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FLAP (MBE) > Property > Flashcards

Property Flashcards

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MBE flashcards
1
Q

Ownership of land

Types

A
  1. Joint Tenancy (JT)
  2. Tenancy in common (TIC)
  3. Tenancy by the entirity (TBE)
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2
Q

Real estate K

Elements

A

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.

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3
Q

SOF requirement (in writing)

is there an exception to SOF for RE K?

A

RE K in writing is default!
BUT consider SOF exceptions = $$++

Money ++ improvements/posession = no need of K in writing.

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4
Q

Equitable conversion

Elements RE K

A

Equitable conversion = the shift the risk of loss to the buyer because at the moment you paid, you get equitable interest

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5
Q

Marketable title

Element of RE K

A

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!

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6
Q

Deed

Key elements

A
  1. Delivery (intent).
  2. Acceptance (presumed unless facts say otherwise).
  3. Legal description (where).
  4. Identifiable grantees (who).
  5. Merger of K (no more K, just deed for breach).
  6. Execution - legal title conveyance.
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7
Q

Deeds

Types

A
  1. General warranty deed (all deed history is gucci)
  2. Special warranty deed (my ownership - current seller -of deed is gucci)
  3. Quitclaim deed (only lord knows, no promises)
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8
Q

What are the common guarantees of both warranty deeds?

(Not needed to know for final)

A

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.

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9
Q

Mortgages

Types / theories

A
  1. Purchase money mortgage
  2. Buying property w/mortgage
  3. Lien or title theory
  4. Redemption (equitable and statutory)
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10
Q

Purchase money

Mortgage

A

Money borrowed goes to buy the house.

If competing debts, mortgage ALWAYS has priority.

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11
Q

Buying property w/mortgage

A

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)

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12
Q

Lien theory

Mortgage

A

Bank has a lien on property, resident has LEGAL title (so resident could transfer/sell)
- once mortgage paid, lien buh-bye

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13
Q

JT w/ROS

in a lien theory jurisdiction

A

If you mortgage your interest on a property in Lien theory jurisdiction
JT w/ ROS preserved!!

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14
Q

Title theory

Mortgage

A

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.

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15
Q

JT w/ ROS

Title theory

A

If mortgaging in title theory jurisdiction = JT is SEVERED and is now TIC

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16
Q

Redemption

Types

A

Equitable (before sale)
Statutory (after sale)

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17
Q

Equitable Redemption

Before sale

A

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

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18
Q

Statutory Redemption

After sale

A

You can pay what you owe w/in a designated time (specified in the statute) after the sale to redeem title.

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19
Q

Adverse posession (AP)

A

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.

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20
Q

Recording statutes

Types

A
  1. Race
  2. Notice
  3. Race notice
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21
Q

Race

Recording statute

A

First party to record wins

It does not matter if you are a Bona Fide purchaser (BFP)

22
Q

Bona Fide Purchaser (BFP)

Def

A

Someone who has (a) paid value for the land & (b) has no notice of any earlier transaction on the property.

Notice = recoding deed, this puts everyone on notice.

Lendors/creditors are not BFPs!

BFP protections dont apply to those that receive the property by gift/will/ AP

23
Q

Notice

Recording statute

A

LAST BFP with no notice wins

Ask: who is the last person w/o notice (and did they pay? Y = last BFP)

i.e. I sell my land to Alanis on Monday, to Brian on tuesday, who records, and to Carla on Wednesday. Brian is the last BFP with no notice, and since he recorded, Carla could not say she had no notice. Brian wins.

24
Q

Race-Notice

Recording statute

A

First BFP to record - wins

25
Q

Rights in land

Types

A
  1. Easements
  2. Covenants,
  3. Equitable servitude,
  4. Licenses,
  5. Profit
26
Q

Easements

Types and def

A

By: (1) necessity, (2) implication, (3) prescription

Easements last forever unless FACTS tell you they dont

27
Q

By necessity

Easement

A

landlocked property and need to cross the land.

This easement will continue to exist through different owners even if its not mentioned in the new deeds, IF: (1) it was mentioned in prior deeds; and (2) the necessity is still present.

Going into other’s land must be the ONLY way (cannot be just a shortcut)

i.e. I buy a peninsula property in the ocean by the Keys, but dont realize I am only buying the bottom half of the peninsula and have no way to get to the main road but to cross through the back road of my neighbor. I now have an easement by necessity, as my ONLY was to get to the city, is to use my neighbor’s road.

28
Q

By implication

Easement

A

Right of way, not out of necessity, but out of prior use

i.e. John has a property that has a nature path that crosses all of his property in the middle, which John walks up and down every day. John sells the noth half of the property, but continues to walk up and down the nature path. John has an easement by implication.

