Property Flashcards
Language sufficient to create a JT?
At Common Law, a conveyance to two or more persons satisfying the “4 unities” of time, title, interest, and possession created a joint tenancy.
Under Modern Law, a conveyance to two or more persons only occurs when “a right of survivorship” is clearly expressed–otherwise, it’s a TIC.
What is the big characteristic of a JT?
JTs have “right of survivorship”- when one JT dies, the remaining JT has a right to possess the property free from the dead JT’s interest.
Does a mortgage server a JT?
In “Lien Theory” state, one joint tenant mortgaging their interest does NOT sever the JT.
In a “Title Theory” state, one joint tenant mortgaging their interest WILL sever the JT into a TIC.
Does contracting to convey interest sever the JT?
Yes.
When one JT contracts to convey their interest, the JT is severed into a TIC–EVEN if no transfer is made yet.
What happens if K to convey land, but buyer or seller dies?
If there is a K to convey land and it’s been SIGNED, then it is enforceable in EQUITY.
Each party is entitled to SPECIFIC PERFORMANCE.
Buyer get real property.
Seller gets personal property ($).
If buyer or seller dies, the deceased’s takers of real property and takers of personal property will need to transfer the land or money accordingly.
How is priority of morgagees established?
Priority of morgagees is established by “first in time to give notice of their interest, is first in right of priority”
However, if senior creditor modifies the morgage in a way that detriments the junior creditor, then the **junior will get priority. **
marketable title
If land sale K is silent on what title is conveyed, marketable title will be implied.
This gurantees land if free from suits and threats of suits.
Title in UNmarketable if: (1) rests on adverse posession and no quiet title judgement yet, (2) encumberances (like restrive covenant, morgages) unless waived, (3) zoning violaitons.
Grantee CANNOT sue for UNmarketable title AFTER CLOSING-out of luck! THE TERMS OF DEED GOVERN, not the K.
quitclaim deed
Quitclaim deed transfer whatever title grantor has to grantee.
repairing an easement
The holder of the easement in another’s land has a right to repair the easement.
title insurance
Title insurance will protect the owner of the policy is he is ever sued for a title issue. It does not matter if the owner has conveyed the land already.
However, title insurance will not cover a morgagee once the morgage is paid off.
special warranty deed
Grantor warrants title against defects CAUSED BY GRANTOR.
general warranty deed
Grantor warrants title against ALL defects caused by ANYONE, present and future.
Implied Covenants in GW and SW Deeds
SEC FEW
i. Present Covenants – Present covenants are breached at the time of delivery (SOL STARTS TICKING AT DELIVERY)
**1. Covenant of Seisin: **
* Grantor promises that he owns the estate he’s now attempting to convey.
2. Covenant of Right to Convey:
* Grantor promises that he has the power to make this conveyance. (no legal disabilities or restraints on alienation)
3. Covenant against Encumbrances:
Grantor promises that there are no servitudes/liens on the land.
ii. Future Covenants: Breached when Grantee is disturbed in his possession (SOL TICKS WHEN DISTURBED)
1. Covenant for Quiet Enjoyment:
Grantor promises that Grantee won’t be disturbed in possession by 3rd Party’s lawful claim of title.
**2. Covenant of Warranty: **
Grantor promises to defend Grantee, should there be a lawful claim of title asserted by a 3rd Party.
3. Covenant for Further Assurances: Grantor promises to do whatever future acts are reasonably necessary to perfect title, if it later turns out to be flawed
statutory special warranty deed
Some states have stautotry special warranty deed that dictates what deed is conveyed when type of deed is not described.
Often include 2 promises GRANTOR makes ONLY BEHALF OF HIMSELF:
- grantor hasn’t conveyed this estate to anyone other than Grantee
- Grantor has not made encumbrance on the estate
tenancy at sufferance
Tenancy at sufferance occurs when the tenant wrongfully stays in possesion past their leasse term.
