MBE - Property Flashcards
What mortgage interests are extinguished at foreclosure?
Junior mortgage is extinguished
Defeasible Fees
1) Courts won’t find unless clear language (wish, desire, hope, expectation does not create defaceable fee)
2) Cannot absolutely restrain transfer (alienation), unless reasonable and time-limited purpose exists.
If clear or complete restrain => FSA and strike the rest.
Rule Against Perpetuities
Future interest is void if there is any possibility that given interest will vest more than 21 years after the death of someone relevant involved in the deed.
Suspect interests: ONLY
1) contingent remainder
2) executory interest
3) vested remainder subject to open
4 Steps to analyze RAP
1) What is the future interest?
2) What has to to happen for future interest holder to take?
3) Choose a relevant life
4) Determine whether within 21 years after the death of the measuring life further interests holder can take.
Cy Pres
Gives the court a power to reform the transfer deed if it violates RAP, in a way that most closely matches the grantor’s intent, instead of striking the violating part.
Adverse Possession Elements
1) Continuous for the statutory period
- tracking: can add new possessor’s time to the old possessors time if there is some privity and no ouster
- disability: time does not start to run if at he beginning of AP the owner was disabled.
2) Open and notorious
3) Exclusive
4) Hostile
Rights of Co-Tenants
- Use and enjoy the whole (prevention causes actionable wrong of ouster)
- a co-tenant does not owe rent to co-tenant for exclusive possession
- each gets appropriate share from rest to this parties
- co-tenant cannot adversely possess (no hostility)
- carrying costs (tax, mortgage) proportional to ownership
- ——unless one of the them has taken the mortgage before co-tenancy was created.
- repairing co-cowner can demand contribution for reasonable & necessary repairs if gave notice (proportional to ownership interest)
- improvements - not during co-tenancy, but yes during partition (proportional)
- waste: can bring action during co-tenancy
What’s Tenant’s Duty to Repair /Fixtures
Duty to Repair (when lease is silent)
- routine repairs; not responsible for wear and tear
- must not commit waste: destructive (voluntary), neglect (permissive), or enhancement (ameliorative)
- cannot remove a fixture - thing done that objectively shows intent to permanently improve (ex: heating systems, lighting installations, etc) BUT CAN TAKE if removal does not cause substantial harm to premises. OTHERWISE it is a destructive waste: fixtures pass with land ownership.
- if lease says T must maintain in good condition for the duration of the lease => T now can end the lease if property’s destroyed by not T’s fault (hurricanes in Hawaii etc.)
Tenant’s Duty to Pay Rent
- if no pay, L can 1) evict through court, 2) let T stay and sue for the rent (tenancy at sufferance)
- L cannot self-help: forcefully remove T, change locks
- if T leaves before end of lease and stops paying:
> L can treat as surrender - intend to end lease
> ignore that T left and hold responsible for the rent
> Majority view => L MUST mitigate and try to re-lease the place and hold old T responsible for loss in the process.
Landlord’s Duties
- duty to make the place available to T
- implied covenant of habitability
- Implied covenant of quiet enjoyment
> cannot wrongfully evict T
> breach by constructive eviction: S I N G
1) substantial interference by L (action or failure)
2) Notice to L, and failure to correct
3) Goodbye: T MUST VACATE the place reasonable time after L fails to correct - not liable for other tenants’ acts, BUT must not allow nuisance and must control common areas
- not liable for latent defects, as long as she did not know about it.
Implied Warranty of Habitability
- Premises must be fit for basic human dwelling
- residential lease only!
- non- waivable
- what can T do?
1) end lease and move out, but DOES NOT HAVE TO MOVE, can
2) repair and deduct from future rent
3) Reduce rent
4) remain, pay rent => sue for damages
Transferring Lease
Assignment => complete transfer L - T1 - T2 => L and T1 have privity of K, no privity of estate. L and T2 have privity of estate, no K. If T2 cannot pay, T1 is liable
Sublease => transfer of less than the time left in lease. [L - T1 ] then [T1 -SL]. T1 fully liable to L, can go after SL. L cannot go after SL.
Caveat Lessee
Under Tort law, L has NO DUTY to make premises safe.
Exceptions: C L A P S
1) L must maintain common areas
2) L must warn about defects
3) L liable if assumes repairs (starts fixing stuff)
4) public use rule - L leases a huge public space - liable cuz lessee has no time or knowledge to repair big stuff
5) Short-Term lease of furnished place.
What Mortgage destroys Joint Tenancy
Lien Theory does not destroy (majority view on the bar)
Title theory does
Partial Actual Eviction
Partial actual eviction occurs when the tenant is excluded from only part of the leased premises.
if by landlord => T does not have to pay rent
if by paramount owner => has to pay for the part that T still occupies.
implied warranty of habitability
does not apply to commercial property, only residential
Constructive Eviction Elements
This is a breach of the covenant of quiet enjoyment
1) Substantial Interference by L (action or failure)
> premises are inhabitable
2) T’s notice to L, L ignores the notice
3) T vacates within reasonable time
Sublease v assignment
T’s reservation of a right of reentry does not result in a sublease, but rather is still an assignment.
If Landlord transfers his interests, who is liable to Tenant?
