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Real Property > Property > Flashcards

Property Flashcards

1
Q

Easement Appurtenant definition

A

A right to use someone else’s land, called the servient parcel, for the benefit of the holder’s own tract of land, called the dominant parcel

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2
Q

Creation of Easement

A

PING:

  1. Grant - expressly, through writing and signed by holder of servient tenement, unless duration is brief enough to be outside of Statute of Frauds. > 1 year in writing. Recordation is not essential to the validity of a deed as between grantor and grantee. Presumed to be of perpetual duration
  2. Implication - created by operation of law and exception from SOF. Ex. Quasi-easement from preexisting use where previous use on servient part was apparent and continuous AND parties expected that use would survive division because it is reasonably necessary to dominant parcel’s use and enjoyment
  3. Necessity - implied when landowner conveys part of land with no way out except over some part of grantor’s remaining land. The owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient.
  4. Prescription - analogy to adverse possession. COAH: continuous and uninterrupted use, open and notorious use (discoverable upon inspection), actual use (need not be exclusive), hostile use (w/o servient owner’s consent)
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3
Q

Transfer of Easement Appurtenant

A

Transfer of dominant parcel - Passes automatically with transfer of dominant tenant, regardless of whether its mentioned in conveyance/deed. BUT, cannot be conveyed apart from dominant parcel.

Transfer of servient parcel - Automatically passes with servient estate, unless new order is BFP without notice of the easement. BFP = someone who purchases property for valuable consideration, without notice of the prior interest

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4
Q

Three types of notice for an easemenet

A
  1. Actual
  2. Record notice, which comes from the fact that the document creating the easement is properly recorded
  3. Notice from the visible appearance of the easement - buyers of land are expected to physically inspect the premises
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5
Q

Deed of Trust

A

A security interest in real estate, which may secure a loan represented by a promissory note.

If the loan is not paid when due, the holder of the security interest may take title to the real estate or have it sold and use the proceeds to pay the debt.

Operates similar to a mortgage

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6
Q

Deed of Trust - Execution and Foreclosure Rights

A

Debtor gives a deed of trust to 3rd party trustee. In the event of default, the lender instructs the trustee to foreclose the deed of trust by sale.

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7
Q

Race-Notice Statute

A

Under a race-notice statute, a prior grantee will prevail unless a subsequent purchaser or beneficiary both 1) is a BFP, and 2) records before the prior grantee records

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8
Q

** Joint Tenancy

A
  1. Right of Survivorship - when one tenant dies, her share automatically goes to surviving joint tenant.
  2. Alienable - transferable during her lifetime
  3. Not descendible or devisable - passing by will or to heirs through statutes of intestacy
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9
Q

Creation of a Joint Tenancy

A 
Four Unities (T-TIP)
T: at the same time
T: by the same title (same deed, will, or other doc. of title)
I: with identical, equal interests, AND
P: with rights to possess the whole

Grantor must clearly express the right of survivorship.
BUT: if a MBE Q states that “parties are joint tenants” take it as a given that they are joint tenants w/ right of survivorship

Interests must be equal shares

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10
Q

Severance of a Joint Tenancy

A

SAP - Sale and Partition

  1. Severance and Sale - tenant may sell or transfer interest during lifetime; transferee takes as a tenant in common. (Can transfer in secret w/o knowledge or consent of other tenant)
  2. Severance and Partition - voluntary agreement, judicial action for partition in kind (physical division of property), judicial action for forced sale (proceeds divided proportionately)
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11
Q

Mortgages and Joint Tenancy

A

Most states: LIEN theory - all bank has is a lien on title and this does not sever a joint tenancy. Severance occurs only if mortgage is foreclosed and property is sold. (Note: if the obligated co-tenant dies before foreclosure, the mortgagee’s or lienor’s interest is extinguished)

Small minority: TITLE theory - lien severs joint tenancy as to encumbered share

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12
Q

Tenancy by the Entirety

A

Marital estate akin to joint tenancy - only possible between married partners

Arises presumptively in conveyance to married partners, unless grant expressly indicates otherwise

Creditors of only one spouse CANNOT touch for satisfaction of debt

One spouse, acting alone, CANNOT defeat right of survivorship by unilaterally conveying to third party

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13
Q

Severance of Tenancy by the Entirety

A

Only death, divorce, mutual agreement, or execution by a joint creditor of BOTH the spouses can sever a tenancy by the entirety.

