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 - 5 Elements
ECHO - A
- Exclusive
- Continuous
- can tack time w/ another adverse possessor in privity (exchange between them) - Hostile
- Open + Notorious
- Actual - actually in possession of someone else’s property.
(Not Fully Marketable - adverse possessor needs to file quiet title action 1st)
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 notice
– if that’s what happened
> > Shelter Rule «<
Ex: O-A (no record) / O-B (B records no knowledge of A) B- C / A vs C = C wins race and race-notice / C steps into B shoes
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)
> > Covenants against warranties are covenants that no third person has any interest that would diminish the property’s value, except as expressly stated in the deed
Present = Breached At Transfer / Conveyance
> operate only btwn buyer and seller, not successors
> do not run with the land.
- Seisin - describes land - land correct
- Right to Convey
- Encumbrances
Future = Breached After Transfer when grantor fails to live up to promise
> between buyer and any past seller
- 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
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.
(Requirements)
The lease agreement MUST BE IN WRITING:
i) parties;
ii) premises;
iii) duration of the lease;
iv) rent to be paid;
v) signed
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
- Novation
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 / goes 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 (unlike easement)
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 - remedy =
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) Expiration Merger Release Unclean Hands Abandonment - non enforcement Changed Circumstances - no longer a benefit \+ Changed Circumstances - drastic change / no benefit
Negative Covenant / Easement
- Promise not to do something - ,,,
MUST BE IN WRITING
Fixture permanently attached the buyer can …
Buyer can keep it w/ property (unless in contract to sell that remove)
Commercial / Residential Tenants - can remove if no damage + PRIOR to end of lease
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)
Joint tenancy :
ALWAYS =
Can you pass property at death
- Equal shares
- NO - Cannot pass property at death
SOF - 2 exceptions
1) Part performance
- may be able to obtain specific performance when performance constitutes evidence of a contract
(i) payment of all or part of the purchase price;
(ii) possession by the purchaser; or
(iii) substantial improvement of the property by the purchaser.
2) Equitable ESTOPPEL
- can enforce contract Detrimental reliance
Rent Increase - Must inform (When?)
BEFORE the start of new rental period and it must be reasonable increase
Who Liable for rent ?
Assignment =
Sub lease =
Assignment = T or T1 liable
Sub lease = only original T liable
3 Kinds of Waste of Property
1) Ameliorative - Improvement w/o Permission
a) Gets double damages
b) More insurance
c) LL can make you put it back
2) Voluntary - purposeful
3) Permissive - you failed to do something and let it go to shit
Who bears the Risk of Loss - between contract for sale and possession?
Buyer
Anti-lapse statute
Beneficiary pre-deceases the testator = the gift is said to lapse
BUT - anti- lapse statute - protects the gift and gives it to the beneficiary’s heirs
- ONLY apply when the beneficiary is related to testator
- Preserves gift on to next relative
Covenants
(1) Present - on or before settlement day
(2) Future - after settlement day
> > Covenants against warranties are covenants that no third person has any interest that would diminish the property’s value, except as expressly stated in the deed
1) Present =Warranties of limited scope – operate only btwn buyer and seller, not successors/ do not
run with the land.
- Seisin- describes the property
- Right to Convey
- Against Encumbrances - (undisclosed) that no third party has an interest in the land other than what is stated in the deed.
2) Future = Between buyer and any seller in line of title
- Quiet Enjoyment - not be disturbed by 3rd party claim
- Warranty - grantor will defend against 3rd party claim
- Further Assurances - grantor will fix title problems
Mortgage
- Assumed mortgage =
- Subject to =
- Assumed = in privity and transferee liable
- Subject to = not in privity so transferee not liable
Obligation for a seller to convey FULLY Marketable title?
Always - unless buyer has consented to take less
- If not buyer can
a) Want Out = Rescind and sue for damages
b) Want Property = Can sue for specific performance - sell it to me plus abatement of the price
Easement
- Abandonment
- Release
- Once Terminated
> Mere non-use does NOT =Abandonment need an affirmative act
Release - needs to be in WRITING
Stays dead unless re-born
Negative Covenant / Easement - not to do something - MUST ….
BE IN WRITING
Zoning vs. Covenant -which wins ?
Covenant trumps zoning
Recording Acts - the “shelter doctrine”
Grantors who are protected by the recording act protect their grantees who would otherwise be unprotected.
-> 3rd purchaser protection subsequent purchaser protected even if he does not record first
Ex: Abe did not have actual knowledge of the gas-line easement. Abe is a bona fide purchaser who took title free of a prior encumbrance and he can convey that title to a subsequent purchaser free of that encumbrance.
Allows Abe to protect Bob, even though Bob has actual notice
For a covenant to run with the land, must have elements but if the plaintiff cannot show intent in a writing for the covenant to run – they may =
- nevertheless establish intent by showing a common scheme.
(1) a large percentage of lots expressly burdened;
(2) oral representations to buyers;
(3) statements in written advertisements, sales brochures, or maps given to buyers; or
(4) recorded plat maps or declarations
A covenant that runs with the land is a promise that attaches to land, in which the covenantor promises to do or refrain from doing something on their land.
– If the owner of two or more lots sells one lot with restrictions of benefit to the retained lot,
> > the servitude becomes mutual.
That is, the owner of the lot retained may not do anything forbidden to the owner of the lot sold, creating an implied reciprocal servitude
Covenant Termination 6
Expiration Merger Release Unclean Hands Abandonment - non enforcement Changed Circumstances - no longer a benefit
Notice Recording Statute:
an unrecorded conveyance or invalid as against a subsequent bona fide purchaser for value and without notice…
- But —Gifts == >
when not a purchaser for value, because it is a gift.
> Then unnoticed person is NOT protected by the jurisdiction’s recording act
Appears to create a fee simple subject to condition subsequent BUT Grantor devised his estate to heir …what does he need to do in order to pass the Right of Re-Entry to heir ??
Expressly reserve the power of termination in the deed. The power of termination must be expressly reserved by the grantor in the conveyance.