A landlord may assign the rents and reversion interest that he owns. The assignee is liable to the tenants for performance of all covenants made by the original landlord in the lease, provided that those covenants run with the land. The original landlord also remains liable on all of the covenants he made in the lease.
A novation substitutes a new party for an original party to the contract. It requires the assent of all parties and completely releases the original party.
Generally, promises to do a physical act, such as maintain or repair the property, are considered to run with the land so L2 is liable.
If T transfers interest in violation of covenant against assignment or sublease…
transfer is NOT void, but the landlord usually may terminate the lease under the lease terms or a statute or sue for damages.
Landlord’s oral consent to waive K provisions
is sufficient
surcharge an easement
if the easement holder uses the easement in a way that exceeds its legal scope, the easement is surcharged.
The servient landowner may enjoin the excess use and possibly sue for damages if the land has been harmed.
However, the easement does NOT terminate by operation of law, nor does such use give the servient owner a power of termination.
Will non use of an easement for a long time terminate it?
No! Need physical act for amendment in addition! t
Easement by necessity (Implication) Location
An easement by necessity arises when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line.
The owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient.
Excess use (having increased clients come in) is surcharge and servant can sue for damages and stop the excess use.
May a grantee be bound by a covenant that does not appear in his deed or chain of title?
Yes! if equitable servitude elements are met (mostly the original is in writing, notice of the covenant, touch and concern, intent)
Note: if not in writing, still may be implied if some notice (actual, inquiry, record) and common scheme!
Type of deed (quitclaim, general warranty) does not matter here.
Can a neighbor sue to enforce a common covenant?
Yes IF subdivision is created with similar covenants in all deeds, and
(i) a common scheme for development existed at the time that sales of parcels in the subdivision began; and
(ii) there was notice of the existence of the covenant to the party sued. (somewhere in the chain of title is enough)
When does an encroachment not render title unmarketable?
- It is very slight (only a few inches) and does not inconvenience the owner on whose land it encroaches;
- The owner encroached upon has indicated that he will not sue on it; or
- It has existed for so long (many decades) that it has become legal by adverse possession (if the state recognizes adverse possession title as marketable).
In contrast, a significant encroachment constitutes a title defect that renders title unmarketable.
Does an existence of easement render title unmarketable?
Exception!
Easements are generally considered encumbrances that render title unmarketable; so if an easement is not provided for in the contract, it usually renders the seller’s title unmarketable.
Beneficial Easement Exception: A majority of courts have held that a 1) beneficial easement that 2) was visible or known to the buyer does not constitute an encumbrance.
What can Buyer do when he discovers the title is unmarketable?
the buyer may NOT sue for damages for breach as soon as the defect is discovered,
he must notify the seller and give her reasonable time to cure, even if this requires extending the closing date, and even if time is of the essence.
If the seller fails to cure the defects, then the buyer may rescind the contract, sue for damages for breach, get specific performance with abatement of the purchase price, or (in some jurisdictions) require the seller to quiet title.
Does adverse possession provide marketable title?
NO! - still B is buying a possible lawsuit, even if he has a great chance to win it
If the seller attempts to rely on adverse possession to show that defects have been cleared, courts traditionally do not favor such an argument, because proof of adverse possession normally rests on oral evidence, which might not be available to the buyer at a later time.
What title does the adverse possessor take?
The title of the moment! (ex: if it’s life estate to A with remainder in B, AP only gets A’s life estate, and B has no right to bring action to stop adverse possession until his interest takes effect.
Does adverse possessor take the land subject to covenants attached to the land?
Depends:
If an adverse possessor uses the land in violation of a real covenant, she takes title free of the covenant EVEN IF she had knowledge of it. But if complied by it, takes subject to covenant.
Does adverse possessor have to pay taxes?
NO! in majority of states this does not matter!
Does an adverse possessor have to use the whole land?
Usually no.
Possession of a part is enough, as long as there is a reasonable proportion between the portion actually possessed and the whole of the unitary tract, and the possessor has color of title to the whole tract.
Usually, the proportion will be held reasonable if possession of the portion was sufficient to put the owner or community on notice of the fact of possession
Not enough - look for facts that land was devised in two, road in the middle, etc, that would not be enough to give notice to others.
Color of Title
Color of title is a document that purports to give title, but for reasons not apparent from its face does not.
Statutory redemption
Statutory redemption is the right of a mortgagor to recover the land after the foreclosure sale has occurred, usually by paying the foreclosure sale price.
About half the states provide a statutory right to redeem for some fixed period after the foreclosure sale has occurred, usually six months or one year.
The amount to be paid is generally the foreclosure sale price, rather than the amount of the original debt. This right extends to mortgagors and, in some states, to junior lienors.
modification agreement - affecting the mortgage priority?
Yes! if the landowner enters into a modification agreement with the senior mortgagee, raising its interest rate or otherwise making the agreement more burdensome, the junior mortgage will be given priority over the modification. Thus, if the first mortgage debt is larger because of the modification, the second mortgage gains priority over the increase in the debt.
In life estate with remainder, who pays for the mortgage in property?
Life estate holder pays the interest (no not commit voluntary/destructive waste), remainder man pays the principal as the future owner.
When is the deed description vague?
