Property Flashcards
valid deed/ void deed/ voidable
-writing, iden of seller and buyer, discribe land, signed by grantor (seller)
-A defective deed may bevoidable, set aside only if the property had not been conveyed to a bona fide purchaser, or it could bevoid, set aside regardless of the property having passed to a bona fide purchaser. voidable because deed can be reformed.
Deeds obtained by means of, among other things, duress, undue influence, or mistake are considered voidable. Deeds that were forged, never delivered, or obtained by fraud in the factum are void.
Adverse possession or deeds with encumbrances are invalid deed. Also title by operation of law (estoppel) is higher
deed reformation (edited)- when there is a fraud, mistake or ambiguity.
general blind of law
Equitable Servitude Blurb
It is a promise concerning a restriction on the use of land that 1) benefits and burdens
the original parties to the promise and their successors and 2) is enforceable by
injunction.
Common Scheme
Under common law the court may enforce an equitable servitude by a ‘Common
Scheme’, even in the absence of writing. The remedy is equity – injunctions and specific
performance.
Covenants Running with Land Blurb
An agreement to restrict land use must have 1) a covenant in writing to satisfy the
Statute of Frauds, 2) the original parties to the agreement must have intended those
successors be bound by the agreement. 3) a subsequent owner must have had actual
notice (recording) of the covenant at the time of purchase, 4) the covenant must touch
or concern the land and 5) there must be horizontal privity between the original parties.
The remedy is money damages.
Ameliorative Waste
Ameliorative waste is a change in the physical characteristics of the property by an
unauthorized act that in fact increases the value of the property. Those persons holding
a future interest can seek an injunction.
Permissive Waste
Permissive waste is failure to maintain the property - physically and financially. (failing
to pay taxes, make repairs, pay the mortgage, etc.)
Riparian Rights
All landowners whose property is adjoining to a body of water have the right to make
reasonable use of the water. If there is not enough water to satisfy the needs all
landowners’, fixed allotments are utilized in proportion to frontage on the water source.
These rights cannot be sold or transferred other than with the adjoining land, and water
cannot be transferred out of the watershed.
Easements
Easements are a non-possessory interest to use another’s land where there is a
benefited and burdened parcel of land, and which generally requires a writing to satisfy
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the statute of frauds. There are several types of easements - by grant, by implication, by
necessity and by prescription. There are also easements in gross which is when there is
only one parcel of land that is burdened and where the benefit is personal to an
individual or company.
Termination of Easements
Easements may be terminated by 1) merger of the two parcels of land, 2) written
release, 3) abandonment, 4) estoppel (when burdened parcel owner reasonably relies
on promises that the easement will not be enforced), 5) termination of necessity
Adverse Possession
A possessor of land may acquire legal title to land if the possession is:
1. Continuous (for statutory period)
2. Open and notorious
3. Exclusive
4. Actual (acting like true owner), and
5. Hostile (without consent)
MORTGAGES
Mortgage Blurb:
“A Mortgage is lien on property to secure a loan of funds. Because a mortgage is an
interest in land, we need a sufficient writing to satisfy the Statute of Frauds. In order for
____ to be protected, especially in a Notice jurisdiction, they must record the Mortgage
at the Registry of Deeds in the county where the property is located. In “title theory”
states, the mortgagee has legal title, and the mortgagor has equity of redemption. The
mortgage is not terminated until the loan, interests and costs has been repaid.”
REMEMBER: If a loan is secured by ANYTHING other than LAND, (meaning goods,
personal property, accounts, etc.) - it is UCC Art. 9 Secured Transactions!!!!
Foreclosure Blurb:
Under most foreclosure statutes the ultimate goal and intent is to protect the
homeowner. In fact, the Mortgagee (bank) has the highest fiduciary duty of good faith
and loyalty to the Mortgagor in protecting their property rights to the home/land. The
Mortgage document must state that the Mortgagee has the right to foreclose upon
default. Under most foreclosure statutes, the mortgagee must follow strict notice and
publication requirements that designed to protect the mortgagor.
