:
**Move**: move out and terminate lease **Repair**: repiar and deduct from future rent **Reduce**: reduce rent or withhold all rent until court determines fair rental value **Remain**: remain in possession, pay full rent, and affirmatively seek money damages.
52
# MBE Fair housing act and its exception
Fair housing act protects tenants from discrimination based on race, color, religion, national origin, sex or disability. Exception: 1. owner-occupied buildings with 4 of less units and 2. single family homes sold or rented by an owner who owns no more than 3 single family homes
53
# MBE Assignment v. Sublease
Assignment: remainder of the lease Sublease: less than the remainder - tenant is coming back.
54
# MBE Relationship of tenant after assigning lease
No longer in privity with landlord but the lease contract remains in effect and enforceable. OG tenant is still liable to the landlord under the original contractual obligations - like paying rent.
55
# MBE Relationship of tenant after subleasing
Sublessee pays rent to original leassee who pays it to the landlord. Sublessee has no privity with landlord and is not personally liable to landlord.
56
# MBE Landlords tort liability
A landlord is under no duty to make the premises safe. Exceptions: CLAPS **C**: common areas. Must maintain and good repair common areas. **L**: Latent defects. Warn of hidden defects. **A**: Assumption of repairs. Repair with reasonable care. **P**: Public use rule. Short lease, significant defect. **S**: Short term lease of furnished dwelling. Landlord responsbile for any defect.
57
# MBE Fixtures vs Non-Fixtures
Fixtures are affixed to the land and has ceased being personal property. To determine if its a fixture: 1. when was item incorporated into realty? 2. would removal fuck up the premises? Examples: plumbing, heating ducts, furnace. Adverse possessor or good faith trespassor cant remove fixtures.
58
# MBE Forms of servitudes
1.Affirmative Easements - **PING** - Prescriptive, Implied, Necessity, Grant (can recover injuction or damages) 2.Negative Easements - Writing signed by grantor (injunction or damages) 3.Equitable Servitudes - writing signed by grantor unless implied. Runs with land if (1) writing, (2) intent, (3) touch and concern (4) notice. Privity not required. (can recover damages) 4.Reciprocal Negative Servitude - (1) grantor had common scheme and (2) unrestricted lot holders had notice. (can seek injuction)
59
# MBE Negative Easement
Recognized in 4 categories: 1. light - access to sunlight 2. Air - unfettered air flow 3. Support - erode the other parcel 4. Steam water from an artifical flow - access to stream Minority view: scenic view
60
# MBE Easement in gross
Personal or pecuniary advantage not related to use and enjoyment of land. Ex: right to play a billboard, right to swim in anothers pond, utility companys right to lay power lines on another persons lot
61
# MBE Easement appurtenant
passes with transfer of dominant land. Doesnt matter if its mentioned in the conveyance. Usually 2 parcels involved.
62
# MBE Easement by implication - ways to obtain it
1. Implied from pre-existing use 2. Implied without pre-existing use (1) subdivision plat: land sold in subdivision (2) Profit a Prende: to extract minerals and some product off the servient property (timber, fish, or game)
63
# MBE Easement by prescription
Similar to adverse possession. Must show: 1. Continuous and uninterupted 2. Open and notorious use 3. Actual use 4. Hostile use
64
# MBE How to terminate an easement
Eight ways to terminate an easement: 1. Estoppel- oral intent to abandon with a writing 2. Necessity - expires when necessity ends 3. Destruction - destruction of servient land - unless willful 4. Condemnation - government eminent domain 5. Release - release given by easement holder to owner 6. Abandonment - physical action!!! An intent to never use easement again. 7. Merger - title to the easement and servient land is to the same person 8. Prescription - covernted to adverse possession
65
# MBE Licenses and profits
**License**: writing not needed for license - can be revoked at will, unless licensee has invested subatantial money or labor in reasonable releance. Failed attempt to vreate an easement creates a license! **Profit**: entitles holder to enter the servient land and take its resources. Can be terminated by overly vurdening servient estate.
66
# MBE Covenants
Types of covenants: 1. Negative - promise to not do something 2. Affirmative - promise to do something If you want covenant to run with land it must be: 1. writing "heirs, successors, assignees" 2. intent 3. touch and concern 4. horizontal and vertical privity 5. Notice (actual, inquiry or record)
67
# MBE Covenant v. Equitable Servitude
Money damages - must be a covenant injuction - must be an equitable servitude
68
# MBE Equitable Servitudes
Promise that equity will enforce against successors regardless of whether it runs with the land or not. Unless BFP. Gets injuctive relief. Equitable servirtudes must: 1. writing 2. intent 3. Touch and concern 4. Notice **No need for privity**
69
# MBE Equitable defense to enforcement to equitable servitudes
neighborhood conditions have changed so significantly that enforcement would be inequitable.
