Property Flashcards
Can a BFP rely on a forged or altered document to establish priority?
No, the document is void.
forged doc doesnt give notice so cant be protected by recording act
If a person who doesnt own the land signs a document saying agree to terminate an easement and then they acquire that property, the easment term is not valid since its is not signed by original owner, but will the person be estopped from asserting that she inherited the right of way?
Yes.
Apparent use
Use is apparent if it may be reasonably inferred that the parties knew of it.
Majority rule for if a remainder is subject to an ambigous survivorship condition (if she survives me)
the remainderman must surive the owner of the immediately preceding estate (life tenant) for hte interest to become possessory.
Minority rule for if a remainder is subject to an ambiguous survivorship condition (if she survives me)
Remainderman must surive the transferor
mortgage theory - Title theory
lender receives legal title and mortgagor retains right of possession
title reverts to mortgagor once debt is paid
mortgage theory - lien theory (majority rule)
lender receives security interest in property. mortgagor retains title and possession unless lender forecloses
mortgage theory - intermediate theory
mortgagor retains title and possession until default, then full title passes to lender without foreclosure
Effect of a prematurely recorded deed
In most jurisidctions it falls outside a later buyer’s chain of title and fails to provide record notice.
Prematurely recorded = a deed recorded by a buyer before seller owns the proeprty
A shifting executory interest
- a future interest in a grantee that divests another grantee upon the occurence of some condition
- shifts from one grantee to another
A springing executory interest
divets the grantor’s interest at some future time
Divests an estate held by grantor such that the estate springs from grantor to the executory interest holder.
when B divests O of his interest
License
A grant of permission to enter and use another’s land for a specific purpose.
Licenses can be revoked at any time and terminate automatically upon the death of either party or conveyance of the servient estate
Rule Against Perpetuities
applies to contingent future interests, including a right of first refusal. THis contractual right viols RAP if its not set to termiante within 21 years after some relevant life in being at the creation of the interest
If an interest is certain to vest or not vest within the permitted period it is good. If there is any possibility , no matter how unlikely that the vesting could occur after expiration of the permitted period then the interest is void.
An interest is good under the rule if it will certainly vets or fail to vest within 1) 21 years from its creation, or. (2) during the life if some person alive at its creation, or (3) upon the death if some person alive at its creation, or (4) within 21 years after the death of some person alive at its creation
a right of first refusal almost always viols RAP if the conveying instrument does not
provide a termination date that falls within the perpetuties periods
Profit a pendre
a non-possessory interest in land that allows the profit holder to remove natural resources from another’s land.
this interest entitles the profit holder to compensation if the gov condemns the prop
Priority of mortgages
generally determined by the order of recording unless the mortgage enjoys super priority as a PMM
Life tenant’s duties
duty to pay current charges - life tenant must pay all current charges due during life tenancy up to finanical benefit received from prop
Duty to prevent waste - property can be delivered in essentially the same condition it was in when the life tenant took possession
duty to make ordinary repairs to preserve the prop
life tenant’s duty to pay current charges is limited to
the financial benefit that the life tenant receives from the prop
no duty to pay charges if life tenant isnt in poss of prop and doesnt receive rent/income from prop
Purchase money mortgage
only applies to mortgage taken out to purchase real property (home, land, real estate)
Can a seller disclaim a duty to disclose mateiral defects?
Yes, w/ an “as is” clause so long as the seller hasnt fraudulently misrepresented or concealed a condition
Under common law, a joint tenancy must satisfy four unities…
Time
Title
Interest
Possession
What happens if any of the 4 unities of joint tenancy (PITT) is broken
The non-complying interest is severed from joint tenancy and converted to a tenancy in common
Under common law, what is the effect of granting a lease by one joint tenant to the property
It would sever unity of title and interest, destroying right of survivorship
Some states hold that a lease doesnt sever a joint tenancy
When is exclusion by a joint tenant wrongful
?
Merger doctrine
Contract promises relating to title do not survive the closing and delivery of the deed
Breach of encumberances
courts are divided on the propritety of damages where the easement is plain, obvious, or known to P
Implied warranty of habitability for new home
Allows a buyer to recover damages for losses resulting from defective construction or construction that was not done in a workmanlife manner.
Warranty applies to defects that are discovered within a reasonable period of time, are due to the builder’s negligence or failure to do the work in a workmanlife manner, and cannot be attributable to later changes in the strucutre or to normal deteriortation.
