Property

Question 1

Purchase Money Mortgage

Answer 1

When a mortgage is given by a buyer to a seller as part of the purchase price.

When a third party lender is lending funds to the buyer to purchase property

Purchase money mortgages have priority over claims against a mortgagor that arise prior to the mortgagor’s acquisition of title

Question 2

What should a deed contain?

Answer 2

1. indication that it is a deed
2. description of the property involved
3. signature of the individual entity that is transferring the property
4. data regarding who is taking title to the property

Question 3

When is a deed effective?

Answer 3

When it has been delivered from grantor to grantee. Deed must be delivered to the grantee with specific intent to give title over to grantee. Deed to an entity that has not been legally formed is VOID.

Question 4

Estoppel by Deed

Answer 4

Estoppel by deed applies to validate a deed, and in particular a warranty deed, that was executed and delivered by a grantor who had NO TITLE to the land AT THE TIME, but who represented that he/she had such title and who thereafter ACQUIRED such title.

Question 5

Joint Tenancy - When one Joint Tenant Dies

Answer 5

When one joint tenant dies, the interest passes automatically to the other joint tenant and the deceased’s survivors are not successors to his interest

Question 6

Equitable Servitude in a Deed

Answer 6

An equitable servitude is a covenant that regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. Usual remedy is an injunction against violation of the covenant. Equitable servitudes are created by covenants contained in a writing that satisfies SOF

Equitable servitude in a deed is only enforceable if a party can establish:

1. intent that the restriction be enforceable by subsequent grantees;
2. that the subsequent grantee had notice of the servitude; and
3. that the restriction touches and concerns the land

Question 7

Equitable Servitude Elements

Answer 7

For equitable servitude to run with the land, three elements must be met:

1. intent for it to run with the land;
2. actual inquiry or record notice; and
3. covenant “touches and concerns” the land

Question 8

Doctrine of Equity of Redemption

Answer 8

A mortgagor has the right to redeem the land by paying off the remaining amount of the mortgage before the sale of the land

Question 9

Notice Statute

Answer 9

“No conveyance or motgage of real property shall be good against subsequent purchasers for value and without NOTICE unless the same be recorded according to law.”

A subsequent BFP prevails over a prior grantee who failed to record. A BFP is a person who gives valuable consideration for the property and had no notice of the prior instrument. A BFP cannot have actual, constructive, or inquiry notice.

Look if deed is in buyer’s chain of title.

Question 10

Service of Process

Answer 10

Service may be made by:

1. personally serving the party;
2. by leaving the summons and complaint at the D’s residence with a person of suitable age and discretion;
3. by serving an agent appointed or designated by law to receive process; or
4. by serving the party in the manner provided by either the law of the state where the district court sits or in manner provided by the law of the state where the person is being served