Deficiency Judgments Blurb
In order for the Mortgagee to sue for Deficiency Judgment when the foreclosure does
not cover the full amount due, the right to sue for deficiency must be on the Mortgage
document AND on the Notice of Foreclosure. The Mortgagee can collect the principle
balance, interests, cost and fees associated with the foreclosure.
execution of deed
present intent from grantor w/ names of both (grantee name can be missing but will have to say grantee fill it in) , plus description of the land + acceptance (presumed unless say gave it back) + delivery (out of grantors control)
-Delivery of deed first have to have present intent don’t matter if possessory was given up. ( If owner says given to you when I die… there is no prensent intent to convey)
Same with conveysnce in joint tenantcy …must be while alive can’t be in will or when person die…
-Deed is void if grantee is non existent,,, either a unincorporated business or not born yet or dead person
-acceptance=A rejection of the deed is sufficient to rebut any presumption of acceptance. As a general rule, delivery of the deed is the final operative act to complete a conveyance of title to the grantee, because courts will infer the grantee’s acceptance if the conveyance is beneficial to him.
transfer of a deed invalid if:
granter cant retain possession of deed or control or power to retake the deed
types of deeds and covenants within them
quit claim deed (no promises subject to any defects in title), (aka - [ ] Caveat emptor means buyer takes property as is condition special deed- (only present)
general deed-Present covenants
-sesin - grantor is the rightful owner and the deed cover the describe land
-right to convey- grantor has the right to convey
-covenants against encumbrances -grantor covenants that the land is freeform encumbrance (servitudes, mortgages)
Future Covenants
-Grantee will be protected against an eviction by the grantor or a person asserting a paramount right.
-Grantor will execute and procure any further documents or assurances necessary to perfect the title.
-Grantor will defend grantee’s title against adverse claimants.
Special deed- grantor warrants no title defects that occurred during his ownership of the property but don’t warrant against title defects that occurred prior to his ownership.
covenant against encumbraces come up when: general deed
1. a subsequent buyer relize that there is a breach in the promise by grantor that assures there are no visible encumbrances (easements, servitudes, etc) majority says that present covenants do not run with the land to remote grantees (the 2nd and after buyer, so is not the org. buyer from the grantor). in minority can sue org grantor only if you didnt have notice.
ways to get ownership
valid deed, operation of law (adverse p, easements), shelter, color of title, wild …
implied warranty of fitness
builders promise to org. home owner that the home is habitual and and fit for it’s intended purpose (within a reasonable time)…it depends on the jurd. if remote grantees are entitled to the warranty. in any event if they are, the incident had to happen after they got the house from the org. homeowner.
contract of sale
k’s must satisfy sof. however if oral will be enforceable if either there was full prformance (buyrer pay full price and seller deliver the deed (out of seller possession) even if not recorded) or part performance (either value or improvements and possession)
rol goes to buyer…if seller die-heirs her personal prop ($ from same).. if buyer die heir get real property
title is suppose to be marketable (free from encumbuances day of closing but if knew of them before b4 enter k and still ie deal))..suppose to close on closing day but can neg. more time if gave notice and can cure title in reasonable time, k merges into deed and buyer stuck with whatever covenants’
- [ ] time of essence and closings
In general, courts presume that time is not of the essence in real estate contracts. Thus, the closing date stated in the contract is not absolutely binding in equity, and a party, even though late in tendering his own performance, can still enforce the contract if he tenders within a reasonable time. (One to two months is usually considered reasonable.) Time will be considered of the essence only if: (i) the contract states, (ii) the circumstances indicate it was the parties’ intention, or (iii) one party gives the other notice that he desires to make time of the essence. The contract in this case made no mention that time was of the essence.
-equitable conversion- if buyer dies while in k. seller gets buyers real property( house/ interest/deed) and heirs get buyers personal prop. ($ from the sale thats left over after creditors are paid)
-Buyer remedies
Expectation damages, reliance damages, restitution of the down payment, punitive damages. In equity buyer may seek rescission or specific performance
-Seller remedies
Expectation damages, foreseeable consequential damages, reasonable reliance, retain down payment, liquidated damages. Punitive if willful. In equity, recession of k if property increased in value or specific performance if property decreased in value.
Zoning restrictions is still marketable title, but. It a restrictive covenant limiting the use to something…..
recording acts
generally common law is first in time, first in right however, we follow notice type recording statutes.
-Notice-“subsequent buyers for value Without notice” = (bfp) with no notice of prior (so cant be contructiv, actual or inquiry notice)
-Race- any one who “records first” dont need to be a bfp, and notice dont matter
-Race/notice- ‘subsequent buyers for value Without notice” (bfp), with no notice, “and first recorded”
notice (actual, inquiry, record)= told, seen, recorded
also exceptions- shelter rule- from a bfp, wild deed(not recorded in chain of title), color deed-defect in deed, deed by estoppel- didnt have title when given but got title later
wild deed example- grantor convey land to grantee but grantee never record it. grantee then gives to another person who records or not.. . then the list goes on …. once a person try to get the land it will be brought that they dont have title because they have a wild deed since orig grantee never recorded . (given it’s a grantor grantee index system).
exception: if claiming did not know of person interest because they are out of title, if they had or could have had inquiry notice of one of the ppl in the line, then subject to have had notice of the person ahead of them since inquiry notice prompts a person to look at who gave the person who has inquiry notice a right…. that will lead to the correct person who recorded ….which will lead to everyone else in that chain.
