Property Flashcards
Burden of an equitable servitude will run to successors in interest IF:
- The covenanting parties intended that successors in interest be bound by the covenant
- The successor in interest has notice of the covenant (if they’ve given value)
- The covenant touches and concerns the land (that is, it benefits the covenantor and their successor in their use and enjoyment of the burdened land).
A covenant will be enforceable as an equitable servitude IF
- Covenant in writing satisfies SOF
- Touches and concerns the land
- Indicates intention that servitude exists
- Notice is given to the future owners of the burdened land
Benefit of an equitable servitude will run to successors IF
- Covenanting parties intended that the benefit run
- Touches and concerns the land
IF buyer of land determines that seller’s title is unmarketable, THEN the buyer must:
Notify the seller AND give reasonable time to cure
Deed requirements
Signed by grantor, unambiguous description, identify parties, words of intent, delivery
bona fide purchaser
purchaser for value without actual, record, or inquiry notice of prior claim
Race jx: Does subsequent BFP win if BFP did not record?
No; first to record wins
Notice jx: Does subsequent BFP win if BFP did not record?
Yes; last BFP to take land wins
Race-notice jx: Does subsequent BFP win if BFP did not record?
No; to win, need BFP AND record properly before A
BFP requirements
Buyer, paid consideration, no notice that A bought land first
Types of notice
Actual notice: B learns of A
Inquiry notice: B would’ve leanred if B inspected
Record notice: What was properly recorded in chain of title
T/F: Grantees are charged with inquiry notice from use of quitclaim deed
F: Grantees are NOT charged with inquiry notice from the mere fact that a quitclaim deed was used
T/F: Devisee of the land can be protected as BFP of land
F: Devisee of land CANNOT be protected as BFP of land
Order of priority for foreclosure sale proceeds:
(1) Expenses of sale
(2) Principle and accrued interest of foreclosing party’s loan
(3) Junior liens in order of priority
(4) Mortgagor
Senior lienors get NOTHING UNLESS they’re the one foreclosing
Statutory redemption
Right of mortgagor to recover the land after the foreclosure sale has occurred, usually by paying the foreclosure sale price
Joint tenancy
-Two or more joint tenants w/right of survivorship
-Alienable inter vivos
-Not descendible or devisible
-Severing of unities creates tenancy in common
-Unities: TTIP: Time, title, Identical Interests, Possession
Tenancy by the entirety
-Protected marital interest between spouses w/right of survivorship
-Protected from creditors of one spouse
-Severs by death, divorce, mutual agreement, OR execution by a joint creditor of both spouses
Tenancy in common
-2+ own WITHOUT right of survivorship
-Equal shares not required
-May terminate by partition
How to sever joint tenancy
-Destroy one or more unities (TTIP)
-Voluntary conveyance of joint tenant’s interest
-Sale of joint tenant’s interest
Ouster
One co-tenant excludes another co-tenant from possession of the whole or any part of the property
Tenancy for years
Lease for specific period of time; terminates at end of period, breach of lease K, or LL’s acceptance of T’s surrender
Periodic tenancy
Lease that continues for successive intervals until LL or T gives proper notice of termination
-Can be created expressly OR implication (lease with no duration, holdover lease of T who wrongfully stays after lease ends)
Tenancy at will
Tenancy w/no fixed duration; terminable at will by LL or T; created by express agreement
Tenancy at sufferance
Created when T wrongfully holds over. T gets tenancy at sufferance so LL can recover rent. Terminates when LL evicts T or LL holds T to a new tenancy
T duties when lease is silent
(1) Repair (routine, not due to ordinary wear and tear)
(2) Pay rent
LL options when residential T breaches BUT is out of possession
SIR
Surrender: accept T surrender
Ignore: keep charging T rent
Re-let premises on wrongdoer’s behalf and hold wrongdoer-T liable for deficiency
Constructive Eviction Elements
SING
(1) Substantial Interference
(2) Notice
(3) Goodbye (T leaves)
Implied warranty of habitability
