Property Flashcards
Three kinds of recording acts
Notice: purchaser for value without notice wins
Race: purchaser for value who records first wins
Race-notice: purchaser for value without notice and who records first wins
what kind of tenants can unilaterally partition a piece of property?
tenant in common or joint tenant (not tenant by entirety)
order in which proceeds of a mortgaged property sold at foreclosure are distributed
- costs related to sale
- party who foreclosed
- junior interests
- mortgagor
mortgage in joint tenancy - title theory jurisdiction v. lien theory jurisdiction
lien theory (majority) - no severance
title theory: joint tenancy is severed and turns into TIC
three corresponding future interests to the three defeasible fees:
- fee simple determinable
- fee simple subject to a condition subsequent
- fee simple subject to an executory condition
- FSD: possibility of reverter (if holder is grantor) or executory interest (if holder is 3rd party)
- FSSCS: right of re-entry (holder is grantor and must exercise right)
- FSSEC: executory interest (holder is 3rd party)
what are the two types of executory interests
shifting executory interest: cuts off one grantees estate to give to another
springing executory interest: cuts off grantor’s interest or fills gap in possession in which reverts to grantor
a sub lessee is not liable to the landlord for rent unless what
If the sublessee expressly assumes the rent covenant
remedies of landlord for holdover tenant
evict or bind holdover to new periodic tenancy
what is a mortgage
A mortgage is a security device used to secure payment of a debt
language common to fee simple determinable
so long as, while, during, until
fifth unity for tenancy by entirety
of person (marriage)
four unities for JT
possession, interestt, time, title
remedy for ouster
injunction to gain access, damages for value of lost use
what happens to fee simple determinable when the stated condition happens
full ownership either goes to grantor (possibility of reverter) or third party (executory interest)
how is quiet enjoyment breached
breached only when conduct of landlord or someone with superior title prevents tenant from possessing the leased premises
what are the 2 types of mortgages
purchase money - person takes out loan to buy the property
future advance - line of credit aka second mortgage
what must plaintiff show to establish racial discrimination for fair housing act
disparate racial impact
four types of landlord tenant estates
- tenancy for years
- periodic tenancy
- tenancy at will
- tenancy at sufferance
remedies for tenant when landlord breaches warrant of habitability
- refuse to pay rent
- remedy defect and deduct cost from rent
- defend against eviction
what is constructive eviction
when the landlord breaches a duty to the tenant, such as failing to make a repair, that substantially interferes with the tenant’s use and enjoyment of the leasehold
what is a wild deed
recorded deed not within chain of title so it can’t actually give subsequent buyers notice
what is attornment
when a tenant acknowledges a new owner of the property as their new landlord
3 requirements for land sale to satisfy SOF
- writing
- signed by party to be charged
- contain all essential terms (parties, description, price info)
difference between remedies for breach of real covenant v. breach of equitable servitude
RC - damages
ES - injunction
requirements for adverse possession
Exclusive
Continuous
Hostile
Open and notorious
2 doctrines that cover rights that land owner has to take or use water from watercourse that flows through or adjacent to his land
reasonable use - favored in east, owner can make any reasonable use. rights can’t be sold or transferred separately
prior appropriation - favored in west, first in time first in right, rights can be sold or transferred seperately
what must grantor and grantee do for deed to be effective
- grantor intends to convey (big one)
- grantor delivers deed to grantee and
- grantee accepts (presumed)
6 requirements for a covenant (burden) to run with the land
- writing satisfying SOF (except for implied reciprocal servitude)
- intent
- notice
- horizontal privity
- vertical privity
- touch and concern
4 real property instruments that must comply with SOF (besides just sales k)
- promise to create an interest in real property
- assignment of a right to purchase
- options
- promise to give mortgage or other lien
what two restrains on alienation are valid on a life estate
- forfeiture restraint - property forfeited if owner tries to transfer
- promissory restraint - promise by interest holder not to transfer
when does buyer purchasing property on an installment land contract obtain legal title
upon final payment under installment plan
what terms does a valid deed contain
- parties
- words of transfer
- description of property
- grantor’s signature
3 theories to consider if party might be liable for changing flow of surface water
- common enemy
- natural flow
- reasonable use
6 covenants of title that a grantor guarantees with a general warranty deed
Present: 1) covenant of seisin, 2) covenant of right to convey, 3) covenant against encumbrances
Future: 4) covenant of quiet enjoyment, 5) covenant of warranty, 6) covenant of further assurances
if one co tenant rents out property, how are profits split
based on ownership interest of each co tenant
landowner’s liability if he excavates on his land and cause the adjacent, undeveloped land to collapse
strictly liable
landlord’s failure to comply with housing codes is evidence of a breach of which warranty
implied warranty of habitability, which applies to residential and can’t be waived
major difference between vested remainder subject to complete divestment and a contingent remainder
VRSCD - subject to condition subsequent that can completely divest the remainder interest
CR - subject to condition precedent to grantee’s taking
what is the doctrine of estoppel by deed
a grantor who conveys an interest in land by “warranty deed” before he actually owns it is estopped from later denying the effectiveness of that deed (can’t take the property back and be like lol that was then this is now)
elements for easement by necessity
created when (1) the dominant estate is virtually useless (e.g., landlocked) without the benefit of an easement across the servient estate, (2) the two estates were once a single tract of land, and (3) the necessity arose when the land was severed and the two estates were created
A license is freely revocable unless
the licensee detrimentally relied on the license (e.g., paid money to use or maintain the license) OR the license was coupled with an interest in the property (e.g., a remainderman’s license to enter and inspect property)
when is license terminated automatically
upon (1) the death of the licensor or licensee or (2) the conveyance of the licensed property.
