Prop Mod 3 + 4 Flashcards
> Sale of Land - Detrimental reliance <
buyer sold their old house and seller tries to cancel
Can NOT do = specific performance b/c of detrimental reliance
Sale of Land - Marketable Title
Must be free from Unreasonable RISK of Litigation
- must be cleared before closing
- If not , then buyer can cancel
Seller says “as is” is that good enough for defects ?
NO - duty to disclose hidden defects
Sale of Land - who bears the risk between contract and closing ?
Buyer
Adverse Possession - 4 Elements
- Continuous
- can tack time w/ another adverse possessor in privity (exchange between them) - Open + Notorious
- Hostile
- Exclusive
Valid Deed - 2 things
- Delivered
2. Accepted - presumed
Valid Deed Needs 3 things to Transfer
- Parties
- Signed by Grantor
- Words of transfer
Not Covered by Recording Act
- Gifts and Wills
Deeds - Notice Recording Act
Buyer should know b/c recorded, person there or told
– New buyer w/o notice WINS
Deeds - Race Recording Act
First to Record WINS
- “First recorded”
- “First to record”
Deeds: Race - Notice Recording Act
New Person w/o notice + Records First = WINS
“ In good faith” +”first recorded”
“without notice” + unless “First duly recorded”
Notice – 3rd person has knowledge of two transfers - second didn’t
Still good b/c third person stands in shoes of second person w/o https://www.brainscape.com/subjectsnotice – if that’s what happened
Deed - General Warranty
Against all defects
Deed - Special Warranty
Against Defects caused by Grantor
Deed - Quit Claim
No Warranty
Deed - 6 Covenants
General Warranty
+ Special Warranty (Grantor Caused Problems Only)
Present = At Transfer / Conveyance
Seisin - describes land - land correct
Right to Convey
Encumbrances
Future = After Transfer
Quiet Enjoyment
Warranty - defend against claims of title
Further Assurances - will fix title problems
Anti Lapse - Wills : intended beneficiary dies first
Dead Beneficiary must be a relative to be covered
- if not ~ then residuary and added back to testator’s estate and passes to his heirs
Restraint of Alienation
- Total
- Partial
- Void
- If valid - then the transfer will be void
1) Statute of Frauds
leases – section in outline
Violation of SOF = Voidable until
Tenant Takes possession
and
LL Accepts rent
The Statute of Frauds applies to a tenancy for years that is longer than one year. Restatement (Second) of Property: Landlord and Tenant §2.1, Statutory Note 1.
a) Requirements
The lease agreement must be in a writing that:
i) Identifies the parties;
ii) Identifies the premises;
iii) Specifies the duration of the lease;
iv) States the rent to be paid; and
v) Is signed by the party to be charged
Does a mortgage sever a Joint Tenancy?
Lien States (Maj) = no Title State (minor) = yes into a TinC
Installment Land Contract is
where the seller holds title (like a rent to own) until final payment
Installment Land Contract - buyer misses payment -
loses both property and the money
Absolute Deed evidence about the agreement can be
Oral + Parol (evidence of a prior agreement )
Liability of Mortgagor -
After Transfer of Deed - liable unless
Lender / Mortgagee - releases or modifies obligation
Mortgage Liability - Transferee
Assumes vs. Subject to
Assumes = Liable for whole personally
(plus original mortgagor)
Subject to = not personally liable
Pre-foreclosure - Lien theory state
Lender CANNOT take possession prior to foreclosure
Foreclosure - Senior Interests vs. Jr Interests
Senior = Survive
Jr = Extinguished
- Unless Jr is recorded and Senior is not
- Unless its a purchase money mortgage and that takes priority over non-house mortgages
Foreclosure - purchaser at sale takes property..
Free and Clear of Any JUNIOR Mortgage
Appurtenant Easement
Tied to Use of the land
- fully transferrable / geos w/ land
Easement in Gross
Benefits the holder personally
- doesn’t matter where the holder lives
- may be transferrable (modern) w/ intent to make it so
Express Easements - Created by
- Writing ~ SOF
- Grant
- Reservation = when sell land but reserve right to do something
- Recording
- -> Negative MUST be EXPRESS
Implied Easements
- Transferrable
- No SOF
- No Recording - unless subsequent purchaser had notice
Easement by Necessity
b/c the property is landlocked
- Were Owned in COMMON and then severed which created the need
Easement by Implication - Prior Use
Common Ownership - Severance - owner used the easement before severance and continues to do so
» well on one side - crosses to get water - can keep crossing after split
Easement by Prescription
Adverse Possession -
- Continuous
- can tack time w/ another adverse possessor in privity (exchange between them) - Open + Notorious
- Hostile
- —no need for Exclusive bc sharing the property w/ owner
Easement by Estoppel
- Starts w/ permission (license) which is revocable
- Reliance in good faith (invested money etc)
- Permission w/ drawn + Detrimental to the person using it
- > can get easement
Easement - - exceed scope
- becomes a trespasser
- or where he seeks to build lots and add many more users
- can’t use easement for use by property acquired after the creation –> like buying many lots to build on + use
Easement - duty to maintain
Owner
Easement - Termination 6 ways
- Release - needs to be in writing
- Merger - combined 2 prop.
- Abandonment = Non-use + Affirmative Act demonstrating intent
- Prescription = fail to protect against a trespasser
- Estoppel = Servient owner acts on reasonable reliance that the owner has abandoned the easement
- End of necessity
License on Property
Revocable + ONLY binds the licensor
- can be Oral -
- Licensor dies = it’s extinguished -
Covenants - 5 Elements
- Writing
- Intent
- Touch + Concern (Affirm: pay assoc fee / Neg: no flags)
- Notice
- Privity -
Burden to run
- Horizontal = orig owners and contains covenant
- Vertical = Strict / entire interest to successor
Benefit o run = Relaxed Vertical ; a carve out of estate
- no Horiz. needed
Covenants - remedy =
vs
Equitable Servitude
Damages
vs.
Injunction
Equitable Servitude - 4 elements
- Writing
- Intent
- Touch + Concern
- Notice
Equitable Servitude - remedy =
Injunctive Relief NOT Damages
Equitable Servitude - usually in community that is…
Planned - condo, subdivision
- all the same white houses –
Benefits + Burdens each equally
- Restriction on each (ex: nobody can paint colors)
Equitable Servitude - termination
same as covenant
+
Changed Circumstances - drastic change ./ ne benefit
Negative Covenant / Easement
- Promise not to do something - ,,,
MUST BE IN WRITING
Fixture is …
and
the buyer can …
Permanently attached to property
Buyer can keep it (unless in contract to sell that remove)
Tenants - can remove if no damage
Nuisance:
Private
Public
Private = Substantial and Unreasonable interference w/ quiet enjoyment Public = Unreasonable interfere w/ safety health of community (Private party - must show unique to him and not same as rest)