Color of title
facially valid deed that describes the entire property
If a person entered property under color of title and actually possess a reasonable portion of the property for the statutory period, then does the constructive adverse possession gives the person title to enter the property?
Yes.
Two types of title insurance policies
1) owner’s policy which remains in effect as long as the property is owned by the insuered or conveyed by warranty deed; and
2) lender’s policy which ends once the mortgage is discharged
Title insurance policies protect
named insured and their heirs/devisees who are affected by an undisclosed title defect so long as the named insureds or their heirs or devisees own the insured property
Non-conforming uses are jusitifed on what grounds
fairness and practical monetary grounds
cannot be extended or intensified in ways that constitute a substanital change. insubstanital changes are permitted
Obligatory loan’s priority status
if a future adfvance is obligatory, the mortgage securing that advance takes priority over creditors who title lien after the mortgage is recorded even if it all advances havent been paid yet - its viewed as if the loan has already been paid in one lump sum
Optional loan’s priority status
if optional and if mortagee has notice when it makes an advance that a subequent lienor has acquired an interest in the land, then the advance loses its priority to that creditor
minority view: charged w/ constructive notice of lien if lien has been properly recorded
Shelley’s case
an instrument that grants a freehold estate to a person and a remainder to that same person’s heirs gives that person both interests. If there’s no intervening interest, then the merger rule consolidates those interests into a fee simple absolute
when is performance due when “time is of the essence” in a real estate k
A real estate k must be performed on the closing date when time is of the essence
1) the k states that time is of the essence
2) circusmtnaces indicate that the parties intended to strictly adhere to the closing date, or
3) one party notifies the other wihtin a reasonable time before closing
easement by estoppel
statement by dominant estate holder and detrimental reliance by the servient estate holder
one stock rule
when an exclsuvie easement in gross is apportioned, the one stock rule limits the collective use that the transferees can make of the easement to the use that the transefor made of the easement (transferor’s stock)
When does a properly filed judgment lien attach?
attaches to the debtor’s property
the lien precents the owner from conveying marketable title and reamins with the property even if its later conveyed to another.
a judgment lien can only attach to property owned by the debtor at the time the judgment lien is filed.
when does a property owner have to grant a special use permit?
if the property owner has complied with the procedures for obtaining the permit and has established entitlement to the permit.
When can a lease covenant be enforced?
only can be enforced by an assignee-landlord if it runs with the land. this occurs when
1) the og parties intended to bind sucesssor,
2) cov touches and concerns wthe land, and
3) there’s privity of estate
Are judgment creditors purchases for value?
Judgemnt creditors are not purchases for value since the attachement of a judgment lien to a debtor property is merely security for an existing debt - not payment of valuable consideration
Presumption with a FSD (durational language)
unless otherwise stated, its presumed that the estate will automatically revert back to the grantor if the terminating event/condition occurs
Part performance
Exception to SOF for oral agreements
Entitles buyer to equitable relief if buyer has:
1) taken poss of property,
2) substantially improved the property, and/or
3) paid any amount of purchase price
does not apply when there’s a written k
an acceleration clause allows the lender to demand the FULL payment of the REMAINING mortgage debt plus any accured interest if the debtor defaults on the mortgage loan
if the debtor is unable to pay, then the lender can move forward with foreclosure proceedings
seller has the right to satisfy the mortgage up to
the time of closing and can use sale proceeds to do so
equitable conversion
allows a buyer’s equitable title to be transferred upon his death, thereby keeping the land-sale k in effect.
liquated damages under the k are recoverable only if they reasonably compensate the injured party.
liquidated damages must be less than 15% of the purchase price
Traditional rule for silent consent clause in lease
a silent consent clause gives landlord right to withhold consent for any reason or for no reason, even if arbitrary and unreasonable
modern rule for assignment of a lease when where the contract is silent
Modern trend that a landlord’s consent not be unreasonably withheld
Factors for reasonableness: proposed assignee’s finanical ability to pay, the suitability of the premises for the proposed assignee’s use, and the need for alterations to accomodate the proposed’s assingee’s use.
not commercially reasonably to deny consent soley on the basis of personal taste, convenience, or sensibility
Under CL, a landlord has three options when a tenant abandons the premises
landlord has three options when tenant abandons premise:
1) accept a surrender of the premises, thereby extinguishing tenant’s duty to pay rent after acceptance;
2) re-let/attempt to re-let on the tenant’s behalf and recover damages for the difference; or
3) leave premises vacant and sue tenant for unpaid rent as it accrues