On divorce, becomes a tenancy in common

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14
Q

Tenancy in Common

A
  1. No right of survivorship
  2. Each co-tenant owns an individual part, and each has a right to possess the whole
  3. Each interest is devisable, descendible, and alienable
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15
Q

Rights and Duties of Co-Tenants

A
  1. Possession - right to possess all portions, no right to exclusive possession of any part
  2. Co-tenant in exclusive possession has right to retain profits from their use of the property and is not liable to the others for rent
  3. Co-tenant who leases all or part of premises to a third party must account to their co-tenants, providing them their fair share of rental income
  4. Absent ouster, co-tenant in exclusive possession cannot acquire title to the whole to the exclusion of the other co-tenant (no hostility for AP)
  5. Contribution for reasonable, necessary repairs provided they gave notice of need for repairs
  6. Share carrying costs
  7. No right to contribution for improvements made by one co-tenant during life of co-tenancy (but different at partition)
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16
Q

Waste in Tenancy in Common

A

Co-tenant must not commit waste. Co-tenant is permitted to bring an action against co-tenant for waste during life of co-tenancy.

Voluntary: willful destruction (intentional act to harm premises)
Permissible: neglect
Ameliorative: unilateral change that increases value

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17
Q

Partition for Tenants in Common

A

Joint tenant or tenant in common has right to bring act for partition.

Right may be exercised any time, but restraints on partition by co-tenants are valid if they are limited to a reasonable time

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18
Q

Encumbrances (mortgages, judgement liens) in Tenancy in Common

A

Joint tenant or tenant in common may encumber her interest, but may not encumber the interests of other co-tenants.

If one tenant in common has a mortgage, the foreclosure can only be on that co-tenants interest.

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19
Q

Tenancy For Years

A

Estate for years or term of years, for a fixed, determined period of time.

When you have a termination date from the start, you have a tenancy for years.

A term of years greater than one year must be in writing to be enforceable - Statute of Frauds

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20
Q

Termination of Tenancy for Years

A

Ends automatically at its termination date - no notice needed

In most leases, landlord reserves a right of entry to terminate lease if tenant breaches covenants. In many states a statute also permits this upon a tenant’s failure to pay rent.

May terminate if tenant surrenders and landlord accepts. Must be in writing if unexpired term exceeds one year

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21
Q

Periodic Tenancy

A

A lease which continues for successive intervals until either the landlord or the tenant gives proper notice of termination.

Continuous until properly terminated

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22
Q

Creation of Periodic Tenancy

A

Express - no end date

By implication/operation of law:

  1. Land is leased with no mention of duration but provision is made for payment of rent at set intervals
  2. Oral term of years in violation of SOF creates implied periodic tenancy measured by the way rent is tendered
  3. Residential lease - landlord holds over a tenant who has wrongfully stayed past the conclusion of the original lease created an implied periodic tenancy measured by the way rent is tendered
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23
Q

Termination of Periodic Tenancy

A

Notice, usually written, must be given.
Notice equal to the length of the period itself, unless agreed otherwise.
Notice timed to terminate the lease at the end of a period

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24
Q

Tenancy at Will

A

Tenancy of no fixed period of duration - terminable at the will of either landlord or tenant

“To T, for as long as L or T desires”

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25
Q

Creation of Tenancy at Will

A

Express agreement that lease can be terminated anytime

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26
Q

Termination of Tenancy at Will

A

Most states today require notice and a reasonable time to vacate

Also terminated by operation of law - death or commission of waste

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27
Q

Tenancy at Sufferance

A

Created when a tenant wrongfully holds over - meaning they remain in possession past the expiration of the lease

Lasts only until landlord either evicts or elects to hold landlord to new tenancy. No notice of termination is required.

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28
Q

Tenancy at Sufferance Hold Over Doctrine

A

Residential tenants: periodic tenancy based on how rent is payed. Maximum of year-to-year tenancy. Generally month to month regardless of original lease term. With notice prior to original lease expiring about increase in rent, tenant, by holding over, is held to have agreed to the new terms.