Start off with common law rule. (If have time at end if dont know yet …state who would have had title by common law first in time, first in right. BUT THAT IS NOT THE ANSWER GO INTO THE INDEX RULE GIVEN IN THE FACT PATTERN *******
triggers : what to add to gain points……….
** when org. grantor or org. G’s estate gave two ppl a deed look to see which one is faulty…most likely either by no value (might be saved by shelter) or no constructive notice ‘did not record”(might be saved by wild deed).
can also state who would have had title by common law first in time, first in right. BUT THAT IS NOT THE ANSWER GO INTO THE INDEX RULE GIVEN IN THE FACT PATTERN *****
** when see inquiry notices, mention whether abandoned or not (ie. Railroad tracks) must be a cessation of use coupled with evidence of the user’s intent to abandon the easement
transfering mortgage
new buyer takes house subject to the mortgage if he expressly assumes it. the lender can primarly go after him but the old owner is the surety and is also liable. however if the transaction did not state whether the new owner assumed the mortgage the new owner can be liable but not be personlly liable so no judgment against him.
some states assume assumption if new owner make payments equal to the value of the house(more than just mortgage payment).
if there was a quitclaim deed then old owner not liable to new owner if lender wins against new owner.
tenancys/co owners
joint tenancy / right of servivorship- creation= ttip, (mpc must say right of survivorship) or is tenant in common
termination of joint tenacy=
1. “inter vivos”giving to another during lifetime, then tenancy in common for them but others are still have joint tenacy)
2. mortgage- depending on if title theroy(need to be title) or lien theory(not a severance mortgage is just a encumberance), mortgage will sever jt tenacy,
3. partition of land, each can seperate the use of the land on their portion (must be in writing unless oral agreement plus + performance or possession = reliance then estoppel and will be successful for sof)
4. actual judicial sale by judgement lien holder.
5. signing a k for sale
A. parties dont need knowledge in jt ten.
B. if seller makes a k to sale her interest but dies before interest
Is conveyed . buyer gets equitable title (like land sales/equitable conversion) so transaction still go through, the buyer gets deed and share interestbwith other joint tenants. seller interests get sellers person prop. so the money from the sale of the interest.
-tenants by the entiery/marriage- right of survivorship …created when getting property while married.
termination- divorce, death, joint creditors, bankruptcy, knowledge of sale when happening ** cant end it if the other dont (sign too) at the time the sale is happening ( even if agreed early on)
rights and duties of tenant, co tenants, LL, life estates, store owners to invitees, homeowners to licencees
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- [ ] What areas is LL liable for:-
- [ ] the property
Co-tenant rights- right to possess the whole, don’t need to pay rent, or share profits if running a business but if renting to third parties have to share rent according to their interest, won’t be reimbursed for improvements or repairs..unless the repairs were necessary and requested it and co ten. refused) can get the difference in value of improvements when sold, and unlesss they increase the rents or the property),
-life estates must pay taxes, mortgage interest, may seek contribution by other tenant but if tenant is in sole possession then can only recover the amount that exceeds the market value of some require insurance, don’t commit waste, do repairs (up to the amount of rent being collected)
-LL= residental: implied warranty of habitability, quiet enjoyment, tort in common areas, tort areas where not detected by reasonable person, repair wear and tear only if assumed in lease or imposed by statute , mitagate if tenant leave look for new t …or treat as breach and sue for damages
Common areas (walkway stairs),Latent defects (disclose defects), Assumption of repairs (negligent repairs), public use(public use property), seasonal or short term lease of furnished dwelling (air bib)(vacation home)(hotels)
**commerical- habitable, repair ..
-tenant= pay rent, don’t commit waste, duty to licenses (guests), conduct repairs , alert LL of repairs (beyond tenant’s duty, and give reasonable time to repair,
- store owners to invitees (torts)- duty to keep safe from crime, (alses clear)
-home owners to invitees - unkown dangers , or
-homeowners to licences- known dangers
- T can remove items that are not fixtures (attached to land/soil, would damage prop if removed
leases
yearly- more than 1 year/lease / term at the end of stated term, notice 6 months
periodicly (monthly), no written agreement, end at the end of every month, notice one month
willful- no stated term, basically just letting a person stay there, cant term at anytime, must give reasonable notice
sufferance/ holdover T- stayed longer than stated time, cant bring action against them or let them stay ..if accept rent, turns to a periodic tenacy
essay-
commercial leases
ll duty is to supply covenant of quiet enjoyment. which mean ll is doing constructive eviction if; ll or paramount person interfere with tenant’s enjoyment of the premise, or dont provide service to tenant, T can leave in a reasonable time.