70
# MBE What makes a title unmarketable
1. defect in record chain of title 2. emcumbrances (mortgages, liens, easements, restrictive covenants) 3. Zoning vioaltion If title held unmarketable, must give seller reasonable time to cure. If fails to cure can: 1. recission 2. damages 3. specific performance w/ abatement 4. quiet title suit **if closing occurs, the contract and deed merge & sellers liability ends.**
71
# MBE Disclaimers of liability on property
General disclaimers are not good: "sold as is" Specific disclaimers are good: "seller is not liable for defects in the roof"
72
# MBE Remedy for breach of property sales contract
Non-breaching party is entitled to damages or specific performance because land. Seller can require buyer to deposit - and can keep this deposit as liquidated damages.
73
# MBE Delivery of deed with conditions
oral condition: drops and its not proveable & delivery is done. written conditions: valid when delivered.
74
# MBE Defective deed
Void deeds include those that are forged, never delivered, issued to a nonrxisitng grantee, obtained by fraud in factum. Voidable deeds include those executed by minors, incapacitated persons, fraud in the inducement, duress, undue influence, ,istake, breach of fiduciary duty. Void deeds are set aside by court even if the property was passed to a BFP. Voidable deeds are only set aside if it has not passed to a BFP.
75
# MBE Due on sale clause
allows the lender to demand full payment of the loan if the mortgagor transgers any interest without the lenders consent.
76
Variance on zoning
a variance is permission to depart from zoning restrictions. Must show: Undue hardship + no diminution to neighboring property Variance will not be applied if the hardship was created by the applicant.
77
# MBE Types of zoning
**Cumulative**: levels to this Highest: Single family homes Mid: 2nd family Mid: apt buildings Low: Commercial Use **Non-cumulative**: land may be used only for what it is zoned.
78
# MBE Liability of support of land with natural state vs. support of land with buildings
Natural state: strictly liable With buildings: if alndowner causes adjacent land to subside: (1) lamd in natural state - strict liability (2) if land improved - only if negligent.
79
# MBE Riparian Doctrine
water belongs to those who own land bordering watercourse. Share the right of reasoanble use.
80
# MBE Fee simple
a fee simple absolute grants absolute ownership with infinite duration
81
# MBE Fee simple determinable and possibility of reverter
terminates upon the happening of the event stated and **automatically reverts** to the grantor. Created when: "so long as" "to A while" "to A during" "to A until"
82
# MBE Fee simple subject to condition subsequent and right of re-entry
Reserves the right to terminate upon the happening of stated event. Does not happen automatically. Created when: "provided that" "but if" "if it happens that"
83
# MBE Fee simple subject to executory interest
if condition happens, transfers to 3rd party and not to the grantor. Created when: "To A but if blah blah blah then to B" If condition happens the estate automatically forfeited in favor of someone other than the grantee.
84
# MBE Life Estate
Measured by the live or lives of one or more persons. How its created: "To A for life" If after it goes to grantor then reversion If after it goes to 3rd party then remainder Life tenant cannot commit waste. Duties of life tenants: 1. resonable repairs 2. pay ordinary taxes - including interest on mortgage and special assessments ***does not have to insure property***
85
# MBE Future interests in transferees
1. contingent 2. vested remainder: indefeasible: known and no strings attached total diverstment: subject to condition subsequent, can be taken away. subject to open: class of people. 3. executory interest (shifting executory interest) (springing executory interest) Shifting v Springing: Shifting cuts short the interst of someone other than the grantor Springing cuts short the interst of the grantor
86
# MBE RAP
Usually applies with: 1. contigent remainder 2. executory interest 3. vested remainder subject to open
87
# MBE Holdover tenant
If tenant raises rent and they stay - the new rent is applied.
88
# MBE Recorded Easement
if recorded, runs with land. Must have notice to be valid.
89
# MBE Profit appurtenant
cant transfer without transfering land
90
# MBE Profit in gross
can transfer independent to the transfer of land
91
# MBE Commercial: trade fix doctrine
can remove all trade fixtures to the lease expiring unless accession (structual additions like loft, deck, balcony)
92
# MBE Adverse possession & incompetancy
Tolled if true owner is: 1. under age 2. locked up 3. incompetant **Tolling can only happen at the beginning**
93
# MBE Land description errors
in order to have a valid conveyance, the deed must adequately describe the land. Physical description takes precedent over quantity description UNLESS the deed needs to be reformed for another reason.
94
# MBE Shelter Rule
allows a person who takes from a BFP to prevail against any interest that the transferor BFP would have prevailed against- even if transferee had actual knowledge of the prior unrecorded interest. they get the same protection as the BFP.

MBE (8 decks)

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