PROPERTY Flashcards
Equitable Conversion
Before deed delivered, contract for sale signed. Under Equitable Conversion, as soon as contract signed (but before closing), buyer’s interest is real property and seller’s interest is personal property. Thus, risk of loss remains on buyer under equitable conversion even if seller remains in possession.
Validity of Deed
A deed is valid if it:
(1) in writing
(2) signed by grantor and grantee
(3) identifies grantor and grantee
(4) describes property
(5) indicates present intent to convey
General Warranty Deed
Present covenants:
(1) right to convey;
(2) seisin (rightful owner); &
(3) no encumbrances.
Future covenants:
(1) further assurances (grantor will do whatever reasonable to perfect title);
(2) quiet enjoyment (grantee will not be bothered by 3rd party lawful claim to title); &
(3) warranties (grantor will defend against 3rd party claims to title)
Quitclaim Deed
Quitclaim deed does not include any covenants or promises to buyer. It’s an “as is” deed, leaving buyer with NO right to sue for any encumbrances or defects in title.
Merger
At closing date, contract for sale merges into deed, so at that point, buyer can only sue on deed.
Breach of Implied Warranty of Fitness & Habitability
Builder of new homes warrants to buyer that home is habitable and fit for intended purposes. Warranty applies to defects that are discovered in a reasonable time and due to builder’s negligence or failure to do work in workmanlike manner.
Recording Statutes - Common Law
Under common law, grantor can only covey rights that grantor had at time of conveyance. If real property transferred multiple times by same grantor, first in time had valid title. Today, every state has recording statute that change the common law rule.
Notice Statute
Protect subsequent bona fide purchasers for value who take without notice of earlier transaction. Subsequent BFP will prevail over prior grantee that failed to record.
Race Statute
Protect subsequent bona fide purchasers for value who take without notice and are first to record. Whoever records first prevails (notice irrelevant)
Race-Notice Statute
Subsequent bona fide purchaser protected ONLY if records prior grantee.
Types of Notice
(1) Actual notice - grantee actually knows of conveyance
(2) Inquiry notice - examination of land or reference in an instrument would lead reasonable person to inquire
(3) Record notice - interest recorded in chain of title.
Shelter Rule
Person who purchases from bona fide purchaser receives same status and rights as BFP.
Wild Deed
Deeds that are recorded too late or too early are wild deeds. Wild deeds do not give record notice because outside chain of title.
Bona Fide Purchasers
Person/entity who takes real property without notice of prior conveyance and pays valuable consideration. Person who receives land by gift or bequest is NOT a BFP. However, if person sells property, subsequent owner may be a BFP.
Who Liable on Mortgage When Title to Property Transferred
Mortgagor can transfer title to property. However, mortgage will remain on property and mortgager still personally liable.New transferee who takes land “subject to mortgage” not personally liable. But if transferee “assumes” mortgage, personally liable along with original mortgagor. Novation occurs if initial mortgagor, new transferee, and mortgagee all agree that mortgagor is no longer liable and transferee assumes all of mortgagor’s duties.
Tenancy for Years
Fixed period of time (specified beginning and end date). Lease automatically terminates after fixed period. Tenant CANNOT terminate prior to end of term.
Periodic Tenancy
No fixed end date (eg, month-to-month basis). Automatically continues until terminated. Created by (1) express agreement; (2) implication (lease contains no end date); or (3) by law when tenant-for-years remains after termination of period of when lease agreement invalid. Valid notice required to terminate (equal to rent payment term).
Tenancy at Will
Continues until either party terminates. Usually created by express agreement. Requires: (1) notice of termination; AND (2) reasonable time to quit premises.
Implied Warranty of Habitability
Implied in eery residential lease - does not apply in commercial leases. Requires landlord provide place that’s habitable. Property habitable if reasonably suited for human needs.
Breach of Implied Warranty of Habitability
Tenant may:
(1) move out & terminate lease
(2) withhold & reduce rent
(3) repair issue & deduct cost from rent; OR
(4) remain on premises and sue for damages
Constructive Evictuon
Occurs when:
(1) landlord breached duty to tenant
(2) landlord’s beach caused loss of substantial use and enjoyment of premises;
(3) tenant gave landlord notice of condition;
(4) landlord failed to remedy condition within reasonable time; AND
(5) tenant vacated premises.
Duty to Repair
Residential leases - Landlord duty to repair common areas. Duty to warn of any latent defects that create risk of serious harm that landlord knows/should know of.
Commercial leases - Landlords DO NOT have duty to repair (unless specified by lease agreement).
Duties of Tenant
Tenant must pay rent. If tenant doesn’t pay rent but has abandoned property, landlord can sue tenant for damages or treat as surrender (and excuse future rent obligations).
Duty to Mitigate
At common law, landlord NO duty to mitigate damages. Most states now impose duty on landlord to take reasonable steps to mitigate losses (by attempting to re-rent premises if tenant leaves)
Assignment
If lease doesn’t prohibit assignment or sublease, tenant can assign or sublease their interest in lease. Assignee liable to landlord rent and all other covenants that run with land; Assignor remains liable to landlord for any rent not paid.
Surrender
Agreement between landlord and tenant to end lease early. If landlord accepts surrender, tenant’s duty to pay rent after the acceptance ends. If landlord doesn’t accept, tenant deemed to have abandoned lease and liable for damages.
Easement
Non-possessory interest in use of someone else’s land. Either in gross or appuretenant.
Easement in Gross
Benefits specific owner’s enjoyment and use of land and DOES NOT attach to land (unless commercial) or pass to subsequent owners.
Easement Appurtenant
Benefits any owner’s enjoyment & use of land and DOES attach to land and DOES pass to subsequent owners as long as new owner has notice.
Termination of Easement
Typically, easement perpetual. But may be terminated:
(1) estoppel;
(2) termination of necessity;
(3) involuntary destruction;
(4) condemnation;
(5) written release;
(6) abandonment;
(7) merger; or
(8) prescription.
Adverse Posession
Allows someone in possession of land owned by another to acquire title to land when possession:
(1) continuous for statutory period;
(2) open and notorious;
(3) exclusive;
(4) actual; AND
(5) hostile.
Adverse possessors in privity may aggregate years to meet statutory period. Privity exists when land is voluntarily transferred to another. Adverse possessor can only acquire title to land that has met adverse possession elements. Adverse possessor will prevail over subsequent BFP.
Fair Housing Act
Protects people from discrimination in housing sales/rentals based on race, color, religion, sex, familial status, or national origin. Does not apply if owner occupies one of units in multiple-dwelling unit of no more than 4 units. Owner may not place discriminatory advertisement.
Joint Tenancy
Created when 4 unities present: (1) time; (2) title; (3) interest; and (4) possession.
Joint Tenancy - Severance
Can be severed by (1) giving it away during life; (2) signing contract for sale; (3) actual judicial sale by judgment lien creditor; or (4) granting mortgage in title theory state.