LL option: (1) evict -or- (2) hold tenant to another term
If LL elects to hold tenant to another term, then periodc tenancy is created.
Commercial tenants = if OG lease period was 1 year or more, then 1 year periodic tenancy created. If OG lease period less than 1 year, then month to month created.
Residential tenants= generally, month to month, regardless of OG lease period.
Terms from old lease transfer to the new lease.
how to destroy an easement
- release by easement holder
- abandonment by easement holder (need to be more than mere words =- like physical act blocking easement use)
Municipality can award flexibility from zoning law if:
Applicant applies for a variance.
The variance will be granted if applicant shows:
(1) undue hardship (BUT the hardship cannot be caused by the applicant themself)
(2) no dimunition in value to the neighborhood
Deed requirments
To give title to grantee, deed must be LEAD: lawfully executed and deleivered writing.
Lawful execution:
1. describe land
2. signed by grantor
3. identify the parties
4. words of intent to convey
Delivery is legal standard. Physical deleivery is not required, but proof of grantor’s present intent to be bound by conveyance is.
Life Tenant Duties
- Life tenant must pay ordinary taxes on the land.
* If he does not, it is permissive waste.
* Future interest holder enititles to reimbursement. - Life tenant must pay interest on any encumbrance on the land, but does not have to pay principal.
* The remainderman must pay the principal.
3.
Grantor conveys a life estate to A. Grantor then writes in his will convyeing a life estate to someone else, B. Who has wha?
A has a life estate. B only has a reversion that only becomes posessory into a life estate once A dies. This because when Grantor gave A a life estate, Grantor kept a reversion. The reversion is devisable by will - here, was devised to B.
When is a restraint on alienation ok?
Absolute restraints on alienation of interests are void.
HOWEVER:
- A forfeiture or promissory restraint on the alienation of a life estate is valid. But not a disabling restraint.
- A restraint to make sure that co-owners don’t need to live with a stranger is valid, if for a reasonable time.
Does comdemnation by eminent domain extinguish the tenant’s obligation to pay rent?
Condemnation by eminent domain will extinguish the tenant’s onligation to pay rent if the leashold is taken ENTIRELY and PERMENANTLY
If only PARTIAL or TEMPORARY condennation, then the tenant STILL has to pay rent. BUT the tenant is entitled to compensation.
redemption
EQUITABLE right of redemption:
In all state, borrower has an EQUITABLE right to redeem the land or free it of the mortgage or lien by paying off the AMOUNT DUE or, if an acceleration clause applies, the full balance due, BEFORE the forclosure sale.
STATUTORY right of redemption:
In some state, under STATUTE (NOT equity), borrower has the right to redeem for some fixed period AFTER the foreclosure sale.
The amount to be paid is FORCLOSURE SALE PRICE, rather than the amount of the original debt.
termination of an easement
- abandonment – not mere nonuse, you need a physcial act
- release from easment holder
- MERGER - person owning the servient tenanament now own both the dominant and servient tenament
actual, inquiry, record notice
actual - grantee put on notice of another’s interest in the land when it was conveyed to him
inquiry- grantee would notice of another’s interest if they reasonably inspected the land
record- grantee would have notice bc another’s interest is recorded in the land’s chain of title.
for burden covenants and equitable servitudes - notice element
for burden covenants and equitable servitudes –
notice element only applies to PURCHASERS
so if grantee is a donee or heir, then the Notice requiremnt doesn’t apply to them, and they can still be bound by the burden covenant or equitable servitude
so for NON-purchasers
burden covenant: WITH
equitable servitude: WITESS
deed deleivery requirments
Deed is valid if it is lawfully executed and delivered.
Delvery occurs when grantor manifest intent to be presently bound
AND
the grantee must ACCEPT deleivery.
While in most states, acceptance is presumed, if the Grantee EXPRESSLY REJECTS, then delivery is not complete and no conveyance.