Does not have to be exact, can have discrepancies, but must be sufficient to allow for locating the property. Cannot just say, one of the buildings on the east, then it will be considered void due to vagueness.
HOA, Common interest developments etc.
can pass regulations, but must pass reasonable standard = balance the utility need of the regulation and the harm it will cause
Do tenants in common owe fiduciary duties to one another?
NO!
Does a building code violation render a building unmarketable?
NO, however zoning code violations do!
what property rights does the landowner not own?
light, fresh air, views. Violations of these do not create cause of action!
What is not horizontal privity?
2 neighbors agreeing in covenant to not paint the fence. This is not!
Define Horizontal Privity
To show horizontal privity, both parties must have some interest in the property (seller/buyer, lessor/lessee, mortgagor/mortgage)
Define Vertical Privity
To show vertical privity, the successor must have received the entire durational interest that the original grantor had to give.
Owning the whole, and leasing, not enough.
What if Sellor Dies after K but before closing
Seller’s estate has to go through with the sale in accordance to Seller’s will/enstatcy laws. S owns personal property interests (money), B owns real property
If B dies before closure
B owns real property interest => still close with B’s estate
As of what date the title must be marketable?
Until the date of closing Seller has a right to work on fixing issues and delivering marketable title before B ban rescind?
Which 4 phrases create Fee Simple Determinable ?
for so long as
while
during
until
=> possibility of reverter
What phrases create Fee Simple Subject to Condition Subsequent?
in condition that
provided that
however if
but if
=> right of reentry
What future interest does Fee Simple Subject to executory interest create?
executory interest:
O — A, as long as, otherwise to B
Restraint against Alienation
Lesser restraints (anti-sublease etc.) permissible. Complete restraints not allowed.
Life Estate/Life Estate Per Autrave duties
to hold the land for the life of another:
holder responsible for property taxes!
Changes of Conditions Exception to Life Estate Interest Holder
if change in condition has rendered a property uninhabitable = allow life tenant to tear down that structure.
Open Mines Doctrine
we allow life estate holder to continue the projects that were already there when you got it (mining, etc) , but cannot start new projects (start cutting tries) etc.
Can you sell/transfer your future interests (reverter/reentry)?
YES! if you hold a possibility of reverter or right of reentry, YOU CAN SELL THESE INTERESTS AND PASS DOWN BY WILL, ETC.
What does the court do if co-tenant cannot agree on how to use the property (who to allow) etc.
Court may partition the property so each can use a part as they wish.
Does the joint tenancy end if joint tenant agree to together transfer part of the interest?
NO! they hold the remaining as JTs. The people they transferred it to get tenancy in common interest.
What happens of one of the Joint Tenants mortgages her interest in JT?
Lean theory (majority) ===> if 1 JT takes mortgage her interest and pays it dutifully, JT is not destroyed.
Title Theory (minority) ==> if 1 JT mortgages her interest, JT is severed. KILLED and turned into Tenancy in Common.
When is LL liable for latent (secret) defects?
- if the lease is SHOT TERM and FURNISHED premises => LL is liable for such defects.
- usually not liable, unless they knew or should have known!
must disclose though if L knows about defects and L knows that T cannot discover its reasonable inspection
Holdever Tenant?
T that won’t leave after the lease end!
- periodic tenancy is created!
- how long?
> if residential => month to month periodic tenancy
> if commercial => locked into year to year tenancey (cuz more than that would violate SF and would need writing! - what’s the NEW rent?
> if T was notified of a rent increate prior to the end of first lease period, they have to pay the increased lease price. But if T not notified, they continue paying what they have been paying.
Easement in Gross examples
power lines, railways, public parks, etc!
Merger Extinguishes Easement Trap!
make sure if both lands are transferred to the same person, the whole title is transferred (ex: transferring half life estate and half fee simple to the same person will not extinguish that easement. because not a merger!)
How can you get rid of a restrictive covenant on a common development scheme?
There must he CHANGED NEIGHBORHOOD CONDITIONS which have made the property unusable in accordance with the covenant for ALL OF THE RESIDENCES! All or Nothing.
When is the description of the property (always) adequate in the deed
When it includes an actual address (even if the directions are wrong)
What is a fixture?
commercial v. residential
Residential => How much damage would be caused to the property of the thing is removed? The more damage, the less likely you will remove.
Commercial => trade fixtures doctrine. We allow commercial tenant to remove all trade fixture prior to the lease expiring.
EXCEPTION: cannot remove structural additions - balcony, etc. | also, have to pay for damages because of removal
When can a non-BFP win in a notice jurisdiction?
if he got it from a BFP! - shelter rule
take property “subject to mortgage”
taker does not make payments and is not personally liable, BUT will have his property taken and sold! so better make payments!
Contrast: assume the mortgage - becomes personally liable if original person does not pay.
Lateral and Subjacent rights of a landowner
Landowner has a right to have his land supported laterally and subjacently from his neighbors => land in its natural condition, free from any human structures.
human made => If neighbors removed a thing and it hurts your human made structures, YOU HAVE TO PROVE NEGLIGENCE FROM N.
free of structures natural damage => strict liability.
how can tenancy by entirety end?
1) divorce
2) death of husband/wife
3) joint creditor
4) mutual agreement
does availability of an alternative way negate easement by necessity?