-For residential leases
-Premises must be fit for basic human habitation
T entitlement’s when Implied Warranty of Habitability is Breached
MRRR
Move out
Repair and deduct
Reduce/withhold rent
Remain and sue for damages
Fair Housing Act Exceptions
(1) Owner-occupied buildings with 4 or fewer units
(2) Single-family homes sold or rented by owner of 3 or fewer homes
Assignment definition
Transfer entire remaining term of lease
Sublet definition
Transfer PART of remaining term of lease; T retains part of remaining term
Privity of estate
L and T2 are liable to each other for the covenants in the original lease
Privity of contract
L and T exchanged promissory words of contract that created the lease
Exceptions to Caveat Lessee (responsibility of LL, not T)
CLAPS
Common areas
Latent defects (LL duty to warn)
Assumption of repairs once begun
Public use–LL responsible for lease of public space
Short-term lease (e.g., fully furnished cottage)
Easement definition
nonposessory interest that entitles holder to use of another’s land
Definition and types of negative easements
LASS
Light
Air
Support
Stream water from artificial flow
Easement appurtenant definition
-Easement appurtenants benefit the dominant land at expense of servient land
-E.g., Right of way across A’s land to easily reach B’s land (A is sub, B is dom)
-AUTOMATICALLY passes with transfer of dominant tenement
Easement in gross definition
-Confers personal or pecuniary interest in land NOT related to use or enjoyment
-Servient land is burdened BUT dominant land is NOT benefited
-E.g., A’s right to put billboard on B’s land, utility company’s right to lay power lines in another’s lot
-NOT transferable UNLESS for commercial purposes
Methods of creating an easement
PING
Prescription
Implication
Necessity
Grant
Easement by prescription elements
COAH
Continuous
Open and notorious
Actual (unlike adverse possession, do NOT need exclusive)
Hostile
Ways to terminate easement
END CRAMP
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
Types of notice
AIR
Actual
Inquiry
Record
Adverse possession elements
Continuous
Open and Notorious
Actual and exclusive
Hostile
Statutory period
COAHS
Unlike easement by prescription, NEED exclusive
When can adverse possessor tack?
Adverse possessor can tack IF privity between the successors (e.g., contract, deed, will; NOT ouster)
Common issues before closing (escrow period)
-B learns of title or property defects
-S learns they can get a better price
-Property damaged during escrow
Common issues after closing
-B learns of title issues
-B learns of easements
SOF requirements for Land K
-Identify parties
-Describe property
-Price OR means of determining price
Part performance of land
Exception to SOF
B can enforce oral real estate K by specific performance IF
-Oral K is certain and clear AND
-Acts of partial performance clearly prove existence of K (need 2/3: B possession, B paid purchase price, B made substantial improvements)
Equitable conversion definition
-After land K is signed, B is owner of land in equity
-B has risk of loss IF destruction of land
-BUT no legal title until after closing
-S keeps possession until closing
Implied promises in land sale K
-S will provide marketable title
-S will NOT make false statements of material fact
Exceptions to implied warranties of fitness or habitability
-New home construction
-Negligent builder (sue builder, NOT seller)
Mortgagor definition
Borrower
Mortgagee definition
Lender
Purchase-money mortgage definition
Mortgagee gives money
Mortgagee takes interest in land as collateral
How can mortgagee transfer their interest?
-Endorsing note and delivering it to transferee OR
-Executing a separate document of assignment
How can mortgagor transfer their interest?
-Buyer/transferee assumes mortgage (grantee agrees to be liable for mortgage note; original mortgagor secondarily liable as surety)
OR
-Takes property subject to mortgage (no personal liability for mortgage; Mortgagee’s only recourse is foreclosure)
What interests does mortgage foreclosure terminate?
Foreclosure terminates interests junior to the mortgage
being foreclosed but does not affect senior interests
Creditor priorities against a mortgage?
-Must record
-First in time, first in right
