Property Flashcards
What are the six present and future covenants of title associated with a general warranty deed?
The three present covenants are the covenant of seisin, the covenant of the right to convey, and the covenant against encumbrances.
The three future covenants are the covenant of warranty, the covenant of quiet enjoyment, and the covenant of further assurances.
What is the covenant against encumbrances?
The covenant against encumbrances is a present covenant that guarantees that the deed contains no undisclosed encumbrances. A breach occurs when a property is encumbered by a mortgage, lease, easement, or covenant not specified in the deed*.
*Beware of questions that try to trick you by mentioning these in the contract but not in the deed; if not in the deed, the covenant is breached. Why? Because merger.
What is the doctrine of merger?
Under the doctrine of merger, the obligations contained in the contract merge into the deed.
What is the effect of the grantee’s awareness on a breach of the covenant against encumbrances?
(Sorry this is v niche but was legit an essay question so fuck us I guess)
In most states, a breach occurs even if the grantee is aware of the encumbrance. However, in some states, there is no breach if grantee had knowledge, it was visible, or if it benefitted the land.
What is the difference between an easement in gross and an appurtenant easement?
An easement is in gross if it was granted to benefit a particular person. An easement is appurtenant if it was granted to benefit the land itself.
What is an express easement by grant?
An express easement by grant arises when it is affirmatively created by the parties in a writing that satisfies the requirements for a deed.
If it is granted but not recorded, then the easement is not enforceable against BFPs.
Otherwise, the burden of an easement in gross is transferred automatically with the transfer of the servient estate.
Which warranty is implied with a newly constructed residence and how does it work?
A warranty of fitness or suitability is implied in a contract for the sale of a newly constructed residence. Under this warranty, the seller warrant that he used adequate materials and good workmanship.
It generally covers latent construction defects (defective plumbing, electrical, or mechanical systems, or the classic leaky roof/drainage situation) that does not manifest until after the sale.
Damages are based on cost of repairs.
When can a lease be assigned?
Absent any language to the contrary, a lease can be freely assigned. When a lease prohibits assignments, the tenant may nevertheless assign; however, the landlord generally can then terminate the lease for breach of one of its covenants and recover any damages.
Under the majority approach, the landlord may only withhold permission as to an assignment on a reasonable ground in relation to the property being leased and not on a whim or personal prejudice (traditionally, it was all left to the landlord’s discretion).
What is a tenancy for years?
A tenancy for years is an estate measured by a fixed and ascertainable amount of time.
Termination may occur before the expiration of the term. A tenant surrenders a lease by transferring the lease back to the landlord with the landlord accepting the return. If the landlord accepts surrender, the tenant is not obligated for future rent.
What is a landlord’s duty to mitigate damages?
Many states impose on the landlord a duty to make reasonable efforts to mitigate damages when a tenant abandons a lease. What constitutes a reasonable effort depends on the circumstances. However, an owner of multiple vacant apartments is typically required only to treat the premises as one of his vacant stock (no special efforts required).
What is a nonconforming use?
When a zoning ordinance is enacted or modified, any property within the zone that does not conform to the requirements for that zone is a nonconforming use.
However, a zoning ordinance generally must allow for existing nonconforming uses. The time for testing whether the use is grandfathered in is the date the ordinance takes effect.
What are the limits on increasing/expanding a nonconforming use?
Generally, a property owner whose nonconforming use has been grandfathered is not entitled to subsequently increase the nonconforming use.
However, the owner may be permitted to increase the frequency of the use to upgrade the means to accomplish the nonconforming use, so long as the nature and character does not constitute a substantial change.
What is a future-advances mortgage?
A future-advances mortgage is a mortgage given by a borrower in exchange for the right to receive money from the lender in the future (also known as a line of credit). It can provide for obligatory advances or optional advances. If the advances are conditioned on “satisfactory progress” then it is considered optional, not obligatory.
What is the basic rule when there is more than one security interest in the property?
What is the exception to this rule for future-advances mortgages?
If there is more than one interest in the property, the basic “first in time, first in right” rule is applied to determine the priority of the interests.
This rule is subject to an exception for future-advances mortgages. If the advances are optional, then a subsequent mortgage has priority over amounts that are actually loaned after the mortgagee has notice of the subsequent mortgage (majority requires actual notice, minority requires only constructive).