EXCEPT: 1. tenant remains in possession only for a few hours, 2. delay is not tenant’s fault

Commercial tenants: may be held to a new year-to-year periodic tenancy if the original lease term was for one yer or more. If original lease was less than one year, typically month to month

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29
Q

Tenant’s Duty to Repair

A
  1. Obligation to maintain premises - routine repairs other than ordinary wear and tear
  2. Must not commit waste
  3. Duty to repair when express covenant in lease - only for nonresidential tenants
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30
Q

Tenant’s Duty to Pay Rent

A

If tenant breaches, landlord can:

  • Evict through courts, or
  • Continue the relationship and sue for rent

Landlord must not engage in self-help

If tenant breaches but is out of possession, landlord can: (SIR)

  • S: surrender - treat abandonment as implicit offer of surrender which landlord accepts, thereby ending the lease
  • I: ignore - do nothing and hold tenant responsible for unpaid rent. Only available in a minority of states
  • R: Re-let premises on wrongdoer-tenant’s behalf and hold wrongdoer-tenant liable for any deficiency

Under majority rule: landlord must try to re-let - try to mitigate

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31
Q

Condemnation of Leaseholds

A

If the entire leasehold is taken by eminent domain, tenants liability for rent is extinguished and lessee entitled to partial compensation

If taking is temporary or partial, tenant is not discharged from rent obligation, but is entitled to compensation for the taking

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32
Q

Landlord’s Duty to Deliver Possession

A

Landlord must put tenant in actual physical possession of premises at start of lease. Otherwise, its a breach and T gets damages

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33
Q

Implied Covenant of Quiet Enjoyment

A

Implied in all leases - residential or commercial

Tenant has a right to quiet use and enjoyment of premises without interference from landlord or paramount title holder.

Breached by wrongful eviction or constructive eviction

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34
Q

Wrongful Eviction

A

Actual eviction - tenant excluded from entire premises. Terminates T’s obligation to pay rent

Partial eviction - tenant is physically excluded from only part of leased premises. Partial eviction by landlord relieves T of obligation to pay rent for entire premises

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35
Q

Constructive Eviction

A

Occurs when landlord’s breach of duty renders premises unsuitable for occupancy

MEET THREE ELEMENTS: SING -

  1. Substantial Interference - chronic or permanent problem due to L’s actions or failures
  2. Notice - T must give L notice of prob and L must fail to fix it
  3. Goodbye - T must vacate within a reasonable time after L fails to fix

T may terminate lease and seek damages

Landlord has a duty to abate nuisance and control common areas, but no other liability for wrongful acts of other tenants

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36
Q

Implied Warranty of Habitability

A

Applies ONLY to residential leases. Warranty is NOT waivable.

Premises must be fit for basic human habitation. Bare living requirements must be met.

Tenant’s options if breached: M R 3:

  1. Move out and terminate lease (OPTION: does not have to!)
  2. Repair and deduct (make reasonable repairs and deduct cost from future rent)
  3. Reduce rent or withhold rent until court determines fair rental value (tenant must place withheld rent in escrow)
  4. Remain in possession, pay full rent, seek money damages
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37
Q

Anti-discrimination Housing Legislation

A

Civil Rights Act - bars racial and ethnic discrimination in sale or rental of property

Fair Housing Act - protects tenants and potential tenants based on race, color, religion, national origin, sex, or disability, and familial status (BUT EXCEPTIONS BELOW)

  1. Does not apply to owner-occupied buildings with 4 or fewer units where persons live independently
  2. Does not apply to single family homes sold or render by an owner who owns no more than 3 single family homes
38
Q

Transfer of Leasehold

A

Assignment - transfer of entire remaining interest in lease. Assignee and L in “privity of estate” and is liable on all covenants that run with the land. Assignee owes rent directly to L. If assignee assigns to someone else, assignee’s obligations end and they have no liability. Original tenant remains liable on original contract obligations such as to pay rent.

Sublease - transfer of part interest where original tenant reserves time for herself. Sublessee generally pays rent to original lessee who pays landlord. Sublet and L are in neither privity of estate nor privity of contract. Not personally liable to L for rent of performance of any covenant unless sublessee expressly assumes covenants.

Landlord can require prior written approval, but once a landlord consents to transfer by one tenant, L waives right to object to future transfers by that tenant unless right is expressly reserved

39
Q

Assignments by Landlords

A

Landlord may assign rents and reversion interests they own. Tenant’s consent is NOT required.

