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
o Inquiry notice:
Inquiry notice is notice of what the purchaser would have discovered by inquiring into the property (e.g., visiting it to determine who is occupying the land)
Shelter Rule:
Under the shelter rule, a person who takes from a BFP will prevail against any interest that the transferor-BFP would have prevailed against. This is true even where the transferee has actual knowledge of the prior unrecorded interest.
o General Warranty Deed:
the grantor makes one or more promises about the state of title. The grantor is held to be making various promises about the state of his ownership called “covenants for title.” These are either present or future covenants.
- Seisin
promises that grantor owns the parcel to be transferred.
- Right to Convey:
promises that grantor has power to transfer parcel.
- Against Encumbrances
promises that no servitudes or liens are on the land
- Quite Enjoyment
Promises that grantee will never be disturbed in possession by third party’s lawful claim or title. Can be breached by constructive eviction.
- Warranty:
Promises to defend grantee should there be any superior claim of title asserted by others.
Constructive Eviction
Constructive eviction occurs when the Landlord acts or fails to provide some service that they are under a legal duty to provide, thereby rendering the property uninhabitable. The tenant may terminate the lease and sue for damages. In order to prove Constructive eviction the tenant must prove:
- That the land lord caused the injury
- That the breach interfered with the use and enjoyment of the property
- That the tenant gave notice and a reasonable time to cure
- Left within a reasonable amount of time
If tenant wrongfully Vacates Property
Landlord can SIR.
Surrender: can accept the tenants surrender. Must be in writing to be valid. Ends lease
Ignore: Ignore the abandonment and hold T responsible for rent until the natural end of the lease. MINORITY VIEW
Re-let: Relet the premises on the wrongdoer’s behalf and hold the wrongdoer liable for the deficiency. (Majority Rule) (Duty to mitigate)
Warranty:
Warrants that the house was designed/ constructed in a reasonable workmanlike manner and it was suitable for habitation.
Deed
Instrument used to convey title of property. Must be
- in writing,
- sufficiently describe property,
- identify grantor and grantee,
- evidence intent to convey and
- be signed by grantor.
Actual Notice:
Must have knowledge
Record Notice
properly recorded deed in chain of title
Inquiry Notice
What the inquiry of property would have revealed.
