Property Flashcards
• Joint Tenancy
A protected interest in property owned by two or more with the right of survivorship. The joint tenancy is created when joint tenants take at the same time, the same title with identical equal interest and rights to posses the whole.
• Tenancy by the Entirety:
A protected marital interest in property between spouses with the right of survivorship.
o Presumptively in any conveyance to married partners unless the language of the grant clearly states otherwise.
o Creditors of only one spouse cannot touch this tenancy for satisfaction of the debt
o One spouse, acting alone, cannot defeat the right of survivorship by unilaterally conveying to a third party
• Tenancy in Common
An interest in property owned by two or more with no right of survivorship.
o Each co-tenant owns an individual part, and each has a right to possess the whole. May have unequal shares.
o Co-tenant may not commit waste.
Easements:
An easement is a grant of nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land. Easements are either affirmative or negative.
• Affirmative easement is one entitling its holder to do a physical act on another’s land.
• negative easement is one which enables its holder to prevent the owner of land making certain uses of that land. Typically, negative easements are only recognized in light, air, support, or stream water.
affirmative easement is created by
- Grant: if an easement is created by deed or a will, it is express. Must be in writing.
- Implication: An easement by implication is created from existing use. There are three requirements: (i) land must be divided up, (ii) the use for which the implied easement is claimed must have existed prior to severance, and (iii) easement must be reasonably necessary.
- Prescription: An easement by “prescription” is one that is gained under the principles of adverse possession.
- Necessity: An easement by necessity will be implied when grantor conveys a portion of its land with no way out, except over some part of the grantor’s remaining land
• Abandonment:
Abandonment requires physical action by the easement holder. Words alone and mere non-use will never be enough.
• Merger:
The easement is extinguished when title to the easement and title to the servient land become vested in the same person.
Mortgages:
A mortgage is a financing arrangement, in which the person buying property receives a loan, and the property is pledge as a security to guarantee repayment of the loan. There are two documents with every mortgage: the note and the mortgage. The note is the buyer’s promise to make repayments and the mortgage is the document which gives the lender the right to have the property sold to repay the loan if the borrow defaults.
Foreclosure:
Foreclosure is the process by which the mortgagee may reach the land to satisfy the mortgage debt, if the mortgagor defaults. The mortgagee must foreclose by proper judicial proceedings. At the foreclosure, the land is sold, and the sale proceeds go to satisfying the debt.
• No foreclosure is ever binding on a mortgagee whose interest is senior to the foreclosing creditor’s interest. Meaning if the junior creditor forecloses, that foreclosure proceeding can only wipe out the equity and any interest’s junior to that of the foreclosing creditor.
• “Future Advances” Clauses
Under a future advances clause, the borrower and lender agree that the lender at its option may make additional loans, and that these further loans will be covered by the mortgage.
Adverse Possession
possession for a statutory prescribed period of time can, if certain elements are met, ripen into title.
(1) One must actually possess the property
(2) The possession must be “open and notorious”
(3) The possession must be hostile, i.e., without the owner’s consent
(4) The possession must be continuous
(5) The possession must be for at least the length of the statutory period
Recording Statutes
the main function of recording acts, which are in force in every jurisdiction, is to give a purchaser of land a way to check whether there has been an earlier transaction in the property inconsistent with his own.
• Notice:
Under a notice statute, a subsequent bona fide purchaser (“BFP”) prevails over a prior grantee even without recordings. A BFP is a purchase who takes for valuable consideration and without notice of a prior claim at the time of the conveyance.
o Actual notice:
actual notice is what a purchaser actually knows.
o Record notice
Record notice is notice that the law imputes to the purchaser if a prior deed was properly recorded in the grantee’s chain of title
