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