No, if a tract is divided and sold and one of the lands is deadlocked, easement by necessity already exists, and future offers from others for right of way do not affect it.
Doctrine of Lapse / anti lapse statute
if will beneficiary dies before the testator, he loses his share and it goes to others named or back to T’s residuary estate
Some states have past Anti-Lapse statute to prevent this (mostly for family members)
Does the K of sale have to specify time of closing date?
No, a court will read an implied reasonable time.
situs choice of law rule
when there is a conflict of laws issue re property, the choice of law rules of WHERE PROPERTY IS LOCATED, not the rules of the state where the action was filed (like would normally happen)
Defalut acceptance of delivery rule
Grantee’s acceptance is presumed, unless explicitly rejected. . Delivery is presumed if the deed is recorded.
When does the Seller have to provide marketable title?
Usually within a reasonable time after the closing date, unless the K specifically mentions that “time is of the essence”
Can a Seller bring suit to cancel sale if D fails to make a payment?
No, the validity of transfer does not depend on consideration. To be valid, deed only has to
1) say it is a deed
2) describe the property (reasonably)
3) Seller’s signature
4) Buyers info
S may give a deed to a lander that looks like a sale but is actually a security for mortgage. In case of a default, the lander may
foreclose the property (not enforce the sale), courts will not view this as an actual sale that would convey title to lander. To determine whether it was an actual sale or a security interests, courts consider:
1) L’s promise to return the property if debt is paid
2) the price transferred is such lower than the actual property price
3) seller’s financial distress
4) parties’ former negotiations.
Doctrine of equitable subrogation.
When there are multiple mortgages on the property, first recorded takes priority.
Subrogation says that if a third party enters and pays of a senior interest, he takes the place of the senior mortgagor and therefore has a priority over juniors.
Noviation
An agreement that substitutes a new party for the original party. If all parties assent, original party is released from all obligations
Accord and satisfaction
Substitute K between original parties (LL/T)
Is a creditor that obtained a money judgment against owner and got a lean of property a BFP?
No, because not a purchaser for value.
does not matter if recorded
Does the owner have an obligation to disclose “latent”/hidden defects?
Yes, seller has to disclose latent defects that he knows of it and that buyer cannot see at the viewing.
Seller cannot fail to disclose or hide the defect.
When is an owner liable to the neighbor for subsidence?
when he does something (excavates) on his property that causes collapse of the LAND of the neighbor.
Note that O is NOT liable if the collapse of the neighbor’s land occurs because of the weight of a structure on it.
Must leave enough support that the neighbors land, even without a structure on it would not collapse.
Countervailing equity
- a required subrogation element!
Can stop subrogation (taking the priority of the mortgagor whose debt was paid with your money) if a person whose priority drops because of subrogation can show that countervailing equities are her favor and show that she must keep priority (because the agreement was not between owner and person who paid the original mortgage).
How can HOA ensure compliance and what are the limits?
HOA can:
- impose fines and fees
- take away privileges to use common areas/facilities
- require prior submission of plan before building stuff
- conduct reasonable inspection for violations if reasonable belief that violation exists
- deny voting privileges
HOA limits
- direct restraints => MUST BE REASONABLE! includes 1) prohibition of transfer without HOA approval, 2) first refusal, 3) setting criteria whom you can sell - rights that interfere with free economy.
- indirect restraint => ANY RATIONAL JUSTIFICATION ok use or other restrictions that limit potential market for profitability (pets, wall color, plants, etc.)
rules/regulations that HOA board adopts must be reasonable => to determine, balance purpose serve with burden.
Can one co-tenant bind other co-tenants in easement/border dispute agreement etc.
NO, only applies to all co-tenants if they all sign it.
even though each has right to possession of the whole and can be the sole occupant, he cannot bind other who have not signed it.
What does defaulted mortgagor have to pay if the state allows him to pay and get property back even after foreclosure has happened?
Usually the price of the foreclosure sale.
Note: that this is not a majority rule. In majority cases, defaulted m. can only pay and get property back before foreclosure sale has occurred. In this case M. has to pay the missed payments OR full debt left (if there is an acceleration clause, which means that back can ask for the whole amount in case of a default).
How does condemnation affect the LL/Tenant relationship?
The landlord-tenant relationship continues, as does the tenant’s obligation to pay the entire rent for the remaining period of the lease.
The tenant is, however, entitled to share in the condemnation award to the extent that the condemnation affected the tenant’s rights under the lease
Which general warranty covenants protect against possible future litigation?
Covenant of warranty => the grantor agrees to defend, on behalf of the grantee, any lawful or reasonable claims of title by a third party, and to compensate the grantee for any loss sustained by the claim of superior title.
Covenant for further assurances => is a covenant to perform whatever acts are reasonably necessary to perfect the title conveyed if it turns out to be imperfect.
Covenant of quiet enjoyment => no law of title claims by future parties.
unborn widow problem.
RAP - note that the widow mentioned in will may not be even born yet, cuz O may remarry before he dies.
thus, usually widows are uncertain and cannot be used as a measuring life.
doing work on an easement.
if work on the easement alters or damages the land, the enamsent holder must reasonably restore it back to the original condition.
