Pr5 Flashcards
A MORTGAGE is: +Creation:
[Purchaser of the NOTE is Subrogated to (=takes over) Seller’s interest.
+Installm. sales K. is treated as MGT
=>Forecl & Redemption rules apply]
a SI in Pr that the D’or [MTG’or] grants to C’or [MTG’ee] to Secure a Debt
[=COLL. 4repaying a debt].
(Cf. NOTE= ev. of the debt)
Created by D’or transferring a LIEN on his land.
(LEGAL) MTG: SOF applies.
EQUITABLE MTG
+What if Creditor SELLs Pr to a BFP?
1) If a DEED (rather than a MGT) is given to SECURE payment of a debt, C’or must FORECLOSE like a MTG.
2) If C’or SELLs Pr to a BFP
=> D’or’s only remedy is to:
sue C’or for FRAUD /DMG.
If MTG, what are the parties’ rights?
Debtor:
TITLE & RIGHT to POSSESSION until foreclosure.
Creditor:
has a LIEN.
1) A MTG AUTOM. FOLLOWS the NOTE =Deed [=ev. of debt]. => After Transfer to new Mee ...: [2) SI in MTG is TRANSFERABLE: Tr'ee becomes HDC if: ORIG. NOTE: 1) is PAYABLE to him 2) INDORSED by MTG'ee 3) DELIVERED to T'ee [CA: copy] 4) who took in GF w/o Notice of DFN 5) & PAID VALUE. => 2b)...].
=>**Payments to the OLD M’ee doNOT count !
[2) T’ee takes the NOTE free of any PERS. DFN of its maker [F.i.t.Inducem., K DFN => may FORECLOSE], subj. only to real DFN [Fraud i.t.Execution].
–SI in MTG is TRANSFERABLE:
ALSO by: ASSIGNING the NOTE instead of by INDORSEMENT & DELIVERY.]
Debtor sells mortgaged Blackacre to B.
If B buys “SUBJECT to the MTG” [=w/o agreeing to pay the debt] +CA +CCA:
=> B is NOT(!) PERS. liable, BUT Bank can SUE D'or OR: FORECLOSE IF UNPAID [b/c MTG RUNs =Binds subseq. buyers w/ notice]. CA: B "ASSUMES" the MTG =>(B primarily) pers. liable. CCA: If orig borrower [M'or] & Bank MODIFY the MGT: =>B's Oblig. is Discharged.
1) FORECLOSURE DESTROYS … +CA:
2) FORECLOSURE Paying Order:
3) Failure to include (Junior=) NECESS. PARTY /Give Notice …:
1) JUNIOR interest w/ NOTICE [incl. Lease, Easement =>gets leftovers].
CA: SENIOR MGT continues +B takes subject to it.
2a) Foreclosing Party +if $ leftover: b) JUNIOR Liens c) M’or!=Debtor.
3) PRESERVES junior interest despite foreclosure.
[ 1) PurchaseMoney MTG:
2) M’or=D’or who INCREASES the loan amount of his Senior MGT:
3) CA: New C’or [=M’ee] Modifies the loan.]
1) GR: C’or who RECORDs MGT 1st has PRIORITY.
CA: PurchaseMoney MTG
(=taken out to BUY the Pr)
has SUPERpri. even if recorded later.
2) Loses Priority over junior MGT: to the EXTENT OF THE INCREASE.
3) Releases Orig. borrower [=M’or] of ALL liability.
EQUITY of REDEMPTION is: D’or’s UNwaivable right to
+CA:
+EFFECT on Title & POSSESS?
pay MISSED MTG PAYMENTS & interest PRIOR to Forecl. SALE. [CA1: ACCEL. clause in MGT] CA2: Statut. REDEMPTION (50%): Right to REDEEM the Deed for a limited time AFTER sale by paying the Forecl. AMOUNT (NOT orig. debt) Effect: NULLIFIES the forecl. SALE & RESTORES TITLE to the owner. Note: D'or has RIGHT to POSSESS: During statut. period.
LATERAL SUPPORT:
An adjoining LO has a RIGHT …:
to have his LAND SUPPORTED in its NATURAL State.
1) SL iff LAND! WOULD’ve CAVED IN even in its NATURAL State.
[w/o the structure /Garage].
2) If land caved in b/c of a STRUCTURE, then D is liable IFF his excavation was NEGLIGENT.
[CA: No caving in
“but-for” the Garage => No SL
& if Proper excav.
=> No breach of duty.]
WATER RIGHTS
1) Streams, Rivers, Lakes: RIPARIAN owner: [=adjacent to body of H2o] :
2) GROUNDWATER (=H2O Well):
3) SURFACE WATER (=Run-off or Flood water [rain, springs, melting snow])
CanNOT acquire by Prescription.
1a) can extract MAX. amount 4DOMESTIC USE.
CA1: REAS. use if COMMERCIAL.
1b) MIN.jx.: PRIOR APPROP.doc.:
Priority of BENEFICIAL use:
FIRST-IN-TIME.
2) LO can make ANY REASONABLE, not WASTEFUL USE.
3a) If NATURAL FLOW theory:
Must maintain H2O Level & Quality.
3b) 1/2jx: Common ENEMY rule:
LO can do ANYTHING to fight the flow [change drainage].
[CCA: Many Cts modify: to prohibit UNNECESSARY harm to other LOs].
EMINENT DOMAIN:
+Explicit (partial) Taking:
+Must T pay rent ?
= Gov’ts 5thAM power to take private Pr for Public Use in exchange 4 just compensation.
Explicit Taking: is a PERM. PHYSICAL occupation of Pr.
[Even PARTIAL taking:
T must contin. 2pay FULL Rent.
But gets FRV from G’t for condemned portion.
Cf. Partial EVICTION by a 3P:
=>T must pay only Partial Rent]
Implicit or Regulatory Taking is a:
+REMEDY
Gov’t REGUL. (even if not INT’d as a taking) has the EFFECT
[leaves no viable econ. use]
• REMEDY:
Gov’t must either:
1) PAY fair COMPENSATION to owner (&T), or
2) TERMINATE the REGULATION & Pay DMG.
State has Police Power to enact statutes that reas. control land use.
**Zoning ordinances are INvalid if:
1) NO reas. relation to PUBLIC WELFARE
2) Too RESTRICTIVE.
3) DISCRIMinatory
a) as to Particular Parcel
b) Or RACIALLY DISCRIM.
[=> Viol.subst. DP].
[Zoning ordinances: VARIANCE (=means to achieve flexibility in zoning) is available IF ..: v. NONconforming USE: If ... ]
Variance Proponent must show:
1) UNDUE Hardship &
2) NO detriment to surrounding Pr values.
–If NEW Zoning results in NONconforming USE:
G’t canNOT ELIMINATE it all AT ONCE, unless G’t pays FAIR COMPENSATION.
[Zoning ordinances: Unconst. EXACTIONS]
[=give up land for street widening in x-change for zoning approval]
To be constitutional, G’t demands in exchange for granting zoning approval must be reas. related (in nature & scope) to the add’l burden the project will have on public facilities /rights.
