Property Flashcards
What factors should you look for when analyzing an implied reciprocal servitude?
Common scheme of plans, even if deed doesn’t mention it. This gives the buyer inquiry notice because all of the houses look the same.
What are 3 common fact patterns that indicate the possessory party has a duty to not commit waste?
- Landlord v. tenant
- Co-tenant out of possession v. co-tenant in possession
- Mortagee (bank/lender) v. mortgagor (borrower / home/commercial owner)
What happens if a contingent remainder does not vest before it becomes possessory?
The grantor has a reversion.
Example: From O “to my daughter for life, then to each of my grandchildren.” If O has no grandchildren when D dies, it reverts back to O’s estate.”
What is the doctrine of worthier title and what does it protect against?
It prevents against remainders in a grantor’s heirs. It creats a presumption of reversion to the grantor.
Ex: O conveys “to A for life, then to my heirs.” Under the DoWT, O has a reversion.
What is the Rule in Shelley’s Case?
Prevents against remainders in a grantee’s hers and uses the doctrine of merger to create a fee simple.
Ex: O conveys “to A for life, then to A’s heirs.” This would create a fee simple absolute in A if the jurisdiction has adopted the rule in Shelley’s case.
What is the Rule of Convenience?
If a class gift is subject to open, at any point one of the contingent remainders is entitled to immediate possession, the class closes. Ex: "To my daughter for life, then to each of my grandchildren who reach 25." When daughter dies, O has 2 grandchildren over 25, 5 grandchildren under 25 and 3 living children who MAY have more grandchildren. However, the class closes because 2 grandchildren are entitled to immediate possession upon daughter's death.
What are the common exceptions to the RAP? I.e., situations where RAP will not invalidate a devise?
- A gift from one charity to another charity.
- Options, RAP does not apply to an option held by a current tenant to purchase a fee interest in the leasehold property or a right of first refusal in a commercial transaction.
What is an ouster and what are the remedies available?
Co-tenant in possession denies another co-tenant access.
Remedies:
- injunction or
recover damages for the value of the use while the co-tenant was unable to access the property.
How are operating expenses (mortgage payments, property taxes, etc.) divided in a co-tenancy? Can a co-tenant collect for overpayment?
Divided based on ownership interests of each co-tenant.
A co-tenant can collect contribution from the other co-tenants for payments in excess of their share of the operating expenses.
Is there a right of reimbursement for repairs/improvements from a co-tenant?
No right to reimbursement for necessary repairs of improvements, but the co-tenant who makes them might get credit in a partition action.
Which types of co-tenants are entitled to partition as an equitable remedy?
TIC or JTWROS, which is a unilateral right. TBE do NOT have the unilateral right to partition.
Can co-tenants agree not to partition? If so, how is it enforced?
They can agree not to partition so long as the agreement is clear and the time limitation is reasonable.
What essential information must be in a land sale contract in order for it to comply with the Statute of Frauds?
Must be in writing
Must be signed by the party to be charged; and
Must include essential terms (parties, description of the property, and the price and payment info).
Note that the closing date is NOT essential (‘reasonable amount of time’)
What is the basic definition of marketable title? What types of land sale contracts does it apply to?
EVERY land sale contract includes an implied covenant of marketable title. It is a title that is free from an “unreasonable” risk of litigation.
What are common defects in title that would render it unmarketable?
- title acquired by adverse possession that hasn’t been quieted
- private encumbrances (mortgage, covenants running with the land, easements)
- violation of a zoning ordinance
What is the buyer’s remedy for the seller not being able to deliver marketable title?
Recission of the contract.
What is the implied warranty of fitness or suitability?
applies to defects in new construction.
In majority both the initial homeowner-purchaser and subsequent purchasers may recover damages from the builder
In a minority, only the original buyer cnforce.
Must be brought within a reasonable time after discovering the defect (unless limited by statute)
What is the merger doctrine as it applies to a land sale contract?
After closing, obligations in the contract are merged into the deed. If there was something important in the contract that’s not in the deed the cause of action is lost because the deed controls after closing.
In a land sale contract, what are the buyer’s remedies on seller’s breach of contract?
- Damages: measure is the difference between contract price and market value on the DATE of the breach
- Rescission: return all payments to the buyer and cancel the contract
- Specific performance
(note: buyers can choose between damages, rescission or specific performance but only one)
What are the contents of a valid deed?
Identify the grantor and grantee
must be signed by the grantor
Must include words of transfer (granting clause that can include any words that evidence a present intent to transfer)
Sufficient description of the property
What is the equal dignities rule?
When a principal authorizes their agent to execute a deed, the agency-principal relationship must be in writing.
What types of property interests are covered by recording acts?
- deeds
- mortgages
- leases
- options (rofr)
- judgments affecting title
- easements and covenants
Who’s protected by recording statutes? Who’s NOT covered by recording statutes?
Subsequent purchasers for value are protected. Grantees who acquire title by gift, intestacy or devise are NOT protected.
What are the 3 types of notice for the purposes of a recording statute?
Actual - when the subsequent grantee has real, personal knowledge of the prior interest
Constructive (record) - where the prior interest has been recorded so subsequent purchasers are on notice even if they don’t “know” about it.
Inquiry - when a reasonable investigation would have disclosed the existence of prior claims
what are two common situations that should make you think “inquiry notice?”
Dude on the land.
Mentioned interest: when there is an interest mentioned in the deed to some other transaction; had the subsequent grantee inquired, he would have discovered the interest.
what is a race recording statute?
First to record their interest wins, even if the SP had notice of a prior, unrecorded interest/conveyance.
What is a notice statute?
A SP wins if she acquires WITHOUT notice of a prior, UNRECORDED conveyance.
what is a race-notice statute?
A subsequent purchaser wins if:
- Acquired without notice of a prior unrecorded conveyance AND
- They record first.
What type of statute is this:
“No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be first recorded according to law”
Race-notice