Can a common scheme P enforce a restrictive covenant on the neighbor without showing common scheme?
YES - by showing equitable servitude:
- notice
- touch and concern land
- intent to run
Covenants in sale k v. in the deed
Once the deed is entered, whatever is in the deed controls.
if K as covenant of merchantability etc. and the deed does not => no covenant because the final doc. deed never mentioned it.
What if A assigned the lease to B without mentioning any covenants in the original lease (taxes, etc.)? is B liable for those even though it was not in the assignment lease?
YES! In an assignment, the assignee stands in the shoes of the original tenant in a direct relationship with the landlord. Each is liable to the other on all covenants in the lease that run with the land, which would include the obligation of the lessee to pay taxes on the property.
Warranty covenant against incumbency
mortgage stuff
Reformation
Reformation is an equitable action in which the court rewrites the deed to make it conform to the intention of the parties. It is granted when the deed does not express the agreement of the parties due to mutual mistake or a scrivener’s error, and may also be granted when there is a unilateral mistake if misrepresentation is involved.
What happens where there is an inconsistency in the land distribution in the deed
Usually doe not invalidate the deed if not a huge difference.
When there is a mistake or inconsistency in the description of property in the deed, one of the rules of construction is that the physical description takes precedence over the quantity description unless there are grounds for reformation of the deed.
ex: describes correctly (the left side until the woods, etc) but puts the wrong miles (122 instead of 132) => is usually ok.
What happens when a business becomes a hold-over tenant?
A periodic hold-over lease is created.
At least in commercial leases, the new periodic tenancy will be year-to-year if the original lease term was for one year or more.
The terms and conditions of the expired tenancy apply to the new tenancy.
What kind of tenancy is a 5-year lease with $100 monthly payments?
Tenancy by year!
careful, just because paying by month, does not turn it into periodic tenancy .
Can nuisance be based on strict liability? - nuisance per se
Yes,
Nuisance is an invasion of private property rights by conduct that is either intentional, negligent, or subject to strict liability.
Strict liability will be the basis for a nuisance action (sometimes called an “absolute” nuisance or a “nuisance per se”) when wild animals or abnormally dangerous domestic animals are involved, or when defendant is engaged in an abnormally dangerous activity.
Thus, dogs known by their owner to be vicious may create a private nuisance when they interfere with the use and enjoyment of the land next door, and the owner may be subject to strict liability because of his knowledge of the dogs’ dangerous propensities.
Intentional Nuisance
Requires P to show unreasonableness, i.e., that her injury outweighs the utility of D’s conduct.
Vested remainder
can be created in and held only by ascertained persons in being,
and cannot be subject to a condition precedent (you can get it if A dies first)
Vested remainder subject to open and total divestment
Cannot have condition precedent, but can have Condition subsequent => this makes a vested remainder subject to complete divestment.
A remainder is vested if the beneficiaries are ascertainable and their taking in possession is not subject to a condition precedent.
A vested remainder created in a class of persons that is certain to take but is subject to diminution by reason of others becoming entitled to take is a vested remainder subject to open.
Vested remainders may be subject to total divestment if possession is subject to being defeated by the happening of a condition subsequent.
does the benefitted side need notice for the benefit to run with land as covenant or equitable servitude?
NO covenant benefit side only has to show
- a writing
- intent to run
- touch and concern
- vertical property
DO NOT NEED
- notice
- horizontal privity
note: need notice for
- covenant burden side to run
- equitable servitude burden side to run
- equitable servitude benefit side to run
CHECK CONVEYANCE OF PROPERTY WITH LEASE ON IT
=> WHAT ARE THE RIGHTS, OBLIGATIONS?
L and T have a leasing k, L can sell property to another subject to lease, L can continue to enforce this lease obligations.?
Can servant estate owner move the location of the easement?
NO, servant chooses where the easement is when it is created, but
CANNOT MOVE (relocate) it after it has been already established.
if O tells attorney to convey deed to son and attorney property records.
In most states, acceptance is PRESUMED if the conveyance is beneficial to the grantee, regardless of whether the grantee has knowledge of the conveyance
BUT the presumption is rebutted when the grantee expressly refuses to accept the conveyance.
covenant against assignment and sublease
very strictly construed.
if says no assignment, can still sublease and vice versa.
adverse poseession hostility element
YOU DO NOT HAVE TO KNOW THAT YOU ARE ENTERING WITHOUT PERMISSION
YOUR INTENT DOES NOT MATTER: you can think it is your property!
YOU ONLY HAVE TO ENTER WITHOUT ACTUAL OWNER’S PERMISSION, 🙉
when is easement not extinguished even though both lands are owned by the same person
When the ownership of the easement and the servient tenement is in one person, the easement is extinguished.
BUT A NEW EASEMENT OF NECESSITY CAN BE CREATED IF AFTER BEING SOLD AGAIN, ONE OF THE PARTS IS LANDLOCKED
After the easement was extinguished, however, a new easement was created by operation of law when the land was again subdivided into two lots and as a result of this subdivision one of the lot owners was deprived of access to a public road.
in a land sale, when installment k is used
signed k for installment payments does not matter for implied marketable title purposes.
S’s OBLIGATION of implied warranty to deliver marketable title STARTS when delivery must actually occur - after last installment payment is made.