Tenants are given reasonable notice and then must pay rent to new L. Benefits of all T covenants that touch and concern land run with L’s estate to new owner

40
Q

Landlord’s Tort Liability

Common Law - Caveat Lessee

A

L under no duty to make premises safe, but FIVE EXCEPTIONS - CLAPS

  1. Common Areas
  2. Latent defects - must warn a tenant of hidden defects (dangerous condition tenants could not discover by reasonable inspection) of which L has knowledge or reason to know. Duty to warn, not duty to repair
  3. Assumption of repairs - cannot make repairs negligently
  4. Public use rule - if L leases space and should know T will not repair, L is liable for defects that injure public
  5. Short-term lease of a furnished dwelling - L responsive for any defective condition regardless of whether or not they knew of the defect
41
Q

Landlord’s Tort Liability - Modern Trend: General Duty of Reasonable Care

A

L owes general duty of reasonable care to resident T and will be liable for injuries resulting form ordinary negligence if L had notice of defect and opportunity to repair.

Not liable for defects arising after T takes possession unless L knew or should have known of them

42
Q

Negative Easement

A

Entitles holder to prevent servient landowner from doing something - LASS

Light
Air
Support
Stream water from an artificial flow

Some states allow for scenic view also

Can only be created expressly by writing signed by grantor. No natural or automatic right

43
Q

Easement in Gross

A

Confers upon holder only some personal or pecuniary advantage that is not related to use or enjoyment of their land (e.g., right to place a billboard on someone’s lot, right to swim in someone’s pool, utility company’s right to lay power lines on someone else’s lot)

Servient land burdened, no dominant parcel

44
Q

Transfer of Easement in Gross

A

Not transferable unless for commercial purposes

45
Q

Termination of an Easement

A

END CRAMP

  1. Estoppel - oral expression of intent to abandon won’t terminate unless committed to writing or accompanied by action. BUT if servient owner materially changes position in reasonable reliance on easement holder’s assurances or representations, easement terminates via estoppel.
  2. Necessity - easements created by necessity expire when necessity ends.
  3. Destruction - destruction of servient land, other than through willful conduct of servient owner
  4. Condemnation - Condemnation of servient estate by eminent domain will terminate. Courts split on compensation
  5. Release - release in writing given by easement holder to servient land owner
  6. Abandonment - show by physical action an intent to never use the easement again. Mere nonuse or mere words are insufficient to terminate by abandonment
  7. Merger - when title to easement and title to servient land are vested in same person
  8. Prescription - servient owner may interfere with easement in accordance with elements of AP (COAH)
46
Q

License

A

Mere privilege to enter another’s land for a delineated purpose. Not an interest in land, revocable at will of licensor.

Not alienable - personal to licensee

Not required to be in writing, not subject to SOF

A failed attempt to create an easement (I.e., oral attempt to create easement for > 1 year) creates a license

47
Q

Covenant

A

Written promise to do or not do something relayed to land. Not a grant of property interest, rather, a contractual limitation or promise regarding land.

Real covenants are normally found in deeds and when certain requirements are met, they run with the land at law and subsequent owners may enforce or be burdened by covenants

Can be negative or affirmative

48
Q

Covenant vs. Equitable Servitude

A

Covenant - if plaintiff wants money damages

Equitable Servitude - if plaintiff wants injunction

49
Q

Running with the Land - Covenant

A

Must determine whether burden and benefit run

50
Q

Requirement for Burden to Run with the Land

A

Where the following requirements are met, successor in interest to burdened estate will be bound by the covenant.

WITHN:

  1. Writing - original promise between A and B in writing
  2. Intent - original parties intended covenant would run (courts generous in finding this)
  3. Touch and Concern - promise must affect parties’ legal relations as landowners and not simply as members of the community at large. E.g., restrict the burdened parcel owner in her use of that parcel of land., require holder to do something that increases obligations in connection with land
  4. Horizontal and Vertical Privity - Horizontal = original promising parties must have shared interest in land independent of covenant (e.g., grantor-grantee, mortgagor-mortgagee, landlord-tenant). Vertical = non-hostile nexus between successor in interest and originally covenanting party (AKA did not acquire via AP)
  5. Notice - successor had notice of promise when she took (actual, inquiry, record)
51
Q

Requirements for Benefit to Run

A

Whether successor has standing to enforce covenant - WITV

  1. Writing - original promise in writing
  2. Intent - original parties intended benefit would run
  3. Touch and concern - promised performance benefits the promisee and her successors. Promise affects parties as landowners
  4. V - vertical privity, non-hostile nexus between original promisee and successor
52
Q

Remedy and Termination of Real Covenant

A

Remedy - award of monetary damages

Termination - by either 1. a written release, 2. merger of benefited and burdened estates, or 3. condemnation of burdened property

53
Q

Equitable Servitude

A

Promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless successor is BFP

Created by promises in writing that satisfy the SOF.

