Property Flashcards
JTROS interest
Each owns an undivided 50% interest in the property
JTROS right of survivorship
When one of the Joint tenants dies, the other gets 100% interest immediately
JTROS Conveyance
One JT can freely convey their interest, but the joint tenancy is severed into a TC
After a JTROS is severed into a TC,
It remains that what forever, unless otherwise specified
JTROS Devise
Devise is invalid because ROS vests 100% on the surviving tenant
If both JTROS die
Whoever died after gets the whole thing and his devisees or heirs get the property
TC interest
Undivided 50% interest in the property, no right of survivorship
When one tenant dies in a TC,
Their interest goes to their devisees or heirs
TE interest
Undivided 50% interest in the property
TE special requirement
Requires legal marriage
TE ROS
When one spouse dies, the surviving spouse immediately gets 100% interest in the property
TE conveyance
One spouse cannot convey without the other’s consent
What severs a TE?
Divorce
Real estate contract
Shows intent to convey title, but does not convey title
At the time of the real estate contract, grantor
does not need to hold title to the property
When does grantor need to have title to the property?
At the time of deed delivery
Equitable conversion
Separates legal title (seller) from equitable title (buyer)
Upon equitable conversion, risk of loss
shifts to the buyer, and any damage to the land is on the buyer
Statute of Frauds
Sale of Land, or any conveyance of land, needs to be evidenced by a piece writing
Marketable title
Implied in every contract, shows that title is free of liens or encumbrances
Marketable title only becomes an issue
at closing
Closing Date
When you sign the deed and deliver
At closing, seller
Must deliver deed
Delivery
Intent to convey title.
At closing, buyer’s acceptance
is presumed absent evidence to the contrary
Deed requirements
Identifiable grantees (whoever is going to get the property), legal description of the land
Legal description of the land has to be
specific enough that a reasonable person can locate the property
Two legal description tests
Meets and bounds (old test), and street address (new test)
Meets and bounds description is the
GPS location
Merger
Once the deed is signed, upon closing, all of the contents of the contract merge into the deed. You can no longer sue on the terms on the contract, but on the deed itself.
Types of deeds
Warranty deed and quitclaim deed
Warranty deed
Has warranties about ownership and title of land, but no warranties on the condition of the property
Types of warranties
Present warranties and future warranties
Present warraties
(1) I own it, (2) I can convey it, and (3) nobody else owns the property
Future Warranties
(1) no one will come make a claim on the title, (2) if someone does make a claim, I will defend you and fix the problem, (3) I will pay for all the expenses
Types of Warranty deeds
General and Specialty
General Warranty deed
Grantor promises that all previous owner’s titles were all okay
Specialty Warranty Deed
Grantor is only guaranteeing grantor’s title is okay
Quitclaim deed
Grantor makes no promises
Promissory Note
Note that promises you will pay money back plus interest
Mortgage
Gives lender the tight to foreclose on the property, put it for sale, and keep the proceeds
Purchase Money Mortgage
When a person gets the money from the mortgage to purchase the land
Purchase Money Mortgage Priority
When a person has competing debts, the purchase money mortgage always takes priority
If there is a mortgage on a property, Buyer can take the property _____ the mortgage, or _____ the mortgage
Subject to; assume
Assuming a mortgage
Buyer assumes all rights and obligations, you are primarily liable for previous mortgage
If a Buyer assumes a mortgage, the lender can
Come after the Buyer, unless the Seller and Buyer execute a novation
Buying a property subject to the mortgage
Buyer buys the property, but have no financial responsibility to repay the mortgage.
Who is responsible for the mortgage is Buyer acquires property subject to the mortgage? BUT….
The Seller is responsible, but the Lender still has the right to foreclose the property to repay the debt
Type of Mortgage Theories
Lien theory, and Title theory
Lien Theory
If you buy land and take out a mortgage, the lender only has a lien on the property and the Buyer holds title
Title theory
If you buy land and take out a mortgage, the lender holds legal title until the mortgage is paid off
JTROS is title theory jurisdictions
JTROS is severed into a tenancy in common with the Lender
Redemption
If you owe money and are behind on mortgage payments and are in foreclosure, you can pay off what is owed and reinstate the mortgage
Two types of redemption
Equitable redemption, and statutory redemption
Equitable redemption
Can never be waived, you always have the right to redeem and the bank must accept
Equitable redemption time period
Any time up to the foreclosure sale
Statutory redemption
Certain jurisdictions give redemption time after the sale
Recording statutes types
Race statute, notice statue, and race notice
Race Statute
The first to record wins
Notice Statue
Last BFP for value without notice wins
Race notice
The first BFP to record wins
Rights in land
You agree to give someone a right to do something on the land but no title is ever conveyed
Easement
Agreement which gives the right to come onto the land to do something
No writing easements (3)
Easement by necessity, easement by prescription, easement by implication
Easement by necessity
You can come on my land to cross because it is necessary because you are landlocked from public roads
Easement by prescription
Using land without permission for the statutory period of time. You do not get title, but the trespassing is now legal
Easement by implication
Implied from prior use
Once the easement is created, the easement goes on
forever unless it is legally terminated
Termination of easement types
Abandonment, merger, necessity ends, agreement to end/end of agreement
Covenants
In writing, generally touch and concern the land and go on forever
Remedy to a covenant breach is
equitable servitude
Equitable servitude
An injunction that enforces the covenant
Implied or negative servitude
developer places the same restrictions on all of the smaller lots it owns
Common plan or scheme
As long as the original restrictions of a negative servitude are common to all of the lots, it is enforceable against the subsequent owners of the lots
License
Permission to come into the land, freely revocable
Profit
Permission to come into the land to extract something from on or under the land
Future interests (4)
Reversion, remainder, possibility of reverter, right of re-entry
Reversion
A to B for B’s life, then back to A
Remainder types
Vested and contingent
Vested remainder
A to B for life, then to C. C gets it no matter what
Contingent remainder
A to B for life, then to C if C… at the time of B’s death
Possibility of reverter
A to B, as long as…. If B stops using it in the determined way, A has a possibility of reverted
Possibility of reverter kicks in
immediately
Right of re-entry
A to B, but if… then A has right of re-entry. B has condition subsequent, which if not met, allows A to re-enter to get the property back
Right of re-entry kicks in
after things are done to get property back. Not immediate.
Subsequent 3rd party (looks like)
A to B as long as…. then to C.
Subsequent 3rd party is ___ because:
Invalid, because it violates rule against perpetuities
In subsequent 3rd party, C gets
nothing
Landlord duties
Warranty of habitability and actual possession
Warranty of habitability
any violation of a health or safety code is a breach of the warranty of habitability
Actual possession
Landlord had to deliver actual possession of the property on the first day of the lease
Actual possession means that
tenant has to be able to move in
Tenant duties
Rent and no committing waste
Rent
Tenant must make timely rent payments
Exception to rent duty
If landlord violates the warranty of habitability, tenant does not have to pay rent
No committing waste
Tenant cannot cause damage to the property, or allow damage to occur
Assignment of lease
When you assign the lease, you give away the rest and remainder of the lease term
Who is the liable party under an assignment of the lease
Both parties are liable unless there is a novation. If there is a novation, then only the second tenant is liable
Sublease
Tenant one allows tenant two to use the property, but only for a period of time
Who is the liable party under a sublease
The original tenant