Before Closing - B cannot get out even if finds out that S does not have a marketable title (S has time to cure before delivery is due)
After Closing - B can get out and sue for damages for specific performance with reduced purchase price.
NOTE: IMPLIED WARRANTY OF MARKETABILITY AND ALL OTHER EXPRESS GENERAL WARRANTIES start working AT CLOSING. B cannot do anything before closing even if she know there is problem with title (other than tell notify S that she knows there is a problem and S should cure)
what must holder of executory interest subject to conduction subsequent do to get the land?
must exercise right to reentry:
like filing an action for ejectment.
can a joint tenant sell her interest without telling the other?
YES => but JT becomes TC
is holdover tenancy month or year?
CAREFUL!
> if commercial tenant => year to year
note: does NOT matter that the original one was for every month.
> if residential => just like the original lease used to be week, month etc.
cannot exceed 1 year cuz statute of frauds.
Do succeeding servant owners have to have NOTICE to be bound by the easement?
YES, can not be in writing etc. BUT new buyer must have some kind of notice: actual, record, constructive.
Profit
Profit appurtenant => if profit is going to benefit a dominant estate = CANNOT transfer profit right without transferring your whole estate with it.
Profit in Gross => can be indepedently transferred; this does not exist to serve dominant estate.
(includes hunting)
Lisence v. Easement v. Profit
License => only permission to enter the land of another
Easement => permission to enter another’s property to do stuff (not remove stuff)
Profit => permission to enter another’s property to take stuff (minerals, hunting, etc.)
Fixtures
Residential => look at
> the nature of the chattel (heirloom or toilet)
> intent of the tenant when attached it
> how much damage will be caused to property if you remove chattel
Commercial (Trade fixtures)
> we allow commercial tenant to remove ALL fixtures prior to lease expirations.
> EXCEPT assassins - permanent structural additions to real property.
in will, leaving personal property v. residuary estate
personal property = includes all the 💸
residuary estate = any estates or future interests etc. (includes bought stuff if K is signed but no closing has happened cuz Owner died).
if owner enters into K to buy and died, leaves personal property and residual property to 2 different people, residual holder can MAKE PROPERTY HOLDER pay.
Does a seller have a duty to disclose defects before selling?
> does NOT have to disclose defects that buyer could find out with reasonable inspection
> BUT cannot purposely conceal defects
> look up - does seller have to disclose invisible defects that she knows of?
anti-lapse statute
If gifted person dies before the will-maker - her gift is void under CL, BUT anti-lapse statute says no it’s okay, the dead gifted person’s decedents can take it.
undivided one-half interest
v.
each own one-half of land
undivided one-half interest => this is tenancy in common
each own one-half of land => partition type stuff? NOT SURE!
Who can enforce general warranty deeds?
the future heirs or buyers of the property (these future 3 run with land!
> covenant of quiet enjoyment (no one will disturb you)
> warranty (if someone disturbs you I will defend you)
> future assurances (after I’m done defending you, I will take all step to make sure this does not happen again - perfect title)
Note: the 3 present covenants do NOT run with land and can only be enforced by the buyer
> I own it,
> can sell it
> no incumbencies
what can a junior interest holder do before a foreclosure takes place?
can choose to pay the senior mortgage to preserve its investment interest on the land.
foreclosure distribution
> whoever started the foreclosure gets paid first, remaining goes town to juniors.
> foreclosure maker MUST give notice to all juniors.
- IF no notice, juror interest remains on land
- If junior gets any foreclosure money (can be $1), her interest is extinguished, and if still did not get her money back, must get a deficiency judgement (fo after personal assens).
> senior holders do not get paid anything from foreclosure. Their interest remains on the land. If señor holder gets anything from the foreclosure, their interest if extinguished.
How can one dedicate land to public use
2 elements: dedication and acceptance
Dedication can be done by:
> oral or written statement
> submission of map or plat showing the dedication
> opening land to public
Acceptance
> formal resolution
> approval of the map or plat
> actual assumption, maintenance, construction or improvements
if A, B lease a place together that provides no assignments, then B decides to sublet, what can A do?
Pretty much nothing, because only LL can enforce these provisions.
LL can always orally even agree to allow a sublease and take rent for C whom B brought in
Can a co-tenant encumber other co-tenants interests
NO, they can ex: take mortgage ONLY ON THEIR HALF , and bank can only foreclose their half.
Note: in joint tenancy (lean theory) mortgage will not destroy it and create TC, but foreclosure of the half of the property will destroy JT.
Can a LL terminate the lease if tenant engages in criminal activity?
Yes, LL has an option to terminate the lease or seek injunctive relief
what happens when tenants in common jointly take a mortgage on the house?
each TC owner has a duty to pay her own share of the Mortgage in property.
A tenant who is co-tenant who is not is sole possession can pay others’ mortgage and then compel them to pay her.
IF TC CO-TENANT CHOOSES TO TAKE A JOINT MORTGAGE WITH OTHERS, HE MUST PAY THE WHOLE MORTGAGE IF THE OTHER DOES NOT PAY.
to avoid this liability, TC co-tenant must not do joint stuff and just take mortgage on her half.
what may (may not) be reasonable time to delay the closing if time is not if the essence?
