Property Flashcards
Ownership of land
Types
- Joint Tenancy (JT)
- Tenancy in common (TIC)
- Tenancy by the entirity (TBE)
Real estate K
Elements
Must:
1. Be in writing b/c SOF.
2. Include parties, price, terms, etc. (K principles)
3. Create an equitable conversion
4. Have marketable title = free of any liens/cloud on the title.
SOF requirement (in writing)
is there an exception to SOF for RE K?
RE K in writing is default!
BUT consider SOF exceptions = $$++
Money ++ improvements/posession = no need of K in writing.
Equitable conversion
Elements RE K
Equitable conversion = the shift the risk of loss to the buyer because at the moment you paid, you get equitable interest
Marketable title
Element of RE K
Def: title free of any liens/cloud.
Consideration: having marketable title is NOT the same as providing it — seller only needs to provide it once time to convey title arrives = once buyer makes all payments on the property!
Note: you must have marketable title even if K is silent about it b/c unless parties contract otherwise, there is an obligation to convey marketable title!
Deed
Key elements
- Delivery (intent).
- Acceptance (presumed unless facts say otherwise).
- Legal description (where).
- Identifiable grantees (who).
- Merger of K (no more K, just deed for breach).
- Execution - legal title conveyance.
Deeds
Types
- General warranty deed (all deed history is gucci)
- Special warranty deed (my ownership - current seller -of deed is gucci)
- Quitclaim deed (only lord knows, no promises)
What are the common guarantees of both warranty deeds?
(Not needed to know for final)
There are 6 guarantees true for all types of deeds:
- Ownership, legal title of property
- Legal right to sell the land.
- No one can stop you from selling.
- If anybody does claim some interest…
- Seller will defend you, pay for it, and clear title.
Mortgages
Types / theories
- Purchase money mortgage
- Buying property w/mortgage
- Lien or title theory
- Redemption (equitable and statutory)
Purchase money
Mortgage
Money borrowed goes to buy the house.
If competing debts, mortgage ALWAYS has priority.
Buying property w/mortgage
You buy either:
1. Assumable = you take on payments (but if you don’t pay OG mortgage-taker must pay).
OR
2. Subject to = buyer has no financial responsibility (all on seller, but if seller does not pay, bank still has right to foreclose)
Lien theory
Mortgage
Bank has a lien on property, resident has LEGAL title (so resident could transfer/sell)
- once mortgage paid, lien buh-bye
JT w/ROS
in a lien theory jurisdiction
If you mortgage your interest on a property in Lien theory jurisdiction
JT w/ ROS preserved!!
Title theory
Mortgage
Bank has LEGAL title, resident has an equitable interest.
- So resident cannot sell it b/c they don’t own it.
- When person pays off the mortgage, they receive title.
JT w/ ROS
Title theory
If mortgaging in title theory jurisdiction = JT is SEVERED and is now TIC
Redemption
Types
Equitable (before sale)
Statutory (after sale)
Equitable Redemption
Before sale
You can pay off what you owe in the period b/w notice of foreclosure until sale to stop foreclosure
This redemption can never be waived
During this period you can live in the property
Statutory Redemption
After sale
You can pay what you owe w/in a designated time (specified in the statute) after the sale to redeem title.
Adverse posession (AP)
You stayed on the property so long that you get title IF your stay is:
(1) exclusive;
(2) continuous;
(3) open;
(4) notorious;
(5) hostile.
Recording statutes
Types
- Race
- Notice
- Race notice