however, ll have no dutyto repair unless the statute say so or T and ll agreed in the lease.
surrender-
t is serrendering lease if leaves and still have time left on lease. T wont be liable if L accepts T surrender. Surrender must be in writing if there was more than 1 year left on the lease. if LL dont accept T liable for the difference in rent and the fair rental rate.
L duty if T abondon lease-
L can do nothing, reposess and relet, but in morjority view ll should mitagate damages by finding a new tenant. if dont recovery can be lessen by the amount ll could have got from a new tenant and the current fair market rate
Can offer to buy the building before the term is up for your lease or can offer after
Fixtures -commercial v residental… commercial if t has been using items in his business can remove but must restore the premise of pay the price to restore if removal would cause substantial damage.
Residential can’t remove if annexed to the property
adverse possession)
adverse p- E-Coah
-exclusive - no other or owner
-contiuous -allow tacking but new person need intent to possess ..dont need intent to be a adv. p (therefore buyer of a house from a adv p. even if unknown that the person is a adverse p…will tack)
open and norious - anyone can tell they are there
-actual… the adverse possession must use the land how a reasonable owner would have used it if in possession.
-hostle just means without the owners permission. (even if owner is aware…or even if owner gave them a deed, if the deed is invalid then it Is without permission and is considered hostle. Paying taxes is also considered hostle)
10year requirement just need to be continuous for 10 years .. owner dont have to be there currently (there or not goes to notice (inquiry)
adversely on part-
When only adversely posseing part of the land they will only get title to the part of the land that is adversely possessed not the other part.
-Tacking- new T could not have already been there… also must have intention to tack/ not intent to be adverse
Privity- a relationship between possessors arising because of a voluntary transfer between them ( they don’t need to have intent to adversely take the property just need intent to be in possession of the property. so a adverse p selling house to a buyer makes them in privity because of the voluntary transfer between them even if buyer have no clue about the seller being a adverse possessor. Can add all of their times together to make 10 years.
-Color of title and adverse possession- if the person who voluntary take possession of the land by transaction from a adverse possessor (even though they don’t know that the seller is a adverse possessor) the will have a color title (faulty deed from a person who is not the rightful owner at the time of conveysnce) they too will have the right to only the portion of which was possessed by the adverse possessor unless the facts say that they follow the doctorine of constructive adverse possession. Which would allow the new ownertohaveposessionofthefull land even though only occupied a portion by the adverse possessor. Damages of color title is estoppel don’t matter if buyer could have had constructive notice by title search
Adversely possessing an easement- an adverse possessor interfere with the rights of the owner. The facts must show that the homeowner actions interfere with the easement holder’s rights.
-Co- tenant not allowed to oust but if do for the statutory time then is valid as adverse p
-co tenant must bring a ouster suit to stop it
- When covenant’s, adverse p will be valid if consistent with covenant
-When will the disable defense work?- if disability was there when adverse p start
- What is consider a disability- minor, incarcerated, mentally incompetent)
easements/covenants/servitudes, licenses, profit
-Purposes
easements- an interest to use the land of another. It can be:
*covenants (equitable serv. or covenants) that are either affirm. or neg/ the right to do or not to do something. Think community apts
*Appurtenances right to use the land. requires a dominant and servient estate or covenant that touch and concern the land (affects both the benifited land and serviant land)…
* easement in gross- is a personal in nature. It is on a servient estate and benifit to a person (is a profit to the easement holder/ think tribe mpt)
covenants and servitudes =
Covenants and equitable servitude
(Whenever you see a person trying to force a later person to do something or not do something)
(i) a writing that satisfies the Statute of Frauds, (ii) an intent that the covenant run with the land, (iii) the covenant must touch and concern the land,
and (iv) privity of estate.
