Property Flashcards
Power of Sale Clause
A term within the deed of trust/ mortgage that allows the trustee/lender to sell the mortgaged property if the borrower defaults on the debt.
Don’t need permission of court, can do a nonjudicial foreclosure.
Party can ask court to overturn foreclosure if the auction violated due process or if the purchase price was grossly inadequate
Deed in Lieu of Foreclosure
Mortgagor conveys all interest in mortgaged property to mortgagee in lieu of foreclosure. This releases mortgagor of all debt and allows mortgagee to take immediate possession of the property without formalities of a foreclosure sale + pursue a deficiency against debtor
However, mortgagee takes the property along with any junior interests attached to the property.
If the mortgagee accepts a deed in lieu of foreclosure without reserving the right to foreclose, the mortgage is extinguished.
What is the majority and minority view w/r/t merger doctrine with deed in lieu of foreclosure?
Majority - Merger doctrine does not apply. Mortgagee that receives deed in lieu of foreclosure may still foreclose on property to extinguish junior lien holders UNLESS mortgagee had actual knowledge of junior liens.
Minority - Merger doctrine does apply and mortgage is extinguished when the mortgagee receives the deed in lieu of foreclosure. Mortgagee has no lieu on which to foreclose. Junior liens are promoted in status.
Can the implied warranty of habitability be waived?
No.
What is ademption by extinction?
When the specifically devised asset is not owned by the testator or is destroyed or changed at the time of death. Proceeds from the sale of the specifically devised asset and any property acquired with those proceeds become part of the general estate, which is distributed according to the will.
What is ademption by satisfaction?
When the devisee received the devised asset or some other asset intended to satisfy the devise during the testator’s life
The Rule in Shelley’s Case - Common Law
When an instrument grants a freehold estate (life estate) to a person and a remainder to the same person’s heirs, then that person is considered to hold the freehold estate AND the remainder. So, they hold it in FSA.
Most states have abolished this.
What is the initial location of an easement?
Express easement terms, circumstances surrounding easement’s creation, or if neither then servient owner can choose provided that the location is set within a reasonable time/it’s reasonably suited to the easement’s purpose
How to relocate an easement?
Servient owner may relocate, at own expense, to permit normal use/development of servient estate if the relocation is reasonable and does not violate the express easement’s terms, significantly lessen the easement’s utility, frustrate the easement’s purpose, or increase the burden on dominant owner’s use/enjoyment
If there is no specified location, servient estate may fix a reasonable location
Who has priority between a seller purchase money mortgage vs. a lender purchase money mortgage, regardless of who records first?
The seller
Who has the sole duty to maintain an easement?
The easement holder, unless the easement is used by both the easement holder and the servient owner, in which the repair costs will be apportioned based on relative use
Equitable vendor’s lien
A lien implied by law when a seller transfers title to a buyer and any portion of the purchase price remains unpaid
Does the implied warranty of habitability w/r/t new constructions pass on to subsequent purchasers?
Yes, as to latent construction defects
Which two types of easements MUST be in writing and satisfy SoF?
Negative easements (which must all be express easements)
Express easements
What happens to an express easement that does not satisfy the SoF?
It ends and becomes a license
What is a negative express easement?
An agreement not to do something that has to do with elemental rights
When is a mortgagor no longer personally liable for a mortgage when they transfer the property by deed?
If the lender releases the mortgagor or the lender modifies the transferee’s obligation, which could potentially release the mortgagor’s liability
Does an owner of a house w/a mortgage on it have a duty to repair/maintain?
Yes so as not to impair the mortgagee’s security interest on the house
Doctrine of Subrogation
A third party who pays another’s mortgage loan in full becomes the owner of the loan and the mortgage securing that loan to the extent necessary to prevent unjust enrichment. This means that the third party may seek reimbursement from the former owner/debtor or enforce the mortgage.
Rule of Destructibility
At CL, a contingent remainder is destroyed if it remains contingent (i.e. condition is not satisfied) when the preceding estate ends
i.e. O to A for life, then to B once he goes to law school. A dies and B has not gone to law school, so B gets nothing upon A’s death
Rule of Convenience
Class closes to avoid RAP when the person preceding the class members dies.
Do co-tenants have a right to collect $ for necessary repairs/improvements from other co-tenants?
No. But can collect a credit for such repairs in a partition action, or in some states, can get an action for contribution if notice is given to other co-Ts prior to repair
How do co-Ts split operating expenses? (taxes, mortgage payments)
Divide based on ownership interests. Can collect contribution for excess payments.
If one co-T is in sole possession, can only collect contribution if it exceeds the rental value of the property
Special Warranty Deed
The same six covenants as a general warranty deed but only against defects caused by the grantor