WITNES:

  1. Writing - except under common scheme doctrine, original promise in writing
  2. Intent - intended that promise would be enforceable by and against successors
  3. Touch and concern - affects parties as landowners
  4. Notice - subsequent purchasers had actual, inquiry, or record notice
  5. ES - equitable servitudes

No privity of estate is required

54
Q

General or Common Scheme Doctrine

A

Exception to the general requirement that original promise for ES be in writing

Court will imply a reciprocal negative servitude (implied ES) to hold unrestricted lot holder to promise

Where a developer subdivides land and some deeds have restrictive covenants and some do not, restrictive covenants will be binding on all parcels provided there was a common scheme of development and notice of the covenants.

Notice: Actual, Inquiry (neighborhood seems to conform to the common restriction), Record

Scheme must arise before some lots are sold for it to apply

55
Q

Defenses to Common Scheme Doctrine

A
  1. Neighborhood conditions have changed so significantly that enforcement would be inequitable. So pervasive that the entire area or subdivision has changed.
  2. Person seeking enforcement is violating a similar restriction on their land
  3. Benefited party acquiesced to violation
  4. Benefited party acting in a way that a reasonable person would believe covenant was abandoned or waived
  5. Benefited party fails to bring suit within a reasonable time
56
Q

Elements of Adverse Possession

A

COAH

  1. Continuous - continuous throughout statutory period. Intermittent periods are not sufficient. Continuous of sort usual owner would make. AP can tack to periods of AP by predecessors
  2. Open and notorious - visual and visible. Sufficiently apparent to put true owner on notice that a trespass is occurring
  3. Actual and Exclusive - not sharing with true owner or public
  4. Hostile - enters w/o owner’s permission. State of mind is irrelevant - does not matter if they thought they were on their own land
57
Q

Tacking - AP

A

One AP may tack on to his time with the land his predecessor’s time, so long as there is privity between possessors. Non-hostile nexus

58
Q

Disabilities and AP

A

The Statute of limitations for adverse possession does not begin to run if the owner is under a disability to sue at the time his cause of action accrues (when the claimant begins the adverse possession). Where one was not adjudicated to be mentally incompetent until after the landowner began her possession of the property, the landowner can acquire title because the statute of limitations began to run before the disability arose.

59
Q

Delivery of a Deed

A

Delivery of a deed cannot be canceled - one’s return of the deed to the original owner and the original owner’s subsequent destruction of the deed has no effect.

For one to have their interest back, the friend would have to reconvey by deed to them.

60
Q

Statute of Limitations for Adverse Possession

A

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.

61
Q

Estoppel by Deed

A

Under the doctrine of estoppel by deed, if a grantor purports to convey an estate in property that she does not then own, her subsequent acquisition of title to the property will automatically inure to the benefit of the grantee. In other words, the grantor impliedly covenants that she will convey title immediately upon acquisition. Here, the daughter did not have title to the land at the time of the conveyance to her boyfriend, but she subsequently acquired title, which inures to the benefit of the boyfriend. However, the majority of courts hold that such title inures to the benefit of the grantee only as against the grantor, not against a subsequent bona fide purchaser (BFP). Thus, even if the boyfriend obtained title by estoppel by deed, he cannot invoke estoppel against a subsequent BFP (in this case, the friend).

62
Q

Remedies after Delivery of a Deed

A

If the buyer permits the closing to occur, the contract merges with the deed and, in the absence of fraud, the seller is no longer liable on the implied contractual covenant of marketable title.

The acceptance of a deed constitutes a discharge of the seller’s liability on the contract. Once that occurs, a buyer’s only remedies are those provided for in the deed.