what happens under doctrine of merger
the seller’s duties in a contract for the sale of real property—including the duty to deliver marketable title—merge into the deed at closing. As a result, these duties are enforceable thereafter only if they are contained in the deed.
what implied covenant of marketable title and when does it not apply
Under this covenant, the seller promises to deliver title that is reasonably free from doubt and under no threat of litigation, such that a reasonable person would accept and pay for it.
Always applies - doesn’t matter what kind of deed
what happens when a land-sale contract is silent regarding the risk of loss between contract being signed and closing
doctrine of equitable conversion - doctrine of equitable conversion places the risk of loss on the buyer once the contract is formed and can be specifically enforced.
Exception - loss is the seller’s fault
what happens if you buy a house subject to a mortgage
A grantee who takes real property subject to a mortgage does not agree to pay and is not personally liable for the debt. As a result, only the debtor is liable for any failure to make payments on the mortgage loan.
what is equitable right of redemption
allows a debtor to avoid foreclosure and regain clear title to the mortgaged property by paying the amount currently owed on the loan plus any accrued interest before the foreclosure sale.
what does a deed in lieu of foreclosure do
allows the mortgagee to take immediate possession of the property without the formalities of a foreclosure sale.
But – takes with any junior interests.
Its own mortgage is extinguished unless it reserved the right to foreclose
what guarantee is made by the grantor in a quitclaim deed
he grantor transfers whatever rights he has in the property to the buyer.
what is Doctrine of worthier title
creates a presumption that when a grantor conveys a future interest to their own heirs, the grantor actually intended to keep the interest in themselves.
define the common-law exoneration-of-liens doctrine
the recipient of a specific devise of real property can use the remaining assets in the testator’s estate to pay off any encumbrances on that property
What do you need if the grantor gives a third party a deed to deliver upon his death
PRESENT intent to make a gift – no right to take back
when do we presume a deed has been delivered to the grantee
- physical transfer
- recorded
- given with no takesie backsies to third party
- grantee obtains possesion
what does a purchase-money mortgage have
superpriority over all other liens
can a buyer who assumed a mortgage as part of the purchase price raise the same defenses that the debtor could have?
no - would be unjustly enriched (cause they got discount)
what does rule of convenience do
prevents the Rule Against Perpetuities from being applied to class gifts by closing class membership when any member of the class is entitled to immediate possession of a share in the class gift
when can an equitable servitude implied from a common scheme NOT be enforced
against lots sold before the common scheme arose
what must a senior mortgage give to junior mortgages before a judicially supervised foreclosure sale
notice
exceptions to due on sale clauses
- Devise, descent, or transfer to joint tenant upon death
- Transfer to spouse or child
- Transfer to ex-spouse in divorce
- Transfer to borrower’s living trust
- Creation of subordinate lien without occupancy rights
- Granting leasehold interest of less than 3 years without option to purchase
what do you need for right of first refusal
complies with SOF and is reasonable
can an easement holder expand its use of the easement?
Yes, may increase the manner, frequency, or intensity of an easement’s use so long as that increase does not unreasonably damage or interfere with the use or enjoyment of the servient estate.
what kind of defects must a seller of residential property disclose to buyer
A seller of residential property has a duty to disclose any known material defects—i.e., defects that (1) substantially affect the value of the residence, (2) impact the health or safety of a resident, or (3) affect the desirability of the residence to the buyer—that cannot be reasonably discovered by the buyer.
when must seller deliver marketable title ON the closing date
(1) the contract states that “time is of the essence,” (2) circumstances indicate that the parties intended to strictly adhere to the closing date, or (3) one party notifies the other that time is of the essence within a reasonable time prior to closing.
when is a deed transfer effective
when it is
delivered by the grantor – demonstrated by the grantor’s intent to make a present transfer of the property (can be implied by actions) and
accepted by the grantee – presumed when the transfer is beneficial to the grantee.
what happens if you try to transfer a deed to a buyer and a nonexistent co tenant
create a TIC between the buyer and the seller
can a buyer waive covenant of marketable title
yes
do easement owners have a duty to maintain the condition of the easement
yes and if it’s shared, they may seek compensation from the other easement owners and actual owner (if he uses it too) if they make a repair themselves
how much can a liquidated damages clause be
no more than 10% of purchase price
elements of implied reciprocal servitude
(i) intent to create a servitude on all real property interests (i.e., a common scheme);
(ii) the servitude must be negative (i.e., a promise to refrain from doing something); and
(iii) the party against whom enforcement of the servitude is sought must have actual, record, or inquiry notice