29
Q

By prescription

Easement

A

Looks like AP (b/c someone has lived in property for the statutory time) BUT that someone has a legal right to physically stay in the property.

MISSING EXAMPLE!!!

30
Q

Ways to terminate an easement

A

Abandonment: Party: (1) stopped exercising the right & (2) expressed an intent NOT to return.
- Note: none use alone is not enough.

Merger: now you own both the property that needed the easement and the one giving you the easement, so buh-bye easement.

31
Q

Covenants

Def

A

A promise (b/w 2 people) that “runs with the land” and lasts forever

Enforceable forever even against future grantees

Covenants are governed by K law – usually if there is a breach, you are suing for damages – BUT you can also seek an injunction

32
Q

Covenants

Requirements

A

Agreement must:
1. be in writing
2. “touch and concern the land” - agreement must be about the property itself
3. Have notice

33
Q

Restrictive covenants

A

Putting restrictions on the land (NOT to do something).

Thus, a breach would require an injunction

Still needs all the requirements of a general covenant

34
Q

Implied reciprocal servitude (??)

AKA equitable servitude.

A

Synonym of equitable servitude it’s a uniform restriction on everyone always enforceable against future owners

35
Q

License

Type of right to land

A

Right to enter someone’s land for a period of time (limited b/c its freely revocable by the grantor).

Least powerful of the rights

36
Q

Profit

Type of rights in land

A

Limited right to enter property to TAKE something off the land of another (to dig minerals/oils out).

37
Q

Future interests

Types

A

Fee Simple Absolute (FSA)
Fee Simple Determinable (FSD)
Fee Simple Subject to Condition Subsequent
Rule against perpetuities (RAP)

38
Q

Fee Simple Absolute (FSA)

Future interest

A

Grants the biggest power b/c you own all/have the power to do whatever you want, for LIFE.

“To A for life” = FSA

39
Q

FSA reversion

A

If A gets a future interest in FSA and it does not specify a taker after A – it automatically goes back to the grantor.

^ this process is called reversion

40
Q

FSA remainder

Def

A

A gets FSA and it will pass to someone else the grantor decides to give it to. Then, that interest is called a remainder.

If facts say: to A for life then to B

41
Q

FSA remainder

Types

A

There are two types:

Vested = you get rights no matter what.
- i.e. Blackacre to A for life, then to B. (B will always get Blackacre).

Contingent = if there is a condition for you to receive the interest (other than first person dying), then you MAY get the rights, but not guaranteed.
- i.e. Greenacre to A for life, and then to B if B is married.

42
Q

Fee Simple Determinable (FSD)

Future interest

A

There is a specific purpose with the interest given and the person will mantain the interest as long as you keep doing what you’re told to do.

i.e. I convey Greenacre to law school IF it is used as a law school

43
Q

FSD possibility of reverter

A

IF grantee stops doing what they are supposed to, grantor gets interest back automatically = possibility of a reverter.

44
Q

Fee simple subject to condition subsequent

A

Grantee gets interest, but if an event occurs in the future, grantor can get it back.

Note: IF the event occurs, grantor MUST take some actions (not automatic), and grantor’s interest = right to re-entry.

i.e. Greenacre to A, but if pigs fly, I get the property back.

45
Q

Rules against perpetuities (RAP)

A

Prevents conveyance of a future interest because it violates RAP. If you see a 3rd person after FSD or FS condition subsequent = 3rd person’s interest is void b/c it violates RAP

Note: the initial transactions are valid.

i.e. Greenacre to A for life, if she passes the bar, then to B for life, then to C
The future interests of A and B are valid; C’s would be void.

46
Q

What are the different types of tenancies?

A

Tenancy by years
Periodic tenancy
Tenancy at will
Tenancy by sufferance

47
Q

What are executory interests?

A

They are a future interest that divest (cuts short) someone else’s interest.

48
Q

What are the types of executory interest?

A

If it divest the Settlor, they are springing

If the divest a grantee, they are shifting

49
Q

Does a partial condemantion (govt taking) breach L’s warranty of quiet enjoyment?

A

NO. The taking of all or part of a leased land (under eminent domain) does NOT breach Landlord’s warranty of quiet enjoyment.

50
Q

How do you sever a JT w/ROS?

2 ways

A

By partition or by severance

Severance: intervivos transfer/conveyance of one JT’s entire interest

51
Q

What is the effect of a judgment lien in a JT w/ROS?

If judgment debtor dies

A

If the debotr dies, and judgment creditor did not enforce the judgment = death of the debtor extinguishes the interest

52
Q

Can a JT w/ROS encumber their interest?

A

A JT or TIC may encumber their own interest BUT may not encumber the other co-Ts interests.

FLAP (MBE) (7 decks)

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