Usually 1 month is okay if buyer is having hard time to find money or seller is clearing title.
2 months is most likely unreasonable
Look for unreasonableness factors.
Is Profit or license protected as a property right?
Profit is a property right => is protected by procedural due process clause. if any condemnation or taking occurs, must pay him.
License is revocable anytime, no property right to be protected.
If owner takes a loan mortgaging her land, bank demands conveyance by an outright warranty deed. Then O defaults.
Courts general treat this as a mortgage, rather than a transfer, so the bank would have to foreclose, we do not just let the bank keep the whole land. Court looks at factors 1) initially house was put to cover debt, 2) banks agreed to give land back once debt is paid, 3) the real value of the land is much higher, 4) how much of a financial distress is owner suffering.
if T assigns right and leaves. New T pays tent for a few months and moves out, is he still in privity of state for L and liable for rent?
Yes, if you get an assignment, are in privity of estate for the whole assignment time, does not matter if you move out.
Can a similar scheme covenant attach to a house in the block that was the first to be sold before the scheme was formed?
NO, these covenants cannot attach at a later time if there is no mention in the deed or no constructive notice.
can you sue based on the land sale k after the closing and deed is delivered?
No, k merges into the deed so cannot sue on k, but can sue on the deed. if k says warranty deed, but closing deed is quitclaim => you got quitclaim and cannot sue to demand marketable title.
can you recall a gift?
no, if there has been intent to gift and delivery (can be enough to just give to friend (agent) to give it to him. Do not have to record or anything.
are zoning laws relevant when discussing private nuisance?
Yes, they are relevant, but just one factor that might help show unreasonable interference.
Can a Tenant assign option to purchase that comes with her lease?
Yes, but courts are split whether it has to be transferred with the assignment or lease or can assign lease to someone and assign the option to purchase to someone else.
Can a person ask for the deed back if it was been delivered but not yet recorded?
No! Because delivery of a deed cannot be canceled! if they return the deed to grantor and grantor destroys it, does not matter, they still own the conveyed property .
adverse possession against future owners (remainder).
The statute of limitations that determines the time period for adverse possession does not run against the holder of a future interest (e.g., a remainder) until that interest becomes possessory, because the holder of the future interest has no right to possession (and thus no cause of action against a wrongful possessor) until the prior present estate terminates.
do easements expire?
No, perpetual unless otherwise stated.
Also, if recorded, are always binding to subsequent owners of servient estate.
Is joint tenancy severed if one co-tenant tries to convey her interest to third person, but the person does not accept until after the death of person?
Usually no!! Even though acceptance usually relates back to when deed was delivered, here court do not allow acceptance.
so if acceptance happens after JT’s death => JT is is not severed and surviving JT takes the whole, and the person who was supposed to get it, gets nothing.
Does the option of first refusal stay with original leasee or is transferred to the or assignee.
The tenant may transfer the leasehold interest while retaining the option to purchase, or vice versa. Whether the option in this case stayed with the leasehold interest depends on whether it was a covenant that runs with the land.
note: this only applies to assignee, not sub-lessees. CAREFUL - Covenant that runs with a land only binds assignment, cuz it creates privity of estate
what must an HOA have to be able to impose reasonable rules to govern the property
acts must be authorized by a statute or governing documents - declaration, articles of incorporation, bylaws- adopted by the association. unless this is done => board cannot randomly pass restrictions.
so to work, restrictions must be
=> authorized by some declaration or document
=> be reasonably related to furthering legitimate purpose.
when can HOA be formed
developer must incorporate an HOA before selling units. But later, HOA can vote to change rules.
Can an assignment of mortgage by the mortgage holder be valid if it delivered written assignment and note of mortgage to the new buyer, they took it home with him, not leaving with the buyer.
Yes, does not matter, as long as there was a delivery once.
S cannot take it home then sell it to another, because a valid assignment already took place
who makes repairs on an easement?
the holder is responsible for repairs and maintenance and liable for failing to do so. Owner is not.
Easement holder must fix any damage it caused to Owner’s land during easement repairs.
if A has a lean on B’s interest in land, then B’s interest is extinguished
A gets nothing. If lean jurisdiction, JT and B dies, B’s interest goes to surviving JT.
The only way to A is to enforce foreclosure because of the lean when B is alive. Foreclosure would kill JT and A can get her share from B’s interest.
Is a deed effective if grantor writes it, but does not deliver?
If a grantor executes a deed but fails to deliver it during his lifetime, no conveyance of title has occurred.
“Delivery” refers to the grantor’s intent; it is satisfied by words or conduct showing that the grantor intended that the deed have a present operative effect-i.e., that title pass immediately and irrevocably, even though the right of possessing the land may be postponed until some future time.
To make an effective delivery, the grantor must relinquish control.
Basically look at grnator’s intent, if he has a present intent to give future interest. If gives a deed now to grantee, but grantee can only take after he dies, this is okay. But if writes a deed and puts under his bed and tells Z to deliver to grantee after he dies => there is no present intent to convey. Here, no delivery has happened and grantor can change his mind and sell it to someone else.
But if he does not change his mind and then dies and then L records or gives to son immediately - will be valid?
when is a deed de facto invalid?