Both requires WRITN See stands for touch and concern, which means there has to be a burden and a benefit to the thing trying to be enforced (commercial benefits, do not count. It Hass to be a benefit to the community
Ex: taxes: burden cause not paid..benifit because once paid no liens
Depending on if it is a covenant which is enforceable by law, so you could get money damages their knee to be the vertical element. Everyone in the vertical line is able to sue the new owner by a covenant of law and can get money.
The party that is complaining, trying to stop the new owner from doing what they are doing is a horizontal party. Therefore, everyone on that horizontal party line can only sue the new owner by equitable servitude via injunction to stop.
Exception the horizontal complainong party can enforce a covenant via law (get money) if it reaches the common original cgrantor by going vertical, and then horizontal and back down vertical
Covenants and servitudes Anaysis:
1. is something trying to be enforced or prohibited? (Covenant at law or equitable servitude)
2. What Is the remedy sought proper? (Coven. money dam. Equitable Service. Injunction
3. Are the elements satisfied? (Wit H or v)….(i) a writing that satisfies the Statute of Frauds, (ii) an intent that the covenant run with the land, (iii) the covenant must touch and concern the land, and (iv) privity of estate.
4. Privity is enforced H or V (vertical is a line of conveyance by the same grantor ….horizontal is same grantors or by relationship
Both are enforcing restrictions on land, when the parties in conflict are not the original parties to the contract.
-Both are Restrictive covenants that bind future owners of land who are not parties to the original contract
Covenant -promises respecting land against successors-in-interest to the original parties. ———(covenants at law), remedy is monetary. can be neg (restriction) or affirmitative
Need witn (h)
*h means horizontal privity between original contracting parties
—-while in equity ,they are enforced as equitable servitudes. only do restrictions (neg)
Wit(n) don’t need H!!
*think leases; promise to pay rent, maintenance fees etc
cov. to pay money only run with the land if wit and privity of the estate
(((will run if its a community benefit and not just to one ind. ben)))
touch and concern the land : anything that had to do with a benifit on the land. significant interest attaching to the land, developmental plan witnh(v)
license- temp right on to prop.
profit- allow to mine, or tickets to see game not transferable
-creations
easements(ping)
1. affim, appurt.gross- ping
P= prescription similar to adverse possession but no hostility needed. So e- coa
I= Implication/prior use on one land b4 split to Dom and servant cant. prior use was continuous and apparent, parties intend easement to continue easement is reasonably nec for enjoyment of Dom state
N= necessary- was once one land but turned to two now need access to servant land to get across
G= grant/express- writing signed by servant, if over 1 year & reservation =grantor (servant) convey title but reserves right to use
* estoppel- proof of a act or representation by the owner of the burdened estate in respect to the easement. The court looks to see if there was justifiable reliance on the act or representation by the owner, and damages suffered by the owner of the benefited land.
- in order to run with the land*
burdened land- witnh
benifited land- wit-v
covenants- witn(v)
equitable serv. wit(h)
witnh- v ( t = touch and concern when there is direct influence on the occupation, he, or enjoyment on the premises.
licences- oral
-terminations
1. easements/ covenants
(end cramp)
e=end of allotted time or estoppel
N= nec. Ends
D= domain ( eminent domain/ taking by the gov physical or regulatory)
C=condemnation
R= release of interest from dominant estate
A= abandonment
M= merger one owner have both lands. cant have a easement on your own land) Merger exception- Merger does not apply if a person gets ownership of two properties but the ownership is not the same in both properties equally. Ex: the son owned the east parcel in fee simple but owned only a life estate in the servient estate, the west parcel. Therefore, because the duration of the servant estate was shorter,no merger
P= prescription
- Licenses- death of the licenser or conveyance of the servant estate(burden prop). Or licensor wants to revoke …. Unless interest is coupled with personal property Or estoppel because a involvement of substantial funds in reliance on the promissory promise to allow promised to use land)
- servitudes- is trying to prove a covenant that is not in writing through part performance or estoppel. P seeks equitable relief ( ie. Injunctions). P must prove withn-v
**duties of easement holders
-The user of an easement for underground pipes need not restore the land to its original condition after their use, but the user must refill the land.
-even if deed did not mention easement. will be subject to it if had notice (actual, constructive or inquiry)
-even if easement was not valid because of merger. when it is later seperated again because a new person bought one of the lands, the new person may use the easement if the easement was implied. ( from existing use b4 the apparant and continous use exists on the servient part. the use is reasonable nec. for the enjoyment of the dom. part and the ct determines that the parties intended the use to continue after the property was divided)