63
Q

Overuse or Misuse of Easement

A

Does not terminate the easement. Appropriate remedy for the servient owner is an injunction against the misuse

64
Q

Conveyance of Real Estate

A

Step 1. Land contract which conveys equitable title
Step 2. Closing, where deed passes legal title and becomes operative doc

Before closing, apply contracts law. After closing, apply property law.

65
Q

Land Sale Contracts

A

Needs offer, acceptance, consideration and writing signed under SOF

66
Q

Inaccurate description of land in contract

A

Remedy: specific performance w/ pro rata reduction in price bc land is unique

67
Q

Doctrine of Part Performance in Land Sale Contracts

A

Exception to SOF that allows a buyer to enforce an oral real estate contract by specific performance if:

  1. oral contract is certain and clear, and
  2. acts of partial performance clearly prove existence of contract

Acts of partial performance - must have TWO of the three:

  1. buyer has taken possession of property
  2. buyer has paid purchase price or significant portion of purchase price
  3. buyer has made substantial improvements to premises
68
Q

Doctrine of Equitable Conversion

A

Once a contract is signed, equity regards the buyer as the owner of real property. Seller is entitled to possession until closing, when legal title is conveyed to buyer via deed

Risk of loss: if between contract and closing property is destroyed through no fault of either party, buyer bears risk of loss bc contract conveys equitable title to buyer

Interests of departed party pass to their estate

69
Q

Promises Implied in every Land Sale Contract - Marketable Title

A

Seller will provide marketable title - free from doubt and threat of litigation:

  1. no defects in record chain (AP)
  2. no encumbrances (mortgages, liens, restrictive covenants, easements, options to purchase, and significant encroachments unless waives)
  3. no existing zoning violations

Notes:

  • Seller has right to satisfy a mortgage or lien at closing with proceeds of the sale
  • Cannot convey marketable title if future interest is held by unborn or unascertained persons
  • Title must be marketable on day of closing
  • Once closing occurs and deed changes hand, seller is NO LONGER LIABLE on this implied covenant. Seller is then only liable for express promises made in deed
70
Q

Promises Implied in every Land Sale Contract - Seller will not make False Statement of Material Fact

A

Seller may be liable after closing for defects if they knowingly made a false statement of material fact that the buyer relied on, actively concealed a defect, or failed to disclose known defects in the property

For failure to disclose, must:

  1. seller must know or have reason to know of defect
  2. seller must realize that buyer is unlikely to discover the defect, and
  3. defect must be serious enough that buyer would probably reconsider the purchase
71
Q

Easement by Express Reservation

A

An easement by reservation arises when a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose

  • An easement can be reserved only for the grantor. An attempt to reserve an easement for anyone else is void
72
Q

Covenant vs. Easement

A

covenant is about what you can do with your own land, whereas an easement lets you do something with someone else’s land

73
Q

Implied Warranties of Fitness or Habitability

A

Land contract contains no implied warranties of fitness or habitability

EXCEPT:
- sale of new home by builder

74
Q

Lawful Execution of a Deed

A

To pass legal title from grantor to grantee the deed must be lawfully executed and delivered

Execution: writing signed by grantor, unambiguous description of land, identification of parties by name or description, words of intent to transfer. NOTE: consideration not required

Delivery: turns on grantor’s intent that title pass immediately. acceptance is presumed. physical or manual transfer, or use of mail, agent, or messenger. ASK: did grantor have present intent to part with legal control? Did grantor manifest present intent to be legally bound?

  • If a grantee expressly rejects the deed, deed is ineffective to pass title
  • presumed if handed to grantee, acknowledged by grantor in front of notary, or recorded

Delivery w/ oral conditions - oral condition drops out delivery is done
Delivery w/ written conditions - generally valid when delivered

75
Q

Quitclaim Deed

A

Contains no covenants for title/no promises

Grantor isnt promising that he has title to convey. Only what the grantor has at time of conveyance

76
Q

General Warranty Deed

A

Promises made on behalf of predecessors in interest. Warrants against all defects in title, including those attributable to grantor’s predecessors.

