Property Flashcards
Deeds - 3 Types
General Warranty Deed: Provides greatest title protection - grantor warrants title against all defects, if even if the grantor did not cause the defects.
Special Warranty Deed: Grantor assures that (1) he has not conveyed land to another; and (2) land is free of encumbrances attaching while grantor owned land.
Quitclaim Dead: Transfers whatever interest grantor purports to have in property - grantor makes no warranties as to health of title.
General Warranty Deeds & Covenants for Title - Present Covenants
Present Covenants - only breached at time of delivery:
- Seisin: warrants that grantor is rightful owner (ie, has title, possession) and that deed covers described land.
- Right to Convey: warrants that grantor has right to convey property.
- Against Encumbrances: warrants that there are no undisclosed encumbrances on property that could limit its value.
General Warranty Deeds & Covenants for Title - Future Covenants
Future Covenants - only breached upon third party interference with possession of grantee:
- Quiet Enjoyment: grantor promises to defend against future challenges to the grantee’s title to property.
- Warranty: grantor promises to defend against future developments that extent into the grantee’s property boundary.
- Further Assurances: grantor promises to do what is reasonably necessary to cure future problems with title.
Competing Claims to Title - Recording Statutes & Notice - First in Time, First in Right
Under the common law, if a grantor transfers the same piece of property to multiple grantees, the first grantee to receive the deed acquires rightful title. In absence of a recording statute, the common law rule controls.
Competing Claims to Title - Recording Statutes & Notice - Types of Notice
Three types of notice:
- Actual Notice: Subsequent purchaser has actual notice when they have personal knowledge of prior interest.
- Constructive Notice: Subsequent purchaser has constructive notice when prior interest is recorded. If deed isn’t recorded properly, it is considered a wild deed. A wild deed does not put subsequent purchasers on constructive notice.
- Inquiry Notice: Subsequent purchaser has inquiry notice when a reasonable investigation would have revealed the existence of prior claims.
Competing Claims to Title - Recording Statutes & Notice - Types of Recording Statutes
Three types of recording statutes that have been adopted by states to resolve completing claims to title:
- Race Statutes: The first grantee to record acquires title, regardless of notice.
- Notice Statutes: A subsequent purchaser acquires title if the purchase is made without notice of a prior unrecorded conveyance.
- Race-Notice Statutes: A subsequent purchaser acquires title if: (1) purchase is made without notice of a prior unrecorded conveyance; and (2) the subsequent purchaser records first.
Competing Claims to Title - Shelter Rule
A person who is transferred property from a bona fide purchaser has the same recording statute protections as the BFP. A BFP is a person who pays valuable consideration (ie, not a heir, devisee, or donee) for real property without notice of a prior interest.
Assignments
An assignment is a complete transfer of the tenant’s entire remaining term under the lease. In an assignment, the landlord can collect rent from the: (1) assignee (because there is privity of estate); or (2) original tenant (because there is privity of contract).
Termination of Leases - Abandonment
An abandonment occurs when the tenant unilaterally returns possession of the leased premises before the lease expires without the landlord’s consent. The tenant will have to continue paying rent until the landlord is able to find a replacement tenant. If tenant refuses to pay rent, landlord is entitled to damages for the difference between the original rent and the rent received from the replacement tenant.
Termination of Leases - Duty to Mitigate
Under the majority rule, the landlord has a duty to mitigate damages if the tenant abandons the property early or is evicted by making reasonable efforts to re-rent the property to another tenant. The landlord is entitled to damages for the difference between the original rent and the rent received from the replacement tenant.
Under the minority rule, the landlord does not have to mitigate damages.
Termination of an Easement
An easement may by terminated by any of the following:
- Release: An easement is terminated if the holder expressly releases it. The release must be in writing and satisfy the statute of frauds.
- Merger: An easement is terminated if the holder acquires fee title to the underlying estate - the easement merges into the title.
- Abandonment: An easement is terminated if the holder demonstrates an intent to never use the easement again through physical action (ie, requires more than non-use or statements).
- Prescription: An easement is terminated if the holder fails to protect against trespassers for the statutory period.
- Sale to a Bona Fide Purchaser: An easement may be terminated if the landowner sells the property.
- Estoppel: An easement is terminated if the landowner relies to their detriment on the easement holder’s assurance that the easement will no longer be used.
- End of Necessity: An easement by necessity lasts as long as the easement is necessary - if it’s no longer necessary, the easement terminates.
Implied Warranty of Fitness / Suitability
The implied warranty of fitness or suitability applies to defects in new construction. It protects against latent defects (ie, defects that are not discoverable from a reasonable inspection) and warrants that the new construction is safe and fit for human habitability.
In most jurisdictions, both the initial purchaser and subsequent purchasers may recover damages. In other jurisdictions, only the initial purchaser can enforce warranty.
Adverse Possession - Requirements
Adverse possession allows a trespasser in unlawful possession of land owned by another to acquire title to that land if the possession is: (1) Continuous of the statutory period; (2) Open and notorious; (3) Exclusive; and (4) Hostile.
Adverse Possession - Statutory Period
Seasonal or infrequent use will suffice if use is consistent with type of property being possessed. An adverse possessor can tack on the time of possession of prior adverse possessor to meet the statutory period requirement if adverse possessors are in privity with one another (ie, the transfer of land was voluntarily agreed upon). The statutory period will not run against a true owner who had a disability at the time the adverse possession begun.
Adverse Possession - Use of Property
Adverse possessor must use property as if they were a true owner (ie, trespasser’s possession of property cannot be hidden from true owner). The adverse possessor cannot share possession of property with true owner or have the true owner’s consent to possession or use of property.