Deeds that were forged, never delivered, or obtained by fraud in the factum are void.
Deeds obtained by means of, among other things, duress, undue influence, or mistake are considered voidable.
is it required to have clear consideration (price) in the deed to make it valid?
NO, A valid deed requires a writing containing a description of the land and parties, words of intent, and the grantor’s signature.
The essential terms for purposes of the Statute of Frauds are: the description of the property, the identification of the parties, and the price.
The tax provision is not an essential term. It is an incidental matter, which need not appear in writing or even be agreed upon.
race-notice
second taker is only protected if BFP AND RECORDS FIRST before the previous one does.
careful, there the first person getting conveyance cannot be charged with knowing about other conveyancing and almost always wins if records first.
Also, note that the Notice is measured at the time of the conveyance, not at the time of recording.
when is the time of the essence?
Time will be considered of the essence only if:
(i) the contract so states,
(ii) the circumstances indicate it was the parties’ intention, or
(iii) one party gives the other notice that he desires to make time of the essence.
can a third party put a lean on property after the sale has happened but before closing even though there was equitable conversion?
YES! the doctrine of equitable conversion is only applicable as against the seller and the buyer, and does not affect the right of some third party with regard to attaching property held in the name of a debtor.
note: this will render the title unmarketable, unless S plans to use moneys from the sale to clear the lean. can agree to put some money in escrow for this.
mortgage priorities
In general, the seller’s purchase money mortgage will take priority over the third-party purchase money mortgage.
Purchase money mortgages, however, are subject to later liens by virtue of recording acts.
In the case where a mortgage is modified by agreement between the parties, any increase in the debt resulting from the modification will be subject to a junior lien, even if the original mortgage itself had priority over the junior lien. => MODIFICATION LOWERS PRIORITY
In the same way, an optional (as opposed to an obligatory) advance that is made after the junior lien will have a lower priority than the junior lien.
Equity of redemption
gives the borrower the right to free the land of the mortgage by paying off the amount due, plus any accrued interest, at any time PRIOR to the foreclosure sale.
NOTE: right to redeem CANNOT be waived in the agreement establishing the security interest. This would be “clogging the equity of redemption.”
Statutory right of redemption, recognized in about half the states, gives the borrower a right to redeem for the foreclosure price AFTER the foreclosure sale.
hold over tenancy terms for non-residential stuff
Unless a residential lease is involved, a year-to-year tenancy results from holding over if the original lease term was for a year or more.
Note: the original one can be tenancy by years.
can a removable thing that is a part of an assemble be a non-removable fixture?
Yes, the manifest intent of the annexor determines whether the chattel becomes a fixture. The factors for evaluating the annexor’s intent are:
CONSTRUCTIVE ANNAXATION
(i) the relationship between the annexor and the premises,
(ii) the degree of annexation, and
(iii) the nature and use of the chattel. (organ bench case)
if a life tenant takes a mortgage on the land and then dies, can the bank recover from remainder men?
No, this mortgage only encumbers life estate, not the remainder men interest.
note: remaindermen has to make payments to the principal balance if the fee simple that they would be taking was already encumbered, not when it was fine, then the remaindermen decides to take mortgage
if 3 people hold joint tenancy and 1 sells…
Selling person;s interest becomes TC, but OTHER TWO CONTINUE TO BE JTs.
taking a mortgage under title theory
destroys JT and ACTUALLY TRANSFERS TITLE TO THE BANK. So bank will own as TC with the initial other JT.
Can a person get out of a restrictive convevent by getting variance from city to build differently?
NO! Zoning regulations and restrictive covenants in private deeds are completely separate concepts.
Both must be complied with, and neither provides any excuse for violating the other.
Thus, a variance from the government regulation does not prevent enforcement of the private covenant.
easement by implication (necessity?)
An easement by implication is created by operation of law rather than by written instrument. It is an exception to the Statute of Frauds.
An easement is implied if, prior to the time the property is divided, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part,” and the parties intended the use to continue after division of the property.
The use must be continuous and apparent at the time the property is divided. Reasonable necessity is determined by many factors, including the cost and difficulty of alternatives, and whether the price paid reflects the expected continued use
does purchase-money mortgage have priority of leans or property that were there first?
YES!
if a person takes a mortgage and then Z assumes the mortgage , does the bank have to sue Z first before going after person?
No, can go directly after person. Person then can go after assuming mortgagor.
note - the person remains a secondary surety for the assuming Z.
cumulative zoning
A cumulative zoning ordinance creates a hierarchy of uses of land, and land that is zoned for a particular use may be used for the stated purpose or for ANY HIGHER use.
CAREFUL!!! A residential use is higher than a nonresidential use. so if have a single-family zoning, cannot have a store unless
NONCONFORMING USE EXCEPTION!
However, a use that exists at the time of passage of a zoning ordinance and that does not conform cannot be eliminated at once. Generally, the nonconforming use may continue indefinitely, but any change in the use must comply with the zoning ordinance.
if there is a judgment lean on D’s property, then he sells with purchase money mortgage
MORTGAGE HAS PRIORITY - even though the judgment lean was there before.
when removing commercial fixtures?
> cannot cause substantial damage
> must recover the place to the initial condition if does cause damage