SIX COVENANTS

First three - present, meaning that covenant is breached, if ever, at time deed is delivered:

  1. Seisin - grantor owns estate
  2. Right to convey - grantor has power to transfer
  3. Against encumbrances - no servitudes or liens on the land

Second three - future covenants, not breached, if ever, until grantee disturbed in possession

  1. Quiet enjoyment - grantee will not be disturbed in possession by a third party’s lawful claim of title
  2. Warranty - promises to defend against reasonable claims of title by third party and compensate for loss sustained by claim of superior title
  3. Further assurances - promises to do whatever us needed to perfect grantee’s title if it later turns out to be imperfect
77
Q

Special Warranty Deed

A

Same covenants as general warranty deed but grantor makes promises only on behalf of himself, not predecessors in interest

78
Q

Defective Deeds

A

Void - set aside even if property passed to BFP: forged deeds, no delivery, dead or nonexistent grantee, deed obtained by fraud in factum (grantor didnt know what they were signing)

Voidable - set aside only if property has not passed to BFP: executed by minor, executed by one w/o mental capacity, deed obtained by fraud in inducement, deed obtained by duress or undue influence, deed through breach of fiduciary duty

79
Q

BFP

A
  • purchaser (cannot receive property by gift, will, inheritance)
  • pay valuable consideration
  • take without notice (actual, inquiry, record) of prior conveyance
80
Q

Race, Notice, Race-Notice

A

Race - first party to record wins
Notice - last BFP to take wins, even if they don’t record
Race-Notice - First BFP to record

81
Q

Shelter Rule

A

Anyone who takes from a BFP will prevail against any interest the BFP would have prevailed against

  • even if grantee had actual notice of a prior unrecorded conveyance
82
Q

Wild Deed

A

Not connected to chain of title, so it does not impart constructive notice because a subsequent purchaser could not feasibly find it

83
Q

Mortgages

A 
Borrower = mortgagor = debtor
Lender = mortgagee = creditor
84
Q

Transfer of Interests

A

Transfer by creditor-mortgagee:

  1. Indorsing the note and delivering it to the transferee, OR
  2. Executing a separate document of assignment
    - mortgage automatically follows a properly transferred note

Transfer by debtor-mortgagor:

  • buyer either:
    1. assumes mortgage - agreeing to be personally liable on mortgage note, and become primarily liable, with original mortgagor as secondarily liable as a surety. Mortgagee can choose who to sue
    2. takes property subject to mortgage - not agreeing to personal liability, mortgagees only recourse is foreclosure, cannot maintain suit against grantee

Note: once a grantee assumes a mortgage, any modification of the obligation by grantee and mortgagee discharges the original mortgagor of all liability

85
Q

Effect of Foreclosure on Various Interests

A

A buyer at a foreclosure sale takes the title as it existed when the foreclosed mortgage was placed on the property. All interests senior to that one remain on the property, and all interests junior to that one are extinguished. Including junior mortgages, liens, leases, easements, and other interests.

Junior lienholders paid in descending order

Until a creditor records, they have no priority. Creditors who record first take first

86
Q

Redemption

A

Equitable redemption - at any time prior to the foreclosure sale, the debtor has the right to redeem the land by freeing it of the mortgage.

Once a valid foreclosure has taken place, the right to equitable redemption is cut off

87
Q

Jointly Entering a Mortgage

A

The man and the woman held the land as tenants in common and entered into the mortgage jointly. As a result, they are jointly and severally liable for the mortgage obligation. The form in which the man and woman held the land does not change their joint liability for the mortgage obligation.

88
Q

Liquidated Damages

A

A court will uphold a seller’s retention of liquidated damages if this amount appears to be reasonable in light of the seller’s anticipated and actual damages. Many courts will uphold a retention of a deposit of up to 10% of the sales price without further inquiry into its reasonableness.

89
Q

Right to Lateral Support

A

Right to lateral support (i.e., the right to have his land supported in its natural state by the woman’s adjoining land). If land is improved by buildings and an adjacent landowner’s excavation causes subsidence, the adjacent landowner will be strictly liable for damages to the building caused by the excavation only if it is shown that the land would have collapsed in its natural state.

90
Q

Lapse

A

A deceased person cannot take and hold title to property. If a named beneficiary predeceases the testator and there is no provision in the will for what happens to the gift in that case, the gift to that beneficiary lapses.

Unless there is an applicable anti-lapse statute which might have substituted the friend’s child as the beneficiary of the bequest if the friend were a protected beneficiary under the statute.

Real Property (2 decks)

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